Federal Register Vol. 82, No.211,

Black stem rust is one of the most destructive plant diseases of small grains that is known to exist in the United States. The disease is caused by a fungus (Puccinia graminis) that reduces the quality and yield of infected wheat, oat, barley, and rye crops. In addition to infecting small grains, the fungus lives on a variety of alternate host plants that are species of the genera Berberis, Mahoberberis, and Mahonia. The fungus is spread from host to host by windborne spores.

The black stem rust quarantine and regulations, which are contained in 7 CFR 301.38 through 301.38-8 (referred to below as the regulations), quarantine the conterminous 48 States and the District of Columbia and govern the interstate movement of certain plants of the genera Berberis, Mahoberberis, and Mahonia, known as barberry plants. The species of these plants are categorized as either rust-resistant or rust-susceptible. Rust-resistant plants do not pose a risk of spreading black stem rust or of contributing to the development of new races of the rust; rust-susceptible plants do pose such risks.

On September 5, 2017, the Animal and Plant Health Inspection Service (APHIS) published in the Federal Register (82 FR 41825-41827, Docket No. APHIS-2017-0049) a direct final rule 1 to amend the black stem rust quarantine and regulations by adding 15 varieties to the list of rust-resistant Berberis species and varieties and 2 varieties to the list of rust-resistant Mahonia species and varieties.

We solicited comments on the rule for 30 days ending October 5, 2017, and indicated that, if we received written adverse comments or written notice of intent to submit adverse comments, we would publish a document in the Federal Register withdrawing the direct final rule before the effective date.

We received two comments by that date, neither of which we consider to be adverse. One commenter questioned why rust-resistant plants must be regulated—including being added to the black stem rust quarantine and regulations list, as well as being accompanied by a certificate if moved interstate—if they do not pose a risk of spreading black stem rust.

APHIS' quarantine of the 48 conterminous States and the District of Columbia and restrictions on the interstate movement of Berberis, Mahoberberis, and Mahonia spp. plants are imposed to ensure that those plants do not pose a risk of spreading black stem rust or contributing to the development of new races of the rust. All plants of the genera Berberis, Mahoberberis, and Mahonia are considered regulated articles, though aspects of their regulation may vary depending on their designation as either rust-resistant or rust-susceptible. Certificates that accompany rust-resistant species of barberry plants serve as a means to identify them and allow for their interstate movement into or through designated protected areas as defined in the regulations; rust-susceptible species of barberry plants are prohibited from such movement interstate.

The other commenter questioned the reliability of testing protocols to determine a plant's rust resistance, and requested assurance based on evidence that the sample size used to determine rust resistance is adequate to determine an overall species' resistance.

Testing performed by the Agricultural Research Service of the United States Department of Agriculture (USDA) at its Cereal Disease Laboratory in St. Paul, MN has been used to effectively determine rust resistance for more than 50 years. Based on our extensive experience with this test, we believe that 12—in any of the combinations described in the direct final rule—is the reliable test sample size on which USDA can make its determination. We do not know of any plant that was subsequently discovered to be rust-susceptible after undergoing the test procedure 12 times and being determined by USDA to be rust-resistant.

Therefore, for the reasons given in the direct final rule and in this document, we are confirming the effective date as November 6, 2017.

VA published a proposed rule in the Federal Register at 80 FR 39011 on July 8, 2015, to amend the portion of the VASRD dealing with endocrine disorders. VA provided a 60-day public comment period, and interested persons were invited to submit written comments, suggestions, or objections on or before September 8, 2015. VA received comments from four individuals. In addition, VA received a comment from a veterans service organization. Unless otherwise indicated below, VA adopts the changes set forth in the proposed rule.

One commenter asked whether VA would recognize polycystic ovarian syndrome (PCOS) under the VA rating schedule. VA has a mechanism in place to address PCOS under 38 CFR 4.116. Specifically, the rating schedule for Gynecological Conditions and Disorders of the Breast addresses various ovarian conditions under Diagnostic Code (DC) 7615, “Ovary, disease, injury, or adhesions of” and allows VA to rate based on whether symptoms are controlled by or require continuous treatment. In exceptional cases where the schedular evaluation is inadequate, 38 CFR 3.321 allows for extraschedular evaluation. Therefore, VA makes no changes based on this comment.

Two commenters proposed additional modifications to DC 7913, “Diabetes mellitus.” One commenter suggested adding a note to address the issue of regulation of activities. Another commenter suggested not changing the insulin requirements within DC 7913 without considering the other requirements in the DC such as regulation of activities. The same commenter suggested removing the insulin requirement for a 20-percent rating and the regulation of activities requirement at all disability ratings under the DC. The commenter stated that the functional impairment caused by required use of insulin is greater than impairment caused by ingestion of oral medication to control diabetes. As stated in the proposed rule, VA is not proposing any change to the evaluation criteria for DC 7913 at this time other than requiring “one or more daily injection” of insulin for a 20-, 40- or 60-percent rating and instead intends to establish a work group to specifically address this condition. Therefore, these comments are beyond the scope of this rulemaking. However, VA will take these comments into consideration in connection with a possible future rulemaking.

One commenter suggested changing the terminology for a 100-percent rating under DC 7903, “Hypothyroidism” from “myxedema” to “myxedema coma or crisis” because myxedema can be present without causing the requisite level of symptoms for a 100-percent rating. Myxedema is a term used to denote severe hypothyroidism, and myxedema coma or myxedema crisis is a medical emergency and represents a specific rare life-threatening clinical condition. Because the clinical picture of myxedema appears in the most extreme cases of hypothyroidism, we believe that this manifestation of the disability warrants a 100-percent rating (See Greenspan's Basic & Clinical Endocrinology (D.G. Gardner et al. eds., 9th ed. 2011) available at http://accessmedicine.mhmedical.com/content.aspx?bookid=380&sectionid=39744047#8401831). Therefore, VA makes no changes based on this comment.

The same commenter proposed that VA retain a 10-percent minimum evaluation in the DCs for endocrine disabilities because of the need for continuous medication to control the symptoms of these disabilities. VA disagrees. In the absence of symptoms, medical management of chronic endocrine disorders does not present a significant lifestyle adjustment, and it does not result in impairment of earning capacity (see 38 U.S.C. 1155). Therefore, VA makes no changes based on this comment.

The same commenter noted a typographical error in the text of proposed DC 7911. The word “adrenocortical” was misspelled as “adrenalcortical.” VA has changed the spelling of the term based on this comment.

One commenter was supportive of the overall changes and additions to this section of the VASRD, such as additional DCs, clarification of notes on residuals affecting other body systems, instructions to rate some residuals separately, accounting for additional symptoms, and formation of a new work group for diabetes mellitus. The commenter also commented that proposed DCs 7900 (Hyperthyroidism), 7903 (Hypothyroidism), and 7905 (Hypoparathyroidism) do not adequately account for disability due to uncontrolled thyroid hormone or calcium imbalance because proposed DCs 7900 and 7903 only provide a 30-percent rating for symptoms existing for up to six months after diagnosis and proposed DC 7905 provides a 100-percent rating for symptoms occurring for up to three months after diagnosis; thereafter, residual effects are rated under the body system affected by the endocrine disability. The commenter stated that endocrine function may still be disturbed while the correct dosage of medication is being determined and that some patients may not have received treatment.

We first point out that the ratings under DC 7900 and 7903 are for “six months after initial diagnosis” and the rating under DC 7905 is for “three months after initial diagnosis.” Thus, the claimants are likely receiving treatment. In addition, as VA explained in the notice of proposed rulemaking, most symptoms of hyperthyroidism and hypothyroidism are alleviated within six months of treatment (see 80 FR 39011, 39013 (Jul. 8, 2015)).

With regard to residual symptoms, the primary effect of chronic hyperthyroidism, hypothyroidism, and hypoparathyroidism is on body systems regulated by the thyroid. Therefore, in cases where veterans still have symptoms after six months for hyperthyroidism or hypothyroidism or after three months for hypoparathyroidism, VA addresses residual symptoms by rating all residuals based on the specific disability presented under the most appropriate DCs within the appropriate body system(s).

The residuals of endocrine disorders such as uncontrolled thyroid hormone or calcium imbalance produce measurable disability including muscle damage, blood-clotting issues, nerve and kidney damage, depression, and many others. Therefore, VA makes no changes based on this comment.

The commenter also stated that VA has not provided a reasoned argument for eliminating a 10-percent evaluation when continued medication is required under DCs 7900 and 7903. Ratings under the schedule are “based, as far as practicable, upon the average impairments of earning capacity resulting from [specific] injuries” or combination of injuries (see 38 U.S.C. 1155). As detailed above, VA explained in the notice of proposed rulemaking that symptoms of hyperthyroidism and hypothyroidism generally resolve completely within six months after diagnosis and that symptoms of hypoparathyroidism are generally eliminated following treatment with calcium and vitamin D supplementation (see 80 FR 39011, 39012-14 (Jul. 8, 2015)). Because symptoms are generally eliminated or minimal once a patient receives appropriate medication, there is no impairment of earning capacity and therefore no need to retain the 10-percent rating under DCs 7900, 7903, and 7905. As explained above, any disabling residuals may be rated under the most appropriate rating code. Further, if medication is discontinued and symptoms reappear, the disability could again be rated under the schedule for rating disabilities of the endocrine system.

The same commenter suggested that proposed DC 7912 should account for residuals of common treatment procedures such as the Whipple procedure, which is also used for the treatment of pancreatic cancer. VA regulations allow for secondary service connection for disabilities that are proximately due to or the result of a service-connected disease or injury (see 38 CFR 3.310(a)). Disabilities that are secondarily service connected and have distinguishable symptoms, to include disabilities that arise from the treatment of a service-connected disability, are rated separately under the VA rating schedule. Therefore, VA makes no changes based on this comment.

The same commenter proposed that VA amend DCs 7901 and 7902 to account for the specific characteristics of disfigurement due to thyroid enlargement rather than rating such disfigurement under DC 7800 because the criteria in DC 7800 do not match the features of thyroid enlargement. The commenter provided two examples of this alleged inconsistency, cystic thyroid nodules requiring draining and soft swelling of the neck. If disfigurement related to thyroid enlargement does not satisfy the criteria in DC 7800, the disfigurement does not result in impairment of earning capacity and is not compensable (see 38 U.S.C. 1155). Therefore, VA makes no changes based on these comments.

VA appreciates the comments submitted in response to the proposed rule. Based on the rationale stated in the proposed rule and in this document, the proposed rule is adopted with the change noted.

