We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2012-1067; Directorate Identifier 2011-NM-231-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, tohttp://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.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0193, dated October 5, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Dassault Aviation has issued the following service information. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

• Dassault Mandatory Service Bulletin F50-496, Revision 2, dated March 10, 2010 (for Model MYSTERE-FALCON 50 airplanes), which includes the following appendices:

• Appendix 1, Revision 2, dated February 15, 2010.

• Appendix 2, Revision 3, dated February 15, 2009.

• Appendix 3, Revision 2, dated October 21, 2009.

• Appendix 4, Revision 1, dated October 20, 2009.

• Appendix 5, Revision 3, dated March 10, 2010.

• Dassault Mandatory Service Bulletin F900EX-329, Revision 3, dated March 10, 2010 (for Model FALCON 900EX airplanes), which includes the following appendices:

• Appendix 1, Revision 2, dated February 15, 2010.

• Appendix 2, Revision 3, dated February 15, 2009.

• Appendix 3, Revision 2, dated October 21, 2009.

• Appendix 4, Revision 1, dated October 20, 2009.

• Appendix 5, Revision 3, dated March 10, 2010.

• Dassault Mandatory Service Bulletin F900-388, Revision 2, dated March 10, 2010 (for Model MYSTERE-FALCON 900 airplanes), which includes the following appendices:

• Appendix 1, Revision 2, dated February 15, 2010.

• Appendix 2, Revision 3, dated February 15, 2009.

• Appendix 3, Revision 2, dated October 21, 2009.

• Appendix 4, Revision 1, dated October 20, 2009.

• Appendix 5, Revision 3, dated March 10, 2010.

• Dassault Mandatory Service Bulletin F2000-358, Revision 3, dated March 10, 2010 (for Model FALCON 2000 airplanes), which includes the following appendices:

• Appendix 1, Revision 2, dated February 15, 2010.

• Appendix 2, Revision 3, dated February 15, 2009.

• Appendix 3, Revision 2, dated October 21, 2009.

• Appendix 4, Revision 1, dated October 20, 2009.

• Appendix 5, Revision 3, dated March 10, 2010.

• Dassault Mandatory Service Bulletin F2000EX-171, Revision 3, dated March 10, 2010 (for Model FALCON 2000EX airplanes), which includes the following appendices:

• Appendix 1, Revision 2, dated February 15, 2010.

• Appendix 2, Revision 3, dated February 15, 2009.

• Appendix 3, Revision 2, dated October 21, 2009.

• Appendix 4, Revision 1, dated October 20, 2009.

• Appendix 5, Revision 3, dated March 10, 2010.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. 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 the same type design.

Based on the service information, we estimate that this proposed AD would affect about 753 products of U.S. registry. We also estimate that it would take about 640 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $18,500 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. 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 $54,893,700, or $72,900 per product.

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.

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 that 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);

3. Will not affect intrastate aviation in Alaska; and

4. 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 a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2012-1068; Directorate Identifier 2011-NM-073-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 because of those comments.

We will post all comments we receive, without change, tohttp://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.

On December 5, 2000, we issued AD 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000), for certain Model 737-100, -200, and -200C series airplanes. That AD requires repetitive inspections of the aft end of each inboard flap track of the wing outboard flap, and corrective actions, if necessary. That AD resulted from reports of cracking of the aft end of an inboard flap track of the wing outboard flap found on a Model 737-200 series airplane having improved flap tracks installed. The inner and outer webs of the track, as well as the upper and lower flanges, were severed. We issued that AD to detect and correct damage of the aft end of each flap track, which could result in loss of the outboard trailing edge flap and consequent loss of controllability of the airplane.

On March 8, 2002, we issued AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002), for certain Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. That AD requires, for certain airplanes, repetitive inspections for discrepancies of the rear spar attachments and cracks in the upper flange of the inboard track at the rear spar attachment of each outboard flap, and eventual rework of the flap track assembly and rear spar attachments, including replacement of the flap track with a new track, if necessary. For certain airplanes, that AD requires repetitive inspections for cracks in the upper flange of the inboard flap tracks at the rear spar attachments, and corrective action, if necessary. That AD resulted from several reports of cracking of the inboard track of the outboard flap. We issued that AD to detect and correct discrepancies of the inboard tracks of the outboard flaps, which could result in loss of the outboard trailing edge flaps and consequent reduced controllability of the airplane.

Since we issued ADs 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000); and 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002); we have received reports that the work sequence and procedures used during track installation could also cause loose tracks, causing the track to move laterally at the rear spar joint when full torque is applied to the forward attach bolt, putting a side load on the inboard aft attach bolt. Because of friction caused by tightening to the specified torque value, the torque applied to the bolt is not sufficient to hold the track tight against the rear spar structure. Continued operation with a cracked or loose attachment at the rear spar could cause the track to break, which could result in the loss of the outboard trailing edge flap and consequent loss of controllability of the airplane.

We reviewed Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, for all Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This service information describes procedures for a detailed inspection for damage (cracks, nicks, corrosion pits, galling, pieces broken off) and stop-drill repairs along the full length of the upper and lower flanges of the flap track; a detailed inspection for damage, cracking, and stop-drill repairs along the full length of the track webs; an eddy current inspection for damage (including cracking) of the flap track web and flanges; and corrective actions if necessary. Corrective actions include repairing damage and replacing flap tracks.

Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, also describes, for certain airplanes, procedures for a detailed inspection for signs of movement between the tapered shim and anti-fret strip installation of the anti-fret strip, and corrosion of the tapered shim and anti-fret strip; a detailed inspection for signs of movement, cracks and corrosion of the area where the track is attached to the wing rear spar; an eddy current inspection for cracking of the outboard edge of the track adjacent to the outboard attach bolt; an ultrasonic inspection for cracking of the inner edge of the track adjacent to the outboard attach bolt; and related investigative and corrective actions if necessary. The related investigative actions (which include disassembly of the flap track-to-wing attachment) include the following inspections.

• A detailed inspection of the anti-fret strip for signs that show the strip is loose or damaged and to determine if the anti-fret strip is made of phenolic.

• A detailed inspection of the tapered shim for damage and corrosion, and to determine if the shim is made of laminated material and the shim width is less than 1.70 inches.

• A detailed inspection of the track in the area where it is fitted against the wing skin for corrosion on the surface and corrosion in the bolt holes.

• A detailed inspection of the bushing for corrosion.

• An eddy current inspection or magnetic particle inspection for cracking on the upper surface of the track flange adjacent to the inboard and outboard bolt holes.

• An eddy current inspection or magnetic particle inspection of the inboard and outboard bolt holes for cracking.

The corrective actions include installing a new anti-fret strip, tapered shim, or bushing; removing or repairing corrosion; and removing damage and replacing the flap track.

Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, also describes procedures for repetitive overhauls of the flap track and repetitive post-overhaul inspections and corrective actions if necessary.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.

This proposed AD would retain all requirements of AD 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000); and all requirements of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002). This proposed AD would require new inspections and overhauls of the flap track assembly. This proposed AD would also require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the AD and the Service Information.”

Since ADs 2000-25-07 Amendment 39-12041 (65 FR 78913, December 18, 2000); and 2002-05-07 Amendment 39-12675 (67 FR 11891, March 18, 2002); were issued, the AD format has been revised, and certain paragraphs have been re-arranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:

The reference to “the service bulletin” in paragraph (e) of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002) has been spelled out with the full citation, “Boeing Service Bulletin 737-57A1249, Revision 1, including Appendix A, dated June 1, 2000,” in paragraph (o) of this proposed AD. Boeing Commercial Airplanes has received an Organization Designation Authorization (ODA). We have revised paragraphs (i) and (o) of this AD to delegate the authority to approve an alternative method of compliance for any repair required by this proposed AD to the Boeing Commercial Airplanes ODA rather than a Designated Engineering Representative (DER).

Note 2 of AD 2000-25-07, Amendment 39-12041 (65 FR 78913, December 18, 2000), has been changed to paragraph (h) of this proposed AD.

Note 3 of AD 2002-05-07, Amendment 39-12675 (67 FR 11891, March 18, 2002), has been changed to paragraph (k) of this proposed AD which provides credit for previous accomplishment of certain actions.

We have also revised certain headings throughout this AD.

Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, specifies procedures to inspect for installation of an anti-fret strip but does not specify on-condition actions if the anti-fret strip is missing. If an anti-fret strip is not found installed, this proposed AD would require that the related investigative actions specified for anti-fret strips that have signs of damage or corrosion are done, and corrective actions if necessary, including making and installing a new anti-fret strip, are done in accordance with paragraph 3.B.5 of the Accomplishment Instructions of Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012.

