Federal Register Vol. 82, No.165,

On May 15, 2017, OPM issued a proposed rule (82 FR 22298) to define—

• Brown County, WI, as an area of application county to the Lake, IL, NAF FWS wage area;

• Forsyth County, NC, as an area of application to the Cumberland, NC, NAF FWS wage area; and

• Mecklenburg County, NC, as an area of application to the Richland, SC, NAF FWS wage area.

FPRAC, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, reviewed and recommended these changes by consensus. These changes will apply on the first day of the first applicable pay period beginning on or after 30 days following publication of the final regulations.

The proposed rule had a 30-day comment period, during which OPM received no comments.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.

This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

Accordingly, OPM is amending 5 CFR part 532 as follows:

Discussion

We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and Model A340-500 and -600 series airplanes. The SNPRM published in the Federal Register on May 19, 2017 (82 FR 22907) (“the SNPRM”). We preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on June 21, 2016 (81 FR 40201) (“the NPRM”). The NPRM proposed to require a one-time eddy current conductivity measurement of certain cabin and cargo compartment structural parts to determine if an incorrect aluminum alloy was used, and replacement of any affected part with a serviceable part. The NPRM was prompted by a quality control review on the final assembly line, which determined that the wrong aluminum alloy was used to manufacture several structural parts. The SNPRM proposed to require new inspection locations for certain airplanes, and removing incorrect part numbers. We are issuing this AD to detect and replace structural parts made of an incorrect aluminum alloy. This condition could result in reduced structural integrity of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0021, dated February 8, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and Model A340-500 and -600 series airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7264.

We gave the public the opportunity to participate in developing this AD. We received no comments on the SNPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed, except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the SNPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the SNPRM.

Airbus has issued the following service information:

• Airbus Service Bulletin A330-53-3261, Revision 01, including Appendixes 01, 02, and 03, dated November 10, 2016.

• Airbus Service Bulletin A330-53-3262, including Appendixes 01 and 02, dated June 23, 2015.

• Airbus Service Bulletin A340-53-5072, including Appendixes 01 and 02, dated June 23, 2015.

This service information describes procedures for a one-time eddy current conductivity measurement of certain cabin and cargo compartment structural parts to determine if an incorrect aluminum alloy was used, and replacement of any affected part with a serviceable part. These documents are distinct because they apply to different parts on different airplanes. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 37 airplanes of U.S. registry.

We also estimate that it takes about 17 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $53,465, or $1,445 per product.

In addition, we estimate that any on-condition repairs take about 45 work-hours and will require parts costing $0, for a cost of $3,825 per product. We have no way of determining the number of aircraft that might need these repairs.

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.

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.

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will 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 AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

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 amends 14 CFR part 39 as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 767 airplanes. The NPRM published in the Federal Register on May 16, 2017 (82 FR 22443). The NPRM was prompted by a report of cracking of the vertical stiffener in the nose wheel well. The NPRM proposed to require repetitive inspections of the nose wheel well bulkhead stiffener for any cracking, and corrective actions if necessary. We are issuing this AD to detect and correct such cracking, which could adversely affect the structural integrity of the airplane and possibly lead to cabin depressurization or a nose landing gear collapse.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment. United Airlines and The Boeing Company supported the NPRM.

Aviation Partners Boeing stated that accomplishing the supplemental type certificate (STC) ST01920SE does not affect the actions specified in the NPRM.

We concur with the commenter. We have redesignated paragraph (c) of the proposed AD (82 FR 22443, May 16, 2017) as paragraph (c)(1) and added paragraph (c)(2) to this AD to state that installation of STC ST01920SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01920SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule with the change described previously and minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

We reviewed Boeing Alert Service Bulletin 767-53A0275, dated January 5, 2017. The service information describes procedures for a detailed inspection and a medium frequency eddy current inspection of the nose wheel well bulkhead stiffener for any cracking, and corrective actions if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 144 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We estimate the following costs to do certain repairs that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need this repair:

We have received no definitive data that would enable us to provide cost estimates for other repairs specified in this AD.

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.

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

This AD will not have federalism implications under Executive Order 13132. This AD will 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 AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under 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 amends 14 CFR part 39 as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2013-19-09, Amendment 39-17591 (78 FR 60667, October 2, 2013) (“AD 2013-19-09”), and AD 2014-25-51, Amendment 39-18067 (80 FR 3153, January 22, 2015) (“AD 2014-25-51”). AD 2013-19-09 and AD 2014-25-51 applied to all Airbus Model A318, A319, A320, and A321 series airplanes. The NPRM published in the Federal Register on December 28, 2016 (81 FR 95531). The NPRM was prompted by a report indicating that an Airbus Model A321 airplane encountered a blockage of two AOA probes during climb, leading to activation of the Alpha Prot while the Mach number increased. The NPRM proposed to continue to require replacing AOA sensor conic plates with AOA sensor flat plates and revising the AFM to advise the flight crew of emergency procedures for abnormal Alpha Prot. The NPRM also proposed to continue to require replacing certain AOA sensors; and doing a detailed inspection and a functional heating test for discrepancies on certain AOA sensors, and replacing the affected AOA sensors. We are issuing this AD to prevent a pitch down order due to abnormal activation of the Alpha Prot. An abnormal Alpha Prot, if not corrected, could result in loss of control of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0135, dated July 8, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318, A319, A320, and A321 series airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9518.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment. Air Line Pilots Association, International stated that it supported the NPRM.

Airbus and Virgin America requested that the NPRM be revised to allow airplanes that have utilized FAA Alternative Methods of Compliance (AMOC) ANM-116-13-273R1 for probes having P/N C16291AB to be in compliance with the proposed requirements. Virgin America and Airbus stated that the language in paragraphs (l), (m)(2), (n), and (q) of the proposed AD conflict with the language specified in FAA AMOC ANM-116-13-273R1.

We agree to revise this AD to address the commenters' request. FAA AMOC ANM-116-13-273R1 is limited to certain serial numbers that have passed the inspection and test. We have revised paragraphs (l), (m)(2), (n), and (q) of this AD to clarify the exception in FAA AMOC ANM-116-13-273R1.

Airbus requested that the latest service information be used in the AD and credit given for previous actions done before the effective date of this AD.

We agree to incorporate the latest service information in this AD. Accordingly, we have revised paragraph (g)(1) of this AD; the introductory text to paragraph (k) of this AD, and paragraphs (l)(1), (m), and (n) of this AD. For Airbus Service Bulletin A320-34-1415, Revision 04, dated July 30, 2015; Airbus Service Bulletin A320-34-1610, Revision 01, dated July 30, 2015; and Airbus Service Bulletin A320-34-1564, Revision 01, dated August 26, 2013; the changes are minor and do not add work to this AD. Thales Service Bulletin C16291A-34-007, Revision 04, dated October 11, 2012, describes procedures for inspecting, re-identifying, and testing certain AOA sensors, and does not add work to this AD. We have also revised paragraph (q) of this AD to give credit for previous actions done before the effective date of this AD using earlier versions of service information.

Virgin America requested that the FAA include Airbus Service Bulletin A320-34-1452, dated January 29, 2010 (as specified in paragraph (g) of AD 2013-06-03 to inspect and replace the affected probe P/N C16291AA with P/N C16291AB), in paragraph (q), “Credit for Previous Actions,” of the proposed AD. Virgin America stated that these actions have resulted in installing compliant C16291AB probes in the affected positions prior to the effective date of the AD.

We disagree with Virgin America with allowing use of Airbus Service Bulletin A320-34-1452, dated January 29, 2010, for accomplishment of the installation of the probe P/N C16291AB. There are certain probe P/Ns C16291AB having a serial number specified in Thales Service Bulletin C16291A-34-007, Revision 04, dated October 11, 2012, and these probes may not be installed unless they have been inspected and re-identified, and have passed a functional test, in accordance with the following service information:

• Thales Service Bulletin C16291A-34-007, Revision 04, dated October 11, 2012.

• Thales Service Bulletin C16291A-34-007, Revision 03, dated April 10, 2012.

• Thales Service Bulletin C16291A-34-007, Revision 02, dated December 16, 2011.

• Thales Service Bulletin C16291A-34-007, Revision 01, dated December 03, 2009.

We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

We have reviewed the following Airbus service information:

• Airbus Service Bulletin A320-34-1415, Revision 04, dated July 30, 2015. This service information describes procedures for performing a detailed inspection and a functional heating test for discrepancies on certain AOA sensors, and replacing the affected AOA sensors.

• Airbus Service Bulletin A320-34-1444, Revision 01, dated March 17, 2011. This service information describes procedures for replacing certain SEXTANT/THOMSON AOA sensors.

• Airbus Service Bulletin A320-34-1564, Revision 01, dated August 26, 2013. This service information describes procedures for installing AOA sensor plates having a certain part number.

• Airbus Service Bulletin A320-34-1610, Revision 01, dated July 30, 2015. This service information describes procedures for replacing certain UTAS AOA sensors.

We have reviewed the following Thales service information, which describes procedures for inspecting, re-identifying, and testing certain AOA sensors. These documents are distinct due to editorial revisions.

• Thales Service Bulletin C16291A-34-007, Revision 04, dated October 11, 2012.

• Thales Service Bulletin C16291A-34-007, Revision 03, dated April 10, 2012.

• Thales Service Bulletin C16291A-34-007, Revision 02, dated December 16, 2011.

• Thales Service Bulletin C16291A-34-007, Revision 01, dated December 03, 2009.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 959 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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.

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will 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 AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

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 amends 14 CFR part 39 as follows:

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2017-0652; Directorate Identifier 2017-NE-18-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2017-0088, dated May 16, 2017 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0652.

RR has issued Alert Non-Modification Service Bulletin (NMSB) Trent XWB 72-AJ738, dated April 11, 2017. The NMSB describes procedures to inspect the IP turbine stage 2 locking plates. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of EASA, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This AD requires inspection of the IP turbine stage 2 locking plates.

No domestic operators use this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

We estimate that this AD affects 0 engine installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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.

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will 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 AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, 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 amends 14 CFR part 39 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A310-203, -221, -222, -304, -322, -324, and -325 airplanes. The NPRM published in the Federal Register on May 19, 2017 (82 FR 22904) (“the NPRM”). The NPRM was prompted by an evaluation by the design approval holder indicating that the wing bottom skin at the MLG reinforcing plate is subject to WFD. The NPRM proposed to require a modification of the wing bottom skin at the MLG reinforcing plate. We are issuing this AD to prevent multi-site damage in the bottom skin at the MLG reinforcing plate, which could result in reduced structural integrity of the wing.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2016-0170, dated August 19, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A310-203, -221, -222, -304, -322, -324, and -325 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0472.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

Airbus has issued Service Bulletin A310-57-2104, dated December 15, 2015. This service information describes procedures for modification of the left-hand and right-hand wing bottom skin at the MLG reinforcing plate, including related investigative actions and applicable corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 8 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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.

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will 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 AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

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 amends 14 CFR part 39 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model CL-600-2E25 (Regional Jet Series 1000) airplanes. The NPRM published in the Federal Register on June 2, 2017 (82 FR 25545) (“the NPRM”). The NPRM was prompted by reports of failures of the landing gear alternate-extension system (AES). The NPRM proposed to require replacement of certain nose landing gear and main landing gear electro-mechanical actuators. We are issuing this AD to prevent failure of the landing gear AES and consequent landing with some or all of the landing gear not extended.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2017-08, dated February 22, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model CL-600-2E25 (Regional Jet Series 1000) airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0512.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

Bombardier, Inc., has issued Service Bulletin 670BA-32-047, Revision A, dated December 5, 2016. The service information describes procedures for replacing certain nose landing gear and main landing gear electro-mechanical actuators. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD will affect 39 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.

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.

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will 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 AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

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 amends 14 CFR part 39 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Saab AB, Saab Aeronautics Model 340A (SAAB/SF340A) airplanes. The NPRM published in the Federal Register on May 22, 2017 (82 FR 23158) (“the NPRM”).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2016-0234, dated November 24, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for Saab AB, Saab Aeronautics Model 340A (SAAB/SF340A) airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0479.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We reviewed Saab Service Bulletin 340-33-058, Revision 01, dated October 21, 2016. The service information describes procedures for replacing any circuit breaker having part number (P/N) MS3320-10 installed at position 2LJ (L25) and position 4LJ (L26) with a circuit breaker having P/N MS3320-7-5. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 19 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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.

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will 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 AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

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 amends 14 CFR part 39 as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model BD-100-1A10 airplanes. The NPRM published in the Federal Register on May 19, 2017 (82 FR 22913) (“the NPRM”). The NPRM was prompted by reports of low clearance in the aft equipment bay between APU generator power cables and a hydraulic line, which can cause damage to wire insulation. The NPRM proposed to require an inspection of the APU generator power cables and the adjacent hydraulic line for damage, and repair, if necessary; and modification of the APU generator power cable installation. We are issuing this AD to prevent electrical arcing from power cables, which could cause a fire in the aft equipment bay.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2016-28, dated September 15, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model BD-100-1A10 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0481.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We reviewed Bombardier Service Bulletin 100-24-28, dated July 27, 2016; and Bombardier Service Bulletin 350-24-003, dated July 27, 2016. This service information describes procedures for the inspection of the APU generator power cables and adjacent hydraulic line for damage, and repair, if necessary; and modification of the APU generator power cable installation. These documents are distinct since they apply to different airplane configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 162 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

According to the manufacturer, all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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.

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will 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 AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

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 amends 14 CFR part 39 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace extending upward from 700 feet above the surface at Oskaloosa Municipal Airport, Oskaloosa, IA, to support IFR operations in standard instrument approach procedures at the airport.