We are additionally adding updates to 38 CFR part 4, Appendices A, B, and C, to reflect changes to the endocrine system rating criteria made by this rulemaking. The appendices are tools for users of the VASRD and do not contain substantive content regarding evaluation of disabilities. As such, we believe it is appropriate to include these updates in this final rule.

The change to the proposed rule will not alter the estimated costs provided in the previous Notice of Proposed Rulemaking.

Veterans Benefits Administration (VBA) personnel utilize the Veterans Benefit Management System for Rating (VBMS-R) to process disability compensation claims that involve disability evaluations made under the VASRD. In order to ensure that there is no delay in processing veterans' claims, VA must coordinate the effective date of this final rule with corresponding VBMS-R system updates. As such, this final rule will apply effective December 10, 2017, the date VBMS-R system updates related to this final rule will be complete.

Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined, and have been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of this rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule will not directly affect any small entities. Only certain VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Catalog of Federal Domestic Assistance program numbers and titles for this rule are 64.009, Veterans Medical Care Benefits; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on April 19, 2017, for publication.

For the reasons set out in the preamble, the Department of Veterans Affairs amends 38 CFR part 4 as set forth below:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

This rulemaking addresses a SIP submission from the Minnesota Pollution Control Agency (MPCA) dated May 26, 2016, which addresses CAA requirements relating to the state board requirements under section 128, as well as infrastructure requirements of section 110 relating to state boards for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

The requirement for states to make infrastructure SIP submissions arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA section 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA. This specific rulemaking is only taking action on the CAA 110(a)(2)(E)(ii) element of these infrastructure SIP requirements.

EPA's guidance relating to infrastructure SIP submissions can be found in a guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 1 National Ambient Air Quality Standards” (2007 Guidance). Further guidance is provided in a September 13, 2013, document entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and (2)” (2013 Guidance).

Pursuant to section 110(a), states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. MPCA provided public notice for the SIP revision on April 4, 2016, commenced a public comment period on April 5, 2016, and closed the public comment period on May 5, 2016. No comments were received nor were there any requests for a public hearing.

Minnesota provided a detailed synopsis of how various components of its SIP meet each of the applicable requirements in sections 128 and 110(a)(2)(E)(ii) for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS, as applicable.

On July 17, 2017 (82 FR 32669), EPA published a proposed rule that would approve these submissions into Minnesota's SIP. This proposed rule contained a detailed evaluation of how Minnesota's submission satisfies certain requirements under CAA sections 110 and 128. No comments were received. Therefore, EPA is finalizing this rule as proposed.

EPA is taking final action to incorporate Minn. Stat. 10A.07, Minn. Stat. 10A.09, and Minn. R. 7000.0300 into Minnesota's SIP. EPA is further approving this submission as meeting CAA obligations under section 128, as well as 110(a)(2)(E)(ii) for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

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 Minnesota Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 5 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 State implementation plan, 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).

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 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 January 2, 2018. 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:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

The Clean Air Act (CAA) requires the regulation of VOC for various purposes. Section 302(s) of the CAA specifies that EPA has the authority to define the meaning of “VOC,” and what compounds shall be treated as VOC for regulatory purposes.

Tropospheric ozone, commonly known as smog, is formed when VOC and nitrogen oxides react in the atmosphere in the presence of sunlight. Because of the harmful effects of ozone, EPA and state governments limit the amount of VOC that can be released into the atmosphere.

EPA uses the reactivity of ethane as the threshold for determining whether a compound makes a negligible contribution to tropospheric ozone formation. Compounds that are less reactive than, or equally reactive to, ethane under certain assumed conditions may be deemed negligibly reactive and, therefore, suitable for exemption by EPA from the regulatory definition of VOC. EPA lists compounds it has determined to be negligibly reactive in its regulations as being excluded from the regulatory definition of VOC in 40 CFR 51.100(s). See 81 FR 9339 (February 25, 2016).

Illinois' SIP includes a definition of VOC at 35 IAC Part 211, Subpart B, Section 7150 (35 IAC 211.7150), which conforms to EPA's regulatory definition of VOC. Subsection (a) of 35 IAC 211.7150 includes a list of compounds excluded from the regulatory definition of VOC, which reflect the compounds EPA has excluded in 40 CFR 51.100(s) on the basis that they make a negligible contribution to tropospheric ozone formation.

On May 30, 2017, Illinois submitted, as a SIP revision, a change to the definition of VOC at 35 IAC 211.7150 in response to an EPA rulemaking in 2016 that updated an existing exemption for the compound tertiary butyl acetate. Illinois also submitted corrections to chemical names and revisions to chemical identifiers included in the list of excluded compounds at 35 IAC 211.7150(a).

The Illinois SIP currently excludes tertiary butyl acetate for purposes of VOC emissions limitations or VOC content requirements. However, the Illinois SIP includes the compound as a VOC for purposes of all recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements which apply to VOC. See 35 IAC 211.7150(e); 69 FR 69298 (November 29, 2004).

In response to an EPA rulemaking in 2016 (discussed further below), Illinois is revising its SIP to remove the recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements related to the use of t-butyl acetate as a VOC by deleting subsection (e) of 35 IAC 211.7150.

Additionally, Illinois amended the list of excluded compounds by adding the International Union of Pure and Applied Chemistry (IUPAC) names 1 and CAS registry numbers, 2 and presenting common names parenthetically.3 Illinois made these changes to eliminate confusion and make it easier to identify specific excluded compounds in 35 IAC 211.7150(a).

For example, tertiary butyl acetate bears the IUPAC name “1,1-dimethyl ethyl acetic acid ester” and CAS number 540-88-5. EPA lists this compound as “t-butyl acetate” in 40 CFR 51.100(s)(1). Illinois continues to identify the compound as tertiary butyl acetate, and parenthetically added the IUPAC name and CAS number in 35 IAC 211.7150(a).4

Finally, Illinois made an administrative change by deleting the words “of this Section” in 35 IAC 211.7150(d), which discusses appropriate testing methods and includes a reference to subsection (b) of 35 IAC 211.7150.

Effective April 25, 2016, EPA amended the regulatory definition of VOC to remove applicable recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements for the compound tertiary butyl acetate. (81 FR 9339).

EPA had previously excluded tertiary butyl acetate from the definition of VOC for purposes of VOC emissions limitations and VOC content requirements on the basis that it makes a negligible contribution to tropospheric ozone formation. However, EPA continued to define tertiary butyl acetate as a VOC for purposes of all recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements that apply to VOC. See 69 FR 69298 (November 29, 2004). Tertiary butyl acetate was the only compound that was excluded from the VOC definition for purposes of emission controls but still considered a VOC for purposes of recordkeeping and reporting requirements.

In 2016, EPA removed the recordkeeping and reporting requirements related to tertiary butyl acetate as a VOC in response to a petition. In removing these requirements, EPA stated that the primary objective of the recordkeeping and reporting requirements for tertiary butyl acetate was to address the cumulative impacts of “negligibly reactive” compounds, and had suggested that future exempt compounds may also be subject to such requirements. However, these requirements had not been included in any other proposed or final VOC exemptions since the tertiary butyl acetate rule in 2004. EPA found that having high quality data on tertiary butyl acetate emissions alone is unlikely to be very useful in assessing the cumulative impacts of negligibly reactive compounds on ozone formation, and therefore the requirements were not achieving their primary objective to inform more accurate photochemical modeling in support of SIP submissions.

EPA concluded that there was no evidence that tertiary butyl acetate was being used at levels that would cause concern for ozone formation. Additionally, the recordkeeping and reporting requirements, which were unique among all VOC-exempt compounds, were of limited utility because they did not provide sufficient information to judge the cumulative impacts of exempted compounds, and because the data had not been consistently collected and reported by states. As a result, EPA amended 40 CFR 51.100(s)(5) by removing the recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements for tertiary butyl acetate as a VOC. This action did not affect the existing exclusion of tertiary butyl acetate from the regulatory definition of VOC for purposes of emission limits and control requirements found in 40 CFR 51.100(s)(1). 81 FR 9339 (February 25, 2016).

Illinois' SIP revision is consistent with EPA's action amending the definition of VOC at 40 CFR 51.100(s)(5) to exclude recordkeeping and reporting requirements for tertiary butyl acetate. Additionally, this revision did not affect the existing exclusion of this compound from the regulatory definition of VOC for purposes of emission limits and control requirements in 35 IAC 211.7150(a).

Furthermore, Illinois' addition of IUPAC names and CAS registry numbers to the list of excluded compounds in 35 IAC 211.7150(a) is consistent with the Illinois SIP. Illinois has kept the EPA designated names of the compounds in the list, and added information that may make it easier to identify compounds that are excluded from regulation as VOCs. These changes do not interfere with the Federal listing of excluded compounds, and provide more specific chemical composition, structural, and isomeric identification information.

EPA is approving revisions to 35 IAC 211.7150 contained in the May 30, 2017, submittal into the Illinois SIP. We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective January 2, 2018 without further notice unless we receive relevant adverse written comments by December 4, 2017. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should 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. If we do not receive any comments, this action will be effective January 2, 2018.

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 Illinois Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 5 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 State implementation plan, 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.5

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);

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.

• 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, 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 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 January 2, 2018. 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 today's 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. 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:

On April 18, 2017 (82 FR 18268), EPA published a notice of proposed rulemaking (NPR) for the Philadelphia Area. The Philadelphia Area consists of Bucks, Chester, Delaware, Montgomery and Philadelphia Counties in Pennsylvania; Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, Ocean and Salem Counties in New Jersey; Cecil County, Maryland; and New Castle County in Delaware. See 40 CFR 81.331, 81.339, 81.321, and 81.308. In the NPR, EPA proposed to determine, in accordance with its statutory obligations under section 181(b)(2)(A) of the CAA and the relevant regulatory provisions (40 CFR 51.1103), that the Philadelphia Area attained the 2008 ozone NAAQS by the applicable extended attainment date of July 20, 2016.1

Section 181(b)(2)(A) of the CAA requires that EPA determine whether an area has attained the NAAQS by its attainment date based on complete and certified air quality data from the three full calendar years preceding an area's attainment date. The 2008 ozone NAAQS is 0.075 parts per million (ppm). Consistent with the requirements contained in 40 CFR part 50, Appendix P, which set forth how to compute whether monitoring sites and nonattainment areas are attaining the ozone NAAQS, EPA reviewed the ozone ambient air quality monitoring data for the monitoring period from 2013 through 2015 for the Philadelphia Area, as recorded in the air quality system (AQS) database. State and local agencies responsible for ozone air monitoring networks supplied and quality assured the data. EPA determined that the monitoring sites with valid data had design values equal to or less than 0.075 ppm based on the 2013-2015 monitoring period. Therefore, based on 2013-2015 certified air quality data, EPA concludes that the Philadelphia Area has attained the 2008 ozone NAAQS.