Boeing Service Bulletin 737-57A1271, Revision 3, dated February 13, 2012, specifies procedures to remove certain flap track assemblies if found. This proposed AD would require an inspection to determine the part number of the flap track assembly and replacement of affected parts if necessary.

Since issuance of AD 2002-05-07, Amendment 39-12041 (65 FR 78913, December 18, 2000), we have increased the labor rate used in the Costs of Compliance from $60 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.

We estimate that this proposed AD affects 570 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We have received no definitive data that would enable us to provide cost estimates for labor cost for repair, and parts cost for repair and replacement for the on-condition actions specified in this proposed AD. The labor cost of the replacement is $1,360 (16 work-hours × $85 per hour). We have no way of determining the number of aircraft that might need these repairs/replacements.

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.

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 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),

(3) Will not affect intrastate aviation in Alaska, and

(4) 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.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2012-1041; Directorate Identifier 2011-NM-272-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 because of those comments.

We will post all comments we receive, without change, tohttp://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.

We have received a report of an erroneous activation of the control column shaker during takeoff of a Model 747-400 airplane. The control column shaker activation continued while the airplane was in flight, and engine-indicating and crew-alerting system (EICAS) messages ALT DISAGREE and IAS DISAGREE displayed. The flightcrew used the alternate air data computer (left ADC) and the altitude and airspeed indications cancelled. After landing, the right ADC was replaced. On the subsequent flight the control column shaker operated again at takeoff and the flightcrew had to do a rejected takeoff (RTO). Troubleshooting steps found that the right AOA sensor was unserviceable. Inspection of the AOA sensors showed that the set screw connected to the synchro transmitter was not correctly attached to the AOA sensor shaft. Certain Model 727 and 737 airplanes also use Conrac/Ametek/Gulton AOA sensors that are equivalent in design and construction to the defective AOA sensor on the Model 747-400 airplane. This condition, if not corrected, could result in runway overrun, failure to clear terrain or obstacles after takeoff, or reduced controllability of the airplane.

We reviewed the following service information:

• Boeing Special Attention Service Bulletin 727-34-0245, dated June 4, 2008 (for Model airplanes);

• Boeing Special Attention Service Bulletin 737-34-2102, dated June 5, 2008 (for Model 737-100, -200, and -200C series airplanes); and

• Boeing Special Attention Service Bulletin 747-34-2925, dated June 4, 2008 (for Model 747-100, -100B, -100B SUD, -200B, -200C, -200F, -300, -400, -400D, -400F, 747SR, and 747SP series airplanes).

The service information describes procedures for performing a general visual inspection to determine if a certain AOA sensor with a paddle type vane is installed; and performing an operational test, and replacing the AOA sensor with a new sensor if necessary.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information described previously.

We estimate that this proposed AD affects 1,013 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need this replacement:

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.

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),

(3) Will not affect intrastate aviation in Alaska, and

(4) 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.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2011-0155; Directorate Identifier 2009-NM-141-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 because of those comments.

We will post all comments we receive, without change, tohttp://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.

We issued an NPRM to amend 14 CFR part 39 to include an AD that would apply to certain Model 737-200, -200C, -300, -400, and -500 series airplanes. That NPRM published in theFederal Registeron March 8, 2011 (76 FR 12619). That NPRM proposed to supersede AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), to continue to require repetitive inspections to find fatigue cracking of certain upper and lower skin panels of the fuselage, and follow-on and corrective actions if necessary. That NPRM also included a terminating action for the repetitive inspections of certain modified or repaired areas only. That NPRM proposed to add new inspections for cracking of the fuselage skin along certain chem-milled lines, and corrective actions if necessary. That NPRM also proposed to reduce certain thresholds and intervals required by the existing AD. That NPRM resulted from reports indicating new findings of cracks were found along the edges of the chem-milled pockets in the upper skin at certain stringers.

Since we issued the previous NPRM (76 FR 12619, March 8, 2011), extensive continued evaluation of the chem-mill step cracking has been done, which resulted in a determination that the repetitive inspection intervals and the compliance time for the inspections of the crown area and other known areas of fuselage skin cracking must be reduced in order to adequately address the identified unsafe condition.

We gave the public the opportunity to comment on the previous NPRM (76 FR 12619, March 8, 2011). The following presents the comments received on the previous NPRM and the FAA's response to each comment.

The National Transportation Safety Board and Jonathan W. Ketron support the content of the previous NPRM (76 FR 12619, March 8, 2011).

Alaska Airlines (ASA) asked that we change the previous NPRM (76 FR 12619, March 8, 2011) to also supersede AD 2003-14-06, Amendment 39-13225 (68 FR 42956, July 21, 2003). ASA explained that paragraph (g) of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), allows accomplishing one-time internal inspections in accordance with paragraph (b) or paragraph (c) of AD 2003-14-06 in order to terminate the repetitive inspections required by paragraph (a) of AD 2004-18-06 (paragraph (g) of the previous NPRM). ASA added that the previous NPRM restates these required external inspections. ASA noted that AD 2003-14-06 was initially released to address inadequate phosphoric anodizing of the skin panels, leading to disbonding of internal doublers. ASA stated further that subsequent events showed that fatigue cracking of chem-milled skins cannot be solely attributed to improper anodizing or disbonded doublers. ASA added that the previous NPRM does not clearly address the requirements in AD 2003-14-06, which will remain in effect until after the final rule is released.

We do not agree to supersede AD 2003-14-06, Amendment 39-13255 (68 FR 42956, July 21, 2003). The one-time internal inspection in that AD is required for safety and is not related to the chem-milled step cracking addressed by this supplemental NPRM. In addition, the one-time inspection required by AD 2003-14-06 only terminates the external eddy current inspections required by paragraph (a) of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), which is restated in paragraph (g) of this supplemental NPRM. All external detailed inspections are still required by paragraph (g) of this supplemental NPRM. We have made no change to this supplemental NPRM in this regard.

Boeing requested that paragraphs (g) and (h) of the previous NPRM (76 FR 12619, March 8, 2011) be revised to better distinguish between existing and new requirements. Specifically, Boeing stated that the language used in paragraphs (g) and (h) of the previous NPRM could be interpreted to mean that using Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, is optional for accomplishing the required actions at the inspection thresholds and intervals required by AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004). Boeing requested clarification of the wording to indicate that the inspection, methods, thresholds, and “repeats” in accordance with Revision 3 of this service bulletin are now required.

We agree that clarification is necessary. Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, can be used for accomplishing the required actions in AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004). However, it is not required to use Revision 3 of this service bulletin to accomplish the requirements of the existing AD; rather, it is required to use that revision for the new actionsrequired by paragraphs (p), (q), and (s) of this supplemental NPRM.

Consequently, we have revised paragraphs (g) and (h) of this supplemental NPRM to remove the sentence beginning “As of the effective date of this AD * * *” to clarify that using Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, is not required for accomplishing the requirements of the existing AD.

Boeing asked that we change the “internal” detailed inspection specified in paragraph (h)(1) of the previous NPRM (76 FR 12619, March 8, 2011) to an “external” detailed inspection. Boeing stated that this is a typographical error because it is a restatement of the requirements of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004).

We agree that the reference to an “internal” detailed inspection is a typographical error. We have changed paragraph (h)(1) of this supplemental NPRM to specify an “external” detailed inspection.

Boeing asked that we remove the reference to “paragraph (m)” in the third sentence of paragraph (g) of the previous NPRM (76 FR 12619, March 8, 2011). Boeing stated that paragraph (m) of the previous NPRM addresses disbond inspections, which should not terminate the detailed or eddy current inspection, as specified.

We find that clarification is necessary. Paragraph (m) of this supplemental NPRM states that accomplishing the optional terminating action “before the effective date of this AD” terminates the eddy current inspections required by paragraph (g) of this supplemental NPRM. In addition, paragraph (m) of this supplemental NPRM states that the detailed inspections specified in paragraph (g) of this supplemental NPRM are not terminated. Paragraph (m) of this supplemental NPRM states further that, “as of the effective date of this AD,” the optional terminating action does not terminate the repetitive eddy current inspections required by paragraph (g) of this supplemental NPRM.

We find it necessary to retain the reference to paragraph (m) of this supplemental NPRM in paragraph (g) to indicate that accomplishing the terminating action in paragraph (m) of this supplemental NPRM “before the effective date of this AD” terminates the eddy current inspections required by paragraph (g) of this supplemental NPRM. However, we have revised paragraph (m) of this supplemental NPRM to indicate that neither detailed nor eddy current inspections can be terminated by accomplishing the optional terminating action “on or after the effective date of this AD.”

Boeing asked that the preventative modification language specified in paragraph (w) of the previous NPRM (76 FR 12619, March 8, 2011) be clarified to specify that doing the modification terminates only the repetitive inspections of the chem-milled steps common to stringer 12. Boeing stated that Note (c) of Table 2, paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, specifies that accomplishing the preventative modification only terminates the inspections at stringer 12. Boeing added that there have been post-modification cracks reported at the chem-milled steps common to stringer 10, even though the modification doubler covers the area. Boeing noted that the internal modification doubler does not span the stringer 10 or stringer 13 chem-milled steps by three rows of fasteners; therefore, inspections should continue at those locations even though the modification doubler is common to them.

We agree that clarification is necessary. Doing the preventive modification of the chem-milled areas in the skin at stringer 12, as specified in Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, ends the repetitive inspections for the modified areas common to stringer 12 only. Cracking of the chem-milled steps has been found at locations where doublers do not extend a minimum of three fastener rows beyond the chem-milled step. We have changed paragraph (w) of this supplemental NPRM accordingly.

Boeing asked that the compliance time specified in paragraph (p)(1) of the previous NPRM (76 FR 12619, March 8, 2011) be changed. Boeing stated that it is unclear why airplanes that have accomplished paragraphs (i), (j)(1)(ii), (k), (l), or (m) of the previous NPRM (which are repairs and disbond inspections) must be inspected within 1,800 flight cycles after the effective date of the AD. Boeing added that airplanes identified in paragraph (p)(2) of the previous NPRM that have not accomplished those paragraphs are allowed to wait until 4,500 flight cycles after the last inspection, or 1,800 flight cycles after the effective date of the AD, whichever is later. Boeing questioned why the airplanes on which repairs have not been installed or a disbond inspection has not been accomplished have a different compliance time than airplanes that do have these repairs and inspections. Boeing noted that by using “whichever occurs later” in paragraph (p)(2) of the previous NPRM, an operator may accumulate up to 6,299 flight cycles (4,499 + 1,800) between inspections that were previously required at 4,500-flight-cycle intervals in accordance with AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004).

We agree that the compliance times required by paragraph (p) of this supplemental NPRM should be clarified. After further review of the new inspection requirements in paragraph (p) of this supplemental NPRM, we have determined that those inspections are not related to existing installed repairs or the disbond inspection. The compliance times should not be based on local repairs that may be installed on the airplanes. For areas that have repairs installed in accordance with paragraphs (i), (j)(1)(ii), (k), (l), and (m) of this AD, the inspection is already terminated for these areas only. Therefore, we have deleted paragraphs (p)(1) and (p)(2) of the previous NPRM (76 FR 12619, March 8, 2011), and included the following reduced compliance time in paragraph (p) of this supplemental NPRM: “Within 4,500 flight cycles after doing the most recent inspection required by paragraph (g) of this AD, or within 1,800 flight cycles after the effective date of this AD, whichever is earlier.”

Boeing also asked that the compliance time specified in paragraph (s) of the previous NPRM (76 FR 12619, March 8, 2011) be changed. Boeing stated that the repetitive interval should be changed to 1,800 flight cycles for inspections in areas of known cracking in the lower lobe and Section 41, and when both eddy current and detailed inspections are required, in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009.

Boeing also noted that for inspections in areas with no known cracking, the threshold should be at the latest of 35,000 total flight cycles, or at the earliest of 4,500 flight cycles from the release of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16,2009, or 9,000 flight cycles after the previous inspection. Boeing stated that, based on additional crack growth data, the repetitive inspections in areas of known cracking should be reduced to 1,800 flight cycles. Boeing added that the inspection threshold should be at the latest of 35,000 total flight cycles, or at the earliest of 1,800 flight cycles from the release of that service bulletin or 4,500 flight cycles after the previous inspection. Boeing concluded that in areas of no known cracking, the inspections are in place to monitor for new cracking; therefore, the repetitive inspection intervals can be extended.

We agree that the compliance times should be changed based on the data provided by the manufacturer. We have moved the compliance times for the initial and repetitive inspections identified in paragraph (s) of the previous NPRM (76 FR 12619, March 8, 2011) to paragraphs (s)(1) and (s)(2) of this supplemental NPRM. We also reduced the repetitive inspection interval for known cracking in paragraph (s)(2) of this supplemental NPRM to 1,800 flight cycles.

Boeing also asked that the compliance times and repetitive intervals specified in paragraphs (t), (u)(1), and (u)(2) of the previous NPRM (76 FR 12619, March 8, 2011) be changed. Boeing requested that all compliance times (initial and repetitive) that specify 4,500 flight cycles be changed to 1,800 flight cycles. Boeing stated that the window belt skin area is equivalent to the crown skin area, and the initial threshold and repetitive interval should be the same as required for the crown area.

We agree that the compliance times should be changed based on the information provided. We have changed the compliance times and repetitive intervals in paragraphs (t), (u)(1), and (u)(2) of this supplemental NPRM accordingly.

Southwest Airlines (SWA) asked that we change paragraph (h) of the previous NPRM (76 FR 12619, March 8, 2011) to provide clarification whether the inspections identified in Figures 26, 27, and 31 of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, are required. SWA asked whether an eddy current or external detailed inspection is necessary for certain locations if those inspection figures are required. SWA stated that paragraph (h) of the previous NPRM specifies an external detailed inspection of the lower lobe area and Section 41 of the fuselage, in accordance with Part 4 of the Accomplishment Instructions of that service bulletin. SWA added that Part 4 also specifies eddy current inspections every 1,800 flight cycles.

We agree that clarification is necessary. The subject inspections identified in Figures 26, 27, and 31 of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, are specified in this supplemental NPRM; however, the inspections in those figures are required by paragraph (s), not paragraph (h), of this supplemental NPRM. No change to either paragraph (h) or (s) of this supplemental NPRM is necessary.

SWA also asked how paragraphs (s) and (u) of the previous NPRM (76 FR 12619, March 8, 2011) are related, and if paragraph (u) of the previous NPRM applies to airplane groups 4, 11, and 16. SWA noted that the inspections identified in paragraph (s) of the previous NPRM are applicable to Groups 1 through 21 and are done in accordance with Part 4 of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009; except as required by paragraph (u) of the previous NPRM. SWA also noted that the inspections identified in paragraph (u) of the previous NPRM are applicable to Groups 3, 5, 9, 10, 12, 14, 15, 17, 18, 19, 20, and 21, and are done in accordance with Part 2 of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009. SWA stated that it is unsure how Part 2 and Part 4 are related. SWA added that Part 2 addresses Groups 4, 11, and 16; however, those groups are not specified in paragraph (u) of the previous NPRM.

We agree that clarification is necessary because the exception in paragraph (s) of the previous NPRM (76 FR 12619, March 8, 2011) is a typographical error and should have identified paragraph (x) instead of paragraph (u) of the previous NPRM. We have changed paragraph (s) of this supplemental NPRM accordingly, which also addresses the commenter's concern about Groups 4, 11, and 16.

SWA asked that, to avoid mandating additional inspections in the previous NPRM (76 FR 12619, March 8, 2011), we exclude the inspection areas identified in AD 2009-21-01, Amendment 39-16038 (74 FR 52395, October 13, 2009). SWA stated that the inspection threshold and repetitive intervals required by AD 2009-21-01 are more restrictive for certain areas of the lower lobe skins than those in the previous NPRM.

We agree that the inspection threshold and repetitive intervals required by AD 2009-21-01, Amendment 39-16038 (74 FR 52395, October 13, 2009), are more restrictive for certain areas. Therefore, we have added a new paragraph (y)(5) to this supplemental NPRM (and reidentified subsequent paragraphs) to specify that inspections and corrective actions required by paragraph (g) of AD 2009-21-01 meet the corresponding provisions of paragraph (s) of this supplemental NPRM.

SWA asked that only nondestructive inspections (NDI) be used in areas where the previous NPRM (76 FR 12619, March 8, 2011) requires both external detailed and eddy current inspections every 1,800 flight cycles. SWA stated that paragraph (f) of AD 2008-19-03, Amendment 39-15670 (73 FR 56958, October 1, 2008), requires repetitive inspections along the chem-milled steps at stringers S-1 and S-2R, between STA 400 and STA 460. SWA added that for line numbers 1001 through 2552, the operator has the option of accomplishing repetitive external detailed inspections every 2,300 flight cycles, or NDI every 4,500 flight cycles. SWA noted that the previous NPRM reduces the repetitive inspection interval specified in Tables 1 through 5 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, from 4,500 flight cycles to 1,800 flight cycles. SWA made its request due to this reduced inspection interval.

We do not agree that only NDI can be used where both external detailed and eddy current inspections are required. The overall safety concern related to Model 737 fuselage skin panels addressed in this supplemental NPRM is mitigated by using detailed inspections in conjunction with eddy current inspections. We have made no change to the supplemental NPRM in this regard.