The FAA published in the Federal Register (82 FR 24271, May 26, 2017) Docket No. FAA-2017-0296 a notice of proposed rulemaking (NPRM) to modify Class E airspace extending upward from 700 feet above the surface at Oskaloosa Municipal Airport, Oskaloosa, IA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Oskaloosa Municipal Airport, Oskaloosa, IA, to accommodate new standard instrument approach procedures for IFR operations at the airport. The segment within 2.6 miles each side of the 018° bearing from the Oskaloosa NDB extending from the 6.4-mile radius to 7 miles north of the NDB is removed due to the decommissioning of the NDB and cancellation of the NDB approach procedure. This action enhances the safety and management of the standard instrument approach procedures for IFR operations at the airport.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace extending upward from 700 feet above the surface at Dexter B. Florence Memorial Field Airport, Arkadelphia, AR, in support of standard instrument approach procedures for IFR operations at the airport.

On April 20, 2017, the FAA published in the Federal Register (82 FR 18600) Docket No. FAA-2017-0182, a notice of proposed rulemaking (NPRM) to modify Class E airspace extending upward from 700 feet above the surface at Dexter B. Florence Memorial Field Airport, Arkadelphia, AR. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface within a 6.6-mile radius to 6.5 miles and removing the 5.2-mile wide segment (2.6 miles each side of the 222° bearing) from the Arkadelphia RBN extending from the 6.6-mile radius to 10.7 miles southwest of the Dexter B. Florence Memorial Field Airport (updated in the legal description from Arkadelphia Municipal Airport).

Airspace reconfiguration is necessary due to the decommissioning and cancellation of the Arkadelphia NDB and NDB approaches, which would enhance the safety and management of the standard instrument approach procedures for IFR operations at the airport.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it supports standard instrument approach procedures for IFR operations at the airport.

The FAA published a notice of proposed rulemaking in the Federal Register (FR 82 16140, April 3, 2017), Docket No. FAA-2017-0165, to modify Class E airspace extending upward from 700 feet above the surface at West Plains Regional Airport, West Plains, MO. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received in support of the proposal.

Except for editorial changes, this rule remains the same from the NPRM.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile (from a 6.9-mile) radius of West Plains Regional Airport, West Plains, MO, and removes the segment extending 10 miles south from the Hutton VOR/DME due to the decommissioning of the VOR, and cancellation of the VOR approach. The airport name is changed from West Plains Municipal Airport to West Plains Regional Airport. This action enhances the safety and management of the standard instrument approach procedures for IFR operations at the airport.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the airspace description of Class E airspace extending upward from 700 feet or more above the surface at Mason Jewett Field, Mason, MI.

The FAA published in the Federal Register (82 FR 19007, April 25, 2017) a notice of proposed rulemaking to remove Class E airspace at Skyway Estates Airport, Eaton Rapids, MI, as standard instrument approach procedures have been cancelled and controlled airspace is no longer required. The exclusionary language referencing Eaton Rapids, MI, is being removed from the airspace description for Mason Jewett Field, Mason, MI. This is an administrative change to bring the airspace description into compliance with FAA Order 7400.2L.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14, Code of Federal Regulations (14 CFR) part 71 by removing the exclusionary language that reads “excluding that airspace within the Eaton Rapids, MI, Class E airspace area” from the regulatory text of the Class E airspace extending upward from 700 feet or more above the surface at Mason Jewett Field, Mason, MI.

Section 553(b)(3)(B) of the Administrative Procedures Act (5 U.S.C.) authorizes agencies to dispense with notice and comment procedure when the agency for “good cause” finds that these procedures are “impracticable, unnecessary, or contrary to the public interest.” This is an administrative change amending the description for Mason Jewett Field, Mason, MI, by removing the exclusionary language from the description and does not affect the boundaries, or operating requirements of the airspace; therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace extending upward from 700 feet above the surface at Pauls Valley Municipal Airport, Pauls Valley, OK, in support of standard instrument approach procedures for IFR operations at the airport.

The FAA published in the Federal Register (82 FR 17778 April 13, 2017) Docket No. FAA-2017-0184, a notice of proposed rulemaking (NPRM) to modify Class E airspace extending upward from 700 feet above the surface at Pauls Valley Municipal Airport, Pauls Valley, OK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. Subsequent to publication, the FAA found that the title for Class E airspace in paragraph 6005 of FAA Order 7400.11A was incomplete, and is corrected in this rule. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Pauls Valley Municipal Airport, Pauls Valley, OK. The segment 2.6 miles each side of the 169° bearing from the Pauls Valley NDB extending from the 6.6-mile radius to 7.6 miles south of the airport is removed due to the decommissioning of the Pauls Valley NDB, and cancellation of the NDB approach. This action enhances the safety and management of the standard instrument approach procedures for IFR operations at the airport.

Also, the title for paragraph 6005, as published in FAA Order 7400.11A, is corrected from “Class E Airspace Areas” to “Class E Airspace Areas Extending Upward from 700 feet or More Above the Surface of the Earth”.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The Coast Guard will enforce Special Local Regulations for Olympia Harbor Days Tug Boat Races, Budd Inlet, WA in 33 CFR 100.1309 on September 3, 2017, from 11 a.m. until 5 p.m.

The following area is specified as a race area: All waters of Budd Inlet, WA the width of the navigation channel south of a line connecting the following points: 47°05.530′ N.,122°55.844′ W. and 47°05.528′ N., 122°55.680′ W. until reaching the northernmost end of the navigation channel at a line connecting the following points: 47°05.108′ N., 122°55.799′′′ W. and 47°05.131′ N., 122°55.659′ W. then southeasterly until reaching the southernmost entrance of the navigation channel at a line connecting the following points: 47°3.946′ N., 122°54.577′ W., 47°04.004′ N., 122° 4.471′ W.

Under the provisions of 33 CFR 100.1309, the regulated area shall be closed immediately prior to, during and immediately after the event to all persons and vessels not participating in the event and authorized by the event sponsor. This action is necessary to ensure the safety of participants, spectators and the maritime public. Entry into, transit through, mooring or anchoring within the specified race area is prohibited unless authorized by the Captain of the Port Puget Sound or Designated Representatives. All persons or vessels who desire to enter the race area while it is enforced must obtain permission from the on-scene patrol craft on VHF channel 13.

This notice of enforcement is issued under authority of 33 CFR 100.1309 and 5 U.S.C. 552 (a). In addition to this document in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners. If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

The New York City Department of Transportation, the owner of the bridge, requested a temporary deviation from the normal operating schedule to facilitate application of protective coating to the bridge as well as maintenance of operating machinery. The Hutchinson River Parkway Bridge, across the Hutchinson River, mile 0.9 at New York, New York has a vertical clearance of 30 feet at mean high water and 38 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.793(b).

On May 1, 2017, the Coast Guard published a temporary deviation entitled “Drawbridge Operation Regulation; Hutchinson River, New York, NY” in the Federal Register (82 FR 20257). On July 6, 2017, the Coast Guard published a modified temporary deviation entitled “Drawbridge Operation Regulation; Hutchinson River, New York, NY” in the Federal Register (82 FR 31254). Under that modified temporary deviation, the draw of the Hutchinson River Parkway Bridge would remain closed to navigation for a period not to exceed 14 days; the draw would then open for vessels in accordance with established operating regulations for a period not to exceed 7 days, after which the cycle would repeat. Between September 1, 2017 and September 29, 2017, the draw would remain closed to navigation for a period not to exceed 7 days; the draw would then open for vessels in accordance with established operation regulations for another 7 days, after which the cycle would repeat.

In the interest of expediting work efforts and closing the project out this year, the New York City Department of Transportation has requested that between August 18, 2017 and September 29, 2017 the draw of the Hutchinson River Parkway Bridge remain closed to navigation for a period not to exceed 14 days; the draw will then open for vessels in accordance with established operating regulations for a period not to exceed 7 days, after which the cycle will repeat.

Vessels that can pass under the bridge without an opening may do so at all times. The bridge will not be able to open for emergencies. There is no alternate route for vessels to pass.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transit to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Virginia Department of Transportation, owner and operator of the I-64 (High Rise) Bridge across the Atlantic Intracoastal Waterway, Southern Branch of the Elizabeth River, mile 7.1, at Chesapeake, VA, has requested a temporary deviation from the current operating regulation set out in 33 CFR 117.997(e), to facilitate rigging equipment into the bascule pits.

Under this temporary deviation, the bridge will remain in the closed-to-navigation position from 4 a.m. through 5:30 a.m. on August 27, 2017. The drawbridge has two spans, each with double-leaf bascule draws, and both spans have a vertical clearance in the closed-to-navigation position of 65 feet above mean high water.

The Atlantic Intracoastal Waterway, Southern Branch of the Elizabeth River is used by a verity of vessels including recreational vessels, tug and barge traffic, small fishing vessels, and small commercial vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.

The channel will be closed to all traffic from 4 a.m. through 4:30 a.m. and from 5 a.m. through 5:30 a.m. on August 27, 2017. Vessels able to pass through the bridge in the closed position from 4:30 a.m. through 5 a.m. may do so. The bridge spans will not be able to open in case of an emergency and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local Notice and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

On July 14, 1993, VA published a final rule in the Federal Register, 58 FR 37857-37861, amending its manufactured home loan guaranty regulations to comply with certain provisions of the Veterans' Home Loan Program Improvements and Property Rehabilitation Act of 1987. Public Law 100-198, 101 Stat. 1315. VA amended 38 CFR 36.4204 by redesignating certain paragraphs within that section. 58 FR 37857-37859. These amendments effectually created two paragraph (d) designations in § 36.4204. See 38 CFR 36.4204. This document corrects that final rule. This document also corrects a minor punctuation error occurring in the newly redesignated paragraph (f).

Specifically, VA is correcting § 36.4204 to redesignate paragraphs (e), (f), and (g) as (f), (g), and (h) and redesignate the current second (d) paragraph as new paragraph (e).

For the reasons stated in the preamble, the Department of Veterans Affairs corrects 38 CFR part 36 as set forth below:

In this rulemaking, EPA is approving certain changes related to the District's stationary source emissions monitoring and reporting requirements in Regulation 1.06 1 in the March 22, 2011, and April 20, 2011, SIP revisions. This regulation provides the District with the authority to require emissions monitoring at stationary sources and requires certain sources to maintain emissions records and provide annual emissions statements to the District. It does not impose any emissions limits or control requirements on any emissions source. The March 22, 2011, submission also included changes to Jefferson County Regulation 1.02—Definitions; Regulation 3.01—Ambient Air Quality Standards; Regulation 3.02—Applicability of Ambient Air Quality Standards; Regulation 3.03—Definitions; Regulation 3.04—Ambient Air Quality Standards; and Regulation 3.05—Methods of Measurement. EPA approved these changes, with the exception of the requested addition of certain definitions in Regulation 1.02, on December 6, 2016 (81 FR 87815).2 The March 22, 2011, submission also included changes to Regulation 1.07—Emissions During Startups, Shutdowns, Malfunctions and Emergencies. EPA approved the changes to Regulation 1.07 on June 10, 2014 (79 FR 33101). The April 20, 2011, submission revises only Regulation 1.06.

The March 22, 2011, SIP submission contains a version of Regulation 1.06 adopted by the District on June 21, 2005 (referred to as “Version 7” by the District) and a version of Regulation 1.06 adopted by the District on September 21, 2005 (referred to as “Version 8”). The version currently incorporated into the SIP is referred to as “Version 6” (District effective on December 15, 1993). See 65 FR 53660 (October 23, 2001). Collectively, Versions 7 and 8 change the heading of Regulation 1.06 to “Stationary Source Self-Monitoring, Emissions Inventory Development, and Reporting,” and change aspects of Section 1—“In Stack Self-Monitoring and Reporting” (including a change in the title to “In-Stack Self-Monitoring and Reporting); Section 2—“Ambient Air Monitoring”; and Section 3—“Emissions and Related Data Reporting” (including a change in the title to “Provisions for Section 4 and Section 5 Emissions Data”). The submission adds four new sections: Section 4—“Emissions Data for Criteria Pollutants, HAPs, and Ammonia”; Section 5—“Enhanced Emissions Data for Toxic Air Contaminants”; Section 6—“Certification by a Responsible Official”; and Section 7—“Confidentiality and Open Records Requirements.” The changes to the heading of Regulation 1.06, the changes to Sections 1 and 2, and the addition of Sections 6 and 7 are administrative in nature. The changes to Section 3 modify and add provisions regarding emissions reporting data requirements, methods of emissions calculations, and stationary source emissions statements, and remove outdated reporting dates; the addition of Section 4 details requirements for submitting emissions statements on an annual basis for particulate matter, sulfur dioxide, carbon monoxide, nitrogen dioxide, lead, ozone precursor emissions of volatile organic compounds and oxides of nitrogen, ammonia, and hazardous air pollutants; and Section 5 contains requirements for enhanced emissions statements for listed “toxic air contaminants.” Because the reporting of toxic air contaminants is not related to the National Ambient Air Quality Standards (NAAQS) for the criteria pollutants, EPA is not acting on Section 5.3 EPA is approving the changes to Regulation 1.06 contained in the March 22, 2011, SIP revision, with the exception of Section 5 and references to Section 5 located in Section 3, to the extent that these changes are not superseded by the changes in the April 20, 2011, submittal discussed below.

The April 20, 2011, SIP submission contains a version of Regulation 1.06 adopted by the District on January 19, 2011 (referred to as “Version 9” by the District). After acknowledging that the District had sent Versions 7 and 8 to Kentucky for submittal to EPA, the District requests that EPA incorporate Version 9 into the SIP and identifies changes in Regulation 1.06 between Version 8 and Version 9. Version 9 revises Version 8 by changing aspects of Section 1 (including a change in the title to “Stack Monitoring and Reporting”); Section 2 (including a change in title to “Ambient Air Monitoring and Reporting”); Section 3 (including a change in the title to “Requirements for Section 4 and Section 5 Emissions Statements”); Section 4 (including a change in the title to “Emissions Statements for Criteria Pollutants, HAPs, and Ammonia”); Section 5 (including a change to the title to “Emissions Statements for Toxic Air Contaminants”); and Section 6. Version 9 also eliminates Section 7. The submitted changes clarify and streamline the monitoring, recordkeeping, and reporting requirements for stationary sources by deleting and combining redundant and outdated provisions. The changes to Section 4 also modify the emissions threshold for sources to submit annual emissions statements to the District. For the reasons discussed above, EPA is not acting on Section 5 or on the references to Section 5 located in Section 3.