Other specific requirements of this determination of attainment by the attainment date and the rationale for EPA's final action are explained in the NPR and will not be restated here. EPA received comments that are addressed in Section III of this rulemaking action.

EPA received adverse comments from the Center for Biological Diversity (Center), Sierra Club, and Delaware Department of Natural Resources and Environmental Control (Delaware). The comments are excerpted and/or summarized and addressed in this section:

Comment 1: EPA's regression approach is inconsistent with EPA's Appendix P regulations, and EPA's reliance on the regression analysis is unlawful and arbitrary. For one of the two monitors (Brandywine), EPA relies on a regression analysis to predict the missing ozone concentration measurements and, as a result, purportedly achieves the requisite data completeness at that monitor. See U.S. EPA Region 3, Delaware Brandywine/Martin Luther King Monitors Data Substitution Analysis TSD 2013-2015 Ozone (Dec. 2016) (TSD), at p. 7. Appendix P is quite clear, however, that “[w]hen computing whether the minimum data completeness requirements have been met, meteorological or ambient data may be sufficient to demonstrate that meteorological conditions on missing days were not conducive to concentrations above the level of the standard.” 40 CFR part 50, Appendix P section 2.3(b) (emphasis added). EPA's regression analysis does not purport to make any demonstrations regarding meteorological conditions, nor can it, as the analysis is based purely on ozone monitor readings.

Response 1: Commenters read 40 CFR part 50, Appendix P, section 2.3(b) too narrowly, and ignore the last sentence of that section, which states that “Missing days assumed less then [sic] the level of the standard are counted for the purpose of meeting the data completeness requirement.” EPA interprets this regulation to allow for reasonable, rational assumptions using available data, whether meteorological or ambient, to determine whether, on days where an ozone monitor is missing data, it is unlikely that the actual ozone levels would exceed the NAAQS. For this determination, EPA used three different methods to determine whether data from days that the relevant ozone monitors were missing data were rationally assumed to be less than the level of the NAAQS, and therefore could be counted toward the data completeness requirement. These methods are: (1) Analysis of temperature; (2) regression analysis; and (3) data substitution. First, EPA conducted an analysis that compared temperature (a meteorological condition) at the Wilmington Delaware National Airport (ILG) to measured ozone readings from 2010 through 2015 at the 18 ozone monitors in the Philadelphia Area (See Table 4 of the technical support document (TSD) at page 4). The highest daily 8-hour ozone readings from those 18 Philadelphia Area ozone monitors on all days (not just missing days) was compared to the maximum daily temperatures at the Wilmington Airport on the corresponding days. The results of this analysis, presented in Figure 1 on page 6 of the TSD, shows that from 2010 through 2015, none of the 18 monitors recorded an 8-hour ozone level above 0.075 ppm when the temperature at Wilmington Airport was at or below 77 degrees Fahrenheit (°F). This analysis identified 18 days in 2013, 30 days in 2014, and 27 days in 2015 with missing ozone readings that could reasonably be assumed to be below the 0.075 ppm threshold at the Martin Luther King (MLK) monitor (AQS ID 10-003-2004) in Delaware. The temperature-based analysis alone added enough complete days to the MLK monitor to meet the data completeness threshold. For the Brandywine monitor (AQS ID 10-003-1010), the temperature-based analysis identified 22 days during 2013, 9 days during 2014, and 8 days during 2015 that could reasonably be assumed to be below a 0.075 ppm ozone reading. However, the temperature analysis did not add enough complete days to the Brandywine monitor to meet the Appendix P data completeness level because there was an insufficient number of days below 77 °F at the Wilmington Airport in which the Brandywine monitor was missing data. Therefore, EPA performed a regression analysis in order to fill in the remaining data gap as well as to validate the data results (for both monitors) obtained from the analysis of temperature method.

This regression analysis relied on ambient data—measured ozone levels at a nearby certified ozone monitor—to predict ozone levels at monitors with missing data. This type of analysis is only appropriate where readings from a nearby certified ozone monitor closely correlate with readings from the monitors with missing data. In this case, EPA examined the two other air quality monitors located in the same county as the Brandywine and MLK monitors, compared recorded ozone readings of all four monitors on days and found that the Bellefonte2 monitor (AQS ID 10-003-1013), which is located five miles from both Brandywine and MLK, correlated most closely with those monitors. As explained in more detail in the TSD, the Bellefonte2 monitor is strongly correlated with both the Brandywine and MLK monitors (TSD at pp. 8-10). Using this information, EPA determined a separate linear regression equation for each of the Brandywine and MLK monitors. These two equations allowed calculation of predicted ozone readings for the Brandywine or MLK monitor on days when those monitors were missing data by using actual ozone readings from the Bellefonte2 monitor (TSD at p.11) in the equation. The values calculated using the linear regression equations for the MLK and Brandywine monitors are shaded green in Table 6 of the TSD on pages 11-16. EPA took a conservative approach and added, as complete days, only those days at the Brandywine monitor where the predicted ozone value was less than 0.060 ppm. That is, EPA only employed the regression analysis method to add days toward the data completeness requirement for the Brandywine monitor where EPA's predicted ozone value was well below the level of the NAAQS. The days added as “complete” days to the Brandywine monitor via this method (linear regression equation showing less than 0.060 ppm ozone) are represented by the numeral “2” in Table 9 of the TSD. The regression analysis added 8 complete days in 2013 and 16 complete days in 2014 to the Brandywine monitor (TSD, p.16) and also validated and confirmed EPA's conclusions from its temperature method analysis at this monitor. Since the analysis of temperature method provided sufficient complete data for the MLK monitor, EPA performed a similar regression analysis for the MLK monitor only for the purpose of confirming and validating its conclusions drawn from the temperature analysis. Both the temperature analysis and regression methods produced the same results at the MLK monitor.

EPA also used a third method—a data substitution analysis—as a further check on the validity of the first two methods on the Brandywine and MLK monitors. When any of the four monitors in New Castle County, Delaware, was missing a valid day of data during the 2013-2015 ozone seasons, EPA looked at ambient data in the form of actual recorded ozone values at the other New Castle County monitors and substituted the highest recorded ozone value for the missing value(s) at the other monitor(s). After adding these substituted data values, a 2013-2015 “test design value” was calculated for all four monitors. None of the four monitors' calculated test design values, including Brandywine and MLK, exceeded the ozone standard of 75 ppb. See Table 8, TSD at p. 17.

Comment 2: The monitor data relied upon by EPA do not actually demonstrate that exceedances of the NAAQS will not occur at temperatures below 78 degrees. (Sierra Club, p. 2). For both of the monitors (Brandywine and MLK), EPA relies heavily on a simplistic comparison of monitored ozone values at monitors within the Philadelphia Nonattainment Area and daily high temperature data from the Wilmington Delaware National Airport to purportedly show that meteorological conditions on days with high temperatures of 77 °F or below are not conducive to ozone formation. TSD at p. 3. But EPA's conclusion regarding the 77 °F temperature threshold is not supported by data upon which EPA relies and is inconsistent with prior statements by the agency regarding the parameters that influence ozone formation. With regard to the data, EPA's sample of monitor-days is far too small a data set from which to conclude that 77 °F represents a magical limit below which ozone concentrations are assured to be below the NAAQS. Indeed, Figure 1 of the TSD shows that at 78 °F—just one degree above the level at which EPA expresses confidence that no NAAQS violations will occur—the maximum monitored ozone level in the Philadelphia Nonattainment Area was close to 85 parts per billion, well above the 75 part per billion (ppb) NAAQS. Moreover, Figure 1 also shows that at 68 °F—nine degrees below the temperature threshold identified by EPA—maximum monitored ozone levels in the Philadelphia Nonattainment Area were within one part per billion of the NAAQS.

Response 2: It is not necessary to demonstrate that exceedances of the NAAQS would never occur at temperatures below 78 °F, nor was the purpose of the analysis of temperature method to do so. The methods used to determine data completeness are consistent with 40 CFR part 50, Appendix P, Section 2.3(b) and are grounded in science. As an example, EPA approved a similar demonstration from Delaware in 2010 for the same Brandywine ozone monitoring site which relied on a similar ozone and temperature comparison. This demonstration was referenced in a clean data determination, which is a different type of rulemaking action that also relies on air quality data, for the Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD nonattainment area for the 1997 ozone NAAQS which was finalized in 2012 (77 FR 17341-17343). The Delaware demonstration relied on ambient ozone and temperature data for years 1997-2009, and reached a similar conclusion that ozone levels did not exceed 0.075 ppm in the Philadelphia area on any days where the daily maximum temperature was less than 77 °F. While not necessary for the data completeness determination for this Philadelphia determination of attainment, this example is provided to demonstrate that data completeness procedures conducted by Delaware in the past have arrived at the same conclusion with regard to the use of temperature data thresholds. Thus, EPA does not agree that the 77 °F temperature threshold below which no ozone exceedances have occurred in the Philadelphia Area is not supported by the evidence. The fact that sometimes very high levels of ozone occur at 78 degrees or that sometimes high levels of ozone (yet still below 0.075 ppm) occur at much lower temperatures does not invalidate the 77 °F threshold in this instance. Also, one measured ozone value above 0.075 ppm does not equal a NAAQS exceedance because of the definition of design value, which is a statistically-based measure of the 4th high over a 3-year period. Regarding the sample size, EPA notes that Delaware's analysis of temperature versus ozone concentrations for the period of 1997 to 2009, when combined with EPA's analysis of temperature versus ozone concentrations for the period of 2010 through 2015, provides nineteen years of data supporting the temperature analysis conclusion. The following sources further discuss the importance of the relationship between temperature and ozone formation as established by both EPA and the scientific literature for decades:

(1) Camalier, L., Cox, W., and Dolwick, P. (2007). The effects of meteorology in urban areas and their use in assessing ozone trends. Atmospheric Environment, Volume 41, Issue 33, pages 7127-7137; (2) Cox, W. and Chu, S (1996). Assessment of interannual ozone variation in urban areas from a climatological perspective. Atmospheric Environment, Volume 30, Issue 14, pages 2615-2615; (3) U.S. EPA (2016). Trends in Ozone Concentrations Adjusted for Weather Conditions. https://www.epa.gov/air-trends/trends-ozone-adjusted-weather-conditions; and; (4) Walcek, C. and Yuan, H. (1995). Calculated influence of temperature-related factors on ozone formation rates in the Lower Troposphere. Journal of Applied Meteorology, Volume 34, pages 1056-1069.