SWA asked that it be allowed to use a UTPA inspection to inspect areas where the previous NPRM (76 FR 12619, March 8, 2011) requires external NDI methods. SWA stated Boeing confirmed that it is satisfactory to inspect areas covered by the dorsal fin by internally using the UTPA inspection in lieu of the NDI methods, using information in the nondestructive test manual, in lieu of the external NDI methods.

We agree that a UTPA inspection might be able to be used instead of the external NDI method. However, we do not agree to include the UTPA inspection in this supplemental NPRM because we cannot include individual operators' methods of compliance. Under the provisions of paragraph (y) of this supplemental NPRM, we will consider requests for approval of a change to the inspection type if sufficient data are submitted to substantiate that the inspection would provide an acceptable level of safety. We have made no change to the supplemental NPRM in this regard.

SWA and British Airways asked that we allow a GVI in lieu of the detailed inspection specified in paragraphs (p) and (q) of the previous NPRM (76 FR 12619, March 8, 2011). SWA stated that both paragraphs specify doing external detailed and eddy current inspections of the crown area and other known areas of fuselage skin cracking in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009. SWA noted that Part 1 provides doing a GVI with a reduced inspection interval of 1,000 flight cycles in non-lap splice areas as an alternative to the detailed inspection. SWA and British Airways stated that the previous NPRM does not identify the reference in Note (b) of Table 1 of paragraph 1.E., “Compliance,” of that service bulletin, which allows performing a GVI at a reduced inspection interval in lieu of the detailed inspection in areas away from the lapjoints. SWA also asked if the GVI applies to Figures 32 through 37 of this service bulletin.

We agree with the commenters' requests because we have determined that doing the GVI at a reduced inspection interval provides an acceptable level of safety. In addition, the GVI does apply to Figures 32 through 37 of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009, because the figures are part of the Accomplishment Instructions, which is the part of the service bulletin referred to in the requirements. We have revised paragraphs (p), (q), and (s) of this supplemental NPRM to allow this option.

US Airways asked that we allow the use of an alternative corrosion inhibiting compound (CIC) during repairs. US Airways stated that paragraphs (u) and (w) of the previous NPRM (76 FR 12619, March 8, 2011) refer to Parts 7 and 8 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009; Parts 7 and 8 refer to Figures 10 and 24, respectively. US Airways added that the figures specify applying CIC BMS 3-23, Type 2, when completing repairs. US Airways noted that Boeing has approved newer CIC BMS 3-35, which is compatible with CIC BMS 3-23, and is identified in the applicable corrosion prevention manual. US Airways added that Boeing does not plan to add CIC BMS 3-35 to its FAA-approved repair documents. US Airways stated that adding this to the previous NPRM would avoid requests for approval of AMOCs.

We agree that CIC BMS 3-35 can be used as an alternative to CIC BMS 3-23. CIC BMS 3-35 has been qualified and approved as an AMOC for other repair situations that specify CIC BMS 3-23. We have added a new statement to paragraphs (u) and (w) of this supplemental NPRM to include the option of using CIC BMS 3-35 as an equivalent CIC.

The exception in paragraph (o) of this supplemental NPRM was included in the requirements of AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004); however, it was inadvertently removed from the proposed requirements in the previous NPRM (76 FR 12619, March 8, 2011). We have included the exception in paragraphs (g) and (h) of this supplemental NPRM.

We have removed the reference to the Boeing 737 Non-Destructive Test Manual specified in paragraph (o) of this supplemental NPRM; the inspection identified in that paragraph may be done using Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009.

We have removed the definition of a “detailed inspection” in Note 1 of the previous NPRM (76 FR 12619, March 8, 2011) from this supplemental NPRM. That definition is provided in Boeing Alert Service Bulletin 737-53A1210, Revision 3, dated July 16, 2009.

Due to a typographical error in paragraph (w) of the previous NPRM (76 FR 12619, March 8, 2011), we have changed the reference in paragraph (w) of this supplemental NPRM to paragraph (u), instead of paragraph (p) or (q), respectively.

We have revised the optional repair method specified in paragraph (k) of this supplemental NPRM to remove the reference to repairing any cracking per the applicable structural repair manual (SRM) identified in Table 1 of the previous NPRM (76 FR 12619, March 8, 2011). Instead, we have added a statement to paragraph (k) of this supplemental NPRM to specify that guidance on repairing any cracking can be found in the applicable SRM identified in paragraphs (k)(1) through (k)(4) of this supplemental NPRM.

We are proposing this supplemental NPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. Certain changes described above expand the scope of the previous NPRM (76 FR 12619, March 8, 2011). As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this supplemental NPRM.

This supplemental NPRM would require the actions proposed in the previous NPRM (76 FR 12619, March 8, 2011). However, this supplemental NPRM reduces the proposed repetitive inspection intervals and the compliance time for the inspections of the crown area and other known areas of fuselage skin cracking in the previous NPRM (76 FR 12619, March 8, 2011).

There are about 903 airplanes of U.S. registry affected by AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004).

The inspections of the crown area that are required by AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), take about 94 work hours per airplane to accomplish, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the currently required inspections is $7,990 per airplane, per inspection cycle.

The inspections of the lower lobe area that are required by AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), take about 96 work hours per airplane to accomplish, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the currently required inspections is $8,160 per airplane, per inspection cycle.

Should an operator elect to install the preventive modification specified in AD 2004-18-06, Amendment 39-13784 (69 FR 54206, September 8, 2004), it will take about 108 work hours per airplane to accomplish, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the modification is $9,180 per airplane.

The new proposed inspections would affect about 701 airplanes of U.S. registry.

The new proposed inspections would take about 27 work hours per airplane, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the new actions specified in this proposed AD for U.S. operators is $1,608,795, or $2,295 per airplane, per inspection cycle.

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.

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 that the 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),

(3) Will not affect intrastate aviation in Alaska, and

(4) 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.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

On September 15, 2009 and May 25, 2010, FEMA published a proposed rulemaking at 74 FR 47169 and 75 FR 29296, proposing flood elevation determinations along one or more flooding sources in Fairbanks North Star Borough, Alaska. FEMA is withdrawing the proposed rulemaking and intends to publish a Notice of Proposed Flood Hazard Determinations in theFederal Registerand a notice in the affected community's local newspaper following issuance of a revised preliminary Flood Insurance Rate Map and Flood Insurance Study report.

On September 3, 2010, we received a petition from the WildEarth Guardians to list goliath grouper (Epinephelus itajara), Nassau grouper (Epinephelus striatus), and speckled hind (Epinephelus drummondhayi) as threatened or endangered under theESA. Copies of this petition are available from us (seeADDRESSES,above). Due to the scope of the WildEarth Guardians' petition, as well as the breadth and extent of the required evaluation and response, we decided to provide species-specific findings on this petition. This finding addresses WildEarth Guardians' petition to list Nassau grouper. Negative findings for goliath grouper and speckled hind were made on June 1, 2011 (76 FR 31592), and May 1, 2012 (77 FR 25687), respectively.

Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in theFederal Register(16 U.S.C. 1533(b)(3)(A)). When we find that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned during which we will conduct a comprehensive review of the best available scientific and commercial information. In such cases, we are to conclude the review with a finding as to whether, in fact, the petitioned action is warranted within 12 months of receipt of the petition. Because the finding at the 12-month stage is based on a more thorough review of the available information, as compared to the narrow scope of review at the 90-day stage, a “may be warranted” finding does not prejudge the outcome of the status review.

Under the ESA, a listing determination may address a “species,” which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A joint NOAA-U.S. Fish and Wildlife Service (USFWS) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (“DPS Policy”; 61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively; 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered because of any one or a combination of the following section 4(a)(1) factors: the present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).

ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. When evaluating whether substantial information is contained in a petition, the Secretary must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).

Court decisions clarify the appropriate scope and limitations of the Services' review of petitions at the 90-day finding stage, in making a determination whether a petitioned action “may be” warranted. As a general matter, these decisions hold that a petition need not establish a “strong likelihood” or a “high probability” that a species is either threatened or endangered to support a positive 90-day finding.

We evaluate the petitioner's request based upon the information in the petition including its references, and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioner's sources and characterizations of the information presented, if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude it supports the petitioner's assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding, if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue.

To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species at issue faces extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species at issue (e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1).

Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have actedon the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.

The Nassau grouper is a moderately large sea bass (family Serranidae) distributed in the Western North Atlantic from Bermuda, Florida, Bahamas, Yucatan Peninsula, and throughout the Caribbean to southern Brazil. It is not known from the Gulf of Mexico except at the Campeche Bank off the coast of the Yucatan, the Flower Gardens Bank off Texas, and off the Dry Tortugas and Key West, Florida (Beebe and Tee-van, 1933; Randall, 1965; Heemstra and Randall, 1993; Foleyet al.,2007). Nassau grouper are generally found near high-relief coral reefs and rocky bottoms from inshore to a maximum depth of approximately 330 feet (100 m). There is no evidence of distinct subpopulations of Nassau grouper based on genetic analysis (mtDNA and microsatellites) of fish sampled from a number of sites in Florida, Cuba, Belize and the Bahamas (Sedberryet al.,1996). Therefore, Nassau grouper are considered as one, connected population.

Nassau grouper reach a maximum size of approximately 39 inches (100 cm) and 55 pounds (25 kg). They are late-maturing (between 4-7 years) and fairly long-lived (up to 29 years). Nassau grouper were originally considered to be amonandric protogynous hermaphrodites, meaning all males are produced by the sex change of adult females. Evidence of a change from adult female to adult male, however, is weak. Instead, available evidence indicates that the Nassau grouper is primarily gonochoristic (separate sexes) (Sadovy and Eklund, 1999). Nassau grouper are known to assemble in very large numbers, from a few dozen to historically over 100,000 individuals, at transient, site-specific areas each year to spawn, presumably cued by temperature and moon phase. Spawning is not known to occur outside of these aggregations. Aside from spawning, Nassau grouper are solitary fish.

We have determined, based on the information provided in the petition and readily available in our files, that the petition presented substantial scientific or commercial information indicating that the petitioned action may be warranted. The petition contains a justification for the recommended measure, species taxonomic description, geographic distribution, preferred habitat characteristics, population status and trends, and threats contributing to the species' decline, and it is accompanied by appropriate supporting documentation. Below is a synopsis of our analysis of the information provided in the petition and readily available in our files.

The petition cites classifications made by NMFS, the International Union for Conservation of Nature (IUCN), and NatureServe to support its assertion that Nassau grouper is imperiled. The petitioner suggests historic and continued overfishing is the primary threat to Nassau grouper. Because commercial and recreational landings in the U.S. from 1986-1991 decreased in both pounds landed and average size, the Caribbean (1990), South Atlantic (1991), and Gulf of Mexico (1996) Fishery Management Councils, and the State of Florida (1993) all have prohibited the take and possession of Nassau grouper (NMFS, 2010). The IUCN estimates the population of Nassau grouper has declined by 60 percent over the last three generations (Cornish and Eklund, 2003). The petition also cites the IUCN's conclusion that Nassau grouper is suffering from a “high rate of decline in population size” (Cornish and Eklund, 2003). This decline was estimated by weighing estimates of the original Nassau population to coral reef area (rather than population size) to give an overall decline figure. This method assumes that pristine densities of Nassau grouper were the same at all localities. This is probably not likely to have been the case but it enables a single figure to be derived (60 percent decline of Nassau grouper), which is likely more representative of the global situation than the alternative, which would be to say that the decline lies between 55 and 99.5% (the lowest and highest documented decline rates) (Cornish and Eklund, 2003). Additionally, NatureServe (2009) estimates the global abundance of Nassau grouper to be as low as 10,000 worldwide, with numbers still declining. This estimate by NatureServe is based on the occurrence of at least 28 extant spawning aggregations in the western Atlantic, most of which are assumed to each represent hundreds to thousands of individuals (Smith, 1972; Aguilar-Perera, 1990). Conversely, the declining trend is based on spawning aggregations that are absent, disappearing, or becoming increasingly rare throughout the range with several spawning aggregations having vanished completely (Sobel, 1996).

Heavy fishing of spawning aggregations leading to recruitment overfishing is thought to be a major reason for the “catastrophic” decline in populations of Nassau grouper (Colin, 1996; Beets and Hixon, 1994). The spawning aggregations are particularly vulnerable to fishing pressure as they are spatially and temporally predictable. The aggregations form on or near the full moons during November through February when water temperatures are 25-26 degrees Celsius (Colin, 1992). Targeting of spawning aggregations can cause local populations to be extirpated in a matter of a few years (Morriset. al.,2000).

The petitioner claims that throughout the Caribbean, inadequate regulations have led to heavy fishing of the spawning aggregations. Numerous examples exist of the discovery of spawning aggregations, followed by heavy exploitation, and then loss of the spawning aggregation in subsequent years (see Sadovy, 1992 for examples). In other countries, heavy fishing of aggregations led to a fishery composed of primarily juveniles or to the species being considered fishery extinct (Sadovy, 1992). Because there was no evident increase in the number of Nassau grouper following the fishing ban imposed in the Atlantic and Caribbean, Sadovy and Eklund (1999) state an increase is unlikely given presumed illegal capture. In the U.S., where harvest has been prohibited, regulations have not totally prevented harvest of grouper. For example, harvest has been prohibited since 1990 in Puerto Rico yet Nassau grouper landings averaged 12,539 pounds annually between 1991-2010. Further, in waters off the continental U.S., population levels are low relative to historical levels, having shown little response to a fishing moratorium established in 1992 (NMFS, 2010).

The information presented by the petitioner and otherwise available to us indicates that Nassau grouper populations in many Caribbean countries declined as a result of overexploitation and inadequacy of regulatory mechanisms. Much of the data we and the petition use are quite dated with some more than two decades old, and we are concerned about relying on such old information for this finding; however, we believe the seriousness of these threats and the lack of a responseby the population to regulatory mechanisms over the last twenty years are sufficient to indicate that Nassau grouper face an extinction risk of concern. Declines in landings, catch per unit effort, and, by implication, abundance have been reported throughout its range, and it is now considered to be commercially extinct in a number of areas (Sadovy and Eklund, 1999). Further, heavy fishing, especially of spawning aggregations, and certain fishing practices such as spearfishing and the excessive capture of juveniles in small-mesh fish traps, are the attributed causes for severe declines (Sadovy and Eklund, 1999). The reported extirpations of spawning aggregations, in particular, causes us to be concerned that overexploitation may pose a significant risk to the Nassau grouper, as the demographic impacts of targeting the reproductive population can be much more serious than merely fishing down a stock's overall abundance.

In addition to the information on overutilization and inadequacy of existing regulatory mechanisms, the petitioner provided information addressing the other ESA section 4(a)(1) listing factors: the present and threatened destruction, modification, or curtailment of habitat or range, and the other natural or manmade factors that may be affecting the continued existence of Nassau grouper. However, because we have determined that the information provided on overutilization and inadequacy of existing regulatory mechanisms presents substantial information indicating the petitioned action may be warranted, we do not find a need to conduct a detailed analysis of the other submitted information here.

We have determined after reviewing the information contained in the petition, as well as information readily available in our files, that there is substantial information indicating that the petitioned action may be warranted, based on the threats of overutilization for commercial, recreational, scientific or education purposes, and inadequacy of existing regulatory mechanisms. Because we have found that substantial information was presented on the above factors, we will commence a status review of the species. During our status review, we will fully address all five of the listing factors set out in section 4(a)(1). At the conclusion of the status review, we will determine whether the petitioned action is warranted. As previously noted, a “may be warranted” finding does not prejudge the outcome of the status review.

As required by section 4(b)(3)(B) of the ESA and NMFS' implementing regulations (50 CFR 424.14(b)(2)), we are to commence a review of the status of the species and make a determination within 12 months of receiving the petition as to whether the petitioned action is warranted. We intend that any final action resulting from this review be as accurate and as effective as possible. Therefore, we open a 60-day public comment period to solicit information from the public, government agencies, the scientific community, industry, and any other interested parties on the status of Nassau grouper throughout its range including: (1) Status of historical and current spawning aggregation sites; (2) historical and current distribution, abundance, and population trends; (3) biological information (life history, genetics, population connectivity, etc.); (4) management measures, regulatory mechanisms designed to protect spawning aggregations, and enforcement information; (5) any current or planned activities that may adversely impact the species; and (6) ongoing or planned efforts to protect and restore the species and their habitats. We request that all information be accompanied by: (1) Supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents. Section 4(b)(1)(A) of the ESA and NMFS' implementing regulations (50 CFR 424.11(b)) require that a listing determination be made solely on the basis of the best scientific and commercial data, without consideration of possible economic or other impacts of the determination. During the 60-day public comment period we are seeking information related only to the status of Nassau grouper throughout its range.

On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife Service, published a series of policies regarding listings under the ESA, including a policy for peer review of scientific data (59 FR 34270). The intent of the peer review policy is to ensure listings are based on the best scientific and commercial data available. The Office of Management and Budget issued its Final Information Quality Bulletin for Peer Review on December 16, 2004. The Bulletin went into effect June 16, 2005, and generally requires that all “influential scientific information” and “highly influential scientific information” disseminated on or after that date be peer reviewed. Because the information used to evaluate this petition may be considered “influential scientific information,” we solicit the names of recognized experts in the field that could take part in the peer review process for this status review (seeADDRESSES). Independent peer reviewers will be selected from the academic and scientific community, tribal and other Native American groups, Federal and state agencies, the private sector, and public interest groups.