EPA has determined that the changes to Regulation 1.06 in the March 22, 2011, and April 20, 2011, SIP submissions are consistent with the CAA. The text of the regulation in the SIP will reflect Version 9, with the exception of Section 5 and any references to Section 5 located in Section 3.

In a notice of proposed rulemaking (NPRM) published on June 29, 2017 (82 FR 29467), EPA proposed to approve the changes to Regulation 1.06 in the March 22, 2011, and April 20, 2011, SIP submissions as described above. The rationale for EPA's actions are further explained in the NPRM. Comments on the proposed rulemaking were due on or before July 31, 2017. EPA received no adverse comment on the proposed action.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Jefferson County Regulation 1.06—Stationary Source Self-Monitoring, Emissions Inventory Development, and Reporting, District effective on January 19, 2011, with the exception of Section 5 and any references to Section 5 located in Section 3. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.4

EPA is taking final action to approve Kentucky's March 22, 2011, and April 20, 2011, SIP revisions as discussed in Section II, above. The text of Jefferson County Regulation 1.06—Stationary Source Self-Monitoring, Emissions Inventory Development, and Reporting in the SIP will reflect the version of the rule effective on January 19, 2011 (Version 9) with the exception of changes to Section 5 and any references to Section 5 located in Section 3.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 27, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

I. Background

On April 18, 2017 (73 FR 18272), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA proposed approval of revisions to Virginia's NSR regulations. On October 16, 2015, the Commonwealth of Virginia through the Virginia Department of Environmental Quality (VADEQ), submitted a formal revision to the Virginia SIP. The SIP revision consists of amendments to the preconstruction permit requirements under VADEQ's major NSR permit program. The revision affects sources subject to VADEQ's Prevention of Significant Deterioration (PSD) program, which applies in areas which are in attainment with (or unclassifiable for) the national ambient air quality standards (NAAQS), as well as affecting sources subject to its nonattainment NSR permit program, applicable in areas not in attainment with the NAAQS. By letter dated March 1, 2017, VADEQ officially withdrew a small and specific portion of the October 16, 2015 submittal from consideration for approval into the Virginia SIP. A copy of the letter has been included in the docket for this action. Further discussion of the withdrawal is provided in section II.A of this notice.

As discussed in the NPR, the October 16, 2015 SIP submittal revision (as amended March 1, 2017) (hereinafter referred to as the 2015 NSR SIP Revision) generally makes the Virginia Administrative Code regulations at 9VAC5 consistent with the federal NSR program at 40 CFR 51.165 and 51.166. The specific changes to 9VAC5: (1) Allow the use of a 10-year lookback period to calculate pre-change emissions for sources other than electric utility steam generating units (EGUs); (2) allow the use of different lookback periods for different regulated NSR pollutants; (3) extend the effective period for plantwide applicability limits (PALs) to 10 years; and, (4) allow replacement units to be treated as existing units, and thus provide the ability to use baseline actual and projected actual emissions when determining applicability. Additionally, there are a number of minor changes which are strictly administrative in nature, consisting of small grammatical revisions, or re-numbering. EPA is approving VADEQ's 2015 NSR SIP Revision as a revision to the Virginia SIP because it meets the Federal requirements of 40 CFR 51.165 and 51.165, and CAA sections 110(a) and 173. Additionally, the revisions are in accordance with section 110(l) of the CAA because they will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement.

NSR applicability is determined by comparing the pre-change emissions of the source(s) affected by the project at hand to the post-change emissions, and determining whether the net increase is “significant.” For new units, pre-change (baseline) emissions are zero. For modified units, sources must calculate baseline actual emissions (BAE). For sources other than EGUs, the Federal PSD and nonattainment NSR regulations provide for the calculation of BAE using “. . . the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 10-year period immediately preceding either the date the owner or operator begins actual construction of the project, or the date a complete permit application is received by the reviewing authority. . .” See 40 CFR 51.165(a)(1)(xxxv)(B) and 51.166(b)(47)(ii). VADEQ's previously approved BAE definitions, codified at 9VAC5-80 sections 1615C (PSD) and 2010C (nonattainment NSR), provided for a 5-year lookback period. The 2015 NSR SIP Revision included VADEQ's revised definitions of BAE to provide for a 10-year lookback period for non EGUs, consistent with the Federal counterpart.

When EPA originally approved the 5-year lookback into VADEQ's nonattainment NSR and PSD programs, limited approval was granted. See 73 FR 62893, 62897 (October 22, 2008). The previous definitions of BAE at 9VAC5-80 sections 1615C and 2010C in VADEQ's June 27, 2008 SIP submittals included the 5-year lookback which EPA found approvable, despite being different from the Federal lookback period. However, VADEQ's regulations at the time in sections 1615C and 2010C also included provisions for the use of a different time period to calculate BAE if it was found to be more representative of normal operations. In our October 22, 2008 final rulemaking notice, EPA raised concerns that this provision could allow for the use of a lookback period that extended beyond the ten years allowed by the Federal programs for PSD and NSR. However, EPA noted that because VADEQ had affirmed that it was not its intention to extend the lookback period beyond ten years, a limited approval was granted. See 73 FR at 62898. In VADEQ's 2015 NSR SIP Revision submittal, the provision allowing for the use of a different lookback period if it was found to be more representative of normal operations was struck from the definition of BAE at 9VAC5-80 section 1615C, making it consistent with the federal counterpart. However, that provision was inadvertently left in the definition of BAE in the version of 9VAC5-80 section 2010C for NSR. By letter dated March 1, 2017, VADEQ officially withdrew from EPA's consideration for inclusion into the SIP the portion of the definition of BAE at section 2010C stating, “The board will allow the use of another time period upon a determination that it is more representative of normal source operation.” Thus, EPA finds the revised definition of BAE at 9VAC5-80 section 2010C (with the provision for a different lookback period stricken) fully approvable as the definition is consistent with Federal CAA requirements permitting up to a 10-year lookback. EPA expects that the sentence withdrawn from the SIP submittal will be removed from the Virginia Code as soon as practicable as Virginia affirmed in its March 1, 2017 letter, and that VADEQ will implement its NSR program consistent with the approved SIP and the Federal requirements for NSR in the interim. With this approval, EPA also removes its prior limited approval for these regulations.

Finally, the Federal requirement for calculating BAE for PSD and NSR provide for the use of different 24-month periods for different regulated NSR pollutants. See 40 CFR 51.165(a)(1)(xxxv)(B)(4) and 51.166(b)(47)(ii)(c). VADEQ has revised the BAE definitions at 9VAC5-80 sections 1615C and 2010C, and 9VAC5-85 section 50 to be consistent with the federal requirements relating to different lookback periods for different regulated NSR pollutants. Because these revisions are consistent with federal definitions in 40 CFR 51.165 and 51.166 for using different 24-month periods for different regulated NSR pollutants, EPA finds these revisions approvable in accordance with CAA requirements.

Federal requirements for PALs include an effective period of ten years for the plantwide permit.1 See 40 CFR sections 51.165(f) et seq and 51.166(w) et seq. The 2015 NSR SIP Revision included amended versions of 9VAC-5-80 sections 1615C, 1865C(1)(f), 2010C, and 2144C(1)(f), as well as 9VAC5-85-50, to provide for a PAL effective period of ten years, consistent with the Federal regulations providing for a ten-year PAL effective period. In addition, the 2015 NSR SIP Revision included amended versions of 9VAC5-80 sections 1865E and 2144E and 9VAC5-85-55 to allow for the use of different 24-month periods for different regulated NSR pollutants when establishing PALs, consistent with the discussion in Section II.A of this notice. EPA finds these amended provisions approvable for the Virginia SIP because these amended regulations for PAL effective period and baseline calculations are consistent with Federal requirements for PALs in 40 CFR 51.165 and 51.166.

Finally, the 2015 NSR SIP Revision submittal added definitions of “replacement unit,” and amends the definitions of “emissions unit,” under 9VAC5-80 sections 1615C and 2010C and 9VAC5-85 section 50. The effect of these revisions is to allow replacement units to be treated as existing units when calculating pre- and post-change emissions for purposes of determining NSR applicability. VADEQ's definitions of “replacement unit” are consistent with their Federal counterparts at 40 CFR 51.165(a)(1)(xxi) and 51.166(b)(32). VADEQ's amended definitions of “emissions unit” are consistent with their Federal counterparts at 40 CFR 51.165(a)(1)(vii) and 51.166(b)(7), as is VADEQ's approach to calculating pre- and post-change emissions for replacement units. Thus, EPA finds these new and amended provisions in the 2015 NSR SIP Revision approvable.

EPA finds the revisions to 9VAC5-80 sections 1615, 1865, 2010, and 2144 and 9 VAC5-85 sections 50 and 55 (including the changes discussed herein as well as the minor administrative changes for grammatical and numbering consistency) consistent with CAA section 110(l). None of the revisions interfere with any applicable requirement concerning attainment of any NAAQS nor interfere with reasonable further progress or any other applicable requirement of the CAA. As described in this rulemaking, the revisions to the Virginia Code in the 2015 NSR SIP Revision are consistent with federal requirements for PSD and NSR in 40 CFR 51.165 and 51.166. Because the revisions are consistent with federal requirements for PSD and NSR permitting programs which permit construction and modifications in accordance with permitting and emission limitation requirements and address definitions for BAE and PAL effective periods, EPA does not expect any interference with the NAAQS from these revisions.

Other specific requirements of the 2015 NSR SIP Revision and the rationale for EPA's proposed action are explained in the NPR and will not be restated here.

EPA received two sets of comments on the April 18, 2017 NPR. A full set of these comments is included in the docket for this final action. A summary of the comments and EPA's responses are included herein.

Comment: The first commenter asserts that EPA “. . . shouldn't have the right to tell States what they can and cannot do,” and further, that the States are capable of “. . . cleaning up the air.”

EPA Response: The CAA establishes a partnership between state and Federal entities for the protection and improvement of the nation's air quality. Under CAA section 109, EPA is required to establish NAAQS for the protection of public health and welfare. Subsequent to the promulgation (or revision) of a NAAQS, states are required by CAA section 110 to adopt and submit to EPA for approval, a SIP which provides for the implementation, maintenance, and enforcement of the NAAQS. Virginia's October 16, 2015 SIP submittal met that requirement. In addition, section 110(a)(2)(C) specifically requires that state plans include a PSD and nonattainment NSR permit program as required in parts C and D of Title I of the Clean Air Act. The division of responsibilities between EPA and the states in the section 110 process was reaffirmed by the U.S. Court of Appeals for the District of Columbia Circuit in the Commonwealth of Virginia, et al., v. EPA, 108 F.3d 1397 (D.C. Cir. 1997). The action being finalized today approving revisions to Virginia regulations which implement the PSD and NSR permit program required by the CAA is consistent with EPA's responsibilities as established by Congress under CAA section 110. EPA is approving the 2015 NSR SIP Revision because it complies with the provisions of the CAA and applicable federal regulations as discussed in the NPR and in this rulemaking action. See section 110(k) of the CAA.

Comment: The second commenter expressed a need for clean air, and urged EPA to “(s)top trying to lower . . .” environmental standards.

EPA Response: EPA thanks the commenter for the concern for environmental issues such as clean air and water. However, the comment is not germane or relevant to the issues in this rulemaking to bring Virginia's NSR program in line with federal NSR requirements in 40 CFR 51.165 and 51.166. EPA has fully explained our reasons for approving VA's revisions to its NSR program in this notice and in the NPR. As discussed in the NPR, none of the revisions interfere with any applicable requirement concerning attainment of any NAAQS nor interfere with reasonable further progress or any other applicable requirement of the CAA. In addition, the comment lacks the required specificity and does not address any specific Virginia regulation upon which we should act differently nor address any action EPA should take differently with regards to Virginia's NSR regulations.

EPA is approving the 2015 NSR SIP Revision as it is in accordance with requirements in the CAA in sections 110 and 173 and with federal regulations at 40 CFR 51.165 and 51.166. Additionally, because the Virginia regulations submitted in the 2015 NSR SIP Revision correct issues related to appropriate BAE and “lookback period” in Virginia's NSR permit program for which EPA previously granted limited approval in 2008, EPA now grants full approval to Virginia's NSR permit program for PSD and NSR permitting.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts . . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its NSR program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the VADEQ regulations regarding definitions and permitting requirements discussed in Section II of this notice. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.2

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 27, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action pertaining to Virginia's preconstruction permitting requirements may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Background

On June 23, 2017 (82 FR 28614), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. In the NPR, EPA proposed approval of amendments to the Code of Maryland Administrative Regulations (COMAR) as a revision to the Maryland SIP. The formal SIP revision (#16-01) was submitted by Maryland on February 22, 2016.

Maryland's SIP revision submittal includes several amended administrative provisions under COMAR 26.11.02 (Permits, Approvals, and Registration) for inclusion in the Maryland SIP. Specifically, 26.11.02.07 (Procedures for Denying, Revoking, or Reopening and Revising a Permit or Approval), 26.11.02.11 (Procedures for Obtaining Permits to Construct Certain Significant Sources), and 26.11.02.12 (Procedures for Obtaining Approvals of PSD Sources and NSR Sources, Certain Permits to Construct, and Case-by-Case MACT Determinations in Accordance with 40 CFR part 63, subpart B) have been revised. Maryland has requested EPA add the amended provisions to the Maryland SIP.