Comment 3: EPA's proposed attainment determination is not protective of public health because monitoring data from the 2016 ozone season no longer supports a finding that the Philadelphia Area is meeting the 2008 ozone NAAQS.

Response 3: To determine whether an area attained by the 2008 ozone NAAQS attainment date of July 20, 2016, EPA is required to rely on the three previous full years of data, which is 2013-2015. CAA section 181(b)(2)(A); 40 CFR part 50, Appendix P, section 2.3(b). Any data occurring in calendar year 2016 cannot be used in this determination because July 20, 2016 is in the middle of the 2016 ozone season and would produce only incomplete non-quality assured, and uncertified data, as of the July 2016 attainment date. The statutory provision governing the type of determination of attainment EPA is finalizing today is very clear: “the Administrator shall determine, based on the area's design value (as of the attainment date), whether the area attained the standard by that date.” CAA section 181(b)(2)(A) (emphasis added). When making determinations of attainment by the attainment deadline, EPA has consistently applied this unambiguous language as restricting its analysis to the years of data that constitute the basis for an area's design value as of the specific attainment deadline. EPA's regulations at 40 CFR part 50, Appendix P further clarify that the design value be derived from “three consecutive, complete calendar years of air quality monitoring data.” 40 CFR part 50, Appendix P, section 2.3(b) (emphasis added). The commenter's request that EPA use non-quality assured, uncertified, incomplete calendar year 2016 data for this section 181(b)(2) determination is not permitted under the statute and regulations.

Comment 4: EPA illegally extended the attainment date deadline.

Response 4: As noted in the proposed rule (82 FR 18269, fn 2), the issue of whether EPA “illegally” extended the attainment date deadline from July 20, 2015 to July 20, 2016 is the subject of a petition for review filed by the State of Delaware on July 5, 2016 in the U.S. Court of Appeals for the District of Columbia Circuit. The petition has been fully briefed, and oral argument was held on October 5, 2017. State of Delaware Department of Natural Resources & Environmental Control v. U.S. Environmental Protection Agency, No. 16-1230. The final rule extending the Philadelphia Area's attainment date is therefore legally effective at this time and outside the scope of this rulemaking.

Comment 5: The CAA requires that a finding of attainment be made only when all measures needed for attainment have been implemented, and the current air quality meets the standard.

Response 5: Commenters are incorrect regarding the CAA's requirements for a section 181(b)(2) determination of attainment by the attainment date. Nowhere in that provision does the CAA require that such a finding can only be made “when all measures needed for attainment have been implemented” and “current air quality meets the standard.” Demonstrations of attainment of the 2008 ozone NAAQS by the attainment date require using the three calendar years of certified air quality data preceding the attainment date, which is 2013-2015.

Comment 6: Section 181(b)(2) does not restrict EPA to considering only fully certified, quality assured and complete data from 2013-2015, and the resulting 3-year design values calculated from those data. EPA should consider the preliminary 2016 data, and has considered data other than the three years of data prior to the attainment date in past rulemakings, including:

(1) The January 25, 2012 proposed determination of attainment and clean data determination for the 1997 ozone NAAQS for the New York-New Jersey-Connecticut Nonattainment Area (NY-NJ-CT NAA) at 77 FR 3720; and

(2) The July 18, 2012 final determination of attainment and clean data determination for the NY-NJ-CT NAA at 77 FR 36163; and

(3) The May 15, 2014 proposal to rescind the clean data determination for the NY-NJ-CT NAA at 79 FR 27830.

Response 6: All of the EPA actions cited by the Commenter support EPA's use of only the three years of complete, quality-assured and certified ozone monitoring data preceding the attainment date when making this section 181(b)(2) determination of attainment by the attainment date. EPA often makes 181(b)(2) determinations of attainment by the attainment date in the same actions as clean data determinations, but these are two distinct actions with different statutory and regulatory requirements and consequences. Therefore, it is reasonable for EPA to consider air quality monitoring data differently for these two types of actions. EPA's regulations governing clean data determinations for the various pollutants, including ozone, interpret the CAA as suspending attainment planning requirements for only as long as the area continues to attain the standard. See, e.g., 40 CFR 51.1118. Thus, for a CDD, EPA requires an attaining design value based on three full years of data, and also may consider any additional preliminary data as well. Because the regulatory consequences of a clean data determination depend on continued attaining air quality, review of data until the final rulemaking as well as post-rulemaking review of data is appropriate. By contrast, section 181(b)(2) has the specific statutory consequence of deciding whether or not an area is reclassified to a higher classification. Under the CAA, if an area attains the NAAQS by its statutory attainment date, it cannot be “bumped up” or reclassified, even if it later violates the standard after that date. The Act therefore instructs the EPA to make a determination of an area's air quality attainment status as of a date certain—the area's attainment deadline.

The January 25, 2012 proposal cited by Commenter contains both a determination of attainment by the attainment date and a clean data determination. The 2012 proposal specifically states that “EPA proposes to determine, in accordance with section 181(b)(2), that the NY-NJ-CT area attained the 1997 eight-hour ozone standard by the applicable deadline for that standard, June 15, 2010. This proposed determination is based on complete, quality-assured and certified data for 2007-2009.” 77 FR 3720, 3722. In the next paragraph, the proposal states “[i]n addition, EPA is separately and independently proposing to determine that the NY-NJ-CT area is currently attaining the 1997 eight-hour ozone standard, based on complete, quality-assured and certified data for 2008-2010 and preliminary data for 2011 that indicate continued attainment.” Id. This second paragraph describes EPA's clean data determination (CDD), and therefore may consider all data up to the point of the rulemaking, including preliminary data. In this action, EPA is only making a section 181(b)(2) determination of attainment by the attainment date for the Philadelphia Area. If EPA were making a clean data determination for the Philadelphia Area, the preliminary 2016 data could be considered as a supplement.

Similarly, the June 18, 2012 2 final action for the NY-NJ-CT NAA uses only complete, quality-assured and certified 2007-2009 data for the determination of attainment by the June 15, 2010 attainment date, while using complete, quality-assured and certified 2008-2010 data and preliminary 2011 ozone data in making its clean data determination. See 77 FR 36163 (June 18, 2012). EPA's 2014 action proposing to rescind the 2012 clean data determination for the NY-NJ-CT NAA followed the same practice of considering all recent data. See 79 FR 27830, 27832 (May 15, 2014). Thus, these previous actions cited by the comment do not show that EPA uses or considers incomplete, uncertified and preliminary data when making a section 181(b)(2) determinations of attainment by the attainment date. Today's action is therefore consistent with the other actions cited by the Commenter.

Comment 7: DNREC objects to EPA performing the data substitution analysis for the two Delaware monitors without notifying Delaware and giving Delaware an opportunity to review prior to publication.

Response 7: EPA is required to make this determination of attainment by the attainment date. This determination of attainment cannot be made without complete air quality data for 2013-2015. Because DNREC did not submit a data substitution analysis for the two Delaware monitors with incomplete data, EPA was required to perform this analysis.

Comment 8: Early 2017 ozone season data show that the Philadelphia Area has already experienced two episodes of nonattaining air quality based on preliminary maximum ozone concentrations of 79 ppb in Delaware and 86 ppb in Philadelphia.

Response 8: EPA's determination of attainment for the 2008 ozone NAAQS for the Philadelphia Area is based on complete, quality assured, and certified data for the 2013-2015 ozone seasons in accordance with section 181(b)(2) of the Act and 40 CFR parts 50, 51 and 58.

Comment 9: EPA's notice did not explain the implications of a finding of attainment in its proposal, and Delaware believes that a finalization of this finding will suspend CAA obligations for the area. Therefore, if EPA makes a final determination of attainment based on the 2013-2015 data, it must immediately make a finding of nonattainment using 2014-2016 data.

Response 9: EPA's notice did not explain in detail all the implications of the section 181(b)(2) determination of attainment by the attainment date. One consequence of the determination of attainment by the extended attainment date is that the Philadelphia Area will not be reclassified as a Moderate nonattainment area. See CAA section 181(b)(2)(A). However, although the Philadelphia Area will remain a Marginal nonattainment area, since it is part of the ozone transport region (OTR) it will need to continue to comply with the additional requirements applicable to OTR states, including moderate area requirements. Furthermore, EPA clearly stated in the Summary section of the NPR that this action was not a redesignation of the Philadelphia Area to attainment. EPA also reiterates that this action is also not a clean data determination under 40 CFR 51.1118. A clean data determination, if it were to occur at some future time, would have the effect of suspending any attainment planning requirements. Regarding the commenter's statement that EPA must immediately make a finding of nonattainment (or a nonattainment designation) using the 2014-2016 ozone data, such a finding would be meaningless in this context. The Philadelphia Area continues to be designated nonattainment for the 2008 ozone NAAQS, and EPA is not, in this notice, issuing a clean data determination such that the Agency would need to rescind such determination based on more recent air quality data. Given that today's action is not changing the Philadelphia Area's marginal nonattainment designation, the suggestion that the Agency issue a nonattainment designation is inappropriate. If certified air quality data indicates issues with continuing attainment of the 2008 ozone NAAQS, the EPA will work with the relevant states in the Philadelphia Area and, to the extent necessary, use appropriate CAA authorities to address those air quality issues.

Comment 10: EPA should not make a determination of attainment for the 2008 ozone NAAQS when data shows that the 2015 ozone NAAQS of 70 ppm is not currently being met.

Response 10: EPA's determination of attainment for the 2008 ozone NAAQS by the attainment date of July 20, 2016, is statutorily required by section 181(b)(2), and requires that EPA use 2013-2015 ozone air quality data in determining whether the 2008 NAAQS has been met, as of the July 20, 2016 attainment date for the 2008 ozone NAAQS. The 2015 ozone NAAQS is not germane to the specific question of whether the area attained the 2008 ozone NAAQS by the attainment date.

Comment 11: Delaying the determination of nonattainment for the Philadelphia Area will only delay adoption of needed SIP measures to bring the area into attainment.

Response 11: The determination of attainment by the attainment date under 181(b)(2) does not suspend any state planning requirements that are in place for the 2008 ozone NAAQS. The effect of this action will result in the Philadelphia Area remaining as a marginal nonattainment area for the 2008 ozone NAAQS, and keeping all currently applicable planning requirements in place, including OTR requirements.

Comment 12: The commenter objects to efforts by Pennsylvania Department of Environmental Protection (PADEP) to remove 2016 ozone data based on “exceptional events,” especially if the exceptional event is an increasing number of heat waves caused by global warning.