A complete list of references is available upon request from the Southeast Regional Office, Protected Resource Division (seeADDRESSES).

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

Background

The Atlantic commercial shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The 2006 Consolidated HMS Fishery Management Plan (FMP) and its amendments under the Magnuson-Stevens Act are implemented by regulations at 50 CFR part 635. For the Atlantic commercial shark fisheries, the 2006 Consolidated HMS FMP and its amendments established, among other things, commercial quotas for species and species complexes, accounting measures for under- and overharvests for the shark fisheries, and adaptive management measures such as flexible opening dates for the fishing season and inseason adjustments to shark trip limits, which provide flexibility in management in the furtherance of equitable fishing opportunities, to the extent practicable, for commercial shark fishermen in all regions and areas.

This proposed rule would adjust the quota levels for the different shark species and complexes for the 2013 Atlantic commercial shark fishing season based on over- and underharvests that occurred during the 2011 and 2012 fishing seasons, consistent with existing regulations at § 635.27(b)(1)(i). Over- and underharvests are accounted for in the same region and/or fishery in which they occurred the following year, depending on stock status. Shark stocks that are overfished, have overfishing occurring, or that have an unknown stock status, or complexes that contain one or more stocks that are overfished, have overfishing occurring, or that have an unknown stock status, will not have underharvest carried over in the following year. Stocks that are not overfished and have no overfishing occurring will have any underharvest carried over in the following year, up to 50 percent of the base quota.

Although there were underharvests in the sandbar shark, non-sandbar large coastal shark, blacknose shark, blue shark, and pelagic shark (other than porbeagle or blue sharks) fisheries, those underharvests cannot be carried over to the 2013 fishing season because those stocks have been determined to be overfished, overfished with overfishing occurring, or have an unknown status. Porbeagle sharks have been declared to be overfished with overfishing occurring, and the quota was overharvested in 2011 and 2012. Thus, for all of these species, the 2013 proposed quota would be equal to the appropriate base quota minus any overharvests that occurred in the 2011 and 2012 fishing seasons.

However, since the non-blacknose small coastal shark complex has been determined not to be overfished and has no overfishing occurring, the underharvest (up to 50 percent of the base quota) from the 2012 fishing season can be applied to the 2013 quota.

This rule proposes adjustments to the base commercial quotas due to over- and underharvests that occurred in 2011 and 2012, where allowable, taking into consideration the stock status as required under existing regulations.

The quotas in this proposed rule are based on dealer reports received as of August 22, 2012. In the final rule, we will adjust the quotas based on dealer reports received as of October 31, 2012. Thus, all of the 2013 proposed quotas for the respective shark complexes/species are subject to further adjustment for any overharvests reflected after considering the October 31 dealer reports. All dealer reports that are received after October 31, 2012, will be used to adjust the 2014 quotas, as appropriate. In addition, the 5-year quota reduction to account for overharvest of the non-sandbar large coastal shark and sandbar shark fisheries established in Amendment 2 to the 2006 Consolidated HMS FMP ends on December 31, 2012, and quotas will increase to annual base levels established in Amendment 2 to the 2006 Consolidated HMS FMP. We also propose to adjust the non-blacknose small coastal shark quota due to underharvest from the 2012 fishing season, and to adjust the porbeagle shark quota to account for overharvest from the 2011 and 2012 fishing season.

Due to the small quota and difficulties in accurately monitoring such a small quota, we propose to keep the porbeagle shark fishery closed in 2013. The porbeagle shark fishery landings in 2012 exceeded the quota by 259 percent with the addition of late reports in December 2011, which must be accounted for in 2013. The combined overharvest in 2011 and 2012 for the porbeagle shark fishery would result in a very small quota (0.5 mt dw; 1,001 lb dw). The proposed 2013 quotas by species and species group are summarized in Table 1.

The 2013 proposed commercial quotas within the shark research fishery are 50.0 mt dw (110,230 lb dw) for non-sandbar large coastal sharks and 116.6 mt dw (257,056 lb dw) for sandbar sharks. Since the 5-year quota reduction to account for overharvest of the non-sandbar large coastal shark and sandbar shark fisheries ends on December 31, 2012, the 2013 proposed quotas increase to the levels established in Amendment 2 to the 2006 Consolidated HMS FMP.

Within the shark research fishery, as of August 22, 2012, preliminary reported landings of non-sandbar large coastal sharks were at 24 percent (9.1 mt dw) of their 2012 quota levels, and sandbar shark reported landings were at 28 percent (24.7 mt dw) of their 2012 quota levels. Reported landings have not exceeded the 2012 quota to date. Therefore, based on preliminary estimates and consistent with the current regulations at § 635.27(b)(1)(vii), we are not proposing to adjust 2013 quotas in the shark research fishery based on any overharvests.

Under § 635.27(b)(1)(i), because sandbar sharks and scalloped hammerhead sharks within the non-sandbar large coastal shark complex have been determined to be either overfished or overfished with overfishing occurring, underharvests for these species and/or complexes would not be applied to the 2013 quotas. Therefore, we propose 2013 quotas for non-sandbar large coastal sharks and sandbar sharks within the shark research fishery of 50.0 mt dw (110,230 lb dw) and 116.6 mt dw (257,056 lb dw), respectively. NMFS has analyzed the environmental effects of this base quota in the Environmental Impact Statement for Amendment 2. This base quota of 116.6 mt dw was implemented in Amendment 2, but the quota was reduced to 87.9 mt dw for 5 years to account for large overharvest in 2007.

The 2013 proposed quota for non-sandbar large coastal sharks in the Gulf of Mexico region is 439.5 mt dw (968,922 lb dw). Since the 5-year quota reduction for overharvest of the non-sandbar large coastal shark fishery ends on December 31, 2012, the 2013 quotas would revert to the levels established in Amendment 2 to the 2006 Consolidated HMS FMP.

As of August 22, 2012, preliminary reported landings for non-sandbar large coastal sharks in the Gulf of Mexico region were at 94 percent (369.8 mt dw) of their 2012 quota levels. Reported landings have not exceeded the 2012 quota to date. Therefore, based on preliminary estimates and consistent with the current regulations at § 635.27(b)(1)(vii), we are not proposing to adjust 2013 quotas in the non-sandbar large coastal sharks in the Gulf of Mexico region, because there have not been any overharvests.

Given the status of scalloped hammerhead sharks within the non-sandbar large coastal shark complex, any underharvests cannot be accounted for pursuant to § 635.27(b)(1)(iii). Therefore, we propose 2013 quotas for non-sandbar large coastal sharks in the Gulf of Mexico region of 439.5 mt dw (968,922 lb dw), consistent with Amendment 2 levels.

The 2013 proposed quota for non-sandbar large coastal sharks in the Atlantic region is 188.3 mt dw (415,126 lb dw). Since the 5-year quota reduction for overharvest of the non-sandbar large coastal shark fishery ends on December 31, 2012, the 2013 quotas would increase to the levels established in Amendment 2 to the 2006 Consolidated HMS FMP.

As of August 22, 2012, preliminary reported landings for non-sandbar large coastal sharks in the Atlantic region were at 18 percent (32.9 mt dw) of their 2012 quota levels. To date, reported landings do not exceed the quota. As such, we propose a 2013 commercial non-sandbar large coastal sharks quota in the Atlantic region of 188.3 mt dw (415,126 lb dw).

The 2013 proposed annual commercial quotas for non-blacknose small coastal sharks, blacknose sharks, blue sharks, porbeagle sharks, and pelagic sharks (other than porbeagle or blue sharks) are 332.4 mt dw (732,809 lb dw), 19.9 mt dw (43,872 lb dw), 273 mt dw (601,856 lb dw), 0.5 mt dw (1,001 lb dw), and 488 mt dw (1,075,856 lb dw), respectively.

As of August 22, 2012, preliminary reported landings of non-blacknose small coastal sharks, blacknose sharks, blue sharks, porbeagle sharks, and pelagic sharks (other than porbeagle and blue sharks) were at 40 percent (133.8 mt dw), 55 percent (10.9 mt dw), 3 percent (8.6 mt dw), 259 percent (1.9 mt dw), and 20 percent (99.7 mt dw), of their 2012 quota levels, respectively. As described above, while we may adjust quotas for underharvests only when allowable depending on the stock status, we will adjust quotas for overharvests.

Non-blacknose small coastal sharks have not been declared to be overfished, to have overfishing occurring, or to have an unknown status. Pursuant to § 635.27(b)(1)(i), any underharvests for the non-blacknose small coastal sharks therefore could be applied to the 2013 quotas. During the 2012 fishing season to date, the non-blacknose small coastal shark quota has been underharvested by 110.8 mt dw (244,269 lb dw). Accordingly, we propose to increase the 2013 non-blacknose small coastal shark quota to adjust for anticipated underharvests in 2012 as allowed. The proposed 2013 adjusted base annual quota for non-blacknose small coastal sharks is 332.4 mt dw (732,809 lb dw) (221.6 mt dw annual base quota + 110.8 mt dw 2012 underharvest = 332.4 mt dw 2013 adjusted annual quota).

Porbeagle sharks have been declared to be overfished with overfishing occurring. Pursuant to § 635.27(b)(1)(i), any overharvests of porbeagle sharks would be applied to the 2013 quotas. In the final rule establishing the 2012 quotas, we accounted for an overharvest of porbeagle sharks of 1.0 mt dw (2,163 lb dw) using data that was reported as of October 31, 2011. Between that date and December 31, 2011, porbeagle sharks were overharvested by an additional 227 lb dw (less than 0.1 mt dw). As of August 22, 2012, an additional 1.1 mt dw (2,520 lb dw) has been overharvested above the 2012 porbeagle shark quota. The proposed 2013 adjusted annual commercial porbeagle quota is 0.5 mt dw (1,001 lb dw) (1.7 mt dw annual base quota − < 0.1 mt dw 2011 overharvest − 1.1 mt dw 2012 overharvest = 0.5 mt dw 2012 adjusted annual quota), but we propose to keep the fishery closed in 2013 due to the small quota and difficulties in accurately monitoring such a small quota.

Blacknose sharks and other pelagic species are overfished, have overfishing occurring, or have an unknown status. As of August 22, 2012, the 2012 commercial quota had not been reached or exceeded. Therefore, the 2013 proposed quotas would be the base annual quotas for blacknose sharks, blue sharks, and pelagic sharks (other than blue and porbeagle sharks), or (19.9 mt dw (43,872 lb dw), 273 mt dw (601,856 lb dw), and 488 mt dw (1,075,856 lb dw), respectively.

For each fishery, we considered the seven “Opening Fishing Season Criteria” listed at § 635.27(b)(1)(ii). These include:

(A) The available annual quotas for the current fishing season for the different species/complexes based on any over- and/or underharvests experienced during the previous commercial shark fishing seasons; (B) Estimated season length based on available quota(s) and average weekly catch rates of different species/complexes in the Atlantic and Gulf of Mexico regions from the previous years; (C) Length of the season for the different species/complexes in the previous years and whether fishermen were able to participate in the fishery in those years; (D) Variations in seasonal distribution, abundance, or migratory patterns of the different species/complexes based on scientific and fishery information; (E) Effects of catch rates in one part of a region precluding vessels in another part of that region from having a reasonable opportunity to harvest a portion of the different species/complexes quotas; (F) Effects of the adjustment on accomplishing the objectives of the 2006 Consolidated HMS FMP and its amendments; and/or, (G) Effects of a delayed opening with regard to fishing opportunities in other fisheries.

Thus, we examined the 2011 and 2012 over- and/or underharvests of the different species/complexes to determine the effects of the 2013 proposed quotas on fishermen across regional fishing area. The potential season length and previous catch rates were examined to ensure that equitable fishing opportunities would be provided to fishermen. Lastly, we examined the seasonal variation of the different species/complex and the effects on fishing opportunities.

In addition to these criteria, we also considered other relevant factors, such as general input from the public and potential management measures in Amendment 5 to the 2006 Consolidated HMS FMP before arriving at the proposed opening dates for the 2013 Atlantic shark fisheries.

We propose that the 2013 Atlantic commercial shark fishing season for the non-sandbar large coastal sharks fishery in the Gulf of Mexico and Atlantic, shark research, non-blacknose small coastal sharks, blacknose sharks, blue sharks, and pelagic sharks (other than porbeagle and blue sharks) in the northwestern Atlantic Ocean, including the Gulf of Mexico and the Caribbean Sea, open on or about January 1, 2013, with the publication of the final rule for this action.

In the Gulf of Mexico non-sandbar large coastal shark fishery, opening the fishing season again on or about January 1 would provide, to the extent practicable, equitable opportunities across the fisheries management region as it did for the 2012 fishing season. This opening date is consistent with all the criteria listed in § 635.27(b)(1)(ii), but particularly with the requirement that we consider the length of the season for the different species/complexes in the previous years and whether fishermen were able to participate in the fishery in those years (§ 635.27(b)(1)(ii)(C)).

In the Atlantic region, we delayed the opening of the non-sandbar large coastal shark fishery until July 15 in 2010, 2011, and 2012, in order to allow for more equitably distributed shark fishing opportunities, as intended byAmendment 2 to the 2006 Consolidated HMS FMP. In 2012, we proposed to open the Atlantic non-sandbar large coastal shark fishery on the effective date of the final rule implementing the Atlantic HMS Electronic Dealer Reporting System (76 FR 37750) or July 15, 2012, whichever occurred first. Because the Atlantic HMS Electronic Dealer Reporting System was delayed, the fishery opened on July 15. The HMS Electronic Dealer Reporting System final rule has now published and the system will be implemented on January 1, 2013 (77 FR 47303). As such, we are proposing to use the inseason trip limit adjustment criteria in the regulations per § 635.24(a)(8) for the first time. The inseason trip limit adjustment criteria would allow more equitable fishing opportunities across the fishery. The proposed opening date of January 1 would allow fishermen to harvest some of the 2013 quota at the beginning of the year, when sharks are more prevalent in the South Atlantic area. If it appears that the quota will be taken too quickly to allow fishermen throughout the entire region an opportunity to fish, we could reduce the commercial retention limits per while being consistent with § 635.27(b)(1)(ii)(A), (B), (C) and (E). This management measure is consistent with all the inseason trip limit adjustment criteria listed in § 635.24(a)(8), but particularly with the requirement that catch rates in one part of a region not preclude vessels in another part of that region from having a reasonable opportunity to harvest a portion of the relevant quota (§ 635.24(a)(8)(vi)).

If that occurs, we would file with the Office of the Federal Register for publication notification of any inseason adjustments to reduce retention limits to between 0-36 sharks per trip. We could later increase the commercial retention limits per trip, such as on or about July 15, 2013, to provide fishermen in the North Atlantic area an opportunity to retain non-sandbar large coastal sharks when they are prevalent in that area, if warranted considering all relevant factors. Based on the fishing rates in the 2009 fishing season, if we open the fishery earlier than July 15 and do not adjust the commercial retention limits throughout the season, then fishermen in the South Atlantic area would likely catch the entire Atlantic quota before the sharks migrate to the North Atlantic area.

We also propose not to open the porbeagle fishery in 2013. The porbeagle fishery landings in 2012 exceeded the quota by 259 percent with the addition of late reports in December 2011, which must be accounted for in 2013. The combined overharvest in 2011 and 2012 for the porbeagle fishery would result in a very small quota (0.5 mt dw; 1,001 lb dw). Due to the small quota and difficulties in accurately monitoring such a small quota, we propose to keep the fishery closed in 2013. This proposal is based on the availability of the annual quota based on overharvests in the previous fishing seasons (§ 635.27(b)(1)(ii)(A)).

At this time, we would be implementing the proposed quotas based on current regulations. Other future actions, such as the anticipated Amendment 5 to the 2006 Consolidated HMS FMP, which would address several recent shark stock assessments, could affect the quotas implemented in the 2013 shark season rule. Any changes to the quotas would be addressed in any such later Amendment.

All of the shark fisheries, except for porbeagle sharks (which would remain closed the entire year), would remain open until December 31, 2013, or until we determine that the fishing season landings for sandbar shark, non-sandbar large coastal sharks, blacknose sharks, non-blacknose small coastal sharks, blue sharks, or pelagic sharks (other than porbeagle or blue sharks) have reached, or are projected to reach, 80 percent of the available quota. At that time, consistent with § 635.28(b)(1), we will file for publication with the Office of the Federal Register a notice of closure for that shark species group and/or region that will be effective no fewer than 5 days from date of filing. From the effective date and time of the closure until we announce, via a notice in theFederal Register, that additional quota is available, the fishery for the shark species group and, for non-sandbar large coastal sharks, region, would remain closed, even across fishing years, consistent with § 635.28(b)(2).

Comments on this proposed rule may be submitted viahttp://www.regulations.gov,mail, or fax. We solicit comments on this proposed rule by October 28, 2012 (seeDATESandADDRESSES).

Public hearings on this proposed rule are not currently scheduled. If you would like to request a public hearing, please contact Guý DuBeck or Karyl Brewster-Geisz by phone at 301-427-8503.

The NMFS Assistant Administrator has determined that the proposed rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the MSA, and other applicable law, subject to further consideration after public comment.

These proposed specifications are exempt from review under Executive Order 12866.

An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). 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 in the preamble and in theSUMMARYsection of the preamble. The IRFA analysis follows.

In compliance with section 603(b)(1) of the RFA, section 603(b)(1) of the RFA requires that we explain the purpose of the rule. This rule, consistent with the Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and its amendments, is being proposed to adjust the 2013 proposed quotas for non-sandbar large coastal sharks, sandbar sharks, blacknose sharks, non-blacknose small coastal sharks, blue sharks, porbeagle sharks, or pelagic sharks (other than porbeagle or blue sharks) based on any over- and/or underharvests from the previous fishing year. These adjustments are being implemented according to the regulations implementing the 2006 Consolidated HMS FMP and its amendments. Thus, we would expect few, if any, economic impacts to fishermen other than those already analyzed in the 2006 Consolidated HMS FMP and its amendments, based on the quota adjustments. Not opening the porbeagle shark fishery in 2013 is due to the difficulties in accurately monitoring the small quota. This would have beneficial ecological impacts for porbeagle sharks, while the negative economic impacts are described below. An additional purpose is to use implemented management measures to allow inseason adjustments in the trip limits to slow the fishery down during the season, as necessary. This management measure would provide, to the extent practicable, equitable opportunities across the fishing management region while also considering the ecological needs of the species.

Under section 603(b)(2) of the RFA, we must explain the rule's objectives, which are to: (1) Adjust the annual quotas for porbeagle sharks due to overharvests in 2011 and 2012, and for non-blacknose small coastal sharks due to underharvests in 2012; (2) establishthe opening dates for all of the shark fisheries in the Atlantic and Gulf of Mexico regions; and, (3) consider the need to adjust the trip limits inseason for non-sandbar large coastal sharks.

Section 603(b)(3) of the RFA requires Federal agencies to provide an estimate of the number of small entities to which the rule would apply. We consider all HMS permit holders to be small entities because they either had average annual receipts of less than $4.0 million for fish-harvesting, average annual receipts of less than $6.5 million for Charter/headboat, 100 or fewer employees for wholesale dealers, or 500 or fewer employees for seafood processors. These are the Small Business Administration (SBA) size standards for defining a small versus large business entity in this industry.

The commercial shark fisheries are comprised of fishermen who hold shark directed or incidental limited access permits (LAP) and the related industries, including processors, bait houses, and equipment suppliers, all of which we consider to be small entities according to the size standards set by the SBA. The proposed rule would apply to the approximately 213 directed commercial shark permit holders, 265 incidental commercial shark permit holders, and 96 commercial shark dealers as of August 2012.

This proposed rule does not contain any new reporting, recordkeeping, or other compliance requirements (5 U.S.C. 603 (b)(4)). Similarly, this proposed rule would not conflict, duplicate, or overlap with other relevant Federal rules (5 U.S.C. 603(b)(5)). Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements as domestically implemented, domestic laws, and FMPs. These include, but are not limited to, the Magnuson-Stevens Act, the Atlantic Tunas Convention Act, the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act (ESA), the National Environmental Policy Act, the Paperwork Reduction Act, and the Coastal Zone Management Act.

In compliance with section 603(c) of the RFA, each IRFA must also contain a description of any significant alternatives to the proposed rule which would accomplish the stated objectives of applicable statutes and minimize any significant economic impact of the proposed rule on small entities. Additionally, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four general categories of significant alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage of the rule for small entities. In order to meet the objectives of this final rule, consistent with the Magnuson-Stevens Act and the ESA, we cannot exempt small entities or change the reporting requirements only for small entities because all the entities affected are considered small entities. We do not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act.

This rulemaking does not establish management measures to be implemented, but rather implements previously adopted and analyzed measures with adjustments, as specified in Amendment 2 and Amendment 3 to the 2006 Consolidated HMS FMP and the Environmental Assessment (EA) that accompanied the 2011 shark quota specifications rule (75 FR 76302; December 8, 2010). Thus, NMFS proposes to adjust quotas established and analyzed in Amendment 2 and Amendment 3 to the 2006 Consolidated HMS FMP by subtracting the underharvest or adding the overharvest as allowable. Similarly, the ranges of management measures are consistent with the requirements of the Magnuson-Stevens Act that were previously analyzed in the EA with the 2011 shark quota specifications rule. Thus, NMFS has limited flexibility to modify the management measures or quotas in this rule, the impacts of which were analyzed in previous regulatory flexibility analyses.

Based on the 2010 ex-vessel price ($0.67/large coastal shark lb, $0.68/small coastal shark lb, $1.21/pelagic lb, and $13.48/lb for shark fins), fully harvesting the unadjusted 2013 Atlantic shark commercial baseline quotas could result in total fleet revenues of $6,242,548. We propose to keep the porbeagle shark fishery closed in 2013, which results in the total revenue loss of $7,061 (if we kept it open, but reduced it by the overharvests of 2011 and 2012, the net revenue loss in the fishery would amount to $5,175). The upward adjustment due to the underharvests in 2012 non-blacknose small coastal shark fishery would result in a $330,740 gain in revenues. These revenues are similar to the gross revenues analyzed in Amendment 2 and Amendment 3 to the 2006 Consolidated HMS FMP. The IRFAs for those amendments concluded that the economic impacts on these small entities, resulting from rules such as this one that adjust the trip limits inseason through proposed and final rulemaking, are expected to be minimal. Amendments 2 and 3 to the 2006 Consolidated HMS FMP and the EA with the 2011 shark quota specifications rule assumed we would be conducting annual rulemakings and considered the IRFAs in the economic and other analyses at the time.

For this rule, we reviewed the criteria at § 635.27(b)(ii) to determine when opening each fishery would provide equitable opportunities for fishermen while also considering the ecological needs of the different species. The opening of the fishing season could vary depending upon the available annual quota, catch rates, and number of fishing participants during the year. For the 2013 fishing season, we are proposing to open the non-sandbar large coastal shark fishery in the Gulf of Mexico and Atlantic, shark research, blacknose shark, non-blacknose small coastal shark, and pelagic shark fisheries on the effective date of the final rule for this action (expected to be on or about January 1). The direct and indirect economic impacts would be neutral on a short- and long-term basis, because we are proposing not to change the opening dates of these fisheries from the status quo.

Opening the non-sandbar large coastal sharks in the Atlantic region on the effective date of the final rule for this action (expected to be on or about January 1) would result in short-term, direct, moderate, beneficial economic impacts as fishermen and dealers in the south Atlantic would be able to fish for non-sandbar large coastal sharks starting on or about January. South Atlantic fishermen would be able to fish earlier in the 2013 fishing season compared to the 2010, 2011, and 2012 fishing seasons, which did not start until July 15. South Atlantic fishermen commented during the public comment period for the 2011 and 2012 shark specification rulemaking that they felt that opening the fishery in July was not fair to them because, by July, the sharks have migrated north and are no longer available. With the implementation of the HMS electronic reporting system in 2013, we should be able to monitor the quota on a real-time basis. This ability, along with the inseason adjustment criteria in § 635.24(a)(8), should allow us the flexibility to further provideequitable fishing opportunities for fishermen across all regions, to the extent practicable. Depending on how quickly the quota is being harvested, we could reduce the retention limits to 0-36 sharks per trip to ensure that fishermen farther north have sufficient quota for a fishery later in the 2013 fishing season. The direct impacts to shark fishermen in the Atlantic region of reducing the trip limit will depend on the needed reduction in the trip limit and the timing of such a reduction. Therefore, such a reduction in the trip limit is only anticipated to have minor adverse direct economic impacts to fishermen in the short-term; long-term impacts are not anticipated as these reductions would not be permanent.

In the North Atlantic area, a potential January 1 and July 15 opening for the non-sandbar large coastal sharks would have direct, minor, beneficial economic impacts in the short-term for fishermen as they would have access to the non-sandbar large coastal shark quota in 2013. Fishermen in the North Atlantic area did not have or had limited access to the non-sandbar large coastal shark quota in 2009. There would be indirect, minor, beneficial economic impacts in the short- and long-term for shark dealers and other entities that deal with shark products in this region as they would also have access to non-sandbar large coastal shark products in 2013. Thus, allowing the split season in 2013 would cause neutral cumulative economic impacts, since it would allow for a more equitable distribution of the quotas among constituents in this region, which was the original intent of Amendment 2.

We also propose to keep the porbeagle fishery closed in 2013. This action would cause direct and indirect moderate, adverse, short-term economic impacts on shark fishermen and other entities that rely on porbeagle sharks. The long-term economic impacts would be neutral if we open the porbeagle shark fishery in 2014 because the fishery would open in 2014 under the annual base quota of 1.7 mt dw.