Notices. Notice of proposed rulemaking (NPRM)

37,475 words·~170 min read·/register/2008/03/19/08-1055

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 3510-22-S 73 54 Wednesday, March 19, 2008 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-24261; Directorate Identifier 2006-NE-12-AD] RIN 2120-AA64 Airworthiness Directives; General Electric Company Aircraft Engines

(GEAE)CT7-8A Turboshaft Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive

(AD)for certain GEAE CT7-8A turboshaft engines. That AD currently requires initial and repetitive inspections of the electrical chip detectors for the No. 3 bearing. This proposed AD would require removing certain GEAE CT7-8A turboshaft engines within 6,200 cycles-since-new. This proposed AD results from investigation for the root causes of two failures of the No. 3 bearing. We are proposing this AD to prevent failure of the No. 3 bearing due to contamination by Aluminum Oxide, which could result in a possible dual in-flight shutdown of the engines. DATES: We must receive any comments on this proposed AD by May 19, 2008. ADDRESSES: Use one of the following addresses to comment on this proposed AD. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. • *Hand Delivery:* Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Fax:*

(202)493-2251. Contact General Electric Aircraft Engines CT7 Series Turboprop Engines, 1000 Western Ave., Lynn, MA 01910; telephone

(781)594-3140, fax

(781)594-4805, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Christopher Richards, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *christopher.j.richards@faa.gov* ; telephone

(731)238-7133; fax

(781)238-7199. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2006-24261; Directorate Identifier 2006-NE-12-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the DMS Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78) or you may visit *http://www.regulations.gov* . Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

(800)647-5527) is the same as the Mail address provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. Discussion The FAA proposes to amend 14 CFR part 39 by superseding AD 2006-06-51, Amendment 39-14566 (71 FR 19627, April 17, 2006). That AD requires: • Within 25 hours time-in-service after the effective date of that AD, inspecting the electrical chip detector assembly. • Staggering the inspection intervals so the chip detectors on both engines on the same helicopter are not inspected at the same time. • Thereafter, within 25 hours time-since-last inspection, performing a repetitive inspection, and • If the chip detector assembly contains any bearing material, replacing the engine. That AD was the result of two failures of the No. 3 bearing in GEAE CT7-8A turboshaft engines. That condition, if not corrected, could result in a possible dual in-flight shutdown of the engines. Actions Since AD 2006-06-51 Was Issued Since we issued that AD, GEAE has developed new procedures for flushing Aluminum Oxide hard particle contamination from the air cavity of the engine structure's front frame after the manufacturing process and for assembling the No. 3 bearing to the engine. Based on that new flushing procedure, we are proposing to: • Delete the requirements to inspect the electrical chip detector, and • Require removing any engine that has a serial number

(SN)listed in Table 1 of this proposed AD unless the front frame was flushed and the No. 3 bearing replaced, and • Prohibit installing any engine that has a SN listed in Table 1 of this proposed AD unless the front frame was flushed and the No. 3 bearing replaced. Relevant Service Information We have reviewed and approved the technical contents of GEAE Service Bulletin

(SB)CT7-8 S/B 72-0017, dated October 18, 2007, that describes procedures for flushing the engine front frame and replacing the No. 3 bearing. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. For that reason, we are proposing this AD, which would require removing certain GEAE CT7-8A turboshaft engines, listed by SN in this proposed AD, from service within 6,200 cycles-since-new, and, after the effective date of the proposed AD, would prohibit installing certain GEAE CT7-8A turboshaft engines, listed by SN in this proposed AD. Costs of Compliance We estimate that this proposed AD would affect 29 engines installed on helicopters of U.S. registry. We also estimate that it would take about 66.0 work-hours per engine to perform the proposed actions, and that the average labor rate is $80 per work-hour. Required parts would cost about $3,476 per engine. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $253,924 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-14566 (71 FR 19627, April 17, 2006) and by adding a new airworthiness directive to read as follows: **General Electric Company Aircraft Engines:** Docket No. FAA-2006-24261; Directorate Identifier 2006-NE-12-AD. Comments Due Date

(a)The Federal Aviation Administration

(FAA)must receive comments on this airworthiness directive

(AD)action by May 19, 2008. Affected ADs

(b)This AD supersedes AD 2006-06-51, Amendment 39-14566. Applicability

(c)This AD applies to General Electric Company Aircraft Engines

(GEAE)CT7-8A turboshaft engines that have a serial number

(SN)listed in Table 1 of this AD. These engines are installed on, but not limited to, Sikorsky S92 helicopters. Table 1.—Affected Engines by Serial Number Engine Serial No. 947205 947206 947207 947208 947209 947210 947211 947212 947214 947215 947217 947218 947219 947220 947221 947223 947225 947228 947230 947232 947233 947235 947238 947240 947241 947242 947243 947244 947245 947247 947248 947249 947250 947253 947254 947255 947256 947258 947260 947261 947262 947263 947265 947266 947274 947277 947278 947279 947280 947284 947285 Unsafe Condition

(d)This AD results from investigation for the root causes of two failures of the No. 3 bearing. We are issuing this AD to prevent failure of the No. 3 bearing due to contamination by Aluminum Oxide, which could result in a possible dual in-flight shutdown of the engines. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done.

(f)No further action is required if:

(1)Your engine has an SN that is not listed in Table 1 of this AD, or

(2)Your engine has an SN listed in Table 1 of this AD, but the engine log specifies that the front frame was flushed and the No. 3 bearing was replaced. Engines With SNs Listed in Table 1 of This AD

(g)For engines with an SN listed in Table 1 of this AD, within 6,200 cycles-since-new, remove engine from service. Installation Prohibition

(h)After the effective date of this AD, do not install any engine that has an SN listed in Table 1 of this AD unless the front frame was flushed and the No. 3 bearing was replaced. GEAE Service Bulletin

(SB)CT7-8 S/B 72-0017, dated October 18, 2007, contains information on flushing the front frame and replacing the No. 3 bearing. Alternative Methods of Compliance

(i)The Manager, Engine Certification Office, FAA, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Related Information

(j)GEAE SB No. CT7-8 S/B 72-0017, dated October 18, 2007, pertains to the subject of this AD.

(k)Contact Christopher Richards, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *christopher.j.richards@faa.gov* ; telephone

(731)238-7133; fax

(781)238-7199, for more information about this AD. Issued in Burlington, Massachusetts, on March 12, 2008. Robert J. Ganley, Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E8-5492 Filed 3-18-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0327; Directorate Identifier 2007-SW-21-AD] RIN 2120-AA64 Airworthiness Directives; Agusta S.p.a. Model A109E and A119 Helicopters AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

(AD)for the specified helicopters. This proposed AD results from a mandatory continuing airworthiness information

(MCAI)AD originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The European Aviation Safety Agency (EASA), the Technical Agent for Italy, with which we have a bilateral agreement, states in the MCAI: Some cases of interference between the hydraulic pipe, P/N 109-0761-65-103, and the tail rotor control rod assembly have been detected on Model A109E helicopters. The interference, if not corrected, could damage the hydraulic pipes and lead to the loss of the hydraulic system No. 1 in flight. This AD * * * is issued to extend the same mandatory corrective actions to A119 model due to its design similarity with A109E. The proposed AD would require actions that are intended to address this unsafe condition. DATES: We must receive comments on this proposed AD by April 18, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may get the service information identified in this proposed AD from Agusta, 21017 Cascina Costa di Samarate

(VA)Italy, Via Giovanni Agusta 520, telephone 39

(0331)229111, fax 39

(0331)229605-222595. *Examining the AD Docket:* You may examine the AD docket on the Internet at *http://www.regulations.gov* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the economic evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Uday Garadi, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Regulations and Guidance Group, Fort Worth, Texas 76193-0110, telephone

(817)222-5123, fax

(817)222-5961. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decisionmaking responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0327; Directorate Identifier 2007-SW-21-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued an MCAI in the form of EASA AD No. 2007-0231, dated August 23, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for these Italian-certificated products. The MCAI states: Some cases of interference between the hydraulic pipe, P/N 109-0761-65-103, and the tail rotor control rod assembly have been detected on Model A109E helicopters. The interference, if not corrected, could damage the hydraulic pipes and lead to the loss of the hydraulic system No. 1 in flight. This AD * * * is issued to extend the same mandatory corrective actions to A119 model due to its design similarity with A109E. You may obtain further information by examining the MCAI and service information in the AD docket. Relevant Service Information Agusta has issued Bollettino Tecnico

(BT)No. 109EP-73, dated December 4, 2006, applicable to Model A109E helicopters, and BT No. 119-22, dated July 11, 2007, applicable to Model A119 helicopters. The actions described in the MCAI are intended to correct the same unsafe condition as that identified in the service information. FAA's Determination and Requirements of This Proposed AD These model helicopters have been approved by the aviation authority of Italy, and are approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. However, this AD requires replacement of hydraulic lines within 180 days, unless previously accomplished, instead of replacing the hydraulic lines on the dates specified in the MCAI. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. These differences are highlighted in the “Differences Between the FAA AD and the MCAI” section in the proposed AD. Costs of Compliance We estimate that this proposed AD would affect about 78 helicopters of U.S. registry and that it would take about 2 work-hours per helicopter to inspect and 16 work-hours per helicopter to replace the hydraulic lines. The average labor rate is $80 per work-hour. Required parts would cost about $562 per helicopter, assuming these parts are no longer under warranty. However, because the service information lists these parts as covered under warranty, we have assumed that there will be no charge for these parts. Therefore, as we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $112,320, or $1,440 per helicopter. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Agusta. S.p.a.:** Docket No. FAA-2008-0327; Directorate Identifier 2007-SW-21-AD. Comments Due Date

(a)We must receive comments by April 18, 2008. Other Affected ADs

(b)None. Applicability

(c)This AD applies to Agusta S.p.a. Model A109E and A119 helicopters, with hydraulic lines, part number (P/N) 109-0761-64-103 or P/N 109-0761-65-103, installed, certificated in any category. Reason

(d)The mandatory continuing airworthiness information

(MCAI)states: Some cases of interference between the hydraulic pipe, P/N 109-0761-65-103, and the tail rotor control rod assembly have been detected on Model A109E helicopters. The interference, if not corrected, could damage the hydraulic pipes and lead to the loss of the hydraulic system No. 1 in flight. This AD * * * is issued to extend the same mandatory corrective actions to A119 model due to its design similarity with A109E. Actions and Compliance

(e)Within the next 50 hours time-in-service (TIS), unless accomplished previously, and thereafter at intervals not to exceed 100 hours TIS:

(1)Inspect for interference between the hydraulic lines, P/N 109-0761-64-103 and P/N 109-0761-65-103, and the tail rotor control rod assembly, P/N 109-0032-01-41, in accordance with the Compliance Instructions, Part I, paragraph 3, of Agusta Bollettino Tecnico

(BT)No. 109EP-73, dated December 4, 2006 (BT A109E), which is applicable to Model A109E helicopters, or BT 119-22, dated July 11, 2007 (BT 119-22), which is applicable to Model A119 helicopters.

(2)If you find interference between the hydraulic lines and the tail rotor control rod assembly, replace the hydraulic lines, P/N 109-0761-64-103 and P/N 109-0761-65-103, with hydraulic lines, P/N 109-0763-96-101 and P/N 109-0763-97-101, respectively, in accordance with the Compliance Instructions, Part II of BT A109E or BT 119-22, whichever is applicable to your model helicopter.

(f)Within 180 days, replace hydraulic lines, P/N 109-0761-64-103 and P/N 109-0761-65-103, with hydraulic lines, P/N 109-0763-96-101 and P/N 109-0763-97-101, respectively, in accordance with the Compliance Instructions, Part II, of BT A109E or BT 119-22, whichever is applicable to your model helicopter. Differences Between the FAA AD and the MCAI

(g)This AD requires replacement of hydraulic lines, P/N 109-0761-64-103 and P/N 109-0761-65-103, within 180 days, unless previously accomplished, instead of replacing the hydraulic lines on the dates specified in the MCAI. Subject

(h)Air Transport Association of America

(ATA)Code 2910—Main Hydraulic System. Other Information

(i)The following provisions also apply to this AD:

(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Regulations and Policy Group, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Uday Garadi, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Regulations and Guidance Group, Fort Worth, Texas 76193-0110, telephone

(817)222-5123, fax

(817)222-5961.

(2)*Airworthy Product:* Use only FAA-approved corrective actions. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent) if the State of Design has an appropriate bilateral agreement with the United States. You are required to assure the product is airworthy before it is returned to service.

(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information

(j)MCAI EASA AD No 2007-0231, dated August 23, 2007 contains related information. Issued in Fort Worth, Texas, on March 10, 2008. Mark R. Schilling, Acting Manager, Rotorcraft Directorate, Aircraft Certification Service. [FR Doc. E8-5495 Filed 3-18-08; 8:45 am] BILLING CODE 4910-13-P PENSION BENEFIT GUARANTY CORPORATION 29 CFR Parts 4001, 4211, and 4219 RIN 1212-AB07 Methods for Computing Withdrawal Liability; Reallocation Liability Upon Mass Withdrawal; Pension Protection Act of 2006 AGENCY: Pension Benefit Guaranty Corporation. ACTION: Proposed rule. SUMMARY: This proposed rule amends PBGC's regulation on Allocating Unfunded Vested Benefits to Withdrawing Employers (29 CFR part 4211) to implement provisions of the Pension Protection Act of 2006 (Pub. L. c109-280) that provide for changes in the allocation of unfunded vested benefits to withdrawing employers from a multiemployer pension plan, and that require adjustments in determining an employer's withdrawal liability when a multiemployer plan is in critical status. Pursuant to PBGC's authority under section 4211(c)(5) of ERISA to prescribe standard approaches for alternative methods, the proposed rule would also amend this regulation to provide additional modifications to the statutory methods for determining an employer's allocable share of unfunded vested benefits. In addition, pursuant to PBGC's authority under section 4219(c)(1)(D) of ERISA, this proposed rule would amend PBGC's regulation on Notice, Collection, and Redetermination of Withdrawal Liability (29 CFR part 4219) to improve the process of fully allocating a plan's total unfunded vested benefits among all liable employers in a mass withdrawal. Finally, this proposed rule would amend PBGC's regulation on Terminology (29 CFR part 4001) to reflect a definition of a “multiemployer plan” added by the Pension Protection Act of 2006. DATES: Comments must be submitted on or before May 19, 2008. ADDRESSES: Comments, identified by Regulation Information Number (RIN 1212-AB07), may be submitted by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the Web site instructions for submitting comments. • *E-mail: reg.comments@pbgc.gov.* • *Fax:* 202-326-4224. • *Mail or Hand Delivery:* Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026. Comments received, including personal information provided, will be posted to *http://www.pbgc.gov.* Copies of comments may also be obtained by writing to Disclosure Division, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026, or calling 202-326-4040 during normal business hours. (TTY and TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4040.) FOR FURTHER INFORMATION CONTACT: John H. Hanley, Director; Catherine B. Klion, Manager; or Constance Markakis, Attorney; Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026; 202-326-4024. (TTY and TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.) SUPPLEMENTARY INFORMATION: Background Under section 4201 of the Employee Retirement Income Security Act of 1974, as amended by the Multiemployer Pension Plan Amendments Act of 1980 (“ERISA”), an employer that withdraws from a multiemployer pension plan may incur withdrawal liability to the plan. Withdrawal liability represents the employer's allocable share of the plan's unfunded vested benefits determined under section 4211 of ERISA, and adjusted in accordance with other provisions in sections 4201 through 4225 of ERISA. Section 4211 prescribes four methods that a plan may use to allocate a share of unfunded vested benefits to a withdrawing employer, and also provides for possible modifications of those methods and for the use of allocation methods other than those prescribed. In general, changes to a plan's allocation methods are subject to the approval of the Pension Benefit Guaranty Corporation (“PBGC”). Under section 4211(b)(1) of ERISA (the “presumptive method”), the amount of unfunded vested benefits allocable to a withdrawing employer is the sum of the employer's proportional share of:

(i)The unamortized amount of the change in the plan's unfunded vested benefits for each plan year for which the employer has an obligation to contribute under the plan ( *i.e.* , multiple-year liability pools) ending with the plan year preceding the plan year of employer's withdrawal;

(ii)the unamortized amount of the unfunded vested benefits at the end of the last plan year ending before September 26, 1980, with respect to employers who had an obligation to contribute under the plan for the first plan year ending after such date; and

(iii)the unamortized amount of the reallocated unfunded vested benefits (amounts the plan sponsor determines to be uncollectible or unassessable) for each plan year ending before the employer's withdrawal. Each amount described in

(i)through

(iii)is reduced by 5 percent for each plan year after the plan year for which it arose. An employer's proportional share is based on a fraction equal to the sum of the contributions required to be made under the plan by the employer over total contributions made by all employers who had an obligation to contribute under the plan, for the five plan years ending with the plan year in which such change arose, the five plan years preceding September 26, 1980, and the five plan years ending with the plan year such reallocation liability arose, respectively (the “allocation fraction”). Section 4211(c)(1) of ERISA generally prohibits the adoption of any allocation method other than the presumptive method by a plan that primarily covers employees in the building and construction industry (“construction industry plan”), subject to regulations that allow certain adjustments in the denominator of an allocation fraction. Under section 4211(c)(2) of ERISA (the “modified presumptive method”), a withdrawing employer is liable for a proportional share of:

(i)The plan's unfunded vested benefits as of the end of the plan year preceding the withdrawal (less outstanding claims for withdrawal liability that can reasonably be expected to be collected and the amounts set forth in

(ii)below allocable to employers obligated to contribute in the plan year preceding the employer's withdrawal and who had an obligation to contribute in the first plan year ending after September 26, 1980); and

(ii)the plan's unfunded vested benefits as of the end of the last plan year ending before September 26, 1980 (amortized over 15 years), if the employer had an obligation to contribute under the plan for the first plan year ending on or after such date. An employer's proportional share is based on the employer's share of total plan contributions over the five plan years preceding the plan year of the employer's withdrawal and over the five plan years preceding September 26, 1980, respectively. Plans that use this method fully amortize their first pool as of 1995. Then, employers that withdraw after 1995 are subject to the allocation of unfunded vested benefits as if the plan used the “rolling-5 method” discussed below. Under section 4211(c)(3) of ERISA (the “rolling-5 method”), a withdrawing employer is liable for a share of the plan's unfunded vested benefits as of the end of the plan year preceding the employer's withdrawal (less outstanding claims for withdrawal liability that can reasonably be expected to be collected), allocated in proportion to the employer's share of total plan contributions for the last five plan years ending before the withdrawal. Under section 4211(c)(4) of ERISA (the “direct attribution method”), an employer's withdrawal liability is based generally on the benefits and assets attributable to participants' service with the employer, as of the end of the plan year preceding the employer's withdrawal; the employer is also liable for a proportional share of any unfunded vested benefits that are not attributable to service with employers who have an obligation to contribute under the plan in the plan year preceding the withdrawal. Section 4211(c)(5)(B) of ERISA authorizes PBGC to prescribe by regulation standard approaches for alternative methods for determining an employer's allocable share of unfunded vested benefits, and adjustments in any denominator of an allocation fraction under the withdrawal liability methods. PBGC has prescribed, in § 4211.12 of its regulation on Allocating Unfunded Vested Benefits to Withdrawing Employers, changes that a plan may adopt, without PBGC approval, in the denominator of the allocation fractions used to determine a withdrawing employer's share of unfunded vested benefits under the presumptive, modified presumptive and rolling-5 methods. Pension Protection Act of 2006 Changes The Pension Protection Act of 2006, Public Law 109-280 (“PPA 2006”), which became law on August 17, 2006, makes various changes to ERISA withdrawal liability provisions. Section 204(c)(2) of PPA 2006 added section 4211(c)(5)(E) of ERISA, which permits a plan, including a construction industry plan, to adopt an amendment that applies the presumptive method by substituting a different plan year (for which the plan has no unfunded vested benefits) for the plan year ending before September 26, 1980. Such an amendment would enable a plan to erase a large part of the plan's unfunded vested benefits attributable to plan years before the end of the designated plan year, and to start fresh with liabilities that arise in plan years after the designated plan year. Additionally, sections 202(a) and 212(a) of PPA 2006 create new funding rules for multiemployer plans in “critical” status, allowing these plans to reduce benefits and making the plans’ contributing employers subject to surcharges. New section 305(e)(9) of ERISA and section 432(e)(9) of the Internal Revenue Code (“Code”) provide that such benefit adjustments and employer surcharges are disregarded in determining a plan's unfunded vested benefits and allocation fraction for purposes of determining an employer's withdrawal liability, and direct PBGC to prescribe simplified methods for the application of these provisions in determining withdrawal liability. (PPA 2006 also makes other changes affecting the withdrawal liability provisions under ERISA that are not addressed in this proposed rule.) Overview of Proposed Rule This proposed rule would amend PBGC's regulation on Allocating Unfunded Vested Benefits to Withdrawing Employers (29 CFR part 4211) to implement the above-described changes made by PPA 2006. The proposed rule would also make changes unrelated to PPA 2006. Under its authority to prescribe alternatives to the statutory methods for determining an employer's allocable share of unfunded vested benefits, the proposed rule would also amend part 4211 to broaden the rules and provide more flexibility in applying the statutory methods. PBGC has identified certain modifications that may be advantageous to plans because they reduce administrative burdens for plans using the presumptive method and may assist plans in attracting new employers in the case of the modified presumptive method. In addition, in the case of a plan termination by mass withdrawal, section 4219(c)(1)(D) of ERISA provides that the total unfunded vested benefits of the plan must be fully allocated among all liable employers in a manner not inconsistent with regulations prescribed by PBGC. PBGC has determined that the fraction for allocating this “reallocation liability” under PBGC's regulation on Notice, Collection, and Redetermination of Withdrawal Liability (20 CFR part 4219) does not adequately capture the liability of employers who had little or no initial withdrawal liability. Accordingly, this proposed rule would amend part 4219 to revise the allocation fraction for reallocation liability. Proposed Regulatory Changes Withdrawal Liability Methods Under section 4211(c)(5)(E) of ERISA, added by PPA 2006, a plan using the presumptive withdrawal liability method in section 4211(b) of ERISA, including a construction industry plan, may be amended to substitute a plan year that is designated in a plan amendment and for which the plan has no unfunded vested benefits, for the plan year ending before September 26, 1980. For plan years ending before the designated plan year and for the designated plan year, the plan will be relieved of the burden of calculating changes in unfunded vested benefits separately for each plan year and allocating those changes to the employers that contributed to the plan in the year of the change. As the plan must have no unfunded vested benefits for the designated plan year, employers withdrawing from the plan after the modification is effective will have no liability for unfunded vested benefits arising in plan years ending before the designated plan year. PBGC proposes to amend § 4211.12 of its regulation on Allocating Unfunded Vested Benefits to Withdrawing Employers to reflect this new statutory modification to the presumptive method. In addition, PBGC proposes to expand § 4211.12 to permit plans to substitute a new plan year for the plan year ending before September 26, 1980, *without regard* to the amount of a plan's unfunded vested benefits at the end of the newly designated plan year. This change would allow plans using the presumptive method to aggregate the multiple liability pools attributable to prior plan years and the designated plan year. It would thus allow such plans to allocate the plan's unfunded vested benefits as of the end of the designated plan year among the employers who have an obligation to contribute under the plan for the first plan year ending on or after such date, based on the employer's share of the plan's contributions for the five-year period ending before the designated plan year. Thereafter, the plan would apply the regular rules under the presumptive method to segregate changes in the plan's unfunded vested benefits by plan year and to allocate individual plan year liabilities among the employers obligated to contribute under the plan in that plan year. PBGC believes this modification to the presumptive method will ease the administrative burdens of plans that lack the actuarial and contributions data necessary to compute each employer's allocable share of annual changes in unfunded vested benefits occurring in plan years as far back as 1980. Note, however, that this modification does not apply to a construction industry plan, because PBGC may prescribe only adjustments in the denominators of the allocation fractions for such plans. 1 1 Under ERISA section 4211(c)(1), construction industry plans are limited to the presumptive allocation method, except that PBGC may by regulation permit adjustments in any denominator under section 4211 (including the denominator of a fraction used in the presumptive method by construction industry plans) where such adjustment would be appropriate to ease the administrative burdens of plan sponsors. See ERISA section 4211(c)(5)(D), 29 CFR 4211.11(b) and 4211.12. PBGC also proposes to amend § 4211.12 to permit plans using the modified presumptive method to designate a plan year that would substitute for the last plan year ending before September 26, 1980. This proposal provides for the allocation of substantially all of a plan's unfunded vested benefits among employers who have an obligation to contribute under the plan, while enabling plans to split a single liability pool for plan years ending after September 25, 1980, into two liability pools. The first pool based on the plan's unfunded vested benefits as of the end of the newly designated plan year, allocated among employers who have an obligation to contribute under the plan for the plan year immediately following the designated plan year, and a second pool based on the unfunded vested benefits as of the end of the plan year prior to the withdrawal (offset in the manner described above for the modified presumptive method). For a period of time, this modification would reduce new employers' liability for unfunded vested benefits of the plan before the employer's participation, which could assist plans in attracting new employers and preserving the plan's contribution base. The proposal would not require PBGC approval for adoption. For each of these modifications, the proposed rule would clarify that a plan's unfunded vested benefits, determined with respect to plan years ending after the plan year designated in the plan amendment, are reduced by the value of the outstanding claims for withdrawal liability that can reasonably be expected to be collected for employers who withdrew from the plan in or before the designated plan year. Withdrawal Liability Computations for Plans in Critical Status—Adjustable Benefits PPA 2006 establishes additional funding rules for multiemployer plans in “endangered” or “critical” status under section 305 of ERISA and section 432 of the Code. The sponsor of a plan in critical status (less than 65 percent funded and/or meets any of the other defined tests) is required to adopt a rehabilitation plan that will enable the plan to cease to be in critical status within a specified period of time. Notwithstanding section 204(g) of ERISA or section 411(d)(6) of the Code, as deemed appropriate by the plan sponsor, based upon the outcome of collective bargaining over benefit and contribution schedules, the rehabilitation plan may include reductions to “adjustable benefits,” within the meaning of section 305(e)(8) of ERISA and section 432(e)(8) of the Code. New section 305(e)(9) of ERISA and section 432(e)(9) of the Code provide, however, that any benefit reductions under subsection

(e)must be disregarded in determining a plan's unfunded vested benefits for purposes of an employer's withdrawal liability under section 4201 of ERISA. (Also, under ERISA sections 305(f)(2) and (f)(3), and Code sections 432(f)(2) and (f)(3), a plan is limited in its payment of lump sums and similar benefits after a notice of the plan's critical status is sent, but any such benefit limits must be disregarded in determining a plan's unfunded vested benefits for purposes of determining an employer's withdrawal liability.) Adjustable benefits under section 305(e)(8) of ERISA and section 432(e)(8) of the Code include benefits, rights and features under the plan, such as post-retirement death benefits, 60-month guarantees, disability benefits not yet in pay status; certain early retirement benefits, retirement-type subsidies and benefit payment options; and benefit increases that would not be eligible for a guarantee under section 4022A of ERISA on the first day of the initial critical year because the increases were adopted (or, if later, took effect) less than 60 months before such date. An amendment reducing adjustable benefits may not affect the benefits of any participant or beneficiary whose benefit commencement date is before the date on which the plan provides notice that the plan is or will be in critical status for a plan year; the level of a participant's accrued benefit at normal retirement age also is protected. Under section 4213 of ERISA, a plan actuary must use actuarial assumptions that, in the aggregate, are reasonable and, in combination, offer the actuary's best estimate of anticipated experience in determining the unfunded vested benefits of a plan for purposes of determining an employer's withdrawal liability (absent regulations setting forth such methods and assumptions). Section 4213(c) provides that, for purposes of determining withdrawal liability, the term “unfunded vested benefits” means the amount by which the value of nonforfeitable benefits under the plan exceeds the value of plan assets. The proposed rule amends the definition of “nonforfeitable benefits” in § 4211.2 of PBGC's regulation on Allocating Unfunded Vested Benefits to Withdrawing Employers, and the definition of “unfunded vested benefits” in § 4219.2 of PBGC's regulation on Notice, Collection, and Redetermination of Withdrawal Liability, to include adjustable benefits that have been reduced by a plan sponsor pursuant to ERISA section 305(e)(8) or Code section 432(e)(8), to the extent such benefits would otherwise be nonforfeitable benefits. Section 305(e)(9)(C) of ERISA and section 432(e)(9)(C) of the Code direct PBGC to prescribe simplified methods for the application of this provision in determining withdrawal liability. PBGC intends to issue guidance on simplified methods at a later date. Withdrawal Liability Computations for Plans in Critical Status—Employer Surcharges Under section 305(e)(7) of ERISA, added by section 202(a) of PPA 2006, and under section 432(e)(7) of the Code, added by section 212(a) of PPA 2006, each employer otherwise obligated to make contributions for the initial plan year and any subsequent plan year that a plan is in critical status must pay to the plan for such plan year a surcharge, until the effective date of a collective bargaining agreement that includes terms consistent with the rehabilitation plan adopted by the plan sponsor. Section 305(e)(9) of ERISA and section 432(e)(9) of the Code provide, however, that any employer surcharges under paragraph

(7)must be disregarded in determining an employer's withdrawal liability under section 4211 of ERISA, except for purposes of determining the unfunded vested benefits attributable to an employer under section 4211(c)(4) (the direct attribution method) or a comparable method approved under section 4211(c)(5) of ERISA. The presumptive, modified presumptive and rolling-5 methods of allocating unfunded vested benefits allocate the liability pools among participating employers based on the employers' contribution obligations for the five-year period preceding the date the liability pool was established or the year of the employer's withdrawal (depending on the method or liability pool). Under section 4211 of ERISA, the numerator of the allocation fraction is the total amount required to be contributed by the withdrawing employer for the five-year period, and the denominator of the allocation fraction is the total amount contributed by all employers under the plan for the five-year period. The proposed rule amends PBGC's regulation on Allocating Unfunded Vested Benefits to Withdrawing Employers (part 4211) by adding a new § 4211.4 that excludes amounts attributable to the employer surcharge under section 305(e)(7) of ERISA and section 432(e)(7) of the Code from the contributions that are otherwise includable in the numerator and the denominator of the allocation fraction under the presumptive, modified presumptive and rolling-5 methods. Pursuant to section 305(e)(9) of ERISA and section 432(e)(9) of the Code, a simplified method for the application of this principle is provided below in the form of an illustration of the exclusion of employer surcharge amounts from the allocation fraction. *Example:* Plan X is a multiemployer plan that has vested benefit liabilities of $200 million and assets of $130 million as of the end of its 2015 plan year. During the 2015 plan year, there were three contributing employers. Two of three employers were in the plan for the entire five-year period ending with the 2015 plan year. One employer was in the plan during the 2014 and 2015 plan years only. Each employer had a $4 million contribution obligation each year under a collective bargaining agreement. In addition, for the 2011, 2012, and 2013 plan years, employers were liable for the automatic employer surcharge under section 305(e)(7) of ERISA and section 432(e)(7) of the Code, at a rate of 5% of required contributions in 2011 and 10% of required contributions in 2012 and 2013. The following table shows the contributions and surcharges owed for the five-year period. Year Employer A ($ in millions) Contribution Surcharge Employer B ($ in millions) Contribution Surcharge Employer C ($ in millions) Contribution Surcharge 2011 $4 $0.2 $4 $0.2 2012 4 0.4 4 0.4 2013 4 0.4 4 0.4 2014 4 0 4 0 $4 $0 2015 4 0 4 0 4 0 5-year total 20 1.0 20 1.0 8 0 Employers A, B and C contributed $48 million during the five-year period, excluding surcharges, and $50 million including surcharges. Under the rolling-5 method, the unfunded vested benefits allocable to an employer are equal to the plan's unfunded vested benefits as of the end of the last plan year preceding the withdrawal, multiplied by a fraction equal to the amount the employer was required to contribute to the plan for the last five plan years preceding the withdrawal over the total amount contributed by all employers for those five plan years (other adjustments are also required). Employer A's share of the plan's unfunded vested benefits in the event it withdraws in 2016 is $29.17 million, determined by multiplying $70 million (the plan's unfunded vested benefits at the end of 2015) by the ratio of $20 million to $48 million. Employer B's allocable unfunded vested benefits are identical to Employer A's, and the amount allocable to Employer C is $11.66 million ($70 million multiplied by the ratio of $8 million over $48 million). The $2.0 million attributable to the automatic employer surcharge is excluded from contributions in the allocation fraction. Reallocation Liability Upon Mass Withdrawal Section 4219(c)(1)(D) of ERISA applies special withdrawal liability rules when a multiemployer plan terminates because of mass withdrawal ( *i.e.* , the withdrawal of every employer under the plan) or when substantially all employers withdraw pursuant to an agreement or arrangement to withdraw, including a requirement that the total unfunded vested benefits of the plan be fully allocated among all employers in a manner not inconsistent with PBGC regulations. To ensure that all unfunded vested benefits are fully allocated among all liable employers, § 4219.15(b) of PBGC's regulation on Notice, Collection, and Redetermination of Withdrawal Liability requires a determination of the plan's unfunded vested benefits as of end of the plan year of the plan termination, based on the value of the plan's nonforfeitable benefits as of that date less the value of plan assets (benefits and assets valued in accordance with assumptions specified by PBGC), less the outstanding balance of any initial withdrawal liability (assessments without regard to the occurrence of a mass withdrawal) and any redetermination liability (assessments for de minimis and 20-year cap reduction amounts) that can reasonably be expected to be collected. Pursuant to § 4219.15(c)(1), each liable employer's share of this “reallocation liability” is equal to the amount of the reallocation liability multiplied by a fraction—

(i)The numerator of which is the sum of the employer's initial withdrawal liability and any redetermination liability, and

(ii)The denominator of which is the sum of all initial withdrawal liabilities and all the redetermination liabilities of all liable employers. PBGC believes the current allocation fraction for reallocation liability must be modified to address those situations in which employers—who would otherwise be liable for reallocation liability—have little or no initial withdrawal liability or redetermination liability and, therefore, have a zero (or understated) reallocation liability. Such situations may arise, for example, where an employer withdraws from the plan before the mass withdrawal valuation date, but has no withdrawal liability under the modified presumptive and rolling-5 methods because either

(i)the plan has no unfunded vested benefits as of the end of the plan year preceding the plan year in which the employer withdrew, or

(ii)the plan did not require the employer to make contributions for the five-year period preceding the plan year of withdrawal. In these cases, if the employer's withdrawal is later determined to be part of a mass withdrawal for which reallocation liability applies under section 4219 of ERISA, the employer would not be liable for any portion of the reallocation liability. A plan's status may change from funded to underfunded between the end of the plan year before the employer withdraws and the mass withdrawal valuation date as a result of differences in the actuarial assumptions used by the plan's actuary in determining unfunded vested benefits under sections 4211 and 4219 of ERISA, or due to investment losses that reduce the value of the plan's assets, among other reasons. Likewise, an employer may not have paid contributions for purposes of the allocation fraction used to determine the employer's initial withdrawal liability if the plan provided for a “contribution holiday” under which employers were not required to make contributions. PBGC believes the absence of initial withdrawal liability should not generally exempt an otherwise liable employer from reallocation liability. By shifting reallocation liability away from some employers, the allocable share of other employers in a mass withdrawal is increased, and the risk of a loss of benefits to participants and to PBGC is increased. To ensure that reallocation liability is allocated broadly among all liable employers, PBGC proposes to amend § 4219.15(c) of the Notice, Collection, and Redetermination of Withdrawal Liability regulation to replace the current allocation fraction based on initial withdrawal liability with a new allocation fraction for determining an employer's allocable share of reallocation liability. The proposed formula would allocate the plan's unfunded vested benefits based on the employer's contribution base units relative to the plan's total contribution base units for the three plan years preceding the employer's withdrawal from the plan. The numerator would consist of the withdrawing employer's average contribution base units during the three plan years preceding the withdrawal, and the denominator would consist of the average of all the employers' contribution base units during the three plan years preceding the withdrawal. Section 4001(a)(11) of ERISA defines a “contribution base unit” as a unit with respect to which an employer has an obligation to contribute under a multiemployer plan, *e.g.* , an hour worked. PBGC proposes a similar definition for purposes of § 4219.15 of the Notice, Collection, and Redetermination of Withdrawal Liability regulation. PBGC also proposes to amend § 4219.1 of the regulation on Notice, Collection, and Redetermination of Withdrawal Liability to implement a provision under new section 4221(g) of ERISA, added by section 204(d)(1) of PPA 2006, which relieves an employer in certain narrowly defined circumstances of the obligation to make withdrawal liability payments until a final decision in the arbitration proceeding, or in court, upholds the plan sponsor's determination that the employer is liable for withdrawal liability based in part or in whole on section 4212(c) of ERISA. The regulation would state that an employer that complies with the specific procedures of section 4221(g) (or a similar provision in section 4221(f) of ERISA, added by Pub. L. 108-218) is not in default under section 4219(c)(5)(A). Definition of Multiemployer Plan Section 1106 of PPA 2006 amended the definition of a “multiemployer” plan in section 3(37)(G) of ERISA and section 414(f)(6) of the Code to allow certain plans to elect to be multiemployer plans for all purposes under ERISA and the Code, pursuant to procedures prescribed by PBGC. PBGC proposes to amend the definition of a “multiemployer plan” under § 4001.2 of its regulation on Terminology (29 CFR part 4001) to add a definition that is parallel to the definition in section 3(37)(G) of ERISA and section 414(f)(6) of the Code. Applicability The changes relating to modifications to the statutory methods prescribed by PBGC for determining an employer's share of unfunded vested benefits would be applicable to employer withdrawals from a plan that occur on or after the effective date of the final rule, subject to section 4214 of ERISA (relating to plan amendments). Changes in the fraction for allocating reallocation liability would be applicable to plan terminations by mass withdrawals (or by withdrawals of substantially all employers pursuant to an agreement or arrangement to withdraw) that occur on or after the effective date of the final rule. The change relating to the presumptive method made by PPA 2006 would be applicable to employer withdrawals occurring on or after January 1, 2007, subject to section 4214 of ERISA. The changes relating to the effect of PPA 2006 benefit adjustments and employer surcharges for purposes of determining an employer's withdrawal liability would be applicable to employer withdrawals from a plan and plan terminations by mass withdrawals (or withdrawals of substantially all employers pursuant to an agreement or arrangement to withdraw) occurring for plan years beginning on or after January 1, 2008. The change in the definition of a multiemployer plan is effective August 17, 2006. The change in section 4221(g) of ERISA made by PPA 2006 would be effective for any person that receives a notification under ERISA section 4219(b)(1) on or after August 17, 2006, with respect to a transaction that occurred after December 31, 1998. Compliance With Rulemaking Requirements E.O. 12866 The PBGC has determined, in consultation with the Office of Management and Budget, that this rule is a “significant regulatory action” under Executive Order 12866. The Office of Management and Budget has therefore reviewed this notice under E.O. 12866. Pursuant to section 1(b)(1) of E.O. 12866 (as amended by E.O. 13422), PBGC identifies the following specific problems that warrant this agency action: • This regulatory action implements the PPA 2006 amendment to section 4211(c)(5) of ERISA that permits a plan using the presumptive method to substitute a specified plan year for which the plan has no unfunded vested benefits for the plan year ending before September 26, 1980. The proposed rule would provide necessary guidance on the application of this modification to the specific provisions of the presumptive method under section 4211(b) of ERISA. Also, because the statutory amendment lacks specificity in describing how to compute unfunded vested benefits, the rule clarifies the need to reduce the plan's unfunded vested benefits for plan years ending on or after the last day of the designated plan year by the value of all outstanding claims for withdrawal liability reasonably expected to be collected from withdrawn employers as of the end of the designated plan year. • Existing modifications to the statutory withdrawal liability methods not subject to PBGC approval are outmoded and restrictive and an expansion of the modifications is consistent with statutory changes under PPA 2006. This problem is significant because the current rules impose significant administrative burdens on plans and impede flexibility needed by multiemployer plans to attract new employers. • This regulatory action implements the PPA 2006 amendment to section 305(e)(9) of ERISA and section 432(e)(9) of the Code requiring plans in critical status to disregard reductions in adjustable benefits and employer surcharges in determining a plan's unfunded vested benefits for purposes of an employer's withdrawal liability. The rule is necessary to conform the definition of nonforfeitable benefits and the allocation fraction based on employer contributions under PBGC's regulations to the statutory changes. • The rule would revise the allocation fraction for reallocation liability, which applies when a multiemployer plan terminates by mass withdrawal, to ensure that reallocation liability is allocated broadly among all liable employers. Regulatory Flexibility Act PBGC certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq* .) that the amendments in this proposed rule would not have a significant economic impact on a substantial number of small entities. Specifically, the amendments would have the following effect: • A statutory change under PPA 2006 provides plans with a “fresh start” option in determining withdrawal liability when an employer withdraws from a multiemployer plan. This rule clarifies the application of this fresh start option and extends the option to other withdrawal liability calculations. Under these amendments, plans may avoid costly and burdensome year-by-year calculations of unfunded vested benefits and employers' allocable shares of such benefits for years as far back as 1980; alternatively, these amendments may help plans attract new employers by shielding them from unfunded liabilities that arose in the past. Any changes to a plan's withdrawal liability method are adopted at the discretion of each plan's governing board of trustees. Accordingly, there is no cost to compliance. • A statutory change under PPA requires plans in “critical” status to disregard reductions in adjustable benefits and employer surcharges in determining an employer's withdrawal liability. This rule would clarify the exclusion of any surcharges from the allocation fraction consisting of employer contributions, and the exclusion of the cost of any reduced benefits from the plan's unfunded vested benefits. The rule simply applies the statutory provisions and imposes no significant burden beyond the burden imposed by statute. Furthermore, more than 88 percent of all multiemployer pension plans have 250 or more participants. • Another amendment in the rule would revise the fraction for allocating reallocation liability (unfunded vested benefits as of the end of the plan year of a plan's termination) among employers when a plan terminates in a mass withdrawal. Plans routinely maintain the contribution records necessary to apply the new fraction in place of the old fraction for this purpose. Moreover, a majority of all plans that terminate in a mass withdrawal have more than 250 participants at the time of termination. Accordingly, as provided in section 605 of the Regulatory Flexibility Act (5 U.S.C 601 *et seq.* ), sections 603 and 604 do not apply. List of Subjects 20 CFR Part 4001 Business and industry, Organization and functions (Government agencies), Pension insurance, Pensions, Small businesses. 29 CFR Part 4211 Pension insurance, Pensions, Reporting and recordkeeping. requirements. 29 CFR Part 4219 Pensions, Reporting and recordkeeping requirements. For the reasons given above, PBGC proposes to amend 29 CFR parts 4001, 4211 and 4219 as follows. PART 4001—TERMINOLOGY 1. The authority citation for part 4001 continues to read as follows: Authority: 29 U.S.C. 1301, 1302(b)(3). § 4001.2 [Amended] 2. In § 4001.2, the definition of *Multiemployer plan* is amended by adding at the end the sentence “Multiemployer plan also means a plan that elects to be a multiemployer plan under ERISA section 3(37)(G) and Code section 414(f)(6), pursuant to procedures prescribed by PBGC and the approval of an election by PBGC.” PART 4211—ALLOCATING UNFUNDED VESTED BENEFITS TO WITHDRAWING EMPLOYERS 3. The authority citation for part 4211 continues to read as follows: Authority: 29 U.S.C. 1302(b)(3); 1391(c)(1), (c)(2)(D), (c)(5)(A), (c)(5)(B), (c)(5)(D), and (f). 4. In § 4211.2— a. The first sentence is amended by removing the words “nonforfeitable benefit,”. b. The definition of *Unfunded vested benefits* is amended to add the words “, as defined for purposes of this section,” between the words “plan” and “exceeds”. c. A new definition is added in alphabetical order to read as follows: § 4211.2 Definitions. *Nonforfeitable benefit* means a benefit described in § 4001.2 of this chapter plus, for purposes of this part, any adjustable benefit that has been reduced by the plan sponsor pursuant to section 305(e)(8) of ERISA or section 432(e)(8) of the Code that would otherwise have been includable as a nonforfeitable benefit for purposes of determining an employer's allocable share of unfunded vested benefits. 5. A new § 4211.4 is added to read as follows: § 4211.4 Contributions for purposes of the numerator and denominator of the allocation fractions. Each of the allocation fractions used in the presumptive, modified presumptive and rolling-5 methods is based on contributions that certain employers have made to the plan for a five-year period.

(a)The numerator of the allocation fraction, with respect to a withdrawing employer, is based on the “sum of the contributions required to be made” or the “total amount required to be contributed” by the employer for the specified period. For purposes of these methods, this means the amount that is required to be contributed under one or more collective bargaining agreements or other agreements pursuant to which the employer contributes under the plan, other than withdrawal liability payments or amounts that an employer is obligated to pay to the plan pursuant to section 305(e)(7) of ERISA or section 432(e)(7) of the Code (automatic employer surcharge). Employee contributions, if any, shall be excluded from the totals.

(b)The denominator of the allocation fraction is based on contributions that certain employers have made to the plan for a specified period. For purposes of these methods, and except as provided in § 4211.12, “the sum of all contributions made” or “total amount contributed” by employers for a plan year means the amounts considered contributed to the plan for purposes of section 412(b)(3)(A) of the Code, other than withdrawal liability payments or amounts that an employer is obligated to pay to the plan pursuant to section 305(e)(7) of ERISA or section 432(e)(7) of the Code (automatic employer surcharge). For plan years before section 412 applies to the plan, “the sum of all contributions made” or “total amount contributed” means the amount reported to the IRS or the Department of Labor as total contributions for the plan year; for example, the plan years in which the plan filed the Form 5500, the amount reported as total contributions on that form. Employee contributions, if any, shall be excluded from the totals. 6. In § 4211.12— a. Paragraph

(a)is removed and paragraph

(b)is redesignated as paragraph (a). b. Paragraph

(c)is redesignated as paragraph (b). c. Add new paragraphs

(c)and

(d)to read as follows: § 4211.12 Modifications to the presumptive, modified presumptive and rolling-5 methods.

(c)*“Fresh start” rules under presumptive method* .

(1)The plan sponsor of a plan using the presumptive method (including a plan that primarily covers employees in the building and construction industry) may amend the plan to provide—

(i)A designated plan year ending after September 26, 1980 will substitute for the plan year ending before September 26, 1980, in applying section 4211(b)(1)(B), section 4211(b)(2)(B)(ii)(I), section 4211(b)(2)(D), section 4211(b)(3), and section 4211(b)(3)(B) of ERISA, and

(ii)Plan years ending after the end of the designated plan year in paragraph (c)(1)(i) will substitute for plan years ending after September 25, 1980, in applying section 4211(b)(1)(A), section 4211(b)(2)(A), and section 4211(b)(2)(B)(ii)(II) of ERISA.

(2)A plan amendment made pursuant to paragraph (c)(1) of this section must provide that the plan's unfunded vested benefits for plan years ending after the designated plan year are reduced by the value of all outstanding claims for withdrawal liability that can reasonably be expected to be collected from employers that had withdrawn from the plan as of the end of the designated plan year.

(3)In the case of a plan that primarily covers employees in the building and construction industry, the plan year designated by a plan amendment pursuant to paragraph (c)(1) of this section must be a plan year for which the plan has no unfunded vested benefits.

(d)*“Fresh start” rules under modified presumptive method* .

(1)The plan sponsor of a plan using the modified presumptive method may amend the plan to provide—

(i)A designated plan year ending after September 26, 1980 will substitute for the plan year ending before September 26, 1980, in applying section 4211(c)(2)(B)(i) and section 4211(c)(2)(B)(ii)(I) and

(II)of ERISA, and

(ii)Plan years ending after the end of the designated plan year will substitute for plan years ending after September 25, 1980, in applying section 4211(c)(2)(B)(ii)(II) and section 4211(c)(2)(C)(i)(II) of ERISA.

(2)A plan amendment made pursuant to paragraph (d)(1) of this section must provide that the plan's unfunded vested benefits for plan years ending after the designated plan year are reduced by the value of all outstanding claims for withdrawal liability that can reasonably be expected to be collected from employers that had withdrawn from the plan as of the end of the designated plan year. PART 4219—NOTICE, COLLECTION, AND REDETERMINATION OF WITHDRAWAL LIABILITY 7. The authority citation for part 4219 continues to read as follows: Authority: 29 U.S.C. 1302(b)(3) and 1399(c)(6). 8. In § 4219.1, paragraph

(c)is amended by removing the words “after April 28, 1980 (May 2, 1979, for certain employees in the seagoing industry)” and adding in their place the words “on or after September 26, 1980, except employers with respect to whom section 4221(f) or section 4221(g) of ERISA applies (provided that such employers are in compliance with the provisions of those sections, as applicable).” 9. In § 4219.2— a. Paragraph

(a)is amended by removing the words “nonforfeitable benefit,”. b. Paragraph

(b)is amended by adding the word “nonforfeitable” between the words “vested” and “benefits” and the words “(as defined for purposes of this section)” between the words “benefits” and “exceeds” in the definition of *Unfunded vested benefits* . c. Paragraph

(b)is amended by adding a new definition in alphabetical order to read as follows: § 4219.2 Definitions. *“Nonforfeitable benefit* means a benefit described in § 4001.2 of this chapter plus, for purposes of this part, any adjustable benefit that has been reduced by the plan sponsor pursuant to section 305(e)(8) of ERISA and section 432(e)(8) of the Code that would otherwise have been includable as a nonforfeitable benefit.” 10. In § 4219.15, revise paragraph (c)(1) and add a new paragraph (c)(4) to read as follows: § 4219.15 Determination of reallocation liability.

(c)* * *

(1)*Initial allocable share* . Except as otherwise provided in rules adopted by the plan pursuant to paragraph

(d)of this section, and in accordance with paragraph (c)(3) of this section, an employer's initial allocable share shall be equal to the product of the plan's unfunded vested benefits to be reallocated, multiplied by a fraction—

(i)The numerator of which is a yearly average of the employer's contribution base units during the three plan years preceding the employer's withdrawal; and

(ii)The denominator of which is a yearly average of the total contribution base units of all employers liable for reallocation liability during the three plan years preceding the employer's withdrawal.

(4)*Contribution base unit* . For purposes of paragraph (c)(1) of this section, a contribution base unit means a unit with respect to which an employer has an obligation to contribute, such as an hour worked or shift worked or a unit of production, under the applicable collective bargaining agreement (or other agreement pursuant to which the employer contributes) or with respect to which the employer would have an obligation to contribute if the contribution requirement with respect to the plan were greater than zero. Issued in Washington, DC, this 11th day of March, 2008. Charles E.F. Millard, Director, Pension Benefit Guaranty Corporation. [FR Doc. E8-5541 Filed 3-18-08; 8:45 am] BILLING CODE 7709-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [FRL-8543-8; EPA-HQ-SFUND-2008-0081, EPA-HQ-SFUND-2008-0082, EPA-HQ-SFUND-2008-0083, EPA-HQ-SFUND-2008-0084, EPA-HQ-SFUND-2008-0085, EPA-HQ-SFUND-2008-0086] National Priorities List, Proposed Rule No. 48 AGENCY: Environmental Protection Agency. ACTION: Proposed rule. SUMMARY: The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “the Act”), as amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”) include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The National Priorities List (“NPL”) constitutes this list. The NPL is intended primarily to guide the Environmental Protection Agency (“EPA” or “the Agency”) in determining which sites warrant further investigation. These further investigations will allow EPA to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. This rule proposes to add six new sites to the General Superfund section of the NPL. DATES: Comments regarding any of these proposed listings must be submitted (postmarked) on or before May 19, 2008. ADDRESSES: Identify the appropriate FDMS Docket Number from the table below. FDMS Docket Identification Numbers by Site Site name City/state FDMS Docket ID No. Iron King Mine—Humboldt Smelter Dewey-Humboldt, AZ EPA-HQ-SFUND-2008-0086. Nelson Tunnel/Commodore Waste Rock Creede, CO EPA-HQ-SFUND-2008-0085. Flash Cleaners Pompano Beach, FL EPA-HQ-SFUND-2008-0081. Aberdeen Contaminated Ground Water Aberdeen, NC EPA-HQ-SFUND-2008-0082. Attebury Grain Storage Facility Happy, TX EPA-HQ-SFUND-2008-0083. Old Esco Manufacturing Greenville, TX EPA-HQ-SFUND-2008-0084. Submit your comments, identified by the appropriate FDMS Docket number, by one of the following methods: • *http://www.regulations.gov:* Follow the online instructions for submitting comments. • *E-mail: superfund.docket@epa.gov* • *Mail:* Mail comments (no facsimiles or tapes) to Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; (Mail Code 5305T); 1200 Pennsylvania Avenue, NW., Washington, DC 20460. • *Hand Delivery or Express Mail:* Send comments (no facsimiles or tapes) to Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; 1301 Constitution Avenue; EPA West, Room 3340, Washington, DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4:30 p.m., Monday through Friday excluding Federal holidays). Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to the appropriate FDMS Docket number (see table above). EPA's policy is that all comments received will be included in the public Docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system; that means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public Docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional Docket addresses and further details on their contents, see section II, “Public Review/Public Comment,” of the Supplementary Information portion of this preamble. FOR FURTHER INFORMATION CONTACT: Terry Jeng, phone:

(703)603-8852, e-mail: *jeng.terry@epa.gov;* State, Tribal and Site Identification Branch; Assessment and Remediation Division; Office of Superfund Remediation and Technology Innovation (Mail Code 5204P); U.S. Environmental Protection Agency; 1200 Pennsylvania Avenue, NW., Washington, DC 20460; or the Superfund Hotline, phone:

(800)424-9346 or

(703)412-9810 in the Washington, DC metropolitan area. SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. What Are CERCLA and SARA? B. What Is the NCP? C. What Is the National Priorities List (NPL)? D. How Are Sites Listed on the NPL? E. What Happens to Sites on the NPL? F. Does the NPL Define the Boundaries of Sites? G. How Are Sites Removed From the NPL? H. May EPA Delete Portions of Sites From the NPL as They Are Cleaned Up? I. What Is the Construction Completion List (CCL)? J. What Is the Sitewide Ready for Anticipated Use Measure? II. Public Review/Public Comment A. May I Review the Documents Relevant to This Proposed Rule? B. How Do I Access the Documents? C. What Documents Are Available for Public Review at the Headquarters Docket? D. What Documents Are Available for Public Review at the Regional Dockets? E. How Do I Submit My Comments? F. What Happens to My Comments? G. What Should I Consider When Preparing My Comments? H. May I Submit Comments After the Public Comment Period Is Over? I. May I View Public Comments Submitted by Others? J. May I Submit Comments Regarding Sites Not Currently Proposed to the NPL? III. Contents of This Proposed Rule A. Proposed Additions to the NPL IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review 1. What Is Executive Order 12866? 2. Is This Proposed Rule Subject to Executive Order 12866 Review? B. Paperwork Reduction Act 1. What Is the Paperwork Reduction Act? 2. Does the Paperwork Reduction Act Apply to This Proposed Rule? C. Regulatory Flexibility Act 1. What Is the Regulatory Flexibility Act? 2. How Has EPA Complied With the Regulatory Flexibility Act? D. Unfunded Mandates Reform Act 1. What Is the Unfunded Mandates Reform Act (UMRA)? 2. Does UMRA Apply to This Proposed Rule? E. Executive Order 13132: Federalism What Is Executive Order 13132 and Is It Applicable to This Proposed Rule? F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments 1. What Is Executive Order 13175? 2. Does Executive Order 13175 Apply to This Proposed Rule? G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks 1. What Is Executive Order 13045? 2. Does Executive Order 13045 Apply to This Proposed Rule? H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Usage Is This Rule Subject to Executive Order 13211? I. National Technology Transfer and Advancement Act 1. What Is the National Technology Transfer and Advancement Act? 2. Does the National Technology Transfer and Advancement Act Apply to This Proposed Rule? I. Background A. What Are CERCLA and SARA? In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 *et. seq* . B. What Is the NCP? To implement CERCLA, EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666). As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)). C. What Is the National Priorities List (NPL)? The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended by SARA. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken. For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by EPA (the “General Superfund Section”), and one of sites that are owned or operated by other Federal agencies (the “Federal Facilities Section”). With respect to sites in the Federal Facilities Section, these sites are generally being addressed by other Federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody, or control, although EPA is responsible for preparing a Hazard Ranking System

(HRS)score and determining whether the facility is placed on the NPL. At Federal Facilities Section sites, EPA's role is less extensive than at other sites. D. How Are Sites Listed on the NPL? There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP):

(1)A site may be included on the NPL if it scores sufficiently high on the Hazard Ranking System (“HRS”), that EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening device to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: ground water, surface water, soil exposure, and air. As a matter of Agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL;

(2)pursuant to 42 U.S.C. 9605(a)(8)(B), each State may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each State as the greatest danger to public health, welfare, or the environment among known facilities in the State. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2);

(3)the third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met: • The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release; • EPA determines that the release poses a significant threat to public health; and • EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release. EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually. E. What Happens to Sites on the NPL? A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with permanent remedy, taken instead of or in addition to removal actions. * * *” 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing a site on the NPL “does not imply that monies will be expended.” EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws. F. Does the NPL Define the Boundaries of Sites? The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing. Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis. When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came. In other words, while geographic terms are often used to designate the site (e.g., the “Jones Co. plant site”) in terms of the property owned by a particular party, the site, properly understood, is not limited to that property (e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property (e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to, nor confined by, the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. In addition, the site name is merely used to help identify the geographic location of the contamination and is not meant to constitute any determination of liability at a site. For example, the name “Jones Co. plant site,” does not imply that the Jones Company is responsible for the contamination located on the plant site. EPA regulations provide that the Remedial Investigation (“RI”) “is a process undertaken * * * to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the Feasibility Study (“FS”) (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty. Further, as noted above, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the Agency at any time after it receives notice that it is a potentially responsible party. For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release. G. How Are Sites Removed From the NPL? EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:

(i)Responsible parties or other persons have implemented all appropriate response actions required;

(ii)All appropriate Superfund-financed response has been implemented and no further response action is required; or

(iii)The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate. H. May EPA Delete Portions of Sites From the NPL as They Are Cleaned Up? In November 1995, EPA initiated a new policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use. I. What Is the Construction Completion List (CCL)? EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance. Sites qualify for the CCL when:

(1)Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved;

(2)EPA has determined that the response action should be limited to measures that do not involve construction (e.g., institutional controls); or

(3)The site qualifies for deletion from the NPL. For the most up-to-date information on the CCL, see EPA's Internet site at *http://www.epa.gov/superfund* . J. What Is the Sitewide Ready for Anticipated Use Measure? The Sitewide Ready for Anticipated Use measure (formerly called Sitewide Ready-for-Reuse measure) represents important Superfund accomplishments and the measure reflects the high priority EPA places on considering anticipated future land use as part of our remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment, including current and future land users, in a manner that allows contaminated properties to be restored to environmental and economic vitality while ensuring protectiveness for current and future land users. For further information, please go to *http://www.epa.gov/superfund/programs/recycle/tools/sitewide.htm* . II. Public Review/Public Comment A. May I Review the Documents Relevant to This Proposed Rule? Yes, documents that form the basis for EPA's evaluation and scoring of the sites in this rule are contained in public Dockets located at EPA Headquarters in Washington, DC, in the Regional offices and by electronic access at *http://www.regulations.gov* (see instructions in the Addresses section above). B. How Do I Access the Documents? You may view the documents, by appointment only, in the Headquarters or the Regional Dockets after the publication of this proposed rule. The hours of operation for the Headquarters Docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday excluding Federal holidays. Please contact the Regional Dockets for hours. The following is the contact information for the EPA Headquarters Docket: Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; 1301 Constitution Avenue; EPA West, Room 3340, Washington, DC 20004;

(202)566-1744. (Please note this is a visiting address only. Mail comments to EPA Headquarters as detailed at the beginning of this preamble.) The contact information for the Regional Dockets is as follows: Joan Berggren, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, Mailcode HSC, One Congress Street, Suite 1100, Boston, MA 02114-2023;

(617)918-1417. Dennis Munhall, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866;

(212)637-4343. Dawn Shellenberger (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3PM52, Philadelphia, PA 19103;

(215)814-5364. Debbie Jourdan, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street, SW., 9th floor, Atlanta, GA 30303;

(404)562-8862. Janet Pfundheller, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA, Records Center, Superfund Division SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604;

(312)353-5821. Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Mailcode 6SF-RA, Dallas, TX 75202-2733;

(214)665-7436. Michelle Quick, Region 7 (IA, KS, MO, NE), U.S. EPA, 901 North 5th Street, Kansas City, KS 66101;

(913)551-7335. Gwen Christiansen, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129;

(303)312-6463. Dawn Richmond, Region 9 (AZ, CA, HI, NV, AS, GU), U.S. EPA, 75 Hawthorne Street, San Francisco, CA 94105;

(415)972-3097. Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mail Stop ECL-115, Seattle, WA 98101;

(206)553-2782. You may also request copies from EPA Headquarters or the Regional Dockets. An informal request, rather than a formal written request under the Freedom of Information Act, should be the ordinary procedure for obtaining copies of any of these documents. Please note that due to the difficulty of reproducing oversized maps, oversized maps may be viewed in-person, however EPA dockets are not equipped to either copy and mail out such maps or scan them and send them out electronically. You may use the Docket at *http://www.regulations.gov* to access documents in the Headquarters Docket (see instructions included in the ADDRESSES section above). Please note that there are differences between the Headquarters Docket and the Regional Dockets and those differences are outlined below. C. What Documents Are Available for Public Review at the Headquarters Docket? The Headquarters Docket for this rule contains the following for the sites proposed in this rule: HRS score sheets; Documentation Records describing the information used to compute the score; information for any sites affected by particular statutory requirements or EPA listing policies; and a list of documents referenced in the Documentation Record. D. What Documents Are Available for Public Review at the Regional Dockets? The Regional Dockets for this rule contain all of the information in the Headquarters Docket, plus, the actual reference documents containing the data principally relied upon and cited by EPA in calculating or evaluating the HRS score for the sites. These reference documents are available only in the Regional Dockets. E. How Do I Submit My Comments? Comments must be submitted to EPA Headquarters as detailed at the beginning of this preamble in the ADDRESSES section. Please note that the mailing addresses differ according to method of delivery. There are two different addresses that depend on whether comments are sent by express mail or by postal mail. F. What Happens to My Comments? EPA considers all comments received during the comment period. Significant comments are typically addressed in a support document that EPA will publish concurrently with the **Federal Register** document if, and when, the site is listed on the NPL. G. What Should I Consider When Preparing My Comments? Comments that include complex or voluminous reports, or materials prepared for purposes other than HRS scoring, should point out the specific information that EPA should consider and how it affects individual HRS factor values or other listing criteria ( *Northside Sanitary Landfill* v. *Thomas* , 849 F.2d 1516 (D.C. Cir. 1988)). EPA will not address voluminous comments that are not referenced to the HRS or other listing criteria. EPA will not address comments unless they indicate which component of the HRS documentation record or what particular point in EPA's stated eligibility criteria is at issue. H. May I Submit Comments After the Public Comment Period Is Over? Generally, EPA will not respond to late comments. EPA can only guarantee that it will consider those comments postmarked by the close of the formal comment period. EPA has a policy of generally not delaying a final listing decision solely to accommodate consideration of late comments. I. May I View Public Comments Submitted by Others? During the comment period, comments are placed in the Headquarters Docket and are available to the public on an “as received” basis. A complete set of comments will be available for viewing in the Regional Dockets approximately one week after the formal comment period closes. All public comments, whether submitted electronically or in paper, will be made available for public viewing in the electronic public Docket at *http://www.regulations.gov* as EPA receives them and without change, unless the comment contains copyrighted material, Confidential Business Information (CBI), or other information whose disclosure is restricted by statute. Once in the public Dockets system, select “search,” then key in the appropriate Docket ID number. J. May I Submit Comments Regarding Sites Not Currently Proposed to the NPL? In certain instances, interested parties have written to EPA concerning sites that were not at that time proposed to the NPL. If those sites are later proposed to the NPL, parties should review their earlier concerns and, if still appropriate, resubmit those concerns for consideration during the formal comment period. Site-specific correspondence received prior to the period of formal proposal and comment will not generally be included in the Docket. III. Contents of This Proposed Rule A. Proposed Additions to the NPL In today's proposed rule, EPA is proposing to add six new sites to the NPL, all to the General Superfund Section. All of the sites in this proposed rulemaking are being proposed based on HRS scores of 28.50 or above. The sites are presented in the table below. State Site name City/county AZ Iron King Mine—Humboldt Smelter Dewey-Humboldt. CO Nelson Tunnel/Commodore Waste Rock Creede. FL Flash Cleaners Pompano Beach. NC Aberdeen Contaminated Ground Water Aberdeen. TX Attebury Grain Storage Facility Happy. TX Old Esco Manufacturing Greenville. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review 1. What Is Executive Order 12866? Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the Agency must determine whether a regulatory action is “significant” and therefore subject to Office of Management and Budget

(OMB)review and the requirements of the Executive Order. The Order defines “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 entitlements, 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. 2. Is This Proposed Rule Subject to Executive Order 12866 Review? No. The listing of sites on the NPL does not impose any obligations on any entities. The listing does not set standards or a regulatory regime and imposes no liability or costs. Any liability under CERCLA exists irrespective of whether a site is listed. It has been determined that this action is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review. B. Paperwork Reduction Act 1. What Is the Paperwork Reduction Act? According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.,* an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations, after initial display in the preamble of the final rules, are listed in 40 CFR part 9. 2. Does the Paperwork Reduction Act Apply to This Proposed Rule? This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* EPA has determined that the PRA does not apply because this rule does not contain any information collection requirements that require approval of the OMB. 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 in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act 1. What Is the Regulatory Flexibility Act? Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.,* as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. 2. How Has EPA Complied With the Regulatory Flexibility Act? This proposed rule listing sites on the NPL, if promulgated, would not impose any obligations on any group, including small entities. This proposed rule, if promulgated, also would establish no standards or requirements that any small entity must meet, and would impose no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking. Thus, this proposed rule, if promulgated, would not impose any requirements on any small entities. For the foregoing reasons, I certify that this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. D. Unfunded Mandates Reform Act 1. What Is the Unfunded Mandates Reform Act (UMRA)? 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 one year. Before EPA promulgates a rule where 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 regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. 2. Does UMRA Apply to This Proposed Rule? No, EPA has determined that this rule 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 by the private sector in any one year. This rule will not impose any Federal intergovernmental mandate because it imposes no enforceable duty upon State, tribal or local governments. Listing a site on the NPL does not itself impose any costs. Listing does not mean that EPA necessarily will undertake remedial action. Nor does listing require any action by a private party or determine liability for response costs. Costs that arise out of site responses result from site-specific decisions regarding what actions to take, not directly from the act of listing a site on the NPL. For the same reasons, EPA also has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. In addition, as discussed above, the private sector is not expected to incur costs exceeding $100 million. EPA has fulfilled the requirement for analysis under the Unfunded Mandates Reform Act. E. Executive Order 13132: Federalism What Is Executive Order 13132 and Is It Applicable to This Proposed Rule? Executive Order 13132, entitled “Federalism” (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” is 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.” Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation. This proposed rule 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. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments 1. What Is Executive Order 13175? Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (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” is 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 the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” 2. Does Executive Order 13175 Apply to This Proposed Rule? This proposed rule 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. Thus, Executive Order 13175 does not apply to this proposed rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks 1. What Is Executive Order 13045? Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (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, the Agency 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 the Agency. 2. Does Executive Order 13045 Apply to This Proposed Rule? This proposed rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this proposed rule present a disproportionate risk to children. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Usage Is this Rule Subject to Executive Order 13211? This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (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. I. National Technology Transfer and Advancement Act 1. What Is the National Technology Transfer and Advancement Act? Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. 2. Does the National Technology Transfer and Advancement Act Apply to This Proposed Rule? No. This proposed rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. List of Subjects in 40 CFR Part 300 Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193. Dated: March 10, 2008. Susan Parker Bodine, Assistant Administrator, Office of Solid Waste and Emergency Response. [FR Doc. E8-5559 Filed 3-18-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 070817467-7863-01] RIN 0648-AV90 Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Framework Adjustment 19 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS proposes regulations to approve and implement Framework Adjustment 19 (Framework 19) to the Atlantic Sea Scallop Fishery Management Plan

(FMP)which was developed by the New England Fishery Management Council (Council). Framework 19 proposes the following management measures for the scallop fishery: Limited access scallop fishery specifications for 2008 and 2009 (open area days-at-sea

(DAS)and Sea Scallop Access Area (access area) trip allocations); Elephant Trunk Access Area

(ETAA)and Delmarva Access Area (Delmarva) in-season trip adjustment procedures; new Hudson Canyon Access Area

(HCAA)measures; DAS allocation adjustments if an access area yellowtail flounder (yellowtail) total allowable catch

(TAC)is caught; adjustments to the scallop overfishing definition; a prohibition on deckloading of scallops on access area trips; adjustments to the industry-funded observer program; a 30-day vessel monitoring system

(VMS)power down provision; general category access area specifications for 2008 and 2009; and general category measures dependent on the implementation of Amendment 11 to the FMP as proposed by the Council, including a quarterly TAC, 2008 and 2009 general category quota allocations, and individual fishing quota

(IFQ)permit cost recovery program requirements. NMFS will disapprove the Council's recommendation to eliminate the September 1 through October 31, ETAA seasonal closure, which was implemented under Framework 18 to the FMP to reduce sea turtle interactions with the scallop fishery. NMFS has determined that the Council's recommendation is not consistent with National Standard 2 of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). DATES: Comments must be received by 5 p.m., local time, on April 8, 2008. ADDRESSES: An environmental assessment

(EA)was prepared for Framework 19 that describes the proposed action and other considered alternatives and provides a thorough analysis of the impacts of the proposed measures and alternatives. Copies of Framework 19, the EA, and the Initial Regulatory Flexibility Analysis (IRFA), are available upon request from Paul J. Howard, Executive Director, New England Fishery Management Council (Council), 50 Water Street, Newburyport, MA 01950. You may submit comments, identified by 0648-AV90, by any one of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal *http://www.regulations.gov* . • Fax:

(978)281-9135, Attn: Ryan Silva. • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Scallop Framework 19 Proposed Rule.” Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. Written comments regarding the burden-hour estimate or other aspects of the collection-of-information requirement contained in this proposed rule should be submitted to the Regional Administrator at the address above and by e-mail to *David_Rostker@omb.eop.gov* , or fax to 202-395-7285. FOR FURTHER INFORMATION CONTACT: Ryan Silva, Cooperative Research Program Specialist, 978-281-9326; fax 978-281-9135. SUPPLEMENTARY INFORMATION: Background The Council adopted Framework 19 on October 25, 2007, and submitted it to NMFS on November 8, 2007, for review and approval. Framework 19 was developed and adopted by the Council in order to meet the FMP's requirement to adjust biennially the management measures for the scallop fishery. The FMP requires biennial adjustments to ensure that the measures meet the fishing mortality rate

(F)and other goals of the FMP and achieve optimum yield

(OY)from the scallop resource on a continuing basis. This rule proposes measures as adopted by the Council and described in detail here. The Council has reviewed the Framework 19 proposed rule regulations as drafted by NOAA Fisheries Service, which included regulations proposed by NOAA Fisheries Service under the authority of section 305(d) of the Magnuson-Stevens Act, and deemed them to be necessary and consistent with section 303(c) of the Magnuson-Stevens Act. The Council recommended in Framework 19 to eliminate the September 1 through October 31 ETAA seasonal closure, which was implemented under Framework 18 to the FMP to reduce sea turtle interactions with the scallop fishery. NMFS has deemed this measure as inconsistent with National Standard 2 of the Magnuson-Stevens Act. NMFS has determined that the Council's recommendation to eliminate the ETAA seasonal closure may not be justified given the information and analysis provided in the Framework 19 document and analysis, and therefore is not consistent with National Standard 2 of the Magnuson-Stevens Act. National Standard 2 specifies that conservation and management measures shall be based upon the best scientific information available. Although the Council considered scientific information, the information is not sufficient to justify removal of the seasonal closure adopted under Framework 18. Open Area DAS Allocations To achieve optimum yield at the target F=0.20 for the scallop resource, limited access open area DAS allocations are required to be adjusted every 2 years. Since the calculation of overall F also includes the mortality in controlled access areas, the calculation of the open area DAS allocations depends on the access area measures, including the rotation schedule, management measures, and access area trip allocations. Framework 19 would implement the following vessel-specific DAS allocations: Full-time vessels would be allocated 35 DAS in 2008 and 42 DAS in 2009; part-time vessels would be allocated 14 DAS in 2008 and 17 DAS in 2009; and occasional vessels would receive 3 DAS in 2008 and 3 DAS in 2009. Because Framework 19 will not be implemented by the start of the fishing year on March 1, 2008, and interim regulations that will be in effect at the start of the 2008 fishing year are inconsistent with proposed Framework 19 specifications, it is possible that scallop vessels may exceed their DAS allocations during the interim period between March 1, 2008, and the implementation of Framework 19. Therefore, any limited access open area DAS used in 2008 by a vessel that is above the final 2008 allocation for that vessel would be deducted from the vessel's 2009 DAS allocation. Limited Access Trip Allocations, and Possession Limits for Scallop Access Areas In the 2008 fishing year, full-time scallop vessels would be allocated one trip in the Nantucket Lightship Access Area (NLCA), and four trips in the ETAA. A part-time scallop vessel would be allocated two trips, which could be taken as follows: One trip in the ETAA and one trip in the NLCA, or two trips in the ETAA. An occasional vessel would be allocated one trip which could be taken in either the NLCA or the ETAA. The 2008 limited access scallop possession limit for access area trips would be 18,000 lb (8,165 kg) for full-time and part-time vessels, and 7,500 lb (3,402 kg) for occasional vessels. In the 2009 fishing year, full-time scallop vessels would be allocated one trip in the Closed Area II Access Area (CAII), up to three trips in the ETAA, and up to 1 trip in Delmarva. A part-time scallop vessel would be allocated two trips, and could distribute these trips between the following access areas as follows: Up to two trips in the ETAA, up to one trip in CAII, and up to one trip in Delmarva (unless ETAA and/or Delmarva trips are reduced due to updated exploitable scallop biomass estimates). An occasional vessel would be allocated one trip, which could be taken in CAII, the ETAA, or Delmarva (unless ETAA and/or Delmarva trips are reduced due to updated exploitable scallop biomass estimates). The 2009 limited access scallop possession limit for access area trips would be 18,000 lb (8,165 kg) for full-time and part-time vessels, and 7,500 lb (3,402 kg) for occasional vessels. Although the Framework 19 document submitted to NMFS did not specify 2009 Delmarva trip options for part-time and occasional vessels, NMFS has interpreted this as an oversight, and has included Delmarva trip options for part-time and occasional vessels in 2009. ETAA and Delmarva trip allocations and possession limits in 2009 are subject to change per the proposed ETAA and Delmarva trip reduction procedures described below. Because Framework 19 will not be implemented by March 1, 2008, and interim regulations that will be in effect at the start of the 2008 fishing year are inconsistent with proposed Framework 19 specifications, it is possible that scallop vessels may fish in an access area that would otherwise be closed under Framework 19 during the interim period between March 1, 2008, and the implementation of Framework 19. Therefore, if a limited access vessel takes a 2008 Closed Area I Access Area

(CAI)trip, one ETAA trip would be deducted from the vessel's 2009 allocation. Although the Council did not specify this measure in Framework 19, based on other Framework 19 measures adopted by the Council and the overall objectives of the FMP, NMFS proposed this measure under the authority of section 305(d) of the Magnuson-Stevens Act. Regulatory Procedure to Reduce 2009 ETAA and/or Delmarva Allocations ETAA and Delmarva specifications are based on 2007 scallop resource survey information, which was the best scientific information available when the Council established the proposed ETAA and Delmarva allocations for Framework 19. If 2008 ETAA and/or Delmarva survey data indicate that there is less estimated exploitable biomass of scallops in the ETAA and/or Delmarva for the 2009 fishing year, the Regional Administrator may reduce ETAA and/or Delmarva allocations to prevent overfishing. If a reduction in the ETAA is necessary, as dictated by pre-determined thresholds detailed in Table 1, the Regional Administrator would publish a final rule consistent with the Administrative Procedure Act

(APA)on or about December 1, 2008. If the ETAA exploitable biomass estimate is between 20,000 and 29,999 mt, part-time vessels would be authorized to take one trip in the ETAA at a reduced possession limit of 3,600 lb (1,633 kg), and one trip in the NLCA at the normal possession limit of 18,000 lb (8,165 kg). The reduced possession limit for part time vessels under this scenario results from the FMP structure, which allocates to part-time vessels 40 percent of what is allocated to a full-time vessel. If updated exploitable biomass information is not available so that a final rule pursuant to the APA cannot be published on or about December 1, 2008, no reductions would be made. Table 1—2009 ETAA Trip Reduction Table Exploitable biomass estimate

(mt)Adjusted trips (full-time, part-time, occasional) Adjusted trips (general category) Adjusted 2009 research set-aside TAC

(mt)Adjusted 2009 observer set-aside TAC

(mt)30,000 or greater No adjustment No adjustment No adjustment No adjustment 20,000-29,999 2, 1*, 0 1473 0.24 0.12 10,000-19,000 1, 0, 0 982 0.16 0.08 Less than 10,000 0, 0, 0 491 0.08 0.04 *Part-time vessels may take one trip in the ETAA at a reduced possession limit of 3,600 lb (1,633 kg) and one trip in CAII or Delmarva (unless Delmarva trips are reduced); or one trip in CAII and one trip in Delmarva (unless Delmarva trips area reduced). In addition, if an updated estimate of overall F exceeds 0.29 in 2008, then ETAA allocations would be reduced consistent with the reductions specified in Table 1 under exploitable biomass estimates of 20,000-29,000 mt. If both the biomass and F thresholds were exceeded, the allocation level would be established using the biomass adjustment schedule.Under the same procedures and dates, if the Delmarva biomass for the 2009 fishing year is estimated to be below 10,000 mt, then the area would remain closed to scallop fishing for the 2009 fishing year, and no trips or set-aside would be authorized there. New Hudson Canyon Rotational Management Area Due to the high concentration of small scallops in the HCAA, Framework 19, consistent with the FMP's area rotation program strategy to protect young scallop concentrations, would establish the HCAA as a rotational management area, and close the HCAA to all scallop fishing, including general category vessels, for at least the 2008 and 2009 fishing years. The expected increase in exploitable biomass in the absence of F is expected to exceed 30 percent per year. The area could be considered again as an access area and re-open to fishing when the annual increase in exploitable biomass in the absence of fishing mortality is less than 15 percent per year. Open Area DAS Adjustment if a Scallop Access Area Yellowtail TAC Allocated to the Scallop Fishery is Caught Under the Northeast Multispecies Fishery Management Plan, 10 percent of the Southern New England

(SNE)and Georges Bank

(GB)yellowtail TACs are allocated to scallop vessels fishing in the NLCA, CAI, and CAII. If the SNE and/or GB yellowtail TAC is caught, the respective access area(s) are closed to further scallop fishing for the remainder of the fishing year. If a vessel has unutilized trip(s) in an access area closed by a scallop fishery yellowtail TAC, Framework 19 would allocate additional open area DAS in a manner that maintains the F objectives of the FMP. This trip/DAS conversion would apply only to full-time vessels, and to occasional or part-time vessels that have no other available access areas in which to take their access area trip(s). Unused access area trip(s) would be converted to open area DAS so that scallop fishing mortality that would have resulted from the access area trip(s) would be equivalent to the scallop fishing mortality resulting from the open area DAS allocation. Consequently, if the NLCA or CAII is closed in 2008 or 2009, respectively, each vessel with unutilized trip(s) would be allocated a specific amount of additional open area DAS according to permit category. Full-time vessels would be allocated 7.7 DAS per unutilized trip in the NLCA and 7.9 DAS per unutilized trip in CAII. Part-time vessels would receive the same DAS conversion as full-time vessels, as long as there was no other access area available for the vessel to take a trip(s) in. If an occasional vessel has no available access area in which to take its trip, it would be allocated converted DAS according to the most recent closure: 3.2 DAS if it was the NLCA, 3.3 DAS if it was CAII. Although the Council did not specify this measure regarding occasional vessels in Framework 19, based on other Framework 19 measures adopted by the Council and the overall objectives of the FMP, NMFS proposed this measure under the authority of section 305(d) of the Magnuson-Stevens Act. If a vessel has unused broken trip compensation trip(s) when an access area closes due to reaching a yellowtail TAC, it would be issued additional DAS in proportion to the un-harvested possession limit. For example, if a full-time vessel had an unused 9,000 lb (4,082 kg) NLCA compensation trip (half of the full possession limit) at the time of a NLCA yellowtail TAC closure, the vessel would be allocated 3.85 DAS (half of the 7.7 DAS that would be allocated for a full NLCA trip). Research Set-Aside

(RSA)Allocations Two percent of each scallop access area quota and 2 percent of the DAS allocation is set aside as part of the Scallop RSA Program to fund scallop research and compensates participating vessels through the sale of scallops harvested under the research set-aside quota. The 2008 research set-aside access area allocations would be: NLCA—110,000 lb (50 mt); ETAA—440,000 lb (200 mt). The 2009 research set-aside access area allocations would be: CAII—116,000 lb (53 mt); ETAA—324,000 lb (147 mt); Delmarva—120,000 lb (54 mt). If 2008 ETAA and/or Delmarva survey data indicate that there is less estimated exploitable biomass of scallops in the ETAA and/or Delmarva, the 2009 RSA allocations in these areas would be reduced as specified in Table 1. The 2008 and 2009 research set-aside DAS allocations would be 235 and 282, respectively. Observer Set-Aside Allocations One percent of each scallop access area quota and 1 percent of the DAS allocation is set aside as part of the industry funded observer program to help defray the cost of carrying an observer. Scallop vessels on an observed DAS trip are charged a reduced DAS rate, currently 0.85 per DAS; scallop vessels on an observed access area trip are authorized to have an increased possession limit, currently 400 lb of shucked scallops per DAS. The 2008 access area observer set-aside allocations would be: NLCA— 55,000 lb (25 mt); ETAA—222,000 lb (111mt). The 2009 access area observer set-aside allocations would be: CAII—58,000 lb (26 mt); ETAA—162,000 lb (73 mt); Delmarva—60,000 lb (27 mt). If 2008 ETAA and/or Delmarva survey data indicate that there is less estimated exploitable biomass of scallops in the ETAA and/or Delmarva, the 2009 RSA allocations in these areas would be reduced as specified in Table 1. The 2008 and 2009 DAS observer set-aside allocations would be 118 and 141, respectively. Adjustment of the Scallop Overfishing Definition The Council recommended a new overfishing definition based on results from the recent scallop stock assessment (SAW 45), which used a new model to characterize the scallop resource, including a new biomass target and threshold, and a new F threshold. Because the Council recommended the new reference points and a modified overfishing definition to reflect the new parameters, the Council also considered whether the current target of F=0.20 should be adjusted upward consistent with the F threshold adjustment. The overfishing threshold of F=0.29 is based on an assumption that F is spatially uniform. However, uniform F does not occur in the scallop fishery due to unfished biomass in closed areas and highly variable F's in open and access areas. In the case of highly non-uniform fishing effort, the F that maximizes yield per recruit will be less than the spatially uniform target (F=0.29). The Council was concerned that setting the F target at the typical 80 percent of the threshold (F=0.23) would result in localized overfishing in open areas. Therefore, the Council recommended keeping the target at F=0.20 in recognition that F is not uniformly distributed in the scallop fishery, and the resource is prone to localized overfishing, particularly in open areas. An F target of 0.20 would help maintain a stable fishery rather than maximize individual catch on an annual basis, compared to higher F targets. In addition, based on the results of SAW 45, the Council recommended establishing scallop biomass reference points using absolute scallop meat biomass estimates instead of scallop resource survey indices, as in the past. Based on these recommendations, the scallop overfishing definition would be as follows: If stock biomass is equal to or greater than Bmax, as measured by an absolute value of scallop meat

(mt)(currently estimated at 108,600 mt for scallops in the GB and Mid-Atlantic resource areas), overfishing occurs when F exceeds Fmax, currently estimated as 0.29. If the total stock biomass is below Bmax, overfishing occurs when F exceeds the level that has a 50-percent probability to rebuild stock biomass to Bmax in 10 years. The scallop stock is in an overfished condition when stock biomass is below 1/2 Bmax and, in that case, overfishing occurs when F is above a level expected to rebuild the stock in 5 years, or when F is greater than zero when the stock is below 1/4 Bmax. The following table details the biomass and F reference points proposed by Framework 19. Table 2. Proposed Biomass and F Reference Points Target Threshold Biomass 108,600 mt 54,300 mt Fishing mortality

(F)0.29 0.20 Prohibition on deckloading To minimize scallop discard mortality, no scallop vessel that is declared into the Area Access Program as specified in § 648.60 could possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries of a Sea Scallop Access Area. Adjustments to the Industry-funded Observer Program There are several proposed measures to improve the industry-funded observer program. 1. Proposed Measures Pertaining to Observer Service Providers Providers must respond to a fisherman's request for an observer, within 18 hr of the fisherman's call, to let him/her know if an observer is available. Providers must provide the NMFS Northeast Fishery Observer Program (NMFS/NEFOP) with an updated list of contact information for all observers that includes the observer identification number, observer's name, mailing address, email address, phone numbers, homeports or fisheries/trip types assigned, and must include whether or not the observer is “in service,” indicating when the observer has requested for leave and/or is not currently working for the industry-funded program. Providers must submit to NMFS/NEFOP, if requested, a copy of each type of signed and valid contract (including all attachments, appendices, addendums, and exhibits incorporated into the contract) between the observer provider and those entities requiring observer services; Providers must submit to NMFS/NEFOP, if requested, a copy of each type of signed and valid contract (including all attachments, appendices, addendums, and exhibits incorporated into the contract) between the observer provider and specific observers. Providers must submit to NMFS/NEFOP, if requested, copies of any information developed and used by the observer providers distributed to vessels, such as informational pamphlets, payment notification, description of observer duties, etc. Providers are required to charge vessel owners in a way that is consistent with the compensation received by the observed vessel. NMFS authorizes vessel compensation from the industry-funded observer set-aside using VMS transmission data. For the purpose of compensating scallop vessels carrying an observer, NMFS would calculate the duration of the trip as the period from the first VMS polling position outside of the demarcation line at the beginning of the trip to the first VMS polling position inside of the demarcation line at the end of the trip. For example, if the first VMS polling position outside of the demarcation line of a vessel with an observer on an access area trip was 9:00 pm on the 1st, and the first VMS polling position inside of the demarcation line at the end of the trip was at 1:00 am on the 3rd, the duration of the trip equals 27 hr or 2 “days” (24 hr + 3 hr) for the purposes of observer set-aside compensation. Therefore, the provider would charge for 2 days of observer coverage. For observed open area DAS trips, “day” would be defined as a 24-hour period and portions of days would be pro-rated at an hourly charge. For example, for the trip described above, the provider would charge 1 day and 3 hr. Providers would no longer be required to maintain at least eight certified observers. Providers must provide NMF/NEFOP with observer contract data within 24 hr of landing, and raw data within 72 hr of landing. 2. Proposed Measures Pertaining to Scallop Fishermen NMFS/NEFOP may take up to 72 hr to respond to a pre-sailing notice and, if selected to carry an observer, the observer provider may take up to 48 hr to respond to an observer deployment request. Currently, NMFS/NEFOP may take up to 24 hr to respond to a pre-sailing notice, and the observer service provider may take up to 72 hr to respond to an observer deployment request. Limited access trip notification calls can not be made more than 10 days in advance of a trip, and not more than 10 trips may be called in at a time. General Category vessels making an access area trip(s) must call in with the same notice described above, but make weekly calls rather than daily calls. For example, a general category vessel could call in on Tuesday for all the trips it plans to take from the following Sunday through Saturday. The vessel would either get a waiver for that week, or be selected for observer coverage. If selected, a vessel could be required to carry an observer on up to two trips made that week. Vessel owners, operators, or managers are required to notify NMFS/NEFOP of any trip plan changes at least 48 hr prior to vessel departure. Confirmation numbers for trip notification calls are valid for 48 hr from the intended sail date. A vessel is prohibited from fishing in an access area without an observer waiver confirmation number specific to that trip and that was issued for the trip plan that was called in to NMFS. 3. Proposed Observer Program Observer Training Adjustments NMFS/NEFOP observer training sessions would no longer have a minimum class size of eight. An observer's first three deployments and the resulting data would be immediately edited and approved after each trip by NMFS/NEFOP, prior to any further deployments by that observer. If data quality is considered acceptable, the observer would be certified. If the data is not acceptable, the observer will not be certified. An observer provider would not deploy any observer on the same vessel for more than two consecutive multi-day trips and not more than twice in any given month for multi-day deployments. Providers would be required to provide at least 7 days advance notice to NMFS/NEFOP when requesting an observer training class. Prior to the end of an observer training course, the observer would be required to complete a cardiopulmonary resuscitation/first aid course. 4. DAS and TAC Compensation Rates The Council has recommended the DAS and TAC compensation rates be adjusted to more accurately reflect the costs associated with observed trips. NMFS will consider information included in Framework 19 and any other relevant fishery information and will notify scallop permit holders through a permit holder letter if an adjustment is made. 30-day VMS Power Down Provision for Scallop Vessels The proposed action would allow all scallop vessels to power down their VMS unit for a minimum of 30 days provided the vessel does not engage in any fisheries until the unit is turned back on. Such vessels would be required to obtain a letter of exemption from the Regional Administrator. This provision would provide more flexibility and would reduce operating costs for some scallop vessel owners that do not engage in fisheries for extended periods of time. General Category Access Area Harvest Specifications for 2008 and 2009 In 2008, the general category fishery would be allocated 5 percent of the overall NLCA and ETAA TACs, resulting in up to 667 trips in the NLCA, and up to 2,668 trips in the ETAA, respectively. If 2008 scallop resource surveys indicate a reduced exploitable scallop biomass, or overall 2008 scallop F exceeds 0.29, general category ETAA trip allocations would be subject to trip reduction procedures as specified under Table 1—2009 ETAA Trip Reduction Table. In 2009, the general category scallop fishery would be allocated 5 percent of the overall ETAA and Delmarva TACs, resulting in up to 1,964 trips and 728 trips, respectively. If updated 2008 scallop resource surveys indicate the exploitable biomass in Delmarva is less than 10,000 mt, Delmarva would be closed for the 2009 fishing year, and no general category trips would be allocated. General category vessels would not be allocated any trips in CAII because of concerns that negligible fishing effort by general category vessels would occur there. Because general category vessels would receive overall TAC, the zero allocation in CAII would be offset by a higher percentage of overall catch in open areas. Because Framework 19 will not be implemented by the start of the 2008 fishing year on March 1, 2008, and current regulations that will roll over into the 2008 fishing year are inconsistent with proposed Framework 19 specifications, it is possible that scallop vessels may exceed their allocation or fish in an area that would otherwise be closed under Framework 19. Therefore, if general category vessels take 2008 CAI trips, a like number of ETAA trips as specified under default regulations would be deducted from the general category fleet in 2009. Although the Council did not address this scenario in their Framework 19 document, and therefore did not recommend this adjustment procedure, NMFS is proposing this measure to remain consistent with the intent of the FMP. Although the Council did not specify this measure in Framework 19, based on other Framework 19 measures adopted by the Council and the overall objectives of the FMP, NMFS proposed this measure under the authority of section 305(d) of the Magnuson-Stevens Act. General Category Measures Dependent on Amendment 11 to the FMP (Amendment 11) Several measures in Framework 19 are dependent on the implementation of Amendment 11 as proposed (72 FR 71315, December 17, 2007). The primary intent of Amendment 11 is to reduce fishing capacity in the general category fishery by establishing a limited entry program that would include three permit categories; IFQ, Northern Gulf of Maine Management Area (NGOM), and incidental. Framework 19 proposed regulations have been drafted under the assumption that Amendment 11 will be implemented as proposed. The following measures in Framework 19 are contingent on the implementation of Amendment 11 as currently proposed: Allocation of 10 percent of the overall scallop TAC in 2008 (and 2009 if the IFQ program is not implemented by March 1, 2009), and 5 percent in 2009 and beyond; a quarterly hard TAC for the directed general category scallop fishery for the 2008 scallop fishing year; a separate 0.5-percent TAC allocation of the overall scallop TAC in 2009 and beyond for full-time, part-time, or occasional vessels that qualify for an IFQ permit; cost recovery payment procedures for IFQ permit holders that land IFQ scallops; 2008 and 2009 NGOM TACs; and incidental catch target TACs for 2008 and 2009. The legal basis and rationale for these measures are described in the proposed rule for Amendment 11 and are not repeated here. The following provides details on the specific allocations and other specifications for the Amendment 11 measures. 1. Quarterly TAC Framework 19 would allocate approximately 10 percent of the overall 2008 scallop TAC to the general category fishery. The quarterly TAC would be effective during the transitional period as the IFQ program is implemented, which is scheduled for the start of the 2009 fishing year. Framework 19 would allocate 35 percent (1,523,375 lb (690.99 mt)) of the 2008 directed general category annual TAC to Quarter 1, 40 percent (1,741,000 lb, (789.70 mt)) to Quarter 2, 15 percent (652,875 lb, (296.14 mt)) to Quarter 3, and 10 percent (435,250 lb (197.43 mt)) to Quarter 4. If any portion of the Quarter 1 TAC is not caught, the remainder would be rolled over into Quarter 3; if any portion of the Quarter 2 TAC is not caught, it would be rolled over into Quarter 4. Open area, access area, and NGOM scallop landings by directed general category trips would count against the quarterly TACs. Consequently, if a quarterly TAC is caught, all directed general category scallop fishing would cease for the remainder of the quarter; including access area, and open areas, but excluding the NGOM. If the Quarter 1 TAC (March 1-May 31) is exceeded, those pounds would be removed from Quarters 3 and/or 4. 2. IFQ Allocation Amendment 11 proposes to establish a separate IFQ allocation for full-time, part-time, or occasional scallop vessels that qualify for an IFQ permit. Starting with the first year of the IFQ program in 2009, the pool of IFQ vessels that do not qualify for a full-time, part-time, or occasional scallop permit would be allocated 5 percent of the overall scallop TAC; and the pool of full-time, part-time, or occasional vessels that qualify for an IFQ permit would be allocated 0.5 percent of the overall scallop TAC. General category vessels that qualify for an IFQ permit in 2009 would be allocated 5 percent of the overall scallop TAC as follows: 1,182,500 lb (536.37 mt) from open areas, 785,700 lb (356.79 mt) from ETAA, and 291,000 lb (13.20 mt) from Delmarva. Full-time, part-time, and occasional scallop vessels that qualify for an IFQ permit in 2009 would be allocated 225,950 lb (112.96 mt) from open areas. In the event that implementation of the IFQ program is delayed beyond the start of the 2009 fishing year (March 1, 2009), the IFQ scallop fishery would be allocated 10 percent of the overall scallop TAC and be divided among quarters as described in the preceding section. 3. Cost Recovery NMFS is required by the Magnuson-Stevens Act to recover the costs directly related to the management, data collection and analysis, and enforcement of IFQ programs such as the one proposed by Amendment 11. Under section 304(d)(2)(A) of the Magnuson-Stevens Act, the Secretary of Commerce is authorized to collect a fee, not to exceed 3 percent of the ex-vessel value of fish harvested, to recover these costs. Therefore, a scallop IFQ vessel would incur a cost recovery fee liability for every landing of scallops. The IFQ permit holder that landed the IFQ scallops would be responsible for submitting this payment to NMFS once per year. The ex-vessel value of scallops used to calculate the cost-recovery fees due for a fishing year would be based on an average of the ex-vessel value of all general category scallops landed between March 1 and September 30 of the initial year of the IFQ program, and October 1 through September 30 of each year thereafter. The Amendment 11 proposed rule proposed to require IFQ permit owners that transferred IFQ scallops (transferor) to another IFQ vessel (transferee) as part of the IFQ scallop transfer program to submit a cost recovery fee for scallops landed by the transferee. However, upon further evaluation, Framework 19 would adjust this requirement; the transferee, and not the transferor, would be required to submit the cost recovery fee. The administrative burden would be the same, if not greater, if the IFQ transferor, and not the transferee, were required to submit the cost recovery fee. This adjustment would also reduce the cost recovery administrative burden of NMFS. Payment of the cost recovery fee would be a permit condition that must be met before permits could be renewed. On or about October 30 of each year, NMFS would mail a cost recovery bill for the IFQ fee incurred by each IFQ vessel to each IFQ permit holder. Owners of IFQ vessels would be required to submit payment by January 1 of each year. An IFQ scallop vessel's permit would not be renewed (i.e., not issued) by NMFS until payment for the prior year's fees is received in full. Bills would also be made available electronically via the internet. Fee liabilities due January 1 would be for the previous cost recovery period (October 1 —September 30 of the year preceding the January 1 due date). For example, for scallops landed October 1, 2009 — September 30, 2010, NMFS would issue a cost recovery bill on or about October 30, 2010, and the IFQ permit holder would be required to submit the cost recovery fee by January 1, 2011. If an IFQ permit holder does not pay, or pays less than the full amount due, the vessel's IFQ permit would not be renewed. Disputes regarding fee liabilities would be resolved through an administrative appeal procedure. If an IFQ permit holder makes a timely payment to NMFS of an amount less than the fee liability NMFS has determined, the IFQ permit holder would have the burden of demonstrating that the fee amount submitted is correct and that the fee calculated by NMFS is incorrect. If, upon preliminary review of the accuracy and completeness of a fee payment, NMFS determines the IFQ permit holder has not paid the amount due in full, NMFS would notify the IFQ permit holder by letter. NMFS would explain the discrepancy and the IFQ permit holder would have 30 days to either pay the amount that NMFS has determined should be paid, or provide evidence that the amount paid was correct. The IFQ permit for the vessel would not be renewed until the payment discrepancy is resolved. If the IFQ permit holder submits evidence in support of his/her payment, NMFS would evaluate it and, if there is any remaining disagreement as to the appropriate IFQ fee, prepare a Final Administrative Determination (FAD). The FAD would set out the facts, discuss those facts within the context of the relevant agency policies and regulations, and make a determination as to the appropriate disposition of the matter. A FAD would be the final agency action. If the FAD determines that the IFQ permit holder is out of compliance, the IFQ scallop permit in question would not be renewed until the conditions established by the FAD are met. If the FAD determines that the IFQ permit holder owes additional fees, and if the IFQ permit holder has not paid such fees, all IFQ permit(s) held by the IFQ permit holder would not be renewed until the required payment is received by NMFS. If NMFS does not receive such payment within 30 days of the issuance of the final agency action, NMFS would refer the matter to the appropriate authorities within the U.S. Treasury for purposes of collection, and the vessel's IFQ permit(s) would remain invalid. If NMFS does not receive such payment prior to the end of the fishing year, the IFQ permit would be considered voluntarily abandoned. Cost recovery payments would be made electronically via the Federal web portal, www.pay.gov, or other internet sites as designated by the Regional Administrator. Instructions for electronic payment would be made available on both the payment website and the paper bill. Payment options may include payment via a credit card (the Regional Administrator would specify in the cost recovery bill acceptable credit cards) or direct ACH (automated clearing house) withdrawal from a designated checking account. Payment by check could be authorized by the Regional Administrator if the Regional Administrator has determined that electronic payment is not possible (for example, if the geographical area or an individual(s) is affected by catastrophic conditions). NMFS would create an annual IFQ report and provide it to the owner of the IFQ permit. The report would include quarterly and annual information regarding the amount and value of IFQ scallops landed during the fishing year, the associated cost recovery fees, and the status of those fees. This report would also detail the costs incurred by NMFS, including the calculation of the recoverable costs for the management, enforcement, and data collection, incurred by NMFS during the fishing year. 4. NGOM TACS Framework 19 proposes a 70,000-lb (31,751-kg) annual NGOM TAC for the 2008 and 2009 fishing years. 5. Scallop Incidental Catch Target TAC Framework 19 proposes a 50,000-lb (22,680-kg) scallop incidental catch target TAC for the 2008 and 2009 fishing years to account for mortality from this component of the fishery and to ensure that F targets are not exceeded. Status of Framework 19 if Amendment 11 is Not Implemented as Proposed Several measures in Framework 19 are dependent on the implementation of Amendment 11 as proposed. If Amendment 11 is not implemented, the general category scallop fishery would remain an open access fishery; any individual could obtain a permit for a vessel. Vessels would be limited to the 400-lb (181-kg) possession limit if they have a 1B permit; vessels with a 1A permit would be restricted to a 40 (18-kg) pound possession limit. Limited access vessels would be permitted to fish under general category rules when not on a DAS. General category vessels would be permitted to fish in access areas up to a maximum number of trips assigned through biennial frameworks such as Framework 19. The total level of catch from this component of the fishery would not be restricted. Classification At this time, NMFS has not determined that this proposed rule is consistent with the national standards of the Magnuson-Stevens Act and other applicable law. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). Public reporting burden for these collections of information are estimated to average as follows: 1. Service provider observer contact information reports—5 min per response; 2. Service provider observer availability reports—1 min per response; 3. Copies of service provider outreach materials—30 min per response; 4. Copies of service provider contracts—30 min per response. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to the Regional Administrator as specified in ADDRESSES above, and by e-mail to *David_Rostker@omb.eop.gov* or fax to

(202)395-7285. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA), and consists of the discussion and analyses in the preamble to this action and the analyses of this action and its impacts in Framework 19. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section of the preamble and in the SUMMARY . A complete description of the economic impacts of the Framework 19 measures and alternatives is provided in Section 5.4 of the EA for Framework 19, and the details are not provided in this summary. Description and Estimate of Number of Small Entities to Which the Rule Would Apply The vessels in the Atlantic sea scallop fishery are all considered small business entities and, therefore, there is no disproportionate impact on large and small entities. All of the vessels grossed less than $3.5 million according to dealer data for the 2004 to 2006 scallop fishing years. Annual total revenue averaged over $1 million in the 2005 fishing year, and about $881,990 in the 2006 fishing year, per limited access vessel. Total revenues per vessel, including revenues from species other than scallops, exceeded these amounts, but were less than $3 million per vessel. Average scallop revenue per general category vessel was $88,702 in 2005 and $66,785 in the 2006 fishing years. Average total revenue per general category vessel, including revenue from species other than scallops, exceeded $250,000 in the 2005 and 2006 fishing years. Average revenues per vessel were lower in the 2006 fishing year for all permit categories because of lower scallop prices. The proposed regulations would affect all Federal scallop vessels. The Amendment 11 and Framework 19 documents provide extensive information on the number, port, state, and size of vessels and small businesses that would be affected by the proposed regulations. In 2007, there were 346 full-time, 33 part-time, and 1 occasional limited access scallop permits issued, and 2,332 general category permits issued to vessels in the open access general category fishery: 915 category 1B permits, and 1,417 category 1A incidental catch permits. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements This action contains several new collection-of-information, reporting, and recordkeeping requirements. The following describes these requirements. 1. Observer Contact List Observer service providers would be required to provide and maintain an updated list of contact information for all observers. This would facilitate the ability of NMFS/NEFOP to contact observers. Maintaining an up-to-date observer contact list is estimated to entail 5 min per response, 12 responses per year, for a total of 1 burden hour annually. These updates do not have any associated miscellaneous costs. 2. Observer Availability List Service providers would be required to provide and maintain a listing of whether or not the observer is “in service,” indicating when the observer has requested leave and/or is not currently working for the industry-funded program. This would facilitate the ability of NMFS/NEFOP to confirm observer availability. Maintaining an up-to-date observer availability list is estimated to entail 1 min per response, 300 responses per year, for a total of 5 burden hr annually. These updates do not have any associated miscellaneous costs. 3. Copies of Observer Service Provider Materials Service providers would be required to submit to NMFS/NEFOP, if requested, copies of any materials developed and distributed to vessels, such as informational pamphlets, payment notification, description of observer duties, etc. This would allow NMFS/NEFOP to ensure that information distributed to industry is accurate and in keeping with the objectives of the observer program. It is estimated that NMFS/NEFOP would request copies of service provider outreach materials once a year. It is estimated it would take 30 min to submit this information, for a total burden of 1 hour. It is estimated the service providers would incur a total of $5 in mailing fees to submit these materials. 4. Copies of Observer Service Provider Contracts Service providers would be required to submit to NMFS/NEFOP, if requested, a copy of each type of signed and valid contract (including all attachments, appendices, addendums, and exhibits incorporated into the contract) between the observer provider and those entities requiring observer services. This would allow NMFS/NEFOP to ensure contractual information is accurate and in keeping with the objectives of the observer program and help resolve disagreements between industry and the service provider. It is estimated that NMFS/NEFOP would request copies of service provider contracts once a year. It is estimated it would take 30 min to submit this information, for a total burden of 1 hour. It is estimated the service providers would incur a total of $5 in mailing fees to submit these materials. Summary of the Aggregate Economic Impacts In the event that Framework 19 is not approved and implemented by the start of the 2008 scallop fishing year (March 1, 2008), measures and allocations that are specified in the present regulations (Part 648 Subpart D) would roll over into the 2008 fishing year and beyond, unless superseded by subsequent specifications. The long-term overall economic effects of the proposed measures are estimated to be slightly positive on revenues; an average of about a 0.5-percent increase per year during 2008-2021. Average overall annual scallop revenue for a limited access vessel is estimated to increase by 1.3 percent in the 2008 fishing year and by 6.2 percent in the 2009 fishing year compared to no action. Because fishing costs are estimated to decline due to fewer DAS used in the access areas and the open areas, the impacts on the net revenue and vessel profits would be positive, with a 2.1-percent increase in fishing year 2008 and a 6-percent increase in fishing year 2009 (Section 5.4.2.2). The economic impacts of the proposed alternative for the general category fleet would be positive because the general category TAC would be higher under the preferred alternative compared to the no action alternative. As a result, average scallop revenues and profits for general category vessels are expected to be higher for the preferred alternative compared to no action. However, the level of general category TAC would be lower than general category scallop landings in recent years, resulting in negative short-term economic impacts. These short-term impacts are due to measures proposed in Amendment 11 that would establish a limited entry program for the general category fishery, thereby reducing general category fishing effort and landings. Since Framework 19 does not propose any changes to measures proposed by Amendment 11, the impacts to the general category limited entry program are not analyzed here. Section 7.9 of the Environmental Impact Statement for Amendment 11 provides a comprehensive analysis of the economic impacts of the general category limited entry program on small business entities. These analyses indicate that, despite the negative impacts in the short-term, the medium to long-term economic impacts of the limited entry program are expected to be positive for the scallop fishery as a whole. The overall economic impacts of general category measures proposed by Framework 19 are not expected to be significantly different from the impacts analyzed in Amendment 11. Amendment 11 analyzed the economic impacts by assuming that the general category TAC would be 5 million lb (2,2668 mt) in 2008 and 2.5 million lb (1,134 mt) in 2009. The preferred option in Framework 19 would result in a lower TAC: About 4.3 million lb (1,950 mt) TAC in 2008 and 2.2 million lb (998 mt) TAC in 2009. Although these amounts exceed potential TAC levels under the no action alternative, they are slightly less than the landings by the general category vessels in recent years. Landings by vessels that had a general category permit before the control date and that are expected to fish in 2008 were 4.6 million lb (2,087 mt) in 2006. The vessels that are expected to qualify for the limited access general category program, and thus fish in 2009, landed about 2.4 million lb (1,089 mt). Therefore, short-term economic impacts of the general category TAC would be negative on the general category fleet to the extent that the overall TAC prevents these vessels from landing the amount of scallops they would catch without such a constraint. Again, those distributional impacts were analyzed in Amendment 11 (Sections 5.4.8.5, 5.4.8.6 and 5.4.13). However, a limited access general category fishery would have positive economic impacts over the medium to long term on the vessels that qualify for general category limited access permits and for limited access vessels by preventing overfishing of the scallop resource and the dissipation of profits by uncontrolled entry and effort into the general category fishery. Other proposed Framework 19 measures, such as the general category quarterly hard TAC, 5-percent access area allocation for general category vessels, observer program improvements, a 30-day VMS power down provision, NGOM hard TAC, and yellowtail TAC adjustments, are expected to provide additional positive impacts by providing vessels the opportunity to reduce fishing costs and increase revenues from scallop fishing. Because the intent of framework actions are to make minor adjustments to an FMP, and not major program changes, the council, in some cases where the adjustment measure was deemed minor, only considered one alternative versus a no action alternative. Economic Impacts of the Proposed Measures and Alternatives 1. GB Access Area Schedule Revision Framework 19 would adjust the GB access area schedule so that the NLCA would be open in 2008 and CAII would be open in 2009. The proposed action to revise the GB access area schedule is expected to have positive economic impacts by providing access to areas with more scallop biomass. This would help increase yield, landings, and revenues from the fishery both in the short and the long term, benefiting both limited access and general category vessels. The only alternative is the no action option, which would provide access in 2008 to CAI instead of the NLCA. Due to low biomass, CAI would not likely support a fleet-wide trip allocation. Consequently, since both the NLCA and CAII have higher scallop concentrations than CAI, the proposed alternative would result in higher economic benefits than the no action alternative. 2. DAS Conversion and Yellowtail TAC The proposed action to allocate additional open area DAS if an access area closes due to the attainment of a scallop yellowtail TAC would continue under the no action alternative, but the values would be changed to reflect current fishery and resource conditions. The proposed DAS conversion rates would be higher than those under no action because scallop biomass in the NLCA and CAII is lower than when the no action DAS conversion rates were established. This DAS conversion measure helps minimize lost revenue that would result from a yellowtail TAC closure. Although this measure would have positive economic impacts on scallop vessels that lost access area trip(s), they would likely receive less revenue from the DAS due to the access area trip to DAS conversion rate, which is based on scallop fishing mortality, not trip revenue. The conversion rate was established so that scallop mortality from the additional DAS would be equivalent to the scallop mortality from an access area. Scallops in open areas are generally smaller than scallops in access areas. No alternatives, other than maintaining conversion rates that are currently in the regulations, were considered. The proposed higher DAS conversion rates would result in higher economic benefits than no action. 3. HCAA Trip Expiration The proposed no action alternative to allow all un-used 2005 HCAA trips to expire on February 29, 2008, instead of the rejected alternative of extending them to May 31, 2008, could have negative economic impacts on those vessels that could not take an economically viable trip to HCAA due to the poor resource conditions in this area. But these negative impacts are on 2007 fishing year revenues, not projected revenues under Framework 19. Landings per unit effort

(LPUE)could improve in early 2007 and could provide some vessels incentive to take their trips rather than let them expire, minimizing these negative impacts. The proposed alternative to extend the trip expiration deadline to May 31, 2008, could reduce the negative impacts compared to no action. However, extending the duration of Hudson Canyon trips until May 31, 2008, could have negative impacts on future scallop yields resulting in negative long-term economic impacts. 4. ETAA and Delmarva Schedule The proposed no action alternative to provide access to the ETAA in 2008 and 2009 and Delmarva in 2009 would have positive economic impacts on both limited access and general category vessels because this area has more scallop biomass compared to areas such as open areas and CAI. The procedure to reduce trips would help prevent overfishing, and thus have positive impacts on the scallop resource, and on the long term landings and revenues of scallop vessels. There are no alternatives under the current FMP that would generate higher benefits for the scallop vessels. The only alternative is the no action, which would allocate fewer ETAA trips and zero Delmarva trips. 5. Access Area Crew Limits The proposed no action alternative would continue to allow a vessel to carry any number of crew on an access area trip. No crew limit would give vessels the most flexibility, potentially reducing total fishing costs, and would therefore have positive economic impacts on scallop vessels. The alternative option would restrict the crew size to eight or nine persons. This would potentially help reduce scallop mortality and control effort, with positive impacts on the scallop resource, landings, and revenues over the long term. On the other hand, limiting crew size would reduce a vessel's flexibility and increase trip costs. Therefore, the economic benefits of this alternative are expected to be small compared to the proposed alternative. 6. In-Shell Possession Limit The proposed action would prohibit any scallop vessel on an access area trip from possessing more than 50 U.S. bu (17.6 hL) of in-shell scallops. This prohibition would help prevent scallop discard mortality, and therefore result in higher yields, revenues, and economic benefits. There are no alternatives that would generate higher benefits for the scallop vessels. The only alternative is the no action which would continue to allow deckloading and result in lower economic benefits compared to the proposed action alternative. 7. Research and Observer Set-Asides The proposed no action alternative would continue to set-aside 2 percent of the scallop TAC for the research set-aside program and 1 percent of the scallop TAC for the industry-funded observer set-aside program. These set-asides are expected to have indirect economic benefits for the scallop fishery by improving scallop information and data made possible by research and the observer program. There are no alternatives that would generate higher benefits for scallop vessels. 8. DAS Allocations and Access Areas Trip Allocations The proposed open area DAS allocations are expected to prevent overfishing in open areas and to have positive economic impacts on scallop vessels when combined with controlled access area allocations. Framework 19 would implement the following vessel-specific DAS allocations: Full-time vessels would be allocated 35 DAS in 2008 and 42 DAS in 2009; part-time vessels would be allocated 14 DAS in 2008 and 17 DAS in 2009; and occasional vessels would receive 3 DAS for each year. Except for the no action alternatives, other alternatives would result in slightly higher revenues and profits compared to the preferred action during 2008-2009. Alternatives with higher DAS allocations would provide higher short-term revenues, but could be offset by lower DAS allocations in future years as the result of lower exploitable scallop biomass. The proposed action would allocate fewer open area DAS compared to the no action in both the 2008 and 2009 fishing years, but it would allocate more trips to access areas. As a result, the proposed action would generate higher benefits than the no action alternative. 9. General Category Quarterly TAC Amendment 11 proposes to establish an IFQ limited entry program for the general category scallop fishery starting in 2009. The 2008 fishing year would be a transition year as IFQ shares are established. The proposed action would distribute the 2008 general category quota allocation into quarters to minimize derby-style fishing. This measure would have positive economic impacts over the long-term for vessels that qualify for the general category limited entry program. Although management of the general category fishery by a quarterly hard TAC during the transition period to an IFQ program would create some derby-style fishing, the quarterly TACs would reduce derby fishing and lessen the negative economic impacts associated with derby fishing. The proposed alternative (Option A) would allocate 35 percent (1,056,563 lb, (475.25 mt) of the 2008 directed general category annual TAC to Quarter 1, 40 percent (1,207,750 lb, (547.83 mt)) to Quarter 1, 15 percent (452,813 lb, (205.39 mt)) to Quarter 1, and 10 percent (301,875 lb, (136.93 mt)) to Quarter 4. Quarters 1 and 2 would be allocated 75 percent of the TAC because general category access area trips primarily occur in those quarters. Unused TAC from Quarter 1 would roll over to Quarter 3, and unused TAC from Quarter 2 would roll over to the fourth quarter, thereby ensuring the full benefit of the scallop TAC is realized. There is no alternative to the proposed action (no action) alternative to allocate 10 percent of the overall 2008 scallop TAC to the general category fishery. However, Option B would distribute a greater percentage of the quarterly 10-percent hard TAC to the first and second quarters (85 percent) and less (15 percent) to the last two quarters, reducing the derby fishing in the first two quarters but increasing it in the last two quarters. This option is not expected to have larger positive economic impacts on the general category fishery compared to the proposed action (Option A). 10. General Category Access Area Allocations The proposed action to allocate 5 percent of the scallop access area TACs in the 2008 and 2009 fishing years is expected to have positive economic impacts on the general category vessels compared to the no action allocation of 2 percent. In 2008, the general category fishery would be allocated 5 percent of the overall NLCA and ETAA TACs, resulting in up to 665 trips in the NLCA, and up to 2,662 trips in the ETAA. In 2009, the general category scallop fishery would be allocated 5 percent of the overall ETAA and Delmarva TACs, resulting in up to 1,967 trips and 726, respectively. General category vessels would not be allocated any trips in CAII. Because access areas are more productive and have higher LPUE than open areas, it would take less fishing time to catch the 400-lb (181-kg) possession limit. As a result, fishing costs would be lower and profits would be higher for trips taken in the access areas when compared to open areas. Since most general category vessels do not fish in CAII, zero percent allocation for this area would increase open area landings and overall revenues of the general category fishery. The alternative option would allocate 2 percent of the 2008 and 5 percent of the 2009 access area TACs, which would likely have less economic benefits for general category vessels. 11. IFQ Cost Recovery Framework 19 would implement a cost recovery program that would collect 3 percent of the ex-vessel value of scallop product landed to recover the costs directly related to management, data collection and analysis, and enforcement of the general category IFQ program as mandated by the Magnuson-Stevens Act. The preferred alternative estimates total scallop landings would be 45.9 million lb (20,820 mt) in 2009. With ex-vessel prices estimated from $7.55—$8.30, a 3-percent cost recovery would likely range from $519,818 to $571,455 in 2009. The positive economic impacts of the IFQ program for the general category limited access qualifiers are expected to exceed the costs of this cost recovery program. There are no other alternative options to the proposed cost recovery program and the no action alternative would be inconsistent with the Magnuson-Stevens Act. 12. NGOM TAC Amendment 11 would establish a NGOM Management Area that would be managed under a hard quota system. Framework 19 would establish the NGOM annual specifications. The proposed NGOM TAC is expected to have positive economic impacts for vessels that do not qualify for limited access IFQ permit but do qualify for a NGOM permit because it would allow them to land scallops in this area during favorable resource conditions. The proposed hard TAC of 70,000 lb (32 mt) is expected to generate more than $500,000 in scallop revenue for NGOM vessels in 2008-2009. The Council discussed higher TACs for the NGOM, but none were considered consistent with Amendment 11 and therefore were rejected and not analyzed. 13. Incidental Scallop Catch Target TAC Amendment 11 includes a provision that the FMP should consider the level of mortality from incidental catch and remove that from the projected total catch before allocations are made to general category and limited access fisheries. The proposed action to remove incidental scallop catch before making allocations to limited access and directed general category vessels would ensure F targets are not exceeded, and thus would have positive impacts on the resource, scallop yield, and on the revenues and profits of scallop vessels. Framework 19 would establish the incidental catch target TAC for the 2008 and 2009 fishing years. The target TAC would be established at 50,000 lb (22.68 mt) per year in 2008 and 2009. This measure is based on an estimate of incidental catch and therefore, no alternatives were considered. 14. Overfishing Definition Adjustment The Council recommended a new overfishing definition based on results from the recent scallop stock assessment (SAW 45) which used a new model to characterize the scallop resource, including a new biomass target and threshold, as well as a new F threshold. The proposed action to adjust the overfishing definition would have positive impacts on the scallop resource, scallop landings, revenues and profits of scallop vessels over the long term by more accurately defining the biomass reference points and appropriate F threshold based on the biomass reference points. Maintaining the F target at the precautionary level of F=0.20 would also reduce the risk of localized overfishing in open areas. The Council also considered maintaining the current overfishing definition but, for the reasons stated, the new overfishing definition would provide greater benefits to the fishery. The alternative that would increase the F target is less precautionary. Although it would increase landings and economic benefits over the short term, it could result in overfishing and lower long-term economic benefits. 15. Observer Program Improvements Framework 19 includes several proposed measures that would improve oversight and administration of the scallop observer program. Measures include: Greater oversight by NNMFS/NEFOP of observer availability; observer provider materials and contracts; closer correlation between service provider fees and observer set-aside compensation rates; adjusted general category access area trip notification requirements; and observer notification and observer waiver requirements, among others. The proposed action would have positive economic impacts by improving the administration and reducing the cost burden of the observer program on scallop vessels by improving observer program efficiency and by making provider fees more commensurate with observer set-aside compensation rates. The no action alternatives would not include observer program improvements, and therefore, would not facilitate the effectiveness and efficiency of the industry-funded observer program. 16. HCAA Rotational Management Area The proposed action would establish the HCAA as a rotational management area and close it for at least the 2008 and 2009 fishing years to protect young scallops. This is expected to have positive economic impacts by reducing mortality and increasing yield from this area over the long term. As a rotational closed area, the HCAA is expected to provide for increased economic benefits to the scallop industry, consistent with the area rotation program. The foundation of the area rotation program is to increase yield from the scallop resource and increase overall benefits. Two different boundary alternatives for HCAA were considered but not selected by the Council. These alternative closures would slightly increase the revenues and economic benefits for the scallop vessels compared to the proposed HCAA closure boundaries, but would allocate fewer open-area DAS in the 2008 fishing year. 17. 30-day VMS Power Down Provision The proposed action to implement a 30-day VMS power down provision would reduce the burden on vessel-owners to maintain a transmitting VMS on their vessel for long periods when it is not fishing. This provision would have some positive economic impacts by reducing vessel operation costs. There are no other alternatives other than no action which does not allow vessels to power down the VMS unit. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Recordkeeping and reporting requirements. Dated: March 12, 2008. John Oliver, Deputy Assistant Administrator For Operations, 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. The following revision to § 648.4 is based on the proposed rule for Amendment 11 to the Atlantic Sea Scallop FMP (72 FR 71315, December 17, 2007). In § 648.4 revise paragraph (a)(2)(ii)(H) to read as follows: § 648.4 Vessel permits.

(a)* * *

(2)* * *

(ii)* * *

(H)*Application/renewal restrictions* . See paragraph (a)(1)(i)(B) of this section. Applications for a LAGC permit described in paragraph (a)(2)(ii) of this section must be postmarked no later than [date 90 days from the date the Amendment 11 Final Rule is published in the **Federal Register** ]. Applications for LAGC permits that are not postmarked on or before [date 90 days from the date the Final Rule is published in the **Federal Register** ] may be denied and returned to the sender with a letter explaining the denial. Such denials may not be appealed and shall be the final decision of the Department of Commerce. If NMFS determines that the vessel owner has failed to pay a cost recovery fee in accordance with the cost recovery requirements specified at § 648.53(h)(4)(ii), the IFQ permit shall not be renewed. 3. In § 648.9, paragraph (c)(2)(i)(B) is revised to read as follows: § 648.9 VMS requirements.

(c)* * *

(2)* * *

(i)* * *

(B)For vessels fishing with a valid NE multispecies limited access permit, a valid surfclam and ocean quahog permit specified at § 648.4(a)(4), or an Atlantic sea scallop permit, the vessel owner signs out of the VMS program for a minimum period of 30 consecutive days by obtaining a valid letter of exemption pursuant to paragraph (c)(2)(ii) of this section, the vessel does not engage in any fisheries until the VMS unit is turned back on, and the vessel complies with all conditions and requirements of said letter; or 4. In § 648.11, paragraphs (g)(2), (g)(3), (g)(4)(i), (g)(4)(ii), (g)(5), (h)(5)(i), (h)(5)(iv), (h)(5)(vi), (h)(5)(vii)(A), and (h)(5)(vii)(E) are revised, and paragraphs (h)(5)(vii)(G) through (h)(5)(vii)(J) are added to read as follows: § 648.11 At-sea sea sampler/observer coverage.

(g)* * *

(2)*Vessel notification procedures* —(i) *Limited access vessels* . Limited access vessel owners, operators, or managers shall notify NMFS/NEFOP by telephone not more than 10 days prior to the beginning of any scallop trip of the time, port of departure, open area or specific Sea Scallop Access Area to be fished, and whether fishing as a scallop dredge, scallop trawl, or general category vessel.

(ii)*General category vessels* . General category vessel owners, operators, or managers must notify the NMFS/NEFOP by telephone by 0001 hr of the Wednesday preceding the week (Monday through Sunday) they intend to start a scallop trip. If selected, up to two Sea Scallop Access Area trips that start during the specified week (Monday through Sunday) can be selected to be covered by an observer. NMFS/NEFOP must be notified by the owner, operator, or vessel manager of any trip plan changes.

(3)*Selection of scallop trips for observer coverage* . Based on predetermined coverage levels for various permit categories and areas of the scallop fishery that are provided by NMFS in writing to all observer service providers approved pursuant to paragraph

(h)of this section, NMFS shall notify the vessel owner, operator, or vessel manager whether the vessel must carry an observer, or if a waiver has been granted, for the specified scallop trip, within 72 hr of the vessel owner's, operator's, or vessel manager's notification of the prospective scallop trip, as specified in paragraph (g)(2) of this section. Any request to carry an observer may be waived by NMFS. All waivers for observer coverage shall be issued to the vessel by VMS so as to have on-board verification of the waiver. A vessel may not fish in an area with an observer waiver confirmation number that does not match the scallop trip plan that was called in to NMFS. Confirmation numbers for trip notification calls are only valid for 48 hr from the intended sail date; and

(4)* * *

(i)An owner of a scallop vessel required to carry an observer under paragraph (g)(3) of this section must arrange for carrying an observer certified through the observer training class operated by the NMFS/NEFOP from an observer service provider approved by NMFS under paragraph

(h)of this section. The observer service provider will notify the vessel owner, operator, or manager within 18 hr whether they have an available observer. A list of approved observer service providers shall be posted on the NMFS/NEFOP Web site at *http://www.nefsc.noaa.gov/femad/fsb/* . The observer service provider may take up to 48 hr to arrange for observer deployment for the specified scallop trip.

(ii)An owner, operator, or vessel manager of a vessel that cannot procure a certified observer within 48 hr of the advance notification to the provider due to the unavailability of an observer may request a waiver from NMFS/NEFOP from the requirement for observer coverage for that trip, but only if the owner, operator, or vessel manager has contacted all of the available observer service providers to secure observer coverage and no observer is available. NMFS/NEFOP shall issue such a waiver within 24 hr, if the conditions of this paragraph (g)(4)(ii) are met. If NMFS/NEFOP does not respond within 24 hr, the vessel may depart on the trip without a waiver.

(5)Owners of scallop vessels shall be responsible for paying the cost of the observer for all scallop trips on which an observer is carried onboard the vessel, regardless of whether the vessel lands or sells sea scallops on that trip, and regardless of the availability of set-aside for an increased possession limit or reduced DAS accrual rate. The owners of vessels that carry an observer may be compensated with a reduced DAS accrual rate for open area scallop trips or additional scallop catch per day in Sea Scallop Access Areas in order to help defray the cost of the observer, under the program specified in §§ 648.53 and 648.60.

(i)Observer service providers shall establish the daily rate for observer coverage on a scallop vessel on an Access Area trip or open area DAS scallop trip consistent with paragraphs (g)(5)(i)(A) and (B), respectively, of this section.

(A)*Access Area trips* . For purposes of determining the daily rate for an observed scallop trip in a Sea Scallop Access Area, providers must calculate the duration of the trip as the period from the first VMS polling position outside of the demarcation line at the beginning of the trip to the first VMS polling position inside of the demarcation line at the end of the trip. The daily rate of compensation equates to each 24 hour period or part of a 24 hour period of such trip. For example, if the first VMS polling position outside of the demarcation line of a vessel with an observer on an access area trip was 9 p.m. on the first day of the month, and the first VMS polling position inside of the demarcation line at the end of the trip was at 1 a.m. on the third day of the month, the duration of the trip equals 28 hr or 2 “days” (24 hr (first day) + 4 hr (second day), because it is part of the next 24-hr period) for the purposes of access area observer set-aside compensation.

(B)*Open area scallop trips* . For observed open area DAS scallop trips, providers shall prorate portions of days at an hourly charge, such that, for the example in paragraph (g)(5)(i)(A) of this section, the provider would charge 1 day and 4 hr for the observed trip.

(ii)NMFS shall determine any reduced DAS accrual rate and the amount of additional pounds of scallops per day fished in a Sea Scallop Access Area for the applicable fishing year based on the economic conditions of the scallop fishery, as determined by best available information. Vessel owners and observer service providers shall be notified through the Small Entity Compliance Guide of any DAS accrual rate changes and any changes in additional pounds of scallops determined by the Regional Administrator to be necessary. Vessel owners and observer providers shall be notified by NMFS of any adjustments.

(h)* * *

(5)* * *

(i)An observer service provider must provide observers certified by NMFS/NEFOP pursuant to paragraph

(i)of this section for deployment in the sea scallop fishery when contacted and contracted by the owner, operator, or vessel manager of a vessel fishing in the scallop fishery, unless the observer service provider does not have an available observer within 48 hr of receiving a request for an observer from a vessel owner, operator, and/or manager, or refuses to deploy an observer on a requesting vessel for any of the reasons specified at paragraph (h)(5)(viii) of this section. An observer's first three deployments and the resulting data shall be immediately edited and approved after each trip, by NMFS/NEFOP, prior to any further deployments by that observer.

(iv)*Observer deployment limitations* . Unless alternative arrangements are approved by NMFS, an observer provider must not deploy any observer on the same vessel for more than two consecutive multi-day trips, and not more than twice in any given month for multi-day deployments.

(vi)*Observer training requirements* . The following information must be submitted to NMFS/NEFOP to request a certified observer training class at least 7 days prior to the beginning of the proposed training class: Date of requested training; a list of observer candidates; observer candidate resumes; and a statement signed by the candidate, under penalty of perjury, that discloses the candidate's criminal convictions, if any. All observer trainees must complete a basic cardiopulmonary resuscitation/first aid course prior to the end of a NMFS/NEFOP Sea Scallop Observer Training class. NMFS may reject a candidate for training if the candidate does not meet the minimum qualification requirements as outlined by NMFS National Minimum Eligibility Standards for observers as described in paragraph (i)(1) of this section.

(vii)* * *

(A)*Observer deployment reports* . The observer service provider must report to NMFS/NEFOP when, where, to whom, and to what fishery (open or closed area) an observer has been deployed, within 24 hr of the observer's departure. The observer service provider must ensure that the observer reports back to NMFS its Observer Contract (OBSCON) data, as described in the certified observer training, within 12 hr of landing. OBSCON data are to be submitted electronically or by other means as specified by NMFS. The observer service provider shall provide the raw (unedited) data collected by the observer to NMFS within 72 hr, which should be within 4 business days of the trip landing.

(E)*Observer availability report* . The observer service provider must report to NMFS any occurrence of inability to respond to an industry request for observer coverage due to the lack of available observers by 5 p.m., Eastern Standard Time, of any day on which the provider is unable to respond to an industry request for observer coverage.

(G)*Observer status report* . Providers must provide NMFS/NEFOP with an updated list of contact information for all observers that includes the observer identification number, observer's name, mailing address, email address, phone numbers, homeports or fisheries/trip types assigned, and must include whether or not the observer is “in service,” indicating when the observer has requested leave and/or is not currently working for the Industry-Funded program.

(H)Providers must submit to NMFS/NEFOP, if requested, a copy of each type of signed and valid contract (including all attachments, appendices, addendums, and exhibits incorporated into the contract) between the observer provider and those entities requiring observer services.

(I)Providers must submit to NMFS/NEFOP, if requested, a copy of each type of signed and valid contract (including all attachments, appendices, addendums, and exhibits incorporated into the contract) between the observer provider and specific observers.

(J)Providers must submit to NMFS/NEFOP, if requested, copies of any information developed and used by the observer providers distributed to vessels, such as informational pamphlets, payment notification, description of observer duties, etc. 5. The following revisions to § 648.11 are based on the proposed rule for Amendment 11 (72 FR 71315, December 17, 2007). In § 648.14, paragraphs (h)(27) and (i)(2)(iv) are revised, and paragraphs (h)(29), (i)(1)(xx), and (i)(2)(xvii) are added to read as follows: § 648.14 Prohibitions.

(h)* * *

(27)Possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries of a Sea Scallop Access Area by a vessel that is declared into the Area Access Program as specified in § 648.60.

(29)Fish for, possess, or land scallops from any Sea Scallop Access Area without an observer on board, unless the vessel owner, operator, or manager has received a waiver to carry an observer for the specified trip and area fished.

(i)* * *

(1)* * *

(xx)Fish for, possess, or land scallops in any Sea Scallop Access Area without an observer on board, unless the vessel owner, operator, or manager has received a waiver to carry an observer for the specified trip and area fished.

(2)* * *

(iv)Possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries a Sea Scallop Access Area by a vessel that is declared into the Area Access Program as specified in § 648.60.

(xvii)Fail to comply with cost recovery requirements as specified under § 648.53(g)(4). 6. The following revisions to § 648.53 are based on the proposed rule for Amendment 11 to the Atlantic Sea Scallop FMP (72 FR 71315, December 17, 2007). In § 648.53 paragraphs (a), (b)(5)(i), (b)(5)(ii), (b)(6), (g)(1), (g)(2), and (h)(4) are revised, the table in paragraph (b)(4) introductory text is revised, paragraph (b)(4)(ii) is added and reserved, paragraph (b)(5)(iii) is removed and reserved, and paragraph (b)(4)(i) is added to read as follows. § 648.53 Target total allowable catch, DAS allocations, and Individual Fishing Quotas.

(a)*Target total allowable catch

(TAC)for scallop fishery* . The annual target total TAC for the scallop fishery shall be established through the framework adjustment process specified in § 648.55. The annual target TAC shall include the TAC for all scallop vessels fishing in open areas and Sea Scallop Access Areas, but shall exclude the TAC established for the Northern Gulf of Maine Scallop Management Area as specified in § 648.62. After deducting the total estimated incidental catch of scallops, as specified at § 648.53(a)(9), by vessels issued incidental catch general category scallop permits, and limited access and limited access general category scallop vessels not declared into the scallop fishery, the annual target TAC for open and Sea Scallop Access Areas shall each be divided between limited access vessels, limited access vessels that are fishing under a limited access general category permit, and limited access general category vessels as specified in paragraphs (a)(3) through (a)(6) of this section. In the event that a framework adjustment does not implement an annual TAC for a fishing or part of a fishing year, the preceding fishing year's scallop regulations shall apply.

(1)*2008 fishing year target TAC for scallop fishery* . 20,140 mt.

(2)*2009 fishing year target TAC for scallop fishery* . 20,820 mt.

(3)*Access area TAC* . The TAC for each access area specified in § 648.59 shall be determined through the framework adjustment process described in § 648.55 and shall be specified in § 648.59 for each access area. The TAC set-asides for observer coverage and research shall be deducted from the TAC in each Access Area prior to assigning the target TAC and trip allocations for limited access scallop vessels, and prior to allocating TAC to limited access general category vessels. The percentage of the TAC for each Access Area allocated to limited access vessels, limited access general category vessels, and limited access vessels fishing under limited access general category permits shall be specified in accordance with § 648.60 through the framework adjustment process specified in § 648.55.

(4)*Open area TAC for limited access vessels* —(i) *2008 fishing year* . For the 2008 fishing year, the target TAC for limited access vessels fishing under the scallop DAS program specified in this section is 6,274 mt, which is equal to 90 percent of the target TAC specified in accordance with this paragraph (a), minus the TAC for all access areas specified in accordance with paragraph (b)(5) of this section.

(ii)*2009 fishing year* . Beginning March 1, 2009, unless the implementation of the IFQ program is delayed beyond March 1, 2009, as specified in paragraph (a)(5) of this section, the target TAC for limited access vessels fishing under the scallop DAS program specified in this section is 7,458 mt, which is equal to 94.5 percent of the target TAC specified in accordance with this paragraph (a), minus the TAC for all access areas specified in accordance with paragraph (b)(5) of this section. The target TAC for limited access vessels fishing under the DAS program shall be used to determine the DAS allocation for full-time, part-time, and occasional scallop vessels will receive after deducting the DAS set-asides for observer coverage and research.

(5)*Open area TAC for IFQ scallop vessels* —(i) *2008 fishing year* . For the 2008 fishing year, IFQ scallop vessels, and limited access scallop vessels that are fishing under an IFQ scallop permit outside of the scallop DAS and Area Access programs, shall be allocated 10 percent of the annual target TAC specified in accordance with paragraph

(a)of this section, which is 1,369 mt, minus the TAC for all access areas specified in accordance with paragraph (b)(7) of this section.

(ii)*2009 fishing year and beyond for IFQ scallop vessels without a limited access scallop permit* . For the 2009 fishing year, the TAC for IFQ scallop vessels without a limited access scallop permit shall be equal to 5 percent of the target TAC specified in accordance with this paragraph (a), minus the TAC for all access areas specified in accordance with paragraph (b)(5) of this section. Therefore, the 2009 TAC for IFQ scallop vessels without a limited access scallop permit is 536 mt. If the IFQ program implementation is delayed beyond March 1, 2009, as specified in this paragraph (a)(7), the quarterly fleetwide TAC specified in paragraph (a)(8) of this section would remain in effect.

(iii)*2009 fishing year and beyond for IFQ scallop vessels with a limited access scallop permit* . For the 2009 fishing year, limited access scallop vessels that are fishing under an IFQ scallop permit outside of the scallop DAS and Area Access programs shall be allocated 0.5 percent of the annual target TAC specified in accordance with this paragraph (a), which is 102 mt, minus the TAC for all access areas specified in accordance with paragraph (b)(5) of this section. If the IFQ program implementation is delayed beyond March 1, 2009, as specified in this paragraph (a)(7), the quarterly fleetwide TAC specified in paragraph (a)(8) of this section would remain in effect until March 1, 2010, or beyond if the IFQ program implementation is further delayed.

(6)*Northern Gulf of Maine Scallop Fishery* . The TAC for the Northern Gulf of Maine Scallop Fishery shall be specified in accordance with ( 648.62, through the framework adjustment process specified in ( 648.55. The Northern Gulf of Maine Scallop Fishery TAC is specified in § 648.62(b)(1).

(7)*Delay of the IFQ program* . If the IFQ program implementation is delayed beyond March 1, 2009, the quarterly fleetwide TAC would remain in effect. Under such a scenario, the overall IFQ fishery allocation of 4,551,700 lb (2,065 mt) would be distributed as follows: Quarter 1—1,593,095 (723 mt); Quarter 2—1,820,680 lb (826 mt), Quarter 3—682,755 lb (310 mt), Quarter 4—455,170 lb (206 mt). If the Regional Administrator determines that the IFQ program cannot be implemented by March 1, 2009, NMFS shall inform all scallop vessel owners that the IFQ program shall not take effect.

(8)*Distribution of transition period TAC* —(i) *Allocation* . For the 2008 fishing year, and subsequent fishing years until the IFQ program is implemented as specified in paragraph

(j)of this section, the TAC for IFQ scallop vessels shall be allocated as specified in paragraphs (a)(5) of this section into quarterly periods. The percentage allocations for each period allocated to the IFQ scallop vessels, including limited access vessels fishing under an IFQ scallop permit and vessels under appeal for an IFQ scallop permit pursuant to § 648.4(a)(2)(ii) shall be specified in the framework adjustment process as specified in § 648.55 and are specified in the following table: Quarter Percent TAC I. March-May 35 1,523,375 lb (475.25 mt) II. June-August 40 1,741,000 lb (547.83 mt) III. September-November 15 652,875 lb (205.39 mt) IV. December-February 10 435,250 lb (136.93 mt)

(ii)*Deductions of landings* . All landings by IFQ scallop vessels and limited access vessels fishing under an IFQ scallop permit shall be deducted from the TAC allocations specified in the table in paragraph (a)(8)(i) of this section.

(9)*Scallop incidental catch target TAC.* The 2008 and 2009 incidental catch target TACs for vessels with incidental catch scallop permits are 50,000 lb (22,680 kg) per year.

(b)* * *

(4)* * * DAS category 2008 2009 1 Full-time 35 42 Part-time 14 17 Occasional 3 3 1 If the IFQ program implementation is delayed beyond March 1, 2009, the following 2009 DAS allocations will be: Full-time—37; part-time—15, occasional—3.

(i)Limited access vessels that lawfully use more open area DAS in the 2008 fishing year than specified in this section shall have the DAS used in excess of the 2008 allocation specified in this paragraph (b)(4) deducted from their 2009 open area DAS allocation specified in paragraph (b)(2) of this section.

(ii)[Reserved]

(5)* * *

(i)For each remaining complete trip in the Nantucket Lightship Access Area, a full-time and part-time vessel may fish an additional 7.7 DAS in open areas and an occasional vessel may fish an additional 3.2 DAS during the same fishing year. A complete trip is deemed to be a trip that is not subject to a reduced possession limit under the broken trip provision in § 648.60(c). If a vessel has unused broken trip compensation trip(s), as specified in § 648.60(c), when the Nantucket Lightship Access Area closes due to the yellowtail flounder bycatch TAC, it would be issued additional DAS in proportion to the unharvested possession limit. For example, if a full-time vessel had an unused 9,000-lb (4,082-kg) Nantucket Lightship Access Area compensation trip (half of the possession limit) at the time of a Nantucket Lightship Access Area yellowtail flounder bycatch TAC closure, the vessel would be allocated 3.85 DAS (half of 7.7 DAS).

(ii)For each remaining complete trip in Closed Area II, a full-time and part-time vessel may fish an additional 7.9 DAS in open areas and an occasional vessel may fish an additional 3.3 DAS during the same fishing year. A complete trip is deemed to be a trip that is not subject to a reduced possession limit under the broken trip provision in § 648.60(c). If a vessel has unused Closed Area II broken trip compensation trip(s), as specified in § 648.60(c), when Closed Area II closes due to the yellowtail flounder bycatch TAC, it would be issued additional DAS in proportion to the unharvested possession limit. For example, if a full-time vessel had an unused 9,000 lb (4,082 kg) Closed Area II compensation trip (half of the possession limit) at the time of a Closed Area II yellowtail flounder bycatch TAC closure, the vessel would be allocated 3.95 DAS (half of 7.9 DAS).

(6)DAS allocations and other management measures are specified for each scallop fishing year, which begins on March 1 and ends on February 28 (or February 29), unless otherwise noted.

(g)* * *

(1)*DAS set-aside for observer coverage* . As specified in paragraph (b)(2) of this section, to help defray the cost of carrying an observer, 1 percent of the total DAS shall be set-aside from the total DAS available for allocation, to be used by vessels that are assigned to take an at-sea observer on a trip other than an Area Access Program trip. The DAS set-aside for observer coverage is 118 DAS for the 2008 fishing year, and 141 DAS for the 2009 fishing year. If the IFQ program implementation is delayed beyond March 1, 2009, the 2009 DAS set-aside for observer coverage will be 124 DAS. Vessels carrying an observer shall be compensated with reduced DAS accrual rates for each trip on which the vessel carries an observer. For each DAS that a vessel fishes for scallops with an observer on board, the DAS shall be charged at a reduced rate based on an adjustment factor determined by the Regional Administrator on an annual basis, dependent on the cost of observers, catch rates, and amount of available DAS set-aside. The Regional Administrator shall notify vessel owners of the cost of observers and the DAS adjustment factor through a permit holder letter issued prior to the start of each fishing year. The number of DAS that are deducted from each trip based on the adjustment factor shall be deducted from the observer DAS set-aside amount in the applicable fishing year. Utilization of the DAS set-aside shall be on a first-come, first-served basis. When the DAS set-aside for observer coverage has been utilized, vessel owners shall be notified that no additional DAS remain available to offset the cost of carrying observers. The obligation to carry and pay for an observer shall not be waived due to the absence of set-aside DAS allocations.

(2)*DAS set-aside for research* . As specified in paragraph (b)(2) of this section, to help support the activities of vessels participating in certain research, as specified in § 648.56; the DAS set-aside for research is 235 DAS for the 2008 fishing year, and 282 DAS for the 2009 fishing year. If the IFQ program implementation is delayed beyond March 1, 2009, the 2009 DAS set-aside for research will be 241 DAS. Vessels participating in approved research shall be authorized to use additional DAS in the applicable fishing year. Notification of allocated additional DAS shall be provided through a letter of authorization, or Exempted Fishing Permit issued by NMFS, or shall be added to a participating vessel's open area DAS allocation, as appropriate.

(h)* * *

(4)*IFQ cost recovery* . The Secretary of Commerce is authorized to collect a fee, not to exceed 3 percent of the ex-vessel value of IFQ fish harvested, to recover the costs associated with of management, data collection, and enforcement of the IFQ program. The owner of a vessel issued an IFQ scallop permit and subject to the IFQ program specified in this paragraph (h), shall be responsible for paying the fee as required by NMFS in this paragraph (h)(4). An IFQ scallop vessel shall incur a cost recovery fee liability for every landing of IFQ scallops. The IFQ scallop permit holder shall be responsible for collecting his/her own fee liability for all of his/her IFQ scallop landings, and shall be responsible for submitting this payment to NMFS once per year.

(i)*Cost recovery fee determination* . The ex-vessel value of scallops shall be determined as an average of the ex-vessel value, as determined by Northeast Federal dealer reports, of all IFQ scallops landed between March 1 and September 30 of the initial year of the IFQ scallop program, and from October 1 through September 30 of each year thereafter.

(ii)*Fee payment procedure* . On or about October 31 of each year, NMFS shall mail a cost recovery bill to each IFQ scallop permit holder for the previous cost recovery period. An IFQ scallop permit holder who has incurred a fee liability must pay the fee to NMFS by January 1 of each year. Cost recovery payments shall be made electronically via the Federal web portal, www.pay.gov, or other internet sites as designated by the Regional Administrator. Instructions for electronic payment shall be available on both the payment website and the paper bill. Payment options shall include payment via a credit card, as specified in the cost recovery bill, or via direct automated clearing house

(ACH)withdrawal from a designated checking account. Payment by check may be authorized by the Regional Administrator if the Regional Administrator has determined that electronic payment is not possible (for example, if the geographical area or an individual(s) is affected by catastrophic conditions).

(iii)*Payment compliance* . An IFQ scallop permit holder that has incurred an IFQ cost recovery fee must pay the fee to NMFS by January 1 of each year. If the cost recovery payment, as determined by NMFS, is not made by January 1, NMFS may deny the renewal of the IFQ scallop permit until full payment is received. If, upon preliminary review of the accuracy and completeness of a fee payment, NMFS determines the IFQ scallop permit holder has not paid the full amount due, NMFS shall notify the IFQ scallop permit holder by letter. NMFS shall explain the discrepancy and provide the IFQ scallop permit holder 30 days to either pay the amount specified by NMFS or to provide evidence that the amount paid was correct. If the IFQ scallop permit holder submits evidence in support of his/her payment, NMFS shall determine if there is any remaining disagreement as to the appropriate IFQ fee, and prepare a Final Administrative Determination (FAD). The FAD shall set out the facts, discuss those facts within the context of the relevant agency policies and regulations, and make a determination as to the appropriate disposition of the matter. A FAD shall be the final agency action, and, if the FAD determines that the IFQ scallop permit holder is out of compliance, the FAD shall require payment within 30 days. If a FAD is not issued until after the start of the fishing year, the IFQ scallop permit holder may be authorized by the Regional Administrator to fish under their IFQ scallop permit until the FAD is issued, at which point the permit holder will have 30 days to comply with the terms of the FAD or have his/her IFQ scallop permit suspended until such terms are met. If NMFS determines that the IFQ scallop permit holder owes additional fees for the previous cost recovery period, and the IFQ scallop permit has already been renewed, NMFS will issue a FAD, at which point the permit holder will have 30 days to comply with the terms of the FAD or have his/her IFQ scallop permit suspended until such terms are met. If such payment is not received within 30 days of issuance of the FAD, NMFS shall refer the matter to the appropriate authorities within the U.S. Treasury for purposes of collection, and no IFQ permit held by the permit holder will be renewed until the terms of the FAD are met. If NMFS determines that the conditions of the FAD have been met, the IFQ permit holder may renew the IFQ scallop permit(s). If NMFS does not receive full payment prior to the end of the fishing year, the IFQ scallop permit will be considered voluntarily abandoned, pursuant to § 648.4(a)(2)(ii)(K), unless otherwise determined by the Regional Administrator. 7. In § 648.58, paragraph

(a)is added and paragraph

(b)is revised, and paragraphs

(e)through

(h)are removed: § 648.58 Rotational Closed Areas.

(a)*Hudson Canyon Closed Area* . Through at least February 28, 2010, no vessel may fish for scallops in, or possess or land scallops from, the area known as the Hudson Canyon Closed Area. No vessel may possess scallops in the Hudson Canyon Closed Area, unless such vessel is only transiting the area as provided in paragraph

(c)of this section. The Hudson Canyon Closed Area is defined by straight lines connecting the following points in the order stated (copies of a chart depicting this area are available from the Regional Administrator upon request): Point Latitude Longitude H1 39°30′N. 73°10′W. H2 39°30′N. 72°30′W. H3 38°30′N. 73°30′W. H4 38°50′N. 73°30′W. H5 38°50′N. 73°42′W. H1 39°30′N. 73°10′W.

(b)*Delmarva Closed Area* . From January 1, 2007, through at least February 28, 2009, no vessel may fish for scallops in, or possess or land scallops from, the area known as the Delmarva Closed Area. No vessel may possess scallops in the Delmarva Closed Area, unless such vessel is only transiting the area as provided in paragraph

(b)of this section. The Delmarva Closed Area is defined by straight lines connecting the following points in the order stated (copies of a chart depicting this area are available from the Regional Administrator upon request): Point Latitude Longitude DMV1 38°10′N. 74°50′W. DMV2 38°10′N. 74°00′W. DMV3 37°15′N. 74°00′W. DMV4 37°15′N. 74°50′W. DMV1 38°10′N. 74°50′W. 8. In § 648.59, paragraph (e)(3) is removed and reserved, and paragraphs (a), (b)(5)(ii)(B), (c)(5)(ii)(B), (d)(5)(ii)(B), and (e)(6)(ii)(B) are revised to read as follows. The revisions to (c)(5)(ii)(B), (d)(5)(ii)(B), and (e)(6)(ii)(B) are based on the proposed rule for Amendment 11 to the Atlantic Sea Scallop FMP (72 FR 71315, December 17, 2007). § 648.59 Sea Scallop Access Areas.

(a)*Delmarva Sea Scallop Access Area* .

(1)From March 1, 2009, through February 28, 2010, a vessel issued a scallop permit may fish for, possess, or land scallops in or from the area known as the Delmarva Sea Scallop Access Area, described in paragraph (a)(2) of this section, only if the vessel is participating in, and complies with the requirements of, the area access program described in § 648.60.

(2)The Delmarva Sea Scallop Access Area is defined by straight lines connecting the following points in the order stated (copies of a chart depicting this area are available from the Regional Administrator upon request): Point Latitude Longitude DMV1 38°10′N. 74°50′W. DMV2 38°10′N. 74°00′W. DMV3 37°15′N. 74°00′W. DMV4 37°15′N. 74°50′W. DMV1 38°10′N. 74°50′W.

(3)*Number of trips* —(i) *Limited access vessels* . Based on its permit category, a vessel issued a limited access scallop permit may fish no more than the maximum number of trips in 2009 in the Delmarva Access Area as specified in § 648.60(a)(3)(i), unless the vessel owner has made an exchange with another vessel owner whereby the vessel gains a Delmarva Access Area trip and gives up a trip into another Sea Scallop Access Area, as specified in § 648.60(a)(3)(ii), or unless the vessel is taking a compensation trip for a prior Delmarva Access Area trip that was terminated early, as specified in § 648.60(c).

(ii)*General category vessels* .

(A)LAGC vessels are allocated 728 Delmarva Access Area trips for the 2009 fishing year, unless otherwise adjusted according to § 648.60(a)(3)(i)(E). Subject to the possession limit specified in §§ 648.52(a) and

(b)and 648.60(g), a LAGC vessel may not enter, fish for, possess, or land sea scallops in or from the Delmarva Access Area once the Regional Administrator has provided notification in the **Federal Register** , in accordance with § 648.60(g)(4), that 728 trips in the 2009 fishing year have been taken, in total, by all general category scallop vessels, unless transiting pursuant to paragraph

(f)of this section. The Regional Administrator shall notify all general category scallop vessels of the date when the maximum number of allowed trips have been, or are projected to be, taken for the 2009 fishing year.

(b)* * *

(5)* * *

(ii)* * *

(B)Except as provided in paragraph (b)(5)(ii)(C) of this section, subject to the possession limit specified in §§ 648.52(a) and

(b)and 648.60(g), and subject to the seasonal restrictions specified in paragraph (b)(4) of this section, an LAGC scallop vessel may not enter, fish for, possess, or land sea scallops in or from the Closed Area I Access Area through the 2009 fishing unless transiting pursuant to paragraph

(f)of this section. If general category vessels take 2008 Closed Area I Access Area trips, the same number of ETAA trips as specified in paragraph (e)(6)(ii)(B) of this section will be deducted from the LAGC fishery in 2009.

(c)* * *

(5)* * *

(ii)* * *

(B)Except as provided in paragraph (c)(5)(ii)(C) of this section, subject to the possession limits specified in §§ 648.52(a) and (b), and 648.60(g), and subject to the seasonal restrictions specified in paragraph (c)(4) of this section, an LAGC scallop vessel may not enter in, or fish for, possess, or land sea scallops in or from the Closed Area II Access Area through the 2009 fishing unless transiting pursuant to paragraph

(f)of this section.

(d)* * *

(5)* * *

(ii)* * *

(B)LAGC vessels are allocated 667 Nantucket Lightship Access Area trips for the 2008 fishing year. Except as provided in paragraph (d)(5)(ii)(C) of this section, subject to the possession limits specified in §§ 648.52(a) and (b), and 648.60(g), an LAGC scallop vessel may not enter, fish for, possess, or land sea scallops in or from the Nantucket Lightship Access Area once the Regional Administrator has provided notification in the **Federal Register** , in accordance with § 648.60(g)(4), that the 667 trips allocated in the 2008 fishing year are projected to be taken, in total, by all LAGC scallop vessels, unless transiting pursuant to paragraph

(f)of this section. The Regional Administrator shall notify all LAGC scallop vessels of the date when the maximum number of allowed trips have been, or are projected to be, taken for the 2008 fishing year.

(e)* * *

(6)* * *

(ii)* * *

(B)LAGC vessels are allocated 2,668 Elephant Trunk Access Area trips for the 2008 fishing year, and 1,964 Elephant Trunk Access Area trips for the 2009 fishing year, unless otherwise adjusted according to § 648.60(a)(3)(i)(E). Subject to the possession limits specified in §§ 648.52(a) and (b), and 648.60(g), an LAGC scallop vessel may not enter in, or fish for, possess, or land sea scallops in or from the Elephant Trunk Sea Scallop Access Area once the Regional Administrator has provided notification in the **Federal Register** , in accordance with § 648.60(g)(4), that the 2,668 trips allocated in the 2008 fishing year, or the 1,964 trips allocated to the 2009 fishing year are projected to be taken, in total, by all LAGC scallop vessels, unless transiting pursuant to paragraph

(a)introductory text is based on the proposed rule for Amendment 11 (72 FR 71315, December 17, 2007) as follows. The revision in § 648.60 paragraph (a)(3)(i), (d)(1), and (e)(1) is revised based on current regulations as follows: § 648.60 Sea scallop area access program requirements.

(a)A limited access scallop vessel may only fish in the Sea Scallop Access Areas specified in § 648.59, subject to the seasonal restrictions specified in § 648.59, provided the vessel complies with the requirements specified in paragraphs (a)(1) through (a)(9), and

(b)through

(f)of this section. An LAGC scallop vessel may fish in the Sea Scallop Access Areas specified in § 648.59, subject to the seasonal restrictions specified in § 648.59, provided the vessel complies with the requirements specified in paragraph

(g)of this section.

(3)* * *

(i)*Limited access vessel trips* .

(A)Except as provided in paragraph

(c)of this section, and unless the number of trips is adjusted for the Elephant Trunk Access Area or the Delmarva Access Area as specified in paragraph (a)(3)(i)(F) of this section, paragraphs (a)(3)(i)(B) through

(E)of this section specify the total number of trips that a limited access scallop vessel may take into Sea Scallop Access Areas during applicable seasons specified in § 648.59. The number of trips per vessel in any one Sea Scallop Access Area may not exceed the maximum number of trips allocated for such Sea Scallop Access Area as specified in § 648.59, unless the vessel owner has exchanged a trip with another vessel owner for an additional Sea Scallop Access Area trip, as specified in paragraph (a)(3)(ii) of this section, been allocated a compensation trip pursuant to paragraph

(c)of this section, or unless the Elephant Trunk Access Area trip allocations are adjusted as specified in § 648.60(a)(3)(i)(F). If, during the interim period between March 1, 2008, and the implementation of the limited access Access Area trip allocations specified in this section, a limited access vessel takes a 2008 Closed Area I Access Area trip, one ETAA trip will be deducted from the vessel's 2009 allocation as specified in this section.

(B)*Full-time scallop vessels* . In the 2008 fishing year, a full-time scallop vessel may take four trips in the Elephant Trunk Access Area and one trip in the Nantucket Lightship Access Area. In the 2009 fishing year, a full-time scallop vessel may take three trips in the Elephant Trunk Access Area (unless adjusted per paragraph (a)(3)(i)(F) of this section), one trip in the Closed Area II Access Area, and one trip in the Delmarva Access Area (unless adjusted per paragraph (a)(3)(i)(F) of this section).

(C)*Part-time scallop vessels* . In the 2008 fishing year, a part-time scallop vessel may take one trip in the Nantucket Lightship Access Area and one trip in the Elephant Trunk Access Area (unless adjusted per paragraph (a)(3)(i)(F) of this section); or two trips in the Elephant Trunk Access Area. In the 2009 fishing year, a part-time scallop vessel is allocated two trips that may be distributed between access areas as follows: Up to two trips in the Elephant Trunk Access Area (unless adjusted per paragraph (a)(3)(i)(F) of this section), up to one trip in Closed Area II, and up to one trip in the Delmarva Access Area (unless adjusted per paragraph (a)(3)(i)(E) of this section).

(D)*Occasional scallop vessels* . In the 2008 fishing year, an occasional scallop vessel may take one trip in the Nantucket Lightship Access Area or one trip in the Elephant Trunk Access Area. In the 2009 fishing year, an occasional scallop vessel may take one trip in the Closed Area II Access Area or one trip in the Elephant Trunk Access Area (unless adjusted per paragraph (a)(3)(i)(F) of this section) or one trip in the Delmarva Access Area (unless adjusted per paragraph (a)(3)(i)(E) of this section).

(E)Procedure for adjusting the number of 2009 fishing year trips in the Elephant Trunk and Delmarva Access Areas. ( *1* ) The Regional Administrator shall reduce the number of 2009 Elephant Trunk Access Area trips using the table in paragraph (a)(3)(i)(F)( *2* ) of this section and/or Delmarva Access Area trips using the table in paragraph (a)(3)(i)(F)( *3* ) of this section, provided that updated exploitable biomass projections are available with sufficient time to announce such an adjustment through publication of a final rule in the **Federal Register** , pursuant to the Administrative Procedure Act, on or about December 1, 2008. In addition, if an updated estimate of overall F exceeds 0.29 in 2008, then Elephant Trunk Access Area trip allocations will be reduced consistent with reductions as specified in the table in paragraph (a)(3)(i)(F)( *2* ) of this section under exploitable biomass estimates of 20,000 — 29,000 mt. If both the exploitable biomass and F thresholds are exceeded, the allocation level will be established using the exploitable biomass adjustment schedule. If information is not available in time for NMFS to publish a final rule on or about December 1, 2008, no adjustment may be made. The exploitable biomass estimate necessary for any adjustment of the 2009 Elephant Trunk Access Area and/or Delmarva Access Area trip allocations shall be based on all available scientific surveys of scallops within the Elephant Trunk Access Area or Delmarva Access Area. Survey data must be used only if they are available with sufficient time for review and incorporation in the exploitable biomass estimate and they are determined to be scientifically sound. If no other surveys are available, the annual NOAA scallop resource survey shall be used to estimate exploitable scallop biomass for the Elephant Trunk Access Area. ( *2* ) *Table of Elephant Trunk Access Area TAC and trip allocation adjustments based on exploitable biomass estimates and revised target TAC levels* . If the exploitable biomass estimate is between 20,000 and 29,999 mt, part-time vessels shall be authorized to take one trip in the Elephant Trunk Access Area at a reduced possession limit of 3,600 lb (1,633 kg) and one trip in the Nantucket Lightship Access Area at the normal possession limit as specified at § 648.60(a)(5); and occasional vessels may take one trip in the Elephant Trunk Access Area or one trip in the Nantucket Lightship Access Area with a normal possession limit of 7,500 lb (3,402 kg) as specified at § 648.60(a)(5). The following table specifies the adjustments that shall be made through the procedure specified in paragraph (a)(3)(i)(F)( *1* ) of this section under various biomass estimates and adjusted 2009 TAC estimates: Exploitable biomass estimate

(mt)Adjusted trips (full-time, part-time, occasional) Adjusted trips (general category) Adjusted 2009 research set-aside TAC Adjusted 2009 observer set-aside TAC 30,000 or greater No adjustment No adjustment No adjustment No adjustment 20,000-29,999 2, 1*, 1** 1473 0.24 0.12 10,000-19,000 1, 0, 0 982 0.16 0.08 Less than 10,000 0, 0, 0 491 0.08 0.04 * Part-time vessels may take one trip in the Elephant Trunk Access Area at a reduced possession limit of 3,600 lb (1,633 kg) and one trip in the NLCA with a possession limit of 18,000 lb (8,165 kg). * * Occasional vessels may take 1 trip in the Nantucket Lightship Access Area or one trip in the Elephant Trunk Access Area. ( *3* ) *Table of Delmarva Access Area TAC and trip allocation adjustments based on exploitable biomass estimates and revised target TAC levels* . The following table specifies the adjustments that shall be made through the procedure specified in paragraph (a)(3)(i)(F)( *1* ) of this section under various biomass estimates and adjusted 2009 target TAC estimates: Exploitable biomass estimate

(mt)Adjusted trips (full-time, part-time, occasional) Adjusted trips (general category) Adjusted 2009 research set-aside TAC Adjusted 2009 observer set-aside TAC 10,000 or greater No adjustment No adjustment No adjustment No adjustment Less than 10,000 0,0,0 0 0 0

(5)*Possession and landing limits* —(i) *Scallop possession limits* . Unless authorized by the Regional Administrator, as specified in paragraphs

(c)and

(d)of this section, after declaring a trip into a Sea Scallop Access Area, a vessel owner or operator of a limited access scallop vessel may fish for, possess, and land, per trip, scallops, up to the maximum amounts specified in the table in this paragraph (a)(5). No vessel fishing in the Sea Scallop Access Area may possess shoreward of the VMS demarcation line, or land, more than 50 bu (17.6 hl) of in-shell scallops. Fishing Year Permit Category Possession Limit Full-time Part-time Occasional 2008 18,000 lb (8,165 kg) 18,000 lb (8,165 kg) 7,500 lb (3,402 kg) 2009 18,000 lb (8,165 kg) 18,000 lb 1 (8,165 kg) 7,500 lb (3,402 kg) 1 Unless reduced per § 648.60(a)(3)(i)(E)( *2* )

(d)*Possession limit to defray costs of observers* —(1) *Observer set-aside limits by area* —(i) *Nantucket Lightship Access Area* . For the 2008 fishing year, the observer set-asides for the Nantucket Lightship Access Area is 55,000 lb (25 mt).

(ii)*Closed Area II Access Area* . For the 2009 fishing year, the observer set-aside for the Closed Area II Access Area is 58,000 lb (26 mt).

(iii)*Elephant Trunk Access Area* . For the 2008 and 2009 fishing years, the observer set-aside for the Elephant Trunk Access Area is 222,000 lb (101 mt), and 162,000 lb (73 mt), respectively, unless the 2009 set-aside is adjusted as specified in paragraph (a)(3)(i)(E) of this section.

(iv)*Delmarva Access Area* . For the 2009 fishing year, the observer set-aside for the Delmarva Access Area is 60,000 lb (27 mt), unless the 2009 set-aside is adjusted as specified in paragraph (a)(3)(i)(E) of this section.

(e)* * *

(1)*Research set-aside limits and number of trips by area* —(i) *Nantucket Lightship Access Area* . For the 2008 fishing year, the research set-aside for the Nantucket Lightship Access Area is 110,000 lb (50 mt).

(ii)*Closed Area II Access Area* . For the 2009 fishing year, the research set-aside for the Closed Area II Access Area is 116,000 lb (53 mt).

(iii)*Elephant Trunk Access Area* . For the 2008 and 2009 fishing years, the research set-aside for the Elephant Trunk Access Area is 440,000 lb (200 mt), and 324,000 lb (147 mt), respectively, unless the 2009 set-aside is adjusted as specified in paragraph (a)(3)(i)(E) of this section.

(iv)*Delmarva Access Area.* For the 2009 fishing year, the research set-aside for the Delmarva Access Area is 120,000 lb (54 mt), unless the 2009 set-aside is adjusted as specified in paragraph (a)(3)(i)(E) of this section. 10. The following revision to § 648.62 is based on the proposed rule for Amendment 11 (72 FR 71315, December 17, 2007). In § 648.62, paragraph (b)(1) is revised to read as follows. § 648.62 Northern Gulf of Maine

(NGOM)scallop management area.

(b)* * *

(1)*NGOM TAC* . The TAC for the NGOM shall be 70,000 lb (31.8 mt) for both the 2008 and 2009 fishing years. [FR Doc. 08-1055 Filed 3-14-08; 4:08 pm]

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