Response 12: This comment is not germane to this determination of attainment because EPA did not rely on any Pennsylvania ozone monitoring data from 2016 in making its determination of attainment. As required by the CAA and EPA regulations regarding determinations of attainment by the attainment date, EPA used only complete, quality-assured and certified ozone data from calendar years 2013-2015.

Comment 13: The Center has further concerns about EPA's approach for meeting data completeness requirements, especially given the exceedances of the 2008 and 2015 NAAQS as noted above. The proposed rule notes that EPA was able to “add” missing data from the Brandywine and MLK monitors by conducting “an analysis of the meteorological data and a regression analysis” and performed a “substitution analysis as a check on the validity” of that analysis. See, 82 FR 18270 (April 18, 2017). It would be more appropriate to require redundancy at monitoring stations prone to malfunctioning as opposed to relying on data substitutions in areas suffering from ozone levels at or above the NAAQS to assure that the most accurate data is collected.

Response 13: Please see the responses to comments 1 and 2 above with regard to the adequacy of the methods used to meet the minimum data completeness requirements at the MLK and Brandywine monitors. As to requiring redundant monitors, the Philadelphia Metropolitan Statistical Area (MSA) is currently meeting monitoring requirements specified in 40 CFR part 58 Appendix D. Appendix D does not require redundant monitoring for ozone. EPA has made recommendations to Delaware Department of Natural Resources and Environmental Control (DNREC) to try to reduce the data loss at the Brandywine air monitoring site. EPA is required to perform technical systems audits on each primary quality assurance organization at a frequency of once every three years. DNREC was audited by EPA Region 3 on May 10-12, 2016. One of the major findings of this audit was the incompleteness issues at the Brandywine site. EPA recommended as corrective action to mitigate potential data loss due to down power lines that DNREC do preemptive tree trimming each year. In addition, EPA recommended having a backup power source at the site. DNREC's response to EPA's recommendation was that a back-up power source is not feasible. DNREC will consider purchasing a battery-operated FEM monitor as a back-up in case of sustained power loss at the site, if resources are available.

Comment 14: EPA also received comments that were not germane to this final ruling but referred generally to the support of continuing implementation of air quality standards and regulations. The comments included support of keeping EPA regulations in place to protect human health and the environment.

Response 14: EPA appreciates the supportive comments, and notes that ozone air quality monitoring will continue and existing air quality standards and regulations will remain in place. This determination of attainment by the attainment date does not reduce or revoke any existing ozone monitoring or control requirements.

EPA is making a final determination, in accordance with its obligations under section 181(b)(2)(A) of the CAA and 40 CFR 51.1103, that the Philadelphia Area attained the 2008 ozone NAAQS by the applicable attainment date of July 20, 2016. This determination of attainment does not constitute a redesignation to attainment, and is also not a clean data determination.

This rulemaking action finalizes a determination of attainment for the 2008 ozone NAAQS based on air quality and does not impose additional requirements. For that reason, this determination of attainment:

• 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);

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.

• 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. 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 January 2, 2018. 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 determining that the Philadelphia Area attained the 2008 ozone NAAQS by its July 20, 2016 attainment date may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

This is a summary of the Commission's First Report and Order (R&O), ET Docket No. 15-170, FCC 17-93, adopted July 13, 2017, and released July 14, 2017. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554, or by downloading the text from the Commission's Web site at [http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db1003/FCC-17-93A1.pdf]. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format) by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. On July 17, 2015, the Commission adopted a Notice of Proposed Rulemaking (NPRM) in this proceeding. 80 FR 46900, August 6, 2015. In the First Report and Order, the Commission amended parts 0, 1, 2, 15, and 18 of its rules to update and improve its equipment authorization program. Section 302 of the Communications Act of 1934, as amended (the Act), authorizes the Commission to make reasonable regulations governing the interference potential of devices that emit RF energy and such devices must demonstrate compliance with the Commission's technical and equipment authorization requirements before they can be imported to or marketed in the United States. The Office of Engineering and Technology (OET) administers the day-to-day operation of the equipment authorization program, providing supplemental guidance that is available via public notices and in its online Knowledge Database (KDB). The Commission's actions are described in greater detail below.

2. Supplier's Declaration of Conformity. The Commission adopted its proposal to replace two of the existing equipment authorization procedures (Declaration of Conformity (DoC) and verification) with a single process—“Supplier's Declaration of Conformity” (SDoC). Verification and DoC are both self-approval processes under which the party responsible for the compliance of the RF device has been required to take the necessary steps (testing or analysis) to ensure that the equipment complies with the appropriate technical standards. DoC incorporates additional requirements: Compliance testing must be performed by an accredited testing laboratory and the manufacturer must include of a written compliance statement (i.e., a “Declaration of Conformity”) in the literature furnished to the user and affix a specific FCC logo on the equipment identification label to signify that the equipment meets the Commission's regulations.

3. The Commission determined that, with the advancement in testing technologies, equipment and standards, there is no longer a need to require DoC devices to be tested for compliance by accredited test laboratories. It further noted that without the requirement for laboratory accreditation, the DoC and verification procedures are quite similar. The Commission concluded that adoption of SDoC as single self-approval process would simplify the equipment authorization requirements and reduce confusion as to which process may apply to any given device, while continuing to adequately ensure compliance with its rules. Under SDoC, the responsible party for equipment will test equipment for compliance to specified standards or requirements and supply a statement with the product that certifies that the equipment complies with the rules and identifies the responsible party. This information can be included with other information provided to the user instead of being displayed on the device itself.

4. The Commission found the few arguments against merging DoC and verification (primarily that the Commission should not relax its testing requirements) did not diminish its overall confidence in the adopted SDoC process or its belief that streamlining the procedures by eliminating selected elements would not appreciably raise the risk of harmful interference from devices so approved.

5. Testing and laboratory accreditation. The Commission modified its proposal to eliminate the rule common to verification and DoC that permitted responsible parties to “take other necessary steps” instead of testing to ensure compliance. To resolve commenter's concerns, the Commission decided to continue to specify in its rules that other “measures” will be acceptable to validate the compliance of a device. Such specific acceptable testing procedures would draw upon the types of standardized procedures and voluntary standards that have been incorporated by reference and endorsed in its guidance documents.

6. Compliance information and logo. The Commission adopted its proposal to require all SDoC devices to be marketed with a compliance statement. It found that such a statement will offer assurance that equipment has been determined to be compliant for use in the United States according to the Commission's technical regulations, will allow the Commission to more readily associate the equipment with the party responsible for compliance, and will meet the public's need for information about manufacturers and origins of products.

7. The Commission had initially proposed not to require a specific logo be placed on the device (an element of the existing DoC requirements). It declined the suggestion of several commenters to allow the FCC logo to be used in lieu of the compliance statement, finding that the compliance statement conveys specific information about a product that a consumer cannot independently ascertain from the FCC logo, and that continuing to require the FCC logo would create an unnecessary burden on device manufacturers. Accordingly, it adopted a rule that allows the FCC logo to be physically placed on a device at the discretion of the responsible party consistent with the practices currently specified in §§ 15.19 and 18.209, and only if its device complies with the applicable equipment authorization rules. While the use of such a logo may provide conveniences for the responsible party, its presence will not obviate the need to provide required compliance information or maintain pertinent records related to device testing.

8. Other requirements. The Commission did not adopt its proposal to require a statement with additional information when equipment has been modified, but is nevertheless still subject to the self-approval process. Noting that, when considered as a whole, the rules require the responsible party to provide up-to-date compliance information with each device, the Commission found this information to be sufficient. The existing technical standards pertaining to Class A (commercial/industrial) and Class B (residential/home) digital devices remains otherwise unchanged.

9. Scope. The Commission applied the new SDoC process to all equipment currently subject to the DoC and verification procedures. It took no action to re-visit which equipment authorization process is most appropriate for certain specific categories of devices, but recognized that, in the event specific types of RF devices authorized via SDoC are later found more likely to cause harmful interference due to difficulties in the design, manufacturing, or testing processes, it has the option to remove such devices from the self-approval procedure and subject them to the certification process. Certification is a more stringent approval process that requires, among other things, the use of accredited laboratories.

10. Under parts 15 and 18 of its rules, a responsible party can choose to use the certification process in lieu of DoC for the approval of certain unintentional radiators. The Commission explicitly provided in the SDoC rules that parties may opt to undergo the more rigorous certification process for the equipment authorization for any device. This regulatory option places no burdens on a responsible party, as it is only an option, and parties can later decide to revert to the SDoC procedures, if, for example they decide that the costs associated with certification outweighs the benefits.

11. Transition Period. The Commission permitted manufacturers to continue to use the existing DoC or verification procedures for up to one year from the effective date of the rules if they so choose.

12. E-Labeling. In furtherance of the Enhance Labeling, Accessing, and Branding of Electronic Licenses Act (E-LABEL Act), the Commission adopted new rules to will codify its existing electronic labeling procedures. The E-LABEL Act, which applies to all radiofrequency devices authorized by the Commission that have the “capability to digitally display labeling and regulatory information,” directed it “to promulgate regulations or take other appropriate action, as necessary, to allow manufacturers of radiofrequency devices with display the option to use electronic labeling for the equipment in place of affixing physical labels to the equipment.” The adopted rules generally allow a radiofrequency device to electronically display any labels required by our rules, including the FCC ID required for certified devices, as well as any warning statements or other information that our rules require to be placed on a physical label on the device.

13. Capability of a device to digitally display information. The E-LABEL Act applies to “radiofrequency device[s] with display,” which are defined as equipment or devices that require Commission authorization prior to marketing and sale, and that “ha[ve] the capability to digitally display” required information. The Commission concluded that if the labeling and regulatory information cannot be displayed to the intended recipient “in a manner that effects its purpose,” the device is incapable of digitally displaying the required information as required by the E-LABEL Act.

14. “Three-step” access. The Commission determined to require that labeling and regulatory information, when digitally displayed, should be accessible in no more than three steps. This determination is consonant with the suggestion of an industry group, is similar to other international regulations, and mirrors staff guidance currently provided in the KDB publications. It provided one example of a characteristic sequence: A user accessing the device settings menu (step one); accessing a submenu of legal information (step two); and accessing a further submenu of FCC compliance information (step three). The Commission directed OET to provide guidance in response to any specific questions on how to determine a particular device's compliance with this requirement via the KDB inquiry process.