The amended COMAR provisions with State effective dates of December 10, 2015 address MDE's administrative processes for permit issuance and denial. Specifically, the amended COMAR provisions eliminate the “contested case” process and the Office of Administrative Hearings' adjudicatory hearing process for major permits, and substitute direct judicial review. Additionally, the revisions expand standing for challenges to those major permits, and include additional public notice requirements for certain sources. The amended COMAR provisions are described in more detail in the NPR and will not be repeated here.

MDE's February 22, 2016 SIP submittal is consistent with all applicable requirements of the CAA and its implementing regulations. The COMAR public notice requirements meet or exceed the requirements of 40 CFR 51.160 and 51.161. Additionally, the revisions are approvable under section 110 of the CAA (specifically section 110(a)(2)(A) and (C) and section 173 for NSR programs). Under section 110(a)(2)(C), the SIP must include a program to enforce the emission limits and control measures in a state's SIP (as required by section 110(a)(2)(A)) and must also contain a program to regulate modification/construction of sources so that the NAAQS are achieved. Section 173 requires the permits program for nonattainment NSR and requires states to have a SIP with a permit program that ensures sources are required to comply with certain things like stringent emission limitations (i.e., lowest achievable emission rates) and offsets. While having a permits program in the SIP that addresses denial or revocation of permits and addresses permit appeals does not address the required substance of a NSR program, these provisions do make the NSR program enforceable, and therefore EPA finds the SIP submission and revisions to COMAR 26.11.02 approvable under CAA sections 173 and 110(a)(2)(A) and (C). EPA finds the revisions approvable under section 110 and 173 of the CAA and the CAA's implementing regulations. In addition, because none of the revisions to COMAR 26.11.02 will affect emissions of pollutants from sources and are largely administrative in nature, EPA finds that none of the revisions to COMAR 26.11.02 will interfere with reasonable further progress, any NAAQS, or any other applicable requirements in the CAA. Thus, EPA finds the submittal is approvable for section 110(l) of the CAA.

Other specific requirements of MDE's February 22, 2016 SIP submittal and the rationale for EPA's approval of the submittal are explained in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is approving MDE's February 22, 2016 SIP submittal as a revision to the Maryland SIP. Specifically, EPA is approving revised COMAR 26.11.02.07, 26.11.02.11 and 26.11.02.12 for inclusion in the Maryland SIP in accordance with sections 110 and 173 of the CAA.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the MDE rules regarding permit issuance and denial as described in Section II of this preamble. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1

Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

On March 10, 2016 and September 15, 2016, Alaska submitted SIP revisions to EPA for approval. On June 13, 2017, the EPA proposed to approve the conformity portions of Alaska's March 10, 2016 submittal and all of the revisions requested in the September 15, 2016 submittal (82 FR 27031). Please see our proposed rulemaking for further explanation and the basis for our finding. The public comment period for this proposal ended on July 13, 2017. We received two supportive comments.

EPA is approving, and incorporating by reference where appropriate in Alaska's SIP, all revisions requested by Alaska on September 15, 2016 (state effective August 20, 2016) to the following provisions:

At Alaska's request, EPA is also removing from the SIP the following provisions that ADEC repealed as a matter of state law: 18 AAC 50.055(a)(2), (a)(3), (a)(7), (a)(8), (b)(4), (b)(6), (f) (Industrial Process and Fuel-Burning Equipment) and 18 AAC 50.060 (Pulp Mills).

Finally, EPA is approving revisions to 18 AAC 50, Article 7, Transportation Conformity, submitted by Alaska on March 10, 2016; specifically, the revisions to transportation conformity provisions in 18 AAC 50.715 and 50.720, and the removal of the general conformity provisions in 50.735.

We have determined that the submitted SIP revisions are consistent with section 110 and part C of Title I of the CAA.

In this rule, EPA is approving regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are incorporating by reference the provisions described above in Section II. Final Action and set forth below, as amendments to 40 CFR part 52. EPA has made, and will continue to make, these documents generally available electronically through http://www.regulations.gov and/or at the EPA Region 10 office (please contact the person identified in the FOR FURTHER INFORMATION, CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under CAA section 307(b)(1), petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 27, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2)).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

On June 24, 2016, MDE submitted a formal revision to the Maryland SIP. The SIP revision consists of a request to incorporate by reference a MDE departmental order that establishes an alternative VOC emission standard for NGC as it appears in the permit-to-construct conditions issued by MDE in order to ensure that it remains a minor stationary source of VOCs. The alternative VOC emissions limit of 195 pounds per operating day with at least a 99% overall VOC control efficiency will achieve a stringent emissions discharge reduction and is more stringent than any established standard for reasonably available control technology (RACT) for major stationary sources of VOCs in COMAR 26.11.19. Under the Code of Maryland Regulations (COMAR) 26.11.06.06E—“Exceptions,” a source may request an exception to a VOC emissions limit from MDE if the source is not subject to new source review (NSR) and if the source is unable to comply with COMAR 26.11.06.06B—“Control of VOC from Installations.”

Located in the Baltimore ozone nonattainment area, NGC is a wallboard manufacturing facility that emits both nitrogen oxides (NOX) and VOCs. Ground level ozone is formed when NOX and VOCs react in the presence of sunlight. NOX and VOC are referred to as ozone precursors and are emitted by many types of pollution sources, including motor vehicles, power plants, industrial facilities, and area wide sources, such as consumer products and lawn and garden equipment. Scientific evidence indicates that adverse public health effects occur following exposure to ozone. These effects are more pronounced in children and adults with lung disease. Breathing air containing ozone can reduce lung function and inflame airways, which can increase respiratory symptoms and aggravate asthma or other lung diseases. In response to this scientific evidence, EPA promulgated in 1979 the first ozone national ambient air quality standard (NAAQS), the 0.12 part per million (ppm) 1-hour ozone NAAQS. See 44 FR 8202 (February 8, 1979).1 Under the 1979 1-hour ozone NAAQS, the Baltimore Area (specifically, Anne Arundel County, Baltimore City, Baltimore County, Carroll County, Harford County, and Howard County) was designated as a severe nonattainment area. 56 FR 56694 (November 6, 1991). On July 18, 1997, EPA revised the health-based NAAQS for ozone based on 8-hour average concentrations. 62 FR 38856. Under the 1997 8-hour ozone NAAQS, the Baltimore Area was designated as a moderate nonattainment area. 69 FR 23858 (April 30, 2004). Later, the Baltimore Area was reclassified as a serious nonattainment area for the 1997 8-ozone NAAQS. 77 FR 4901 (February 1, 2012). On March 27, 2008 (78 FR 16436), EPA strengthened the 8-hour ozone NAAQS (2008 8-hour ozone NAAQS). Under the 2008 8-hour ozone NAAQS, the Baltimore Area was designated as a moderate nonattainment area. 69 FR 23858 (April 30, 2004).

On April 30, 2004 (69 FR 23858), EPA announced its revocation of the 1979 1-hour ozone NAAQS for all purposes and for all areas in the country, effective June 15, 2005. In the final rulemaking, EPA determined that certain nonattainment planning requirements would continue to be in effect under the revoked standard for nonattainment areas under the 1979 1-hour ozone NAAQS, including RACT. Under the anti-backsliding provisions codified at 40 CFR 51.905, the Baltimore Area remains subject to the anti-backslide obligations for the revoked 1979 1-hour ozone NAAQS. Since the Baltimore Area was designated as a severe nonattainment area for the 1979 1-hour ozone NAAQS, all sources in the nonattainment area emitting greater than 25 tons per year (tpy) of VOC or NOX are major stationary sources.

NGC is a major stationary source of NOX, but is not a major stationary source for VOCs. NGC consists of two major manufacturing lines, Board Kiln No. 1 and Board Kiln No. 2. When NGC modified Board Kiln No. 1 to manufacture new silicone wallboard products, NGC needed limits to remain a minor stationary source of VOC (under 25 tpy) and avoid NSR review under COMAR 26.11.17 as the production of the new silicone products would emit more VOC emissions from the source. However, NGC was subject to VOC emission limits in COMAR 26.11.06.06. Since Board Kiln No. 1 was installed before May 12, 1972, COMAR 26.11.06.06B(1)(a) would require its VOC emissions to be less than 200 pounds per day (lbs/day) unless the discharge is reduced by 85 percent or more overall. As Board Kiln No. 2 was installed in April 1998, it is subject to COMAR 26.11.06.06B(1)(b), which, except as provided in COMAR 26.11.06.06E, limits the discharge of VOC to not exceed 20 lbs/day unless the discharge is reduced by 85 percent or more overall. As a result of the increased production, NGC was unable to comply with COMAR 26.11.06.06B and is thus eligible to apply for an exception under COMAR 26.11.06.06E. However, exceptions under COMAR 26.11.06.06E require EPA approval of specific emission limitations and operating practices in order to become federally enforceable. MDE entered a consent order with NGC on March 11, 2016 establishing alternative VOC emissions limits for Board Kiln No. 1 and Board Kiln No. 2 that would become part of NGC's permit to operate. The permit restrictions approved for NGC, based on MDE's order, will ensure that NGC remains a federally enforceable minor stationary source with appropriate emission limitations and practices and not subject to NSR for its modification to Board Kiln No. 1.

In the June 24, 2016 SIP submittal, MDE included an order authorizing an alternative VOC emissions standard per COMAR 26.11.06.06E in connection with the construction permit modification MDE prepared for NGC. MDE requested EPA incorporate by reference the order with the alternative VOC emissions standard into the Maryland SIP. The MDE order for NGC requires that NGC comply with the following alternative VOC standards and other conditions: (1) NGC shall install a regenerative thermal oxidizer (RTO) on Board Kiln No. 1, which is designed to achieve at least a 99% overall VOC control efficiency, or not greater than 0.5 parts per million by volume (ppmv) of VOC in the flue gases exiting the RTO (which is more restrictive for Board Kiln No. 1); (2) total VOC emissions from Board Kiln No. 1 and Board Kiln No. 2, combined, shall not exceed 195 pounds per operating day (which is more stringent than Board Kiln No. 1 subject to 200 lbs/day and Board Kiln No. 2 subject to 20 lbs/day, separately); (3) total premises wide VOC emissions shall be less than 25 tons in any rolling 12-month period to ensure that the total net VOC emissions increase resulting from the modification of Board Kiln No. 1 and Board Kiln No. 2, combined, is less than the nonattainment NSR threshold, which is 25 tons in any rolling 12-month period; (4) NGC shall vent the flue gases from Board Kiln No. 1 through the RTO prior to discharging to the atmosphere when manufacturing silicone XP water resistant wallboard and eXP water resistant wallboard; (5) the temperature of the combustion zone of the RTO shall be maintained to at least the minimum temperature established during the most recent stack emissions tests demonstrating compliance with the daily VOC emission limit of 195 pounds per operating day; (6) NGC shall manufacture regular wallboard (any wallboard that is not silicone XP water resistant wallboard or eXP water resistant wallboard and is not prohibited for production by MDE) only in Board Kiln No. 2; and (7) NGC shall monitor daily production for each type of wallboard and shall calculate total daily VOC emissions from Board Kiln No. 1 and Board Kiln No. 2 to demonstrate compliance with the alternative VOC emission standard of 195 pounds per operating day.

After evaluating this SIP revision, EPA concludes that this SIP revision continues to address and minimize VOC emissions in the Baltimore ozone nonattainment area and will result in reduced VOC emissions from NGC. The alternative VOC emissions limit for NGC will significantly reduce emissions of VOC, an ozone precursor. EPA finds this Order to be a SIP strengthening measure in accordance with requirements in section 110 of the CAA. EPA finds that the submittal strengthens the State of Maryland's SIP and is in accordance with section 110 of the CAA including 110(a) and 110(l) as the SIP revision will not interfere with reasonable further progress, attainment of any NAAQS or any other applicable CAA requirements as more VOC emissions reduction is expected from this limit on NGC's VOC emissions.

EPA is approving the Maryland June 2016 SIP revision submittal which requests incorporation by reference of a MDE order that includes an alternative VOC emission standard for NGC as the revision meets requirements in CAA section 110. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of this issue of the Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on November 27, 2017 without further notice unless EPA receives adverse comment by September 27, 2017. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Maryland's Department of the Environment Order No. 510-0233-6-0646 and -1569. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update of the SIP compilation.2

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. section 804, however, exempts from section 801 the following types of rules: Rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, EPA is not required to submit a rule report regarding this action under section 801.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 27, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this issue of the Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action.

This action, which approves Maryland's SIP revision incorporating by reference a MDE order establishing a VOC emission standard for NGC, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Background

On July 18, 1997, EPA promulgated the first air quality standards for PM2.5. EPA promulgated an annual standard at a level of 15.0 micrograms per cubic meter (μg/m3), based on a 3-year average of annual mean PM2.5 concentrations. In the same rulemaking, EPA promulgated a 24-hour standard of 65 μg/m3, based on a 3-year average of the 98th percentile of 24-hour concentrations. On October 17, 2006 (71 FR 61144), EPA retained the annual average NAAQS at 15.0 μg/m3 but revised the 24-hour NAAQS to 35 μg/m3, based again on the 3-year average of the 98th percentile of 24-hour concentrations.

On November 13, 2009, at 74 FR 58688, EPA designated the Knoxville Area as nonattainment for the 2006 24-hour PM2.5 NAAQS. All 2006 PM2.5 NAAQS areas were designated under title I, part D, subpart 1 (hereinafter “Subpart 1”). Subpart 1 contains the general requirements for nonattainment areas for any pollutant governed by a NAAQS and is less prescriptive than the other subparts of title I, part D. On April 25, 2007 (72 FR 20586), EPA promulgated its Clean Air Fine Particle Implementation Rule, codified at 40 CFR part 51, subpart Z, in which the Agency provided guidance for state and tribal plans to implement the PM2.5 NAAQS. The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) remanded the Clean Air Fine Particle Implementation Rule and the final rule entitled “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” (73 FR 28321, May 16, 2008) (collectively, “1997 PM2.5 Implementation Rules”) to EPA on January 4, 2013, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013). The Court found that EPA erred in implementing the 1997 PM2.5 NAAQS pursuant to the general implementation provisions of Subpart 1, rather than the particulate matter-specific provisions of title I, part D, subpart 4 (hereinafter “Subpart 4”).

On June 2, 2014, EPA published a rule entitled “Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM2.5) National Ambient Air Quality Standard (NAAQS) and 2006 PM2.5 NAAQS”. See 79 FR 31566. In that rule, the Agency responded to the D.C. Circuit's January 2013 decision by identifying all PM2.5 nonattainment areas for the 1997 and 2006 PM2.5 NAAQS as “moderate” nonattainment areas under Subpart 4, and by establishing a new SIP submission date of December 31, 2014, for moderate area attainment plans and for any additional attainment-related or nonattainment new source review plans necessary for areas to comply with the requirements applicable under Subpart 4. Id. at 31567-70.

Based on its moderate nonattainment area classification, Tennessee was required to submit a SIP revision addressing RACM pursuant to CAA section 172(c)(1) and section 189(a)(1)(C) for the Area. Although EPA does not believe that section 172(c)(1) and section 189(a)(1)(C) RACM must be approved into a SIP prior to redesignation of an area to attainment once that area is attaining the NAAQS, EPA is approving Tennessee's RACM determination and incorporating it into its SIP pursuant to a recent decision by the United States Court of Appeals for the Sixth Circuit in Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015).

In a notice of proposed rulemaking (NPRM) published on May 30, 2017 (82 FR 24621), EPA proposed to: (1) Approve Tennessee's RACM determination for the Knoxville Area pursuant to CAA sections 172(c)(1) and 189(a)(1)(C) and incorporate it into the SIP; (2) approve Tennessee's plan for maintaining the 2006 24-hour PM2.5 NAAQS (maintenance plan), including the associated 2014 and 2028 MVEBs for PM2.5 and NOX for the Knoxville Area, and incorporate it into the SIP; and (3) redesignate the Knoxville Area to attainment for the 2006 24-hour PM2.5 NAAQS.1 The details of Tennessee's submittal and the rationale for EPA's actions are explained in the NPRM. EPA did not receive any adverse comments on the proposed action.

EPA's approval of Tennessee's redesignation request changes the legal designation of Anderson, Blount, Knox, and Loudon Counties and a portion of Roane County for the 2006 24-hour PM2.5 NAAQS, found at 40 CFR part 81, from nonattainment to attainment. Approval of Tennessee's associated SIP revision also incorporates a plan for maintaining the 2006 24-hour PM2.5 NAAQS in the Area through 2028 and Tennessee's RACM determination into the Tennessee SIP. The maintenance plan includes contingency measures to remedy any future violations of the 2006 24-hour PM2.5 NAAQS and procedures for evaluation of potential violations. The maintenance plan also includes NOX and PM2.5 MVEBs for 2014 and 2028 for the Knoxville Area. The 2014 and 2028 PM2.5 MVEBs are 1.22 tons per day (tpd) and 0.67 tpd, respectively. The 2014 and 2028 NOX MVEBs are 42.73 tpd and 19.65 tpd, respectively.

EPA is taking the following final actions: (1) Approving Tennessee's RACM determination for the Knoxville Area pursuant to CAA sections 172(c)(1) and 189(a)(1)(C) and incorporating it into the SIP; (2) approving Tennessee's plan for maintaining the 2006 24-hour PM2.5 NAAQS (maintenance plan), including the associated 2014 and 2028 MVEBs for the Knoxville Area, and incorporating it into the SIP; and (3) redesignating the Knoxville Area to attainment for the 2006 24-hour PM2.5 NAAQS.

Approval of the redesignation request changes the official designation of Anderson, Blount, Knox, and Loudon Counties and a portion of Roane County for the 2006 24-hour PM2.5 NAAQS, found at 40 CFR part 81, from nonattainment to attainment.

Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, these actions merely approve state law as meeting federal requirements and do not impose additional requirements beyond those imposed by state law. For that reason, these actions:

• Are not significant regulatory actions subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January, 21, 2011);

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

• are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• are not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs of tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 27, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR parts 52 and 81 are amended as follows:

The United States is a member of the IATTC, which was established under the Convention for the Establishment of an Inter-American Tropical Tuna Commission signed in 1949 (Convention). The Convention provides an international agreement to ensure the effective international conservation and management of highly migratory species of fish in the IATTC Convention Area. The IATTC Convention Area, as amended by the Antigua Convention, includes the waters of the EPO bounded by the coast of the Americas, the 50° N. and 50° S. parallels, and the 150° W. meridian.

Fishing for Pacific bluefin tuna in the EPO is managed, in part, under the Tuna Conventions Act as amended (Act), 16 U.S.C. 951-962. Under the Act, NMFS must publish regulations to carry out recommendations of the IATTC that have been approved by the Department of State (DOS). Regulations governing fishing by U.S. vessels in accordance with the Act appear at 50 CFR part 300, subpart C. These regulations implement IATTC recommendations for the conservation and management of highly migratory fish resources in the EPO.

In 2016, the IATTC adopted Resolution C-16-08, which establishes a 600 metric ton (mt) catch limit of Pacific bluefin tuna applicable to U.S. commercial fishing vessels in 2017 and 2018, combined. Additionally, catch is not to exceed 425 mt in a single year; therefore, the annual limit in 2017 is 425 mt. With the approval of the DOS, NMFS implemented this catch limit by notice-and-comment rulemaking under the Act (82 FR 18704, April 21, 2017, and codified at 50 CFR 300.25).

NMFS, through monitoring landings data and other available information, has determined that the 2017 catch limit has been exceeded. In accordance with 50 CFR 300.25(g), this Federal Register notice announces that the U.S. fishery for Pacific bluefin tuna in the IATTC Convention Area will be closed starting on August 28, 2017, through the end of the 2017 calendar year. The 2018 catch limit will be calculated by subtracting the amount caught in 2017 from 600 mt.

During the closure, a U.S. fishing vessel may not be used to target, retain on board, transship, or land Pacific bluefin tuna captured in the IATTC Convention Area, except as follows: Any Pacific bluefin tuna already on board a fishing vessel on August 28, 2017, may be retained on board, transshipped, and/or landed, to the extent authorized by applicable laws and regulations, provided all Pacific bluefin tuna are landed within 14 days after the effective date of this rule, that is, no later than September 11, 2017.

NMFS has determined there is good cause to waive prior notice and opportunity for public comment pursuant to 5 U.S.C. 553(b)(B). This action is based on the best available information and is necessary for the conservation and management of Pacific bluefin tuna. Compliance with the notice and comment requirement would be impracticable and contrary to the public interest because NMFS would be unable to ensure that the 2017 Pacific bluefin tuna catch limit is not further exceeded, and that biennial limit of 600mt is also not exceeded. For the same reasons, NMFS has also determined there is good cause to waive the requirement for a 30-day delay in effectiveness under 5 U.S.C. 553(d)(3).

This action is required by § 300.25(a) and is exempt from review under Executive Order 12866.

Background

On August 8, 2016, the Council adopted final measures under the Mid-Atlantic Unmanaged Forage Omnibus Amendment. On November 23, 2016, the Council submitted the amendment and draft EA to NMFS for preliminary review, with final submission of the draft amendment and EA on March 20, 2017. NMFS published a Notice of Availability in the Federal Register on March 28, 2017 (82 FR 15311), informing the public that the Council had submitted this amendment to the Secretary of Commerce for review and approval. NMFS published a proposed rule that included implementing regulations on April 24, 2017 (82 FR 18882). The public comment period for both the Notice of Availability and proposed rule ended on May 30, 2017.

The Council developed the Mid-Atlantic Unmanaged Forage Omnibus Amendment and the measures described in the proposed rule under the discretionary provision specified in section 303(b)(12) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801, et seq.; 1853(b)(12)). The objective of this action is to prevent the development of new, and the expansion of existing, commercial fisheries on certain forage species until the Council has adequate opportunity and information to evaluate the potential impacts of forage fish harvest on existing fisheries, fishing communities, and the marine ecosystem. The two primary purposes of this action are to: (1) Advance an ecosystem approach to fisheries management in the Mid-Atlantic through consideration of management alternatives that would afford protection to currently unmanaged forage species by regulating landings and/or possession of those species; and (2) consider management alternatives to address data collection and reporting of landings of currently unmanaged forage species. Details concerning the development of these measures are contained in the EA prepared for this action and summarized in the preamble of the proposed rule, and, therefore, are not repeated here.

The Magnuson-Stevens Act permits NMFS to approve, partially approve, or disapprove measures proposed by the Council based only on whether the measures are consistent with the fishery management plan, the Magnuson-Stevens Act and its National Standards, and other applicable law. Following the consideration of public comment and additional review of this action and supporting analysis, NMFS concluded that the inclusion of bullet and frigate mackerel as EC species is inconsistent with National Standard 2 of the Magnuson-Stevens Act regarding the use of best available scientific information.

The best available scientific information presented for this amendment does not support the proposed designation of bullet and frigate mackerel as forage for species managed by the Council. Because this action is an amendment to the Council's existing FMPs, the species that are included in the amendment must be a forage species and also must be linked to one or more FMP fisheries, either as prey for the managed species or as bycatch in the managed fisheries. This is consistent with our understanding of Council intent, as documented in the March 2016 Fishery Management Action Team meeting summary. As a result, NMFS asserted that this amendment needed to establish a logical connection between the species proposed as forage and at least one managed species. During the development of this action and in the proposed rule, NMFS advised the Council and the public that bullet and frigate mackerel do not meet the criteria used to identify forage for species regulated by the Council.

Although the Council did not rely exclusively on the forage criteria identified by the Council's Scientific and Statistical Committee (SSC), as summarized in Table 5 of the EA, the forage criteria served as the initial foundation for evaluating species to include in this action. These criteria establish general parameters, including adult size, trophic level, and whether the species comprised a considerable portion of the diet of other predators, among other criteria, to determine whether a species is forage for another species. The adult sizes of bullet and frigate mackerel (20-24 inches (51-61 cm) total length) are larger than the size ranges identified for other forage species included in this action, which average 7 inches (18 cm) in total length. Thus, the adult sizes of bullet and frigate mackerel are more than double the forage fish size range recommended by the Council's SSC (1-10 inches (2-25 cm) total length). Bullet and frigate mackerel feed on most of the other forage species included in this amendment, confirming their higher tropic classification. This is inconsistent with the SSC's classification criteria that forage species are typically low to mid tropic level species that consume very small prey less than 1-inch long (2-2.5 cm), typically zooplankton and or small benthic invertebrates. While the amendment includes some information suggesting that these species are consumed by large pelagic species such as tunas, billfish, and sharks, it is not clear what portion of the diet of these species that bullet and/or frigate mackerel represent. As a result, while bullet and frigate mackerel may be prey for large pelagic species, it is unknown whether they constitute forage for large pelagic species in the marine ecosystem, as defined by the SSC. Finally, even applying the lower forage thresholds used by the Council (i.e., the presence of forage species in at least two stomach content samples over a 40-year period of NMFS surveys), there is no scientific evidence presented in this amendment that indicates bullet and frigate mackerel are forage for managed species. Thus, the best available scientific information does not support the classification of these species as forage for managed species, and NMFS determined that including them would be inconsistent with National Standard 2 of the Magnuson-Stevens Act.

Other criteria considered by the Council to classify forage species for this amendment include the presence of such species as bycatch in managed fisheries and the potential for commercial exploitation. While there is evidence that a small amount of bullet mackerel was caught with bottom trawl gear that resulted in the landings of species managed by the Council, the information and analysis indicate co-occurrence that is not necessarily indicative of systematic bycatch in those fisheries. Many unmanaged species co-occur with managed species, but that does not make them forage for the managed species or susceptible to routine bycatch in targeted fisheries for managed species. NMFS concluded that available information is not sufficient to suggest that bullet mackerel are systematically caught as bycatch in managed fisheries. With no dealer reported landings of bullet mackerel, and an average of less than 7,500 lb (3.4 mt) of frigate mackerel reported landed each year between 1996-2015, including several years when less than 1,000 lb (0.4 mt) was landed, there is limited information to support that these species are caught as bycatch in managed fisheries or will be subject to commercial exploitation at this time.

Finally, the best available information does not support the Council's determination that bullet and frigate mackerel should be classified as EC species based upon the National Standard Guidelines at 50 CFR 600.305. As defined in § 600.305(d)(11) and noted during the April 2016 Council meeting, EC species should not include target stocks that are caught for sale or personal use. However, the amendment includes evidence that bullet and frigate mackerel are caught and sold by commercial vessels and are retained for personal use as bait by recreational fisheries in Federal waters, creating competing interests and conflicts among user groups, both of which are criteria that could exclude consideration of bullet and frigate mackerel as EC species under the National Standard Guidelines. The Council could consider alternative mechanisms to protect and manage these and other similar species, such as little tunny/false albacore and bonito, for the benefits they provide to the marine ecosystem and important commercial and recreational fisheries within the Mid-Atlantic. This is consistent with the May 19, 2017, discussion by the Ecosystem and Ocean Planning Committee (EOPC). If the Council believes that these species require conservation and management, a small tuna FMP or a broader ecosystem based management action may be a more effective vehicle to manage these species than an amendment predicated on protecting forage for managed species. This would allow the Council to develop a management approach and measures that would reflect the unique role these species play in the marine ecosystem, and to better integrate the concerns of and impacts to the predominantly recreational fishery for these species. Such an approach is supported by not only the EOPC, but also by members of the public commenting on this action.

This action designates the following forage species and species groups as EC species in all of the FMPs under the Council's jurisdiction:

The Magnuson-Stevens Act contains no requirements to designate EC species. To minimize confusion and reflect the purpose of this action to manage forage species, these species will be collectively referred to as “Mid-Atlantic forage species” for the remainder of this preamble discussion and in the final regulatory text.

This action requires any commercial vessel, operator, or dealer that lands or sells Mid-Atlantic forage species and Atlantic chub mackerel to comply with existing Federal permit and reporting requirements. Any commercial fishing vessel that possesses, lands, or sells Mid-Atlantic forage species or chub mackerel caught in Federal waters from New York through Cape Hatteras, North Carolina (an area referred to as the “Mid-Atlantic Forage Species Management Unit” below and in the regulations), must be issued a valid commercial fishing vessel permit issued by the Greater Atlantic Regional Fisheries Office (GARFO). Any commercial vessel operator fishing for or possessing these species in or from the Mid-Atlantic Forage Species Management Unit must obtain and retain on board a valid operator permit issued by GARFO. Similarly, a seafood dealer purchasing and selling these species must obtain a valid commercial seafood dealer permit issued by GARFO.

Vessel operators and dealers are required to report the catch and sale of these species and species groups on existing vessel trip reports (logbooks) and dealer reports, respectively. NMFS and Council staff prepared a species identification guide to help vessel operators and dealers differentiate among these forage species and identify the codes needed to accurately report these on vessel logbooks and dealer reports. We will send this guide to all vessels that landed in Mid-Atlantic ports during 2016 and make it available on both the GARFO and Council Web sites (see ADDRESSES) and through your local NMFS port agent office (see https://www.greateratlantic.fisheries.noaa.gov/sed/portagents/portagents.html).

The permit and reporting requirements mentioned above for vessels, operators, and dealers fishing for, possessing, and purchasing chub mackerel are effective through December 31, 2020, unless overwritten by another Council or NMFS action. This is because the Council is currently developing potential long-term measures and assembling the scientific information necessary to consider formally integrating chub mackerel as a stock in the fishery managed under the Atlantic Mackerel, Squid, and Butterfish FMP.

This action sets an annual landing limit of 2.86 million lb (1,297 mt) for Atlantic chub mackerel. All landings of chub mackerel in ports from Maine through North Carolina will count against the annual landings limit. NMFS will close the directed fishery for chub mackerel in the Mid-Atlantic Forage Species Management Unit once the Regional Administrator determines that 100 percent of the chub mackerel annual landing limit has been harvested. After the closure of the directed fishery, vessels would be subject to the chub mackerel incidental possession limit described below. As in the case for the permit and reporting requirements, the chub mackerel annual landing limit is effective through December 31, 2020, unless overwritten by a future Council or NMFS action.

This action establishes a 1,700-lb (771-kg) combined possession limit for all Mid-Atlantic forage species (see the list of EC species listed above) caught within the Mid-Atlantic Forage Species Management Unit. Initially, commercial vessels are not subject to a possession limit for chub mackerel. However, once the chub mackerel annual landing limit is harvested, NMFS will implement a 40,000-lb (18,144-kg) chub mackerel possession limit in the Mid-Atlantic Forage Species Management Unit. As in the case for the annual landing limit, the chub mackerel incidental possession limit will expire on December 31, 2020, unless overwritten by a future Council or NMFS action.

This action allows a vessel issued a Federal commercial fishing permit from GARFO that possesses Mid-Atlantic forage species and chub mackerel in excess of the proposed possession limits to transit the Mid-Atlantic Forage Species Management Unit in certain circumstances. The following three conditions must be met to transit through the management unit: (1) Forage species were harvested outside of the Mid-Atlantic Forage Species Management Unit; (2) the vessel lands in a port that is outside of the Mid-Atlantic Forage Species Management Unit (i.e., north of New York or south of Cape Hatteras, North Carolina); and (3) all gear is stowed and not available for immediate use. The transiting provision for vessels possessing chub mackerel is effective through December 31, 2020, unless overwritten by a future Council or NMFS action.

This action allows the Council to modify the list of EC species, annual landing limits, and possession limits for Mid-Atlantic forage species and chub mackerel through a framework adjustment to applicable FMPs rather than through an amendment to these FMPs. Although the preamble of the proposed rule did not indicate that the list of EC species could be modified through a framework action, the proposed regulations did indicate that the list of Mid-Atlantic forage species (the same as the EC species listed above) could be modified in a framework action.

Under this action, the Council establishes a policy that requires use of an experimental fishing permit (EFP) to support any new fishery or the expansion of existing fisheries for Mid-Atlantic forage species. The Council would consider the results of any experimental fishing activity and other relevant information before deciding how to address future changes to the management of fisheries for Mid-Atlantic forage species. Pursuant to existing regulations at § 648.12, the Regional Administrator already consults with the Council's Executive Director before approving any exemption under an EFP request.

During the public comment periods for the Notice of Availability and the proposed rule for this amendment, we received 11,519 comments from 11,510 individuals. This included 11,484 form letters from Pew Charitable Trusts; comments from representatives of three commercial fishing entities/groups (Seafreeze Ltd., Lund's Fisheries Incorporated, and the Garden State Seafood Association (GSSA)); comments from three environmental organizations (Pew Charitable Trusts, Wild Oceans, and the Audubon Society); and comments from the Office of Management and Budget. Two individuals expressed general opposition to the rule, while 11,506 individuals supported the action and 11 individuals supported some, but not all of the proposed measures. The following discussion summarizes the issues raised in the comments that were relevant to this action and associated NMFS's responses. Please note that, pursuant to section 304(a)(3) of the Magnuson-Stevens Act, when NMFS considers the responses to comments, NMFS may only approve or disapprove measures proposed in a particular fishery management plan, amendment, or framework adjustment, and may not change or substitute any measure in a substantive way.

Comment 1: One individual expressed disappointment that the Council waited six years to protect forage species, indicating that the Council should have acted sooner.

Response: We are satisfied with the amount of time that the Council took to develop this action, and contend that the measures implemented by this final rule will provide meaningful protection to important forage species in the Mid-Atlantic. The Council identified the need to protect forage species as part of its strategic planning and visioning process in 2011, and initiated this action in 2014, shortly after receiving guidance about how to manage forage species from its SSC. Because this was the first management action to specifically manage forage species in the Atlantic Ocean, the Council conducted extensive outreach to solicit public input during the development of this action. This action represents proactive steps by the Council to protect previously unmanaged forage species and prevent the initiation or further development of commercial fisheries on these species as it collects information on the importance of these species to fisheries communities and the ecosystem.

Comment 2: One individual was concerned that the proposed measures would not become effective until 2020.

Response: The comment is incorrect; all measures approved in this final rule are effective on September 27, 2017. As noted above, the Atlantic chub mackerel measures will expire on December 31, 2020, three years after implementation, to incentivize the Council to develop long-term management measures to formally integrate this species into the Atlantic Mackerel, Squid, and Butterfish FMP.

Comment 3: Two individuals were concerned that climate change, including ocean acidification, will destroy fish habitat and negatively impact forage fish, sea birds, and marine mammals, with one individual suggesting the Environmental Protection Agency (EPA) should protect our air and water.

Response: Recent NMFS studies recognize that certain species are more vulnerable than others to climate change and associated effects to habitat. While stock assessments and management measures can consider the impacts of climate change, NMFS is not authorized to regulate the sources of air and water pollution referenced in these comments. The EPA develops regulations and policies aimed at reducing air and water pollution.

Comment 4: One individual suggested that forage fish should be limited to processing as food, not fish meal or fish oil.

Response: Because the Council did not impose any restrictions on the use or processing of forage species in this action, NMFS does not have the authority to impose such restrictions through this final rule.

Comment 5: Seven individuals, along with 11,484 form letters from Pew, expressed general support for this action. Three individuals indicated that forage fish are a vitally important component to the ecology of our oceans through their role of energy transferors and as the primary food source for larger fish, marine mammals, and humans. A separate comment from Pew indicated that forage fish are the bedrock of coastal economies, jobs, recreation, and seafood, and that protecting them through this action is an important step toward ecosystem based fisheries management. The Audubon Society commented that seabirds depend on forage species, especially small, schooling fish that are protected by this amendment. They provided a list of 15 seabird species that rely upon forage fish for 20 percent or more of their diet. The 11,484 Pew form letters indicated that, due to reductions in the availability and catch rates of other stocks, vessels will target unmanaged species, which would negatively affect those species and predators of those species. Similarly, one individual indicated that this amendment would help prevent the commercial fishing industry from fishing down the food web.

Response: We agree that forage species are an integral part of the marine ecosystem, and that excessive catch of forage species will have negative impacts not only on predators such as fish, sea birds, and marine mammals, but also on fishing communities that rely upon predators of forage species for important commercial and recreational fisheries. That is why the Council initiated this action as part of its efforts to integrate ecosystem approaches to fisheries management. We recognize that restrictions in targeted fisheries potentially could increase fishing effort on other unmanaged species, such as the forage species listed in this action. By preventing the creation of new or expansion of existing commercial fisheries on previously unmanaged forage species, this action minimizes the risk of fishing down the food web.

Comment 6: One individual recommended that we use caution when allowing additional fishing to occur on forage species until we know more about the impacts of fishing on these species. Another individual indicated that NMFS must achieve a sustainable balance between species regeneration and harvest of forage fish.

Response: One of the primary purposes of this action is to maintain recent catch levels until we can collect additional data on the catch and landings of these previously unmanaged forage species. The data collected through the vessel logbook and dealer reporting requirements implemented by this action will help the Council make more informed decisions in the future regarding the appropriate levels of catch for such species. Further, this action adopts a policy that requires use of an EFP and subsequent Council review before considering any new fisheries or expansion of existing fisheries for Mid-Atlantic forage species.

Comment 7: One individual was concerned that by managing these species, fishermen would be held responsible for declines in abundance. This individual suggested that there are no plans to examine how environmental factors affect forage species or predators, and that this action does not assess the impacts of factory ships on the ecosystem, only impacts of small boats.

Response: We disagree with this commenter. The EA prepared for this action includes a cumulative effects analysis (Section 7.6 of the EA), as required by the National Environmental Policy Act (NEPA) and the Council on Environmental Quality regulations. This analysis considers the impacts of non-fishing activities such as climate change, point and non-point source pollution, shipping, dredging, storm events, and other factors on the physical and biological dimensions of the environment. The impacts of these non-fishing activities are considered in the development of all fishery management actions. Further, environmental factors along with mortality resulting from fishing activities are considered when developing a stock assessment and determining the appropriate levels of catch for managed species. Depending on the species, fishing may not be the primary source of mortality, and this will influence the measures necessary to sustain that species. This action will help collect data to help determine the scale of fishing mortality on these forage species should the Council determine that these species require conservation and management in the future. Finally, while the EA does not explicitly evaluate the impacts of “factory ships” on the ecosystem, Section 7 of the EA evaluates the impacts of fishery operations of all sizes of vessels that fish within Federal waters on all aspects of the marine environment, including target and non-target species, endangered species, marine mammals, and habitat.

Comment 8: One individual suggested that all fisheries management decisions must be guided by peer reviewed scientific analysis to drive rational decisions.

Response: Fishery management decisions must be based upon the best scientific information available, as required by National Standard 2 of the Magnuson-Stevens Act. The best available scientific information can take many forms and does not always take the form of peer reviewed analysis. All fishery measures are developed, analyzed, and reviewed by Council and NMFS staff, external scientists, academic researchers, industry representatives, and others with scientific expertise.

Comment 9: Seafreeze Ltd. expressed concern that measures were not based on a scientific threshold for determining whether a species is a forage species in this amendment. It noted that the Council did not use the SSC's dietary threshold in its definition of forage species (forage species represent greater than five percent of an animal's diet for more than five years), suggesting that a lack of a threshold or consistent diet data calls into question the purpose of this action.

Response: As noted above, the Council did not rely exclusively upon the SSC's forage species criteria to inform its decision to include forage species for this action, although the SSC's criteria did serve as the starting point for Council consideration. Section 4.2 of the EA prepared for this action notes that there were “no uniform quantitative metrics available to compare the trophic level of a number of forage species, or to assess the number of trophic linkages for each species.” Instead, the Council determined how to best evaluate the SSC's and other criteria used to define forage species. The Council used alternative dietary criteria due to the diversity of diet for many species. Specifically, the SSC's dietary criteria would have reduced the list of forage species to only a few species, many of which are not found in Federal waters. As a result, any proposed measures to protect such a limited list of forage species would not likely have been effective or offer much benefit to managed species important to commercial and recreational fisheries managed by the Council. Accordingly, the Council used a lower threshold to be more inclusive of forage species in this action, while still prioritizing protection for species that had the greatest potential to support future large-scale commercial fisheries.

Comment 10: The Garden State Seafood Association (GSSA) was critical of the amendment's purpose and goals, indicating that there is no biological benefit from the proposed measures. This group suggested that NMFS should delay the implementation of this final rule until measurable goals can be identified.

Response: We disagree that there is no biological benefit from this action. Although this action maintains existing catch levels for forage species, in the long-term, this action will help maintain sustainable populations of several forage species for various predators, including Council-managed predators, protected species predators, and seabirds. The purposes of this action are to prevent the expansion of existing and the development of future commercial fisheries for certain forage species while the Council collects the information it needs to assess the impacts to existing fisheries, fishing communities, and the marine ecosystem. The measures implemented by this action do exactly that. Because data have not been collected on the catch of these species, it is difficult to quantitatively assess the impacts of forage species on predators, the marine ecosystem, and communities at this time. Therefore, implementation of reporting requirements through this final rule will provide the information the Council and NMFS need to assess catch of these species and develop more effective measures in the future, as necessary.

Comment 11: Seafreeze Ltd. and Lund's Fisheries Incorporated are concerned that state permitted vessels do not have similar restrictions on the catch of forage species, with Lund's Fisheries suggesting that this creates two classes of fishermen and penalizes those with a Federal permit from selling forage species. Lund's Fisheries suggested that NMFS and the Council should encourage the Atlantic States Marine Fisheries Commission to take similar action to protect forage species in state waters.

Response: Neither the Council, nor NMFS has the authority to require states to implement similar measures to protect forage species. Because each state has a seat on the Council, and the Council has already expressed its interest in protecting forage species, it is incumbent upon each state to decide whether it should implement similar forage species measures within waters under their jurisdiction. We disagree that this penalizes Federal permit holders from selling catch of these species, as it implements possession limits that reflect 99 percent of trip-level commercial landings of forage species over the past 20 years. Therefore, based on recent fishing operations, vessels issued a Federal permit should not be negatively affected by these possession limits.

Comment 12: One individual suggested that this action violates NOAA Administrative Order (NAO) 216-6A because the Council did not examine whether this action would set a precedent for future action with significant effects or represent a decision in principle about future consideration. He also stated that the use of discretionary authority under section 303(b)(12) of the Magnuson-Stevens Act to manage chub mackerel sets a precedent regarding the regulation of commercially targeted species outside of a FMP and without adequate oversight. In contrast, Pew supports the use of such discretionary authority until the species can be formally integrated as a species within the Atlantic Mackerel, Squid, and Butterfish FMP.

Response: The commenter cites text related to the determination of significance of NOAA's actions as required by the NEPA from an outdated version of NAO 216-6A dated May 20, 1999. The new version of NAO 216-6A became effective April 22, 2016, and contains no such language. In fact, the new version authorizes the development of a companion manual to set policy and procedures for complying with NEPA. That companion manual became effective January 13, 2017, and contains the text referenced by the commenter, but in the context of evaluating the use of a categorical exclusion under extraordinary circumstances. Since the Council developed an EA in support of this action, this policy guidance is not relevant to this action. The Council will evaluate the significance of any future action it may develop for chub mackerel as it develops measures for that particular action.

We disagree that the use of section 303(b)(12) of the Magnuson-Stevens Act to develop chub mackerel measures under this action sets a precedent that would allow commercial fishing to occur outside of a FMP and without oversight. Section 303(b) specifically authorizes the development of such discretionary measures as part of a FMP. Therefore, this section allows for increased management and oversight of commercial fisheries by the Council, not the opposite. We agree with Pew in that it represents a viable mechanism to proactively implement interim measures to manage this species while the Council develops the required provisions to formally manage chub mackerel as a stock in an FMP.

Comment 13: Two individuals recommended that this action should include river herring, with one citing the millions of taxpayer dollars spent to restore habitat and breeding streams that would be wasted if these species are not protected. He indicated that NMFS needs to collect more data and protect river herring in the ocean. Three individuals suggested that this action should also include Atlantic menhaden as a forage species.

Response: Because the Council did not consider managing river herring or Atlantic menhaden as forage species under this action, NMFS does not have the authority to add these species through this final rule. The Council has already considered ways to manage river herring as part of Amendment 14 to the Atlantic Mackerel, Squid, and Butterfish FMP and associated specifications since 2014. Specifically, the Council established a river herring and shad catch cap in the mackerel fishery and established reporting requirements to monitor such catch in the mackerel fishery. The Atlantic States Marine Fisheries Commission (ASMFC) already manages Atlantic menhaden because this species is predominantly found in nearshore waters and is prosecuted by state fisheries. The Council could consider management measures for these species and other species through a future action, as appropriate.

Comment 14: One individual indicated that, until there is sufficient science on the population dynamics and trophic significance of all forage species originally listed (presumably by the SSC or Fishery Management Action Team), none of the species should be omitted from this action. Another individual indicated that the Council should be precautionary and implement catch limits for all forage species.

Response: Section 4.2 of the EA describes the background for how the Council determined which forage species to include in this action. The Council did not intend to prohibit the harvest of all unmanaged forage species. Instead, the Council identified a list of prioritized forage species to minimize the burden of the proposed new regulations on existing managed fisheries. In selecting the taxa to include in this amendment, the Council prioritized some species due to their importance as prey for “socially and economically important species” and their perceived potential to become the target of large-scale commercial fisheries. The Council could add forage species through a future action as more information becomes available, or as needed to achieve conservation and management objectives.

Comment 15: Seafreeze Ltd. and the GSSA oppose the approval of halfbeaks, scaled sardine, Atlantic thread herring, and Spanish sardine as EC species in this action, because there is no link as forage or bycatch between these species and fisheries managed by the Council. They contend that none of these species have been found in NMFS observer data for trawls, gillnets, or hook gear resulting in landings of Council managed species; that they have not been found in the stomachs of Council managed species in NMFS surveys; and that they fail to meet all the criteria for listing as an EC species and the forage species criteria developed by the SSC.

Response: We disagree that these species fail to meet the criteria for listing as an EC species, as the amendment provides information that supports the determination that these species are eligible to be listed as EC species based on the criteria outlined in the National Standard Guidelines at § 600.305. The Council relied in part on the SSC's definition of forage species as well as other criteria in its proposed list of forage species to manage as EC species in this action. Section 6.1 of the EA identifies the rationale for the inclusion of each species in this action. While halfbeaks have not been found in the stomach contents of managed species in NMFS surveys, they were documented as forage for bluefish, a Council-managed species, in another source. Further, the Council notes that halfbeaks are often caught in Florida and are commonly used as bait in Mid-Atlantic recreational fisheries, making them vulnerable to potential future commercial exploitation. There is sufficient evidence that other unmanaged herrings and sardines are consumed as forage for many Council-managed species, are often documented as bycatch in managed fisheries, and are potentially vulnerable to commercial exploitation due to market demand.

Comment 16: The GSSA, Seafreeze Ltd., and Lund's Fisheries Incorporated opposed the inclusion of bullet and frigate mackerel as EC species for the same reasons we highlighted in the proposed rule. However, Pew and Wild Oceans, along with 11,496 Pew form letters, supported the inclusion of these species, highlighting their importance to ecosystems and coastal communities who directly or indirectly depend upon the catch or use of these species. One individual disagreed with our assertion that the trophic level of these species is too high, suggesting that trophic linkages are truncated in pelagic ecosystems. Pew noted that bullet and frigate mackerel are vulnerable to commercial exploitation because they school in predictable areas, while Wild Oceans contended that protecting bullet and frigate could reduce predation on managed species by providing more prey for common predators. Supporters also noted that many significant keystone predators such as large pelagic species (tuna, billfish, swordfish, dolphinfish (dorado) and sharks) feed on these mackerel, and a failure to protect them could cause trophic cascading (e.g., effects on species higher or lower in the food chain as a result of changes in prey or predator abundance) and indirect and unpredictable effects (presumably reduced abundance) on large pelagic species.

Response: As noted above, we maintain our original contention that the best available information does not support the classification of bullet and frigate mackerel as forage species in this action and that they are not related to species managed by the Council. Public comments did not provide additional information that would change this determination. The SSC did not differentiate trophic structure criteria based on where organisms were found, and the commenter did not provide sufficient evidence to warrant such a differentiation. Although Wild Oceans asserts that these species are vulnerable to commercial exploitation because they school in predictable areas, Pew notes that these species are less vulnerable to commercial fishing, particularly trawl gear, because of their fast swimming speed. This, in conjunction with minimal commercial landings of these species over the past 20 years, suggests that these species are not vulnerable to commercial exploitation at this time. While we acknowledge that bullet and frigate are prey for large pelagic species, available information does not confirm that bullet and frigate mackerel constitute a substantial component of the diet of large pelagic species, or that they are forage for managed species. Therefore, there is insufficient information in the amendment to conclude that failure to protect these species through this action would cause trophic cascading or negative impacts on managed species or large pelagic predators.

Comment 17: Pew asserts that a nexus between forage species and regulated species is not required by the Magnuson-Stevens Act, noting that the discretionary authority provided in section 303 can be used to conserve target and non-target species considering ecological factors that may affect fish populations. They also cite the National Standard 1 guidelines in highlighting that maintaining adequate forage may prevent overfishing and achieve optimum yield. Wild Oceans indicates that these Guidelines allow flexibility to achieve ecosystem goals, including those in the Council's ecosystem approach to fisheries management (EAFM) guidance document, and that failure to include these species is contrary to NMFS' ecosystem based fishery management (EBFM) policy.

Response: We agree that section 303 of the Magnuson-Stevens Act provides the Council with the discretion to implement measures for target and non-target species for ecosystem considerations. As noted in the scoping document for this action and Council meetings during the development of this action, the intent of this action was to maintain an adequate biomass of forage species to allow for abundant populations of Council-managed predators, as well as to integrate ecosystem considerations into the FMP. NMFS determined that forage species considered in this action must have an ecological or operational (bycatch) linkage with Council-managed species in order to maintain consistency with the Council's intent to maintain an adequate biomass of forage species to allow for abundant populations of Council-managed predators of the forage species. Although the description of the purpose and need for this action, as included in the EA, indicated that the Council was also integrating an ecosystem approach to management into this action, the Council did so by protecting forage species; this action was not intended to be a comprehensive ecosystem management action. NMFS must evaluate this action within the context in which it was developed, and using the best available information, which, as noted above, is not sufficient to justify inclusion of bullet and frigate mackerel as EC species under this action.

We also agree that the National Standard 1 Guidelines allow the Council to consider forage and EC species when determining optimum yield and the greatest benefit to the nation. However, it is important to note that the National Standard 1 Guidelines apply to stocks in the fishery that the Council determines require conservation and management. By proposing to manage bullet and frigate mackerel as EC species, the Council has implicitly determined that such species do not require conservation and management measures at this time pursuant to the National Standard Guidelines at § 600.305(c)(5) and are, therefore, not stocks in the fishery. Accordingly, the National Standard 1 Guidelines do not apply to these species. That notwithstanding, if the Council believes that these species require conservation and management in the future, a small tuna FMP or a broader ecosystem based management action may be a more effective vehicle to manage these species than an amendment predicated on protecting forage for managed species. Finally, despite the disapproval of bullet and frigate mackerel as EC species in this action, we contend that the Council's use of discretionary authority to designate certain other previously unmanaged forage species as EC species and to implement measures to protect against the further exploitation of these species is consistent with both the Council's EAFM guidance document and the NMFS EBFM policy.

Comment 18: Pew, Lund's Fisheries Incorporated, and the GSSA support the use of existing permitting requirements for this action. They, along with one individual and the 11,484 respondents to the Pew form letter, also support the use of existing reporting requirements to collect additional data on these species. Another individual indicated that the proposed reporting requirements would not collect acceptable data, but did not suggest why. The Office of Management and Budget indicated that this action would have no effect on any current information collections.

Response: The existing permitting and reporting requirements are necessary to collect information to effectively monitor and manage the catch of forage species. The permitting and reporting requirements allow us to identify which vessels are catching chub mackerel and Mid-Atlantic forage species, how much they are catching of each species or species group, where and when the catch occurs, and what gear is used to catch these species. This information could then be used to monitor catch against the chub mackerel annual landing limits, enforce possession limits, and provide information necessary to assess the status of the stock and develop potential future management measures, as necessary. Thus, this final rule implements the permitting and reporting requirements for Mid-Atlantic forage species.

Comment 19: One individual suggested that NMFS should stop all fishing for forage species, stating that, without limits, commercial vessels will harvest them until endangered and overfished. Respondents to the Pew form letter and another individual suggested that forage fish quotas should be set to prevent overfishing.

Response: We do not agree that it is necessary to stop all fishing for forage species or impose quotas for all species to prevent overfishing or prevent such species from becoming endangered. We do not know much about the status of these species. As noted in the response to the previous comment, the information collected through measures implemented by this final rule will: Provide the information the Council needs to effectively monitor the catch of these species; allow the Council and NMFS to evaluate the potential impacts of existing catch levels on existing fisheries, fishing communities, and the marine ecosystem; and allow the Council and NMFS to set appropriate future landing limits to prevent overfishing, as necessary.

Comment 20: One individual recommended that NMFS implement a 5.25 million-lb (2,381-mt) annual landing limit for chub mackerel because it reflects the historical fluctuation of the chub mackerel market, is more consistent with the market's overall direction, avoids implementing artificial constraints, allows equal access to the market, and facilitates competition in the market rather than consolidating control by a select group of large vessels. He notes that implementing the proposed 2.86 million lb (1,297 mt) limit artificially caps the market and could increase landing price to the disproportionate benefit of large vessels. Lund's Incorporated and the GSSA support the higher limit, stating there is no evidence that the higher limit would harm the stock and that it would reduce discards until the SSC can set a reasonable biologically-based limit in a future action. They also suggest the ecosystem management approach should consider changing species distribution, including the increasing availability of a species like chub mackerel in setting landing limits. In contrast, Pew and another individual felt that the proposed limit is too high and that the limit should be set lower as a precaution because NMFS does not have adequate data about biological and ecological status of stock, what fishing level is sustainable, and the impacts of recent increased fishing.

Response: Although chub mackerel landings have fluctuated greatly since 1996, landings since 2013 are substantially higher than previous years. The Council considered several alternative annual landing limits for chub mackerel, including the average landing amount from 1996-2015 (900,127 lb (408 mt)), average landings from 2011-2015 (1.75 million lb (794 mt), and the highest landings recorded in 2013 (5.25 million lb (2,381 mt)). Instead, the Council adopted a 2.86 million-lb (1,297-mt) annual landing limit to reflect more recent average landings between 2013-2015. This limit accounts for variations in resource availability and catch, and is higher than the five-year average landings, but lower than the highest landings recorded in 2013. This compromise is not only consistent with the purpose of this action to maintain existing catch levels, but also with the principles advocated by several commenters to mirror recent landings trends, reduce discards, and set a precautionary catch limit while the Council develops long-term measures in a subsequent action.

We disagree that the chub mackerel annual landing limit implemented by this final rule implements artificial constraints, prevents equal access to the resource or markets, or disproportionately benefits large vessels. Even without constraints, the landing price for chub mackerel has been highly variable and not necessarily correlated with landing amounts since 1996. The EA suggests that landings amounts and associated price is affected by several variables, including availability of chub mackerel and other species. Therefore, the Council and NMFS cannot determine how any one particular measure affects market prices at this time. All vessels of all sizes have equal access to available chub mackerel under this action. Section 8.11.4.3 of the EA describes the economic impact analysis required under the Regulatory Flexibility Act (RFA). That analysis indicates that between 2006 and 2015, 63 small businesses and affiliated entities reported fishing revenues from forage species affected by this action. All of these entities had average annual sales during 2013-2015 that were less than $11 million, which is the level of annual fishery revenue used to determine small entities under the RFA. Thus, all entities affected by this action are classified as small businesses. Further, this analysis concluded that all proposed measures, including the chub mackerel annual landing limit, would not place a substantial number of small entities at a significant competitive disadvantage to large entities.

Comment 21: Seafreeze Ltd., Lund's Fisheries Incorporated, and the GSSA support the 40,000-lb (18-mt) chub mackerel possession limit once the annual landing limit is reached. Pew indicated that the limit is not supported by the best available science or a methodology similar to the limit used to derive the possession limit for other EC species, suggesting that it should be lower to prevent a directed fishery. Another individual stated the possession limit is higher than annual chub mackerel landings before 2003, and suggested that it disproportionately benefits larger vessels. He recommended that if NMFS implements the 2.86 million-lb (1,297-mt) chub mackerel annual landing limit, NMFS should also implement the 10,000-lb (4.5-mt) possession limit because the annual limit and possession limit must be similarly restrictive to equitably restrict all fisheries regardless of size and better align with the amendment's purpose of preventing fishery expansion. He also noted that the lower possession limit reduces discards, but does not provide enough incentive to target the species.

Response: To be consistent with the methodology used by the Council to determine the possession limit for EC species, the Council would have had to adopt a much higher chub mackerel possession limit than the proposed 40,000-lb (18-mt) limit. The limit for EC species was based on the 99th percentile of dealer-reported landings of these species from 1997-2015. That limit was meant to maintain existing catch levels for those species. In contrast, as noted by Pew, the chub mackerel limit was intended to prevent directed fishing. Accordingly, using a similar methodology is not appropriate, as the trip limit should reduce incentives to target chub mackerel.

The Council chose a 40,000-lb (18-mt) limit because that is the capacity of a bait truck, and limiting landings to that amount reduces economic incentives to target chub mackerel, while allowing vessels to land smaller, incidental amounts of chub mackerel to minimize discards. The Council considered a 10,000-lb (4.5-mt) possession limit based on average trip-level landings from 1996-2015, but that would likely result in higher discards due to larger volumes of chub mackerel caught by larger vessels in recent years. The possession limit selected is separate and distinct from the annual landings limit, and does not need to be proportional to have the desired effect of reducing incentives to target this species once the annual landing limit is caught. We recognize that the possession limit is higher than annual landings before 2003, but note that landings since 1996 have been highly variable, ranging from 479 lb (217 kg) to 5.25 million lb (2,381 mt). Contrary to what one commenter indicated, this possession limit would actually benefit smaller capacity vessels more than larger capacity vessels because it is less likely to constrain landings once the annual landing limit is reached. Section 5.2.3 of the EA states that there is a substantial range in landing amounts within the fishery, concluding that the amount of chub mackerel catch which is truly incidental is not well understood and is likely different for larger, faster vessels than for smaller, slower vessels.

Comment 22: Pew, Lund's Fisheries Incorporated, and the GSSA support the proposed 1,700-lb (771-kg) limit for EC species.

Response: This final rule implements this trip limit for approved EC species.

Comment 23: The Executive Director of the New England Fishery Management Council highlighted that existing regulations for the Northeast Multispecies FMP only allow the retention of certain species in exempted fisheries within the Southern New England Regulated Mesh Area, an area that overlaps with the proposed Mid-Atlantic Forage Species Management Unit. He suggested that the final rule clarify that the most restrictive possession limit would apply to vessels subject to the Northeast Multispecies FMP that are fishing within the Mid-Atlantic Forage Species Management Unit.

Response: We agree. This was an oversight, and we made the appropriate changes to the regulatory text at § 648.351(a) in this final rule.

Comment 24: Seafreeze Ltd. supported the transit measure, but both Lund's Fisheries Incorporated and the GSSA opposed the measure, stating that it creates an unfair competitive situation by allowing harvesters from other jurisdictions to be exempted from possession limits imposed on Mid-Atlantic harvesters.

Response: The transit measure would only apply to catch of Mid-Atlantic forage species outside of the Mid-Atlantic Forage Species Management Unit (Mid-Atlantic Federal waters), which is outside of the jurisdiction of the Mid-Atlantic Fishery Management Council. In addition, because transiting vessels must have their gear stowed when transiting the Management Unit, this measure is unlikely to negatively impact Mid-Atlantic forage species, managed species, or other predators. Further, this measure was developed mostly to address the targeting of chub mackerel within the Gulf of Mexico that are landed in Rhode Island. Since this action counts all chub mackerel landed in New England ports against the chub mackerel annual landing limit, impacts to chub mackerel are minimized. The Magnuson-Stevens Act requires the Council to manage a stock throughout its range. Therefore, when considering integrating chub mackerel into the Atlantic Mackerel, Squid, and Butterfish FMP in a future action under development, the Council will need to consider the species range as it develops measures for that action, including potentially reconsidering the need for this transiting provision.

Comment 25: Pew Charitable Trusts noted that the Mid-Atlantic Fishery Management Council manages some species to the Virginia/North Carolina border and others to the latitude of Cape Hatteras. Pew supported extending the Mid-Atlantic Forage Species Management Unit to Cape Hatteras to ensure there is no gap in the management of these species within the jurisdiction of the Mid-Atlantic Fishery Management Council.

Response: We agree and have implemented the Management Unit as proposed.

Comment 26: The GSSA and Lund's Fisheries Incorporated supported the ability to revise landing and possession limits through a future framework adjustment action.

Response: The framework measures have been implemented through this action.

Comment 27: The GSSA, Lund's Fisheries Incorporated, and the Pew Charitable Trusts support the use of an EFP to support the development of any new or expanded fishery for forage species. Pew indicated that the Council should emulate the more formal EFP review process adopted by the Pacific Fisheries Management Council as part of its Comprehensive Ecosystem Based Amendment 1 and documented in its Council Operating Procedure 24 before opening or expanding any fishery. Pew also recommended that NMFS should prohibit new or expanded fishing on EC species until full Federal management is in place that protects their role as prey in the ecosystem, and that the Council should evaluate whether a species is in need of conservation and management before allowing new or expanded fisheries for these species.

Response: The Council documented its intent to require an EFP and subsequent review through the adoption of this action. Existing regulations at § 648.12 require the Regional Administrator to consult with the Council's Executive Director before approving any exemptions to the Council's FMPs. The regulations revised by this action have already expanded that consultation requirement to specifically include exemptions that would contribute to the development of a new fishery or the expansion of existing fisheries for Mid-Atlantic forage species and chub mackerel. Therefore, the Council has already developed a protocol similar to the Pacific Council's Operating Procedure 24.

At § 648.14(w), this action implements a prohibition against vessels possessing more Mid-Atlantic Forage Species and chub mackerel than authorized in § 648.351. As a result, no additional prohibition is needed to prevent the expansion of existing fisheries or the development of new fisheries for these species. In addition, fisheries for Mid-Atlantic Forage Species cannot develop or expand without a future Council or NMFS action, which must be consistent with the Magnuson-Stevens Act and other applicable law. Thus, both the Council and NMFS will evaluate whether a stock requires conservation and management, and NMFS will ensure that all measures developed for those stocks in the future, including measures to achieve optimum yield, are consistent with applicable law, before approving any new or expanded fisheries for EC species.

Comment 28: Pew Charitable Trusts recommended that NMFS update the list of authorized fisheries and gear in § 600.725(v) to ensure that no fishery on unmanaged forage species emerges without the knowledge of NMFS and the Council.

Response: As noted in Section 5.3.2.2 of the EA for this action, the list of authorized fisheries and gear at § 600.725(v) already includes two general categories of commercial fisheries for which the legal harvest of unmanaged forage species would be allowed without advanced notification to the Council. The Council considered modifying this list as part of this action, but instead implemented more discrete possession limits for forage species. As a result, NMFS cannot unilaterally implement such changes through this final rule. It is likely that any fishery for other unmanaged forage species would be detected through existing data collections such as the vessel logbook or dealer reports. For example, landings of several species of previously unmanaged forage species included in this action (anchovies, argentines, sand lances, silversides, chub mackerel, and frigate mackerel) were recorded in Federal dealer reports. This prompted the Council to develop appropriate management measures through this and the follow-on chub mackerel amendment. Similar action can be taken in the future for other species, as appropriate.

Comment 29: One individual indicated that the negative socioeconomic impacts of this action will be offset by the positive socioeconomic impacts of maintaining healthy populations of forage species. He also noted that the amendment should consider the recreational and professional diving communities in the socioeconomic impact analysis, as a lack of forage species could negatively affect seal and predator populations, which are important drivers of demand for diving and spearfishing trips. The comment included a statement from another individual who estimated that dive shops in the Greater Boston Area cater to up to 1,500 divers each year and have yearly revenues of $3-4 million.

Response: We agree that the benefits of maintaining recent catch levels of certain forage species through measures implemented by this action outweigh the potential costs associated with annual landing limits and possession limits. The EA prepared for this action included a description of the affected environment in Section 6, and an evaluation of the impacts of the proposed measures on components of the affected environment, including marine predators such as fish species, marine mammals, and fishing communities, in Section 7. The socioeconomic impact analysis focused on commercial and recreational fishery participants because they are the entities most likely to be affected by this action. That analysis did not evaluate impacts to diving operations because diving operations are only indirectly affected by this action and are not subject to these measures. As a result, the Regulatory Flexibility Act does not require consideration of the impacts to non-regulated entities such as the diving industry. However, this action should provide benefits to the diving community similar to the benefits that would accrue to the recreational fishery in that it will protect forage species from further commercial exploitation, which will help maintain predator and seal populations important to the spearfishing and diving communities.

We have made several changes to the proposed regulations, including changes as a result of public comment and our decision to disapprove the inclusion of bullet and frigate mackerel as EC species. Some of these changes are administrative in nature, clarify the new or existing management measures, or correct inadvertent omissions in the proposed rule. All of these changes are consistent with section 305(d) of the Magnuson-Stevens Act (16 U.S.C. 1855(d)), which provides that the Secretary of Commerce may promulgate regulations necessary to ensure that amendments to an FMP are carried out in accordance with the FMP and the Magnuson-Stevens Act. These changes are listed below in the order that they appear in the regulations.

In this final rule's amendments to § 648.2, paragraph (a)(14) is renumbered as (a)(12), and paragraph (a)(15) is renumbered as (a)(13), to reflect the disapproval of the inclusion of bullet and frigate mackerel as Mid-Atlantic forage species in this final rule.

The regulations at §§ 648.4(a)(15), 648.5(a)(2), 648.6(a)(1), 648.7(a)(1) and (b)(1)(i), and 648.351(d) were revised by adding language specifying that the vessel permit, operator permit, dealer permit, reporting requirements, and transiting provision for vessels fishing for and possessing Atlantic chub mackerel and dealers purchasing chub mackerel are effective through December 31, 2020, as intended.

In § 648.351(a), the phrase “Unless otherwise prohibited under § 648.80,” was added to the beginning of this paragraph to reference the possession restrictions of Northeast multispecies exempted fisheries. As noted above in Comment 23, the Executive Director of the New England Fishery Management Council indicated that the proposed possession limits for Mid-Atlantic forage species would inadvertently allow a vessel to possess species that are not explicitly authorized for exempted fisheries implemented under the Northeast Multispecies FMP.

The Administrator, Greater Atlantic Region, NMFS, determined that the Mid-Atlantic Unmanaged Forage Omnibus Amendment is necessary for the conservation and management of the fisheries managed by the Mid-Atlantic Fishery Management Council and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866. This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. NMFS received two comments regarding the socioeconomic impacts of this action (see Comments 20 and 29 above). In Comment 20, the commenter suggested that this action would artificially cap the market that could disproportionately benefit large vessels. However, as noted above, because all entities affected by this action are small businesses, this action could not place a substantial number of small entities at a significant competitive disadvantage to large entities. Comment 20 pertained to the diving community, a group that is not subject to the regulations under this action. Accordingly, no comments were received that would change the certification that this action will not have a significant economic impact on a substantial number of small entities regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by the Office of Management and Budget (OMB) under the OMB control numbers listed below. Public reporting burden for these collections of information, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information, are estimated to average, as follows:

1. Initial Federal vessel permit application, OMB# 0648-0202, (45 minutes/response);

2. Initial Federal dealer permit application, OMB# 0648-0202, (15 minutes/response);

3. Initial Federal operator permit application, OMB# 0648-0202, (60 minutes/response);

4. Vessel logbook report of catch by species, OMB# 0648-0212, (5 minutes/response); and

5. Dealer report of landings by species, OMB# 0648-0229, (4 minutes/response).

Send comments on these or any other aspects of the collection of information to the Greater Atlantic Regional Fisheries Office at the ADDRESSES above, and email to [email protected], or fax to (202) 395-5806. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

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