15. Access Instructions. The Commission decided to require that device users be provided with prominent and specific instructions on how to access the required labeling and regulatory information that be must be included with the device (packaging material, operating instruction booklet, etc.) or on a product-related Web site so long as the packaging material includes a statement that information on accessing this information is available on the Internet, along with effective instructions on how to access the direct Web site containing the required information. These instructions must be available in either the packaging material or another easily accessible format at the time of purchase, and be available on the product-related Web site, if one exists. The responsible party must ensure that the Web site access instructions provided with the packaging material does not lead to a dead link or otherwise fail to provide information necessary for access to the required labeling and regulatory information online. If the party responsible for the marketing of the device changes over time, maintaining this information shall become the responsibility of the party that most recently packaged the specific version of the device and made it available for sale.

16. Codes, permissions, and accessories. Accessing the labeling and regulatory information must not require any special codes or permissions. Other forms of electronic labeling such as Radio Frequency Identification (RFID) tags or Quick Response (QR) codes may not substitute for the on-screen information display, and displays that require the use of special accessories, supplemental software, or similar plug-ins are not permitted. By contrast, screen locks, passcodes, or similar security protections that are designed to control overall device access and use and implemented by the owner(s)/user(s) of a device, are integral to securing personal access to a device and its information, do not inappropriately restrict access to labeling-related information, and are therefore not precluded by the prohibition on special codes.

17. Devices that require connection to a second device to function. Electronic labeling is permitted for devices that do not include an integrated screen but that can only operate in conjunction with a device that has a screen. Such devices are subject to the same requirements as any other RF device that is eligible to use the electronic labeling rules. The Commission further stated that merely being capable of such an association would not qualify a display-free device to use electronic labeling if the device retains any utility in a stand-alone configuration, and, thus, this provision only applies to devices that have no operation or functionality as a radiofrequency device unless connected to an electronic display.

18. Electronic labeling legibility and permanence. The Commission concluded that, regardless of the method of display, electronic or physical, if the required information is not legible, or if a display that is too dim or displayed for too short a duration to be easily read, then the basic purpose of having a labeling requirement is undermined. Accordingly, electronic labeling information must be electronically displayed in a manner that is “clearly legible without the aid of magnification.” Similarly, because electronic labels cannot be easily removed or replaced if they are to be effective, manufacturers that choose to display required labeling information electronically must ensure that the information may not be removed or modified by anyone other than the responsible party.

19. When electronic labels may be used. The Commission found that in defining “electronic labeling,” the E-LABEL Act statute does not limit itself to just the basic equipment labels that the Commission requires (e.g., FCC IDs), and so it should be read broadly to cover any labeling that the Commission may require without regard to the subject matter. The rule the Commission adopted permits, with limited exceptions, e-labeling for “any . . . information that the Commission's rules would otherwise require to be shown on a physical label attached to the device.” Only in those limited cases where an electronic label would be incapable of conveying the information in a timely manner, such that it would undermine the purpose of providing the information in the first place, does the Commission still require the use of physical labels. It provided specific examples, including mandatory labeling requirements and warnings for 406 MHz personal locator beacons, notice of prior coordination requirement for wireless medical telemetry devices, non-interference warnings and serial number identification for MedRadio equipment, and labeling requirements for Emergency Position Indicating Radiobeacons and Emergency Locator Transmitters. Where a rule has a variety of information disclosure requirements, only those elements that relate to labeling the device itself will be eligible for electronic labeling.

20. Temporary External Labels. In the NPRM, the Commission noted that labels are intended to provide consumers with important information about RF devices and inform government officials that the devices meet the technical requirements of its rules and it expressed concerns that these abilities are limited when access to the electronic display is precluded. Thus, the Commission initially proposed that devices using an electronic label instead of a permanent physical label would be required to include the pertinent regulatory information on the product packaging or on a physical label placed on the device at the time of importation, marketing, and sales. In response, some commenters asserted that requiring the removable labels would reduce many of the benefits of e-labeling and that such a requirement was not part of Congress' direction in the E-LABEL Act.

21. The Commission stated that while the E-LABEL Act did not specifically prescribe the use of temporary external labels, it did not directly proscribe them either. It noted that the Act's legislative history stated that the purpose of the bill was “to promote the non-exclusive use of electronic labeling for certain [RF] devices.” It continued that, while the statutory language generically refers to physical labels, the legislative history makes it clear that Congress did not intend to frustrate or disrupt the underlying purpose of the equipment authorization program. Toward this end the Commission asserted that a temporary physical label would support ongoing oversight and provide everyone in the supply chain, including wholesalers, distributors, and retailers, as well as initial purchasers, an obvious assertion that a device comports with our technical requirements and is legal to import/sell/purchase in the U.S. While acknowledging the burdens associated with its temporary labeling proposal, it affirmed its belief that temporary labels or packaging markings would be significantly less burdensome than permanent labels. Accordingly, the Commission concluded that requiring temporary labeling provides a reasonable means for it to meet its objectives in maintaining the ready identification of devices while supporting the overall streamlining and cost-saving objectives embodied in the E-LABEL Act.

22. The Commission accordingly adopted a limited version of its original labeling proposal, specifically requiring a device or its packaging be labeled such that the device can be identified as complying with the FCC's equipment authorization requirements. This could be accomplished via stick-on label, printing on the packaging, or other similar means. In many cases, the label might simply display be the FCC ID, or it can also be sufficient to identify the device by model or name, if the Web page with the relevant regulatory information is readily identifiable. The Commission found that this requirement would afford parties with considerably more flexibility than its existing rules—many of which require external labeling to be readily visible—as well as the existing KDB guidance and it would significantly reduce the potential burdens that parties had identified in the original proposal.

23. Labeling for small devices. The Commission adopted a rule specifying that, in the event that a device is so small that its identifying information cannot be displayed on its surface in four-point type or larger, and it does not have a capability for electronic display, then that device's identifying information may be placed in its user manual.

24. Importation Rules. To ensure that RF devices brought into the United States comply with the Commission's technical standards, the Commission rules set out specific conditions under which RF devices that are capable of causing harmful interference to radio communications may be imported into the United States. The Commission eliminated the FCC-specific customs declaration filing requirement (effected by FCC Form 740) and modified rules specifying responsibility for the compliance of imported RF products to account for this change.

25. Importation declaration/FCC Form 740. The Commission discontinued use of FCC Form 740 and eliminated §§ 2.1205 and 2.1203(b), thus removing the Form 740 filing requirements. It found nothing in the record to indicate that the existing Form 740 filing process provides a substantial deterrent to illegal importation of RF devices, that the existing filing requirement creates large burdens in light of the growth in the number and type of RF devices being imported, and that there is now a wider availability of product and manufacturer information, including that available to the FCC from the Custom and Border Protection (CBP)'s database.

26. Compliance Responsibilities. The Commission retained the requirement that there must be an entity that assumes responsibility for the compliance of the device and modified the rules to ensure the existence and identity (and a domestic presence under the new SDoC rules), of such a responsible party.

27. The responsible party can be the importer or the consignee or the customs broker. The Commission noted that customs brokers have the ability to decline to broker shipments for which no other party will take responsibility, and they can take added steps to ensure that their clients follow our rules for shipments they broker (e.g., by requiring a compliance statement from clients or obtaining an indemnification agreement or suitable bonding). The new rule also requires the submission of supporting documentation of compliance upon request by the Commission.

28. Increasing the number of trade show devices. The Commission modified § 2.1204(a)(4), which allows for the importation of RF devices for demonstration purposes at a trade show, provided that those devices will not be sold or marketed, to permit the importation of up to 400 devices of any type for that purpose. The prior rule allowed for 200 units for devices used in licensed services (including the “licensed by rule” services) and 10 units for all other products, but also allowed for the importation of a greater number of devices upon written approval from OET. The revised limits are appropriate and will reduce overall administrative burdens. Based on past experiences with trade shows in which parties have sought approval to import and demonstrate more devices than the current rules allow, the new limit should accommodate future needs while still maintaining a check on the potential that too many imported trade show devices could lead to interference concerns. The option to seek written approval to import more than 400 devices will remain available under new § 2.1204(a)(4)(ii) for any such cases that might occur.

29. Excluded devices. The Commission did not adopt its proposal to remove the exclusion contained in § 2.1202(a) of the rules for certain unintentional radiators “which utilize low level battery power and which do not contain provisions for operation while connected to AC power lines” from complying with the Commission's importation conditions. In response to commenters' concerns, it retained the exclusion and its description in the rules, but removed the list of example devices (e.g., cameras, musical greeting cards, and hand-held calculators) contained in the rules that, in many cases, are obsolete and can be misleading.

30. Devices imported for personal use. The Commission revised § 2.1204(a)(7) to allow an individual to import for personal use up to three devices, including those covered under the current exemption and adding intentional RF transmitters whether or not used in conjunction with licensed service and identified under our rules as client or subscriber devices. It limited the expansion of the rule to encompass client or subscriber devices to account for modern use scenarios while still ensuring that the importation rules continue to offer adequate protection against the types of devices that have the greatest potential to lead to cases of harmful interference.

31. Measurement Procedures. These rule modifications will make it easier to keep up with changes in technology and industry measurement standards and address the evolution of how new technologies are incorporated into ensuing generations of devices, thus making it easier to ensure that RF devices are tested properly.

32. Streamlining and Consolidating References to KDB Guidance. The Commission modified § 2.947(a)(3), which had referred to “any measurement procedure acceptable to the Commission,” to specifically include a reference to the advisory information that is available in the KDB. This assists manufacturers and the public by providing a clear reference to an existing resource that provides technical guidance. A new provision (subsection (g)) requires test reports to contain adequate test data or sufficient justification as to why test data was not required. This will help ensure consistency among submissions, particularly when a party is not submitting all possible testing data that could be performed. The Commission also added references to KDB Publications in Parts 15 (for unlicensed RF devices) and Part 18 (for Industrial, Scientific, and Medical (ISM) Equipment).

33. References to Industry Standards. The Commission revised the specific measurement procedures contained in §§ 15.31, 15.32 and 15.35 to remove any redundancy with the ANSI C63.4-2014 and ANSI C63.10-2013 procedures that are specified by reference in §§ 15.31(a)(3) and (a)(4) and, in the case of § 15.35(a), to reference ANSI C63.4-2014 clause 4 for specifications on measuring instrumentation using a CISPR-quasi peak detector function and related measurement bandwidths. It did not modify §§ 2.1057 and 15.33(a) so that it could retain clear requirements in the rules on the specified range for frequency measurements.

34. Composite systems. Many products now include devices that operate under multiple rules sections that have distinct authorization requirements and the measurement procedures for the certification of these so-called “composite systems” are included in §§ 15.31(h) and 15.31(k) of the rules. The Commission modified its rules to move most provisions for composite systems to part 2 of its rules since they generally apply to all types of advices. Certain requirements that specifically apply to unlicensed devices remain in §§ 15.31(h) and 15.31(k).

35. ANSI C63.26 (Compliance Testing for Licensed Radio Services). The Commission amended §§ 2.910(c) and 2.1041 to include ANSI C63.26-2015, “American National Standard for Compliance Testing of Transmitters Used in Licensed Radio Services” as an acceptable measurement procedure for equipment that operates in authorized radio services covered by the measurement standard. This standard can be used for measurements that are required by §§ 2.1046, 2.1047, 2.1049, 2.1051, 2.1053, 2.1055, and 2.1057. Use of ANSI standards is long-standing Commission practice and this standard is in the public domain; although there is a fee for its use. It retained all current options in § 2.947 that can be considered in selecting a measurement procedure to be used for demonstrating compliance. Finally, it allowed accredited laboratories to test to the ANSI C63.26 standards for up to two years from the date of adoption of the First Report and Order without an explicit expansion of their scope by an accrediting body.

36. Incorporation by Reference. The FCC is required by law to obtain approval for incorporation by reference from the Office of the Federal Register (OFR). The OFR's requirements for incorporation by reference are set forth in 1 CFR part 51. The OFR's regulations require that agencies must discuss in the preamble of the final rule ways that the materials the agency incorporates by reference are reasonably available to interested persons and how interested parties can obtain the materials. In addition, the preamble of the final rule must summarize the material being incorporated by reference. 1 CFR 51.5(b).

37. In accordance with OFR's requirements, the discussion in this section summarizes ANSI standards. They can be viewed during normal business hours at the Commission address found in ADDRESSES. Copies of the standards are available for purchase from these organizations: The Institute of Electrical and Electronic Engineers (IEEE), 3916 Ranchero Drive, Ann Arbor, MI 48108, 1-800-699-9277, http://www.techstreet.com/ieee; and the American National Standards Institute (ANSI), 25 West 43rd Street, 4th Floor, New York, NY 10036, (212) 642-4900, http://webstore.ansi.org/ansidocstore.

38. (1) ANSI C63.26-2015, “American National Standard for Compliance Testing of Transmitters Used in Licensed Radio Services,” ANSI approved December 11, 2015, IBR approved for § 2.1041.

39. This standard, ANSI C63.26-2015, covers the procedures for testing a wide variety of licensed transmitters; including but not limited to transmitters operating under parts 22, 24, 25, 27, 90, 95 and 101 of the FCC Rules, transmitters subject to the general procedures in part 2 of the FCC Rules and procedures for transmitters not covered in the FCC Rules. The standard also addresses specific topics; e.g., ERP/EIRP, average power measurements and instrumentation requirements.

40. (2) ANSI C63.4-2014: “American National Standard for Methods of Measurement of Radio-Noise Emissions from Low-Voltage Electrical and Electronic Equipment in the Range of 9 kHz to 40 GHz,” ANSI approved June 13, 2014, IBR approved for § 15.35(a).

41. This standard, ANSI C63.4-2014, contains methods, instrumentation, and facilities for measurement of radiofrequency (RF) signals and noise emitted from electrical and electronic devices in the frequency range of 9 kHz to 40 GHz, as usable, for example, for compliance testing to U.S. (47 CFR part 15) and Industry Canada (ICES-003) regulatory requirements.

1. This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. On August 11, 2017, the Office of Management and Budget determined that the rule changes made in the First Report and Order represent nonsubstantive changes to currently approved collections. Therefore, the existing approvals, OMB control numbers 3060-0329 and 3060-0636, continue to apply to the rules addressed herein.

2. The Commission will send a copy of the First Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

3. The Regulatory Flexibility Act of 1980 (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA), set forth in Appendix B of the First Report and Order concerning the possible impact of the rule changes.

4. Accordingly, it is ordered that pursuant to Sections 1, 4(i), 7(a), 301, 303(f), 303(g), 303(r), 307(e), 332, and 720 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157(a), 301, 303(f), 303(g), 303(r), 307(e), 332, 622, and Sections 0.31(g), 0.31(i), and 0.31(j) of the Commission's rules, 47 CFR 0.31(g), 0.31(i), 0.31(j), this Report and Order is adopted.

5. It is further ordered that the rules and requirements adopted herein will become effective upon publication in the Federal Register.

6. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this First Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2, 15, 18, 73, 74, 78, 80, 87, 90, and 101 as follows:

NMFS and the Council manage South Atlantic snapper-grouper including red snapper under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The Council prepared the FMP and NMFS implements the FMP through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Magnuson-Stevens Act provides the legal authority for the promulgation of emergency regulations under section 305(c) (16 U.S.C. 1855(c)).

Harvest of red snapper from South Atlantic Federal waters was prohibited in 2010 through a temporary interim rule and then through Amendment 17A to the FMP when the stock was determined to be overfished and undergoing overfishing (Southeast Data, Assessment, and Review (SEDAR) 15, 2009) (74 FR 63673, December 4, 2009; 75 FR 76874, December 9, 2010). Amendment 17A also implemented a 35-year red snapper rebuilding plan that began in 2010, and set the red snapper ACL at zero. Amendment 28 to the FMP established a process that allowed red snapper harvest (ACL greater than zero) if total removals (landings plus dead discards) were less than the acceptable biological catch (ABC) in the previous fishing year (78 FR 44461, July 24, 2013). Limited harvest of red snapper was allowed in 2012, 2013, and 2014. However, because the estimated total removals of red snapper exceeded the ABC in 2014, 2015, and 2016 due to estimates of red snapper discards that were incidentally harvested as bycatch while targeting other species, there was no allowable harvest in 2015, 2016, and 2017.

The process established through Amendment 28 specifies that harvest would begin in July, and specifies when the commercial and recreational seasons would open and close and the applicable fishing regulations during any open season. The commercial red snapper season closes when the commercial ACL is met or projected to be met. The length of the recreational red snapper season is projected and announced before the start of the season, based on catch rate estimates from previous years. The NMFS Regional Administrator (RA) has the authority to delay the opening of red snapper fishing seasons in the event of a tropical storm or hurricane affecting the area of the Council's jurisdiction. Additionally, there is no minimum size limit for either the commercial or recreational sector; the commercial trip limit is 75 lb (34 kg), gutted weight, and the recreational bag limit is one fish per person per day.

This temporary rule will allow limited commercial and recreational harvest of red snapper in 2017 by implementing a total ACL of 42,510 fish, based on the landings observed during the limited red snapper season in 2014. The total ACL is divided into a commercial ACL of 124,815 lb (56,615 kg), round weight, and a recreational ACL of 29,656 fish, based the current sector allocation ratio developed by the Council for red snapper (28.07 percent commercial and 71.93 percent recreational). The commercial sector's ACL is set in pounds of fish because the commercial sector reports landings in weight and therefore weight is a more accurate representation of commercial landings. In this temporary rule, for the commercial sector, one red snapper is equivalent to 9.71 lb (4.40 kg), round weight. ACLs for the recreational sector are specified in numbers of fish because numbers of fish are a more reliable estimate for that sector than specifying the ACL in weight of fish. Surveys that estimate recreational landings collect information on numbers of fish and convert those numbers to weights using limited biological samples, so there is considerable uncertainty in estimates of recreational landings by weight.

The recreational bag limit will be one fish per person per day and the commercial trip limit will be 75 lb (34 kg), gutted weight. There will not be a minimum size limit set for either sector. The commercial sector will close when the commercial ACL is projected to be met during the limited 2017 fishing season. The opening and closing of the recreational sector is being specified before the recreational season begins and consists of two weekends only (Friday, Saturday, Sunday). The effectiveness of this temporary rule is only for the 2017 fishing year and does not authorize any harvest after December 31, 2017.

The most recent stock assessment for South Atlantic red snapper, SEDAR 41 (2017), was completed in 2016 and revised in 2017. SEDAR 41 (2017) evaluated data through 2014 and determined the red snapper stock was overfished and that overfishing was occurring. The stock assessment indicated that overfishing was occurring because the estimated fishing mortality based on the average over the last three years of the assessment represented in the model (2012-2014) exceeded the maximum fishing mortality threshold. Though limited red snapper harvest was allowed during those years, the majority of the estimated fishing mortality occurred from estimated dead discards. The estimated red snapper discards during these years were very high as a result of fishermen targeting red snapper and species that co-occur with red snapper, such as vermilion snapper, gag, red grouper, black sea bass, gray triggerfish, greater amberjack, and scamp.

In May 2016, the Council's Scientific and Statistical Committee (SSC) stated that SEDAR 41 (2017) was based on the best scientific information available, but noted the assessment findings were highly uncertain regarding to what extent overfishing was occurring (i.e., the actual numerical value of the current fishing mortality estimate). The SSC indicated that the most significant sources of uncertainty in the assessment include: the stock-recruitment relationship, natural mortality at age, the age structure of the unfished population, the composition and magnitude of recreational discards (where dead discards greatly outnumbered the landings during the years 2012 through 2014), and potential changes in catch per unit effort(CPUE).

The projections of yield streams used in SEDAR 41 (2017) included both landings and dead discards, which were added to get an estimate of the total removals. However, red snapper is primarily a discards-only fishery as a result of the harvest prohibitions. Therefore, the Council determined that discard-only projections (zero landings) would be more informative for management. In January 2017, the Council requested the NMFS Southeast Fishery Science Center (SEFSC) provide red snapper projections under the assumption that all fish caught are subsequently discarded. Following the request, the SEFSC advised the Council in February 2017 that the requested projections were not appropriate for management use because uncertainty in the assessment was already large, and the uncertainty would increase with a more complete evaluation of the effect of the upcoming changes to Marine Recreational Information Program (MRIP). Recreational catch and effort data, including discards, are monitored through MRIP, which is currently transitioning from the current Coastal Household Telephone Survey to a new mail survey design for estimating marine recreational shore and private boat fishing effort, known as the Fishing Effort Survey. NMFS expects that the Fishing Effort Survey will result in a more efficient representation of recreational fishing effort, including that of discards; however, in order for a new survey method to be implemented, historical catch statistics will need to be converted into the same `currency' as the new estimates. This process is underway.

Additionally, in their February 2017 response, the SEFSC also advised the Council that the uncertainty in the stock assessment inhibits the ability to set an ABC that can be effectively monitored. The SEFSC further stated in an April 2017 letter to the Council, that the use of an ABC based primarily on fishery discards for monitoring the effectiveness of management action is likely ineffective due to the high level of uncertainty in measures of discards and the change in the effort estimation methodology that will be implemented in the MRIP survey.

NMFS informed the Council in a letter, dated March 3, 2017, that, based on the results of SEDAR 41 (2017) using data through 2014, the red snapper stock was still overfished but was rebuilding in accordance with the rebuilding plan. Further, NMFS stated that sufficient steps had been taken to address overfishing of red snapper while continuing to rebuild the stock through harvest prohibitions in 2015 and 2016. This determination is supported by an increase in stock biomass since 2010, and increasing abundance of older age classes (SEDAR 41 2017).

The intended effect of this temporary rule is to minimize adverse socio-economic effects to fishermen and fishing communities that utilize red snapper as part of the snapper-grouper fishery. Fishing seasons that prohibit the harvest of red snapper incur lost opportunities to fish among both the commercial and recreational sectors. NMFS and the Council expect that increased fishing opportunities resulting from these temporary measures should provide direct benefits to fishermen in the form of additional revenue and recreational opportunities, in addition to indirect benefits to businesses that provide supplies for fishing trips. NMFS expects the total aggregate increase in the 2017 fishing season ex-vessel revenues to commercial vessels as a result of these temporary measures would range from $176,940-$236,279 (2016 dollars), and that up to 658 federally permitted commercial snapper-grouper vessels could participate in this harvest in 2017. The recreational consumer surplus to anglers as a result of a limited 2017 harvest could increase by about $2,402,136 (in total; assuming that each of the 29,656 recreational fish is harvested by an individual angler). The potential also exists for revenues and profits generated by charter vessels and headboats (for-hire vessels) and fishing support businesses to increase, but such effects cannot be estimated with the current information.

NMFS determined that allowing limited harvest of red snapper in 2017 is not likely to result in overfishing, or prevent continued stock rebuilding. This determination is based on the uncertainty in the assessment associated with: The stock-recruitment relationship, natural mortality at age, the age structure of the unfished population, and the composition and magnitude of recreational discards inhibiting the ability of the SEFSC to project ABC into the future. Additional support comes from fishery-independent information collected through the Southeast Reef Fish Survey (SERFS) program, and the East Coast Fisheries Independent Monitoring information conducted by Florida Fish and Wildlife Conservation Commission (FWCC), presented to the Council at their June and September 2017 meetings, respectively. According to the SERFS, relative abundance (CPUE) of red snapper has increased since 2009, reaching the highest level observed in the entire time series (1990-2016) in 2016. According to the results of FWCC's study, CPUE for red snapper for hook gear (surveyed in 2012, 2014, 2016, and 2017) and the standardized index of abundance (surveyed from 2014-2017) was highest in 2017. The FWCC data also showed a greater number of large red snapper and a broader range of ages in recent years, which suggests rebuilding progress of the red snapper stock. The Council's SSC noted a red snapper population increase in their April 2017 report, stating that “. . . a continuing upward trend in the fishery-independent index has a high probability of reflecting increases in population size.” As noted by the new information presented to the Council in June and September 2017, the increase in relative abundance of red snapper indicated by the fishery-independent CPUE indices has taken place despite landings during the limited seasons in 2012-2014 and despite the large number of estimated red snapper dead discards during harvest restrictions for red snapper since 2010. The amount of harvest allowed in this temporary rule is equivalent to the amount of observed landings in the 2014 fishing season. Therefore, NMFS has determined that allowing that same amount of harvest in this temporary rule in 2017 is unlikely to result in overfishing or change the red snapper rebuilding time period, and is based on the best scientific information available.

NMFS' Policy Guidelines for the Use of Emergency Rules (62 FR 44421, August 21, 1997) list three criteria for determining whether an emergency exists, and this temporary rule is promulgated under these criteria. Specifically, NMFS' policy guidelines require that an emergency:

(1) Result from recent, unforeseen events or recently discovered circumstances; and

(2) Present serious conservation or management problems in the fishery; and

(3) Can be addressed through emergency regulations for which the immediate benefits outweigh the value of advance notice, public comment, and deliberative consideration of the impacts on participants to the same extent as would be expected under the normal rulemaking process.

NMFS has determined that allowing harvest in 2017 meets the three criteria required for an emergency rule. The new red snapper abundance and CPUE information collected through the SERFS program and FWCC's study constitutes recently discovered circumstances, since it was presented to the Council at their June 2017 and September 2017 meetings. In addition, the continued harvest prohibition of South Atlantic red snapper poses significant management problems to NMFS and the Council. Fishery closures result in the limited collection of fishery-dependent data, and that negatively impacts the stock assessment process. Additionally, the harvest prohibition of red snapper results in adverse socio-economic effects to fishermen and fishing communities through lost opportunities among the commercial and recreational sectors to fish for and possess red snapper during the fishing year. Input from fishers also indicates that they are increasingly frustrated with the perceived waste of the red snapper resource resulting from the continued discarding of red snapper when they target co-occurring species. Finally, the immediate benefits of implementing a limited red snapper commercial and recreational fishing season in 2017 outweigh the value of providing advance notice and public comment under the normal rulemaking process. Public comments on this action at the September 2017 Council meeting indicated that many fishermen favored a limited 2017 season. The Council considered these public comments when they recommended that NMFS proceed with a temporary rule for emergency action at their September 2017 meeting. Further, the time it would take to complete public notice and solicit public comments through rulemaking would not allow adequate time for a fishing season to take place in 2017.

Additionally, while harvest restrictions remain in place, fishers report they are encountering large numbers of red snapper, which is further supported by the long-term SERFS fishery-independent CPUE index. Allowing a limited amount of harvest in 2017 through this temporary emergency action would allow commercial and recreational fishermen to harvest this species, and would also generate revenue for businesses within these sectors. Also, limited commercial and recreational harvest of red snapper in 2017 will provide an opportunity to collect fishery-dependent data including catch, fishing effort estimates, and life history information that will be useful for future red snapper stock assessments and management decisions.

This temporary rule implements management measures to authorize the limited harvest and possession of red snapper in or from the South Atlantic EEZ in the 2017 fishing year. The 2017 commercial ACL is set at 124,815 lb (56,615 kg), round weight, and the 2017 recreational ACL is set at 29,656 fish. These ACLs are based on the total 2017 ACL, as determined by NMFS, of 42,510 fish and following the current allocation ratio for red snapper (28.07 percent commercial and 71.93 percent recreational).

NMFS and the Council are establishing several management measures that function as accountability measures to constrain red snapper harvest to these ACLs, including the establishment of limited commercial and recreational red snapper seasons for 2017. The recreational season will open for two consecutive weekends made up of Fridays, Saturdays, and Sundays. The recreational season opens at 12:01 a.m., local time, on November 3, 2017, and closes at 12:01 a.m., local time, on November 6, 2017; then reopens at 12:01 a.m., local time, on November 10, 2017, and closes at 12:01 a.m., local time, on November 13, 2017. The commercial season opens at 12:01 a.m., local time, November 2, 2017. NMFS will monitor commercial landings in-season and if commercial landings reach or are projected to reach the commercial ACL, then NMFS will file a notification with the Office of the Federal Register to close the commercial sector for red snapper for the remainder of the 2017 fishing year. NMFS notes that if the commercial ACL has not been met or been projected to have been met by December 31, 2017, no commercial harvest would be allowed through this temporary rule after 11:59 p.m., local time, on December 31, 2017. Harvest will additionally be constrained through the implementation of commercial and recreational management measures such as trip limits and bag limits.

During these limited 2017 fishing seasons, the commercial sector will have a 75 lb (34 kg), gutted weight, daily commercial trip limit and the recreational sector will have a 1 fish per person daily recreational bag limit. The 1 fish per person recreational bag limit is included in the 10-fish aggregate snapper bag limit. No size limits are implemented for either sector through this temporary rule in an effort to decrease regulatory discards (fish returned to the water because they are below the minimum size limit). If severe weather conditions exist, the RA has the authority to modify these opening and closing dates. The RA will determine when severe weather conditions exist, the duration of the severe weather conditions, and which geographic areas are deemed affected by severe weather conditions. If severe weather conditions exist or if NMFS determines the 2017 commercial or recreational ACLs were not harvested and a reopening of either or both sectors in 2017 is possible, the RA will file a notification to that effect with the Office of the Federal Register, and announce via NOAA Weather Radio and in a Fishery Bulletin any change in or reopening of the red snapper fishing seasons.

The Council is currently developing both Amendment 43 and Amendment 46 to the FMP. Amendment 43 contains actions to establish commercial and recreational ACLs and associated revisions to management measures for red snapper that would allow for a specific level of harvest each year. At its September 2017 meeting, the Council took final action and approved Amendment 43 and will submit the amendment to the Secretary for subsequent rulemaking and implementation during the 2018 fishing year. Amendment 46, in preliminary development by the Council, would consider other red snapper management measures.

This action is issued pursuant to section 305(c) of the Magnuson-Stevens Act, 16 U.S.C. 1855(c). The Assistant Administrator for Fisheries, NOAA (AA), has determined that this temporary rule is necessary to promote an economic opportunity for South Atlantic snapper-grouper fishermen that otherwise would be foregone and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is being taken pursuant to the emergency provision of MSA and is exempt from OMB review.

The AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because they are contrary to the public interest. This temporary rule promotes an economic opportunity for South Atlantic snapper-grouper fishermen that would otherwise be forgone if harvest in 2017 were not to occur. Limited harvest and possession of red snapper in 2017 is expected to result in revenue increases to commercial vessels and benefit increases to recreational anglers, in addition to providing opportunity to for-hire vessels in booking more trips that could increase their revenues and profits. At the September 2017 Council meeting, South Atlantic snapper-grouper fishermen discussed the merits of opening red snapper in the South Atlantic for a short time period in 2017. Fishermen will be able to keep a limited number of the red snapper that they are currently required to discard. As previously discussed, commercial fishermen should be able to increase their revenues in 2017 by being able to sell a highly marketable fish during the limited opening. Additionally, short red snapper seasons will provide an opportunity to collect fishery-dependent data that likely may be useful for future stock assessments. Currently, the lack of available red snapper data hinders the ability to assess the status of the stock. Delaying the implementation of this rulemaking to provide prior notice and the opportunity for public comment would reduce the likelihood of opening the red snapper component of the snapper-grouper fishery in the 2017 fishing year. As a result of the recent receipt of scientific information indicating that harvest in 2017 is possible, there is insufficient time for NMFS to implement these measures earlier in this fishing year and/or possibly allow for prior notice and opportunity for public comment on the rulemaking. The harvest allowed in 2017 in this rule is not expected to result in overfishing or impede rebuilding of the stock.

For these same reasons, the AA also finds good cause to waive the 30-day delay in effectiveness of the actions under 5 U.S.C. 553(d)(3).

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. are inapplicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows: