Federal Register Vol. 83, No.195,

Federal Register Volume 83, Issue 195 (October 9, 2018)

Page Range50475-50801
FR Document

83_FR_195
Current View
Page and SubjectPDF
83 FR 50660 - Sunshine Act MeetingPDF
83 FR 50738 - Sunshine Act MeetingsPDF
83 FR 50687 - Government in the Sunshine Act Meeting NoticePDF
83 FR 50688 - Government in the Sunshine Act Meeting NoticePDF
83 FR 50670 - Changes in Flood Hazard DeterminationsPDF
83 FR 50700 - Southern Nuclear Operating Company, Inc., Vogtle Electric Generating Plant, Units 3 and Updates to Tier 1 Table 2.5.2-3PDF
83 FR 50723 - Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Align Existing Investigatory and Disciplinary Processes and Related Rules With the Investigatory and Disciplinary Processes and Related Rules of Nasdaq PHLX LLCPDF
83 FR 50739 - Delegation of Authority by the Secretary of State to the Administrator of the United States Agency for International Development of Functions and Authorities Under the Reinforcing Education Accountability in Development ActPDF
83 FR 50686 - Exxon Valdez Oil Spill Public Advisory CommitteePDF
83 FR 50650 - Submission for OMB Review; Comment RequestPDF
83 FR 50674 - Senior Executive Service Performance Review BoardPDF
83 FR 50740 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: 2120-0043PDF
83 FR 50740 - Agency Information Collection Activities: Requests for Comments; Clearance of Reinstated Approval of Information Collection: Flight Simulation Device Initial and Continuing Qualification and UsePDF
83 FR 50548 - Air Plan Approval; California; El Dorado County Air Quality Management District; Reasonably Available Control Technology DemonstrationPDF
83 FR 50510 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2017-2018 Biennial Specifications and Management Measures; Inseason AdjustmentsPDF
83 FR 50556 - Air Quality Designation; Illinois; Indiana; Revised Designation of Illinois and Indiana 2012 PM2.5PDF
83 FR 50551 - Air Plan Approval; Illinois; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone StandardPDF
83 FR 50737 - Vident Advisory, LLC et al.PDF
83 FR 50647 - Costco Wholesale Corporation, Provisional Acceptance of a Settlement Agreement and OrderPDF
83 FR 50545 - Safety Zone; Barters Island Bridge, Back River, Barters Island, MEPDF
83 FR 50503 - Safety Zone; North Hero-Grand Isle Bridge, Lake Champlain, VTPDF
83 FR 50631 - Submission for OMB Review; Comment RequestPDF
83 FR 50542 - Amendment to Requirements for Consumer Registration of Durable Infant or Toddler ProductsPDF
83 FR 50664 - Charter Renewal for the Council on Graduate Medical EducationPDF
83 FR 50643 - Proposed Information Collection; Comment Request; Access-Point Angler Intercept Survey (APAIS)PDF
83 FR 50676 - 60-Day Notice of Proposed Information Collection: Public Housing 5-Year and Annual PHA Plan and MTW Supplement to the PHA PlanPDF
83 FR 50677 - Notice of Proposed Information Collection to OMB: Emergency Comment Request, Indian Housing Block Grant (IHBG) Competitive ProgramPDF
83 FR 50632 - National Advisory Committee on Meat and Poultry Inspection; Nominations for MembershipPDF
83 FR 50634 - Notice of Request To Renew an Approved Information Collection (Laboratories)PDF
83 FR 50633 - Notice of Request To Renew an Approved Information Collection (Records To Be Kept by Official Establishments and Retail Stores That Grind Raw Beef Products)PDF
83 FR 50739 - Notice of Public Meeting of the President's Emergency Plan for AIDS Relief (PEPFAR) Scientific Advisory BoardPDF
83 FR 50665 - Performance Review Board MembersPDF
83 FR 50665 - Meeting of the National Clinical Care CommissionPDF
83 FR 50646 - Endangered Species; File No. 22218PDF
83 FR 50639 - Stainless Steel Flanges From India: Antidumping Duty OrderPDF
83 FR 50637 - Narrow Woven Ribbons With Woven Selvedge From Taiwan: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2016-2017PDF
83 FR 50636 - Foreign-Trade Zone (FTZ) 12-McAllen, Texas; Authorization of Limited Production Activity; Black & Decker (U.S.), Inc. (Indoor and Outdoor Power Tools and Related Components) Mission, TexasPDF
83 FR 50642 - Atlantic Highly Migratory Species; Advisory PanelPDF
83 FR 50750 - Proposed Collection; Comment Request for Forms 1065, 1065-B, 1066, 1120, 1120-C, 1120-F, 1120-H, 1120-ND, 1120-S, 1120-SF, 1120-FSC, 1120-L, 1120-PC, 1120-REIT, 1120-RIC, 1120-POL, and Related AttachmentsPDF
83 FR 50475 - United States Standards for Grades of PecansPDF
83 FR 50527 - Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West; Revision of the Salable Quantity and Allotment Percentage for Class 3 (Native) Spearmint Oil for the 2018-2019 Marketing YearPDF
83 FR 50527 - Amendments to Quality Systems Verification Programs and Conforming Changes; WithdrawalPDF
83 FR 50747 - Notice of Request for Comments: Scope of the Study on the Impact of Automated Vehicle Technologies on WorkforcePDF
83 FR 50531 - Pecans Grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas; Revision of Reporting RequirementsPDF
83 FR 50746 - Notice of Request for Comments: Preparing for the Future of Transportation: Automated Vehicles 3.0 (AV 3.0)PDF
83 FR 50745 - Notice of Rights and Protections Available Under the Federal Antidiscrimination and Whistleblower Protection LawsPDF
83 FR 50641 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
83 FR 50636 - Soliciting Feedback From Users on 2020 Census Data Products; Reopening of Comment PeriodPDF
83 FR 50704 - Agency Forms Submitted for OMB Review, Request for CommentsPDF
83 FR 50736 - Proposed Collection; Comment RequestPDF
83 FR 50713 - Submission for OMB Review; Comment RequestPDF
83 FR 50720 - Submission for OMB Review; Comment RequestPDF
83 FR 50722 - Submission for OMB Review; Comment RequestPDF
83 FR 50708 - Submission for OMB Review; Comment RequestPDF
83 FR 50689 - Meeting of the Compact Council for the National Crime Prevention and Privacy CompactPDF
83 FR 50742 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel ENDLESS SUMMER; Invitation for Public CommentsPDF
83 FR 50741 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel RAY; Invitation for Public CommentsPDF
83 FR 50744 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel IREMIA; Invitation for Public CommentsPDF
83 FR 50743 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel ICONA; Invitation for Public CommentsPDF
83 FR 50668 - Submission for OMB Review; 30-Day Comment Request; Generic Clearance To Conduct Voluntary Customer/Partner Surveys (NLM)PDF
83 FR 50644 - Proposed Information Collection; Comment Request; Alaska Community Quota Entity (CQE) ProgramPDF
83 FR 50663 - Joint Meeting of the Anesthetic and Analgesic Drug Products Advisory Committee and the Drug Safety and Risk Management Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for CommentsPDF
83 FR 50661 - Anesthetic and Analgesic Drug Products Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for CommentsPDF
83 FR 50487 - Food Additives Permitted for Direct Addition to Food for Human Consumption; StyrenePDF
83 FR 50490 - Food Additive Regulations; Synthetic Flavoring Agents and AdjuvantsPDF
83 FR 50533 - Agency Procedures for Responding to Adverse Court Decisions and Addressing Funding ShortfallsPDF
83 FR 50484 - Deceptive Advertising as to Sizes of Viewable Pictures Shown by Television Receiving SetsPDF
83 FR 50702 - Pendency for Request for Approval of Special Withdrawal Liability Rules: United Food and Commercial Workers International Union-Industry Pension FundPDF
83 FR 50687 - American Manufacturing Competitiveness Act: Effects of Temporary Duty Suspensions and Reductions on the U.S. Economy; Institution of Investigation and Scheduling of HearingPDF
83 FR 50610 - Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Threatened Species Status for Eastern Black Rail With a Section 4(d) RulePDF
83 FR 50582 - Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule and Critical Habitat Designation for Slenderclaw CrayfishPDF
83 FR 50682 - Privacy Act of 1974; System of RecordsPDF
83 FR 50675 - Technical Assistance Request and EvaluationPDF
83 FR 50574 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for Coastal Distinct Population Segment of the Pacific MartenPDF
83 FR 50560 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for Black-Capped Petrel With a Section 4(d) RulePDF
83 FR 50669 - Florida; Amendment No. 3 to Notice of an Emergency DeclarationPDF
83 FR 50672 - Florida; Amendment No. 4 to Notice of an Emergency DeclarationPDF
83 FR 50670 - Florida; Amendment No. 16 to Notice of a Major Disaster DeclarationPDF
83 FR 50670 - South Carolina; Amendment No. 2 to Notice of a Major Disaster DeclarationPDF
83 FR 50646 - Announcement for the Upcoming Small Business Innovation Research Program (SBIR) Notice of Funding Opportunity and Procurement Award Changes for Fiscal Year 2019 and BeyondPDF
83 FR 50705 - Self-Regulatory Organizations; BOX Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rules Relating to Registration and Qualification Examinations Required for Participants That Engage in Trading Activities on the ExchangePDF
83 FR 50715 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Establish New Pricing for Flash OrdersPDF
83 FR 50713 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to F&O Risk PoliciesPDF
83 FR 50721 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Order Approving a Proposed Rule Change To Adopt Rule 6.57, Risk-Weighted Asset (“RWA”) PackagesPDF
83 FR 50718 - Self-Regulatory Organizations; BOX Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend BOX Rule 7600(a)(4) (Qualified Open Outcry Orders-Floor Crossing)PDF
83 FR 50708 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing of a Proposed Rule Change To Amend MSRB Rule G-3, on Professional Qualification Requirements, To Require Municipal Advisor Principals To Become Appropriately Qualified by Passing the Municipal Advisor Principal Qualification ExaminationPDF
83 FR 50727 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Amendments To Rules Regarding Qualification, Registration and Continuing Education Applicable to Members and Member OrganizationsPDF
83 FR 50672 - Privacy Act of 1974; Computer Matching ProgramPDF
83 FR 50659 - Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and Protests: Georgia Power CompanyPDF
83 FR 50656 - Notice of Availability of the Draft Environmental Impact Statement for the Proposed Port Arthur Liquefaction Project, Texas Connector Project, and Louisiana Connector Project: Port Arthur LNG, LLC, PALNG Common Facilities Company LLC, Port Arthur Pipeline, LLCPDF
83 FR 50652 - Commission Information Collection Activities (FERC-725R); Comment Request; RevisionPDF
83 FR 50655 - Notice Soliciting Scoping Comments: Erie Boulevard Hydropower, LPPDF
83 FR 50658 - Erie Boulevard Hydropower, L.P.; Notice of Application Accepted for Filing and Soliciting Motions To Intervene and ProtestsPDF
83 FR 50650 - Commission Information Collection Activities (FERC-919); Comment Request; ExtensionPDF
83 FR 50655 - Notice of Schedule for Environmental Review of the Texas Eastern Transmission, LP Cameron System Abandonment ProjectPDF
83 FR 50659 - Wallowa Resources Community Solutions Inc.; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To IntervenePDF
83 FR 50689 - Notice of Lodging Proposed Consent DecreePDF
83 FR 50756 - Proposed Collection; Comment Request on Information Collection for Treasury Decision 9142 (Final)PDF
83 FR 50666 - Government-Owned Inventions; Availability for LicensingPDF
83 FR 50668 - Government-Owned Inventions; Availability for LicensingPDF
83 FR 50661 - Submission for OMB Review; Comment RequestPDF
83 FR 50689 - Request for InformationPDF
83 FR 50667 - Government-Owned Inventions; Availability for LicensingPDF
83 FR 50720 - In the Matter of Chicago Stock Exchange, Inc., 440 South LaSalle Street, Suite 800, Chicago, IL 60605; File No. SR-CHX-2017-04; Order Setting Aside the Order by Delegated Authority Approving SR-CHX-2017-04PDF
83 FR 50636 - Fresh Garlic From the People's Republic of China: Final Rescission of the Semiannual Antidumping Duty New Shipper Review of Qingdao Doo Won Foods Co., Ltd.PDF
83 FR 50691 - Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards ConsiderationsPDF
83 FR 50536 - Proposed Primary Category Design Standards; Vertical Aviation Technologies (VAT) Model S-52L RotorcraftPDF
83 FR 50537 - Airworthiness Directives; Dassault Aviation Model FALCON 2000 AirplanesPDF
83 FR 50539 - Airworthiness Directives; Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) AirplanesPDF
83 FR 50681 - Deepwater Horizon Oil Spill Draft Restoration Plan 1 and Environmental Assessment; Open Ocean Trustee Implementation GroupPDF
83 FR 50679 - Deepwater Horizon Oil Spill Florida Trustee Implementation Group Draft Restoration Plan 1 and Environmental Assessment: Habitat Projects on Federally Managed Lands; Nutrient Reduction; Water Quality; and Provide and Enhance Recreational OpportunitiesPDF
83 FR 50645 - Proposed Information Collection; Comment Request; Alaska Region Amendment 80 Permits and ReportsPDF
83 FR 50477 - Airworthiness Directives; Dassault Aviation AirplanesPDF
83 FR 50506 - Approval and Promulgation of Implementation Plans; New Jersey; Elements for the 2008 8-Hour Ozone National Ambient Air Quality StandardsPDF
83 FR 50482 - Airworthiness Directives; Airbus SAS AirplanesPDF
83 FR 50479 - Airworthiness Directives; Dassault Aviation AirplanesPDF
83 FR 50661 - Meeting of the Depository Library Council to the Acting Deputy DirectorPDF
83 FR 50506 - Loan Guaranty: Ability-to-Repay Standards and Qualified Mortgage Definition Under the Truth-in-Lending ActPDF
83 FR 50758 - Subsistence Management Regulations for Public Lands in Alaska-2018-19 and 2019-20 Subsistence Taking of Wildlife RegulationsPDF

Issue

83 195 Tuesday, October 9, 2018 Contents Agricultural Marketing Agricultural Marketing Service RULES United States Standards: Grades of Pecans, 50475-50477 2018-21845 PROPOSED RULES Amendments to Quality Systems Verification Programs and Conforming Changes; Withdrawal, 50527 2018-21843 Marketing Orders: Spearmint Oil Produced in the Far West; Revision of the Salable Quantity and Allotment Percentage for Class 3 (Native) Spearmint Oil for the 2018-2019 Marketing Year, 50527-50531 2018-21844 Pecans Grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas; Revision of Reporting Requirements, 50531-50533 2018-21841 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Food Safety and Inspection Service

See

Forest Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50631-50632 2018-21828 2018-21866
AIRFORCE Air Force Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50650 2018-21894 Census Bureau Census Bureau NOTICES 2020 Census Data Products, 50636 2018-21837 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Uniform Project Description Program Narrative Format for Discretionary Grant Application Forms, 50661 2018-21766 Coast Guard Coast Guard RULES Safety Zones: North Hero-Grand Isle Bridge, Lake Champlain, VT, 50503-50506 2018-21867 PROPOSED RULES Safety Zones: Barters Island Bridge, Back River, Barters Island, ME, 50545-50547 2018-21868 Commerce Commerce Department See

Census Bureau

See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Consumer Product Consumer Product Safety Commission PROPOSED RULES Amendment to Requirements for Consumer Registration of Durable Infant or Toddler Products, 50542-50545 2018-21865 NOTICES Provisional Acceptance of a Settlement Agreement and Order: Costco Wholesale Corp., 50647-50650 2018-21869 Defense Department Defense Department See

Air Force Department

Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: New Jersey; Elements for the 2008 8-Hour Ozone National Ambient Air Quality Standards, 50506-50509 2018-21465 PROPOSED RULES Air Quality Designation: Illinois; Indiana; Revised Designation of Illinois and Indiana 2012 PM2.5 Unclassifiable Areas, 50556-50560 2018-21878 Air Quality State Implementation Plans; Approvals and Promulgations: California; El Dorado County Air Quality Management District; Reasonably Available Control Technology Demonstration, 50548-50551 2018-21882 Illinois; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone Standard, 50551-50556 2018-21877 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus SAS Airplanes, 50482-50484 2018-21464 Dassault Aviation Airplanes, 50477-50482 2018-21462 2018-21466 PROPOSED RULES Airworthiness Directives: Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) Airplanes, 50539-50542 2018-21608 Dassault Aviation Model FALCON 2000 Airplanes, 50537-50539 2018-21609 Primary Category Design Standards: Vertical Aviation Technologies Model S-52L Rotorcraft, 50536-50537 2018-21661 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50740-50741 2018-21886 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Flight Simulation Device Initial and Continuing Qualification and Use, 50740 2018-21885 Federal Bureau Federal Bureau of Investigation NOTICES Meetings: Compact Council for the National Crime Prevention and Privacy Compact, 50689 2018-21829 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 50660-50661 2018-22036 Federal Emergency Federal Emergency Management Agency NOTICES Emergency Declarations: Florida; Amendment No. 3, 50669 2018-21792 Florida; Amendment No. 4, 50672 2018-21791 Flood Hazard Determinations; Changes, 50670-50672 2018-21928 Major Disaster Declarations: Florida; Amendment No. 16, 50670 2018-21790 South Carolina; Amendment No. 2, 50670 2018-21789 Federal Energy Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50650-50655 2018-21774 2018-21777 Applications: Erie Boulevard Hydropower, LP, 50658-50659 2018-21775 Erie Boulevard Hydropower, LP, 50655 2018-21776 Georgia Power Co., 50659 2018-21779 Environmental Impact Statements; Availability, etc.: Port Arthur LNG, LLC, PALNG Common Facilities Co., LLC, Port Arthur Pipeline, LLC, Port Arthur Liquefaction Project, Texas Connector Project, and Louisiana Connector Project, 50656-50658 2018-21778 Environmental Reviews: Texas Eastern Transmission, LP; Cameron System Abandonment Project, 50655-50656 2018-21773 Preliminary Determinations of Qualifying Conduit Hydropower Facilities: Wallowa Resources Community Solutions Inc., 50659-50660 2018-21772 Federal Trade Federal Trade Commission RULES Deceptive Advertising as to Sizes of Viewable Pictures Shown by Television Receiving Sets, 50484-50487 2018-21803 Fish Fish and Wildlife Service RULES Subsistence Management: Public Lands in Alaska; 2018-19 and 2019-20 Subsistence Taking of Wildlife, 50758-50801 2018-21219 PROPOSED RULES Endangered and Threatened Species: Eastern Black Rail; 12-Month Petition Finding, 50610-50630 2018-21799 Slenderclaw Crayfish; Critical Habitat Designation, 50582-50610 2018-21797 Threatened Species Status for Black-Capped Petrel, 50560-50574 2018-21793 Threatened Species Status for Coastal Distinct Population Segment of the Pacific Marten, 50574-50582 2018-21794 Food and Drug Food and Drug Administration RULES Food Additive Regulations: Synthetic Flavoring Agents and Adjuvants, 50490-50503 2018-21807 Food Additives Permitted for Direct Addition to Food for Human Consumption: Styrene, 50487-50490 2018-21808 NOTICES Meetings: Anesthetic and Analgesic Drug Products Advisory Committee, 50661-50663 2018-21809 Anesthetic and Analgesic Drug Products Advisory Committee and the Drug Safety and Risk Management Advisory Committee, 50663-50664 2018-21810 Food Safety Food Safety and Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Laboratories, 50634-50635 2018-21858 Records to be Kept by Official Establishments and Retail Stores that Grind Raw Beef Products, 50633-50634 2018-21857 Requests for Nominations: National Advisory Committee on Meat and Poultry Inspection, 50632-50633 2018-21859 Foreign Trade Foreign-Trade Zones Board NOTICES Production Activities: Black & Decker (U.S.), Inc., Foreign-Trade Zone 12, McAllen, TX, 50636 2018-21848 Forest Forest Service RULES Subsistence Management: Public Lands in Alaska; 2018-19 and 2019-20 Subsistence Taking of Wildlife, 50758-50801 2018-21219 Government Printing Government Publishing Office NOTICES Meetings: Depository Library Council, 50661 2018-21418 Health and Human Health and Human Services Department See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

NOTICES Meetings: National Clinical Care Commission, 50665-50666 2018-21854 Performance Review Board Members, 50665 2018-21855
Health Resources Health Resources and Services Administration NOTICES Charter Renewals: Council on Graduate Medical Education, 50664-50665 2018-21864 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Technical Assistance Request and Evaluation, 50675-50676 2018-21795 Privacy Act; Matching Program, 50672-50673 2018-21780 Senior Executive Service Performance Review Board Membership, 50674-50675 2018-21887
Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Indian Housing Block Grant Competitive Program, 50677-50679 2018-21860 Public Housing 5-Year and Annual PHA Plan and MTW Supplement to the PHA Plan, 50676-50677 2018-21861 Interior Interior Department See

Fish and Wildlife Service

NOTICES Charter Renewals: Exxon Valdez Oil Spill Public Advisory Committee, 50686-50687 2018-21895 Environmental Assessments; Availability, etc.: Deepwater Horizon Oil Spill Draft Restoration Plan 1; Open Ocean Trustee Implementation Group, 50681-50682 2018-21602 Deepwater Horizon Oil Spill Florida Trustee Implementation Group; Habitat Projects on Federally Managed Lands, Nutrient Reduction, Water Quality, and Provide and Enhance Recreational Opportunities, 50679-50681 2018-21601 Privacy Act; Systems of Records, 50682-50686 2018-21796
Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50750-50756 2018-21769 2018-21846 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Fresh Garlic from the People's Republic of China, 50636-50637 2018-21733 Narrow Woven Ribbons with Woven Selvedge from Taiwan, 50637-50639 2018-21849 Stainless Steel Flanges from India, 50639-50641 2018-21851 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: American Manufacturing Competitiveness Act: Effects of Temporary Duty Suspensions and Reductions on the U.S. Economy, 50687-50688 2018-21800 Meetings; Sunshine Act, 50687-50689 2018-21950 2018-21951 2018-21952 Justice Department Justice Department See

Federal Bureau of Investigation

NOTICES Proposed Consent Decrees, 50689 2018-21770
Management Management and Budget Office NOTICES Request for Information, 50689-50691 2018-21765 Maritime Maritime Administration NOTICES Requests for Administrative Waivers of the Coastwise Trade Laws: Vessel ENDLESS SUMMER, 50742-50743 2018-21824 Vessel ICONA, 50743-50744 2018-21821 Vessel IREMIA, 50744-50745 2018-21822 Vessel RAY, 50741-50742 2018-21823 National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Generic Clearance to Conduct Voluntary Customer/Partner Surveys, 50668-50669 2018-21818 Government-Owned Inventions; Availability for Licensing, 50666-50668 2018-21762 2018-21764 2018-21767 2018-21768 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries Off West Coast States: Magnuson-Stevens Act Provisions; Pacific Coast Groundfish Fishery; 2017-2018 Biennial Specifications and Management Measures; Inseason Adjustments, 50510-50526 2018-21879 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Access-Point Angler Intercept Survey, 50643-50644 2018-21862 Alaska Community Quota Entity Program, 50644-50645 2018-21815 Alaska Region Amendment 80 Permits and Reports, 50645-50646 2018-21522 Meetings: Gulf of Mexico Fishery Management Council, 50641-50642 2018-21838 Permit Applications: Endangered Species; File No. 22218, 50646 2018-21852 Requests for Nominations: Atlantic Highly Migratory Species Advisory Panel, 50642-50643 2018-21847 Small Business Innovation Research Program: Funding Opportunity and Procurement Award Changes for Fiscal Year 2019, 50646-50647 2018-21788 Nuclear Regulatory Nuclear Regulatory Commission PROPOSED RULES Agency Procedures for Responding to Adverse Court Decisions and Addressing Funding Shortfalls, 50533-50536 2018-21804 NOTICES Exemptions and Combined Licenses; Amendments: Southern Nuclear Operating Company, Inc., Vogtle Electric Generating Plant, Units 3 and 4; Updates to Tier 1 Table 2.5.2-3, 50700-50702 2018-21912 Facility Operating and Combined Licenses: Applications and Amendments Involving No Significant Hazards Considerations; Biweekly Notice, 50691-50700 2018-21669 Pension Benefit Pension Benefit Guaranty Corporation NOTICES Pendency for Request for Approval of Special Withdrawal Liability Rules: United Food and Commercial Workers International Union—Industry Pension Fund, 50702-50704 2018-21801 Railroad Retirement Railroad Retirement Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50704-50705 2018-21835 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50708, 50713, 50720-50723, 50736-50737 2018-21830 2018-21831 2018-21832 2018-21833 2018-21834 Applications: Vident Advisory, LLC et al., 50737-50738 2018-21874 Meetings; Sunshine Act, 50738-50739 2018-21995 Self-Regulatory Organizations; Proposed Rule Changes: BOX Exchange, LLC, 50705-50708, 50718-50720 2018-21783 2018-21787 Cboe Exchange, Inc., 50721-50722 2018-21784 Chicago Stock Exchange, Inc., 50720 2018-21761 ICE Clear Europe, Ltd., 50713-50715 2018-21785 Municipal Securities Rulemaking Board, 50708-50713 2018-21782 Nasdaq BX, Inc., 50723-50726 2018-21906 Nasdaq ISE, LLC, 50715-50718 2018-21786 New York Stock Exchange, LLC, 50727-50736 2018-21781 State Department State Department NOTICES Delegation of Authority, 50739 2018-21897 Meetings: President's Emergency Plan for AIDS Relief Scientific Advisory Board, 50739-50740 2018-21856 Transportation Department Transportation Department See

Federal Aviation Administration

See

Maritime Administration

NOTICES Preparing for the Future of Transportation: Automated Vehicles 3.0, 50746-50747 2018-21840 Rights and Protections Available under the Federal Antidiscrimination and Whistleblower Protection Laws, 50745-50746 2018-21839 Scope of the Study on the Impact of Automated Vehicle Technologies on Workforce, 50747-50749 2018-21842
Treasury Treasury Department See

Internal Revenue Service

Veteran Affairs Veterans Affairs Department RULES Loan Guaranty: Ability-to-Repay Standards and Qualified Mortgage Definition under the Truth-in-Lending Act, 50506 2018-21370 Separate Parts In This Issue Part II Agriculture Department, Forest Service, 50758-50801 2018-21219 Interior Department, Fish and Wildlife Service, 50758-50801 2018-21219 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.

83 195 Tuesday, October 9, 2018 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 51 [Document Number AMS-FV-14-0101, SC-17-331] United States Standards for Grades of Pecans AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Direct final rule.

SUMMARY:

The Agricultural Marketing Service (AMS) is amending the U.S. Standards for Grades of Shelled Pecans and the U.S. Standards for Grades of Pecans in the Shell. The revisions include replacing the term “midget” with “extra small” in the Shelled Pecan standards and removing references to plastic models of pecan kernels and information on where the color standards may be examined from both standards.

DATES:

This direct final rule is effective December 10, 2018; without further action or notice, unless significant adverse comment is received by November 8, 2018. If significant adverse comment is received, AMS will publish a timely withdrawal of this rule in the Federal Register.

ADDRESSES:

Interested persons are invited to submit written comments to the USDA, Specialty Crops Inspection Division, 100 Riverside Parkway, Suite 101, Fredericksburg, VA 22406; fax: (540) 361-1199; or at www.regulations.gov. Comments should reference the date and page number of this issue of the Federal Register, and will be made available for public inspection in the above office during regular business hours. Comments can also be viewed as submitted, including any personal information you provide, on the www.regulations.gov website.

FOR FURTHER INFORMATION CONTACT:

Lindsay H. Mitchell at the address above, by phone (540) 361-1120; fax (540) 361-1199; or, email [email protected] Copies of the revised U.S. Standards for Grades of Shelled Pecans and the U.S. Standards for Grades of Pecans in the Shell are available at http://www.regulations.gov or http://www.ams.usda.gov/grades-standards/nuts.

SUPPLEMENTARY INFORMATION:

Section 203(c) of the Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627) as amended, directs and authorizes the Secretary of Agriculture “to develop and improve standards of quality, condition, quantity, grade, and packaging, and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.”

The Agricultural Marketing Service (AMS) is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities and makes copies of official standards available upon request. The U.S. Standards for Grades of Fruits and Vegetables that no longer appear in the Code of Federal Regulations are maintained by AMS at: http://www.ams.usda.gov/grades-standards.

Executive Orders 12866, 13771, and 13563

This rule is not expected to be an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866. See the Office of Management and Budget's memorandum, “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017). Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

Executive Order 13175

This rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments nor significant Tribal implications.

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.

Background

AMS continuously reviews fruit and vegetable grade standards to assess their effectiveness in the industry and to modernize language. In addition, on May 13, 2013, AMS received a petition from the Little People of America stating that the group is “trying to raise awareness around and eliminate the use of the word midget.” The petition further stated that, “Though the use of the word midget by the USDA when classifying certain food products is benign, Little People of America, and the dwarfism community, hopes that the USDA would consider phasing out the term midget.” Five grade standards contain the term “midget”: U.S. Standards for Grades of Canned Lima Beans, U.S. Standards for Grades of Canned Mushrooms, U.S. Standards for Grades of Pickles, U.S. Standards for Grades of Green Olives, and U.S. Standards for Grades of Shelled Pecans. Canned lima beans, canned mushrooms, pickles, and green olives will be covered in another notice due to additional changes being made to those specific standards.

Prior to developing the proposed revisions to the pecan grade standards, AMS solicited comments and suggestions about the standards from the National Pecan Shellers Association (NPSA). The NPSA recommended replacing the term “midget” with “extra small.”

As part of modernizing the standards, the obsolete language regarding the purchase of plastic pecan models (PEC-MC-1) is being removed. These color standards are still in effect, but are no longer available for purchase from the single previous manufacturer. Related information on where the color standards can be examined also will be removed as it is no longer current.

A notice announcing these changes was published in the January 12, 2016, Federal Register (81 FR 1386). AMS received one comment in favor of the changes. After the comment period ended, AMS recognized that the standards for both in-shell and shelled pecans are published in the Code of Federal Regulations (7 CFR 51.1400 through 51.1416 and 51.1430 through 51.1451), even though there was no Federal marketing order for pecans at that time. The Pecan Marketing Order No. 986 became effective August 5, 2016. Therefore, AMS is providing notice and an opportunity to comment on the revised regulatory language.

AMS is making the following revisions in the U.S. Standards for Grades of Shelled Pecans:

• § 51.1436 Color classifications (b): Revised to remove reference to plastic models and address for viewing them.

• § 51.1437 Table I: Revised to change Midget to Extra small.

• § 51.1438 Table II and Table III: Revised to change Midget pieces to Extra small pieces.

• § 51.1443 Particles and dust: Revised to change midget to extra small.

In addition, AMS is making the following revision in the U.S. Standards for Grades of Pecans in the Shell:

• § 51.1403 Kernel color classifications (b): Revised to remove reference to plastic models and address.

Regulatory Flexibility Analysis

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Small agricultural producers have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $750,000. Small agricultural service firms (handlers) are defined as those with annual receipts of less than $7,500,000.

Considering the economic impact on small entities involves estimating whether a majority of growers and handlers in the U.S. pecan market qualify as small or large businesses. The following paragraphs explain a set of computations that achieves this goal.

Almost all U.S. pecans are grown in the 15-state production area of the Federal marketing order for pecans (Marketing Order 986). There are 2,500 growers of pecans in the production area and 250 handlers subject to regulation under the marketing order. The grower number estimate was supplied by the American Pecan Council, which administers the marketing order under the oversight of USDA. The handler number estimate comes from the Secretary's Decision on promulgating the marketing order (81 FR 10140).

According to data published by the National Agricultural Statistics Service (NASS), the 3-year average value of utilized pecan production for 2014 through 2016 was $591.204 million. Dividing this average value of utilized pecan production by the total number of pecan growers (2,500) provides an average return per grower estimate of $236,482, well below the SBA small business threshold of $750,000 in annual receipts. Using this average value of utilized production and grower number information, and assuming a normal bell-curve distribution of receipts among growers, the majority of growers qualify as small businesses.

Evidence presented in 2015 during formal rulemaking for the pecan Federal marketing order indicated an average handler margin of $0.58 per pound. Adding the handler margin to the 2014-2016 average grower price of $2.22 per pound of inshell pecans results in an estimated handler price of $2.80 per pound. Multiplying the estimated handler price by the 3-year average utilized production figure of 266.312 million pounds yields a total value of production at the handler level of $745.7 million. Dividing this handler-level value of utilized pecan production by the number of handlers (250) results in an average return per handler of $2.98 million, well below the SBA small business threshold of $7.5 million in annual receipts. Using this estimated price, utilization volume and value, and number of handlers, and assuming a normal bell-curve distribution of receipts among handlers, the majority of handlers qualify as small businesses.

The pecan standard changes are limited to modernizing grading terminology and removing language related to outdated vendor references for color standards. The pecan size standard currently known as “midget” will be changed to “extra small.” Additionally, obsolete vendor information for the pecan kernel color standards will be revised. Information regarding the purchasing of the color standards from the manufacturer is obsolete as models are no longer available. The inspection procedures and color standards will remain in effect. AMS also is removing outdated language in another section that identified where the kernel models could be viewed. The remaining language in that section identifies the four “color intensities” of the kernel color standards.

With the adoption of this rule, current inspection methods will continue unchanged. The “extra small” size category will be identical to the previous “midget” size category; only the name will change. Renaming the size category and continuing to use the current method of applying kernel color standards will not require any significant changes in grower or handler business operations. Any additional costs to growers and handlers will be negligible. No small businesses will be unduly or disproportionately burdened.

Renaming the size standard and removing outdated language helps keep grading standards current. Food grading standards provide important quality information to buyers and sellers, contributing to the efficient marketing of agricultural commodities.

A 30-day comment period is provided for public comment on the changes to the U.S. Standards for Grades of Shelled Pecans and the U.S. Standards for Grades of Pecans in the Shell proposed herein. If no significant comment is received, the changes in this rule, would be implemented 30 days thereafter.

List of Subjects in 7 CFR Part 51

Food grades and standards, Fruits, Nuts, Reporting and recordkeeping requirements, Vegetables.

For reasons set forth in the preamble, 7 CFR part 51 is amended as follows:

PART 51—[AMENDED] 1. The authority citation for part 51 continues to read as follows: Authority:

7 U.S.C. 1621—1627.

2. In § 51.1403, paragraph (b) is revised to read as follows:
§ 51.1403 Kernel color classifications.

(b) U.S. Department of Agriculture kernel color standards, PEC-MC-1, illustrate the color intensities implied by the terms “golden,” “light brown,” “medium brown,” and “dark brown” referred to in paragraph (a) of this section.

3. In § 51.1436, paragraph (b) is revised to read as follows:
§ 51.1436 Color classifications.

(b) U.S. Department of Agriculture kernel color standards, PEC-MC-1, illustrate the color intensities implied by the terms “golden,” “light brown,” “medium brown,” and “dark brown” referred to in paragraph (a) of this section.

4. In § 51.1437, Table I is amended by removing the entry “Midget” and adding in its place the entry “Extra small” to read as follows:
§ 51.1437 Size classifications for halves. Table I Size classifications
  • for halves
  • Number of halves
  • per pound
  • *    *    *    *    * Extra small 751 or more.
    5. In § 51.1438, Table II and Table III are amended by removing the entry “Midget pieces” and adding in its place the entry “Extra small pieces” to read as follows:
    § 51.1438 Size classifications for pieces. Table II Size classification Maximum diameter
  • (will pass through round opening of following diameter)
  • Minimum
  • diameter
  • (will not pass through round opening
  • of the
  • following
  • diameter)
  • (inch)
  • *         *         *         *         *         *         * Extra small pieces 3/16 inch 1/16 *         *         *         *         *         *         *
    Table III [Percent] Size classification Total tolerance for offsize pieces Tolerance (included in total tolerance) for pieces
  • smaller than
  • 2/16 1/16 inch
    *         *         *         *         *         *         * Extra small pieces 15 2 *         *         *         *         *         *         *
    6. Revise § 51.1443 to read as follows:
    § 51.1443 Particles and dust.

    Particles and dust means, for all size designations except “extra small pieces” and “granules,” fragments of kernels which will pass through a round opening two-sixteenths inch in diameter.

    Dated: October 3, 2018. Bruce Summers, Administrator, Agricultural Marketing Service.
    [FR Doc. 2018-21845 Filed 10-5-18; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0451; Product Identifier 2017-NM-172-AD; Amendment 39-19406; AD 2018-19-06] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 900EX airplanes. This AD was prompted by reports of rejected take-offs due to untimely inboard flap retraction. This AD requires modification of the slat/flap control wiring and replacement of the slat/flap control box with an improved box. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective November 13, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 13, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet http://www.dassaultfalcon.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0451.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0451; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenues SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Dassault Aviation Model FALCON 900EX airplanes. The NPRM published in the Federal Register on May 30, 2018 (83 FR 24686). The NPRM was prompted by reports of rejected take-offs due to untimely inboard flap retraction. The NPRM proposed to require modification of the slat/flap control wiring and replacement of the slat/flap control box with an improved box.

    We are issuing this AD to address an uncommanded retraction of the inboard slats and flaps during take-off, and consequent reduced controllability of the airplane.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0219, dated November 14, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 900EX airplanes. The MCAI states:

    An occurrence was reported where, during the take-off run, a red CAS [crew alerting system] message “NO TAKE OFF” was displayed, and an aural warning was given. The flight crew elected to abort the take-off. The configuration of the affected aeroplane was SF1 and indicated airspeed (IAS) was at 100 kts. Investigations showed that the outboard slat extended microswitch, located at track #7, was not correctly adjusted. A design review revealed that this deficiency may affect only Falcon 900LX (commercial designation) without modification M5636, during take-off in SF1 configuration.

    This condition, if not corrected, could lead to an uncommanded retraction of inboard slats and flaps during take-off, possibly resulting in reduced control of the aeroplane.

    To address this potential unsafe condition, DA [Dassault Aviation] designed modification M6043 and published Service Bulletin (SB) F900EX-522 to provide instructions for embodiment of this modification in-service.

    For the reasons described above, this [EASA] AD requires a wiring modification and replacement of the slat/flap control box with an improved box.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0451.

    Comments

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

    Conclusion

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

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

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

    Related Service Information Under 1 CFR Part 51

    Dassault Aviation has issued Dassault Aviation Service Bulletin F900EX-522, also referred to as 522, dated March 8, 2017. This service information describes procedures for modifying the slat/flap control wiring and replacing the slat/flap control box. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 13 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Modification and replacement 22 work-hours × $85 per hour = $1,870 $8,495 $10,365 $134,745

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

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

    Regulatory Findings

    This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed above, I certify that this AD:

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

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

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

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-19-06 Dassault Aviation: Amendment 39-19406; Docket No. FAA-2018-0451; Product Identifier 2017-NM-172-AD. (a) Effective Date

    This AD is effective November 13, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Dassault Aviation Model FALCON 900EX airplanes, certificated in any category, serial number 240 and serial numbers 242 through 273 inclusive.

    (d) Subject

    Air Transport Association (ATA) of America Code 27, Flight controls.

    (e) Reason

    This AD was prompted by reports of rejected take-offs due to untimely inboard flap retraction. We are issuing this AD to address an uncommanded retraction of the inboard slats and flaps during take-off, and consequent reduced controllability of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Modification and Replacement

    Within 500 flight hours after the effective date of this AD, modify the slat/flap control wiring and replace the slat/flap control box having part number (P/N) 6-7061 with an improved control box, in accordance with the Accomplishment Instructions of Dassault Aviation Service Bulletin F900EX-522, also referred to as 522, dated March 8, 2017.

    (h) Parts Installation Prohibition

    After modification of an airplane as required by paragraph (g) of this AD, no person may install any slat/flap control box having P/N 6-7061 on that airplane.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (j)(2) of this AD. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Dassault Aviation's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0219, dated November 14, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0451.

    (2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.

    (k) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) Dassault Aviation Service Bulletin F900EX-522, also referred to as 522, dated March 8, 2017.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet http://www.dassaultfalcon.com.

    (4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Des Moines, Washington, on August 30, 2018. Jeffrey E. Duven, Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-21466 Filed 10-5-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0357; Product Identifier 2018-NM-035-AD; Amendment 39-19428; AD 2018-19-27] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 2000EX airplanes. This AD was prompted by the manufacturer revising the airplane maintenance manual (AMM) maintenance requirements and airworthiness limitations. This AD requires revising the maintenance or inspection program, as applicable, to incorporate new maintenance requirements and airworthiness limitations. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective November 13, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 13, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet http://www.dassaultfalcon.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0357.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0357; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Dassault Aviation Model FALCON 2000EX airplanes. The NPRM published in the Federal Register on April 30, 2018 (83 FR 18760). The NPRM was prompted by the manufacturer revising the AMM maintenance requirements and airworthiness limitations. The NPRM proposed to require revising the maintenance or inspection program, as applicable, to incorporate new maintenance requirements and airworthiness limitations. We are issuing this AD to address reduced structural integrity of the airplane.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2018-0021, dated January 29, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 2000EX airplanes. The MCAI states:

    The airworthiness limitations for Dassault Falcon 2000EX aeroplanes, which are approved by EASA, are currently defined and published in Aircraft Maintenance Manual (AMM) Airworthiness Limitations Section (ALS) Chapter 5-40. These instructions have been identified as mandatory for continued airworthiness.

    Failure to accomplish these instructions could result in an unsafe condition [i.e., reduced structural integrity of the airplane].

    EASA previously issued [EASA] AD 2012-0157 [which corresponds to FAA AD 2014-16-12, Amendment 39-17936 (79 FR 52187, September 3, 2014) (“AD 2014-16-12”)], requiring the actions described in Dassault Falcon 2000EX AMM Chapter 5-40 (DGT 113877) at Revision 07.

    Since that [EASA] AD was issued, Dassault published Revision 11 of Dassault Falcon 2000EX AMM Chapter 5-40 (DGT 113877), containing new and/or more restrictive maintenance tasks and introducing (among other changes) an operational test for Cursor Control Device.

    For the reason described above, this [EASA] AD retains the requirements of EASA AD 2012-0157, which is superseded, and requires accomplishment of the actions specified in the Dassault Falcon 2000EX AMM Chapter 5-40 (DGT 113877) at Revision 11 * * *.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0357.

    Comments

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

    Conclusion

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

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

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

    Related Service Information Under 1 CFR Part 51

    Dassault Aviation has issued Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, of the Dassault Falcon 2000EX Maintenance Manual. This service information describes instructions applicable to airworthiness and safe life limitations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 181 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

    Regulatory Findings

    This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed above, I certify that this AD:

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

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

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

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-19-27 Dassault Aviation: Amendment 39-19428; Docket No. FAA-2018-0357; Product Identifier 2018-NM-035-AD. (a) Effective Date

    This AD is effective November 13, 2018.

    (b) Affected ADs

    This AD affects AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) (“AD 2010-26-05”); and AD 2014-16-12, Amendment 39-17936 (79 FR 52187, September 3, 2014) (“AD 2014-16-12”).

    (c) Applicability

    This AD applies to Dassault Aviation Model FALCON 2000EX airplanes, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before January 15, 2018.

    (d) Subject

    Air Transport Association (ATA) of America Code 05, Time limits/maintenance checks.

    (e) Reason

    This AD was prompted by manufacturer revisions to the airplane maintenance manual (AMM) that introduce new or more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to address reduced structural integrity of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Revision of Maintenance or Inspection Program

    Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, of the Dassault Falcon 2000EX Maintenance Manual. The initial compliance times for doing the tasks are at the time specified in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, of the Dassault Falcon 2000EX Maintenance Manual, or within 90 days after the effective date of this AD, whichever occurs later; except for task number 52-20-00-610-801-01, the initial compliance time is within 24 months after October 8, 2014 (the effective date of AD 2014-16-12). The term “LDG” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, means total airplane landings. The term “FH” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, means total flight hours. The term “FC” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, means total flight cycles.

    (h) No Alternative Actions or Intervals

    After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (j)(1) of this AD.

    (i) Terminating Actions for Other ADs

    (1) Accomplishing the actions required by paragraph (g) of this AD terminates all of the requirements of AD 2014-16-12.

    (2) Accomplishing the actions specified in paragraph (g) of this AD terminates the requirements of paragraph (g) of AD 2010-26-05 for Dassault Aviation Model FALCON 2000EX airplanes.

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (k)(2) of this AD. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Dassault Aviation's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0021, dated January 29, 2018, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0357.

    (2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.

    (l) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) Chapter 5-40, Airworthiness Limitations, DGT 113877, Revision 11, dated November 2017, of the Dassault Falcon 2000EX Maintenance Manual.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet http://www.dassaultfalcon.com.

    (4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Des Moines, Washington, on September 14, 2018. John P. Piccola, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-21462 Filed 10-5-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0301; Product Identifier 2017-NM-112-AD; Amendment 39-19407; AD 2018-19-07] RIN 2120-AA64 Airworthiness Directives; Airbus SAS Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all Airbus SAS Model A300 series airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. This AD was prompted by a report of yellow hydraulic system failure, including both braking accumulators, due to failure of the parking brake operated valve (PBOV). This AD requires replacement of a certain PBOV with a different PBOV. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective November 13, 2018.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 13, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0301.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0301; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 series airplanes; Model A300 B4-600, A300 B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. The NPRM published in the Federal Register on April 27, 2018 (83 FR 18483). The NPRM was prompted by a report of yellow hydraulic system failure, including both braking accumulators, due to failure of the PBOV. The NPRM proposed to require replacement of a certain PBOV with a different PBOV.

    We are issuing this AD to address failure of the PBOV, which could result in no braking capability during ground operations, possibly leading to damage to the airplane and injury to people on the ground.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0153, dated August 17, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A300 series airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. The MCAI states:

    An occurrence was reported where yellow hydraulic system, including both braking accumulators, was lost. This was confirmed by ECAM [electronic centralized aircraft monitor] warnings and single chimes during taxiing. Normal braking on green hydraulic circuit was used until aeroplane stopped at parking position. A few seconds later, the aeroplane slowly accelerated, until colliding with a wall and a bus. The crew reported that the parking brake was selected and full braking pedals were applied, but with no effect since normal braking was inhibited after Parking Brake was set to ON. Investigation results identified that this occurrence was due to failure of the parking brake operated valve (PBOV), Part Number (P/N) A25315-1.

    This condition [parking brake failure], if not corrected, could lead to further incidents, possibly resulting in damage to the aeroplane and injury to persons on the ground.

    Prompted by this event, Airbus issued Service Bulletin (SB) A300-32-0467, SB A310-32-2151, SB A300-32-6117 and SB A300-32-9023, as applicable, to provide instructions for in-service installation of the PBOV P/N A25315020-2 introduced by Airbus Modification 13201 for A300/A310/A300-600 and Airbus Modification 19601 for A300-600ST.

    For the reason described above, this [EASA] AD requires replacement of the PBOV P/N A25315-1 by PBOV P/N A25315020-2.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0301.

    Comments

    We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.

    Support for the NPRM

    The Air Line Pilots Association, International (ALPA) indicated its support for the NPRM.

    Request To Revise the Compliance Time in the Proposed AD

    Airbus requested that the compliance time of the proposed AD be revised so operators would have all required actions completed by August 31, 2022, instead of 60 months after the effective date of the final rule. Airbus noted that August 31, 2022, is the calendar date that corresponds with the compliance time in EASA AD 2017-0153, which is 60 months after August 31, 2017 (the effective date of EASA AD 2017-0153).

    We disagree with the commenter's request. In consideration of the average utilization rate by the affected U.S. operators, the practical aspects of an orderly modification of the U.S. fleet during regular maintenance periods, and the availability of required parts, we have determined that a 60-month compliance time is appropriate. However, most ADs, including this one, permit operators to accomplish the requirements of an AD at a time earlier then the specified compliance time.

    Furthermore, using the compliance time proposed by Airbus would effectively reduce the compliance time for this AD, and we would have to provide an additional public comment period, which would further delay the issuance of this AD. We have not changed this AD in regard to this issue.

    Conclusion

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

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

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

    Related Service Information Under 1 CFR Part 51

    Airbus SAS has issued Service Bulletin A300-32-0467, dated July 4, 2017; Service Bulletin A300-32-6117, dated July 4, 2017; and Service Bulletin A310-32-2151, dated July 4, 2017. This service information describes procedures for replacing the PBOV. These documents are distinct since they apply to different airplane models. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 147 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on
  • U.S. operators
  • PBOV replacement 6 work-hours × $85 per hour = $510 $4,764 $5,274 $775,278
    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

    Regulatory Findings

    This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed above, I certify that this AD:

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

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

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

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-19-07 Airbus SAS: Amendment 39-19407; Docket No. FAA-2018-0301; Product Identifier 2017-NM-112-AD. (a) Effective Date

    This AD is effective November 13, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the Airbus SAS airplanes identified in paragraphs (c)(1) through (c)(6) of this AD, certificated in any category, all manufacturer serial numbers.

    (1) Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes.

    (2) Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes.

    (3) Model A300 B4-605R and B4-622R airplanes.

    (4) Model A300 F4-605R and F4-622R airplanes.

    (5) Model A300 C4-605R Variant F airplanes.

    (6) Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 32, Landing gear.

    (e) Reason

    This AD was prompted by a report of yellow hydraulic system failure, including both braking accumulators, due to failure of the parking brake operated valve (PBOV). We are issuing this AD to address failure of the PBOV, which could result in no braking capability during ground operations, possibly leading to damage to the airplane and injury to people on the ground.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) PBOV Replacement

    Within 60 months after the effective date of this AD, replace the PBOV having part number (P/N) A25315-1 with a PBOV having P/N A25315020-2, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-32-0467, dated July 4, 2017; Airbus Service Bulletin A300-32-6117, dated July 4, 2017; or Airbus Service Bulletin A310-32-2151, dated July 4, 2017; as applicable.

    (h) Parts Prohibition

    (1) After modification of an airplane as required by paragraph (g) of this AD, do not install any PBOV having P/N A25315-1 on that airplane.

    (2) For an airplane that, as of the effective date of this AD, has a PBOV having P/N A25315020-2 installed: As of the effective date of this AD, do not install any PBOV having P/N A25315-1 on that airplane.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (j)(2) of this AD. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Airbus SAS's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Required for Compliance (RC): If any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0153, dated August 17, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0301.

    (2) For more information about this AD, contact Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.

    (k) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) Airbus Service Bulletin A300-32-0467, dated July 4, 2017.

    (ii) Airbus Service Bulletin A300-32-6117, dated July 4, 2017.

    (iii) Airbus Service Bulletin A310-32-2151, dated July 4, 2017.

    (3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com.

    (4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Des Moines, Washington, on August 30, 2018. Jeffrey E. Duven, Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-21464 Filed 10-5-18; 8:45 am] BILLING CODE 4910-13-P
    FEDERAL TRADE COMMISSION 16 CFR Part 410 Deceptive Advertising as to Sizes of Viewable Pictures Shown by Television Receiving Sets AGENCY:

    Federal Trade Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Trade Commission (“Commission”) has completed its regulatory review of its Trade Regulation Rule Concerning the Deceptive Advertising as to Sizes of Viewable Pictures Shown by Television Receiving Sets (“Picture Tube Rule” or “Rule”), as part of its systematic review of all current Commission regulations and guides. Pursuant to that review, the Commission now determines that the Rule is no longer necessary to prevent deceptive claims regarding the size of television screens and to encourage uniformity and accuracy in their marketing. The Commission, therefore, repeals the Rule.

    DATES:

    This rule is effective January 7, 2019.

    ADDRESSES:

    Relevant portions of the record of this proceeding, including this document, are available at https://www.ftc.gov.

    FOR FURTHER INFORMATION CONTACT:

    John Andrew Singer, Attorney, (202) 326-3234, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, CC-9528, Washington, DC 20580.

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Commission promulgated the Picture Tube Rule in 1966 1 to prevent deceptive claims regarding the size of television screens and to encourage uniformity and accuracy in marketing. When the Commission adopted the Rule, it expressed concern about consumer confusion regarding whether a television's advertised screen dimension represented the actual viewable area of a convex-curved cathode ray tube (CRT) or included the viewable area of the picture tube plus non-viewable portions of the tube, such as those behind a casing. In addition, the Commission concluded that most consumers perceived the sizes of rectangular shaped objects, like television screens, in terms of their length or width, not their diagonal dimension.2

    1 31 FR 3342 (Mar. 3, 1966).

    2Id. at 3342-43.

    Based on these concerns, the Rule sets forth the means to non-deceptively advertise the dimensions of television screens.3 Thus, marketers must base any representation of screen size on the horizontal dimension of the actual, viewable picture area unless they disclose the alternative method of measurement (such as the diagonal dimension) clearly, conspicuously, and in close connection and conjunction to the size designation.4 The Rule also directs marketers to base the measurement on a single plane, without taking into account any screen curvature,5 and includes examples of both proper and improper size representations.6

    3 16 CFR 410.1.

    4Id.

    5Id., Note 1.

    6Id., Note 2.

    II. Regulatory Review

    The Commission reviews its rules and guides periodically to seek information about their costs and benefits, regulatory and economic impact, and general effectiveness in protecting consumers and helping industry avoid deceptive claims. These reviews assist the Commission in identifying rules and guides that warrant modification or repeal. The Commission last reviewed the Rule in 2006, leaving it unchanged.7

    7 71 FR 34247 (June 14, 2006).

    A. 2017 Advance Notice of Proposed Rulemaking (ANPR)

    In its 2017 ANPR initiating the current Rule review, the Commission solicited comment on, among other things: The economic impact of and the continuing need for the Rule; the Rule's benefits to consumers; and the burdens it places on industry, including small businesses.8

    8 82 FR 29256 (June 28, 2017).

    The Commission further solicited comment regarding how consumers understand dimension claims for television screens, including: Whether consumers understand the stated dimensions; whether the dimensions are limited to the screen's viewable portion; and whether the dimensions are based on a single-plane measurement that does not include curvature in the screen. The Commission also solicited input on whether advances in broadcasting and television technology, such as the introduction of curved screen display panels and changing aspect ratios (e.g., from the traditional 4:3 to 16:9), create a need to modify the Rule. Finally, the Commission requested comment regarding whether the Rule should address viewable screen size measurement reporting tolerances and rounding.9

    9Id. at 29257-58.

    The Commission received two comments in response, both urging the Commission to repeal the Rule.10 Both commenters characterized the Rule as an unnecessary relic from when televisions used curved CRTs. For example, the Consumer Technology Association (CTA), a trade association representing the U.S. consumer technology industry, commented that televisions with fully viewable, single plane, flat screens have become ubiquitous, and that the use of the diagonal measurement to represent screen size, both for televisions and for products with viewing screens not within the scope of the Rule, has become standard.11

    10 The comments are located at: https://www.ftc.gov/policy/public-comments/2017/07/initiative-707. Jonathan Applebaum (#3) and Consumer Technology Association (“CTA”) (#4) submitted comments. CTA's comment to the ANPR is cited herein as “CTA-I.”

    11 83 FR 17117, 17118 (Apr. 18, 2018).

    Commission staff observations confirmed that virtually all televisions in the marketplace have flat screens. Moreover, staff observed that marketers uniformly advertise the diagonal screen measurement for televisions, as well as for devices with screens not subject to the Rule, such as computer monitors, tablets, and cellphones.12

    12Id. at 17118.

    B. 2018 Notice of Proposed Rulemaking (NPR)

    Based upon the comments to the ANPR and staff's observations, the Commission's 2018 NPR proposed repealing the Rule.13 In the NPR, the Commission observed that the record suggested that the Rule has not kept up with changes in the marketplace. The Commission noted that there have been substantial changes in television screen technology since the Rule's adoption, particularly in the past decade. In 1966, television screens had CRTs,14 portions of which did not provide a viewable image.15 Today, virtually all televisions have flat screens where the viewable image covers the entire surface.16 Consequently, a television screen's viewing area is easy to ascertain and, therefore, claims regarding viewing area are not likely to deceive consumers.17 The Commission also stated that mandatory screen measurements appear to no longer be necessary to prevent consumer deception because the industry standard for representing screen size is a screen's diagonal dimension.18 Finally, the Commission concluded that the record lacked evidence of deception supporting retaining the Rule. In response to the ANPR, the Commission received no comments advocating for the Rule's retention or submitting information indicating that manufacturers are making deceptive screen size claims.

    13Id. at 17118-19.

    14 CTA-I at 4.

    15Id.

    16Id. at 5; 83 FR at 17119.

    17See, e.g., 60 FR 65529 (Dec. 20, 1995) (Commission repealed Binocular Rule, former 16 CFR part 402, finding technological improvements rendered it obsolete).

    18 83 FR at 17119.

    Accordingly, in its 2018 NPR, the Commission preliminarily concluded that the Rule is outdated and no longer necessary to protect consumers and stated that, “[n]othing in the record suggests that repealing the Rule would likely result in any consumer deception.” 19 It also sought further comment on the costs, benefits, and market effects of repealing the Rule, and particularly the cost on small businesses.20

    19Id.

    20Id. at 17119-20.

    III. Issues Raised by Commenters to the 2018 NPR

    The Commission received four comments in response to the NPR.21 CTA reiterated that the Commission should repeal the Rule. Three individual consumers argued the Commission should retain the Rule, but did so without submitting any evidence to support their position.

    21 These comments are located at: https://www.ftc.gov/policy/public-comments/2018/03/initiative-744. John Stover (#2), Georgianne Giese (#3), Frank Muenzer (#4), and CTA (#5) submitted comments. CTA's comment to the NPR is cited herein as “CTA-II.”

    In support of repeal, CTA repeated its contention that the state of technology for televisions—flat screens extending to virtually the end of any casing—make it unlikely that any manufacturer would use any measurement other the diagonal dimension of the screen to represent its size.22 CTA reiterated that even manufacturers of consumer products with screens not subject to the Rule, such as monitors, smartphones and tablets, uniformly use the diagonal measurement to represent screen size.23 Consequently, CTA stated that keeping the Rule would not provide any meaningful benefit to consumers because market forces will continue to make a screen's diagonal measurement the industry standard for televisions.24 CTA also noted that the Commission has not brought an enforcement action to compel compliance with the Rule in the more than 50 years since its adoption.25 Repealing the Rule, according to CTA, would not create any significant costs for manufacturers since they already use the diagonal screen measurement, and there is nothing to suggest that this would change after repeal.26

    22 CTA-II at 4-5.

    23Id. at 5.

    24Id. at 5-6.

    25Id. at 6.

    26Id. at 7.

    CTA also asserted that the Commission previously repealed trade regulation rules under similar circumstances, including when rules became obsolete due to changing technology; 27 decades had passed without any enforcement actions; 28 and any problems with deception arising after a rule repeal could be addressed on a case-by-case basis in the absence of an industry-wide rule.29

    27Id. at 7-8 (citing Commission's 1995 repeal of the Binocular Rule).

    28Id. (citing Commission's 1996 repeal of Games of Chance Rule).

    29Id. (citing Commission's 1996 repeal of Leather Belt Rule).

    Finally, CTA requested that, in addition to repealing the Rule, the Commission affirmatively declare that all “state regulations akin to the Rule—including interpretations of state laws prohibiting unfair or deceptive acts or practices—are in conflict with federal policy and are therefore preempted.” 30 CTA contended that a decision by the Commission not to regulate television screen measurement by repealing the Rule creates a federal policy that no entity may regulate television screen measurement. Therefore, according to CTA, the Commission's decision not to regulate an issue has the identical preemptive effect as the issuance of an affirmative regulation on an issue.31

    30Id. at 11.

    31Id. at 10.

    Three individual consumers urged the Commission to retain the Rule unchanged. John Stover stated the Rule should remain in effect because its retention “does no harm.” Georgianne Giese commented the Rule should remain in effect because, “if it ain't broke, don't fix it,” and because the Rule standardizes television screen measurement. Finally, Frank Muenzer stated that the proposed repeal of the Rule “appears to be a politically motivated completely unnecessary removal of a useful regulation.” 32

    32See n. 21, supra.

    IV. Basis for Repealing the Rule

    Section 18 of the FTC Act, 15 U.S.C. 57a, authorizes the Commission to promulgate, amend, and repeal trade regulation rules that define with specificity acts or practices that are unfair or deceptive in or affecting commerce within the meaning of section 5(a)(1) of the FTC Act, 15 U.S.C. 45(a)(1). The Commission regularly reviews its rules to ensure they are up-to-date, effective, and not overly burdensome, and has repealed a number of trade regulation rules after finding they were no longer necessary to protect consumers.33

    33See, e.g., 16 CFR part 419 (games of chance) (61 FR 68143 (Dec. 27, 1996) (rule outdated; violations largely non-existent; and rule has adverse business impact); 16 CFR part 406 (used lubricating oil) (61 FR 55095 (Oct. 24, 1996)) (rule no longer necessary, and repeal will eliminate unnecessary duplication); 16 CFR part 405 (leather content of waist belts) (61 FR 25560 (May 22, 1996)) (rule unnecessary and duplicative; rule's objective can be addressed through guidance and case-by-case enforcement); and 16 CFR part 402 (binoculars) (60 FR 65529 (Dec. 20, 1995)) (technological improvements render rule obsolete). These prior rule repeals demonstrate that the Commission has a long-standing practice of repealing certain trade regulation rules when, as here, they are no longer necessary to prevent consumer deception.

    The additional comments received in response to the NPR affirm the Commission's preliminary conclusion 34 that current conditions support repealing the Rule. As explained in detail below, the record indicates that: (1) The Rule has not kept up with changes in the marketplace; (2) mandatory screen measurement instructions are no longer necessary to prevent consumer deception; and (3) manufacturers are not making deceptive screen size claims. Therefore, based on the record, the Commission now repeals the Rule.

    34 83 FR at 17119.

    First, the record indicates that the Rule has not kept up with changes in the marketplace. Specifically, as both CTA's comments and Commission staff's observations confirm, virtually all televisions now have flat screens where the viewable image covers the entire surface.35 Moreover, these televisions are surrounded by thin bezels, not casings or console walls, which do not obscure any of the screens. Thus, in contrast to technology at the time the Commission promulgated the Rule, there currently is no ambiguity regarding a television screen's viewing area. Screen size claims, therefore, no longer are fertile ground for widespread deceptive claims.

    35 CTA-I at 4-5; CTA-II at 4-5; 83 FR at 17118.

    Second, to the extent lack of uniformity in screen size measurements (i.e., diagonal vs. horizontal) increases the chances of deception, the Rule is not now necessary to create that uniformity. CTA's comments confirm staff's observation that, although the Rule mandates a single plane horizontal measurement of a television screen's viewable portion as the default measurement,36 the industry universally measures television screen sizes using the diagonal dimension.37 The record further demonstrates that manufacturers universally use a screen's diagonal dimension to represent sizes for screens contained in the many consumer devices outside the scope of the Rule.38 The ubiquity of the diagonal dimension indicates that consumers expect to compare screens' diagonal dimensions when purchasing televisions. Thus, the market has created the uniformity the Rule originally sought.

    36 31 FR 3342, 3343 (Mar. 3, 1966) (former 16 CFR 4.103(b)); 16 CFR 410.1. Manufacturers may use an alternative method of measurement if they disclose this method clearly, conspicuously, and in close connection and conjunction to the size designation. 16 CFR 410.1.

    37 CTA-I at 5-6; CTA-II at 5-6; 83 FR at 17118.

    38 CTA-II at 5-6; 83 FR at 17118.

    Finally, the record lacks evidence of any deception in the marketplace that supports a continuing need for the Rule. No commenter submitted information indicating that manufacturers are making deceptive screen size claims. Additionally, the Commission has received no complaints about manufacturers making such claims over the past 5 years.39

    39 The Commission retains complaint data for five years. The data reported above is based on a search of Consumer Sentinel conducted on July 18, 2018.

    Accordingly, the Commission concludes that the Rule is no longer necessary to protect consumers from deceptive representations of screen size or to encourage uniformity and accuracy in marketing televisions. Nothing in the record suggests that repealing the Rule would likely result in any consumer deception. Therefore, any minimal costs associated with the Rule for businesses now outweigh any benefits to consumers.40 The Commission can address any deceptive marketing on a case-by-case basis through enforcement actions brought under Section 5(a) of the FTC Act, 15 U.S.C. 45(a), rather than by imposing an industry-wide trade regulation rule.41

    40See CTA-I at 7-8; CTA-II at 7.

    41 15 U.S.C. 45(a). See CTA-I at 3 and CTA-II at 7-8. See also, e.g., 61 FR 25560, 25560-61 (May 22, 1996) (in repealing Leather Content in Waist Belts Rule due, in part, to lack of the need for enforcement, the Commission stated that should it find any future deception of the type that the Rule was intended to prevent, the Commission could address this deception through case-by-case enforcement).

    V. The Repeal of the Rule Is Not Intended To Preempt State Action for Deceptive or Unfair Acts or Practices Regarding Television Screen Size

    To prevent what CTA characterized as the potential for “a complicated patchwork quilt of inconsistent [state law] mandates,” 42 it asked the Commission to issue an affirmative statement that by repealing the Rule it intends to preempt any state regulatory or enforcement actions regarding representations of television screen size.43 The Commission declines to issue such a statement.

    42 CTA-II at 9.

    43 CTA-II at 9-11.

    While the Commission concludes that a trade regulation rule for television screen measurement is no longer necessary, it retains its authority to address future unfair or deceptive practices relating to television screen measurement on a case-by-case basis.44 Similarly, states have authority under analogous state laws. Therefore, the Commission's repeal of the Rule is not intended to preempt the states from taking regulatory or enforcement actions to prevent deception or unfairness concerning television screen measurement.

    44See n. 41, supra.

    VI. Regulatory Flexibility Act and Regulatory Analysis

    Under Section 22 of the FTC Act, 15 U.S.C. 57b-3, the Commission must issue a final regulatory analysis for a proceeding to amend a rule only when it: (1) Estimates that the amendment will have an annual effect on the national economy of $100 million or more; (2) estimates that the amendment will cause a substantial change in the cost or price of certain categories of goods or services; or (3) otherwise determines that the amendment will have a significant effect upon covered entities or upon consumers. The Commission determines that the repeal of the Rule will not have such effects on the national economy; on the cost of televisions; or on covered parties or consumers. The Rule repeal, rather than imposing any costs on covered parties or consumers, will eliminate any costs associated with complying with the Rule. Accordingly, the repeal of the Rule is exempt from Section 22's final regulatory analysis requirements.

    The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601-612, requires that the Commission conduct an analysis of the anticipated economic impact of the amendment of a rule on small entities. The purpose of a regulatory flexibility analysis is to ensure that an agency considers the impacts on small entities and examines regulatory alternatives that could achieve the regulatory purpose while minimizing burdens on small entities. Section 605 of the RFA, 5 U.S.C. 605, provides that such an analysis is not required if the agency head certifies that the regulatory action will not have a significant economic impact on a substantial number of small entities. The Commission concludes that the repeal of the Rule will not have a significant economic impact upon small entities because the Rule's repeal will eliminate any costs associated with complying with the Rule. Therefore, in the Commission's view, the repeal of the Rule will not have a significant or disproportionate impact on the costs of small entities that sell televisions. These entities appear to provide consumers with the screen size as measured by a television's manufacturer and that typically appears on a television's packaging. In addition, the Commission is not aware of any existing federal laws or regulations that address the measurement of television screens and that would conflict with the repeal of the Rule. Therefore, based on available information, the Commission certifies that repealing the Rule will not have a significant economic impact on a substantial number of small entities.

    VII. Repeal of Rule

    For the reasons stated in the preamble, and under the authority of 15 U.S.C. 57a, the Commission removes 16 CFR part 410.

    List of Subjects in 16 CFR Part 410

    Advertising, Electronic funds transfer, Television, and Trade practices.

    By direction of the Commission, Commissioner Wilson not participating.

    Donald S. Clark, Secretary.
    PART 410—[REMOVED] Accordingly, under the authority of 15 U.S.C. 57a, the Commission removes 16 CFR part 410.
    [FR Doc. 2018-21803 Filed 10-5-18; 8:45 am] BILLING CODE 6750-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 172 [Docket No. FDA-2016-F-1444] Food Additives Permitted for Direct Addition to Food for Human Consumption; Styrene AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Food and Drug Administration (FDA, the Agency, or we) is amending the food additive regulations to no longer provide for the use of styrene as a flavoring substance and adjuvant for use in food because these uses have been abandoned. We are taking this action in response to a food additive petition submitted by the Styrene Information and Research Center (SIRC).

    DATES:

    This rule is effective October 9, 2018. See section VIII for further information on the filing of objections. Submit either electronic or written objections and requests for a hearing on the final rule by November 8, 2018.

    ADDRESSES:

    You may submit objections and requests for a hearing as follows. Please note that late, untimely filed objections will not be considered. Electronic objections must be submitted on or before November 8, 2018. Objections received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Electronic Submissions

    Submit electronic objections in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Objections submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your objection will be made public, you are solely responsible for ensuring that your objection does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your objection, that information will be posted on https://www.regulations.gov.

    • If you want to submit an objection with confidential information that you do not wish to be made available to the public, submit the objection as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper objections submitted to the Dockets Management Staff, FDA will post your objection, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2016-F-1444 for “Food Additives Permitted for Direct Addition to Food for Human Consumption; Styrene.” Received objections, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit an objection with confidential information that you do not wish to be made publicly available, submit your objections only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Judith Kidwell, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740-3835, 240-402-1071.

    SUPPLEMENTARY INFORMATION: I. Background

    In the Federal Register of June 15, 2016 (81 FR 38984), we announced that we filed a food additive petition (FAP 6A4817), submitted by SIRC, c/o Keller and Heckman LLP, 1001 G Street NW, Suite 500 West, Washington, DC 20001. The petition proposed to amend § 172.515 Synthetic flavoring substances and adjuvants (21 CFR 172.515) to no longer provide for the use of styrene (CAS Reg. No. 100-42-5) as a synthetic flavoring substance and adjuvant in food because these uses of styrene have been abandoned. Any use of styrene other than as a synthetic flavoring substance and adjuvant in food in accordance with § 172.515 was considered outside the scope of this petition.

    II. Evaluation of Abandonment

    Section 409(i) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 348(i)) states that we must by regulation establish the procedure for amending or repealing a food additive regulation and that this procedure must conform to the procedure provided in section 409 of the FD&C Act for the issuance of such regulations. Our regulations specific to administrative actions for food additives provide that the Commissioner of Food and Drugs, on his own initiative or on the petition of any interested person, under 21 CFR part 10, may propose the issuance of a regulation amending or repealing a regulation pertaining to a food additive or granting or repealing an exception for such additive (§ 171.130(a) (21 CFR 171.130(a))). The regulations further provide that any such petition must include an assertion of facts, supported by data, showing that new information exists with respect to the food additive or that new uses have been developed or old uses abandoned, that new data are available as to toxicity of the chemical, or that experience with the existing regulation or exemption may justify its amendment or repeal. New data must be furnished in the form specified in §§ 171.1 and 171.100 for submitting petitions (§ 171.130(b)). Under these regulations, a petitioner may propose that we amend a food additive regulation if the petitioner can demonstrate that there are “old uses abandoned” for the relevant food additive. Such abandonment must be complete for any intended uses in the United States market. While section 409 of the FD&C Act and § 171.130 also provide for amending or revoking a food additive regulation based on safety, an amendment or revocation based on abandonment is not based on safety, but is based on the fact that regulatory authorization is no longer necessary because the use of that food additive has been abandoned.

    Abandonment may be based on the abandonment of certain authorized food additive uses for a substance (e.g., if a substance is no longer used in certain product categories) or on the abandonment of all authorized food additive uses of a substance (e.g., if a substance is no longer being manufactured). If a petition seeks an amendment to a food additive regulation based on the abandonment of certain uses of the food additive, such uses should be adequately defined so that both the scope of the abandonment and any amendment to the food additive regulation are clear.

    The petition submitted on behalf of SIRC contains information collected from its members to support the petitioner's claim that styrene is no longer manufactured, imported, or otherwise marketed for use as a synthetic flavoring substance and adjuvant in food in the U.S. market and that industry has abandoned such use of styrene. Specifically, the petition contained information SIRC collected through surveying its membership, which contains over 95 percent of the current North American styrene industry, to verify that its members:

    • Do not currently manufacture styrene for use as a synthetic flavoring substance and adjuvant in food in the United States;

    • do not currently import styrene for use as a synthetic flavoring substance and adjuvant in food into the United States;

    • do not intend to manufacture or import styrene for use as a synthetic flavoring substance and adjuvant in food in the United States in the future; and

    • do not currently maintain any inventory of styrene for sale or distribution into commerce that is intended to be marketed for use as a synthetic flavoring substance and adjuvant in food in the United States.

    SIRC also confirmed that no foreign manufacturers appear to be using or marketing styrene for use as a synthetic flavoring substance or adjuvant in food, based on information received from the Japan Styrene Industry Association, the European Chemical Industry Council, and contacts in China.

    Additionally, SIRC consulted with the Flavor and Extract Manufacturers Association of the Unites States and received a determination confirming that the Flavor and Extract Manufacturers Association members no longer use or produce styrene as a synthetic flavoring substance or adjuvant in food. The Flavor and Extract Manufacturers Association also submitted to the docket for this petition data and information in support of the petition, which FDA reviewed and evaluated in making its decision on this petition. The Flavor and Extract Manufacturers Association is a national association of the U.S. flavor industry whose members include flavor manufacturers, flavor users, flavor ingredient suppliers, and others. Based on information provided from Flavor and Extract Manufacturers Association, its members manufacture more than 95 percent of all flavoring substances sold in the United States.

    III. Comments on the Filing Notice

    We provided 60 days for comments on the filing notice. We received two comments. For ease of reading, we preface each comment discussion with a numbered “Comment,” and the word “Response” appears before FDA's response. The number assigned is for organizational purposes only and does not signify any individual comment's value, importance, or order in which it was received. One comment expressed concerns about the timing of FDA action on SIRC's abandonment petition. This comment is summarized below, followed by FDA's response. The other comment supported SIRC's conclusions that the use of styrene as a synthetic flavoring substance or adjuvant in food has been abandoned.

    (Comment 1) One comment requested that we not make a final decision on the petition until after we make a final decision on a food additive petition (FAP 5A4810) submitted in 2015 by several consumer groups asking us to remove styrene (and six other additives) from § 172.515 as a synthetic flavoring substance and adjuvant in food on the basis that it is not safe for use in food (Docket No. FDA-2015-F-4317). The comment stated that if we make a decision on the petition based on abandonment before making a decision on FAP 5A4810 based on safety, a company may conclude that the use of styrene is generally recognized as safe (GRAS) without notifying us. The comment also stated that making a decision based on abandonment “leaves unresolved the safety issue . . . and encourages industry to only consider whether something is abandoned in order to preempt a safety decision.” Further, the comment stated that FDA is statutorily required to regulate food additives and prevent the use of those that are unsafe and that FDA's failure to make a determination based on safety would fall short of FDA's statutory duty.

    (Response 1) FDA disagrees. We are not required to make a final decision on FAP 5A4810 before the current petition. With regard to the assertion that FDA is required to make a safety determination and that failure to do so falls short of FDA's statutory duty, FDA has numerous responsibilities related to food additives. Each year, FDA receives and responds to hundreds of submissions under the various petition and notification programs we administer. Therefore, if the use of a food additive is no longer authorized in response to an abandonment petition, FDA may determine that it is neither necessary nor an efficient use of its limited resources to address safety arguments related to an abandoned use.

    With regard to the comment's concern that a manufacturer may conclude that the use of styrene as a synthetic flavoring substance and adjuvant in food is GRAS without notifying us, we note that, for a substance to be GRAS based on scientific procedures, the scientific data and information about the use of a substance must be generally available and there must be general recognition among qualified experts that those data and information establish that the substance is safe under the conditions of its intended use (21 CFR 170.30). Prior approval as a food additive does not mean that the use of a substance is GRAS (see 81 FR 54960 at 54976, August 17, 2016). FDA encourages firms to seek our evaluation of any conclusion of GRAS status before they introduce the substance into the market. In the event that a manufacturer later wishes to reinstate the use of styrene as a synthetic flavoring substance and adjuvant in food, we would expect the manufacturer to seek re-authorization through submission of a food additive petition because this intended use was previously authorized under section 409 of the FD&C Act.

    With regard to the assertion that an abandonment petition could be used by industry to preempt a safety determination by FDA, we have the discretion to make a safety determination regardless of whether there is an abandonment petition.

    Elsewhere in this issue of the Federal Register we have published a final rule in response to FAP 5A4810 amending § 172.515 to no longer authorize the use of benzophenone, ethyl acrylate, eugenyl methyl ether, myrcene, pulegone, and pyridine as synthetic flavoring substances and adjuvants in food.

    IV. Conclusion

    FDA reviewed the data and information in the petition and other available relevant material to evaluate whether the use of styrene as a synthetic flavoring substance and adjuvant in food has been has been permanently and completely abandoned. Based on the available information, we have determined that the use of styrene as a synthetic flavoring substance and adjuvant in food has been abandoned. Therefore, we are amending § 172.515 to no longer provide for the use of styrene as a synthetic flavoring substance and adjuvant in food.

    V. Public Disclosure

    In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT). As provided in § 171.1(h), we will delete from the documents any materials that are not available for public disclosure.

    VI. Analysis of Environmental Impact

    We previously considered the environmental effects of this rule, as stated in the June 15, 2016, Federal Register notice of petition for FAP 6A4817 (81 FR 38984). We stated that we had determined, under 21 CFR 25.32(m), that this action “is of a type that does not individually or cumulatively have a significant effect on the human environment” such that neither an environmental assessment nor an environmental impact statement is required. We have not received any new information or comments that would affect our previous determination.

    VII. Paperwork Reduction Act of 1995

    This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

    VIII. Objections

    If you will be adversely affected by one or more provisions of this regulation, you may file with the Dockets Management Staff (see ADDRESSES) either electronic or written objections. You must separately number each objection, and within each numbered objection you must specify with particularity the provision(s) to which you object and the grounds for your objection. Within each numbered objection, you must specifically state whether you are requesting a hearing on the particular provision that you specify in that numbered objection. If you do not request a hearing for any particular objection, you waive the right to a hearing on that objection. If you request a hearing, your objection must include a detailed description and analysis of the specific factual information you intend to present in support of the objection in the event that a hearing is held. If you do not include such a description and analysis for any particular objection, you waive the right to a hearing on the objection.

    Any objections received in response to the regulation may be seen in the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at https://www.regulations.gov.

    List of Subjects in 21 CFR Part 172

    Food additives, Reporting and recordkeeping requirements.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR part 172 is amended as follows:

    PART 172—FOOD ADDITIVES PERMITTED FOR DIRECT ADDITION TO FOOD FOR HUMAN CONSUMPTION 1. The authority citation for part 172 continues to read as follows: Authority:

    21 U.S.C. 321, 341, 342, 348, 371, 379e.

    § 172.515 [Amended]
    2. Amend § 172.515(b) by removing the entry for “Styrene.” Dated: October 2, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-21808 Filed 10-5-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 172 and 177 [Docket No. FDA-2015-F-4317] Food Additive Regulations; Synthetic Flavoring Agents and Adjuvants AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule; notification of partial denial of petition.

    SUMMARY:

    The Food and Drug Administration (FDA, the Agency, or we) is partially granting a petition submitted by the Breast Cancer Fund (now known as the Breast Cancer Prevention Partners), Center for Environmental Health, Center for Food Safety, Center for Science in the Public Interest, Consumers Union, Environmental Defense Fund, Environmental Working Group, Improving Kids' Environment, Natural Resources Defense Council, WE ACT for Environmental Justice, and Mr. James Huff, by amending the food additive regulations to no longer authorize the use of benzophenone, ethyl acrylate, eugenyl methyl ether, myrcene, pulegone, and pyridine as synthetic flavoring substances for use in food. We are taking this action because, despite FDA's scientific analysis and determination that these substances do not pose a risk to public health under the conditions of their intended use, the petitioners provided data demonstrating that these additives induce cancer in laboratory animals, and, as a result of this finding in animals, FDA cannot as a matter of law maintain the listing of these synthetic flavoring substances in the food additive regulations. Because of evidence that benzophenone causes cancer in animals, FDA also is amending the food additive regulations to no longer provide for the use of benzophenone as a plasticizer in rubber articles intended for repeated use in contact with food. FDA is denying as moot the portions of the petition proposing that the food additive regulations be amended to no longer authorize the use of styrene as a synthetic flavoring substance because this use has been permanently and completely abandoned. In addition, FDA is declining to act on the petitioners' request to issue a regulation to prohibit the use of these synthetic flavoring substances in food because that issue is not the proper subject of a food additive petition.

    DATES:

    This rule is effective October 9, 2018. See section IX for further information on the filing of objections. Submit either electronic or written objections and requests for a hearing on the final rule by November 8, 2018.

    ADDRESSES:

    You may submit objections and requests for a hearing as follows. Please note that late, untimely filed objections will not be considered. Electronic objections must be submitted on or before November 8, 2018. Objections received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Electronic Submissions

    Submit electronic objections in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Objections submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your objection will be made public, you are solely responsible for ensuring that your objection does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your objection, that information will be posted on https://www.regulations.gov.

    • If you want to submit an objection with confidential information that you do not wish to be made available to the public, submit the objection as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper objections submitted to the Dockets Management Staff, FDA will post your objection, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2015-F-4317 for “Food Additives Permitted for Direct Addition to Food for Human Consumption; Synthetic Flavoring Agents and Adjuvants.” Received objections, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit an objection with confidential information that you do not wish to be made publicly available, submit your objections only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” We will review this copy, including the claimed confidential information, in our consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Judith Kidwell, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740-3835, 240-402-1071.

    SUPPLEMENTARY INFORMATION:

    Table of Contents: I. Introduction II. Background A. Statutory and Regulatory Background B. Abandonment of Use of Styrene Authorized Under 21 CFR 172.515 C. History of the Regulation of the Synthetic Flavoring Substances and Adjuvants D. Summary and Context of Determination III. Evaluation of Carcinogenicity A. Benzophenone B. Ethyl Acrylate C. Methyl Eugenol D. Myrcene E. Pulegone F. Pyridine IV. Comments on the Notice of Petition A. Legal and Policy Issues B. Scientific Issues V. Conclusion VI. Public Disclosure VII. Analysis of Environmental Impacts VIII. Paperwork Reduction Act IX. Objections X. References I. Introduction

    In the Federal Register of January 4, 2016 (81 FR 42), we announced that the Center for Science in the Public Interest, Natural Resources Defense Council, Center for Food Safety, Consumers Union, Improving Kids' Environment, Center for Environmental Health, Environmental Working Group, Environmental Defense Fund, and James Huff (the petitioners), c/o Mr. Tom Neltner, 1875 Connecticut Ave. NW, Washington, DC 2009, had jointly filed a food additive petition (FAP 5A4810). Subsequently, the Breast Cancer Fund (now known as Breast Cancer Prevention Partners) and WE ACT for Environmental Justice joined as co-petitioners.

    The petition proposed that we take two separate regulatory actions: (1) Amend the food additive regulations in § 172.515 Synthetic flavoring substances and adjuvants (21 CFR 172.515) to no longer authorize the use of seven listed synthetic flavoring food additives and (2) to establish zero tolerances in § 172.515 for these additives. However, the food additive regulation is not the appropriate section for a “zero tolerance,” and this request is not the proper subject of a food additive petition. A food additive petition must either propose the issuance of a regulation prescribing the conditions under which a food additive may be safely used (see section 409(b)(1) of the Federal Food, Drug, & Cosmetic Act (FD&C Act) (21 U.S.C. 348(b)(1)), or propose the amendment or repeal of an existing food additive regulation (see section 409(i) of the FD&C Act. Only the petitioners' request to amend §  172.515 to remove the seven synthetic flavorings and adjuvants from FDA's regulations permitting their use as additives in food falls within the statutory scope of a food additive petition. Therefore, the petitioners' request that we establish zero tolerances for these seven flavoring additives falls outside the scope of a food additive petition. As a result, we are not addressing that request further in this rule. (An interested person may use the citizen petition process to request the issuance of a regulation, including a request to establish a “zero tolerance,” which we interpret as a request to issue a regulation prohibiting a substance from human food under part 189 (see 21 CFR 189.1(c) (referring to 21 CFR part 10, which sets forth FDA's citizen petition process)). (In addition, we understand the petitioners are no longer pursuing this request based on a public filing with a U.S. court of appeals (stating “[t]he Petition also requested that FDA `establish a zero tolerance [standard]. . . for the use of these seven flavors.' . . . Petitioners are no longer pursuing this aspect of the Petition”). (See In Re Breast Cancer Prevention Partners, No. 18-71260 (9th Cir.)). Thus, in this rule we focus solely on the request to amend the food additive regulations.

    The seven food additives that are the subject of this petition are:

    1. Benzophenone (also known as diphenylketone) (CAS No. 119-61-9);

    2. Ethyl acrylate (CAS No. 140-88-5);

    3. Eugenyl methyl ether (also known as 4-allylveratrole or methyl eugenol) (CAS No. 93-15-2);

    4. Myrcene (also known as 7-methyl-3-methylene-1,6-octadiene) (CAS No. 123-35-3);

    5. Pulegone (also known as p-menth-4(8)-en-3-one) (CAS No. 89-82-7);

    6. Pyridine (CAS No. 110-86-1); and

    7. Styrene (CAS No. 100-42-5).

    We stated in the notice of petition that, although the petition only proposes to amend § 172.515 to no longer provide for the use of these seven synthetic flavoring substances, FDA's action in response to the petition could affect other regulations that provide for the use of the additives. Specifically, in the notice we identified the use of benzophenone, which is approved as an indirect food additive, i.e., a plasticizer (diphenylketone in § 177.2600 (21 CFR 177.2600(c)(4)(iv))), as potentially being impacted by our regulatory decision. The notice of petition gave interested parties until March 4, 2016, to submit comments on the filed food additive petition. In response to a written request submitted to the docket, we extended the comment period to May 3, 2016 (81 FR 8867, February 23, 2016).

    This final rule partially granting the request to revise the regulations to no longer provide for the use of these synthetic flavorings in food, and the partial denial given the petitioners' request falls outside the scope of the food additive petition process, completely responds to the petition.

    II. Background A. Statutory and Regulatory Background of Food Additive Regulation

    The FD&C Act authorizes us to regulate “food additives” (see section 409(a) of the FD&C Act). The FD&C Act defines “food additive,” in relevant part, as any substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component of food (see section 201(s) of the FD&C Act (21 U.S.C. 321(s))). Food additives can include both substances added directly to food and “food contact substance[s]” (i.e., substances intended for use in materials that come into contact with food, for instance in food packaging or manufacturing, but which are not intended to have any technical effect in the food (see § 170.3(e)(3) (21 CFR 170.3(e)(3))). Food additives are deemed unsafe and prohibited except to the extent that we approve their use (see, e.g., section 301(a) and (k) (21 U.S.C. 331(a) and (k)) and 409(a) of the FD&C Act).

    The FD&C Act provides a process through which persons who wish to use a food additive may submit a petition proposing the issuance of a regulation prescribing the conditions under which the additive may be safely used (see section 409(b)(1) of the FD&C Act). Such a petition is referred to as a “food additive petition.” A food additive petition must either propose the issuance of a regulation prescribing the conditions under which a food additive may be safely used (see section 409(b)(1) of the FD&C Act), or propose the amendment or repeal of an existing food additive regulation (see section 409(i) of the FD&C Act). When we conclude that a proposed use of a food additive is safe, we issue a regulation called a “food additive regulation” authorizing a specific use of the substance.

    A food additive cannot be approved for use unless the data presented to FDA establish that the food additive is safe for that use (section 409(c)(3)(A) of the FD&C Act). To determine whether a food additive is safe, the FD&C Act requires FDA to consider, among other relevant factors: (1) Probable consumption of the additive; (2) cumulative effect of such additive “in the diet of man or animals”; and (3) safety factors recognized by experts “as appropriate for the use of animal experimentation data” (section 409(c)(5) of the FD&C Act). FDA's determination that a food additive use is safe means that there is a “reasonable certainty in the minds of competent scientists that the substance is not harmful under the intended conditions of use” (§ 170.3(i)). However, FDA cannot approve a food additive if it is found “to induce cancer when ingested by man or animal, or if it is found, after tests which are appropriate for the evaluation of the safety of food additives, to induce cancer in man or animal” (section 409(c)(3)(A) of the FD&C Act). This provision, which is often referred to as the “Delaney Clause,” was added to the FD&C Act by the Food Additives Amendment of 1958 (Pub. L. 85-929). The Delaney Clause limits FDA's discretion to determine the safety of food additives, in that it prevents FDA from finding a food additive to be safe if it has been found to induce cancer when ingested by humans or animals, regardless of the probability, or risk, of cancer associated with exposure to the additive or of the extent to which the experimental conditions of the animal study or the carcinogenic mode of action provide insight into the health effects of human consumption and use of the additive in question. In Public Citizen v. Young, the DC Circuit Court of Appeals held that Congress intended for the Delaney Clause to be “extraordinarily rigid,” to protect the public from cancer-causing substances without exception, rejecting FDA's argument that a particular color additive, which was subject to a similarly worded Delaney Clause for color additives, should be approved because it did not pose more than a de minimis cancer risk (831 F.2d 1108, 1122 (DC Cir. 1987); see also Les v. Reilly, 968 F.2d 985, 986 (9th Cir. 1992) (holding that the Environmental Protection Agency's refusal to revoke regulations permitting the use of certain pesticides (which were regulated as food additives at the time of the court decision), on the grounds that they pose a de minimis cancer risk, is contrary to the provisions of the Delaney Clause).

    The FD&C Act provides that FDA must by regulation prescribe the procedure by which a food additive regulation may be amended or repealed (see section 409(i) of the FD&C Act). Our regulation specific to the administrative actions for food additives provides that the Commissioner of Food and Drugs (the Commissioner), on his or her own initiative or on the petition of any interested person, may propose the issuance of a regulation amending or repealing a regulation pertaining to a food additive (see §  171.130(a) (21 CFR 171.130(a))). Our regulation, at §  171.130(b), further provides that any such petition must include an assertion of facts, supported by data, showing that new information exists with respect to the food additive or that new uses have been developed or old uses abandoned, that new data are available as to toxicity of the chemical, or that experience with the existing regulation or exemption may justify its amendment or repeal.

    The specific food additive regulation at issue in the petition, §  172.515, lists synthetic flavoring substances and adjuvants that may be safely used in food in accordance with the conditions in the regulation. At issue in the petition are seven synthetic flavorings and adjuvants listed in this regulation: Benzophenone (also known as diphenylketone), ethyl acrylate, eugenyl methyl ether (also known as 4-allylveratrole or methyl eugenol), myrcene (also known as 7-methyl-3-methylene-1,6-octadiene), pulegone (also known as p-menth-4(8)-en-3-one, pyridine, and styrene. The petitioners assert that new data establish that these synthetic flavoring additives are carcinogenic and therefore not safe for use in food pursuant to the Delaney Clause.

    B. Abandonment of Use of Styrene Authorized Under 21 CFR 172.515

    Related to FAP 5A4810, in a document published in the Federal Register on June 15, 2016 (81 FR 38984), we announced that we filed a food additive petition (FAP 6A4817) proposing that we amend § 172.515 to no longer provide for the use of styrene as a synthetic flavoring substance and adjuvant in food because the use has been abandoned. Elsewhere in this issue of the Federal Register, we have published a final rule in response to FAP 6A4817 granting that petition and amending § 172.515 to no longer authorize the use of styrene as a synthetic flavoring substance and adjuvant in food because its use under § 172.515 has been permanently and completely abandoned. Because the final rule issued in response to FAP 6A4817 removes styrene from § 172.515—thereby taking one of the actions requested in this petition—the petitioners' request is moot, and it is neither necessary nor an efficient use of our resources to address the petitioners' assertions regarding the safety of the food additive use of styrene that is no longer authorized. Therefore, we are denying as moot the request in FAP 5A4810 to remove styrene from § 172.515.

    C. History of the Regulation of the Synthetic Flavoring Substances and Adjuvants

    In the Federal Register of May 27, 1964 (29 FR 6957), FDA published a proposed rule to establish a regulation for synthetic flavoring substances and adjuvants used in food. The purpose of the proposed regulation was to identify those synthetic substances that may be safely used as flavoring substances or flavor adjuvants in food. The proposed regulation listed many synthetic flavoring substances and adjuvants in use at the time, including benzophenone, ethyl acrylate, eugenyl methyl ether, myrcene, pulegone, and pyridine. The proposed rule stated that, in reaching a conclusion about the safety of the substances listed in the proposed order, FDA relied upon experience based on the common use of these substances in food prior to 1958; the fact that many of the synthetic flavoring substances have a natural counterpart in food or in natural substances used to flavor foods; that metabolic and toxicity data representing studies made on selected flavoring substances were reviewed and safety established; and that relatively low and essentially self-limiting quantities are involved when these substances are used in food, consistent with good manufacturing practice. (29 FR 6957). In the Federal Register of October 27, 1964 (29 FR 14625), FDA issued a final rule based on this proposal with a few changes based on comments that were received and established this regulation in 21 CFR 121.1164. This regulation also limited the amount of the synthetic flavoring substance that could be added to food to the smallest amount necessary to achieve the desired flavoring effect. In the Federal Register of March 15, 1977 (42 FR 14302 at 14492), 21 CFR 121.1164 was redesignated § 172.515.

    D. Summary and Context of Determination

    We have evaluated the data and information submitted by the petitioners, as well as other relevant carcinogenicity data and information, and have determined the remaining six synthetic flavoring substances (i.e., other than styrene) that are the subject of FAP 5A4810 are unlikely to pose a potential or significant carcinogenic risk for humans at the levels that these synthetic flavoring substances are used in foods, and that the use of these food additives is safe for human consumption. In other words, FDA has a reasonable certainty that the substances do no harm under the intended conditions of use (the standard for approving food additives). However, because data submitted by the petitioners demonstrate that these synthetic flavoring substances have been shown to induce cancer in animal studies, FDA cannot consider these synthetic flavoring substances to be safe as a matter of law because of the Delaney Clause, and must revoke the listings providing for the use of these synthetic flavoring substances and adjuvants, as described further in section III.

    In making this determination, we reiterate the point, first made in our 1964 proposed rulemaking, that all of the synthetic flavoring substances that are the subject of the petition have a natural counterpart in food or in natural substances used to flavor foods. For example, benzophenone is present in grapes, ethyl acrylate is present in pineapple, eugenyl methyl ether (methyl eugenol) is present in basil, myrcene is present in citrus fruit, pulegone is present in peppermint, and pyridine is present in coffee. FDA's revocation of the listings providing for the use of these synthetic flavoring substances and adjuvants does not affect the legal status of foods containing natural counterparts or non-synthetic flavoring substances extracted from food, and there is nothing in the data FDA has reviewed in responding to the pending food additive petition that causes FDA concern about the safety of foods that contain natural counterparts or extracts from such foods.

    III. Evaluation of Carcinogenicity

    The petitioners assert that each of the synthetic flavoring substances (i.e., benzophenone, ethyl acrylate, methyl eugenol, myrcene, pulegone, and pyridine) has been shown to induce cancer in animals by studies sponsored by the Department of Health and Human Services' National Toxicology Program (NTP). The petitioners also cite conclusions of the International Agency for Research on Cancer (IARC) and the California Environmental Protection Agency's Office of Environmental Health Hazard Assessment (OEHHA), and assert that information that became available after these food additives were listed in § 172.515 demonstrates that “they are not safe for use in food pursuant to the Delaney Clause”; however, we note that the conclusions from IARC and OEHHA are based primarily on results from the NTP studies. Thus, our review of whether the synthetic flavoring substances that are the subject of the petition induce cancer in humans or animals focused on results of the NTP studies, as well as other available relevant information discussed in this rule.

    As part of our scientific review, we also evaluated the genotoxicity of the synthetic flavoring substances. Based on their biological activities, chemical carcinogens can be classified as genotoxic (directly DNA reactive) and non-genotoxic (not directly DNA reactive but operating through a secondary mechanism) (Ref. 1). In cancer risk assessments, the traditional assumption for chemicals that are genotoxic is that there is no threshold exposure level below which there is no risk of cancer and that there is a risk of cancer at any level of exposure. In contrast, non-genotoxic carcinogens are assumed to have a threshold of exposure level below which tumor development is not anticipated and the risk of cancer is negligible (Ref. 2).

    Additionally, as part of our review, we calculated Margins of Exposure (MOE) for each of the six synthetic flavoring substances. The MOE is the ratio between a point of departure (e.g., no-observed-adverse-effect-dose or benchmark dose) and estimates of human dietary exposure. As a risk characterization tool, the MOE can be used to provide information on the level of public health concern. The MOE is invaluable in risk management for chemicals present in food, when a health-based guidance level is impossible to derive, such as with genotoxic and carcinogenic contaminants and veterinary drug residues (Refs. 2 and 3). If the MOE is very large (such as greater than 10,000), it can be an indication of a low level of human health risk (Ref. 3).

    We also estimated dietary exposure for the six synthetic flavoring substances using information from the 2015 Poundage and Technical Effects Survey that the Flavor and Extract Manufacturers Association (FEMA) collected from its member companies that formulate flavoring substances (Ref. 4). (The acronym FEMA, as used throughout this rule, refers to the Flavor and Extract Manufacturers Association. It should not be confused with the Federal Emergency Management Agency that commonly is referred to by this same acronym.) Every 5 years FEMA surveys its members to estimate the total volume of flavoring substances added to food, or “poundage data.” (The 2015 poundage data were the most recent available.) FEMA's members include flavor manufacturers, flavor users, flavor ingredient suppliers, and others with an interest in the U.S. flavor industry. According to FEMA, their flavor manufacturing members produce more than 95 percent of flavors consumed in the United States.

    To estimate dietary exposure to the synthetic flavoring substances, we used a “per-capita times ten” approach that conservatively assumes 10 percent of the population consumes 100 percent of the available flavoring substance. Because the FEMA poundage data include the total poundage for both synthetic and naturally-sourced flavoring substances, our estimates of dietary exposure assumed that all of the flavoring substances added annually to food are synthetic; thus, for most of these substances, actual exposure to these synthetic flavoring substances is less than our conservative exposure estimates (Refs. 5 and 6).

    As explained in more detail later in this section, although there were findings of carcinogenicity in animal studies, none of the data in our evaluations of the six synthetic flavoring substances supports a finding that they are human carcinogens when consumed at the levels of intended use. Additionally, with the exception of the data concerning methyl eugenol, the data from the animal studies demonstrated that the modes of action (MOA) of carcinogenicity are not acting through mechanisms of genotoxic alterations and are not relevant to humans.

    For methyl eugenol, the data showed evidence for a potential concern for carcinogenic risk to humans based on the findings that: (1) A metabolite of methyl eugenol was found to be genotoxic and able to covalently bind with DNA to form DNA adducts (a DNA adduct is a segment of DNA bound to a cancer causing chemical); (2) methyl eugenol-DNA adducts have been detected in human lung and liver tissues; and (3) there is a potential metabolic pathway by which methyl eugenol could metabolize to a reactive metabolite, under specific reaction conditions that then may proceed to tumor formation and carcinogenesis. However, there are no available clinical or epidemiological data reporting tumor formation and carcinogenicity from methyl eugenol exposure in humans.

    Additionally, we concluded that the risk of carcinogenicity in humans from consumption of methyl eugenol added to food as a synthetic flavoring substance is further reduced by the following mitigating factors: (1) The metabolic pathway, in which methyl eugenol converts to a genotoxic metabolite subsequently leading to tumor formation, does not serve as the primary metabolic/detoxification pathway for methyl eugenol in humans and the amount of the genotoxic metabolite generated is dose-dependent, occurring at higher doses and (2) compared to the low levels of added synthetic methyl eugenol as a flavoring substance, the levels of methyl eugenol tested in the NTP animal studies were very high test doses that likely overwhelmed physiological conditions of normalcy and overloaded systemic repair systems.

    In assessing the potential human carcinogenicity of methyl eugenol associated specifically with the use of synthetic methyl eugenol as a flavoring substance, we also considered data indicating that exposure to methyl eugenol from foods that naturally contain methyl eugenol (e.g., basil and other spices/herbs) is significantly higher (approximately 488 times higher) than exposure expected from the addition of synthetic methyl eugenol as a flavoring substance, and that these foods have been ingested by humans for millennia without apparent harm (Ref. 7). Based on our review of published literature up to May 2018, there is no clinical or epidemiological evidence suggesting an association between the typical dietary consumption of food items that naturally contain methyl eugenol and carcinogenic effects.

    In sum, although the data do not indicate that these synthetic flavoring substances pose a public health risk as a human carcinogen, because these six synthetic flavoring substances have been found to induce cancer in animal studies, the Delaney Clause requires that FDA consider these synthetic flavoring substances to be unsafe as a matter of law, and FDA must revoke the listings providing for the use of these synthetic flavoring substances.

    Below is a summary of FDA's analysis of each of the six synthetic flavoring substances and adjuvants.

    A. Benzophenone 1. Exposure

    Under § 172.515, benzophenone is permitted for use as a synthetic flavoring substance and adjuvant in foods in accordance with current good manufacturing practices (CGMP). FEMA estimated an annual production volume of 5 kilograms (kg) for benzophenone used as a flavoring substance and adjuvant in food based on information from the 2015 FEMA Poundage and Technical Effects Survey (Ref. 4). FEMA also estimated that 133 kg of benzophenone are available for consumption annually in the United States from its natural presence in foods (Ref. 8). Thus, benzophenone is present from natural sources in the food supply (e.g., grapes) at a level 27 times greater than that from its use as a flavoring substance and adjuvant. Using the FEMA poundage data (assuming all reported poundage is for the synthetically-prepared flavoring substance) and a “per-capita times ten” approach, we estimated dietary exposure from benzophenone added to food as a synthetic flavoring and adjuvant to be 0.43 micrograms per person per day (µg/p/d), or 7.2 × 10-3 µg/kilogram body weight/d (µg/kg bw/d) for a 60 kg person (Refs. 6 and 9).

    Benzophenone also is permitted for use as a plasticizer in rubber articles intended for repeated use under § 177.2600. The upper-bound limit to the dietary exposure for benzophenone from this use is estimated to be 45 µg/p/d. This estimate assumes that 100 percent of an individual's diet is processed using rubber articles containing benzophenone as a plasticizer. While the exposure estimate for the use of benzophenone as a plasticizer in repeat use rubber articles is an overestimate of the actual exposure from this use, the estimated exposure is greater than that from the use of benzophenone as a flavoring substance by a factor of approximately 500. Thus, the combined exposure to benzophenone from its uses as a flavoring substance and as a plasticizer in food contact applications was estimated to be no more than 45 µg/p/d, or 0.75 µg/kg bw/d (Refs. 5 and 9).

    2. Toxicology Studies

    FDA reviewed data from 2 NTP-sponsored 105-week carcinogenic bioassays on benzophenone in F344/N rats and B6C3F1 mice. In these studies, the rats and mice were administered feed containing benzophenone at 0, 312, 625, or 1,250 parts per million per day (ppm/d) or milligrams per kilogram of feed/day (mg/kg/d). This dosing is equivalent to average daily doses of approximately 15, 30, and 60 mg benzophenone/kg bw to male rats and 15, 30, and 65 mg/kg bw to female rats; equivalent to average daily doses of approximately 40, 80, and 160 mg/kg bw to male mice and 35, 70, and 150 mg/kg bw to female mice (Ref. 9).

    The NTP reported several carcinogenicity findings from these studies. They noted that there was some evidence of carcinogenicity due to increased incidence of renal (kidney) tubular tumors in treated male rats and increased incidence of mononuclear cell leukemia (MNCL) in all treated female rats. The mean incidence of MNCL in the 625 ppm female dose group was significantly greater than that in the control female rats. The NTP also reported some evidence of carcinogenic activity in male mice based on increased incidence of hepatocellular (liver) neoplasms and some evidence of carcinogenicity in female mice based on increased incidence of histiocytic (originating from blood cells) sarcomas. Results showed that benzophenone produced tumors at the two highest doses in the studies. Occurrence of the key tumor types (i.e., those tumor types the NTP considered to constitute “some evidence” of carcinogenicity) in animals at the lowest dose was not significantly different from that of the control groups. The NTP classified the occurrence of the key tumor types as constituting some evidence of carcinogenic activity rather than being clear evidence of carcinogenic activity (NTP's highest level of evidence of carcinogenicity). Benzophenone also was tested in several genotoxicity assays and found to be non-genotoxic.

    Based on results from the NTP studies, FDA concluded that, under the conditions of the 2-year NTP bioassays, benzophenone induced renal tubular tumors in male rats and hepatocellular tumors in male mice (Ref. 9).

    3. Risk Characterization

    Based on the results of the NTP 2-year carcinogenicity studies we concluded that benzophenone induced cancer in animals under the test conditions of the studies. However, benzophenone is not genotoxic and unlikely to produce cancer through a direct DNA-reactive mechanism. Chronic progressive nephropathy (CPN, a spontaneous age-related disease that occurs commonly in rats) may be involved in benzophenone inducing renal tumors in rats; however, CPN as a MOA, a biologically plausible sequence of key events leading to an observed endpoint supported by robust experimental observations and mechanistic data (Ref. 10), for renal tumors in humans has not been established. Regarding the incidence of MNCL in female F344/N rats, we determined that it was not dose-dependent and that the incidence of this tumor in the control rats was outside the historical range. Therefore, we concluded that the occurrence of renal tumors in this study is not related to treatment with benzophenone. Additionally, MNCL is species- and strain-specific to the F344/N rat, and of little or no relevance to humans (Ref. 9).

    Regarding the results from the mouse study, several authors have observed that hepatocellular neoplasms seen in 2-year bioassays in B6C3F1 mice typically are secondary responses to chronic hepatic toxicity and regenerative cellular proliferation or hypertrophy as a function of dose (Ref. 9). Evidence of hepatotoxicity in short duration studies also has been shown to be a good predictor of hepatic neoplasia in chronic studies and the higher susceptibility of the male mouse (Ref. 9). Although there is no definitive MOA for the development of benzophenone-associated liver tumors in the NTP study, the B6C3F1 male mouse has been shown to have a high incidence of spontaneously-occurring hepatocellular tumors, which is elevated after chemical exposure. Introduction of high doses of benzophenone may produce hepatotoxicity that exacerbates this propensity toward tumor development and results in their increased occurrence by a non-genotoxic mechanism. Although rarely reported in NTP studies, histiocytic sarcomas observed in the B6C3F1 mice have been reported to occur at a mean incidence of 5.5 percent in female B6C3F1 mice used as controls in 2-year carcinogenicity studies conducted at Bayer AG, Institute of Toxicology. This result was based on historical data accumulated over a 10-year period (1986-1996) and is in line with the 6 percent occurrence observed in the high dose (1,250 ppm) group in the benzophenone NTP study. Other authors also reported similar findings in B6C3F1 mice, with incidences of 3.5 percent and 5.5 percent in control males and females, respectively. Histiocytic sarcomas are rarely reported in humans, accounting for less than 1 percent of all the neoplasms reported in the lymph nodes or soft tissues. The histiocytic sarcomas identified in the female mice in the NTP study were not dose related (i.e., 5/50 at 625 ppm and 3/50 at 1,250 ppm) and were found only at dose levels that induced overt toxicity (Ref. 9).

    The lowest test dose (312 ppm) in the NTP 2-year studies was a dose at which no statistically significant treatment-related increase in tumor incidence was reported in rats or mice. This finding suggests that there may be a threshold level below which benzophenone does not induce tumors in rodents. Additionally, there is a large margin of exposure (MOE; 2.1 × 106 for rats, 4.7 × 106 for male mice, and 5.6 × 106 for female mice) between the lowest test dose and the estimated dietary exposure of 0.43 µg benzophenone/p/day (equivalent to 7.2 × 10  3 µg/kg bw/day) from its use as a flavoring substance. When benzophenone is used as a plasticizer in repeat use rubber articles exposed to food, the MOE for male and female rats is calculated to be 2 × 104 and for male and female mice, 5.3 × 104 and 4.7 × 104, respectively. Although these MOE values are lower than those for benzophenone's use as a synthetic flavoring substance, they are still sufficient to ensure an acceptable margin of safety (Ref. 9). It should also be noted that these results are based on estimated worst-case dietary exposure of 45 µg/person/d (0.75 µg/kg bw/d) from its use as a plasticizer (Ref. 5) and actual MOEs for this use probably would be higher. Considering these findings in a weight-of-evidence analysis, we concluded that benzophenone is unlikely to induce tumors in humans at current use levels as a synthetic flavoring substance and adjuvant in food (Ref. 9).

    B. Ethyl Acrylate 1. Exposure

    Under § 172.515, ethyl acrylate is permitted for use as a synthetic flavoring substance and adjuvant in foods in accordance with CGMP. FEMA estimated an annual production volume of 18 kg for ethyl acrylate used as a flavoring substance and adjuvant in food based on information from the 2015 FEMA Poundage and Technical Effects Survey (Ref. 4). FEMA also estimated that 9.2 kg of ethyl acrylate are available for consumption annually in the United States from its natural presence in foods (e.g., pineapple) (Ref. 8). Thus, ethyl acrylate is present in foods from natural sources at 50 percent of the level from its use as a flavoring substance. Using the FEMA poundage data (assuming all reported poundage is for the synthetically-prepared flavoring substance) and a “per-capita times ten” approach, we estimated dietary exposure from ethyl acrylate's use as a synthetic flavoring substance and adjuvant in food to be 1.5 µg/person/d, or 0.025 µg/kg bw/d for a 60 kg person (Refs. 6 and 11).

    2. Toxicology Studies

    FDA reviewed data from 2 NTP-sponsored 103-week carcinogenic bioassays on ethyl acrylate in F344/N rats and B6C3F1 mice. In these studies, rats and mice were administered ethyl acrylate at 0, 100, or 200 mg/kg bw by gavage 5 days per week. The NTP reported carcinogenicity findings were confined to the forestomach of rats and mice. They also reported that the occurrence of these forestomach tumors had a statistically positive trend compared to the control animals. Ethyl acrylate also was tested in several genotoxicity studies. Based on the available data from these studies, we concluded that ethyl acrylate is not genotoxic (Ref. 11).

    We also concluded that under the test conditions of NTP's 2-year hazard assessment studies ethyl acrylate is a rodent carcinogen. Evidence, however, supports the findings that these tumors were produced by a non-genotoxic mechanism (Ref. 11).

    3. Risk Characterization

    The tumors observed in the NTP study were initiated by administering bolus doses of ethyl acrylate by gavage onto the forestomach of the treated rats and mice, which resulted in irritation, inflammation, and hyperplasia of the forestomach mucosa. Repeated dosing over a 2-year period exacerbated this irritation and resulted in the development of papillomas and carcinomas, which were confined to the forestomach. No other treatment-related tumors were observed in the animals. Forestomach tumors were observed at both doses tested (100 mg/kg bw and 200 mg/kg bw) in both male and female mice and rats. Humans do not have a forestomach and a human counterpart for the forestomach does not exist. The function of the rodent forestomach is to store and concentrate feed; therefore, high concentrations of ethyl acrylate were present in the forestomach over the duration of the 2-year study. This concentration effect precluded our determining a no-significant-effect-level for the occurrence of the forestomach tumors. Therefore, we cannot make an MOE comparison between a no-effect-dose level for significant incidences of tumors and the estimated dietary exposure of ethyl acrylate as a synthetic flavoring substance and adjuvant in food (1.5 μg ethyl acrylate/p/d, or 0.025 µg/kg bw/d) (Ref. 11).

    The 2-year NTP studies were conducted at doses higher than the expected exposures for flavoring substances. In general, flavoring substances have significantly lower dietary exposures than the doses used in 2-year carcinogenicity studies. For example, the lowest dose of ethyl acrylate tested in the NTP studies was 100 mg/kg bw, or approximately 1.8 × 10 6 times greater than the estimated dietary exposure from its use as a synthetic flavoring substance and adjuvant in food (Ref. 11).

    Importantly, the NTP Board of Scientific Counselors Report on Carcinogens (RoC) Subcommittee concluded, based on the totality of the evidence, that ethyl acrylate should not be considered a human carcinogen (Ref. 12). We concur with the RoC and concluded that ethyl acrylate is a non-genotoxic rodent carcinogen with a carcinogenic effect limited to the rodent forestomach (a rodent-specific organ) due to chronic irritation. This MOA is not relevant to humans and, at the current intake level, there is no concern of carcinogenicity from the intake of ethyl acrylate intentionally added to food as a flavoring substance and adjuvant (Ref. 11).

    C. Eugenyl Methyl Ether (Methyl Eugenol) 1. Exposure

    Under § 172.515, methyl eugenol is permitted for use as a synthetic flavoring substance and adjuvant in foods in accordance with CGMP. FEMA estimated an annual production volume of 86 kg for methyl eugenol used as a flavoring substance and adjuvant in food based on information from the 2015 FEMA Poundage and Technical Effects Survey (Ref. 4). FEMA also estimated that 447,450 kg of methyl eugenol are available for consumption annually in the United States from its natural presence in foods (e.g., basil) (Ref. 8). The 69th Joint Food and Agriculture Organization/World Health Organization (WHO) Expert Committee on Food Additives (JECFA) estimated an upper bound annual volume for methyl eugenol of 41,992 kg from its natural presence in herbs and spices. The most significant difference between the two estimates is that FEMA presumed a maximum content of methyl eugenol in basil of 4.1 percent, whereas JECFA presumed a maximum content of 0.118 percent (Refs. 5 and 8). Natural sources of basil have varying levels of methyl eugenol. It is unlikely, however, that most basil used in the United States would consistently have levels as high as 4.1 percent and, as such, JECFA's estimate of the amount of methyl eugenol from natural sources is suitably conservative and representative of probable consumption. Using the JECFA estimate, methyl eugenol is estimated to be present in the food supply from natural sources at a level 488 times greater than that from its use as a synthetic flavoring substance or adjuvant in food. Using the FEMA poundage data (assuming all reported poundage is for the synthetically prepared flavor) and a “per-capita times ten” approach, we estimated dietary exposure from methyl eugenol's use as a synthetic flavoring substance and adjuvant in food to be 7.4 µg/person/d, or 0.12 µg/kg bw/d for a 60 kg person (Refs. 6 and 13).

    2. Toxicology Studies

    FDA reviewed data from 2 NTP-sponsored 2-year carcinogenicity bioassays on methyl eugenol in F344/N rats and B6C3F1 mice. In these studies, methyl eugenol was administered to the animals at 0, 37, 75, or 150 mg/kg bw by gavage, 5 days per week, for 105 weeks. These test doses are 220,000 to 890,000 times higher than the estimated human dietary exposure from its use as a flavoring substance.

    The NTP reported significantly increased incidence of liver tumors (combined adenomas or carcinomas), compared to the concurrent control groups, occurring in a dose-dependent manner across the treatment groups in both genders of rats and mice. Although the mortality in some treated groups was higher than 50 percent, tumors were the main cause of death in these groups. Further, most deaths occurred late in the studies. Another type of tumor, glandular stomach neuroendocrine neoplasms, were found in both genders of rats, but in only two male mice. The NTP, JECFA, and FDA do not consider these glandular stomach neuroendocrine neoplasms relevant to tumor formation in humans due to considerations of the mechanism of development of these neoplasms. Based on the overall data, we concluded that methyl eugenol, under the test conditions of the NTP 2-year carcinogenicity bioassays, induced cancer in rodents (Ref. 13).

    Regarding the genotoxicity potential of methyl eugenol, results from several genotoxicity assays were negative; however, in testing systems that provided adequate metabolic activation, specifically 1′-hydroxylation and sulfonation, or those systems directly testing the 1′-hydroxyl metabolite of methyl eugenol, positive genotoxic effects were observed.

    There is evidence showing that methyl eugenol treatment leads to the formation of covalent DNA adducts in vitro and in vivo. In cancer risk assessment, the formation of DNA adducts is a biomarker of exposure and suggestive of potential cancer risk. However, the observation of adducts itself should not be used to predict cancer. The relevance of DNA adducts for cancer assessment should be investigated in the context of other information, such as the quantity and persistency of the adducts. The level of methyl eugenol-specific adducts was shown to be dose-dependent in experimental animals. Therefore, since human dietary consumption of methyl eugenol from use as a synthetic flavoring substance in food is much lower than the dose received by the animals in the NTP studies, much lower levels of DNA adducts would be formed in humans compared to that in the test animals. Additionally, there is evidence that the formation of these adducts requires specific metabolic activation of methyl eugenol (i.e., hydroxylation followed by sulfonation, leading to the formation of 1′-sulfooexymethyleugenol, the ultimate metabolite that binds to DNA). Based on the physiology-based pharmacokinetic model of methyl eugenol, this pathway is not a major metabolic pathway in humans. Even after hydroxylation occurs, the hydroxylated intermediates can be eliminated by glucuronization and oxidation, so that only a trace amount of ingested methyl eugenol is metabolized to 1′-sulfooexymethyleugenol. In regard to the persistence of the adducts, there is evidence showing that in rats given methyl eugenol, the levels of methyl eugenol-specific adducts reduced after the treatment was stopped, suggesting that these adducts are repairable with considerable low persistency (Ref. 13).

    There are only few studies measuring methyl eugenol-specific DNA adducts in humans. The adducts have been detected in 150 of 151 human liver biopsy samples and 10 of 10 tested human lung biopsy samples, indicating that the bioactive metabolites form in these subjects with typical dietary exposure, and are capable of binding with human DNA. However, these human data have limitations. We note that all but one the human tissue donors in these studies were patients with cancer or chronic liver diseases, who may have DNA-repair deficiencies, compromised detoxification pathways, or weakened control mechanisms that prevent the promotion of carcinogenesis from DNA adducts, whereas such control mechanisms would be expected to be operable in healthy humans. Therefore, it is difficult to extrapolate DNA-adduct results found in these unhealthy subpopulations to the general healthy population (Ref. 13).

    3. Risk Characterization

    In our evaluation of the carcinogenic potential of methyl eugenol in humans using a weight-of-evidence approach, we concluded that a genotoxic MOA is likely involved in the carcinogenicity observed in the NTP animal studies. This MOA involves formation of a bioactivated metabolite that forms DNA-adducts that leads to subsequent cancer initiation and development. Current scientific data on methyl eugenol suggest that bioactivation to the DNA-reactive metabolite, DNA adduct formation, and subsequent tumor formations are dose-dependent. Although methyl eugenol-specific DNA adducts have been identified in hospitalized subpopulations, there are no clinical or epidemiological data that provide concrete evidence that methyl eugenol is a human carcinogen. In the general healthy population, DNA-repair mechanisms and damage-response pathways may effectively prevent cancer development from an initiation event such as a DNA adduct. Therefore, the extremely low level of DNA adducts formed in humans from dietary exposure to methyl eugenol as an added food flavoring substance likely is below a threshold level necessary for subsequent cancer development. However, the current science is inadequate to quantitate the carcinogenic potential risk (if any) of methyl eugenol in humans (Ref. 13).

    Carcinogenicity data on methyl eugenol also demonstrated that non-genotoxic MOAs for the observed tumors in animals, especially in mice, may be operating in conjunction with the genotoxic MOA. However, data for the non-genotoxic MOA are insufficient (Ref. 13).

    The MOE for synthetic methyl eugenol as a flavoring substance and adjuvant in food is very large. Two dose-response assessments have been conducted to derive a point of departure for the liver carcinogenicity of methyl eugenol; both derived a lower bound benchmark dose (BMDL10) based on data from the NTP bioassays. Using the more conservative BMDL10 (7.7 mg/kg/d), and the estimated dietary exposure of methyl eugenol as a flavoring substance (0.12 µg/kg bw), the MOE is approximately 6.4 × 10 4. This MOE is based on an estimated dietary exposure that assumed 100 percent of the reported poundage data are exclusively synthetic methyl eugenol. Thus, the actual MOE for synthetically prepared methyl eugenol added to foods likely is larger. Although the carcinogenic potential cannot be definitively ruled out, this large MOE translates into a very small risk for carcinogenicity in humans and a low public health concern (Ref. 13).

    As for methyl eugenol from natural sources, other components in such sources may modulate bioactivation and/or detoxification, so the toxicity data related to the use as a synthetic flavoring substance may not be relevant to its presence from natural sources. For example, a flavonoid derived from basil extracts, nevadensin, was found to be a sulfotransferase inhibitor, and it significantly reduced methyl eugenol-induced DNA adduct formation in F344/N rats (Ref. 13).

    In conclusion, although there is evidence of genotoxicity for a bioactive metabolite of methyl eugenol, we concluded based on currently available scientific evidence that, despite the potential carcinogenic concern and lack of definitive quantitative cancer risk measurement, such risk in humans is mitigated by factors such as low exposure from its use as a flavoring substance, pharmacokinetics/metabolism, DNA-repair mechanisms, and the lack of clinical and epidemiological evidence of the carcinogenic effect in humans from oral exposure to methyl eugenol. Therefore, it is unlikely that consumption of methyl eugenol presents a risk to public health from use as a flavoring substance.

    D. Myrcene 1. Exposure

    Under § 172.515, myrcene is permitted for use as a synthetic flavoring substance and adjuvant in foods in accordance with CGMP. FEMA estimated an annual production volume of 860 kg for myrcene used as a flavoring substance and adjuvant in food based on information from the 2015 FEMA Poundage and Technical Effects Survey (Ref. 4). FEMA also estimated that 14,177,215 kg of myrcene are available for consumption annually in the United States from its natural presence in foods (e.g., citrus juices) (Ref. 8). Thus, myrcene is present naturally in foods at a level 16,500 times greater than that from use as a flavoring substance and adjuvant. We estimated dietary exposure to myrcene as a synthetic flavoring substance using the FEMA poundage data (assuming all reported poundage is for the synthetically prepared flavoring substance) and a “per-capita times ten” approach to be 74 µg/person/d, or 1.23 µg/kg bw/d for a 60 kg person (Refs. 6 and 14).

    2. Toxicology Studies

    FDA reviewed data from 2 NTP-sponsored carcinogenicity bioassays on myrcene (β-myrcene) in F344/N rats and B6C3F1 mice. In the rat study, male and female rats were administered 0, 0.25, 0.50 or 1.0 g myrcene/kg bw by gavage, 5 days per week for up to 105 weeks. Results from the study showed increased incidence of renal tubule tumors in both sexes. All high dose (1 g/kg bw) male rats died prior to the end of the study due to renal toxicity. Incidence of nephrosis were significantly increased in all dosed male and female rats when compared to controls. Incidence of CPN were significantly increased in all myrcene-treated female rats but not male rats. There also was significantly increased incidence of nephrosis in all myrcene-treated male and female rats compared to controls. However, incidence of mineralization of renal papilla also was significantly increased in all dosed male rats but not in female rats. Based on increased incidence of renal tubule neoplasms, NTP concluded that there was clear evidence of carcinogenic activity of myrcene in male F344/N rats and equivocal evidence of carcinogenic activity of myrcene in female rats (Ref. 14).

    In the NTP mouse study, male and female mice were administered 0, 0.25, 0.50 or 1.0 g myrcene/kg bw by gavage, 5 days per week for up to 104 (females) and 105 weeks (males). Based on increased incidence of liver neoplasms, NTP concluded that there was clear evidence of carcinogenic activity of myrcene in male mice and equivocal evidence of carcinogenic activity of myrcene in female mice (Ref. 14).

    Myrcene also was tested in several in vivo and in vitro genotoxicity assays sponsored by the NTP. The NTP concluded that myrcene was not genotoxic based on the negative Ames assays (Salmonella typhimurium (S. typhimurium) and Escherichia coli (E. coli)) and in vivo micronucleus assays in male and female B6C3F1 mice (Ref. 14).

    Based on our evaluation of the data in the NTP 2-year myrcene studies, we concluded that, under the test conditions of the studies, myrcene induced renal tubular tumors in F344/N rats and hepatocellular tumors in B6C3F1 mice. We also concluded that myrcene is non-genotoxic (Ref. 14).

    3. Risk Characterization

    Our review of relevant scientific data and information suggests that myrcene may be operating through multiple MOAs to induce kidney and liver tumors in rodents. While, a definitive MOA for the induction of tumors by myrcene in rodents has not been established, because myrcene is not genotoxic, the induction of rodent tumors likely is occurring through an indirect non-DNA mediated MOA. One potential MOA in male and female rats is an unusual nephrosis. Another potential MOA, α2u-globulin (a low molecular-weight protein synthesized in the male rat liver) hyaline nephropathy, and renal tubular hyperplasia may collectively contribute to the development of renal tubule neoplasia in male rats following myrcene treatment (the α-2u-globulin nephropathy occurs only in male rats and is not operative in humans) (Ref. 14).

    The B6C3F1 mouse strain used in the NTP-sponsored study with myrcene is known to have a high spontaneous background incidence of liver neoplasms and is a sensitive strain for the induction of liver tumors. The observed hepatocellular tumors in myrcene-dosed mice exceeded concurrent and historical controls. The MOA for the induction of hepatocellular tumors in myrcene dosed mice is not well understood. We are not aware of any robust mechanistic studies conducted to determine the MOA(s) responsible for the induction of hepatocellular neoplasia reported in myrcene-treated mice (Ref. 14).

    In the NTP 2-year rat study, increased incidence of renal tubular tumors was observed in all doses of myrcene treated male rats. Because a no significant effect dose level was not observed in this study, we derived a BMDL10 of 64,000 µg/kg bw/d based on the most sensitive endpoint, the combined renal tubular adenomas and carcinomas in male rats. Based on this BMDL10 and the estimated dietary exposure to myrcene, we calculated an MOE of 5.2 × 10 4 (Ref. 14).

    Using a weight-of-evidence analysis, we concluded that myrcene is unlikely to induce tumors in humans at its current exposure level when used as a synthetic flavoring substance and adjuvant in food based on the following: (1) Myrcene is non-genotoxic; (2) the MOA for kidney tubule tumors likely involves multiple MOAs that may include renal toxicity (nephrosis), α2u-globulin nephropathy (a mechanism not operative in humans), and hyperplasia in male rats. In female rats, nephrosis and hyperplasia are likely MOAs; (3) B6C3F1 mice are prone to spontaneous hepatocellular adenomas, carcinomas, and hepatoblastomas with high background tumor incidence, and (4) a MOE of 5.2 ×10 4 indicates a low risk concern from a public health point of view (Ref. 14).

    E. Pulegone 1. Exposure

    Under § 172.515, pulegone is permitted for use as a synthetic flavoring substance and adjuvant in foods in accordance with CGMP. FEMA estimated an annual production volume of 6 kg for pulegone used as a flavoring substance and adjuvant in food based on information from the 2015 FEMA Poundage and Technical Effects Survey (Ref. 4). FEMA estimated that 866 kg of pulegone are available for consumption annually in the U.S. from its natural presence in foods (e.g., mint) (Ref. 8). Thus, pulegone is present from natural sources in the food supply at a level 144 times greater than that from use as a flavoring substance and adjuvant. Using FEMA poundage data (assuming all reported poundage is for the synthetically prepared flavor) and a “per-capita times ten” approach, we estimated dietary exposure from pulegone's use as a synthetic flavoring substance and adjuvant in food to be 0.5 µg/person/d, equivalent to 0.008 µg/kg bw/d for a 60 kg person (Refs. 6 and 15).

    2. Toxicology studies

    FDA reviewed data from 2 NTP-sponsored 2-year carcinogenicity bioassays on pulegone in F344/N rats and B6C3F1 mice. In the rat study, pulegone was administered by gavage at 0, 18.75, 37.5, or 75 mg pulegone/kg bw to male rats and 0, 37.5, 75, or 150 mg pulegone/kg bw to female rats 5 days a week for up to 104 weeks. The NTP reported that, in female rats, the primary tumors observed were urinary bladder papillomas and carcinomas. In male rats, no urinary bladder neoplasms were reported. Only transitional epithelial hyperplasia was observed in the pulegone-treated male rats at the lowest dose tested; no epithelial hyperplasia was observed in male rats at the mid or high doses. Pulegone administration also was associated with the occurrence of non-neoplastic lesions in the liver and nose of male and female rats, and in the forestomach of male rats. The NTP concluded that under the conditions of the experiment, there was no evidence of carcinogenic activity of pulegone in male F344/N rats and clear evidence of carcinogenic activity of pulegone in female F344/N rats based on increased incidence of urinary bladder neoplasms.

    In the mouse study, pulegone was administered by gavage at 0, 37.5, 75 or 150 mg/kg bw 5 days a week for 105 weeks. The NTP reported that the primary tumors observed in the study were liver neoplasms in male and female mice. The NTP concluded that under the conditions of the experiment, there was clear evidence of carcinogenic activity of pulegone in male and female B6C3F1 mice.

    Pulegone also was tested in several in vitro and in vivo genotoxicity assays. Overall, results were mostly negative. However, NTP concluded that pulegone is genotoxic based on a single positive result in the Ames Assay in S. typhimurium strain TA 98 and E. coli strain WP2 uvrA/PKM101 in the presence of metabolic activation.

    Based on the findings of statistically significant increased incidence of urinary bladder papilloma and carcinoma in female F344/N rats and liver neoplasms in B6C3F1 male and female mice in the 2-year NTP bioassays, we concluded that under the conditions of the 2 NTP studies, pulegone is a rodent carcinogen. Based on the totality of evidence from available genotoxicity studies, we also concluded that pulegone is likely non-genotoxic (Ref. 15).

    3. Risk Characterization

    According to NTP, the dose-related increase in the incidence of urinary bladder neoplasms in female rats was most likely related to the genotoxic activity of pulegone. However, we concluded that pulegone likely is non-genotoxic based on negative results in the majority of genotoxicity studies, along with a lack of available evidence reporting that DNA adducts related to pulegone treatments are formed. This suggests that the urinary bladder neoplasms observed in female F344/N rats treated with pulegone were caused by a non-genotoxic MOA.

    Urinary bladder carcinogenesis likely is occurring in the rat through cytotoxicity as a result of chronic exposure to high concentrations of pulegone and its metabolites, followed by regenerative urothelial cell (a cell type that lines much of the urinary tract) proliferation, that further led to urothelial tumors (Ref. 15). Da Rocha et al. (2012) (Ref. 16) concluded that the carcinogenic MOA for urinary bladder tumors was not relevant to humans, based on the assertion that humans would never be exposed to pulegone long enough to develop hyperplasia because pulegone is highly volatile, noxious, and a nasal irritant, and that genotoxicity of pulegone has not been demonstrated.

    The metabolic fate of pulegone has been studied extensively in rodents and is well understood. Pulegone is metabolized by multiple pathways in the rodent. One important intoxication (bioactivation) pathway involves the formation of menthofuran, the proximate toxic metabolite of pulegone, which is further oxidized in the liver to yield γ-ketoenal, 8-pulegone aldehyde. γ-ketoenal, 8-pulegone aldehyde is the ultimate toxic metabolite of pulegone in rodents. In general, at dose levels at or below 80 mg/kg bw, cellular concentrations of pulegone and its metabolites are effectively detoxified by conjugation with glutathione and glucuronic acid in rodents (Ref. 15).

    In a human metabolism study in which pulegone was administered orally at doses of 0.5 to 1 mg/kg bw, 10-hydroxypulegone, not menthofuran, was the major metabolite. In this study, 10-hydroxypulegone was conjugated with glucuronic acid or sulfuric acid and detoxified. Based on the limited, available human metabolism data, the toxic metabolite of pulegone, menthofuran, is not formed at toxicologically significant levels in humans at the dietary exposure levels expected from the use of pulegone as a flavoring substance (Ref. 15).

    Protein adduct formation and glutathione depletion have been postulated as potential MOAs of pulegone via menthofuran formation, which could cause cytotoxicity and chronic cell proliferation, and ultimately lead to liver neoplasms. In vivo and in vitro studies showed an association between hepatocellular damage caused by menthofuran and its metabolic activation to γ-ketoenal, 8-pulegone aldehyde and covalent binding to target organ proteins. Further, p-cresol, another pulegone metabolite produced in rodents given high doses of pulegone, depletes glutathione levels. This may lead to chronic regenerative cell proliferation, which may be related to the liver carcinogenicity observed in experimental B6C3F1 mice (Ref. 15)

    Considering genotoxicity data, metabolism, MOA, and the sensitivity of the B6C3F1 strain to develop hepatocellular tumors, the mouse liver tumors likely are not relevant to humans at the current use level of pulegone as a synthetic flavoring substance and adjuvant in food (Ref. 15).

    An MOE was calculated using the no-significant effect level at which no treatment-related tumors were reported in the 2-year NTP mouse study of pulegone in male rats (i.e., no significant effect level (18.75 mg/kg bw, equivalent to 13.39 m g/kg bw/day)). This dose was selected because in female rats, combined incidence of urinary bladder papilloma or carcinoma (a rare tumor) was significantly increased at the high dose (150 mg/kg bw), exceeding historical control ranges for 2-year corn oil gavage studies and concurrent controls. In male mice, the incidence of hepatocellular adenomas in the 37.5 mg/kg bw dose group exceeded that in the concurrent and historical control ranges for 2-year corn oil gavage studies. In addition, in female mice, the incidence of hepatocellular adenomas in the 37.5 mg/kg bw dose group exceeded that in the concurrent and historical control ranges for 2-year corn oil gavage studies. Although not statistically significant, these occurrences may be biologically relevant, given that they exceeded those of the historical and concurrent controls, and there were statistically significant increases in some proliferative non-neoplastic lesions in the liver of male mice at this dose. The MOE based on the estimated dietary exposure of 0.5 µg/p/d (equivalent to 0.008 µg/kg bw/d) for pulegone as a flavoring substance in humans is 1.7 × 10 6, which indicates a very low potential carcinogenic risk for humans (Ref. 15).

    Using a weight-of-evidence analysis considering that: (1) Pulegone is non-genotoxic; (2) pulegone has a potential cytotoxicity MOA; (3) available data suggest a dose-dependent, metabolic activation of pulegone in humans and rodents, an indication of a threshold effect; (4) there is a no-significant effect level below which no tumors were formed in the 2 NTP year studies; (5) dietary exposure from use as a synthetic flavoring substance added to food is low with a MOE of 1.7 × 10 6, we concluded that pulegone at its current use level as a synthetic flavoring substance and adjuvant in food, is unlikely to induce urinary bladder cancer and liver neoplasms in humans and does not pose a public health concern (Ref. 15).

    F. Pyridine 1. Exposure

    Under § 172.515, pyridine is permitted for use as a synthetic flavoring substance and adjuvant in foods in accordance with CGMP. FEMA estimated an annual production volume of 27 kg for pyridine used as a flavoring substance and adjuvant in food based on information from the 2015 FEMA Poundage and Technical Effects Survey (Ref. 4). FEMA also estimated that 73,861 kg of pyridine are available for consumption annually in the U.S. from its natural presence in foods (e.g., coffee) (Ref. 8). Thus, pyridine is present from natural sources in the food supply at a level 2,736 times greater than that from use as a flavoring substance. Using the FEMA poundage data (assuming all reported poundage is for the synthetically prepared flavoring substance) and a “per-capita times ten” approach, we estimated dietary exposure from pyridine's use as a synthetic flavoring substance and adjuvant in food to be 2.3 µg/person/day, or 0.038 µg/kg bw/d for a 60 kg person (Refs. 6 and 17).

    2. Toxicology studies

    FDA reviewed data from 3 NTP-sponsored 2-year carcinogenicity bioassays on pyridine in F344/N rats, Wistar rats, and B6C3F1 mice. In the F344/N rat study, pyridine was administered in drinking water at 0, 100, 200, or 400 ppm (mg pyridine/kg drinking water) for 104 (males) and 105 (females) weeks. These dose levels were equivalent to doses of 7, 14, or 33 mg pyridine/kg bw/d, respectively. The NTP reported a statistically significant increased incidence of renal tubule adenomas and renal tubule hyperplasia only in the high dose F344/N male rats. In addition, NTP reported significantly elevated incidences of MNCL in F344/N female rats at the 200 ppm and 400 ppm dose levels. MNCL is a commonly occurring spontaneous neoplasm in untreated, older F344/N rats. One study found that MNCL occurs in untreated, aged F344/N rats at a high and variable rate; that MNCL as a lesion is uncommon in most other rat strains; and the background incidence of MNCL in F344/N rats has increased significantly over the years (Ref. 17).

    Recognizing the species specificity and high background levels of MNCL in F344/N rats, the NTP conducted a 2-year carcinogenicity study in male Wistar rats (a rat strain that does not have a high background of MNCL neoplasms). In this study, pyridine was administered in drinking water at 0, 100, 200, or 400 ppm for 104 weeks to male Wistar rats. These dose levels were equivalent to doses of 8, 17, or 36 mg pyridine/kg bw/d. The study showed no increased incidences of MNCL in any of the treatment groups. The NTP reported a statistically significant increased incidence of interstitial cell adenomas in the 400 ppm dose group. Observed increased incidence of interstitial cell adenomas of the testes in Wistar rats exposed to 400 ppm pyridine were marginally above the historical control range. A statistically significant increased incidence of kidney hyperplasia was observed at the 100 ppm dose group, along with increased incidence of kidney adenomas that were not statistically significant. There also was increased incidence of nephropathy in all pyridine-treated Wistar rats as well as in the controls (Ref. 17).

    The NTP concluded that under the conditions of the 2-year F344/N rat oral drinking water study there was some evidence of carcinogenic activity of pyridine in male F344/N rats based on increased incidence of renal tubule neoplasms and equivocal evidence of carcinogenic activity of pyridine in female F344/N rats based on increased incidence of MNCL. The NTP considered the increased incidence of interstitial cell adenomas of the testes in the Wistar rat study to be equivocal evidence for carcinogenicity.

    In the mouse study, pyridine was administered in drinking water to male B6C3F1 mice at concentrations of 0, 250, 500 or 1,000 ppm (doses equivalent to 35, 65, or 110 mg pyridine/kg bw/d, respectively) for 104 weeks. Groups of female B6C3F1 mice were administered pyridine at doses of 0, 125, 250 or 500 ppm (doses equivalent to 15, 35, or 70 mg pyridine/kg bw/d, respectively) in drinking water for 105 weeks. The NTP reported statistically significant increased incidence of hepatocellular carcinomas at all dose levels in the male and female mice and concluded that there was clear evidence of carcinogenic activity of pyridine in male and female B6C3F1 mice.

    Pyridine also was tested in several in vitro and in vivo genotoxicity assays. The NTP concluded that pyridine was non-genotoxic. Based on evidence from available studies, we also concluded that pyridine is non-genotoxic (Ref. 17).

    Under the test conditions of the 2-year NTP studies, we concluded that pyridine is a rodent carcinogen based on the observed pyridine-induced renal tumors in male F344/N rats and pyridine-induced liver tumors in B6C3F1 mice (Ref. 17).

    3. Risk Characterization

    Our review of relevant scientific data and information suggests that pyridine may be operating through multiple MOAs in its capability to induce kidney and liver tumors in rodents. A definitive MOA for the induction of tumors in rodents has not been established. However, because pyridine is not genotoxic, the induction of rodent tumors likely is occurring through an indirect non-DNA mediated MOA.

    While NTP discounted the kidney neoplasms observed in the F344/N rats as being associated with an α2µ-globulin MOA, we concluded that pyridine may be a weak inducer of α2µ-globulin in F344/N male rats, based on the observation of statistically significant increased incidence in granular casts and hyaline degeneration in the 1000 ppm pyridine-treated rats along with higher staining intensity for α2µ-globulin in the kidney tissues from F344/N male rats exposed to 1000 ppm pyridine (Ref. 17).

    Using a weight-of-evidence analysis, we concluded that pyridine is unlikely to induce tumors in humans at its current exposure level as a synthetic flavoring substance and adjuvant in foods based on the following: (1) Pyridine is non-genotoxic; (2) renal tubule neoplasms likely involve multiple MOAs that may include α2µ-globulin nephropathy and CPN, which are not relevant to humans. These postulated mechanisms, specifically α2µ-globulin nephropathy, are species- and sex-specific; (3) B6C3F1 mice are prone to spontaneous hepatocellular adenomas, carcinomas, and hepatoblastomas with high background incidence; and (4) active metabolites of pyridine differ across species and appear to be dose-dependent.

    Further, there is a large MOE (3.7 × 105) between the estimated dietary exposure of pyridine as a synthetic flavoring substance intentionally added to food (0.038 µg/kg bw/d) compared to the highest dose of pyridine at which no treatment-related, statistically significant tumors were observed in the NTP studies (14,000 µg/kg bw/d (rats)) (Ref. 17). This large MOE further supports our conclusion that pyridine, when used as a flavoring substance, is unlikely to induce cancer in humans.

    IV. Comments on the Notice of Petition

    FDA received a number of comments in response to the notice of the petition. Most comments expressed general support for revocation of the regulations for the seven synthetic flavoring substances, without providing any additional information. Several comments expressed concern about the safety of these synthetic flavoring substances and asked that FDA ban them from foods; however, these comments did not provide any information to support their claim that the use of these additives is unsafe.

    We summarize and respond to relevant portions of comments in this final rule. To make it easier to identify comments and FDA's responses to the comments, the word “Comment” will appear in parentheses before the description of the comment, and the word, “Response” will appear in parentheses before FDA's response. We have also numbered each comment to make it easier to identify a particular comment. The number assigned to each comment is for organizational purposes only and does not signify the comment's value, importance, or the order in which it was submitted.

    A. Legal and Policy Issues

    (Comment 1) One comment stated that these synthetic flavoring substances should not be revoked based on the Delaney Clause because “. . . the Delaney Clause does not mandate that FDA flatly prohibit the use of the substance under any circumstances.” The comment goes on to say that “[t]he determination that a substance triggers the Delaney Clause is not the same as a determination that the substance is necessarily unsafe in food and that “. . . an outright ban of any of the flavorings identified by the petitioner would require FDA to explain—in a rulemaking procedure—why the substance not only triggers the Delaney Clause but also why there are no circumstances under which the substance could otherwise be considered safe for food use under specified conditions of use.” Several comments stated that FDA should interpret the Delaney Clause in a manner similar to the approach used by FDA in its Constituents Policy (i.e., FDA may determine that a food or color additive is “safe” if it contains a carcinogenic constituent but is not itself carcinogenic, see 47 FR 14464, April 2, 1982) for carcinogenic contaminants present in certain food additives.

    (Response 1) We disagree. The language of the Delaney Clause is straightforward. For most food additives, FDA has discretion to review a number of factors to determine whether a food additive is safe (section 409(c)(5) of the FD&C Act). However, for food additives that are shown “to induce cancer in man or animal,” the Delaney Clause limits FDA's discretion and requires that FDA conclude that the food additive is not safe. Furthermore, as described above, courts have rejected the interpretations of the Delaney Clause suggested in the comments and have concluded that the Delaney Clause completely bans additives found to induce cancer in humans or animals. Thus, as a matter of law, FDA cannot find these synthetic flavoring substances to be safe.

    (Comment 2) One comment said that the Delaney Clause applies only to food additives that induce cancer in test animals through a direct, genotoxic mechanism of carcinogenicity. The comment further stated that there are numerous examples of food ingredients that produce increased incidence of tumors in high dose rodent studies through a threshold secondary mechanism.

    (Response 2) We disagree. The Delaney Clause does not differentiate between non-genotoxic and genotoxic carcinogens. Nor does it permit FDA to find a food additive safe for human consumption if the food additive has induced cancer in animal. The Delaney Clause is a strict legal standard that precludes FDA from using its expertise to evaluate a substance under its intended condition of use and its risk to public health.

    (Comment 3) One comment stated that the petitioners call for a radical departure from long-established regulatory framework of FDA conducting its own comprehensive review of the scientific data that bear on the safety assessment. Further, the comment stated that the petitioners' approach is contrary to the statute and cannot be implemented without amendment of the law. The comment stated that if, contrary to the statute and long precedent, FDA believes it should delegate its authority to external organizations, it must consider such policy changes through notice-and-comment rulemaking. The comment also stated that while an FAP is the correct vehicle to appeal/amend a food additive regulation, it is not appropriate for FDA to consider, much less implement, “radical new interpretations” of the statute through a food additive petition.

    (Response 3) FDA disagrees with this comment. FDA's regulations permit petitioning the agency to revoke a food additive regulation. In response to such a petition, FDA conducts its own review of scientific data that bear on the petition. FDA then takes action based on its own evaluation of the data in accordance with the FD&C Act and its implementing regulations. The Delaney Clause is in the FD&C Act and this rulemaking is in accordance with the language of the law and case law interpreting it.

    B. Scientific Issues

    (Comment 4) One comment included a lengthy discussion of relevant carcinogenicity and genotoxicity studies for each of the additives that are the subject of the petition and argued that none of the synthetic flavoring substances are direct carcinogens. Instead, the comment contended that tumors observed in the NTP studies were the result of secondary mechanisms and not direct, genotoxic effects.

    (Response 4) Our review included an evaluation of all relevant carcinogenicity studies for each of the additives. The toxicology memoranda for each of the six synthetic flavoring substances and section III include a full discussion of the relevant studies and address each scientific point outlined in the comment.

    (Comment 5) Several comments believed that FDA should not base its safety decision solely on classifications by NTP or IARC and that any decision should be based on an independent FDA assessment. Another comment stated that FDA must consider new studies since the NTP and IARC reviews were completed.

    (Response 5) FDA agrees with the comments and has conducted its own evaluation of available relevant data to reach its conclusions on each synthetic flavoring substance, and did not solely rely on NTP and IARC classifications as the basis for our decision.

    (Comment 6) One comment noted that IARC is not subject to U.S. law and relying on its conclusions is inappropriate and legally vulnerable for FDA. Another comment noted that IARC warns that its monographs are not the basis for governmental action, pointing out that the preamble to IARC monographs is clear that they are a starting place for government agencies, not a basis for regulation.

    (Response 6) We agree that relying solely on IARC conclusions would not be appropriate in making a decision on the petition, and, as such, FDA has conducted its own comprehensive carcinogenicity evaluation of the flavoring substances using all available relevant information.

    (Comment 7) One comment stated that the international health and safety community has moved away from rote reliance on IARC and NTP. The comment further said that the NTP and IARC classifications do not make those substances carcinogens under the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard and that these reviews are not viewed as weight-of-evidence conclusions by international authorities; therefore, it would be incongruent for FDA to view them in this manner. The comment cited an action in 2012, where OSHA reversed three decades of automatically requiring employers to classify a substance as a carcinogen based on an NTP or IARC classification.

    (Response 7) FDA acknowledges that the NTP studies are designed for hazard identification and not for assessing the human carcinogenicity risk of chemicals under specific conditions of use; however, FDA must evaluate the results from the NTP studies and other available information within the context of the FD&C Act, including the Delaney Clause.

    (Comment 8) Some comments expressed concern that compliance and enforcement of a zero tolerance policy is not possible and that a zero tolerance policy is not feasible for naturally occurring substances.

    (Response 8) FDA has not addressed the request for FDA to establish zero tolerances for the food additives that are the subject of this petition because such a request is not the proper subject of a food additive petition, and because the petitioners have indicated that they are abandoning that claim.

    (Comment 9) Several comments expressed concern over the use of these substances in food packaging applications.

    (Response 9) Benzophenone is the only synthetic flavoring substance that is the subject of this petition that also is approved as a food additive for use in food packaging (§ 177.2600(c)(4)(iv) diphenylketone). As explained earlier, we are repealing the regulation for the use of this substance as a plasticizer in food packaging based on results of the NTP studies.

    (Comment 10) One comment said that the use of ethyl acrylate should not be revoked, because the studies used to assess carcinogenicity were not appropriate and noted that NTP has removed it from its list of human carcinogens.

    (Response 10) FDA acknowledges that NTP has removed ethyl acrylate from its list of human carcinogens; however, the flavoring substance induced cancer in animals under the conditions of the 2-year NTP carcinogenicity studies. As such, we are required under the Delaney Clause to deem the additive to be unsafe as a matter of law. (See Section III.B, Ethyl Acrylate.)

    (Comment 11) One comment submitted on behalf of several industry interests supported removal of styrene from § 172.515 based solely on abandonment and subsequently submitted a petition (FAP 6A4817 (81 FR 38984)) providing data to support their claim.

    (Response 11) FDA is responding to this comment as part of our response to FAP 6A4817, which is published elsewhere in this edition of the Federal Register.

    (Comment 12) One comment stated that the petitioner should follow the National Environmental Policy Act and submit an environmental assessment but did not provide any supporting data.

    (Response 12) FDA disagrees. As discussed in section VII, we have determined that the action we are taking on the petition does not have a significant effect on the human environment and neither an environmental assessment nor an environmental impact statement is required.

    V. Conclusion

    Upon review of the available information, we have determined that the information provided in the petition and other publicly available relevant data demonstrate that synthetic benzophenone, ethyl acrylate, methyl eugenol, myrcene, pulegone, and pyridine have been shown to cause cancer in animals. Despite FDA's scientific analysis and determination that these substances do not pose a risk to public health under the conditions of their intended use, under the Delaney Clause this finding of carcinogenicity renders the additives “unsafe” as a matter of law and FDA is compelled to amend the authorizations for these substances as food additives to no longer provide for the use of these synthetic flavoring substances. Additionally, because of evidence that benzophenone causes cancer in animals, FDA also is amending the food additive regulations to no longer provide for the use of benzophenone as a plasticizer in rubber articles intended for repeated use in contact with food. Therefore, we are amending parts 172 and 177 as set forth in this document. Upon the publication, these food additive uses are no longer authorized.

    FDA realizes that the food industry needs sufficient time to identify suitable replacement ingredients for these synthetic flavoring substances and reformulate products and for these products to work their way through distribution. Therefore, FDA intends to not enforce applicable requirements of the final rule with regard to food products manufactured (domestically and internationally) prior to October 9, 2020 that contain one or more of these six synthetic flavoring substances, to provide an opportunity for companies to reformulate products prior to enforcing the requirements of this final rule.

    VI. Public Disclosure

    In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT). As provided in § 171.1(h), we will delete from the documents any materials that are not available for public disclosure.

    VII. Analysis of Environmental Impacts

    As stated in the January 4, 2016, Federal Register notice of petition for FAP 5A4810 (81 FR 42), the petitioners claimed a categorical exclusion from preparing an environmental assessment or environmental impact statement under 21 CFR 25.32(m). We have determined that the categorical exclusion under § 25.32(m) for actions to prohibit or otherwise restrict or reduce the use of a substance in food, food packaging, or cosmetics is warranted. We have determined under § 25.32(m) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    VIII. Paperwork Reduction Act of 1995

    This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

    IX. Objections

    If you will be adversely affected by one or more provisions of this regulation, you may file with the Dockets Management Staff (see ADDRESSES) either electronic or written objections. You must separately number each objection, and within each numbered objection you must specify with particularity the provision(s) to which you object, and the grounds for your objection. Within each numbered objection, you must specifically state whether you are requesting a hearing on the particular provision that you specify in that numbered objection. If you do not request a hearing for any particular objection, you waive the right to a hearing on that objection. If you request a hearing, your objection must include a detailed description and analysis of the specific factual information you intend to present in support of the objection in the event that a hearing is held. If you do not include such a description and analysis for any particular objection, you waive the right to a hearing on the objection.

    Any objections received in response to the regulation may be seen in the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at https://www.regulations.gov.

    X. References

    The following references marked with an asterisk (*) are on display at the Dockets Management Staff (see ADDRESSES), under Docket No. FDA-2015-F-4317, and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday, they also are available electronically at https://www.regulations.gov. References without asterisks are not on display; they are available as published articles and books.

    1. Bevan, R.J. (2017). “Threshold and Non-Threshold Chemical Carcinogens: A survey of the Present Regulatory Landscape.” Regulatory Toxicology and Pharmacology, 88, 291-302. 2. JECFA (2006). “The Formulation of Advice on Compounds That are Both Genotoxic and Carcinogenic.” WHO Food Additives Series No. 55, Annex 4. 3. Barlow, S. et al. (2006). “Risk Assessment of Substances That are Both Genotoxic and Carcinogenic: Report of an International Conference organized by EFSA and WHO with Support of ILSI Europe.” Food and Chemical Toxicology, 44, 1636-1650. 4. Flavor and Extract Manufacturers Association Transmittal Letter to Szabina Stice (FDA, CFSAN), April 27, 2018.* 5. FDA Memorandum from D. Folmer, CFSAN Chemistry Review Group, Division of Petition Review, to J. Kidwell, Regulatory Group I, Division of Petition Review, June 24, 2016.* 6. FDA Memorandum from D. Folmer, CFSAN Chemistry Review Group, Division of Petition Review, to J. Kidwell, Regulatory Group I, Division of Petition Review, June 20, 2018.* 7. Food and Agriculture Organization of the United Nations and the World Health Organization. Principles and Methods for the Risk Assessment of Chemicals in Food. 2009. Available at http://www.inchem.org/documents/ehc/ehc/ehc240_index.htm. (Last accessed September 12, 2017.) 8. Flavor and Extract Manufacturers Association Letter to Judith Kidwell (FDA, CFSAN), April 11, 2016.* 9. FDA Memorandum from S. Thurmond, CFSAN Toxicology Team, Division of Petition Review, to J. Kidwell, Regulatory Group I, Division of Petition Review, June 21, 2018. * 10. Boobis, A.R. et al. (2006). “IPCS Framework for Analyzing the Relevance of a Cancer Mode of Action for Humans.” Critical Reviews in Toxicology, 36:10, 781-792. 11. FDA Memorandum from S. Thurmond, CFSAN Toxicology Team, Division of Petition Review, to J. Kidwell, Regulatory Group I, Division of Petition Review, June 21, 2018.* 12. National Toxicology Program. Report on Carcinogens Background Document for Ethyl Acrylate. December 2-3, 1998. 13. FDA Memorandum from J. Zang, CFSAN Toxicology Team, Division of Petition Review, to J. Kidwell, Regulatory Group I, Division of Petition Review, June 21, 2018.* 14. FDA Memorandum from A. Khan, CFSAN Toxicology Team, Division of Petition Review, to J. Kidwell, Regulatory Group I, Division of Petition Review, June 21, 2018.* 15. FDA Memorandum from N. Anyangwe, CFSAN Toxicology Team, Division of Petition Review, to J. Kidwell, Regulatory Group I, Division of Petition Review, June 21, 2018.* 16. Da Rocha, M.S., Dodmane, P.R., Arnold, L.L., et al. (2012). “Mode of Action of Pulegone on the Urinary Bladder of F344 Rats.” Toxicological Sciences, kfs035. 17. FDA Memorandum from T. Tyler, CFSAN Toxicology Team, Division of Petition Review, to J. Kidwell, Regulatory Group I, Division of Petition Review, June 27, 2018.* List of Subjects 21 CFR Part 172

    Food additives, Reporting and recordkeeping requirements.

    21 CFR Part 177

    Food additives, Food packaging.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 172 and 177 are amended as follows:

    PART 172—FOOD ADDITIVES PERMITTED FOR DIRECT ADDITION TO FOOD FOR HUMAN CONSUMPTION 1. The authority citation for part 172 continues to read as follows: Authority:

    21 U.S.C. 321, 341, 342, 348, 371, 379e.

    § 172.515 [Amended]
    2. Amend § 172.515(b) by removing the entries for “benzophenone; diphenylketone,” “ethyl acrylate,” “eugenyl methyl ether; 4-allylveratrole; methyl eugenol,” “myrcene; 7-methyl-3-methylene-1,6-octadiene,” “pulegone; p-menth-4(8)-en-3-one,” and “pyridine.” PART 177—INDIRECT FOOD ADDITIVES: POLYMERS 3. The authority citation for part 177 continues to read as follows: Authority:

    21 U.S.C. 321, 342, 348, 379e.

    § 177.2600 [Amended]
    4. In § 177.2600(c)(4)(iv), remove the entry for “diphenyl ketone.” Dated: October 2, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-21807 Filed 10-5-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0682] RIN 1625-AA00 Safety Zone; North Hero-Grand Isle Bridge, Lake Champlain, VT AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary interim rule and request for comments.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for the navigable waters within a 50 yard radius from the center of the North Hero-Grand Isle Bridge, on Lake Champlain, VT. The safety zone is necessary to protect personnel, vessels, and marine environment from potential hazards created by the demolition, subsequent removal, and replacement of the North Hero-Grand Isle Bridge. When enforced, this regulation prohibits entry of vessels or persons into the safety zone unless authorized by the Captain of the Port Northern New England or a designated representative.

    DATES:

    This rule is effective without actual notice from October 9, 2018 through September 1, 2022. For purposes of enforcement, actual notice will be used from October 1, 2018 through October 9, 2018.

    Comments and related material must be received by the Coast Guard on or before January 7, 2019.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0682 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule. You may submit comments identified by docket number USCG-2018-0575 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email LT Matthew Odom, Waterways Management Division, U.S. Coast Guard Sector Northern New England, telephone 207-347-5015, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register TIR Temporary Interim Rule NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    On July 5, 2018, Sector Northern New England was made aware by Cianbro Corporation through email, of the North Hero-Grand Isle Bridge replacement project, which will be replacing Bridge 8 on US 2 over Lake Champlain which connects the towns of North Hero Island and Grand Isle in Vermont. The COTP Northern New England has determined that the potential hazards associated with the bridge replacement project will be a safety concern for anyone within the work area.

    The Coast Guard is publishing this rule to be effective, and enforceable, through September 1, 2022, in case the project is delayed due to unforeseen circumstances. During this project, removal and replacement of the bridge will take place. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The safety zone will be enforced during different periods during bridge deconstruction, temporary bridge installation, and construction of the permanent structure. Unless there is an emergency, the Coast Guard will issue a Broadcast Notice to Mariners via marine channel 16 (VHF-FM) 24 hours in advance of any period of enforcement. If the project is completed prior to September 1, 2022, enforcement of the safety zone will be suspended and notice given via Broadcast Notice to Mariners, Local Notice to Mariners, or both.

    The Coast Guard is issuing this temporary interim rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM with respect to this rule because doing so would be impracticable and contrary to the public interest. The late finalization of project details did not give the Coast Guard enough time to publish an NPRM, take public comments, and issue a final rule before the construction work is set to begin. It would be impracticable and contrary to the public interest to delay promulgating this rule as it is necessary to establish this safety zone on October 1, 2018 to protect the safety of the waterway users, construction crew, and other personnel associated with the replacement project. A delay of the replacement project to accommodate a full notice and comment period would delay necessary operations, result in increased costs, and delay the date when the replacement project is expected to be completed and reopen the bridge for normal operations.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. For reasons stated in the preceding paragraph, delaying the effective date of this rule would be impracticable and contrary to the public interest because timely action is needed to respond to the potential safety hazards associated with the construction project.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP Northern New England has determined that potential hazards associated with the bridge replacement project scheduled from October 1, 2018 through September 1, 2022 will be a safety concern for anyone within the work zone. This rule is needed to protect personnel, vessels, and the marine environment on the navigable waters of Lake Champlain while the bridge replacement project is completed.

    IV. Discussion of Comments, Changes, and the Rule

    This rule establishes a safety zone from October 1, 2018 through September 1, 2022. The safety zone will cover all navigable waters from surface to bottom within a 50 yard radius from the center of the Route 2 North Hero-Grand Isle Bridge. When enforced, no vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    The Coast Guard will notify the public and local mariners of this safety zone through appropriate means, which may include, but are not limited to, publication in the Federal Register, the Local Notice to Mariners, and Broadcast Notice to Mariners via marine Channel 16 (VHF-FM) in advance of any enforcement.

    V. Regulatory Analyses

    We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive order 13771.

    The Coast Guard has determined that this rulemaking is not a significant regulatory action for the following reasons: (1) The safety zone only impacts a small designated area of Lake Champlain, (2) the safety zone will only be enforced when work equipment is present in the navigable channel as a result of bridge removal and replacement operations or if there is an emergency, (3) persons or vessels desiring to enter the safety zone may do so with permission from the COTP Northern New England or a designated representative. The Coast Guard will notify the public of the enforcement of this rule via appropriate means, such as via Local Notice to Mariners and Broadcast Notice to Mariners via marine channel 16 (VHF-FM).

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A., this rule will not have a significant economic impact on any vessel owner or operator.

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

    C. Collection of Information

    This temporary interim rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

    E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone that will prohibit entry within a 50 yard radius from the center of the North Hero-Grand Isle Bridge during its removal and replacement. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01.

    A preliminary Record of Environmental Consideration for Categorically Excluded Actions is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this temporary interim rule.

    G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

    VI. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacyNotice.

    Documents mentioned in this TIR as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.T01-0682 to read as follows:
    § 165.T01-0682 Safety Zone—North Hero-Grand Isle Bridge, Lake Champlain, VT.

    (a) Location. The following area is a safety zone: All navigable waters on Lake Champlain, within a 50-yard radius of the center of the North Hero-Grand Isle Bridge that spans Lake Champlain between North Hero Island and Grand Isle in position 44°45′57″ N, 073°17′20″ W (NAD 83).

    (b) Definitions. As used in this section:

    (1) Designated representative means any Coast Guard commissioned, warrant, petty officer, or any federal, state, or local law enforcement officer who has been designated by the Captain of the Port (COTP) Northern New England, to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.

    (2) Official patrol vessels means any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP Northern New England to enforce this section.

    (c) Effective and enforcement period. This section is enforceable 24 hours a day from October 1, 2018, through September 1, 2022. When enforced as deemed necessary by the Captain of the Port (COTP) Northern New England, vessels and persons will be prohibited from entering this safety zone unless granted permission from the COTP Northern New England or the COTP's designated representative.

    (d) Regulations. When this safety zone is enforced, the following regulations, along with those contained in § 165.23 apply:

    (1) No person or vessel may enter or remain in this safety zone without the permission of the Captain of the Port (COTP) Northern New England or the COTP's designated representative. However, any vessel that is granted permission to enter or remain in this zone by the COTP or the COTP's designated representative must proceed through the zone with caution and operate at a speed no faster than that speed necessary to maintain a safe course, unless otherwise required by the Navigation Rules.

    (2) Any person or vessel permitted to enter the safety zone shall comply with the directions and orders of the COTP or the COTP's designated representative. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing lights, or other means, the operator of a vessel within the zone shall proceed as directed. Any person or vessel within the safety zone shall exit the zone when directed by the COTP or the COTP's designated representative.

    (3) To obtain permission required by this regulation, individuals may reach the COTP or the COTP's designated representative via Channel 16 (VHF-FM) or (207)741-5465 (Sector Northern New England Command Center).

    (e) Penalties. Those who violate this section are subject to the penalties set forth in 33 U.S.C. 1232.

    (f) Notification. Coast Guard Sector Northern New England will give notice through the Local Notice to Mariners and Broadcast Notice to Mariners for the purpose of enforcement of temporary safety zone.

    Dated: September 17, 2018. B.G. LeFebvre, Captain, U.S. Coast Guard, Captain of the Port, Sector Northern New England.
    [FR Doc. 2018-21867 Filed 10-5-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 36 RIN 2900-AO65 Loan Guaranty: Ability-to-Repay Standards and Qualified Mortgage Definition Under the Truth-in-Lending Act AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Agency determination; status of interim final rule.

    SUMMARY:

    The Department of Veterans Affairs (VA) published an interim final rule on May 9, 2014, implementing provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act). This document informs the public that VA will not be publishing a final rule to adopt the provisions in the interim final rule that published on May 9, 2014. However, VA will be publishing a separate regulation in the near future that will supersede the provisions in the interim final rule that published on May 9, 2014.

    DATES:

    This document is effective October 9, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Greg Nelms, Assistant Director (26), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 632-8795. (This is not a toll-free number.)

    SUPPLEMENTARY INFORMATION:

    On May 9, 2014, VA published in the Federal Register (79 FR 26620) its interim final rule (IFR) pursuant to the Dodd-Frank Act, Public Law 111-203, 124 Stat. 1376 (2010). Among other things, the Dodd-Frank Act established many reforms to Federal oversight of residential mortgage lending, including a requirement that lenders be able to demonstrate that, at the time a mortgage loan is made to a borrower, the borrower is reasonably able to repay the mortgage loan. Public Law 111-203, sec. 1411 (codified at 15 U.S.C. 1639c). Such mortgage loans are referred to generally as qualified mortgages (QMs).

    VA specified in the IFR that almost all VA loans meeting VA's underwriting standards would be considered safe harbor QMs. 79 FR 26622-26623. The loans that would not be considered safe harbor QMs would be certain Interest Rate Reduction Refinance Loans (IRRRLs), specifically those meeting the requirements for guaranty but failing to meet IRRRL-specific seasoning and recoupment requirements for safe harbor protections. While these types of IRRRLs could still be deemed QMs, they would receive the designation of rebuttable presumption QM rather than safe harbor QM. 79 FR 26624. VA also specified income verification requirements for IRRRLs. Id.

    VA received a total of 22 comments on the IFR. Most of the commenters were industry participants in the VA Home Loan program or representatives of the lending community. A few individuals also commented. No comments were received from veterans' service organizations or veterans expressing concerns about the use of their VA home loan benefit. Most commenters sought clarification of the IFR. Several commenters were fully supportive of the rule. VA appreciates the comments received on the IFR.

    On May 24, 2018, section 309 of Economic Growth, Regulatory Relief, and Consumer Protection Act (Pub. L. 115-174) superseded certain elements of the IFR. The law's seasoning and recoupment requirements for IRRRLs effectively eliminated the category of rebuttable presumption QM. Section 309 also imposed other requirements that, while not in conflict with the IFR, were not contemplated at the time of the IFR's publication. Consequently, rather than finalizing the IFR, VA will need to revise its qualified mortgage criteria in a future rulemaking. VA will in its future rulemaking take into account the spirit of the comments submitted in response to the IFR. Until such future rulemaking is final, the IFR remains in effect. To the extent any provision of the IFR conflicts with or is superseded by Public Law 115-174, Public Law 115-174 controls.

    On May 25, 2018, VA released a policy guidance update in Circular 26-18-13 to inform program participants about the impact of Public Law 115-174 on VA home loan financing. Loan applications taken on or after May 25, 2018 must meet the requirements of the new law to be eligible for guaranty by the VA.

    Signing Authority

    The Secretary of Veterans Affairs 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. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on September 26, 2018, for publication.

    Dated: September 26, 2018. Jeffrey M. Martin, Impact Analyst, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs.
    [FR Doc. 2018-21370 Filed 10-4-18; 4:15 pm] BILLING CODE 8320-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R02-OAR-2018-0549, FRL-9984-58-Region 2] Approval and Promulgation of Implementation Plans; New Jersey; Elements for the 2008 8-Hour Ozone National Ambient Air Quality Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving several State Implementation Plan (SIP) revisions submitted by the State of New Jersey for purposes of implementing Reasonably Available Control Technology (RACT) for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS). The EPA is approving New Jersey's SIP revision for the control and prohibition of air pollution by volatile organic compounds (VOCs) and control and prohibition of air pollution by oxides of nitrogen (NOX), as they are intended to satisfy certain control technique guideline (CTG) and NOX RACT categories. The EPA is approving New Jersey's certification that there are no sources within the State for the following CTGs: Manufacture of Vegetable Oils; Manufacture of Pneumatic Rubber Tires; Aerospace Coatings; Shipbuilding and Ship Repair Operations; Metal Furniture Coatings; Large Appliance Coatings; and Auto and Light Duty Truck Original Equipment Manufacturer Assembly Coatings. In addition, the EPA is approving New Jersey's RACT SIP as it applies to non-CTG major sources of VOCs and major sources of NOX. The EPA is also approving the portions of the comprehensive SIP revision submitted by New Jersey that certify that the State has satisfied the requirements for an enhanced motor vehicle Inspection and Maintenance program, certify that the State has satisfied the requirements for an emission statement program, certify that the State has satisfied the requirements for an ozone specific provisions nonattainment new source review program, and show the State has adopted all NOX RACT and VOC RACT, as it pertains to the 2008 8-hour ozone NAAQS. These actions are being taken in accordance with the requirements of the Clean Air Act.

    DATES:

    This final rule is effective on November 8, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID Number EPA-R02-OAR-2018-0549. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through https://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Omar Hammad, Environmental Protection Agency, 290 Broadway, New York, New York 10007-1866, at (212) 637-3347, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The SUPPLEMENTARY INFORMATION section is arranged as follows:

    Table of Contents I. What is the background for this action? II. What comments were received in response to the EPA's proposed action? III. What action is the EPA taking? IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. What is the background for this action?

    On July 31, 2018 (83 FR 36816), the EPA published a Notice of Proposed Rulemaking that proposed to approve the State of New Jersey's State Implementation Plan (SIP) submittals,1 for purposes of implementing Reasonably Available Control Technology (RACT) 2 for the 20088-hour ozone National Ambient Air Quality Standard (NAAQS or standard). The EPA proposed to approve New Jersey's June 11, 2015 SIP submittal, showing that the State meets the RACT requirements for the 2008 8-hour ozone standards. The EPA proposed to approve New Jersey's June 11, 2015 RACT SIP as it applies to non-CTG major sources of VOCs and to major sources of NOX. The EPA also proposed to approve the December 14, 2017 submittal, which established new limits on NOX emissions from existing simple cycle combustion turbines combusting natural gas and compressing gaseous fuel at major NOX facilities and stationary reciprocating engines combusting natural gas and compressing gaseous fuel at major NOX facilities and indicated that the RACT requirements for the 2008 ozone NAAQS have been fulfilled for sources subject to the following four CTGs: Industrial Cleaning Solvents (EPA 453/R-06-001); Paper, Film, and Foil Coatings (EPA 453/R-07-003); Miscellaneous Metal and Plastic Parts Coatings (EPA 453/R-08-003); and Fiberglass Boat Manufacturing Materials (EPA-453/R-08-004). The EPA also proposed to approve the portion of New Jersey's SIP revision submitted on January 2, 2018, that certifies the State has satisfied the requirements for a motor vehicle enhanced inspection and maintenance (I/M) program, an emission statement program, an ozone specific provisions nonattainment new source review (NNSR) program, and that the State has adopted all applicable NOX RACT and VOC RACT.

    1 New Jersey's SIP submittals included; submittals with cover letters dated June 11, 2015; November 30, 2017; and December 22, 2017.

    2 The EPA has defined RACT as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility (44 FR 53762, September 17, 1979).

    The specific details of New Jersey's SIP submittals and the rationale for the EPA's approval action are explained in the EPA's proposed rulemaking and are not restated in this final action. For this detailed information, the reader is referred to the EPA's July 31, 2018 proposed rulemaking (83 FR 36816).

    II. What comments were received in response to the EPA's proposed action?

    In response to the EPA's July 31, 2018 proposed rulemaking on New Jersey's SIP submittals, the EPA received four comments during the 30-day public comment period. The specific comments may be viewed under Docket ID Number EPA-R02-OAR-2018-0549 on the https://www.regulations.gov website.

    After reviewing the comments, EPA has determined that the comments are outside the scope of our proposed action or fail to identify any material issue necessitating a response. The comments do not raise issues germane to EPA's proposed action. They do not explain (or provide a legal basis for) how the proposed action should differ in any way and make no specific mention of the proposed action. Since the comments are not relevant to the specific action EPA proposed, EPA will not provide a specific response to the comments.

    III. What action is the EPA taking?

    The EPA has evaluated New Jersey's SIP submittals and has determined that they are consistent with the EPA's guidance documents as well as the EPA's CTG and Alternative Control Technique (ACT) documents and are fully approvable as SIP-strengthening measures for New Jersey's ozone SIP. Specifically, EPA is approving New Jersey's state-wide RACT submittal dated June 11, 2015 and the State's December 14, 2017 SIP revision rule, which include a declaration that the following source-specific categories either do not exist in this State, or fall below significant emission unit applicability thresholds in the CTGs: (1) Manufacture of Vegetable Oils; (2) Manufacture of Pneumatic Rubber Tires; (3) Aerospace Coatings; (4) Shipbuilding and Ship Repair Operations; (5) Metal Furniture Coatings; (6) Large Appliance Coatings; and (7) Auto and Light Duty Truck Original Equipment Manufacturer (OEM) Assembly Coatings. The submittals also include amendments to N.J.A.C. 7:27, Subchapter 16, “Control and Prohibition of Air Pollution by Volatile Organic Compounds,” Subchapter 19, “Control and Prohibition of Air Pollution by Oxides of Nitrogen,” 3 for purposes of satisfying the 2008 8-hour ozone standard RACT requirements, NOx RACT for major sources, Non-CTG VOC RACT for major sources, all VOC CTG RACT sources and relevant OTR RACT requirements. The EPA is also approving portions of New Jersey's January 2, 2018 SIP revision 4 that certifies the State has satisfied the requirements for an enhanced motor vehicle I/M program, an emission statement program, and ozone specific provisions NNSR program.

    3 State Effective dates for both rules is November 6, 2017 (49 N.J.R. 3518).

    4 The EPA will act on the remainder of New Jersey's January 2, 2018 SIP revision submittal, including the attainment demonstrations, Reasonable Further Progress (RFP) requirements and other portions at a later date.

    IV. Incorporation by Reference

    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 revisions to portions of Title 7, Chapter 27: Subchapter 16 and 19 of the New Jersey Administrative Code that implement New Jersey's Control and Prohibition of Air Pollution by Volatile Organic Compounds and Control and Prohibition of Air Pollution from Oxides of Nitrogen, as described in section III of this preamble.

    EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 2 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 in the next update to the SIP compilation.5

    5 62 FR 27968 (May 22, 1997).

    V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act 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 Clean Air Act. 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 Clean Air Act; and

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

    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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 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).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: September 11, 2018. Peter D. Lopez, Regional Administrator, Region 2.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart FF—New Jersey 2. In § 52.1570: a. The table in paragraph (c) is amended by revising the entries for “Title 7, Chapter 27, Subchapter 16” and “Title 7, Chapter 27, Subchapter 19”; and b. The table in paragraph (e) is amended by adding the entries for “2008 8-hour Ozone RACT analysis”, “2008 8-hour Ozone Nonattainment New Source Review Requirements”, “2008 8-hour Ozone Nonattainment Emission Statement Program Certification” and “2008 8-hour Ozone Nonattainment Motor Vehicle Enhanced Inspection and Maintenance (I/M) Program Certification” at the end of the table.

    The revisions and additions read as follows:

    § 52.1570 Identification of plan.

    (c) * * *

    EPA-Approved New Jersey State Regulations and Laws State
  • citation
  • Title/subject State effective
  • date
  • EPA approval
  • date
  • Comments
    *         *         *         *         *         *         * Title 7, Chapter 27, Subchapter 16 Control and Prohibition of Air Pollution by Volatile Organic Compounds November 6, 2017 October 9, 2018, Insert Federal Register citation] *         *         *         *         *         *         * Title 7, Chapter 27, Subchapter 19 Control and Prohibition of Air Pollution from Oxides of Nitrogen November 6, 2017 October 9, 2018, Insert Federal Register citation] Subchapter 19 is approved into the SIP except for the following provisions: (1) Phased compliance plan through repowering in Section 19.21 that allows for implementation beyond May 1, 1999; and (2) phased compliance plan through the use of innovative control technology in Section 19.23 that allows for implementation beyond May 1, 1999. *         *         *         *         *         *         *

    (e) * * *

    EPA-Approved New Jersey Nonregulatory and Quasi-Regulatory Provisions SIP element Applicable
  • geographic or
  • nonattainment
  • area
  • New Jersey
  • submittal date
  • EPA approval
  • date
  • Explanation
    *         *         *         *         *         *         * 2008 8-hour Ozone RACT Analysis Statewide June 11, 2015 and January 2, 2018 October 9, 2018, Insert Federal Register citation] • Full approval. Includes CTGs, NOX RACT for major sources and non-CTG RACT sources. 2008 8-hour Ozone Specific Nonattainment New Source Review Requirements Statewide January 2, 2018 October 9, 2018, Insert Federal Register citation] • Full approval. 2008 8-hour Ozone Nonattainment Emission Statement Program Certification Statewide January 2, 2018 October 9, 2018, Insert Federal Register citation] • Full approval. 2008 8-hour Ozone Nonattainment Motor Vehicle Enhanced Inspection and Maintenance (I/M) Program Certification Statewide January 2, 2018 October 9, 2018, Insert Federal Register citation] • Full approval.
    [FR Doc. 2018-21465 Filed 10-5-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 160808696-7010-02] RIN 0648-BI50 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2017-2018 Biennial Specifications and Management Measures; Inseason Adjustments AGENCY:

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

    ACTION:

    Final rule; inseason adjustments to biennial groundfish management measures.

    SUMMARY:

    This final rule announces routine inseason adjustments to management measures in commercial groundfish fisheries. This action, which is authorized by the Pacific Coast Groundfish Fishery Management Plan, is intended to allow commercial fishing vessels to access more abundant groundfish stocks while protecting overfished and depleted stocks.

    DATES:

    This final rule is effective October 9, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Karen Palmigiano, phone: 206-526-4491 or email: [email protected]

    SUPPLEMENTARY INFORMATION: Electronic Access

    This rule is accessible via the internet at the Office of the Federal Register website at https://www.federalregister.gov. Background information and documents are available at the Pacific Fishery Management Council's website at http://www.pcouncil.org/.

    Background

    The Pacific Coast Groundfish Fishery Management Plan (PCGFMP) and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops groundfish harvest specifications and management measures for two year periods or biennium. NMFS published the final rule to implement harvest specifications and management measures for the 2017-18 biennium for most species managed under the PCGFMP on February 7, 2017 (82 FR 9634). In general, the management measures are set at the start of the biennial specifications cycle to help the various sectors of the fishery attain, but not exceed, the catch limits for each stock. The Council, in coordination with the States of Washington, Oregon, and California, recommends adjustments to the management measures during the fishing year to achieve this goal.

    At its September 7-12, 2018, meeting the Council recommended four adjustments to current management measures, including: (1) Increasing the sablefish trip limits for the limited entry fixed gear (LEFG) fishery north of 36° North latitude (N lat.) and the open access fixed gear (OAFG) fishery north and south of 36° N lat.; (2) increasing the bocaccio trip limits for the LEFG fishery between 40°10′ N lat. and 34°27′ N lat.; (3) transferring Pacific Ocean perch (POP) and darkblotched rockfish from the incidental open access (IOA) set-asides to the set asides for unforeseen catch events for those species; and (4) increasing the incidental halibut retention allowance in the LEFG sablefish primary fishery.

    Sablefish Trip Limit Increases for the LEFG and OA Sablefish DTL Fisheries

    At the September 2018 Council meeting, the Groundfish Management Team (GMT) received requests from industry members and members of the Groundfish Advisory Subpanel (GAP) to examine the potential to increase sablefish trips limits for the LEFG fishery north of 36° N lat. and the OAFG fisheries north and south of 36° N lat. The intent of increasing trip limits would be to increase harvest opportunities for the LEFG and OAFG sablefish fisheries. To evaluate potential increases to sablefish trip limits, the GMT made model-based landings projections under current regulations and a range of potential sablefish trip limits, include the limits ultimately recommended by the Council, for the LEFG and OAFG sablefish fisheries through the remainder of the year. Table 1 shows the projected sablefish landings, the sablefish allocations, and the projected attainment percentage by fishery under both the current trip limits and the Council's recommended trip limits. These projections were based on the most recent catch information available through August 2018.

    Table 1—Projected Landings of Sablefish, Sablefish Allocation, and Projected Percentage of Sablefish Attained Through the End of the Year by Trip Limit and Fishery Fishery Trip limits Projected landings
  • (round weight)
  • (mt)
  • Allocation
  • (mt)
  • Projected
  • percentage
  • attained
  • LEFG North of 36° N lat Current: 1,100 lb/week, not to exceed 3,300 lb/2 month 174.9-201.9 269 65-75.1 Recommended: 1,400 lb/week, not to exceed 4,200 lb/2 month 193.6-224.3 71.9-83.4 OAFG North of 36° N lat Current: 300 lb/day, or 1 landing per week of up to 1,000 lb, not to exceed 2,000 lb/2 months 341-347.5 444 76.8-78.3 Recommended: 300 lb/day, or 1 landing per week of up to 1,400 lb, not to exceed 2,800 lbs/2 months 417.2-427.7 94-96.3 OAFG South of 36° N lat Current: 300 lb/day, or 1 landing per week of up to 1,600 lb, not to exceed 3,200 lb/2 months 44.7 325 13.7 Recommended: 300 lb/day, or 1 landing per week of up to 1,600 lb, not to exceed 4,800 lbs/2 months 44.7 13.7

    As shown in Table 1, under the current trip limits, the model predicts catches of sablefish will be at or below 75 percent for each fishery except the OAFG fishery north of 36° N lat. which may attain just over 78 percent of their sablefish allocation by the end of the year. Under the Council's recommended trip limits, sablefish attainment is projected to increase in the LEFG and OAFG fisheries north of 36° N lat. Due to a lack of participation and variance in trip limits in the OA fishery south of 36° N lat., the model was unable to detect any estimated change in attainment for this fishery even with the proposed increase in trip limits.

    Projections for the LEFG sablefish fishery south of 36° N lat. remain low and within the levels anticipated in the 2017-18 harvest specifications and management measures. Industry did not request changes to sablefish trip limits for the LEFG fishery south of 36° N lat. Therefore, NMFS and the Council did not consider trip limit changes for this fishery.

    Trip limit increases for sablefish are intended to increase attainment of the non-trawl HG. The proposed trip limit increases do not change projected impacts to co-occurring overfished species compared to the impacts anticipated in the 2017-18 harvest specifications because the projected impacts to those species assume that the entire sablefish ACL is harvested. Therefore, the Council recommended and NMFS is implementing, by modifying Table 2 (North) to part 660, subpart E, trip limit changes for the LEFG sablefish fishery north of 36° N lat. to increase the limits from “1,100 lb (499 kg) per week, not to exceed 3,300 lb (1,497 kg) per two months” to “1,400 lb (635 kg) per week, not to exceed 4,200 lb (1,905 kg) per two months” for period 4 (September and October) and period 5 (November and December).

    The Council also recommended and NMFS is implementing, by modifying Table 3 (North and South) to part 660, subpart F, trip limits for sablefish in the OA sablefish DTL fishery north and south of 36° N lat. The trip limits for sablefish in the OA sablefish DTL fishery north of 36° N lat. will increase from “300 lb (136 kg) per day, or one landing per week of up to 1,000 lb (454 kg), not to exceed 2,000 lb (907 kg) per two months” to “300 lb (136 kg) per day, or one landing per week of up to 1,400 lb (590 kg), not to exceed 2,800 lb (1,179 kg) per two months” for period 4 (September and October) and period 5 (November and December). The trip limits for sablefish in the OA sablefish DTL fishery south of 36° N lat. will increase from “300 lb (136 kg) per day, or one landing per week of up to 1,600 lb (454 kg), not to exceed 3,200 lb (907 kg) per two months” to “300 lb (136 kg) per day, or one landing per week of up to 1,600 lb (590 kg), not to exceed 4,800 lb (1,179 kg) per two months” for period 4 (September and October) and period 5 (November and December).

    LEFG Bocaccio Between 40°10′ N Lat. and 34°27′ N Lat. Trip Limits

    Bocaccio is managed with stock-specific harvest specifications south of 40°10′ N lat., but is managed within the Minor Shelf Rockfish complex north of 40°10′ N lat. NMFS declared bocaccio overfished in 1999, and implemented a rebuilding plan for the stock in 2000. Although NMFS declared bocaccio officially rebuilt in 2017, the current harvest specifications are based on the current rebuilding plan. At the September 2018 Council meeting, members of the GAP notified the Council and the GMT of increased interactions with bocaccio for vessels targeting chilipepper rockfish. The low trip limits for bocaccio between 40°10′ N lat. and 34°27′ N lat., coupled with these increased interactions, results in higher bocaccio discard rates in the LEFG fishery. Because the most recent bocaccio attainment estimates suggest that around 4 percent or 16.7 mt of bocaccio will be attained out of the 442.3 mt non-trawl allocation, the GAP requested the GMT examine potential increases to the bocaccio trip limits for the LEFG fishery only between 40°10′ N lat and 34°27′ N lat. The GMT did not receive a request to examine trip limit increases for bocaccio south of 34°27′ N lat.

    To assist the Council in evaluating potential trip limit increases for bocaccio between 40°10′ N lat. and 34°27′ N lat., the GMT analyzed projected attainment under the current status quo regulations and under the proposed trip limit changes. In 2016, when the bocaccio trip limits were established for the 2017-18 harvest specifications, few data points existed to provide projected annual catch data under the current trip limits. Based on that limited data, boccacio catch in the non-trawl commercial fishery between 40°10′ N lat. and 34°27′ N lat. was expected to be around 0.3 mt of the 442.3 mt non-trawl allocation. The GMT updated the expected attainment under the current status quo trip limits and examined potential impacts under alternative trip limits with additional catch data from the 2016 and 2017 fishing years.

    Based on updated model projections under the current status quo trip limit of 1,000 lb (454 kg) per two months, total coastwide bocaccio catch in the LEFG and OA fisheries is expected to be 16.7 mt, or four percent of the non-trawl HG and two percent of the coastwide ACL. Increasing the trip limits to 1,500 lb (680 kg) per two months for the reminder of the fishing year for vessels fishing in the LEFG fishery in the area between 40°10′ N lat. and 34°27′ N lat., which would align them with the trip limits already in place south of 34°27′ N lat., is expected to increase total mortality by less than 0.1 mt, and the overall total mortality of bocaccio would be expected to remain at around four percent of the non-trawl HG and two percent of the coastwide ACL.

    Trip limit increases for bocaccio are intended to allow for increased attainment of the non-trawl allocation (442.3 mt), while also providing the incentive for vessels targeting co-occurring species, such as chilipepper rockfish, to land their bocaccio catch instead of discarding. Therefore, the Council recommended and NMFS is implementing, by modifying Table 2 (South) to part 660, Subpart E, an increase to the bocaccio trip limits for the LEFG fishery between 40°10′ N lat. and 34°27′ N lat. The trip limits for bocaccio in this area will increase from “1,000 lb (464 kg) per per two months” to “1,500 lb (680 kg) per two months” for period 4 (September and October) and period 5 (November and December).

    Transferring POP and Darkblotched Rockfish Set-Asides From IOA and Research Set-Asides to the Additional Buffer

    NMFS sets ACLs for non-whiting groundfish stocks and stock complexes as part of biennial harvest specifications and management measures. Deductions are made “off-the-top” from the ACL to “set-aside” an amount for various sources of mortality, including non-groundfish fisheries that catch groundfish incidentally, also called IOA fisheries, as well as for research, tribal, recreational catch, and for some species, an amount for unforeseen catch events. NMFS allocates the remainder, the fishery's commercial HG, among the trawl and non-trawl sectors of the groundfish fishery. For some species, sector-specific set-asides are then deducted from the trawl allocation. For example, the trawl HGs for both darkblotched rockfish and POP are divided up into an allocation for the Shorebased individual fishing quota (IFQ) program and a set-asides for the motherships (MS) and catcher/processors (C/P) which make up the at-sea sector.

    On January 8, 2018, NMFS published a final rule to implement Amendment 21-3. Amendment 21-3 recharacterized the portions of the trawl HG of darkblotched rockfish and POP for the MS and CP vessels that make up the at sea whiting sector from allocations, which are hard caps requiring the relevant sector to close upon reaching them, to sector specific set-asides (83 FR 757, January 8, 2018). This change was necessary because both those species had been declared rebuilt the previous year and the allocations were constraining the at-sea sector's ability to harvest whiting. Regulations implementing Amendment 21-3 do not require that a sector be closed upon reaching its set-aside, but do require NMFS to close either or both the MS and C/P sectors if the species-specific set-aside amounts for darkblotched rockfish or POP for that sector, plus a reserve or “buffer” for unforeseen catch events, is projected to be exceeded.

    At the September 2018 Council meeting, representatives from the Midwater Trawlers Cooperative, Pacific Whiting Conservation Cooperative, United Catcher Boats, and Whiting Mothership Cooperative requested that the Council recommend NMFS take inseason action to transfer the unused portion of the IOA and research off the top deductions for darkblotched rockfish and POP to the buffer for those species. The intent of the request is to create a larger buffer for unforeseen catch events. If the at-sea sectors, or any sector, were to exceed their sector specific set-aside for darkblotched rockfish or POP, there would be a larger amount available in the buffer to harvest before NMFS would be required to close either the MS or C/P sectors.

    To evaluate this request, the GMT considered the historical maximum amount of POP and darkblotched rockfish taken in the IOA and research fisheries over the past several years, the current amounts of POP and darkblotched rockfish taken in the IOA and research fisheries in 2018, the at-sea sector's total catch to date, and the projected catch for the remainder of the year for IOA, research, and the at-sea sector.

    Currently, the IOA fishery has a 10 mt set-aside for POP, and research has a 5.2 mt set-aside. Harvest of POP in the IOA fishery mainly occurs in the pink shrimp fishery. Between 2007 and 2017 total harvest of POP in the IOA fishery was below 0.6 mt annually, except for an uncharacteristically high mortality in 2014 of 10 mt. Overall harvest of rockfish in the pink shrimp trawl fishery fell significantly in 2015 and remained low in subsequent years. Total harvest of POP in the IOA fishery between 2015 and 2017 was less than 0.7 mt. Total mortality of POP in the research sector between 2007 and 2017 never exceeded 3.10 mt annually. However, NOAA's Northwest Fisheries Science Center (NWFSC) notified the GMT that 2018 research catch is likely to be much higher after a single haul on a research cruise took 3.4 mt of POP.

    The current set-aside for darkblotched rockfish in the IOA fishery is 24.5 mt, and the current research set-aside is 2.5 mt. Similar to POP, the majority of darkblotched rockfish catch in the IOA fishery is harvested in the pink shrimp fishery. Since 2015, no more than 6.82 mt of darkblotched rockfish was taken annually in the IOA fishery. Between 2007 and 2015, the darkblotched rockfish harvest in the IOA fishery exceeded 50 percent of the set-aside five times, most recently in 2014 when catch actually exceeded the set-aside for the first time. However, this was deemed to be an anomalous year due to a substantial recruitment event. The research fishery is expected to take their current set-aside amount this year, with 1.53 mt of darkblotched rockfish already caught in 2018.

    Finally, the GMT conducted a analysis using data through September 5, 2018, to examine the potential attainment of the at-sea sector's darkblotched rockfish and POP set-asides, using the current bycatch rates and assuming full attainment of the at-sea sector's whiting allocation. Based on this analysis, the GMT determined that it is likely the C/P will exceed their POP set-aside (65.9-percent chance), and the MS will most likely not exceed their POP set-aside (8.5-percent chance). When considering both sectors, the combined at-sea sector has a 39-percent chance of exceeding their combined POP set-asides (15.2 mt) and a less than one percent chance of exceeding the set-aside value and the “buffer” set-aside (46.7 mt).

    For darkblotched rockfish, the GMT's bootstrap analysis indicated that theC/P have a 40-percent chance of exceeding their darkblotched set-aside (16.7 mt) and the MS have a 32-percent chance of exceeding their darkblotched set-aside (11.8 mt). When considering both sectors, the combined at-sector has a 43-percent chance of exceeding their combined darkblotched rockfish set-asides (28.5 mt). None of the model runs showed that the at-sea sector, when considered as a group, would exceed their darkblotched set-aside and the “buffer” set-aside (78.5 mt).

    While the current risk of the at-sea sector exceeding the POP or darkblotched rockfish set-aside and the amount set-aside for unforeseen catch events for those species is low to negligible at this time, the Council considered the risk to the at-sea sector and the other groundfish fisheries if no action was taken. If the Council chose not to take action now, because the automatic closure authority still exists in regulations, if the MS or C/P sectors exceeded their darkblotched or POP set-aside and the amount set-aside for unforeseen catch events for that species, the NMFS would have to close the sectors even though there may be unused POP or darkblotched rockfish in the IOA fisheries. The projected economic impacts associated with a closure of the at-sea sector in November, when closure would most likely occur, are losses of approximately 200 jobs and $14 million in personal income. Additionally, in order to reopen the Pacific whiting fishery, the Council would need to convene an emergency Council meeting or wait until the Council makes a decision at a subsequent meeting. Finally, because moving any portion of the IOA set-aside into the amount set aside for unforeseen catch events would make that amount available for all sectors, the GMT did not determine that this request would pose a risk to other groundfish fisheries.

    Therefore, the Council recommended and NMFS is implementing a redistribution of 9.7 mt of POP and 17.7 mt of darkblotched rockfish, from the “off-the-top” deductions for the IOA fishery made at the start of the 2017-18 biennium, to the buffer for unforeseen catch events. This redistribution creates a larger buffer for all sectors, and reduces the risk of a closure of one or both the MS and C/P sectors. Transfer of POP and darkblotched rockfish to the set-aside for unforeseen catch events is not expected to result in greater impacts to either species, or other overfished species, than what was originally projected through the 2017-18 harvest specifications.

    Incidental Halibut Retention in the Limited Entry Fixed Gear Sablefish Primary Fishery

    Under the authority of the Northern Pacific Halibut Act of 1982, the Council developed a Catch Sharing Plan for the International Pacific Halibut Commission Regulatory Area 2A. The Catch Sharing Plan allocates the Area 2A annual total allowable catch (TAC) among fisheries off Washington, Oregon, and California. Pacific halibut is generally a prohibited species for vessels fishing in Pacific coast groundfish fisheries, unless explicitly allowed in groundfish regulations and authorized by the Pacific halibut Catch Sharing Plan. In years when the Pacific halibut TAC is above 900,000 lb (408 mt), the Catch Sharing Plan allows the limited entry fixed gear sablefish primary fishery an incidental retention limit for Pacific halibut north of Point Chehalis, WA (46°53.30′ N. lat.). On March 24, 2018, NMFS implemented a 2018 Area 2A TAC of 1,190,000 lb (540 mt) (83 FR 13080, March 26, 2018). Consistent with the provisions of the Catch Sharing Plan, the limited entry fixed gear sablefish primary fishery north of Pt. Chelais, WA has an incidental total catch limit of 50,000 lb (22.7 mt) for 2018.

    Current regulations at § 660.231(b)(3)(iv) provide for halibut retention starting on April 1 with a landing ratio of 160 lb (64 kg) dressed weight of halibut, for every 1,000 lb (454 kg) dressed weight of sablefish landed, and up to an additional 2 halibut in excess of this ratio. These limits, recommended by the Council at its March 2018 meeting, and subsequently implemented by NMFS on April 13, 2018 (83 FR 16005), were intended to allow the total catch of Pacific halibut to approach, but not exceed, the 2018 allocation for the sablefish primary fishery north of Pt. Chelais, WA (50,000 lb or 22.7 mt) and provide greater opportunity for industry to attain a higher percentage of the sablefish primary fishery allocation. However, the GMT notified the Council, after a request from the GAP to increase the incidental halibut allowance in the sablefish primary fishery, that incidental catch of halibut through September 11, 2018, was 22,464 lb, or less than 50 percent of the 50,000 lb allocation, with little more than a month left in the season that ends on October 31, 2018.

    Therefore, in order to allow increased incidental halibut retention in the sablefish primary fishery, the Council recommended and NMFS is implementing revised incidental halibut retention regulations at § 660.231(b)(3)(iv) to increase the catch ratio to “200 lb dressed weight of halibut for every 1,000 lb dressed weight of sablefish landed and up to 2 additional halibut in excess of the 200 lb per 1,000 lb ratio per landing.” This modest increase in the allowed halibut retention ratio over the last few weeks of the fishery is unlikely to cause catch to exceed the incidental halibut allocation for the sablefish primary fishery north of Pt. Chehalis, WA, but will provide some additional benefit to fishery participants.

    Classification

    This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best available information, consistent with the PCGFMP and its implementing regulations.

    This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.

    The aggregate data upon which these actions are based are available for public inspection by contacting Karen Palmigiano in NMFS West Coast Region (see FOR FURTHER INFORMATION CONTACT, above), or view at the NMFS West Coast Groundfish website: http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish/index.html.

    NMFS finds good cause to waive prior public notice and comment on these adjustments to groundfish management measures under 5 U.S.C. 553(b) because notice and comment would be impracticable and contrary to the public interest. Each of the adjustments to commercial groundfish management measures in this rule would create more harvest opportunity and allow fishermen to better attain species that are currently under attained without causing any additional impacts on the fishery. Delaying the implementation of these adjustments would reduce or eliminate the benefits that they would provide to the industry. For example, the sablefish primary season ends on October 31, 2018; therefore, any delay in implementing the increased halibut retention limit would further limit the time available for fishery participants to benefit from these changes. Allowing for a public comment period would likely result in little if any time before the end of the season. Vessels fishing in the LEFG or OAFG fisheries for sablefish would ultimately only fish under the increased trip limits for 1.5 periods (October-December). Providing for a public comment period and issuing a final rule would likely delay implementation of the increased limits to the point where only minimal fishing opportunity remained due to the approaching end of the year and winter weather conditions. Delaying implementation further risks the at-sea sector reaching and/or exceeding their set-aside for darkblotched rockfish and POP further increasing fears about potential closures and the expenses associated with such closures. In summary, providing a comment period for this action would significantly limit the benefits to the fishery, and would hamper the achievement of optimum yield from the affected fisheries. For the same reasons, the NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective October 9, 2018. The adjustments to management measures in this document affect commercial fisheries in Washington, Oregon and California. These adjustments were requested by members of industry during the Council's September 7-11, 2018 meeting, and recommended unanimously by the Council. No aspect of this action is controversial, and changes of this nature were anticipated in the biennial harvest specifications and management measures established through a notice and comment rulemaking for 2017-18 (82 FR 9634). Therefore, NMFS finds good cause to waive prior notice and comment and to waive the delay in effectiveness.

    List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian Fisheries.

    Dated: October 3, 2018. Margo B. Schulze-Haugen, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:

    PART 660—FISHERIES OFF WEST COAST STATES 1. The authority citation for part 660 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

    2. Table 2a to part 660, subpart C, is revised to read as follows: Table 2a to Part 660, Subpart C—2018, and Beyond, Specifications of OFL, ABC, ACL, ACT and Fishery Harvest Guidelines [Weights in metric tons] Species Area OFL ABC ACL a Fishery HG b BOCACCIO c S of 40°10′ N lat. 2,013 1,924 741 726 COWCOD d S of 40°10′ N lat. 71 64 10 8 DARKBLOTCHED ROCKFISH e Coastwide 683 653 653 576 PACIFIC OCEAN PERCH f N of 40°10′ N lat. 984 941 281 232 YELLOWEYE ROCKFISH g Coastwide 58 48 20 14 Arrowtooth flounder h Coastwide 16,498 13,743 13,743 11,645 Big skate i Coastwide 541 494 494 437 Black rockfish j California (South of 42° N lat.) 347 332 332 331 Black rockfish k Oregon (Between 46°16′ N lat. and 42° N lat.) 570 520 520 519 Black rockfish l Washington (N of 46°16′ N lat.) 315 301 301 283 Blackgill rockfish m S of 40°10′ N lat. NA NA NA NA Cabezon n California (South of 42° N lat.) 156 149 149 149 Cabezon o Oregon (Between 46°16′ N lat. and 42° N lat.) 49 47 47 47 California scorpionfish p S of 34°27′ N lat. 278 254 150 148 Canary rockfish q Coastwide 1,596 1,526 1,526 1,467 Chilipepper r S of 40°10′ N lat. 2,623 2,507 2,507 2,461 Dover sole s Coastwide 90,282 86,310 50,000 48,406 English sole t Coastwide 8,255 7,537 7,537 7,324 Lingcod u N of 40°10′ N lat. 3,310 3,110 3,110 2,832 Lingcod v S of 40°10′ N lat. 1,373 1,144 1,144 1,135 Longnose skate w Coastwide 2,526 2,415 2,000 1,853 Longspine thornyhead x Coastwide 4,339 3,614 NA NA Longspine thornyhead N of 34°27′ N lat. NA NA 2,747 2,700 Longspine thornyhead S of 34°27′ N lat. NA NA 867 864 Pacific cod y Coastwide 3,200 2,221 1,600 1,091 Pacific whiting z Coastwide 725,984 z z 362,682 Petrale sole aa Coastwide 3,152 3,013 3,013 2,772 Sablefish Coastwide 8,329 7,604 NA NA Sablefish bb N of 36° N lat. NA NA 5,475 See Table 2c Sablefish cc S of 36° N lat. NA NA 1,944 1,939 Shortbelly rockfish dd Coastwide 6,950 5,789 500 489 Shortspine thornyhead ee Coastwide 3,116 2,596 NA NA Shortspine thornyhead N of 34°27′ N lat. NA NA 1,698 1,639 Shortspine thornyhead S of 34°27′ N lat. NA NA 898 856 Spiny dogfish ff Coastwide 2,500 2,083 2,083 1,745 Splitnose rockfish gg S of 40°10′ N lat. 1,842 1,761 1,761 1,750 Starry flounder hh Coastwide 1,847 1,282 1,282 1,272 Widow rockfish ii Coastwide 13,237 12,655 12,655 12,437 Yellowtail rockfish jj N of 40°10′ N lat. 6,574 6,002 6,002 4,972 Minor Nearshore Rockfish kk N of 40°10′ N lat. 119 105 105 103 Minor Shelf Rockfish ll N of 40°10′ N lat. 2,302 2,048 2,047 1,963 Minor Slope Rockfish mm N of 40°10′ N lat. 1,896 1,754 1,754 1,689 Minor Nearshore Rockfish nn S of 40°10′ N lat. 1,344 1,180 1,179 1,175 Minor Shelf Rockfish oo S of 40°10′ N lat. 1,918 1,625 1,624 1,577 Minor Slope Rockfish pp S of 40°10′ N lat. 829 719 709 689 Other Flatfish qq Coastwide 9,690 7,281 7,281 7,077 Other Fish rr Coastwide 501 441 441 441 a Annual catch limits (ACLs), annual catch targets (ACTs) and harvest guidelines (HGs) are specified as total catch values. b Fishery harvest guidelines means the harvest guideline or quota after subtracting Pacific Coast treaty Indian tribes allocations and projected catch, projected research catch, deductions for fishing mortality in non-groundfish fisheries, and deductions for EFPs from the ACL or ACT. c Bocaccio. A stock assessment was conducted in 2015 for the bocaccio stock between the U.S.-Mexico border and Cape Blanco. The stock is managed with stock-specific harvest specifications south of 40°10′ N lat. and within the Minor Shelf Rockfish complex north of 40°10′ N lat. A historical catch distribution of approximately 7.4 percent was used to apportion the assessed stock to the area north of 40°10′ N lat. The bocaccio stock was estimated to be at 36.8 percent of its unfished biomass in 2015. The OFL of 2,013 mt is projected in the 2015 stock assessment using an FMSY proxy of F50%. The ABC of 1,924 mt is a 4.4 percent reduction from the OFL (σ = 0.36/P* = 0.45) because it is a category 1 stock. The 741 mt ACL is based on the current rebuilding plan with a target year to rebuild of 2022 and an SPR harvest rate of 77.7 percent. 15.4 mt is deducted from the ACL to accommodate the incidental open access fishery (0.8 mt), EFP catch (10 mt) and research catch (4.6 mt), resulting in a fishery HG of 725.6 mt. The California recreational fishery has an HG of 305.5 mt. d Cowcod. A stock assessment for the Conception Area was conducted in 2013 and the stock was estimated to be at 33.9 percent of its unfished biomass in 2013. The Conception Area OFL of 59 mt is projected in the 2013 rebuilding analysis using an FMSY proxy of F50%. The OFL contribution of 12 mt for the unassessed portion of the stock in the Monterey area is based on depletion-based stock reduction analysis. The OFLs for the Monterey and Conception areas were summed to derive the south of 40°10′ N lat. OFL of 71 mt. The ABC for the area south of 40°10′ N lat. is 64 mt. The assessed portion of the stock in the Conception Area is considered category 2, with a Conception area contribution to the ABC of 54 mt, which is an 8.7 percent reduction from the Conception area OFL (σ = 0.72/P* = 0.45). The unassessed portion of the stock in the Monterey area is considered a category 3 stock, with a contribution to the ABC of 10 mt, which is a 16.6 percent reduction from the Monterey area OFL (σ = 1.44/P* = 0.45). A single ACL of 10 mt is being set for both areas combined. The ACL of 10 mt is based on the rebuilding plan with a target year to rebuild of 2020 and an SPR harvest rate of 82.7 percent, which is equivalent to an exploitation rate (catch over age 11+ biomass) of 0.007. 2 mt is deducted from the ACL to accommodate the incidental open access fishery (less than 0.1 mt), EFP fishing (less than 0.1 mt) and research activity (2 mt), resulting in a fishery HG of 8 mt. Any additional mortality in research activities will be deducted from the ACL. A single ACT of 4 mt is being set for both areas combined. e Darkblotched rockfish. A 2015 stock assessment estimated the stock to be at 39 percent of its unfished biomass in 2015. The OFL of 683 mt is projected in the 2015 stock assessment using an FMSY proxy of F50%. The ABC of 653 mt is a 4.4 percent reduction from the OFL (σ = 0.36/P* = 0.45) because it is a category 1 stock. The ACL is set equal to the ABC, as the stock is projected to be above its target biomass of B40% in 2017. 77.3 mt is deducted from the ACL to accommodate the Tribal fishery (0.2 mt), the incidental open access fishery (24.5 mt), EFP catch (0.1 mt), research catch (2.5 mt) and an additional deduction for unforeseen catch events (50 mt), resulting in a fishery HG of 575.8 mt. On October 9, 2018 17.7 mt were redistributed from the incidental open access fishery to the deduction for unforeseen catch events. This redistribution results in an incidental open access amount of 6.8 mt and a deduction for unforeseen catch events of 67.7 mt. f Pacific ocean perch. A stock assessment was conducted in 2011 and the stock was estimated to be at 19.1 percent of its unfished biomass in 2011. The OFL of 984 mt for the area north of 40°10′ N lat. is based on an updated catch-only projection of the 2011 rebuilding analysis using an F50% FMSY proxy. The ABC of 941 mt is a 4.4 percent reduction from the OFL (σ = 0.36/P* = 0.45) as it is a category 1 stock. The ACL is based on the current rebuilding plan with a target year to rebuild of 2051 and a constant catch amount of 281 mt in 2017 and 2018, followed in 2019 and beyond by ACLs based on an SPR harvest rate of 86.4 percent. 49.4 mt is deducted from the ACL to accommodate the Tribal fishery (9.2 mt), the incidental open access fishery (10 mt), research catch (5.2 mt) and an additional deduction for unforeseen catch events (25 mt), resulting in a fishery HG of 231.6 mt. On October 9, 2018 9.7 mt were redistributed from the incidental open access fishery to the deduction for unforeseen catch events. This redistribution results in an incidental open access amount of 0.3 mt and a deduction for unforeseen catch events of 34.7 mt. g Yelloweye rockfish. A stock assessment update was conducted in 2011. The stock was estimated to be at 21.4 percent of its unfished biomass in 2011. The 58 mt coastwide OFL is based on a catch-only update of the 2011 stock assessment, assuming actual catches since 2011 and using an FMSY proxy of F50%. The ABC of 48 mt is a 16.7 percent reduction from the OFL (σ = 0.72/P* = 0.40) as it is a category 2 stock. The 20 mt ACL is based on the current rebuilding plan with a target year to rebuild of 2074 and an SPR harvest rate of 76.0 percent. 6 mt is deducted from the ACL to accommodate the Tribal fishery (2.3 mt), the incidental open access fishery (0.4 mt), EFP catch (less than 0.1 mt) and research catch (3.27 mt) resulting in a fishery HG of 14 mt. Recreational HGs are: 3.3 mt (Washington); 3 mt (Oregon); and 3.9 mt (California). h Arrowtooth flounder. The arrowtooth flounder stock was last assessed in 2007 and was estimated to be at 79 percent of its unfished biomass in 2007. The OFL of 16,498 mt is derived from a catch-only update of the 2007 assessment assuming actual catches since 2007 and using an F30% FMSY proxy. The ABC of 13,743 mt is a 16.7 percent reduction from the OFL (σ = 0.72/P* = 0.40) as it is a category 2 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B25%. 2,098.1 mt is deducted from the ACL to accommodate the Tribal fishery (2,041 mt), the incidental open access fishery (40.8 mt), and research catch (16.4 mt), resulting in a fishery HG of 11,644.9 mt. i Big skate. The OFL of 541 mt is based on an estimate of trawl survey biomass and natural mortality. The ABC of 494 mt is a 8.7 percent reduction from the OFL (σ = 0.72/P* = 0.45) as it is a category 2 stock. The ACL is set equal to the ABC. 57.4 mt is deducted from the ACL to accommodate the Tribal fishery (15 mt), the incidental open access fishery (38.4 mt), and research catch (4 mt), resulting in a fishery HG of 436.6 mt. j Black rockfish (California). A 2015 stock assessment estimated the stock to be at 33 percent of its unfished biomass in 2015. The OFL of 347 mt is projected in the 2015 stock assessment using an FMSY proxy of F50%. The ABC of 332 mt is a 4.4 percent reduction from the OFL (σ = 0.36/P* = 0.45) because it is a category 1 stock. The ACL is set equal to the ABC because the stock is projected to be above its target biomass of B40% in 2018. 1 mt is deducted from the ACL for EFP catch, resulting in a fishery HG of 331 mt. k Black rockfish (Oregon). A 2015 stock assessment estimated the stock to be at 60 percent of its unfished biomass in 2015. The OFL of 570 mt is projected in the 2015 stock assessment using an FMSY proxy of F50%. The ABC of 520 mt is an 8.7 percent reduction from the OFL (σ = 0.72/P* = 0.45) because it is a category 2 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 0.6 mt is deducted from the ACL to accommodate the incidental open access fishery, resulting in a fishery HG of 519.4 mt. l Black rockfish (Washington). A 2015 stock assessment estimated the stock to be at 43 percent of its unfished biomass in 2015. The OFL of 315 mt is projected in the 2015 stock assessment using an FMSY proxy of F50%. The ABC of 301 mt is a 4.4 percent reduction from the OFL (σ = 0.36/P* = 0.45) because it is a category 1 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 18 mt is deducted from the ACL to accommodate the Tribal fishery, resulting in a fishery HG of 283 mt. m Blackgill rockfish. Blackgill rockfish contributes to the harvest specifications for the Minor Slope Rockfish South complex. See footnote pp. n Cabezon (California). A cabezon stock assessment was conducted in 2009. The cabezon spawning biomass in waters off California was estimated to be at 48.3 percent of its unfished biomass in 2009. The OFL of 156 mt is calculated using an FMSY proxy of F50%. The ABC of 149 mt is based on a 4.4 percent reduction from the OFL (σ = 0.36/P* = 0.45) because it is a category 1 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 0.3 mt is deducted from the ACL to accommodate the incidental open access fishery (0.3 mt), resulting in a fishery HG of 148.7 mt. o Cabezon (Oregon). A cabezon stock assessment was conducted in 2009. The cabezon spawning biomass in waters off Oregon was estimated to be at 52 percent of its unfished biomass in 2009. The OFL of 49 mt is calculated using an FMSY proxy of F45%. The ABC of 47 mt is based on a 4.4 percent reduction from the OFL (σ = 0.36/P* = 0.45) because it is a category 1 species. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. There are no deductions from the ACL so the fishery HG is also equal to the ACL of 47 mt. p California scorpionfish. A California scorpionfish assessment was conducted in 2005 and was estimated to be at 79.8 percent of its unfished biomass in 2005. The OFL of 278 mt is based on projections from a catch-only update of the 2005 assessment assuming actual catches since 2005 and using an FMSY harvest rate proxy of F50%. The ABC of 254 mt is an 8.7 percent reduction from the OFL (σ = 0.72/P* = 0.45) because it is a category 2 stock. The ACL is set at a constant catch amount of 150 mt. 2.2 mt is deducted from the ACL to accommodate the incidental open access fishery (2 mt) and research catch (0.2 mt), resulting in a fishery HG of 147.8 mt. An ACT of 111 mt is established. q Canary rockfish. A stock assessment was conducted in 2015 and the stock was estimated to be at 55.5 percent of its unfished biomass coastwide in 2015. The coastwide OFL of 1,596 mt is projected in the 2015 assessment using an FMSY harvest rate proxy of F50%. The ABC of 1,526 mt is a 4.4 percent reduction from the OFL (σ = 0.36/P* = 0.45) as it is a category 1 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 59.4 mt is deducted from the ACL to accommodate the Tribal fishery (50 mt), the incidental open access fishery (1.2 mt), EFP catch (1 mt) and research catch (7.2 mt) resulting in a fishery HG of 1,466.6 mt. Recreational HGs are: 50 mt (Washington); 75 mt (Oregon); and 135 mt (California). r Chilipepper. A coastwide update assessment of the chilipepper stock was conducted in 2015 and estimated to be at 64 percent of its unfished biomass in 2015. Chilipepper are managed with stock-specific harvest specifications south of 40°10′N lat. and within the Minor Shelf Rockfish complex north of 40°10′ N lat. Projected OFLs are stratified north and south of 40°10′ N lat. based on the average historical assessed area catch, which is 93 percent for the area south of 40°10′ N lat. and 7 percent for the area north of 40°10′ N lat. The OFL of 2,623 mt for the area south of 40°10′ N lat. is projected in the 2015 assessment using an FMSY proxy of F50%. The ABC of 2,507 mt is a 4.4 percent reduction from the OFL (σ = 0.36/P* = 0.45) because it is a category 1 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 45.9 mt is deducted from the ACL to accommodate the incidental open access fishery (5 mt), EFP fishing (30 mt), and research catch (10.9 mt), resulting in a fishery HG of 2,461.1 mt. s Dover sole. A 2011 Dover sole assessment estimated the stock to be at 83.7 percent of its unfished biomass in 2011. The OFL of 90,282 mt is based on an updated catch-only projection from the 2011 stock assessment assuming actual catches since 2011 and using an FMSY proxy of F30%. The ABC of 86,310 mt is a 4.4 percent reduction from the OFL (σ = 0.36/P* = 0.45) because it is a category 1 stock. The ACL could be set equal to the ABC because the stock is above its target biomass of B25%. However, the ACL of 50,000 mt is set at a level below the ABC and higher than the maximum historical landed catch. 1,593.7 mt is deducted from the ACL to accommodate the Tribal fishery (1,497 mt), the incidental open access fishery (54.8 mt), and research catch (41.9 mt), resulting in a fishery HG of 48,406.3 mt. t English sole. A 2013 stock assessment was conducted, which estimated the stock to be at 88 percent of its unfished biomass in 2013. The OFL of 8,255 mt is projected in the 2013 assessment using an FMSY proxy of F30%. The ABC of 7,537 mt is an 8.7 percent reduction from the OFL (σ = 0.72/P* = 0.45) because it is a category 2 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B25%. 212.8 mt is deducted from the ACL to accommodate the Tribal fishery (200 mt), the incidental open access fishery (7 mt) and research catch (5.8 mt), resulting in a fishery HG of 7,324.2 mt. u Lingcod north. The 2009 lingcod assessment modeled two populations north and south of the California-Oregon border (42° N lat.). Both populations were healthy with stock depletion estimated at 62 and 74 percent for the north and south, respectively in 2009.The OFL is based on an updated catch-only projection from the 2009 assessment assuming actual catches since 2009 and using an FMSY proxy of F45%. The OFL is apportioned by adding 48 percent of the OFL from California, resulting in an OFL of 3,310 mt for the area north of 40°10′ N lat. The ABC of 3,110 mt is based on a 4.4 percent reduction (σ = 0.36/P* = 0.45) from the OFL contribution for the area north of 42° N lat. because it is a category 1 stock, and an 8.7 percent reduction (σ = 0.72/P* = 0.45) from the OFL contribution for the area between 42° N lat. and 40°10′ N lat. because it is a category 2 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 278.2 mt is deducted from the ACL for the Tribal fishery (250 mt), the incidental open access fishery (16 mt), EFP catch (0.5 mt) and research catch (11.7 mt), resulting in a fishery HG of 2,831.8 mt. v Lingcod south. The 2009 lingcod assessment modeled two populations north and south of the California-Oregon border (42° N lat.). Both populations were healthy with stock depletion estimated at 62 and 74 percent for the north and south, respectively in 2009. The OFL is based on an updated catch-only projection of the 2009 stock assessment assuming actual catches since 2009 and using an FMSY proxy of F45%. The OFL is apportioned by subtracting 48 percent of the California OFL, resulting in an OFL of 1,373 mt for the area south of 40°10′ N lat. The ABC of 1,144 mt is based on a 16.7 percent reduction from the OFL (σ = 0.72/P* = 0.40) because it is a category 2 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 9 mt is deducted from the ACL to accommodate the incidental open access fishery (6.9 mt), EFP fishing (1 mt), and research catch (1.1 mt), resulting in a fishery HG of 1,135 mt. w Longnose skate. A stock assessment was conducted in 2007 and the stock was estimated to be at 66 percent of its unfished biomass. The OFL of 2,526 mt is derived from the 2007 stock assessment using an FMSY proxy of F50%. The ABC of 2,415 mt is a 4.4 percent reduction from the OFL (σ = 0.36/P* = 0.45) because it is a category 1 stock. The ACL of 2,000 mt is a fixed harvest level that provides greater access to the stock and is less than the ABC. 147 mt is deducted from the ACL to accommodate the Tribal fishery (130 mt), incidental open access fishery (3.8 mt), and research catch (13.2 mt), resulting in a fishery HG of 1,853 mt. x Longspine thornyhead. A 2013 longspine thornyhead coastwide stock assessment estimated the stock to be at 75 percent of its unfished biomass in 2013. A coastwide OFL of 4,339 mt is projected in the 2013 stock assessment using an F50% FMSY proxy. The coastwide ABC of 3,614 mt is a 16.7 percent reduction from the OFL (σ = 0.72/P* = 0.40) because it is a category 2 stock. For the portion of the stock that is north of 34°27′ N lat., the ACL is 2,747 mt, and is 76 percent of the coastwide ABC based on the average swept-area biomass estimates (2003-2012) from the NMFS NWFSC trawl survey. 46.8 mt is deducted from the ACL to accommodate the Tribal fishery (30 mt), the incidental open access fishery (3.3 mt), and research catch (13.5 mt), resulting in a fishery HG of 2,700.2 mt. For that portion of the stock south of 34°27′ N lat. the ACL is 867 mt and is 24 percent of the coastwide ABC based on the average swept-area biomass estimates (2003-2012) from the NMFS NWFSC trawl survey. 3.2 mt is deducted from the ACL to accommodate the incidental open access fishery (1.8 mt), and research catch (1.4 mt), resulting in a fishery HG of 863.8 mt. y Pacific cod. The 3,200 mt OFL is based on the maximum level of historic landings. The ABC of 2,221 mt is a 30.6 percent reduction from the OFL (σ = 1.44/P* = 0.40) as it is a category 3 stock. The 1,600 mt ACL is the OFL reduced by 50 percent as a precautionary adjustment. 509 mt is deducted from the ACL to accommodate the Tribal fishery (500 mt), research catch (7 mt), and the incidental open access fishery (2 mt), resulting in a fishery HG of 1,091 mt. z Pacific whiting. The coastwide stock assessment was published in 2018 and estimated the spawning stock to be at 66.7 percent of its unfished biomass. The 2018 OFL of 725,984 mt is based on the 2018 assessment with an F40% FMSY proxy. The 2018 coastwide, unadjusted Total Allowable Catch (TAC) of 517,775 mt is based on the 2018 stock assessment. The U.S. TAC is 73.88 percent of the coastwide unadjusted TAC. Up to 15 percent of each party's unadjusted 2017 TAC (58,901 mt for the U.S. and 20,824 mt for Canada) is added to each party's 2018 unadjusted TAC, resulting in a U.S. adjusted 2018 TAC of 441,433 mt. From the adjusted U.S. TAC, 77,251 mt is deducted to accommodate the Tribal fishery, and 1,500 mt is deducted to accommodate research and bycatch in other fisheries, resulting in a fishery HG of 362,682 mt. The TAC for Pacific whiting is established under the provisions of the Agreement with Canada on Pacific Hake/Whiting and the Pacific Whiting Act of 2006, 16 U.S.C. 7001-7010, and the international exception applies. Therefore, no ABC or ACL values are provided for Pacific whiting. aa Petrale sole. A 2015 stock assessment update was conducted, which estimated the stock to be at 31 percent of its unfished biomass in 2015. The OFL of 3,152 mt is projected in the 2015 assessment using an FMSY proxy of F30%. The ABC of 3,013 mt is a 4.4 percent reduction from the OFL (σ = 0.36/P* = 0.45) because it is a category 1 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B25%. 240.9 mt is deducted from the ACL to accommodate the Tribal fishery (220 mt), the incidental open access fishery (3.2 mt) and research catch (17.7 mt), resulting in a fishery HG of 2,772.1 mt. bb Sablefish north. A coastwide sablefish stock assessment update was conducted in 2015. The coastwide sablefish biomass was estimated to be at 33 percent of its unfished biomass in 2015. The coastwide OFL of 8,329 mt is projected in the 2015 stock assessment using an FMSY proxy of F45%. The ABC of 7,604 mt is an 8.7 percent reduction from the OFL (σ = 0.36/P* = 0.40). The 40-10 adjustment is applied to the ABC to derive a coastwide ACL value because the stock is in the precautionary zone. This coastwide ACL value is not specified in regulations. The coastwide ACL value is apportioned north and south of 36° N lat., using the 2003-2014 average estimated swept area biomass from the NMFS NWFSC trawl survey, with 73.8 percent apportioned north of 36° N lat. and 26.2 percent apportioned south of 36° N lat. The northern ACL is 5,475 mt and is reduced by 548 mt for the Tribal allocation (10 percent of the ACL north of 36° N lat.). The 548 mt Tribal allocation is reduced by 1.5 percent to account for discard mortality. Detailed sablefish allocations are shown in Table 2c. cc Sablefish south. The ACL for the area south of 36° N lat. is 1,944 mt (26.2 percent of the calculated coastwide ACL value). 5 mt is deducted from the ACL to accommodate the incidental open acrdedseescess fishery (2 mt) and research catch (3 mt), resulting in a fishery HG of 1,939 mt. dd Shortbelly rockfish. A non-quantitative shortbelly rockfish assessment was conducted in 2007. The spawning stock biomass of shortbelly rockfish was estimated to be 67 percent of its unfished biomass in 2005. The OFL of 6,950 mt is based on the estimated MSY in the 2007 stock assessment. The ABC of 5,789 mt is a 16.7 percent reduction of the OFL (σ = 0.72/P* = 0.40) because it is a category 2 stock. The 500 mt ACL is set to accommodate incidental catch when fishing for co-occurring healthy stocks and in recognition of the stock's importance as a forage species in the California Current ecosystem. 10.9 mt is deducted from the ACL to accommodate the incidental open access fishery (8.9 mt) and research catch (2 mt), resulting in a fishery HG of 489.1 mt. ee Shortspine thornyhead. A 2013 coastwide shortspine thornyhead stock assessment estimated the stock to be at 74.2 percent of its unfished biomass in 2013. A coastwide OFL of 3,116 mt is projected in the 2013 stock assessment using an F50% FMSY proxy. The coastwide ABC of 2,596 mt is a 16.7 percent reduction from the OFL (σ = 0.72/P* = 0.40) because it is a category 2 stock. For the portion of the stock that is north of 34°27′ N lat., the ACL is 1,698 mt. The northern ACL is 65.4 percent of the coastwide ABC based on the average swept-area biomass estimates (2003-2012) from the NMFS NWFSC trawl survey. 59 mt is deducted from the ACL to accommodate the Tribal fishery (50 mt), the incidental open access fishery (1.8 mt), and research catch (7.2 mt), resulting in a fishery HG of 1,639 mt for the area north of 34°27′ N lat. For that portion of the stock south of 34°27′ N lat. the ACL is 898 mt. The southern ACL is 34.6 percent of the coastwide ABC based on the average swept-area biomass estimates (2003-2012) from the NMFS NWFSC trawl survey. 42.3 mt is deducted from the ACL to accommodate the incidental open access fishery (41.3 mt) and research catch (1 mt), resulting in a fishery HG of 855.7 mt for the area south of 34°27′ N lat. ff Spiny dogfish. A coastwide spiny dogfish stock assessment was conducted in 2011. The coastwide spiny dogfish biomass was estimated to be at 63 percent of its unfished biomass in 2011. The coastwide OFL of 2,500 mt is derived from the 2011 assessment using an FMSY proxy of F50%. The coastwide ABC of 2,083 mt is a 16.7 percent reduction from the OFL (σ = 0.72/P* = 0.40) because it is a category 2 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 338 mt is deducted from the ACL to accommodate the Tribal fishery (275 mt), the incidental open access fishery (49.5 mt), EFP catch (1 mt), and research catch (12.5 mt), resulting in a fishery HG of 1,745 mt. gg Splitnose rockfish. A coastwide splitnose rockfish assessment was conducted in 2009 that estimated the stock to be at 66 percent of its unfished biomass in 2009. Splitnose rockfish in the north is managed in the Minor Slope Rockfish complex and with stock-specific harvest specifications south of 40°10′ N lat. The coastwide OFL is projected in the 2009 assessment using an FMSY proxy of F50%. The coastwide OFL is apportioned north and south of 40°10′ N lat. based on the average 1916-2008 assessed area catch resulting in 64.2 percent of the coastwide OFL apportioned south of 40°10′ N lat., and 35.8 percent apportioned for the contribution of splitnose rockfish to the northern Minor Slope Rockfish complex. The southern OFL of 1,842 mt results from the apportionment described above. The southern ABC of 1,761 mt is a 4.4 percent reduction from the southern OFL (σ = 0.36/P* = 0.45) because it is a category 1 stock. The ACL is set equal to the ABC because the stock is estimated to be above its target biomass of B40%. 10.7 mt is deducted from the ACL to accommodate the incidental open access fishery (0.2 mt), research catch (9 mt) and EFP catch (1.5 mt), resulting in a fishery HG of 1,750.3 mt. hh Starry flounder. The stock was assessed in 2005 and was estimated to be above 40 percent of its unfished biomass in 2005 (44 percent in Washington and Oregon, and 62 percent in California). The coastwide OFL of 1,847 mt is set equal to the 2016 OFL, which was derived from the 2005 assessment using an FMSY proxy of F30%. The ABC of 1,282 mt is a 30.6 percent reduction from the OFL (σ = 1.44/P* = 0.40) because it is a category 3 stock. The ACL is set equal to the ABC because the stock was estimated to be above its target biomass of B25% in 2018. 10.3 mt is deducted from the ACL to accommodate the Tribal fishery (2 mt), and the incidental open access fishery (8.3 mt), resulting in a fishery HG of 1,271.7 mt. ii Widow rockfish. The widow rockfish stock was assessed in 2015 and was estimated to be at 75 percent of its unfished biomass in 2015. The OFL of 13,237 mt is projected in the 2015 stock assessment using the F50% FMSY proxy. The ABC of 12,655 mt is a 4.4 percent reduction from the OFL (σ = 0.36/P* = 0.45) because it is a category 1 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 217.7 mt is deducted from the ACL to accommodate the Tribal fishery (200 mt), the incidental open access fishery (0.5 mt), EFP catch (9 mt) and research catch (8.2 mt), resulting in a fishery HG of 12,437.3 mt. jj Yellowtail rockfish. A 2013 yellowtail rockfish stock assessment was conducted for the portion of the population north of 40°10′ N. lat. The estimated stock depletion is 67 percent of its unfished biomass in 2013. The OFL of 6,574 mt is projected in the 2013 stock assessment using an FMSY proxy of F50%. The ABC of 6,002 mt is an 8.7 percent reduction from the OFL (σ = 0.72/P*= 0.45) because it is a category 2 stock. The ACL is set equal to the ABC because the stock is above its target biomass of B40%. 1,030 mt is deducted from the ACL to accommodate the Tribal fishery (1,000 mt), the incidental open access fishery (3.4 mt), EFP catch (10 mt) and research catch (16.6 mt), resulting in a fishery HG of 4,972.1 mt. kk Minor Nearshore Rockfish north. The OFL for Minor Nearshore Rockfish north of 40°10′ N lat. of 119 mt is the sum of the OFL contributions for the component species managed in the complex. The ABCs for the minor rockfish complexes are based on a sigma value of 0.72 for category 2 stocks (blue/deacon rockfish in California, brown rockfish, China rockfish, and copper rockfish) and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.45. The resulting ABC of 105 mt is the summed contribution of the ABCs for the component species. The ACL of 105 mt is the sum of contributing ABCs. 1.8 mt is deducted from the ACL to accommodate the Tribal fishery (1.5 mt), and the incidental open access fishery (0.3 mt), resulting in a fishery HG of 103.2 mt. Between 40°10′ N lat. and 42° N lat. the Minor Nearshore Rockfish complex north has a harvest guideline of 40.2 mt. Blue/deacon rockfish south of 42° N lat. has a species-specific HG, described in footnote pp. ll Minor Shelf Rockfish north. The OFL for Minor Shelf Rockfish north of 40°10′ N lat. of 2,302 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the minor rockfish complexes are based on a sigma value of 0.36 for a category 1 stock (chilipepper), a sigma value of 0.72 for category 2 stocks (greenspotted rockfish between 40°10′ and 42° N lat. and greenstriped rockfish) and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.45. The resulting ABC of 2,048 mt is the summed contribution of the ABCs for the component species. The ACL of 2,047 mt is the sum of contributing ABCs of healthy assessed stocks and unassessed stocks, plus the ACL contribution of greenspotted rockfish in California where the 40-10 adjustment was applied to the ABC contribution for this stock because it is in the precautionary zone. 83.8 mt is deducted from the ACL to accommodate the Tribal fishery (30 mt), the incidental open access fishery (26 mt), EFP catch (3 mt), and research catch (24.8 mt), resulting in a fishery HG of 1,963.2 mt. mm Minor Slope Rockfish north. The OFL for Minor Slope Rockfish north of 40°10′ N. lat. of 1,896 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the Minor Slope Rockfish complexes are based on a sigma value of 0.39 for aurora rockfish, a sigma value of 0.36 for the other category 1 stock (splitnose rockfish), a sigma value of 0.72 for category 2 stocks (rougheye rockfish, blackspotted rockfish, and sharpchin rockfish), and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.45. A unique sigma of 0.39 was calculated for aurora rockfish because the variance in estimated spawning biomass was greater than the 0.36 used as a proxy for other category 1 stocks. The resulting ABC of 1,754 mt is the summed contribution of the ABCs for the component species. The ACL is set equal to the ABC because all the assessed component stocks (rougheye rockfish, blackspotted rockfish, sharpchin rockfish, and splitnose rockfish) are above the target biomass of B40%. 65.1 mt is deducted from the ACL to accommodate the Tribal fishery (36 mt), the incidental open access fishery (18.6 mt), EFP catch (1 mt), and research catch (9.5 mt), resulting in a fishery HG of 1,688.9 mt. nn Minor Nearshore Rockfish south. The OFL for the Minor Nearshore Rockfish complex south of 40°10′ N lat. of 1,344 mt is the sum of the OFL contributions for the component species within the complex. The ABC for the southern Minor Nearshore Rockfish complex is based on a sigma value of 0.72 for category 2 stocks (blue/deacon rockfish north of 34°27′ N lat., brown rockfish, China rockfish, and copper rockfish) and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.45. The resulting ABC of 1,180 mt is the summed contribution of the ABCs for the component species. The ACL of 1,179 mt is the sum of the contributing ABCs of healthy assessed stocks and unassessed stocks, plus the ACL contribution for China rockfish where the 40-10 adjustment was applied to the ABC contribution for this stock because it is in the precautionary zone. 4.1 mt is deducted from the ACL to accommodate the incidental open access fishery (1.4 mt) and research catch (2.7 mt), resulting in a fishery HG of 1,174.9 mt. Blue/deacon rockfish south of 42° N lat. has a species-specific HG set equal to the 40-10-adjusted ACL for the portion of the stock north of 34°27′ N lat. (250.3 mt) plus the ABC contribution for the unassessed portion of the stock south of 34°27′ N lat. (60.8 mt). The California (i.e., south of 42° N lat.) blue/deacon rockfish HG is 311.1 mt. oo Minor Shelf Rockfish south. The OFL for the Minor Shelf Rockfish complex south of 40°10′ N lat. of 1,918 mt is the sum of the OFL contributions for the component species within the complex. The ABC for the southern Minor Shelf Rockfish complex is based on a sigma value of 0.72 for category 2 stocks (i.e., greenspotted and greenstriped rockfish) and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.45. The resulting ABC of 1,625 mt is the summed contribution of the ABCs for the component species. The ACL of 1,624 mt is the sum of contributing ABCs of healthy assessed stocks and unassessed stocks, plus the ACL contribution of greenspotted rockfish in California where the 40-10 adjustment was applied to the ABC contribution for this stock because it is in the precautionary zone. 47.2 mt is deducted from the ACL to accommodate the incidental open access fishery (8.6 mt), EFP catch (30 mt), and research catch (8.6 mt), resulting in a fishery HG of 1,576.8 mt. pp Minor Slope Rockfish south. The OFL of 829 mt is the sum of the OFL contributions for the component species within the complex. The ABC for the southern Minor Slope Rockfish complex is based on a sigma value of 0.39 for aurora rockfish, a sigma value of 0.72 for category 2 stocks (blackgill rockfish, rougheye rockfish, blackspotted rockfish, and sharpchin rockfish) and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.45. A unique sigma of 0.39 was calculated for aurora rockfish because the variance in estimated biomass was greater than the 0.36 used as a proxy for other category 1 stocks. The resulting ABC of 719 mt is the summed contribution of the ABCs for the component species. The ACL of 709 mt is the sum of the contributing ABCs of healthy assessed stocks and unassessed stocks, plus the ACL contribution of blackgill rockfish where the 40-10 adjustment was applied to the ABC contribution for this stock because it is in the precautionary zone. 20.2 mt is deducted from the ACL to accommodate the incidental open access fishery (17.2 mt), EFP catch (1 mt), and research catch (2 mt), resulting in a fishery HG of 688.8 mt. Blackgill rockfish has a stock-specific HG for the entire groundfish fishery south of 40°10′ N lat. set equal to the species' contribution to the 40-10-adjusted ACL. Harvest of blackgill rockfish in all groundfish fisheries counts against this HG of 122.4 mt. Nontrawl fisheries are subject to a blackgill rockfish HG of 45.3 mt. qq Other Flatfish. The Other Flatfish complex is comprised of flatfish species managed in the PCGFMP that are not managed with species-specific OFLs/ABCs/ACLs. Most of the species in the Other Flatfish complex are unassessed and include: Butter sole, curlfin sole, flathead sole, Pacific sanddab, rock sole, sand sole, and rex sole. The Other Flatfish OFL of 9,690 mt is based on the sum of the OFL contributions of the component stocks. The ABC of 7,281 mt is based on a sigma value of 0.72 for a category 2 stock (rex sole) and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.40. The ACL is set equal to the ABC. The ACL is set equal to the ABC because all of the assessed stocks (i.e., Pacific sanddabs and rex sole) were above their target biomass of B25%. 204 mt is deducted from the ACL to accommodate the Tribal fishery (60 mt), the incidental open access fishery 125 mt), and research catch (19 mt), resulting in a fishery HG of 7,077 mt. rr Other Fish. The Other Fish complex is comprised of kelp greenling coastwide, cabezon off Washington, and leopard shark coastwide. The 2015 assessment for the kelp greenling stock off of Oregon projected an estimated depletion of 80 percent. All other stocks are unassessed. The OFL of 501 mt is the sum of the OFL contributions for kelp greenling coastwide, cabezon off Washington, and leopard shark coastwide. The ABC for the Other Fish complex is based on a sigma value of 0.44 for kelp greenling off Oregon and a sigma value of 1.44 for category 3 stocks (all others) with a P* of 0.45. A unique sigma of 0.44 was calculated for kelp greenling off Oregon because the variance in estimated spawning biomass was greater than the 0.36 sigma used as a proxy for other category 1 stocks. The resulting ABC of 441 mt is the summed contribution of the ABCs for the component species. The ACL is set equal to the ABC because all of the assessed stocks (kelp greenling off Oregon) were above their target biomass of B40%. There are no deductions from the ACL so the fishery HG is equal to the ACL of 441 mt. 3. In § 660.231, revise paragraph (b)(3)(iv) to read as follows:
    § 660.231 Limited entry fixed gear sablefish primary fishery.

    (b) * * *

    (3) * * *

    (iv) Incidental Pacific halibut retention north of Pt. Chehalis, WA (46°53.30′ N lat.). From April 1 through October 31, vessels authorized to participate in the sablefish primary fishery, licensed by the International Pacific Halibut Commission for commercial fishing in Area 2A (waters off Washington, Oregon, California), and fishing with longline gear north of Pt. Chehalis, WA (46°53.30′ N lat.) may possess and land up to the following cumulative limits: 200 pounds (91 kg) dressed weight of Pacific halibut for every 1,000 pounds (454 kg) dressed weight of sablefish landed and up to 2 additional Pacific halibut in excess of the 200-pounds-per-1,000-pound ratio per landing. “Dressed” Pacific halibut in this area means halibut landed eviscerated with their heads on. Pacific halibut taken and retained in the sablefish primary fishery north of Pt. Chehalis may only be landed north of Pt. Chehalis and may not be possessed or landed south of Pt. Chehalis.

    4. Tables 2 (North) and (South) to part 660, subpart E are revised to read as follows: ER09OC18.005 ER09OC18.006 ER09OC18.007 ER09OC18.008 5. Table 3 (North) and Table 3 (South) to part 660, subpart F are revised to read as follows: ER09OC18.009 ER09OC18.010 ER09OC18.011 ER09OC18.012
    [FR Doc. 2018-21879 Filed 10-5-18; 8:45 am] BILLING CODE 3510-22-P
    83 195 Tuesday, October 9, 2018 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Parts 56, 62, and 70 [Docket No. AMS-LPS-15-0057] Amendments to Quality Systems Verification Programs and Conforming Changes; Withdrawal AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Notice of withdrawal.

    SUMMARY:

    This action informs the public that the Agricultural Marketing Service (AMS) is withdrawing a proposed rule published in the Federal Register on November 7, 2016, that proposed to amend Quality Systems Verification Program (QSVP) regulations. Upon further review, the agency has decided to clarify that all voluntary, user-fee services under this part are applicable to all commodities covered by the Agricultural Marketing Act of 1946 (Act), as amended. Accordingly, a proposed rule covering all audit-based services is forthcoming from the agency.

    DATES:

    The proposed rule published November 7, 2016, at 81 FR 78057, is withdrawn as of October 9, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Jeffrey Waite, Branch Chief, Auditing Services Branch, Quality Assessment Division; Livestock and Poultry Program, Agricultural Marketing Service, U.S. Department of Agriculture; Room 3932-S, STOP 0258, 1400 Independence Avenue SW, Washington, DC 20250-0258; telephone (202) 720-4411; or email to [email protected]

    SUPPLEMENTARY INFORMATION:

    The Act directs and authorizes the Secretary of Agriculture to facilitate the competitive and efficient marketing of agricultural products and provides that rulemaking be undertaken as necessary to effectuate its purpose. Under the authority of the Act, AMS programs support a strategic marketing perspective that adapts product and marketing decisions to consumer demands, changing domestic and international marketing practices, and new technology. To assist in marketing, AMS developed the QSVP, a suite of audit-based programs that can provide confidence that process points meet specified requirements.

    This action informs the public of the withdrawal of the proposed rule published in the Federal Register (81 FR 78057) on November 7, 2016. The proposed rule would have amended 7 CFR part 62, QSVP to expand the commodities under QSVP to include those authorized under the Act; would have amended the title of the regulation to remove the reference to “Livestock, Meat, and Other Commodities”; would have defined the types of programs and services offered under QSVP; and would have updated administrative items to reflect current terminology and organizational structure. Additionally, the proposed rule would have amended 7 CFR parts 56 and 70, which provide for services to the shell egg and poultry industries, respectively, to remove any references to audit and verification activities and update administrative items to reflect current organizational structure. The proposed rule provided a 60-day public comment period during which no comments were received.

    Upon further review, AMS decided to clarify that all voluntary, user-fee services under 7 CFR part 62 are applicable to all commodities covered by the Act. AMS also plans to harmonize administrative procedures governing these services. A new proposed rule to amend 7 CFR part 62 to that effect is forthcoming from the agency. Therefore, for the reasons set forth above, AMS announces that it is withdrawing the proposed rule published in the Federal Register (81 FR 78057) on November 7, 2016.

    Dated: October 3, 2018. Bruce Summers, Administrator, Agricultural Marketing Service.
    [FR Doc. 2018-21843 Filed 10-5-18; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 985 [Doc. No. AMS-SC-17-0073; SC18-985-1A PR] Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West; Revision of the Salable Quantity and Allotment Percentage for Class 3 (Native) Spearmint Oil for the 2018-2019 Marketing Year AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule would implement a recommendation from the Far West Spearmint Oil Administrative Committee (Committee) to increase the quantity of Class 3 (Native) spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2018-2019 marketing year. The Committee recommended this action to avoid extreme fluctuations in supplies and prices and to help maintain stability in the Far West spearmint oil market.

    DATES:

    Comments must be received by December 10, 2018.

    ADDRESSES:

    Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or internet: http://www.regulations.gov. All comments should reference the document number and the date and page number of this issue of the Federal Register and will be made available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the internet at the address provided above.

    FOR FURTHER INFORMATION CONTACT:

    Barry Broadbent, Senior Marketing Specialist, or Gary D. Olson, Regional Director, Northwest Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 326-7440, or email: [email protected] or [email protected]

    Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This action, pursuant to 5 U.S.C. 553, proposes an amendment to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Order No. 985 (7 CFR part 985), as amended, regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah). Part 985 (referred to as “the Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of spearmint oil producers operating within the area of production, and a public member.

    The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

    Additionally, because this proposed rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2018, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2018).

    This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. Under the provisions of the Order now in effect, salable quantities and allotment percentages may be established for classes of spearmint oil produced in the Far West. This proposed rule would increase the quantity of Native spearmint oil produced in the Far West that handlers may purchase from, or handle on behalf of, producers during the 2018-2019 marketing year, which ends on May 31, 2019.

    The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

    This proposal invites comments on a revision to the quantity of Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2018-2019 marketing year. The salable quantity and allotment percentage for Native spearmint oil for the 2018-19 marketing year was established at 1,307,947 pounds and 53 percent, respectively, in a final rule published in the Federal Register on July 24, 2018 (83 FR 34935). This proposed rule would increase the Native spearmint oil salable quantity from 1,307,947 pounds to 1,357,315 pounds and the allotment percentage from 53 percent to 55 percent.

    Under the volume regulation provisions of the Order, the Committee meets each year to adopt a marketing policy for the ensuing year. When the Committee's marketing policy considerations indicate a need to limit the quantity of spearmint oil available to the market to establish or maintain orderly marketing conditions, the Committee submits a recommendation to the Secretary of Agriculture for volume regulation.

    Volume regulation under the Order is effectuated through the establishment of a salable quantity and allotment percentage applicable to each class of spearmint oil handled in the production area during a marketing year. The salable quantity is the total quantity of each class of oil that handlers may purchase from, or handle on behalf of, producers during a given marketing year. The allotment percentage for each class of oil is derived by dividing the salable quantity by the total industry allotment base for that same class of oil. The total industry allotment base is the aggregate of all allotment base held individually by producers. Producer allotment base is the quantity of each class of spearmint oil that the Committee has determined is representative of a producer's spearmint oil production. Each producer is allotted a pro rata share of the total salable quantity of each class of spearmint oil each marketing year. Each producer's annual allotment is determined by applying the allotment percentage to the producer's individual allotment base for each applicable class of spearmint oil.

    The full Committee met on October 25, 2017, to consider its marketing policy for the 2018-2019 marketing year. At that meeting, the Committee determined that marketing conditions indicated a need for volume regulation of both classes of spearmint oil (Scotch and Native) for the 2018-2019 marketing year. The Committee recommended salable quantities of 760,660 pounds and 1,307,947 pounds, and allotment percentages of 35 percent and 53 percent, respectively, for Scotch and Native spearmint oil. A proposed rule to that effect was published in the Federal Register on April 6, 2018 (83 FR 14766). Comments on the proposed rule were solicited from interested persons until June 5, 2018. No comments were received. Subsequently, a final rule establishing the salable quantities and allotment percentages for Scotch and Native spearmint oil for the 2018-2019 marketing year was published in the Federal Register on July 24, 2018 (83 FR 34935).

    Pursuant to authority contained in §§ 985.50, 985.51, and 985.52, the full eight-member Committee met again on July 18, 2018, to evaluate the current year's volume control regulation. At the meeting, the Committee assessed the current market conditions for spearmint oil in relation to the salable quantities and allotment percentages established for the 2018-2019 marketing year. The Committee considered a number of factors, including the current and projected supply and the estimated future demand for all classes of spearmint oil. The Committee determined that the established salable quantity and allotment percentage in effect for Native spearmint oil for the 2018-2019 marketing year should be increased to accommodate a rise in market demand for that class of spearmint oil.

    At the July 18, 2018, meeting, the Committee recommended increasing the 2018-2019 marketing year Native spearmint oil salable quantity from 1,307,947 pounds to 1,357,315 pounds and the allotment percentage from 53 percent to 55 percent. The vote to recommend to the Secretary to increase the salable quantity and allotment percentage passed unanimously.

    This proposal would make additional amounts of Native spearmint oil available to the market by increasing the salable quantity and allotment percentage previously established under the Order for the 2018-2019 marketing year. This proposed rule would increase the Native spearmint oil salable quantity by 49,368 pounds, to 1,357,315 pounds, and would raise the allotment percentage 2 percentage points, to 55 percent. The additional oil could come from 2018-2019 marketing year production or from releasing Native spearmint oil held by producers in the reserve pool. As of May 31, 2018, the Committee records show that the reserve pool for Native spearmint oil contained 1,020,583 pounds of oil, an amount it considers excessive relative to market conditions.

    At the July 18, 2018, meeting, the Committee staff reported that estimated demand for Native spearmint oil for the 2018-2019 marketing year is greater than previously anticipated. The Committee initially estimated the trade demand for Native spearmint oil for the 2018-2019 marketing year to be 1,306,625. At the July 2018 meeting, the Committee revised the expected trade demand for the 2018-2019 marketing year from 1,306,625 pounds to 1,400,000 pounds. If realized, trade demand would be 43,991 pounds above the quantity of Native spearmint oil available under the volume control levels now in effect (the Committee estimates 1,356,009 pounds currently available minus the 1,400,000 pounds estimated trade demand, equals a deficit of 43,991 pounds). Without increasing the salable quantity and allotment percentage, the market for Native spearmint oil may be shorted. The increased quantity of Native spearmint oil (49,368 pounds) that would be made available to the market as a result of this rulemaking would ensure that market demand is fully satisfied in the current year and that there would be approximately 5,377 pounds of Native spearmint oil salable inventory available to carry-over for the start of the 2019-2020 marketing year, which begins on June 1, 2019.

    In making the recommendation to increase the salable quantity and allotment percentage of Native spearmint oil, the Committee considered all currently available information on the price, supply, and demand of Native spearmint oil. The Committee also considered reports and other information from handlers and producers in attendance at the meeting.

    This proposal would increase the 2018-2019 marketing year Native spearmint oil salable quantity by 49,368 pounds to a total of 1,357,315 pounds. Actual sales of Native spearmint oil for the 2017-2018 marketing year totaled 1,565,515 pounds. The 5-year average of Native spearmint oil sales is 1,365,377 pounds.

    The Committee estimates that this action would result in 5,377 pounds of salable Native spearmint oil being carried into the 2019-2020 marketing year which begins June 1, 2019. While 5,377 pounds is a relatively low quantity of salable Native spearmint oil to begin the marketing year, reserve pool oil could be released into the market under a future relaxation of the volume regulation should it be necessary to adequately supply the market prior to the beginning of the 2019-2020 marketing year. The Committee estimates that a total of 1,082,257 pounds of Native spearmint oil (1,020,583 currently in reserve and an estimated 61,674 pounds of excess oil produced during the 2018-2019 marketing year) would be available from the reserve pool, if needed.

    As mentioned previously, when the 2018-2019 marketing policy statement was drafted, handlers estimated the demand for Native spearmint oil for the 2018-2019 marketing year to be 1,306,625 pounds. The Committee's initial recommendation for the establishment of the Native spearmint oil salable quantity and allotment percentage for the 2018-2019 marketing year was based on that estimate. The Committee did not anticipate the level of demand that the Native spearmint oil market is currently experiencing and did not account for it when the marketing policy for the 2018-19 marketing year was adopted.

    At the July 18, 2018, meeting, the Committee revised its estimate of the current trade demand to 1,400,000 pounds. The Committee now believes that the supply of Native spearmint oil available to the market under the established salable quantity and allotment percentage would be insufficient to satisfy the current level of demand for oil at reasonable price levels. The Committee further believes that the increase in the salable quantity and allotment percentage proposed in this action is vital to ensuring an adequate supply of Native spearmint oil is available to the market moving forward.

    The Committee's stated intent in the use of the Order's volume control regulation is to keep adequate supplies available to meet market needs and to maintain orderly marketing conditions. With that in mind, the Committee developed its recommendation for increasing the Native spearmint oil salable quantity and allotment percentage for the 2018-2019 marketing year based on the information discussed above, as well as the summary data outlined below.

    (A) Initial estimated 2018-2019 Native allotment base—2,467,825 pounds. This is the allotment base estimate upon which the original 2018-2019 salable quantity and allotment percentage was based.

    (B) Revised 2018-2019 Native allotment base—2,467,845 pounds. This is 20 pounds more than the initial estimated allotment base of 2,467,825 pounds. The difference is the result of annual adjustments made to the allotment base at the beginning of the marketing year in accordance with the provisions of the Order.

    (C) Initial 2018-2019 Native allotment percentage—53 percent. This was unanimously recommended by the Committee on October 25, 2017.

    (D) Initial 2018-2019 Native salable quantity—1,307,947 pounds. This figure is 53 percent of the original estimated 2018-2019 allotment base of 2,467,825 pounds.

    (E) Adjusted initial 2018-2019 Native salable quantity—1,307,958 pounds. This figure reflects the salable quantity actually available at the beginning of the 2018-2019 marketing year. This quantity is derived by applying the initial 53 percent allotment percentage to the revised allotment base of 2,467,845.

    (F) Proposed revision to the 2018-2019 Native salable quantity and allotment percentage:

    (1) Proposed increase in the Native allotment percentage—2 percent. The Committee recommended an increase of 2 percentage points over the initial Native allotment percentage.

    (2) Proposed revised 2018-2019 Native allotment percentage—55 percent. This number was derived by adding the increase of 2 percentage points to the initially established 2018-2019 allotment percentage of 53 percent.

    (3) Proposed revised 2018-2019 Native salable quantity—1,357,315 pounds. This amount is 55 percent of the revised 2018-2019 allotment base of 2,467,845 pounds.

    (4) Computed increase in the 2018-2019 Native salable quantity as a result of the proposed revision—49,368 pounds. This figure represents the difference between the current salable quantity of 1,307,947 pounds and the proposed salable quantity of 1,357,315 pounds.

    Scotch spearmint oil is also regulated by the Order. As mentioned previously, a salable quantity and allotment percentage for Scotch spearmint oil for the 2018-19 marketing year was established in a final rule published in the Federal Register on July 24, 2018 (83 FR 34935). At the July 18, 2018, meeting, the Committee considered the projected production, inventory, and marketing conditions for Scotch spearmint oil for the 2018-2019 marketing year. After receiving reports from the Committee staff and comments from the industry, the consensus of the Committee was that the established salable quantity and allotment percentage for Scotch spearmint oil was appropriate for the current market conditions. Therefore, the Committee took no further action with regard to Scotch spearmint oil for the 2018-2019 marketing year.

    This proposed rule would relax the regulation of Native spearmint oil and would allow producers to meet market demand while improving producer returns. In conjunction with the issuance of this proposed rule, the Committee's revised marketing policy statement for the 2018-2019 marketing year has been reviewed by USDA.

    The proposed increase in the Native spearmint oil salable quantity and allotment percentage would account for the anticipated market needs for that class of oil. In determining anticipated market needs, the Committee considered changes and trends in historical sales, production, and demand.

    Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

    The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

    There are eight spearmint oil handlers subject to regulation under the Order, and approximately 43 producers of Scotch spearmint oil and approximately 95 producers of Native spearmint oil in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).

    Based on the SBA's definition of small entities, the Committee estimates that only two of the eight handlers regulated by the Order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 12 of the 43 Scotch spearmint oil producers and 31 of the 95 Native spearmint oil producers could be classified as small entities under the SBA definition. Thus, the majority of handlers and producers of Far West spearmint oil may not be classified as small entities.

    The use of volume control regulation allows the spearmint oil industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. Without volume control regulation, the supply and price of spearmint oil would likely fluctuate widely. Periods of oversupply could result in low producer prices and a large volume of oil stored and carried over to future crop years. Periods of undersupply could lead to excessive price spikes and drive end users to source flavoring needs from other markets, potentially causing long-term economic damage to the domestic spearmint oil industry. The Order's volume control provisions have been successfully implemented in the domestic spearmint oil industry since 1980 and provide benefits for producers, handlers, manufacturers, and consumers.

    This proposed rule would increase the quantity of Native spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2018-2019 marketing year, which ends May 31, 2019. The 2018-2019 marketing year Native spearmint oil salable quantity was initially established at 1,307,947 pounds and the allotment percentage initially set at 53 percent. This proposed rule would increase the Native spearmint oil salable quantity to 1,357,315 pounds and the allotment percentage to 55 percent.

    Based on the information and projections available at the July 18, 2018, meeting, the Committee considered several alternatives to this increase. The Committee considered leaving the salable quantity and allotment percentage unchanged and also considered other potential levels of increase. The Committee reached its recommendation to increase the salable quantity and allotment percentage for Native spearmint oil after careful consideration of all available information and input from all interested industry participants because it believes that the levels recommended would achieve the desired objectives. Without the increase, the Committee believes the industry would not be able to satisfactorily meet market demand.

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178, Specialty Crops. No changes are necessary in those requirements as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

    This proposed rule would relax the volume regulation requirements established under the Order for the 2018-19 marketing year. Accordingly, this action would not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

    AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.

    In addition, the Committee's July 18, 2018, meeting was widely publicized throughout the Far West spearmint oil industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. The meeting was public, and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and information collection impacts of this action on small businesses.

    A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

    A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.

    List of Subjects in 7 CFR Part 985

    Marketing agreements, Oils and fats, Reporting and recordkeeping requirements, Spearmint oil.

    For the reasons set forth in the preamble, 7 CFR part 985 is proposed to be amended as follows:

    PART 985—MARKETING ORDER REGULATING THE HANDLING OF SPEARMINT OIL PRODUCED IN THE FAR WEST 1. The authority citation for part 985 continues to read as follows: Authority:

    7 U.S.C. 601-674.

    2. In § 985.233, revise the section heading and paragraph (b) to read as follows:
    § 985.233 Salable quantities and allotment percentages—2018-2019 marketing year.

    (b) Class 3 (Native) oil—a salable quantity of 1,357,315 pounds and an allotment percentage of 55 percent.

    Dated: October 3, 2018. Bruce Summers, Administrator, Agricultural Marketing Service.
    [FR Doc. 2018-21844 Filed 10-5-18; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 986 [Doc. No. AMS-SC-18-0019; SC18-986-1 PR] Pecans Grown in the States of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas; Revision of Reporting Requirements AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule invites comments on a proposal to revise the reporting requirements under the Federal marketing order for pecans. The revised reporting requirements would enable the American Pecan Council (Council) to collect information from handlers on the average handler price paid and the average shelled pecan yield. The Council would use this information to provide important statistical reports to the industry and meet requirements under the marketing order.

    DATES:

    Comments must be received by November 8, 2018.

    ADDRESSES:

    Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or internet: http://www.regulations.gov. All comments should reference the document number and the date and page number of this issue of the Federal Register and will be made available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this proposal will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the internet at the address provided above.

    FOR FURTHER INFORMATION CONTACT:

    Jennie M. Varela, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or email: [email protected] or [email protected]

    Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202)720-8938, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This proposed rule, pursuant to 5 U.S.C. 553, would amend regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Agreement and Order No. 986, (7 CFR part 986), regulating the handling of pecans grown in the states of Alabama, Arkansas, Arizona, California, Florida, Georgia, Kansas, Louisiana, Missouri, Mississippi, North Carolina, New Mexico, Oklahoma, South Carolina, and Texas. Part 986 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Council locally administers the Order and is comprised of growers and handlers of pecans operating within the production area, and one accumulator and one public member.

    The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) has exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect.

    The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

    This proposed rule would revise the reporting requirements under the Order. If approved, this action would require all pecan handlers to report to the Council the average handler price paid and average shelled pecan yield as part of its existing year-end report. This information would be used by the Council to provide statistical reports to the industry and meet requirements under the Order. This proposal was unanimously recommended by the Council at its January 24, 2018, meeting and affirmed at its April 17, 2018 meeting.

    Section 986.76 provides the authority to collect reports on the quantity of pecans handled and other pertinent information as specified by the Council. Section 986.78 provides, with the approval of the Secretary, authority for the Council to collect other reports and information from handlers needed to perform its duties. Section 986.175 specifies that handlers shall submit a year-end report to the Council that includes the amount of shelled and inshell pecans in inventory, total inventory calculated on an inshell basis, total weight and type of domestic pecans handled for the fiscal year, and information on assessments owed, paid, or due.

    This proposed rule would revise § 986.175 to require that additional information be included in the year-end report. These revisions would require handlers to report the average price paid by handler and average yield of shelled pecans as part of the existing year-end report.

    At its January 24, 2018, and April 17, 2018, meetings, the Council reviewed the reporting requirements under the Order and determined there were additional data that would be beneficial to collect and summarize for the industry on an annual basis. Specifically, the Council recommended adding two additional items to be reported as part of the annual year-end reporting requirement, average price paid by handlers and shelled pecan yield.

    While the National Agricultural Statistics Service (NASS) reports average grower prices, this proposed reporting change would provide information regarding a handler's overall cost of acquiring pecans. Some handlers buy directly from growers, but many buy from other handlers or import pecans. Understanding the cost of pecans being handled is key information in determining the value of the overall crop and subsequent impacts on the market for pecans the following season. During the meetings, members noted that collecting the average price paid would also be necessary to complete the marketing policy report required under the Order. The marketing policy, as required by § 986.65, must include projected prices for the upcoming fiscal year, which would be influenced by handler costs. Further, the Council believes providing this information would improve the information available to the pecan industry. In particular the Council feels this information may give growers better information that can be used in making business decisions. The Council recommended adding this reporting requirement as there is currently no comprehensive source for handler cost information.

    The Council also discussed asking handlers to provide information regarding the weight of shelled pecans handled. During the formal rulemaking hearing to promulgate the Order, a witness testified regarding a conversion rate of multiplying the shelled weight by two to calculate inshell weight. That conversion rate was incorporated into the Order. Using this conversion, the weight of shelled pecans is approximately 50 percent of the inshell weight. This proportion is referred to as the “shell-out” or shelled pecan yield. However, there are natural variations in pecans and yield can vary depending on the thickness of the shells of different varieties and can also vary from year to year. These fluctuations make it challenging to accurately convert the total inshell volume harvested into shelled pounds, or shelled pounds into their inshell equivalent to provide an accurate estimate of overall supply.

    As with the handler price paid, there is currently no central industry source for information on the shelled pecan yield. The Council believes collecting this data would allow them to provide the industry with an updated annual average of this yield, which could be an indicator of quality, and over time provide a series of data on shelled pecan yield that would allow them to determine if changes to the current conversion rate are needed.

    Following the recommendation of the proposed changes made at the January 24, 2018 meeting, some members had questions about the specific data that would be collected. Based on these questions, the Council made some adjustments to the proposed form to clarify that handlers would report the average price paid for all inshell pecans purchased during the fiscal year, regardless of how the pecans are handled, including pecans from outside the production area. For the purposes of this form, the terms crop year and fiscal year are synonymous. The Council reviewed the revised reporting form at its April 17, 2018, meeting and affirmed that the new language met their original intent.

    The Council believes these revised reporting requirements are necessary to provide accurate reports to the industry regarding average price paid, yield for shelled pecans, and to meet requirements under the Order. The industry would use this information to complement the information provided by NASS in the development of its marketing policy and to collect accurate data to determine if the definition of weight in § 986.43 needs to be amended.

    Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

    The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

    There are approximately 2,500 growers of pecans in the production area and approximately 250 handlers subject to regulation under the Order. Small agricultural growers are defined by the Small Business Administration as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

    According to information from NASS, the average grower price for pecans during the 2016-2017 season was $2.59 per pound and 269 million pounds were utilized. The value for pecans that year totaled $697 million ($2.59 per pound multiplied by 269 million pounds). Taking the total value of production for pecans and dividing it by the total number of pecan growers provides an average return per grower of $278,684. Using the average price and utilization information, and assuming a normal distribution among growers, the majority of growers receive less than $750,000 annually.

    Evidence presented at the formal rulemaking hearing indicates an average handler margin of $0.58 per pound. Adding this margin to the average grower price of $2.59 per pound of inshell pecans results in an estimated handler price of $3.17 per pound. With a total 2017 production of 269 million pounds, the total value of production in 2017 was $853 million ($3.17 per pound multiplied by 269 million pounds). Taking the total value of production for pecans and dividing it by the total number of pecan handlers provides an average return per handler of $3.4 million. Using this estimated price, the utilization volume, number of handlers, and assuming a normal distribution among handlers, the majority of handlers have annual receipts of less than $7,500,000. Thus, the majority of growers and handlers regulated under the Order may be classified as small entities.

    This proposed rule would revise the reporting requirements in § 986.175. This action would require all pecan handlers to report to the Council the average handler price paid and average shelled pecan yield as part of its existing year-end report. This information would be used by the Council to provide statistical reports to the industry and meet requirements under the Order. The authority for this proposal is provided in §§ 986.76 and 986.78.

    It is not anticipated that this proposed rule would impose additional costs on handlers or growers, regardless of size. Council members, including those representing small businesses, indicated the average handler price paid and the average shelled pecan yield information is already recorded and maintained by handlers as a part of their daily business and the information should be readily accessible. Consequently, any additional costs associated with this change would be minimal and apply equally to all handlers.

    This action should also help the industry by providing additional data on pecans handled. This information would help with marketing and planning for the industry, as well as provide important information in preparing the annual marketing policy required by the Order. This change would also assist with the development of a dataset to determine if the conversion rate for shelled to inshell pecans needs to be revised. The benefits of this rule are expected to be equally available to all pecan growers and handlers, regardless of their size.

    The Council discussed other alternatives to this proposed action, including making no changes to the current reporting requirements. However, having the information on handler price paid and shelled pecan yield would provide important information for the industry.

    Another alternative considered was to create a new report for the collection of this information. However, the industry recently implemented a series of monthly reports that increased the reporting burden on handlers. Rather than add to the burden by creating a new report, the Council believed it would be more efficient to ask handlers for this information as part of the existing year-end reporting requirement. Therefore, the alternatives were rejected.

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0291 “Federal Marketing Order for Pecans.” This proposed rule would require changes to the Council's existing APC Form 7. However, the changes are minor and the currently approved burden for the form should not be altered by the proposed changes to the form. The revised form has been submitted to OMB for approval.

    As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.

    AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    Further, the Council's meetings were widely publicized throughout the pecan industry and all interested persons were invited to attend the meetings and participate in Council deliberations on all issues. Additionally, the Council's Committee meetings held on January 24, 2018, and April 17, 2018, were also public meetings and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and information collection impacts of this proposed action on small businesses.

    A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously-mentioned address in the FOR FURTHER INFORMATION CONTACT section.

    A 30-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.

    List of Subjects in 7 CFR Part 986

    Marketing agreements, Nuts, Pecans, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 986 is proposed to be amended as follows:

    PART 986—PECANS GROWN IN THE STATES OF ALABAMA, ARKANSAS, ARIZONA, CALIFORNIA, FLORIDA, GEORGIA, KANSAS, LOUISIANA, MISSOURI, MISSISSIPPI, NORTH CAROLINA, NEW MEXICO, OKLAHOMA, SOUTH CAROLINA, AND TEXAS 1. The authority citation for 7 CFR part 986 continues to read as follows: Authority:

    7 U.S.C. 601-674.

    2. Section 986.175 is amended by revising paragraphs (a) introductory text, (a)(7) and (8), and adding paragraphs (a)(9) and (10) to read as follows:
    § 986.175 Handler inventory.

    (a) Handlers shall submit to the Council a year end inventory report following August 31 each fiscal year. Handlers shall file such reports by September 10. Should September 10 fall on a weekend, reports are due by the first business day following September 10. Such reports shall be reported to the Council on APC Form 7. For the purposes of this form, “crop year” is the same as the “fiscal year.” The report shall include:

    (7) Total weight and type of domestic pecans handled for the fiscal year;

    (8) Total assessments owed, assessments paid to date, and remaining assessments due to be paid by the due date of the year-end inventory report for the fiscal year;

    (9) The average price paid for all inshell pecans purchased during the fiscal year regardless of how the pecans are handled, including pecans from outside the production area; and

    (10) The average yield of shelled pecans per pound of inshell pecans shelled during the fiscal year.

    Dated: October 3, 2018. Bruce Summers, Administrator, Agricultural Marketing Service.
    [FR Doc. 2018-21841 Filed 10-5-18; 8:45 am] BILLING CODE 3410-02-P
    NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 [Docket No. PRM-2-15; NRC-2015-0264] Agency Procedures for Responding to Adverse Court Decisions and Addressing Funding Shortfalls AGENCY:

    Nuclear Regulatory Commission.

    ACTION:

    Petition for rulemaking; denial.

    SUMMARY:

    The U.S. Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking (PRM) submitted on October 22, 2015, by Jeffrey M. Skov (the petitioner), and supplemented on December 7, 2015, March 1, 2016, March 21, 2016, and March 1, 2017. The petition was docketed by the NRC on November 10, 2015, and was assigned Docket No. PRM-2-15. The petitioner requests that the NRC amend its rules of practice to establish procedures for responding to adverse court decisions and to annually report to the public each instance where the NRC does not receive “sufficient funds reasonably necessary to implement in good faith its statutory mandates.” The NRC is denying the petition because the petitioner has not identified shortcomings in the NRC's current regulations or demonstrated a need for the requested changes.

    DATES:

    The docket for the petition for rulemaking, PRM-2-15, is closed on October 9, 2018.

    ADDRESSES:

    Please refer to Docket ID NRC-2015-0264 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

    Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2015-0264. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: [email protected] For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

    NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected] The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in the SUPPLEMENTARY INFORMATION section. The petition is available in ADAMS under Accession No. ML15314A075.

    NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

    FOR FURTHER INFORMATION CONTACT:

    Olivia Mikula, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001, telephone: 301-287-9107; email: [email protected]

    SUPPLEMENTARY INFORMATION: I. The Petition

    Section 2.802 of title 10 of the Code of Federal Regulations (10 CFR), “Petition for rulemaking—requirements for filing,” provides an opportunity for any interested person to petition the Commission to issue, amend, or rescind any regulation. The NRC received a PRM from Mr. Jeffrey M. Skov on October 22, 2015, and supplemental information from the petitioner on December 7, 2015 (ADAMS Accession No. ML15342A005), March 1, 2016 (ADAMS Accession No. ML16063A026), March 21, 2016 (ADAMS Accession No. ML16082A020), and March 1, 2017 (ADAMS Accession Nos. ML17111A673 and ML17111A657). In the PRM and associated supplements, the petitioner requests that the NRC amend 10 CFR part 2, “Agency rules of practice and procedure,” to establish procedures for (1) responding to adverse court decisions, and (2) annually reporting to the public each instance where the NRC does not receive sufficient funds reasonably necessary to implement in good faith its statutory mandates.

    In his PRM, the petitioner raises concerns about the NRC's independence, its mission-related functions, and its commitment to transparency in light of the adverse decision In re Aiken County. See In re Aiken Cty., 725 F.3d 255 (D.C. Cir. 2013). In that case, a group of individuals and government organizations filed a petition for writ of mandamus against the NRC in the U.S. Court of Appeals for the District of Columbia Circuit. The Aiken County petitioners challenged the NRC's decision to cease review and consideration of the license application filed by the U.S. Department of Energy (DOE) to construct a geologic repository at Yucca Mountain, Nevada, and claimed that this decision constituted agency action that was unlawfully withheld or unreasonably delayed. In August 2013, the court issued a decision granting the petition for writ of mandamus and concluding that the NRC was “defying a law enacted by Congress, and . . . doing so without any legal basis.” Id. The court directed the NRC to continue the proceeding and to make whatever progress it could with the remaining funds. According to Mr. Skov, the Aiken County decision raises concerns about the NRC's independence, its mission-related functions, and its commitment to transparency.

    Mr. Skov's PRM proposes two rules. The first proposed rule would require the NRC to take certain actions following the receipt of a court decision (and after the expiration of rehearing and appeal rights) finding that the agency violated applicable law. Specifically, the rule would require (1) an identification and determination of the causes of each violation; (2) an “extent of condition” evaluation to determine whether the NRC's implementation of other statutes and regulations is similarly affected by the violation; (3) implementation of immediate corrective actions based on the evaluation performed; (4) implementation of corrective actions to prevent recurrence; and (5) preparation of a public report documenting the agency's review. The rule also would require the NRC to seek investigation by the U.S. Department of Justice (DOJ) as to whether the agency has adequate oversight mechanisms in place to prevent the violation of applicable laws and whether any violations of Federal criminal laws have occurred (particularly laws prohibiting obstruction of Federal proceedings and conspiracies to commit offense or to defraud the United States). In addition, the rule would require the NRC to decide whether to appeal or seek rehearing in accordance with the American Bar Association's (ABA) Model Rules of Professional Conduct.

    The second proposed rule would require the NRC to disclose annually “each instance where [the NRC] does not receive sufficient funds reasonably necessary to implement in good faith its statutory mandates.” In these instances, the proposed rule would have the NRC publicly disclose whether the NRC was directed not to request funds, requested funds but did not receive them, or determined on its own not to request funds. Further, the rule would require “a discussion of the consequences of each instance with respect to (1) public safety and health; (2) environmental protection; (3) the common defense and security; (4) the reputation/credibility of the agency as a `trusted, independent, transparent, and effective nuclear regulator;' and (5) collateral fiscal impacts.”

    On February 17, 2016 (81 FR 8021), the NRC published a notice of docketing of PRM-2-15. The NRC elected not to request public comment on PRM-2-15 because the petition was sufficiently comprehensive for the NRC to address the issues contained therein. Accordingly, there were no public comments on this petition.

    II. Reasons for Denial

    In the original petition and subsequent submittals, the petitioner focuses on the outcome of the Aiken County decision and perceived agency inaction with regard to the court's ruling. As discussed further, the NRC is denying the petition because the petitioner has not identified shortcomings in the NRC's current regulations or demonstrated a need for the proposed requirements. The NRC took into account the § 2.803(h)(1) considerations for an agency determination on a petition for rulemaking with particular attention to § 2.803(h)(1)(vi), relevant agency policies and current practice.

    The NRC is denying further consideration of the petitioner's first proposed rule because it does not present a practical process for agency accountability and because the NRC already has the tools in place to provide for independent evaluation of agency actions. The petitioner's proposed rule presents the goal of requiring the agency to reflect upon the reasons for a loss it has sustained in court and to implement corrective actions in light of any lessons learned. However, for the reasons discussed below, the proposed rule is neither necessary nor appropriate for meeting this goal.

    With regard to the trigger for the proposed rule—a finding by a court of competent jurisdiction that the NRC violated applicable law—adverse court decisions that relate to the NRC's licensing responsibilities do not necessarily reflect misconduct. Rather, the NRC's losses ordinarily have involved a failure to explain the basis for a technical conclusion,1 a request for further development of the administrative record,2 or a court's determination that the legal position that the NRC has adopted on a point of law is incorrect.3 In such circumstances, the NRC's response to judicial direction is transparent so that the public is able to see how the agency has addressed the concerns in the decision.4 Indeed, after the Aiken County decision was rendered by the D.C. Circuit Court of Appeals, the Commission responded by soliciting the views of all participants involved and issuing an order detailing how the agency would continue with the licensing process. See U.S. Department of Energy (High-Level Waste Repository), CLI-13-08, 78 NRC 219 (2013). This included a direction to staff to complete and issue the Safety Evaluation Report associated with the construction authorization application and make associated documents available on the NRC's recordkeeping system.

    1See, e.g. Shieldalloy Metallurgical Corp. v. NRC, 707 F.3d 371 (D.C. Cir. 2013); Honeywell International, Inc. v. NRC, 628 F.3d 568 (D.C. Cir. 2010).

    2See, e.g., Brodsky v. NRC, 704 F.3d 113 (2d Cir. 2013).

    3See, e.g., San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006).

    4See, e.g. Shieldalloy Metallurgical Corp. (Decommissioning of the Newfield, New Jersey Site), CLI-13-06, 78 NRC 155 (2013); Honeywell Int'l, Inc. (Metropolis Works Uranium Conversion Facility), CLI-13-01, 77 NRC 1 (2013); Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit 3, Draft Environmental Assessment and Finding of No Significant Impact, 78 FR 20144 (April 3, 2013); Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-07-11, 65 NRC 148 (2007).

    Moreover, the vast majority of NRC licensing cases that result in Federal court litigation have already been the subject of litigation before the Atomic Safety and Licensing Boards and the Commission, such that opportunities to identify deficiencies have been provided through the Commission's internal adjudicatory process. Further, the Agency's Office of the General Counsel (OGC) ensures that the Commission and pertinent staff offices are informed of court decisions and the need for any responsive action to ensure compliance with the holding. In addition, OGC will provide advice on the impact, if any, of that decision on any current and future NRC decisionmaking. Given these facts, the additional processes in the proposed rule are not necessary.

    In addition, the petitioner's proposed rule would require an independent evaluation of agency action in light of an adverse court decision. The NRC's Office of the Inspector General, however, already has the authority to perform that function. The Inspector General (IG) is authorized “to provide policy direction for and to conduct, supervise, and coordinate audits and investigations relating to the programs and operations of” the agency in which the office is established. See 5 United States Code (U.S.C.) App 3, section 4(a)(1). This responsibility includes reporting “to the Attorney General whenever the Inspector General has reasonable grounds to believe there has been a violation of Federal criminal law.” See id. section 4(d). The IG prepares a semiannual report to Congress which includes “a description of significant problems, abuses, and deficiencies relating to the administration of programs” and agency operations. See id. section 5(a)(1). Notably, this report includes “a description of the recommendations for corrective action made by the [Office of the Inspector General] during the reporting periods with respect to significant problems, abuses, or deficiencies.” See id. section 5(a)(2).5 The IG may initiate an investigation upon the request of an employee or member of the public. Although investigation by the IG is not necessarily precipitated by a specific event, the duties and abilities of the IG provide the authority and flexibility to investigate a wide range of agency action. Therefore, the proposed rule essentially requests the creation of a process of independent investigation that is duplicative of the one that already exists.6

    5 Office of the Inspector General reports and associated corrective action recommendations for the NRC are available on the public website. See U.S. NRC, OIG Reports, available at https://www.nrc.gov/reading-rm/doc-collections/insp-gen/ (last updated October 19, 2017).

    6 In additional submissions to the NRC, the petitioner emphasized the same or similar arguments for the implementation of the proposed rules. His March 1, 2017, submission notes that the IG's Office did not prevent the statutory violation that led to the Aiken County proceeding. However, there is little explanation as to why the implementation of a process that essentially duplicates that of the independent investigative authority of the Office of the Inspector General would serve to effectively and efficiently eliminate the possibility of a violation in the future. Indeed, the IG opened a report to investigate wrongdoing associated with the NRC's decision to halt progress on DOE's Yucca Mountain application and the Aiken County court was aware of the findings. See In re Aiken Cty., 725 F.3d at 268 (Randolph, J., concurring) (citing U.S. Nuclear Regulatory Commission, Office of the Inspector General, OIG Case NO. 11-05, NRC Chairman's Unilateral Decision to Terminate NRC's Review of DOE Yucca Mountain Repository License Application 7-10, 17, 44-46 (2011)).

    Similarly, the proposal to seek DOJ review of an adverse decision is not necessary because the DOJ is a party to, or has some involvement in, virtually all of the program-related cases in which the agency is named as a defendant. The Hobbs Act, which is the primary vehicle through which NRC decisions are challenged, requires that the United States be named as a respondent. See 28 U.S.C. 2344. And although the Hobbs Act did not apply to, and the United States was not named as a respondent in, the Aiken County proceeding, the NRC consulted with the DOJ in its defense of the case. Moreover, the court specifically requested the views of the United States on several issues, and the United States filed its own brief in response to the court's request. Finally, to the extent the agency is sued directly in Federal district court, it is represented by the DOJ both on programmatic matters as well as matters involving agency personnel or procurement. See, e.g., Brodsky v. NRC, No. 09-Civ-10594 (LAP), 2015 WL 1623824 (S.D.N.Y. Feb. 26, 2015); Khoury v. Meserve, 268 F. Supp. 2d 600 (D. Md. 2003). Consequently, the DOJ was well aware of the NRC's filings in the Aiken County case specifically and is deeply involved in the NRC's litigation matters generally.

    With respect to the codification of the need to make appeals and rehearing decisions in accordance with the Model Rules of Professional Conduct, each NRC attorney is already subject to the disciplinary rules of the bar in which he or she is admitted as well as the courts in which he or she appears. All decisions to seek further review of an adverse ruling are coordinated with the DOJ and, as necessary, the Solicitor General, who are likewise bound by applicable disciplinary rules. It is therefore not necessary to reference the ABA's Model Rules of Professional Conduct in the NRC's regulations.

    The NRC therefore denies further consideration of the petitioner's first proposed rule for the reasons stated.

    The NRC is denying further consideration of the petitioner's second proposed rule because it is the NRC's practice to refrain from disclosing pre-decisional budgetary information, consistent with Office of Management and Budget (OMB) guidance. OMB Circular A-11 directs agencies to withhold pre-decisional materials underlying budget deliberations. See OMB Circular A-11, Preparation, Submission, and Execution of the Budget, 22-1 (July 2016). Circular A-11 directs agencies “not [to] release agency justifications provided to OMB and any agency future year plans or long-range estimates to anyone outside of the Executive Branch” unless otherwise allowed under the Circular. Communications within the Executive Branch that ultimately lead to the President's budgetary decisions are not disclosed either by the NRC or by OMB. The petitioner's proposed rule would require the NRC to disclose annually certain budget decisions and the Executive Branch communications underlying those decisions. On the basis of our practice of compliance with OMB guidance, the NRC will not proceed with the petitioner's proposed rule.

    The arguments presented by the petitioner focus heavily on the outcome and safety consequences of the Aiken County decision, but they fail to justify the need for additional processes in the NRC's regulations. In light of the processes currently in place, the NRC did not identify any safety, environmental, or security issues associated with the petitioner's concerns. Further, the NRC continues to be committed to its safety mission and to promoting a positive safety culture.7

    7 The NRC has processes to self-assess and promote the safety culture of the agency. In conjunction with the IG's Office, the NRC participates in a safety culture climate survey to evaluate the comfort of the agency's workforce to raise safety concerns through these processes. The IG's Office appraises the outcome of these surveys in reports and provides corrective action recommendations, where appropriate. The most recent IG report on this topic was released on April 15, 2016. See U.S. NRC, OIG Reports, available at https://www.nrc.gov/reading-rm/doc-collections/insp-gen/ (last updated October 19, 2017).

    With regard to the petitioner's concerns about agency inaction with respect to Yucca Mountain, the NRC has used virtually all of the remaining funds appropriated through fiscal year 2011 by Congress for the Yucca Mountain project to further review the application, consistent with the Aiken County decision and the Commission's Order in response to the case. Among other things, the NRC staff completed the Safety Evaluation Report and a Final Supplement to DOE's Environmental Impact Statement for the Yucca Mountain geologic repository. The NRC staff also placed millions of items of discovery material from the adjudicatory proceeding relating to the application in the public portion of the agency's online records collection.

    III. Conclusion

    For the reasons stated in Section II, the NRC is denying PRM-2-15. The petition failed to identify a need for the proposed rules. Further, the NRC evaluated the petition in light of the considerations described in § 2.803(h)(1) and found the petition inconsistent with current agency policies and practice.

    Dated at Rockville, Maryland, this 2nd day of October 2018.

    For the Nuclear Regulatory Commission.

    Annette L. Vietti-Cook, Secretary of the Commission.
    [FR Doc. 2018-21804 Filed 10-5-18; 8:45 am] BILLING CODE 7590-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 21 [Docket No. FAA-2018-0860] Proposed Primary Category Design Standards; Vertical Aviation Technologies (VAT) Model S-52L Rotorcraft AGENCY:

    Federal Aviation Administration, DOT.

    ACTION:

    Notice shortening comment period.

    SUMMARY:

    This action shortens the comment period for the notice of availability; request for comments that was published on September 26, 2018. In that document, the FAA announced the existence of and requested comments on the proposed airworthiness design standards for acceptance of the Vertical Aviation Technologies (VAT) Model S-52L rotorcraft under the regulations for primary category aircraft.

    DATES:

    The comment period for the document published September 26, 2018, at 83 FR 48574, is shortened. Comments must be received on or before October 26, 2018.

    ADDRESSES:

    Send comments to the Federal Aviation Administration, Policy and Innovation Division, Rotorcraft Standards Branch, AIR-681, Attention: Michael Hughlett, 10101 Hillwood Parkway, Ft. Worth, Texas 76117. Comments may also be emailed to: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Michael Hughlett, Aviation Safety Engineer, Rotorcraft Standards Branch, Policy and Innovation Division, FAA, 10101 Hillwood Pkwy., Fort Worth, Texas 76177; telephone (817) 222-5110; email [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    The FAA invites interested parties to submit comments on the proposed airworthiness standards to the address specified above. Commenters must identify the VAT Model S-52L on all submitted correspondence. The most helpful comments reference a specific portion of the airworthiness standards, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received on or before the closing date before issuing the final acceptance. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change the proposed airworthiness standards based on received comments.

    Background

    On September 26, 2018, the FAA issued a notice of availability; request for comments, entitled “Proposed Primary Category Design Standards; Vertical Aviation Technologies (VAT) Model S-52L Rotorcraft” (83 FR 48574) (“notice of availability”). The notice of availability established a 60-day comment period.

    The FAA finds that a 30-day comment period is sufficient for the public to analyze and provide meaningful comment to notice of availability. The date by which to file comments is therefore shortened from November 26, 2018, to October 26, 2018. The FAA does not anticipate any further action to be taken regarding this comment period.

    Shortening of Comment Period

    Accordingly, the comment period for the notice of availability has been shortened to close on October 26, 2018.

    Issued in Ft Worth, Texas, on September 27, 2018. Jorge Castillo, Acting Manager, Rotorcraft Standards Branch, Policy and Innovation Division, Aircraft Certification Service.
    [FR Doc. 2018-21661 Filed 10-5-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0809; Product Identifier 2018-NM-092-AD] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Model FALCON 2000 Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 2000 airplanes. This proposed AD was prompted by a report of chafing of a wire bundle located at the bottom of the right hand electrical cabinet. This proposed AD would require a one-time general visual inspection of the wiring bundle for damage, measurement of the clearance between the metallic plate and the wiring bundle, and corrective actions if necessary. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by November 23, 2018.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet http://www.dassaultfalcon.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0809; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0809; Product Identifier 2018-NM-092-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0114, dated May 23, 2018, (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 2000 airplanes. The MCAI states:

    One Falcon 2000 aeroplane experienced some chafing of a wire bundle located at the bottom of the right-hand (RH) electrical cabinet (between Frames 4 and 5). The wire loom interfered with a metallic (ground) plate of terminal strip 700J and at least 12 wires were damaged. This wire loom includes 250 wires and in case of chafing, any wire may be damaged.

    This condition, if not detected and corrected, could lead to improper functioning of aeroplane systems [such as loss of wing anti-icing or wing anti-icing inoperative indication, loss of normal braking indication, and loss of “No take-off” indication], possibly resulting in reduced control of the aeroplane.

    To address this potential unsafe condition, Dassault developed a modification M3889 to improve the clearance between the metallic plate and the wire loom, and published the SB [Dassault Aviation Service Bulletin F2000-436] to inspect and modify aeroplanes in service.

    For the reasons described above, this [EASA] AD requires a one-time inspection of the wiring bundle for interference or damage, measurement of the clearance between the metallic plate and the wiring bundle, and depending on findings, modification of the aeroplane by cutting out the lower part of the ground plate of terminal strip 700J and adding an edge protection to prevent interference. Aeroplanes that do not have a metallic plate installed are not affected by this [EASA] AD.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0809.

    Related Service Information Under 1 CFR Part 51

    Dassault Aviation has issued Service Bulletin F2000-436, dated September 28, 2017. This service information describes procedures for a one-time general visual inspection of the wiring bundle for damage (including chafing), measurement of the clearance between the metallic plate and the wiring bundle, and corrective actions. Corrective actions include modification of the airplane by cutting out the lower part of the ground plate of terminal strip 700J and adding an edge protection to prevent interference and replacement of damaged wires. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.

    Proposed Requirements of This NPRM

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

    Costs of Compliance

    We estimate that this proposed AD affects 195 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • 4 work-hours × $85 per hour = $340 $0 $340 $66,300

    We estimate the following costs to do the necessary on-condition action that would be required based on the results of any required actions. We have no way of determining the number of aircraft that might need this on-condition action:

    Estimated Costs of On-Condition Actions Labor cost Parts cost * Cost per
  • product
  • 2 work-hours × $85 per hour = $170 $0 $170 * We have received no definitive data for the parts cost for the on-condition actions.
    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

    Regulatory Findings

    We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed above, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska; and

    4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    The Proposed Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Dassault Aviation: Docket No. FAA-2018-0809; Product Identifier 2018-NM-092-AD. (a) Comments Due Date

    We must receive comments by November 23, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Dassault Aviation Model FALCON 2000, certificated in any category, manufacturer serial numbers 70 through 231 inclusive.

    (d) Subject

    Air Transport Association (ATA) of America Code 24, Electrical power.

    (e) Reason

    This AD was prompted by a report of chafing of a wire bundle located at the bottom of the right hand (RH) electrical cabinet. We are issuing this AD to address such chafing, which may cause damage to wires within the bundle, and, if not detected and corrected, could lead to improper functioning of airplane systems (such as loss of wing anti-icing or wing anti-icing inoperative indication, loss of normal braking indication, and loss of “No take-off” indication), which could result in reduced control of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Inspection

    Within 25 months after the effective date of this AD, for airplanes equipped with a metallic plate at the bottom of the RH electrical cabinet, do the following actions as specified in paragraphs (g)(1) and (g)(2) of this AD.

    (1) Perform a general visual inspection of the wiring bundle for damage (including chafing), in accordance with the Accomplishment Instructions of Dassault Aviation Service Bulletin F2000-436, dated September 28, 2017.

    (2) Measure the clearance between the metallic plate and the wire bundle at the bottom of the RH electrical cabinet in accordance with the Accomplishment Instructions of Dassault Aviation Service Bulletin F2000-436, dated September 28, 2017.

    (h) Corrective Action

    (1) If, during the inspection required by paragraph (g)(1) of this AD, any damage is found, before further flight, replace all damaged wires using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Dassault Aviation's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (2) If, during the measurement as required by paragraph (g)(2) of this AD, the detected clearance is less than the criteria as specified in Dassault Aviation Service Bulletin F2000-436, dated September 28, 2017, before further flight, modify the metallic plate in accordance with the Accomplishment Instructions of Dassault Aviation Service Bulletin F2000-436, dated September 28, 2017.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (j)(2) of this AD. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Dassault Aviation's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0114, dated May 23, 2018, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0809.

    (2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.

    (3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet http://www.dassaultfalcon.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on September 26, 2018. John P. Piccola, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-21609 Filed 10-5-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0805; Product Identifier 2018-NM-103-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Airbus Defense and Space S.A. Model CN-235, CN-235-200 and CN-235-300 airplanes. This proposed AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by November 23, 2018.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Airbus Defense and Space, Services/Engineering support, Avenida de Aragón 404, 28022 Madrid, Spain; telephone: +34 91 585 55 84; fax: +34 91 585 31 27; email: [email protected] You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0805; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Shahram Daneshmandi, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3220.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0805; Product Identifier 2018-NM-103-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0134, dated June 25, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Defense and Space S.A. Model CN-235, CN-235-200, and CN-235-300 airplanes. The MCAI states:

    The airworthiness limitations and/or certification maintenance instructions for the EADS-CASA CN-235 aeroplanes, which are approved by EASA, are currently defined and published in the Airbus D&S CN-235 ALL [Airworthiness Limitations List] DT-86-3001 document. These instructions have been identified as mandatory for continued airworthiness.

    Failure to accomplish these instructions could result in an unsafe condition [i.e., fatigue cracking, damage, and corrosion in principal structural elements, which could result in reduced structural integrity of the airplane].

    For the reason described above, this [EASA] AD requires accomplishment of the actions specified in the ALL.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0805.

    Related Service Information Under 1 CFR Part 51

    Airbus Defence and Space has issued CN-235 Airworthiness Limitations List, DT-86-3001, Issue R, dated March 20, 2018. This service information describes airworthiness limitations for airplane systems, structural inspections, safe life structural items, and safe life system items. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.

    Proposed Requirements of This NPRM

    This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations.

    This proposed AD would require revisions to certain operator maintenance documents to include new actions (e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (i)(1) of this proposed AD.

    Differences Between This Proposed AD and the MCAI or Service Information

    The MCAI specifies that if there are findings from the airworthiness limitations section (ALS) inspection tasks, corrective actions must be accomplished in accordance with Airbus maintenance documentation. However, this proposed AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this proposed AD.

    Airworthiness Limitations Based on Type Design

    The FAA recently became aware of an issue related to the applicability of ADs that require incorporation of an ALS revision into an operator's maintenance or inspection program.

    Typically, when these types of ADs are issued by civil aviation authorities of other countries, they apply to all airplanes covered under an identified type certificate (TC). The corresponding FAA AD typically retains applicability to all of those airplanes.

    In addition, U.S. operators must operate their airplanes in an airworthy condition, in accordance with 14 CFR 91.7(a). Included in this obligation is the requirement to perform any maintenance or inspections specified in the ALS, and in accordance with the ALS as specified in 14 CFR 43.16 and 91.403(c), unless an alternative has been approved by the FAA.

    When a type certificate is issued for a type design, the specific ALS, including revisions, is a part of that type design, as specified in 14 CFR 21.31(c).

    The sum effect of these operational and maintenance requirements is an obligation to comply with the ALS defined in the type design referenced in the manufacturer's conformity statement. This obligation may introduce a conflict with an AD that requires a specific ALS revision if new airplanes are delivered with a later revision as part of their type design.

    To address this conflict, the FAA has approved alternative methods of compliance (AMOCs) that allow operators to incorporate the most recent ALS revision into their maintenance/inspection programs, in lieu of the ALS revision required by the AD. This eliminates the conflict and enables the operator to comply with both the AD and the type design.

    However, compliance with AMOCs is normally optional, and we recently became aware that some operators choose to retain the AD-mandated ALS revision in their fleet-wide maintenance/inspection programs, including those for new airplanes delivered with later ALS revisions, to help standardize the maintenance of the fleet. To ensure that operators comply with the applicable ALS revision for newly delivered airplanes containing a later revision than that specified in an AD, we plan to limit the applicability of ADs that mandate ALS revisions to those airplanes that are subject to an earlier revision of the ALS, either as part of the type design or as mandated by an earlier AD.

    This proposed AD therefore would apply to Model CN-235, CN-235-200 and CN-235-300 airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued on or before the date of the ALS revision identified in this proposed AD. Operators of airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued after that date must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet.

    Costs of Compliance

    We estimate that this proposed AD affects 9 airplanes of U.S. registry.

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

    We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour)

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

    Regulatory Findings

    We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed above, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska; and

    4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    The Proposed Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.): Docket No. FAA-2018-0805; Product Identifier 2018-NM-103-AD. (a) Comments Due Date

    We must receive comments by November 23, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus Defense and Space S.A. (formerly known as Construcciones Aeronauticas, S.A.) Model CN-235, CN-235-200, and CN-235-300 airplanes, all manufacturer serial numbers, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before March 20, 2018. This AD does not apply to Model CN-235-300 airplanes in a Maritime Patrol (SM01) configuration.

    (d) Subject

    Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.

    (e) Reason

    This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. We are issuing this AD to address fatigue cracking, damage, and corrosion in principal structural elements; such fatigue cracking, damage, and corrosion could result in reduced structural integrity of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Maintenance or Inspection Program Revision

    Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Airbus Defence and Space CN-235 Airworthiness Limitations List, DT-86-3001, Issue R, dated March 20, 2018. The initial compliance times for doing the tasks are at the applicable times specified in Airbus Defence and Space CN-235 Airworthiness Limitations List, DT-86-3001, Issue R, dated March 20, 2018, or within 90 days after the effective date of this AD, whichever occurs later.

    (h) No Alternative Actions or Intervals

    After accomplishment of the revision required by paragraph (g) of this AD, no alternative actions (e.g., inspections) or intervals, may be used unless the actions or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (i)(1) of this AD.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (j)(2) of this AD. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Airbus Defense and Space S.A.'s EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0134, dated June 25, 2018, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0805.

    (2) For more information about this AD, contact Shahram Daneshmandi, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3220.

    (3) For service information identified in this AD, Airbus Defense and Space, Services/Engineering support, Avenida de Aragón 404, 28022 Madrid, Spain; telephone: +34 91 585 55 84; fax: +34 91 585 31 27; email: [email protected] You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on September 19, 2018. John P. Piccola, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-21608 Filed 10-5-18; 8:45 am] BILLING CODE 4910-13-P
    CONSUMER PRODUCT SAFETY COMMISSION 16 CFR Part 1130 [Docket No. CPSC-2018-0018] Amendment to Requirements for Consumer Registration of Durable Infant or Toddler Products AGENCY:

    Consumer Product Safety Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In 2009, the Consumer Product Safety Commission (CPSC) fulfilled a statutory requirement in the Consumer Product Safety Improvement Act of 2008 (CPSIA) to issue a rule requiring manufacturers of durable infant or toddler products to establish a consumer registration program. The Commission now proposes to amend the definition of “durable infant or toddler product” in the rule to include the full statutory definition; clarify that the scope of each listed product category is further defined in the applicable mandatory standard; clarify listed product categories using the product name in the applicable mandatory standard; and clarify the scope of the infant carriers and bassinets and cradles product categories.

    DATES:

    Submit comments by December 24, 2018.

    ADDRESSES:

    Comments, identified by Docket No. CPSC-2018-0018, may be submitted electronically or in writing:

    Electronic Submissions: Submit electronic comments to the Federal eRulemaking Portal at: http://www.regulations.gov. Follow the instructions for submitting comments. CPSC does not accept comments submitted by electronic mail (email), except through www.regulations.gov. CPSC encourages you to submit electronic comments by using the Federal eRulemaking Portal, as described above.

    Written Submissions: Submit written submissions in the following way: Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions) to: Division of the Secretariat, Consumer Product Safety Commission, Room 820, 4330 East-West Highway, Bethesda, MD 20814; telephone (301) 504-7923.

    Instructions: All submissions received must include the agency name and docket number for this proposed rulemaking. All comments received may be posted without change, including any personal identifiers, contact information, or other personal information provided, to: http://www.regulations.gov. Do not submit electronically any confidential business information, trade secret information, or other sensitive or protected information that you do not want to be available to the public. If you wish to provide such information, please submit it in writing.

    Docket: For access to the docket to read background documents or comments received, go to: http://www.regulations.gov, and insert the docket number, CPSC-2018-0018, into the “Search” box, and follow the prompts.

    FOR FURTHER INFORMATION CONTACT:

    Hope EJ Nesteruk, Project Manager, Children's Program Manager, Division of Mechanical and Combustion Engineering, Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; telephone: 301-987-2579; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background and Statutory Authority

    Section 104 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) is the Danny Keysar Child Product Safety Notification Act. Section 104 of the CPSIA requires that for “durable infant or toddler products,” the U.S. Consumer Product Safety Commission (CPSC) must (1) issue a mandatory rule for each product based on the applicable voluntary standard, and (2) issue a rule requiring consumer registration for such products. 15 U.S.C. 2056a(b) and (d).1 In 2009, the Commission issued a regulation to implement the second requirement, that manufacturers provide a means for consumers to register “durable infant or toddler products,” so that consumers can receive direct notification in the event of a product recall. The rule is codified at 16 CFR part 1130, Requirements for Consumer Registration of Durable Infant or Toddler Products (“part 1130” or the “consumer registration rule”).

    1 Since 2009, the Commission has issued final rules for 22 durable infant or toddler products, and issued one proposed rule for Inclined Infant Sleep Products that has not yet been finalized. Mandatory standards for durable infant or toddler products are codified in 16 CFR parts 1215 through 1235, and part 1237. Part 1236 is reserved for Inclined Infant Sleep Products.

    The two aspects of section 104, consumer registration and product standards, are both based on the definition of “durable infant or toddler product” set forth in section 104(f) of the CPSIA: “durable products intended for use, or that may be reasonably expected to be used, by children under the age of 5 years.” The statute lists 12 product categories included within the definition, such as cribs, toddler beds, high chairs, strollers, and swings. In a 2009 rulemaking, the Commission explained that the list of products in section 104(f), and codified in the Commission's consumer registration rule in 16 CFR 1130.2, is not static. At that time, the Commission added six product categories to the 12 listed in the CPSIA. 74 FR 68668, 68669 (Dec. 29, 2009).

    The Commission proposes to make the following changes to part 1130 to clarify the products the rule covers:

    • State the full statutory definition of “durable infant or toddler product” in section 104(f)(1);

    • Specify that the listed product categories are further defined in the applicable mandatory standards;

    • List “sling carriers,” “soft infant and toddler carriers,” “handheld infant carriers,” and “frame child carriers” as a subset of infant carriers, to avoid confusion regarding whether they are subject to the consumer registration rule and to reflect each product category using the name of the applicable mandatory standard;

    • Clarify that “bedside sleepers” are a subset of bassinets, to avoid confusion regarding whether they are subject to the consumer registration rule and to reflect the product name used in the mandatory standard; and

    • Revise the term “changing tables” to “baby changing products,” to reflect the product name used in the mandatory standard.

    This proposed rule is based on a briefing package CPSC staff provided to the Commission on September 26, 2018, Notice of Proposed Rulemaking: Updates to 16 CFR part 1130, Consumer Registration of Durable Infant or Toddler Products (Staff Briefing Package).2

    2 Staff Briefing Package available at: https://www.cpsc.gov/s3fs-public/NPR%20-%20Amendment%20to%20Requirements%20for%20Consumer%20Registration%20Durable%20Infant%20or%20Toddler%20Products%20-%20September%2026%202018.pdf?mYkYTfNkAYZ9KDgLEmbA.Mv5s.4P9UqW.

    II. Description of the Proposed Rule A. Definition

    The Commission proposes to update the definition of “durable infant or toddler product” in 16 CFR 1130.2(a) to state the full statutory definition of “durable infant or toddler product” and to clarify that the scope of the product categories listed can be found in the applicable mandatory standard. Section 104(f) of the CPSIA defines the term “durable infant or toddler product” as “a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years,” and states that the definition “includes” 12 categories of products:

    (A) full-size cribs and nonfull-size cribs;

    (B) toddler beds;

    (C) high chairs; booster chairs, and hook-on-chairs;

    (D) bath seats;

    (E) gates and other enclosures for confining a child;

    (F) play yards;

    (G) stationary activity centers;

    (H) infant carriers;

    (I) strollers;

    (J) walkers;

    (K) swings; and

    (L) bassinets and cradles.

    When the Commission finalized the consumer registration rule in 2009, the Commission listed the 12 statutory product categories, as well as six additional product categories the Commission determined fell within the scope of a “durable infant or toddler product”: Children's folding chairs, changing tables, infant bouncers, infant bathtubs, bed rails, and infant slings. 74 FR at 68669-70. However, the rule did not repeat the statutory phrase: “a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years.” Thus, currently one must look at both section 104(f) of the CPSIA and 16 CFR 1130.2 of the regulation to understand the full definition of “durable infant or toddler product.”

    B. Product Categories

    Since 2009, as the Commission has issued mandatory rules for the durable infant or toddler products, occasionally the name of the product category in the defined list does not match the name of the product category covered by a mandatory standard, or the scope of the products covered within a product category may be unclear. To clarify the product categories subject to the consumer registration rule, the Commission proposes to list in the rule the name of each product category that aligns with the name of the product category used in the applicable voluntary or mandatory standard.3 Further, to provide information on the scope of the products covered by a product category, the Commission proposes to state in the rule that the scope of the product category is further defined in the applicable mandatory standard.

    3 Some products may be listed in part 1130 before the Commission issues the corresponding mandatory standard. In those cases, the Commission will list the product category as defined in the current voluntary standard, which typically provides specificity about the scope of the product category.

    1. Infant Carriers

    Section 104(f)(H) of the CPSIA lists “infant carriers” as a product category included in the term “durable infant or toddler products.” However, ASTM international has four separate voluntary standards for infant carriers, and the Commission has now issued four separate mandatory standards, one for each subtype of infant carrier:

    • 16 CFR 1225, Hand-Held Infant Carriers • 16 CFR 1226, Soft Infant and Toddler Carriers • 16 CFR 1228, Sling Carriers • 16 CFR 1230, Frame Child Carriers

    Although the Commission added “Infant Slings” to the list of products in 16 CFR 1130.2(a) when finalizing the 2009 consumer registration rule, the registration rule does not list the other sub-categories of infant carriers. To clarify that all four types of infant carriers are subject to the consumer registration requirement, the Commission proposes to list each type of infant carrier in § 1130.2(a)(8) as a subset of the infant carrier category, using the name in the applicable mandatory standard.

    Accordingly, the Commission proposes to revise § 1130.2(a)(8), which currently states “Infant carriers,” to state: “Infant carriers, including soft infant and toddler carriers, hand-held infant carriers, sling carriers, and frame child carriers.” The Commission also proposes to delete “infant slings” as a separate product category in § 1130.2(a)(18), and to change the product name from “infant slings” to “sling carriers” in the revised § 1130.2(a)(8), to align with the name of the mandatory rule in part 1228. Thus, the proposed language retains the statutorily-defined category of “infant carrier” while clarifying the four types of infant carriers subject to part 1130.

    2. Bedside Sleepers

    Currently, the product “bedside sleepers” 4 is not listed in part 1130. However, when the Commission issued a mandatory rule pursuant to section 104(b) of the CPSIA (codified at 16 CFR part 1222) for bedside sleepers, the Commission considered bedside sleepers to be a subset of “bassinets and cradles.” In fact, the bedside sleeper voluntary standard, ASTM F2906, requires testing to ASTM F2194, Standard Consumer Safety Specification for Bassinets and Cradles, as the fundamental safety requirement for bedside sleepers. 79 FR 2581, 2583 (Jan. 15, 2014).

    4 A bedside sleeper is a bassinet-type product, intended to provide a sleeping environment for an infant up to approximately 5 months of age, or when a child begins to push up on his or her hands and knees, whichever comes first. These products are designed to be secured to an adult bed, for the purpose of having a baby sleep in close proximity to an adult.

    Many bedside sleepers on the market are multi-use products that also function as play yards or stand-alone bassinets; such multi-use products are required to provide a consumer registration for their play yard or bassinet mode. However, because bedside sleepers are not specifically listed in part 1130, it may be unclear whether a stand-alone bedside sleeper, i.e., without a secondary use mode, is subject to the consumer registration rule. To resolve any confusion, the Commission proposes to list “bedside sleepers” as a type of bassinet. Accordingly, the Commission proposes to revise § 1130.2(a)(12), which currently states: “Bassinets and cradles,” to state: “Bassinets and cradles, including bedside sleepers.”

    3. Changing Tables

    Currently, “changing tables” is listed as a durable infant or toddler product in 16 CFR 1130.2(14). However, the Commission's standard for these products is called “Safety Standard for Baby Changing Products,” codified at 16 CFR part 1235.5 CPSC's standard covers products that are included in the scope of the voluntary standard on which it is based, ASTM F2388-18, Standard Consumer Safety Specification for Baby Changing Products for Domestic Use. Accordingly, CPSC's standard includes changing tables, changing table accessories, contoured changing pads, and add-on changing units. Changing table accessories attach to another product to allow it to function as a changing table, and are typically included with the purchase of another product (e.g., crib or play yard) that currently requires product registration. Contoured changing pads and add-on changing units are typically sold independently of other products requiring registration. The Commission proposes revising § 1130.2(a)(14) to change the term “changing tables” to “baby changing products” to be consistent with the Commission's mandatory standard.

    5 The final rule for baby changing products was published June 26, 2018, and will become effective 12 months later.

    III. Effective Date

    The Administrative Procedure Act generally requires that the effective date of a rule be at least 30 days after publication of the final rule. This proposed rule clarifies existing product categories and expands one product category. Accordingly, the Commission proposes two effective dates.

    A. Thirty-Day Effective Date

    Most of the changes in this proposed rule are clarifications to the definition of “durable infant or toddler product” to state the full statutory definition, and to more clearly identify product categories that already are subject to the consumer registration rule (i.e., the statutory definition, infant carrier list, and bedside sleepers). Because these revisions clarify the text of the rule, and do not impose new burden on any manufacturer, the Commission proposes a 30-day effective date for the addition of the statutory language in § 1130.2(a), as well as the clarifications to product categories in sections 1130.2(a)(8), (a)(11), and (a)(12).

    B. Twelve-Month Effective Date

    A thirty day effective date is likely insufficient for products that have not previously been required to establish a consumer registration program. In the 2009 registration rulemaking the Commission provided a 12-month effective date for the six product categories the Commission added and six months for the other aspects of the rule. The Commission's decision to allow a 12-month effective date for added product categories was based on three comments expressing concern that 6 months would be insufficient to establish a consumer registration program, and requesting a one year effective date instead.

    Contoured changing pads have not previously been subject to the registration requirement. Although some manufacturers and importers of contoured changing pads likely distribute other durable infant and toddler products and would, therefore, have an established consumer registration program, the staff briefing package for the final rule for baby changing products identified 25 firms that supply only contoured changing pads to the market and no other changing products.6 At least 13 of these firms are not otherwise in the durable infant and toddler product market; therefore, they are unlikely to have an existing consumer registration program. Accordingly, the Commission proposes a 12-month effective date for contoured changing pads. The other types of “baby changing products,” (changing tables, changing table accessories, and add-on changing units) have all been required to be in compliance with part 1130 since December 29, 2010 under the previously listed category “changing tables.” 74 FR at 68669. Therefore, the 12-month effective date would only apply to contoured changing pads.

    6 Available at: https://www.cpsc.gov/s3fs-public/Final%20Rule%20-%20Safety%20Standard%20for%20Baby%20Changing%20Products%20-%20June%2013%202018.pdf.

    IV. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, when a notice of proposed rulemaking is required, agencies must review the proposed rule for the rule's potential economic impact on small entities, including small businesses. Section 603 of the RFA generally requires that agencies prepare an initial regulatory flexibility analysis (IRFA) and make it available to the public for comment when the NPR is published, unless the head of the agency certifies that the rule will not have a significant economic impact on a substantial number small entities. However, pursuant to section 104(d)(1) of the CPSIA, the provision that establishes the requirement for a consumer registration rule, the RFA does not apply when promulgating a rule under this provision. Consequently, the Commission has not prepared an IRFA and no certification is necessary. We note that the amendment mostly provides clarifications that would not have any economic impact. Providing a 12 month effective date for the one product that has not been subject to the registration rule, contoured changing pads, should reduce the economic impact on manufacturers of those products.

    V. Environmental Considerations

    The Commission's regulations address whether the agency is required to prepare an environmental assessment or an environmental impact statement. Under these regulations, certain categories of CPSC actions normally have “little or no potential for affecting the human environment,” and therefore, they do not require an environmental assessment or an environmental impact statement. 16 CFR 1021.5. This proposed rule falls within the categorical exclusion to prepare an environmental impact statement.

    VI. Paperwork Reduction Act

    Section 104(d)(1) of the CPSIA excludes this rulemaking from the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 through 3520. Consequently, no Paperwork Reduction Act analysis is necessary.

    VII. Preemption

    Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that when a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a standard or regulation that prescribes requirements for the performance, composition, contents, design, finish, construction, packaging, or labeling of such product dealing with the same risk of injury unless the state requirement is identical to the federal standard. The Commission's authority to issue this consumer registration rule is section 16(b) of the CPSA, 15 U.S.C. 2065(b). Accordingly, this rule is not a consumer product safety standard, and the preemption provision of section 26(a) of the CPSA does not apply to any final rule issued by the Commission.

    List of Subjects in 16 CFR Part 1130

    Administrative practice and procedure, Business and industry, Consumer protection, Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, the Commission proposes to amend part 1130 of title 16 of the Code of Federal Regulations as follows:

    PART 1130—REQUIREMENTS FOR CONSUMER REGISTRATION OF DURABLE INFANT OR TODDLER PRODUCTS 1. The authority citation for part 1130 continues to read as follows: Authority:

    15 U.S.C. 2056a, 2065(b).

    2. Amend § 1130.1 by revising the last sentence in paragraph (c) to read as follows:
    § 1130.1 Purpose, scope, and effective date.

    (c) * * * Compliance with this part 1130 shall be required on [DATE THAT IS 12 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] for contoured changing pads (a type of baby changing product). The rule shall apply to durable infant or toddler products, as defined in § 1130.2(a), that are manufactured on or after those dates.

    3. Amend § 1130.2 by: a. Revising paragraphs (a) introductory text and (a)(8), (11), (12), (14), and (17); and c. Removing paragraph (a)(18).

    The revision reads as follows:

    (a) Definition of Durable Infant or Toddler Product means the following products intended for use, or that may be reasonably expected to be used, by children under the age of 5 years. The listed product categories are further defined in the applicable standards that the Commission issues under section 104(b) of the Consumer Product Safety Improvement Act of 2008, and include products that are combinations of the following product categories:

    (8) Infant carrier, including soft infant and toddler carriers, hand-held infant carriers, sling carriers, and frame child carriers;

    (11) Swings;

    (12) Bassinets and cradles, including bedside sleepers;

    (14) Baby changing products;

    (17) Bed rails.

    Alberta E. Mills, Secretary, Consumer Product Safety Commission.
    [FR Doc. 2018-21865 Filed 10-5-18; 8:45 am] BILLING CODE 6355-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0843] RIN 1625-AA00 Safety Zone; Barters Island Bridge, Back River, Barters Island, ME AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a safety zone for the navigable waters within a 50 yard radius from the center point of the Barters Island Bridge, on the Back River, ME, approximately 4.6 miles north of the mouth of the waterway. When enforced, this proposed rulemaking would prohibit persons and vessels from being in the safety zone during bridge replacement operations unless authorized by the Captain of the Port Northern New England or a designated representative, which could pose as imminent hazard to persons and vessels operating in the area. The safety zone is necessary to protect personnel, vessels, and the marine environment from potential hazards created by the demolition, subsequent removal, and replacement of the Barters Island Bridge and a temporary bridge. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before November 8, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2018-0843 using the Federal eRulemaking Portal at https://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email LT Matthew Odom, Waterways Management Division, U.S. Coast Guard Sector Northern New England, telephone 207-347-5015, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code MEDOT Maine Department of Transportation II. Background, Purpose, and Legal Basis

    On April 27, 2018, the Maine Department of Transportation (MEDOT) applied for a bridge construction permit for Barter's Island Bridge with the Coast Guard. On June 22, 2018, the Coast Guard issued Public Notice 1-164, published it on the USCG Navigation Center website, and solicited comments through July 23, 2018. Three comments were received in response to the public notice: One commenter requested the project be stopped if any human remains, archaeological properties or other items of historical importance are unearthed and we report the findings. A second commenter notified us this project will not affect any Penobscot cultural/historic properties or interests and had no objection. A third commenter stated that Tennessee Gas Pipeline currently does not have facilities within the area. There were no statements of objection.

    On August 22, 2018, MEDOT requested by letter that the Coast Guard impose waterway restrictions on the Back River around the Barters Island Bridge between Hodgdon Island and Barters Island in Boothbay Harbor in support of the bridge improvements. The project includes the replacement of the swing span of the bridge and the existing center pier. A temporary fixed bridge will be used to maintain vehicle traffic during construction of the new bridge. The temporary fixed bridge will reduce the vertical clearance of the channel to 6.8 feet mean high water (MHW) from approximately November 1, 2019 through May 31, 2020. On or about June 1, 2020, the new swing bridge is expected to be operating with unlimited clearance in the open position. The anticipated date for removal of the temporary bridge is August 2020. A bridge protection system and bridge lighting will be installed as part of the new bridge. Captain of the Port (COTP) Northern New England has determined that hazards associated with the bridge replacement project will be a safety concern for anyone within a 50-yard radius from the center point of the of the Barters Island bridge. It is anticipated that the Back River will be closed because of this safety zone for a total of 85 non-continuous days.

    The purpose of this rulemaking is to protect personnel, vessels and the marine environment from potential hazards created during the replacement of the Barters Island Bridge, on the Back River, ME. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

    III. Discussion of Proposed Rule

    The COTP Northern New England proposes to establish a safety zone from December 1, 2018 through January 31, 2021. The safety zone would cover all navigable waters within a 50 yard radius of the center point of the Barters Island Bridge on Back River connecting Barter Island and Hodgdon Island, approximately 4.6 north of the mouth of the waterway. The duration of the zone is intended to ensure the safety of vessels, the maritime public, construction workers, and these navigable waters during the replacement of the Barters Island Bridge over the main channel of the Back River. During times of enforcement, no vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

    The Coast Guard will notify the public and local mariners of this safety zone through appropriate means, which may include, but are not limited to, publication in the Federal Register, the Local Notice to Mariners, and Broadcast Notice to Mariners via marine Channel 16 (VHF-FM) in advance of any enforcement.

    IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

    This regulatory action determination is based on the following reasons: (1) The safety zone only impacts a small designated area of Back River, (2) the safety zone will only be enforced during certain construction activities necessitating a full waterway closure for safety purposes, which is only anticipated to occur on 85 days over a two year period, or if there is an emergency, (3) persons or vessels desiring to enter the safety zone may do so with permission from the COTP Northern New England or a designated representative, (4) the Coast Guard will notify the public of the enforcement of this rule via appropriate means, such as via Local Notice to Mariners and Broadcast Notice to Mariners via marine Channel 16 (VHF-FM).

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    C. Collection of Information

    This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone that would prohibit entry within a 50 yards radius from the center point of the Barters Island Bridge during its removal and replacement over an approximately two year period. Normally such actions are categorically excluded from further review under paragraph L60 (a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration for Categorically Excluded Actions is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

    V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

    We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit https://www.regulations.gov/privacyNotice.

    Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C 1231; 50 U.S.C 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.T01-0843 to read as follows:
    § 165.T01-0843 Safety Zone; Barters Island Bridge, Back River, Barters Island, ME.

    (a) Location. The following area is a safety zone: All navigable waters on Back River, within a 50-yard radius of the center point of the Barters Island Bridge that spans Back River between Barters Island and Hodgdon Island in position 43°52′51″ N, 069°40′19″ W (NAD 83).

    (b) Definitions. As used in this section:

    Designated representative means any Coast Guard commissioned, warrant, petty officer, or any federal, state, or local law enforcement officer who has been designated by the Captain of the Port (COTP) Northern New England, to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.

    Official patrol vessels means any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP Northern New England to enforce this section.

    (c) Effective and enforcement period. This rule will be effective from 12:01 a.m. on December 1, 2018, through 11:59 p.m. on January 31, 2021, but will only be enforced during operations on replacement of the Barters Island Bridge or other instances which may cause which may cause a hazard to navigation, or when deemed necessary by the Captain of the Port (COTP), Northern New England.

    (d) Regulations. The general regulations contained in 33 CFR 165.23, as well as the following regulations, apply:

    (1) No person or vessel may enter or remain in this safety zone without the permission of the COTP or the COTP's designated representative.

    (2) To obtain permission required by this regulation, individuals may reach the COTP or the COTP's designated representative via Channel 16 (VHF-FM) or (207) 741-5465 (Sector Northern New England Command Center).

    (3) During periods of enforcement, any person or vessel permitted to enter the safety zone shall comply with the directions and orders of the COTP or the COTP's designated representative.

    (4) During periods of enforcement, upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing lights, or other means, the operator of a vessel within the zone must proceed as directed. Any person or vessel within the safety zone shall exit the zone when directed by the COTP or the COTP's designated representative.

    Dated: October 2, 2018. B.J. LeFebvre, Captain, U.S. Coast Guard, Captain of the Port, Sector Northern New England.
    [FR Doc. 2018-21868 Filed 10-5-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2018-0602; FRL-9985-14-Region 9] Air Plan Approval; California; El Dorado County Air Quality Management District; Reasonably Available Control Technology Demonstration AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a revision to the El Dorado County Air Quality Management District (EDCAQMD or “District”) portion of the California State Implementation Plan (SIP). This revision concerns the District's demonstration regarding Reasonably Available Control Technology (RACT) requirements for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS) and negative declarations for several source categories. We are proposing action on a local SIP revision under the Clean Air Act (CAA or “the Act”). We are taking comments on this proposal and plan to follow with a final action.

    DATES:

    Any comments must arrive by November 8, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2018-0602 at https://www.regulations.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Stanley Tong, EPA Region IX, (415) 947-4122, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us” and “our” refer to the EPA.

    Table of Contents I. The State's Submittal A. What document did the State submit? B. Are there other versions of this document? C. What is the purpose of the submitted document? II. The EPA's Evaluation and Proposed Action A. How is the EPA evaluating the submitted document? B. Does the submitted document meet the evaluation criteria? C. Public Comment and Proposed Action III. Statutory and Executive Order Reviews I. The State's Submittal A. What document did the State submit?

    On January 3, 2017, the EDCAQMD adopted the “Reasonably Available Control Technology (RACT) State Implementation Plan (SIP) Update Analysis Staff Report” (“2017 RACT SIP”), and on January 4, 2017, the California Air Resources Board (CARB) submitted it to the EPA for approval as a revision to the California SIP. The submittal also included EDCAQMD's Resolution 002-2017, approving the 2017 RACT SIP.

    On January 5, 2017, the EPA determined that the submittal for EDCAQMD's 2017 RACT SIP met the completeness criteria in 40 CFR part 51 appendix V, which must be met before formal EPA review.

    B. Are there other versions of this document?

    There are no previous versions of this document in the EDCAQMD portion of the California SIP for the 2008 8-hour ozone NAAQS.

    C. What is the purpose of the submitted document?

    Volatile organic compounds (VOCs) and oxides of nitrogen (NOX) together produce ground-level ozone, smog, and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC and NOX emissions. Sections 182(b)(2) and (f) require that SIPs for ozone nonattainment areas classified as Moderate or above implement RACT for any source covered by a Control Techniques Guidelines (CTG) document and for any major source of VOCs or NOX. The EDCAQMD is subject to this requirement because it regulates a nonattainment area classified as Severe for the 2008 8-hour ozone NAAQS. Therefore, the EDCAQMD must, at a minimum, adopt RACT-level controls for all sources covered by a CTG document and for all major non-CTG sources of VOCs or NOX within the nonattainment area that it regulates. Any stationary source that emits or has the potential to emit at least 25 tons per year (tpy) of VOCs or NOX is a major stationary source in a Severe ozone nonattainment area (CAA section 182(d), (f), and 302(j)).

    Section III.D of the preamble to the EPA's final rule to implement the 2008 8-hour ozone NAAQS (80 FR 12264, March 6, 2015) discusses RACT requirements. It states in part that RACT SIPs must contain adopted RACT regulations, certifications where appropriate that existing provisions are RACT, and/or negative declarations that no sources in the nonattainment area are covered by a specific CTG. Id. at 12278. It also provides that states must submit appropriate supporting information for their RACT submissions as described in the EPA's implementation rule for the 1997 ozone NAAQS. See id. and 70 FR 71612, 71652 (November 29, 2005).

    The submitted document provides EDCAQMD's analysis of its compliance with CAA section 182 RACT requirements for the 2008 8-hour ozone NAAQS. The EPA's technical support document (TSD) has more information about the District's submission and the EPA's evaluations thereof.

    II. The EPA's Evaluation and Proposed Action A. How is the EPA evaluating the submitted document?

    SIP rules must require RACT for each category of sources covered by a CTG document as well as each major source of VOCs or NOX in ozone nonattainment areas classified as Moderate or above (see CAA section 182(b)(2)). The EDCAQMD regulates a Serious ozone nonattainment area (see 40 CFR 81.305) so the District's rules must implement RACT.

    States should also submit for SIP approval negative declarations for those source categories for which they have not adopted CTG-based regulations (because they have no sources above the CTG-recommended applicability threshold) regardless of whether such negative declarations were made for an earlier SIP.1 To do so, the submittal should provide reasonable assurance that no sources subject to the CTG requirements currently exist in the EDCAQMD.

    1 57 FR 13498, 13512 (April 16, 1992).

    The District's analysis must demonstrate that each major source of VOCs or NOX in the ozone nonattainment area is covered by a RACT-level rule. In addition, for each CTG source category, the District must either demonstrate that a RACT-level rule is in place, or submit a negative declaration. Guidance and policy documents that we use to evaluate CAA section 182 RACT requirements include the following:

    1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992). 2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (“the Bluebook”, revised January 11, 1990). 3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (“the Little Bluebook”). 4. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NOX Supplement), 57 FR 55620, (November 25, 1992). 5. Memorandum from William T. Harnett to Regional Air Division Directors, dated May 18, 2006, “RACT Qs & As—Reasonably Available Control Technology (RACT) Questions and Answers.” 6. “Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard -Phase 2,” 70 FR 71612 (November 29, 2005). 7. “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements,” 80 FR 12264 (March 6, 2015). B. Does the submitted document meet the evaluation criteria?

    EDCAQMD's 2017 RACT SIP provides the District's demonstration that the applicable SIP for the El Dorado County AQMD satisfies CAA section 182 RACT requirements for the 2008 8-hour ozone NAAQS. This conclusion is based on the District's analysis of SIP-approved requirements that apply to: (1) Major non-CTG stationary sources of VOC or NOX emissions; and (2) CTG source categories.

    With respect to major stationary sources, the 2017 RACT SIP states the District has no major sources of air pollution that emit more than 25 tpy of VOC or NOX. The 2017 RACT SIP further states that the District's only major source, a biomass boiler, ceased operation in 2009 and the unit was dismantled in 2013. We reviewed CARB's emissions inventory database and agree with EDCAQMD's statement that there are currently no major stationary sources of VOC or NOX in the District.

    With respect to CTG source categories, we reviewed EDCAQMD's evaluation of its rules subject to RACT and we agree that its rules are generally consistent with the CTGs and recently adopted rules in neighboring air districts.

    Where there are no existing sources covered by a particular CTG document, or no major non-CTG sources, states may, in lieu of adopting RACT requirements for those sources, adopt negative declarations certifying that there are no such sources in the relevant nonattainment area. Table C of the 2017 RACT SIP lists the District's negative declarations where it has no sources subject to the applicable CTG for the 2008 8-hour ozone NAAQS. These negative declarations are re-listed in Table 1 below. The District concluded that it had no sources subject to the CTGs based on a review of its permit databases, Standard Industrial Classification codes, other source data, and its emissions inventory. In addition, the District concluded that it had no major non-CTG sources of NOX or VOCs, based on a review of the District emissions inventory, permit database, internet search, consultation with District Air Quality Specialists, and personal knowledge.2 The EPA searched CARB's emissions inventory database and conducted a general search on the internet for businesses in El Dorado County and also concluded that there do not appear to be facilities in the ozone nonattainment area that are subject to these CTGs. We believe that these negative declarations are consistent with the relevant policy and guidance regarding RACT.

    22017 RACT SIP at 3. This conclusion was also stated in the resolution approving the 2017 RACT SIP. Resolution 002-2017 at 2 (“The Board of Directors of the EDCAQMD has determined in the 2008 RACT SIP Update Analysis that . . . there are no major stationary sources of VOC or NOX in the District; . . . EDCAQMD has reviewed its permit database and files and conducted public outreach and has determined that there [is] . . . no “major source” of VOC or NOX in El Dorado County . . . .” Although major sources of NOX and VOCs are not included in the Table C list of negative declarations in the 2017 RACT SIP, we consider the unambiguous statements in the 2017 RACT SIP and Resolution 002-2017 that there are no major sources in the District sufficient to constitute a negative declaration for major NOX and VOC sources, and have thus included them in Table 1 below.

    Our TSD has more information on our evaluation of the submitted 2017 RACT SIP.

    Table 1—EDCAQMD Negative Declarations EPA document No. Title EPA-450/2-77-008 Control of Volatile Organic Emissions from Existing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks. EPA-450/2-77-022 Control of Volatile Organic Emissions from Solvent Metal Cleaning. EPA-450/2-77-025 Control of Refinery Vacuum Producing Systems, Wastewater Separators, and Process Unit Turnarounds. EPA-450/2-77-026 Control of Hydrocarbons from Tank Truck Gasoline Loading Terminals. EPA-450/2-77-032 Control of Volatile Organic Emissions from Existing Stationary Sources—Volume III: Surface Coating of Metal Furniture. EPA-450/2-77-033 Control of Volatile Organic Emissions from Existing Stationary Sources—Volume IV: Surface Coating of Insulation of Magnet Wire. EPA-450/2-77-034 Control of Volatile Organic Emissions from Existing Stationary Sources—Volume V: Surface Coating of Large Appliances. EPA-450/2-77-036 Control of Volatile Organic Emissions from Storage of Petroleum Liquids in Fixed-Roof Tanks. EPA-450/2-78-015 Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VI: Surface Coating of Miscellaneous Metal Parts and Products. EPA-450/2-78-029 Control of Volatile Organic Emissions from Manufacture of Synthesized Pharmaceutical Products. EPA-450/2-78-030 Control of Volatile Organic Emissions from Manufacture of Pneumatic Rubber Tires. EPA-450/2-78-032 Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VII: Factory Surface Coating of Flat Wood Paneling. EPA-450/2-78-033 Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VIII: Graphic Arts-Rotogravure and Flexography. EPA-450/2-78-036 Control of Volatile Organic Compound Leaks from Petroleum Refinery Equipment. EPA-450/2-78-047 Control of Volatile Organic Emissions from Petroleum Liquid Storage in External Floating Roof Tanks. EPA-450/3-82-009 Control of Volatile Organic Compound Emissions from Large Petroleum Dry Cleaners. EPA-450/3-83-006 Control of Volatile Organic Compound Leaks from Synthetic Organic Chemical Polymer and Resin Manufacturing Equipment. EPA-450/3-83-007 Control of Volatile Organic Compound Equipment Leaks from Natural Gas/Gasoline Processing Plants. EPA-450/3-83-008 Control of Volatile Organic Compound Emissions from Manufacture of High-Density Polyethylene, Polypropylene, and Polystyrene Resins. EPA-450/3-84-015 Control of Volatile Organic Compound Emissions from Air Oxidation Processes in Synthetic Organic Chemical Manufacturing Industry. EPA-450/4-91-031 Control of Volatile Organic Compound Emissions from Reactor Processes and Distillation Operations in Synthetic Organic Chemical Manufacturing Industry. EPA-453/R-96-007 Control of Volatile Organic Compound Emissions from Wood Furniture Manufacturing Operations. EPA-453/R-94-032 Alternative Control Technology Document—Surface Coating Operations at Shipbuilding and Ship Repair Facilities. 61 FR 44050; 8/27/96 Control Techniques Guidelines for Shipbuilding and Ship Repair Operations (Surface Coating). EPA-453/R-97-004, 59 FR 29216; 6/06/94 Aerospace MACT and Aerospace (CTG & MACT). EPA-453/R-06-001 Control Techniques Guidelines for Industrial Cleaning Solvents. EPA-453/R-06-002 Control Techniques Guidelines for Offset Lithographic Printing and Letterpress Printing. EPA-453/R-06-003 Control Techniques Guidelines for Flexible Package Printing. EPA-453/R-06-004 Control Techniques Guidelines for Flat Wood Paneling Coatings. EPA 453/R-07-003 Control Techniques Guidelines for Paper, Film, and Foil Coatings. EPA 453/R-07-004 Control Techniques Guidelines for Large Appliance Coatings. EPA 453/R-07-005 Control Techniques Guidelines for Metal Furniture Coatings. EPA 453/R-08-003 Control Techniques Guidelines for Miscellaneous Metal and Plastic Parts Coatings. EPA 453/R-08-004 Control Techniques Guidelines for Fiberglass Boat Manufacturing Materials. EPA 453/R-08-005 Control Techniques Guidelines for Miscellaneous Industrial Adhesives. EPA 453/R-08-006 Control Techniques Guidelines for Automobile and Light-Duty Truck Assembly Coatings. EPA 453/B16-001 Control Techniques Guidelines for the Oil and Natural Gas Industry. Major non-CTG VOC sources Major non-CTG NOX sources C. Public Comment and Proposed Action

    As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the 2017 RACT SIP including the above negative declarations because they fulfill the RACT SIP requirements under CAA sections 182(b) and (f) and 40 CFR 51.1112(a) and (b) for the 2008 ozone NAAQS. We will accept comments from the public on this proposal until November 8, 2018. If we take final action to approve the submitted documents, our final action will incorporate them into the federally enforceable SIP.

    III. Statutory and Executive Order Reviews

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

    • Does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, 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 the 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).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: September 26, 2018. Michael Stoker, Regional Administrator, Region IX.
    [FR Doc. 2018-21882 Filed 10-5-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2018-0383; FRL-9985-09-Region 5] Air Plan Approval; Illinois; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve, as a State Implementation Plan (SIP) revision, Illinois' certification that its SIP satisfies the nonattainment new source review (NNSR) requirements of the Clean Air Act (CAA) for the 2008 ozone National Ambient Air Quality Standard (NAAQS or Standard). Final approval of the Illinois NNSR certification SIP will permanently stop the Federal Implementation Plan (FIP) clocks triggered by EPA's February 3 and December 11, 2017 findings that Illinois failed to submit an NNSR plan for the Illinois portion of the Chicago-Naperville, Illinois-Indiana-Wisconsin area (Chicago Nonattainment Area).

    DATES:

    Written comments must be received on or before November 8, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2018-0383 at https://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the For Further Information Contact section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    David Ogulei, Environmental Engineer, Air Permits Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-0987, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. Background II. Summary of the State's Submittal III. What is EPA's analysis? IV. Proposed Action V. Statutory and Executive Order Reviews I. Background A. 2008 8-Hour Ozone NAAQS

    On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS based on the three most recent years of ambient air quality data available at the conclusion of the designation process. For ozone NAAQS, EPA must also classify any nonattainment areas at the time of designation based on the severity of their ozone levels (as determined based on the area's “design value” 1 ). See CAA sections 107(d)(1) and 181(a)(1) and 77 FR 34225. The possible classifications are “Marginal,” “Moderate,” “Serious,” “Severe,” and “Extreme.” Nonattainment areas with a lower classification (such as marginal areas) have ozone levels that are closer to meeting the standard than areas with a higher classification (such as Extreme areas). See CAA section 181(a)(1).

    1 Under 40 CFR 50.15, the “design value” for the 2008 8-hour ozone NAAQS is the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations.

    On March 6, 2015, EPA issued a final rule titled “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements” (SIP Requirements Rule), which detailed the requirements that state, tribal, and local air quality management agencies must meet as they develop implementation plans for areas where air quality exceeds the 2008 8-hour ozone NAAQS. See 80 FR 12264 (March 6, 2015).2 Areas that were designated as marginal ozone nonattainment areas were required to attain the 2008 8-hour ozone NAAQS no later than 36 months after the effective date of area designations for the 2008 8-hour ozone NAAQS (i.e., July 20, 2015), based on 2012-2014 monitoring data. See 40 CFR 51.1103.

    2 The SIP Requirements Rule addresses a range of nonattainment area SIP requirements for the 2008 8-hour ozone NAAQS, including requirements pertaining to attainment demonstrations, reasonable further progress (RFP), reasonably available control technology, reasonably available control measures, major new source review, emission inventories, and the timing of SIP submissions and of compliance with emission control measures in the SIP. The rule also revokes the 1997 ozone NAAQS and establishes anti-backsliding requirements.

    Areas designated nonattainment for the ozone NAAQS are subject to the general nonattainment area planning requirements of CAA section 172 and also to the ozone-specific planning requirements of CAA section 182. States in the Ozone Transport Region (OTR) 3 are additionally subject to the requirements outlined in CAA section 184. Ozone nonattainment areas in the lower classification levels have fewer and/or less stringent mandatory air quality planning and control requirements than those in higher classifications. For a marginal area, a state is required to submit a baseline emissions inventory, adopt a SIP requiring emissions statements from stationary sources, and implement a NNSR program for the relevant ozone standard. See CAA section 182(a). For each higher ozone nonattainment classification, a state must comply with all lower area classification requirements, plus additional emissions controls and more expansive NNSR offset requirements. For example, the state must comply with all marginal area classification requirements plus it must submit SIP revisions to: (1) Provide for reductions of emissions of volatile organic compounds (VOC) and nitrogen oxides (NOX) of at least 15 percent from baseline emissions over 6 years; (2) require the implementation of reasonably available control technology (RACT); (3) provide for a vehicle emissions inspection and maintenance (I/M) program; (4) include contingency measures for failure to attain; and (5) include stage II gasoline vapor recovery requirements. See 42 U.S.C. 7511a(b) and 7502.

    3 The OTR is comprised of the following states: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the Consolidated Metropolitan Statistical Area that includes the District of Columbia. 42 U.S.C. 7511c(a). States in the OTR are required to submit SIP revisions addressing reasonably available control technology (RACT) requirements for the pollutants that form ozone, even if the areas in the state meet the ozone standards.

    EPA classified the Chicago-Naperville, Illinois-Indiana-Wisconsin area (Chicago Nonattainment Area) as a marginal nonattainment area for the 2008 8-hour ozone NAAQS on June 11, 2012 (effective July 20, 2012) using certified ambient air quality monitoring data from calendar years 2009-2011. See 77 FR 34221. The Chicago area includes Cook, DuPage, Kane, Lake, McHenry, and Will Counties and parts of Grundy and Kendall Counties in Illinois; Lake and Porter Counties in Indiana; and part of Kenosha County in Wisconsin.

    On May 4, 2016, pursuant to section 181(b)(2) of the CAA, EPA determined that the Chicago area failed to attain the 2008 8-hour ozone NAAQS by the July 20, 2015, marginal area attainment deadline and did not meet the CAA section 181(a)(5) criteria, as interpreted in 40 CFR 51.1107, for a 1-year attainment date extension. See 81 FR 26697 (May 4, 2016). Thus, EPA reclassified this area by operation of law as moderate for the 2008 ozone NAAQS. Id. 4 In that action, EPA established January 1, 2017, as the due date for the state to submit all moderate area nonattainment plan SIP requirements applicable to newly reclassified areas.

    4 The Metro-East area also did not attain the 2008 8-hour ozone NAAQS by July 20, 2015; however, EPA found this area to be eligible for a 1-year attainment date extension, for a new attainment date of July 20, 2016. See 81 FR 26697 (May 4, 2016).

    As explained in the SIP Requirements Rule, Illinois was required to develop a SIP revision addressing NNSR requirements for its marginal ozone nonattainment areas by July 20, 2015. See 80 FR 12266 (March 6, 2015). Additionally, because the Chicago area was reclassified to moderate nonattainment, Illinois was required to submit a moderate area NNSR SIP by January 1, 2017. See 81 FR 26697 (May 4, 2016).5 NNSR is a preconstruction review permit program that applies to new major stationary sources or major modifications at existing sources located in a nonattainment area. See CAA sections 172(c)(5), 173 and 182. The specific NNSR requirements for the 2008 8-hour ozone NAAQS are located in 40 CFR 51.160-165.

    5 Illinois' obligation to submit the NNSR SIP was not affected by the D.C. Circuit Court's February 16, 2018 decision on portions of the SIP Requirements Rule in South Coast Air Quality Mgmt. Dist. v. EPA, No. 15-1115, 2018 U.S. App. LEXIS 3636 (DC Cir. Feb. 16, 2018).

    B. 2017 Findings of Failure To Submit SIPs for the 2008 8-Hour Ozone NAAQS

    On February 3, 2017, EPA found that 15 states and the District of Columbia failed to submit SIP revisions to satisfy certain nonattainment plan requirements for the 2008 ozone NAAQS. See 82 FR 9158. EPA found, inter alia, that Illinois failed to timely submit a SIP revision to satisfy NNSR requirements for the Chicago and Metro-East 6 ozone nonattainment areas. In addition, on December 11, 2017, EPA found, inter alia, that Illinois failed to timely submit a revision to its SIP to satisfy moderate NNSR requirements for the Chicago area. See 82 FR 58118.

    6 The Metro-East area includes the Illinois portion of the St. Louis-St. Charles-Farmington, Missouri-Illinois ozone nonattainment area, which includes Madison, Monroe and St. Clair Counties in Illinois, and Franklin, Jefferson, St. Charles, and St. Louis Counties and the City of St. Louis in Missouri.

    These findings established certain deadlines for the imposition of sanctions if a state does not submit a timely SIP revision addressing the requirements for which EPA made the findings and the requirement for EPA to promulgate a FIP to address any outstanding SIP requirements. Specifically, Illinois was required to submit a complete SIP addressing the deficiencies that were the basis for each finding within 18 months of the effective dates of the findings (i.e., September 6, 2018 and July 10, 2019, respectively) so as to avoid triggering, pursuant to CAA section 179(a) and (b) and 40 CFR 52.31, the offset sanction identified in CAA section 179(b)(2) in the affected nonattainment area. Additionally, these rules triggered the requirement for EPA to promulgate a FIP for the affected nonattainment area if EPA does not take final action to approve the state's submittal within 2 years of the effective date of the findings (i.e., March 6, 2019, and January 10, 2020, respectively).

    On March 1, 2018, EPA redesignated the Metro-East area to attainment for the 2008 8-hour ozone NAAQS because EPA found this area to have met the statutory requirements for redesignation to attainment under the CAA. See 83 FR 8756 (March 1, 2018). In that action, EPA also approved, as a revision to the Illinois SIP, Illinois' plan for maintaining the 2008 ozone NAAQS through calendar year 2030 in the Metro-East area. NNSR SIP revisions are no longer required if an area is redesignated to attainment; the CAA's Prevention of Significant Deterioration (PSD) program requirements apply in lieu of NNSR. See 82 FR 9160. Therefore, the finding of failure to submit no longer applies to areas that have been redesignated to attainment. Because the Metro-East area is now designated attainment, a NNSR SIP is not required for this area.

    On May 23, 2018, the Illinois Environmental Protection Agency (IEPA) submitted a SIP revision addressing the NNSR requirements of the CAA for areas designated as nonattainment for the 2008 ozone NAAQS. On July 12, 2018, EPA found that Illinois' NNSR SIP submission fulfilled the completeness criteria in 40 CFR part 51, appendix V.7 Through the completeness finding, EPA determined that the deficiencies which formed the basis for the February 3, 2017 and December 11, 2017 findings had been corrected and, as a result, the sanctions clock was permanently stopped. Final approval of Illinois' May 23, 2018 NNSR SIP revision would permanently stop the FIP clocks triggered by the February 3, 2017 and December 11, 2017 findings.

    7 Letter from Edward Nam, Director, Air & Radiation Division, EPA Region 5 to Julie Armitage, Chief, Bureau of Air, IEPA.

    II. Summary of the State's Submittal

    On May 23, 2018, IEPA submitted a SIP revision requesting EPA's approval of Illinois' certification that its existing SIP-approved NNSR regulations fully satisfy the NNSR requirements set forth in 40 CFR 51.165 for both marginal and moderate ozone nonattainment areas for the 2008 ozone NAAQS. IEPA indicates that its NNSR SIP submission is intended to respond to the February 3 and December 11, 2017 findings for the Chicago and Metro-East areas. Specifically, Illinois is certifying that its existing NNSR program covering its ozone nonattainment areas for the 2008 8-hour ozone NAAQS, including the Chicago Nonattainment Area, contains the NNSR elements required by 40 CFR 51.165, as amended by the SIP Requirements Rule, for ozone and its precursors.

    Illinois' submittal includes a document titled, “Illinois' Compliance With Nonattainment New Source Review Requirements For The 2008 Ozone Standard” (NNSR checklist), which contains Illinois' detailed assessment of how its SIP-approved NNSR regulations address each of the NNSR requirements for the 2008 ozone NAAQS as codified at 40 CFR 51.165. Illinois certifies that it already complies with CAA sections 172(c)(5) and 182(a)(2)(C), which require states that have been designated nonattainment for an ozone NAAQS to submit plans or plan revisions containing certain required elements, including permit programs for the construction and operation of new or modified stationary sources in the nonattainment area. Specifically, Illinois has certified that its existing State regulations in Title 35 of Illinois Administrative Code Part 203 (35 IAC Part 203) fully satisfy the NNSR requirements set forth in 40 CFR 51.165 for both marginal and moderate ozone nonattainment areas because they contain all NNSR SIP elements required by 40 CFR 51.165 for its ozone nonattainment areas. EPA proposes to find that Illinois' submittal addresses the State's obligations as described in the February 3 and December 11, 2017 findings.

    III. What is EPA's analysis?

    The minimum SIP requirements for NNSR permitting programs for the 2008 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR 51.1114. These NNSR program requirements include those promulgated in the “Phase 2 Rule” implementing the 1997 8-hour ozone NAAQS (75 FR 71018, November 29, 2005) and the SIP Requirements Rule implementing the 2008 8-hour ozone NAAQS. Under the Phase 2 Rule, the SIP for each ozone nonattainment area must contain NNSR provisions that: Set major source thresholds for NOX and VOC pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv) and (2); classify physical changes as a major source if the change would constitute a major source by itself pursuant to 40 CFR 51.165(a)(1)(iv)(A)(3); consider any significant net emissions increase of NOX as a significant net emissions increase for ozone pursuant to 40 CFR 51.165(a)(1)(v)(E); consider certain increases of VOC emissions in extreme ozone nonattainment areas as a significant net emissions increase and a major modification for ozone pursuant to 40 CFR 51.165(a)(1)(v)(F); set significant emissions rates for VOC and NOx as ozone precursors pursuant to 40 CFR 51.165(a)(1)(x)(A)-(C) and (E); contain provisions for emissions reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)-(2); provide that the requirements applicable to VOC also apply to NOX pursuant to 40 CFR 51.165(a)(8); and set offset ratios for VOC and NOX pursuant to 40 CFR 51.165(a)(9)(i)-(iii) (renumbered as (a)(9)(ii)-(iv) under the SIP Requirements Rule for the 2008 8-hour ozone NAAQS). Under the SIP Requirements Rule for the 2008 8-hour ozone NAAQS, the SIP for each ozone nonattainment area designated nonattainment for the 2008 8-hour ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS on April 6, 2015, must also contain NNSR provisions that include the anti-backsliding requirements at 40 CFR 51.1105. See 40 CFR 51.165(a)(12).

    Illinois' NNSR rules, as set forth in 35 IAC Part 203, Major Stationary Sources Construction And Modification, are designed to ensure that the construction of a major new source of air pollution or a large increase of emissions at an existing source does not interfere with the attainment demonstration and does not delay timely achievement of the ambient air quality standards. The rules require owners or operators of major projects to: (1) Apply the Lowest Achievable Emission Rate (LAER) or, for certain existing sources, the Best Available Control Technology (BACT) on emissions of the nonattainment pollutant from the major project; (2) offset the emissions of the nonattainment pollutant from a major project by emission reductions from other sources in the nonattainment area; (3) demonstrate that other sources in the State which are under common ownership or control with the person proposing the project are in compliance with the CAA; and (4) analyze alternatives to the particular project to determine whether the benefits of the project outweigh the environmental and social costs.

    EPA last approved revisions to Illinois' NNSR SIP on May 13, 2003. See 68 FR 25504 (May 13, 2003).8 In that action, EPA approved amendments to 35 IAC 203 to better track the language of CAA sections 182(c)(6), (7), and (8). See 68 FR 25505. The changes dealt with how one determines whether a proposed change at a source is a major modification.

    8 For other relevant approvals, see 45 FR 11470 (February 21, 1980); 46 FR 44172 (September 3, 1981); 50 FR 38803 (September 25, 1985); 51 FR 10837 (March 31, 1986); 57 FR 59928 (December 17,1992); and 60 FR 49778 (September 27, 1995).

    Based on our review of the NNSR checklist that Illinois incorporated into the SIP submittal, and the version of 35 IAC 203 approved into the Illinois SIP, we propose to find that Illinois' SIP-approved NNSR program at 35 IAC 203 contains the minimum required NNSR elements as specified in 40 CFR 51.165 for Illinois' ozone nonattainment areas. We are proposing to approve Illinois' certification that 35 IAC 203 is consistent with 40 CFR 51.165 and meets the requirements of CAA sections 172(c)(5), 173, 110(a)(2), 182(a)(4) and 182(b)(5) under the 2008 ozone standard for the Illinois portion of the Chicago Ozone Nonattainment Area. Final approval of Illinois' NNSR certification would address the deficiencies that were the basis for the February 3 and December 11, 2017 findings, and would turn off the FIP clock for the Illinois portion of the Chicago Nonattainment Area. While some of Illinois' regulations are worded or organized differently than the Federal counterparts, EPA proposes to find that these differences do not affect the relative stringency of such provisions.

    The following table lists the specific provisions of Illinois' NNSR rules that address the required elements of the Federal NNSR rules:

    Federal rule Illinois rule 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv), (2) 35 IAC 203.206(b). 40 CFR 51.165(a)(1)(iv)(A)(3) 35 IAC 203.206(c). 40 CFR 51.165(a)(1)(v)(E) 35 IAC 203.207(b). 40 CFR 51.165(a)(1)(v)(F) 35 IAC 203.207(f). 40 CFR 51.165(a)(1)(x)(A)-(C); (E) 35 IAC 203.207(d), (e) and (f), and 203.209(a) and (b). 40 CFR 51.165(a)(3)(ii) (C)(1)-(2) 35 IAC 203.302(a), 203.303(b) and (f), 203.602, and 203.701. 40 CFR 51.165(a)(8) 35 IAC 203.206(b), 203.207(b), (d), (e) and (f), 203.209(a) and (b), 203.301(e) and (f), and 203.302. 40 CFR 51.165(a)(9)(ii), (iv) 35 IAC 203.302(a). A. Major Source Thresholds for Ozone—40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv) and (2)

    The major source thresholds for both VOC and NOX (i.e., ozone precursors) are defined in 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv) and (2). The applicable thresholds vary depending on the classification of the ozone nonattainment area. For marginal and moderate ozone nonattainment areas, a major stationary source of ozone is a source that emits, or has the potential to emit, 100 tons per year or more of VOC or NOX. Different emissions thresholds apply for Serious, Severe, and Extreme ozone nonattainment areas and for areas located in an OTR.

    Illinois has certified that the Federal requirements for major source thresholds for VOC and NOX are addressed by 35 IAC 203.206(b). Under 35 IAC 203.206(b), for an area designated as nonattainment for ozone, a major stationary source is a stationary source which emits or has the potential to emit VOC 9 or NOX in an amount equal to or greater than (1) 100 tons per year in an area classified as marginal or moderate nonattainment for ozone; (2) 50 tons per year in an area classified as serious nonattainment for ozone; (3) 25 tons per year in an area classified as severe nonattainment for ozone; and (4) 10 tons per year in an area classified as extreme nonattainment for ozone. Illinois' thresholds are consistent with the Federal thresholds; therefore, we propose to find that Illinois' NNSR provisions at 35 IAC 203.206(b) satisfy the requirements of 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv) and (2).

    9 The Illinois SIP also refers to VOC as volatile organic material (VOM). See 35 IAC 211.7150.

    B. Change Constitutes Major Source by Itself—40 CFR 51.165(a)(1)(iv)(A)(3)

    Under 40 CFR 51.165(a)(1)(iv)(A)(3), any physical change that would occur at a stationary source not qualifying as a major stationary source becomes a major stationary source, if the change would constitute a major stationary source by itself. Illinois has certified that this requirement is addressed by 35 IAC 203.206(c), which provides that any physical change that occurs at a stationary source which does not qualify as a major stationary source will be considered a major stationary source, if the change would constitute a major stationary source by itself. Illinois' provisions at 35 IAC 203.206(c) for what constitutes a major source are consistent with the Federal provisions at 40 CFR 51.165(a)(1)(iv)(A)(3); therefore, we propose to find that the Illinois SIP at 35 IAC 203.206(c) satisfies the requirements of 40 CFR 51.165(a)(1)(iv)(A)(3).

    C. Significant Net Emissions Increase of NOX is Significant for Ozone—40 CFR 51.165(a)(1)(v)(E)

    Under 40 CFR 51.165(a)(1)(v)(E), any significant net emissions increase of NOX is considered significant for ozone. Illinois has certified that this requirement is addressed by 35 IAC 203.207(b), which provides that any net emissions increase that is significant for VOC or NOX shall be considered significant for ozone. Illinois' provisions at 35 IAC 203.207(b) are consistent with the Federal requirements at 40 CFR 51.165(a)(1)(v)(E); therefore, we propose to find that 35 IAC 203.207(b) satisfies the requirements of 40 CFR 51.165(a)(1)(v)(E).

    D. Any Emissions Change of VOC in an Extreme Area Triggers NNSR—40 CFR 51.165(a)(1)(v)(F)

    Under 40 CFR 51.165(a)(1)(v)(F), any physical change in, or change in the method of operation of, a major stationary source of VOC that results in any increase in emissions of VOC from any discrete operation, emissions unit, or other pollutant emitting activity at the source shall be considered a significant net emissions increase and a major modification for ozone, if the major stationary source is located in an extreme ozone nonattainment area that is subject to CAA title 1, part D subpart 2. Illinois has certified that this requirement is addressed by 35 IAC 203.207(f). That provision states that in areas classified as extreme nonattainment for ozone, beginning on the date that EPA classifies an area as an extreme nonattainment area for ozone, any physical change in or change in the method of operation of a major stationary source which results in any increase in emissions of VOC or NOX from a discrete operation, unit, or other pollutant emitting activity shall be considered a major modification. Illinois' provisions at 35 IAC 203.207(f) are consistent with the Federal requirements at 40 CFR 51.165(a)(1)(v)(F); therefore, we propose to find that 35 IAC 203.207(f) satisfies the requirements of 40 CFR 51.165(a)(1)(v)(F).

    E. Significant Emissions Rates for VOC and NOX as Ozone Precursors—40 CFR 51.165(a)(1)(x)(A)-(C) and (E)

    Under 40 CFR 51.165(a)(1)(x)(A), (B) and (C), the significant emission rate for ozone is defined as 40 tons per year of VOC or NOX, except that the significant emission rate in serious or extreme nonattainment areas shall be 25 tons per year. Under 40 CFR 51.165(a)(1)(x)(E), any increase in actual emissions of VOC from any emissions unit at a major stationary source of VOC located in an extreme ozone nonattainment area shall be considered a significant net emissions increase. Illinois has certified that it satisfies these requirements pursuant to 35 IAC 203.207(d), (e) and (f), and 35 IAC 203.209(a) and (b). Specifically, 35 IAC 203.207(d) and (e), and 35 IAC 203.209(a) and (b) establish the significant emission rate for ozone as 40 tons per year of VOC or NOX and 25 tons per year in serious or extreme nonattainment areas. Additionally, 35 IAC 203.207(f) specifies that in areas classified as extreme nonattainment for ozone, any physical change in or change in the method of operation of a major stationary source which results in any increase in emissions of VOC or NOX from a discrete operation, unit, or other pollutant emitting activity shall be considered a major modification. Because the Illinois SIP's provisions at 35 IAC 203.207(d), (e) and (f), and 35 IAC 203.209(a) and (b) are consistent with the Federal requirements at 40 CFR 51.165(a)(1)(x)(A)-(C) and (E), we propose to find that the above Illinois SIP provisions satisfy the requirements of 40 CFR 51.165(a)(1)(x)(A)-(C) and (E).

    F. Provisions for Emissions Reduction Credits—40 CFR 51.165(a)(3)(ii)(C)(1) and (2)

    Under 40 CFR 51.165(a)(3)(ii)(C)(1) and (2), to be considered creditable, emission reductions achieved by shutting down an existing emission unit or curtailing production or operating hours must be surplus, permanent, quantifiable, and federally enforceable. Shutdowns or curtailments must have occurred after the last day of the base year for the SIP planning process. Reviewing authorities may choose to consider a prior shutdown or curtailment to have occurred after the last day of the base year if the projected emissions inventory used to develop the attainment demonstration explicitly includes emissions from the previously shut down or curtailed emissions units, but in no event may credit be granted for shutdowns that occurred prior to August 7, 1977. Shutdown or curtailment reductions occurring before the last day of the base year for the SIP planning process may also be generally credited if the shutdown or curtailment occurred on or after the date the construction permit application is filed or if the applicant can establish that the proposed new emissions unit is a replacement for the shutdown or curtailed emission unit and the emission reductions that result are surplus, permanent, quantifiable, and federally enforceable.

    Illinois certifies that these requirements are satisfied by 35 IAC 203.302(a), 35 IAC 203.303(b) and (f), 35 IAC 203.602 and 35 IAC 203.701. In particular, 35 IAC 203.302(a) establishes a general obligation that “the owner or operator of a new major source or major modification shall provide emission offsets equal to or greater than the allowable emissions from the source or the net increase in emissions from the modification sufficient to allow [IEPA] to determine that the source or modification will not interfere with reasonable further progress [RFP] . . . ” With respect to 40 CFR 51.165(a)(3)(ii)(C)(1)(i), the Illinois SIP at 35 IAC 203.303(b) and 35 IAC 203.701 requires that all emission offsets must: (1) Be of the same pollutant and of a type with approximately the same qualitative significance for public health and welfare as that attributed to the increase from a particular change; (2) be federally enforceable by permit; (3) not have been previously relied on in issuing any permit pursuant to the Illinois SIP for demonstrating attainment or RFP; and (4) be maintained permanently. Further, 35 IAC 203.303(b)(3) restricts the use of emission reductions from past shutdowns or curtailments, and requires the proposed new or modified source to be a replacement for the shutdown or curtailment. Additionally, under 35 IAC 203.602, no person shall cause or allow the operation of a new major stationary source or major modification where the owner or operator has demonstrated that it would not interfere with RFP by providing emission offsets pursuant to 35 IAC 203.302 without maintaining those emission offsets or other equivalent offsets.10

    10 Illinois has explained that the phrase “other equivalent offsets” as used in 35 IAC 203.602, coupled with the language in 35 IAC 203.701, establishes that emission offsets must be permanent, and that if emission reductions relied upon by a source cease to be viable as offsets for some reason, the source would need to obtain equivalent offsets.

    With respect to 40 CFR 51.165(a)(3)(ii)(C)(2), we note that Illinois' language in 35 IAC 203.303(b)(3) does not explicitly require that shutdowns or curtailments occur on or after the date a permit application was filed, as specified in 40 CFR 51.165(a)(3)(ii)(C)(2). However, Illinois satisfies the Federal requirements by limiting in 35 IAC 203.303(b)(3) the circumstances under which prior shutdowns or curtailments can be credited as offsets. For example, given an applicant for a NNSR permit must provide emission offsets under 35 IAC 203.302, the meaning of the phrase “past shutdown” as used in 35 IAC 203.303(b)(3) is consistent with the wording of 40 CFR 51.165(a)(3)(ii)(C)(2)(i) as it establishes additional requirements for offsets that occurred prior to the filing of the application. Because 35 IAC 203.302(a), 35 IAC 203.303(b) and (f), 35 IAC 203.602 and 35 IAC 203.701 address all of the elements required by 40 CFR 51.165(a)(3)(ii)(C)(1) and (2), we propose to find that the Illinois SIP satisfies the requirements of 40 CFR 51.165(a)(3)(ii)(C)(1) and (2).

    G. Requirements for VOC Apply to NOX as Ozone Precursors—40 CFR 51.165(a)(8)

    Under 40 CFR 51.165(a)(8), all requirements applicable to major stationary sources and major modifications of VOC shall apply to NOX except where the Administrator has granted a NOX waiver applying the standards set forth under CAA section 182(f) and the waiver continues to apply. Illinois certifies that these Federal requirements are satisfied by 35 IAC 203.206(b) (major stationary source); 35 IAC 203.207(b), (d), (e) and (f) (major modification of a source); 35 IAC 203.209(a) and (b) (significant emissions determination); 35 IAC 203.301(e) and (f) (LAER); and 35 IAC 203.302 (maintenance of RFP and emission offsets). As already discussed, we have reviewed 35 IAC 203.206(b); 35 IAC 203.207(b), (d), (e) and (f); 35 IAC 203.209(a) and (b); and 35 IAC 203.302 and find that these provisions contain language that is consistent with the corresponding Federal NNSR requirements with respect to the treatment of VOC and NOX in ozone nonattainment areas. The Federal requirements for LAER are also addressed by 35 IAC 203.301(e) and (f), which establish specific LAER and BACT requirements for existing sources located in serious or severe ozone nonattainment areas. Because 35 IAC 203.206(b), 35 IAC 203.207(b), (d), (e) and (f), 35 IAC 203.209(a) and (b), 35 IAC 203.301(e) and (f), and 35 IAC 203.302 contain language that is consistent with the Federal requirements, we propose to find that the Illinois SIP satisfies the requirements of 40 CFR 51.165(a)(8).

    H. Offset Ratios for VOC and NOX for Ozone Nonattainment Areas—40 CFR 51.165(a)(9)(ii), (iv)

    Under 40 CFR 51.165(a)(9)(ii)(A)-(E), the VOC offset ratios shall be 1.1:1 in marginal ozone nonattainment areas, 1.15:1 in moderate ozone nonattainment areas, 1.2:1 in serious ozone nonattainment areas, 1.3:1 in severe ozone nonattainment areas, and 1.3:1 in severe ozone nonattainment areas. Illinois certifies that these requirements are satisfied by 35 IAC 203.302(a). Specifically, 35 IAC 203.302(a)(1) requires offset ratios for both VOC and NOX that are consistent with 40 CFR 51.165(a)(9)(ii)(A)-(E). Therefore, we propose to find that the Illinois SIP at 35 IAC 203.302(a) satisfies the requirements of 40 CFR 51.165(a)(9)(ii)(A)-(E).

    For ozone nonattainment areas subject to CAA title 1, part D, subpart 1 but not subpart 2, 40 CFR 51.165(a)(9)(iv) requires an offset ratio of at least 1:1. Because all of the current ozone nonattainment areas in Illinois were designated under CAA title 1, part D, subpart 2, 40 CFR 51.165(a)(9)(iv) does not apply to Illinois at this time.

    I. OTR Requirements

    Illinois' approved SIP does not contain the OTR provisions set forth in 40 CFR 51.165(a)(1)(iv)(A)(1)(ii), 40 CFR 51.165(a)(1)(iv)(A)(2)(ii), 40 CFR 51.165(a)(1)(v)(E), 40 CFR 51.165(a)(1)(x)(C), 40 CFR 51.165(a)(8), and 40 CFR 51.165(a)(9)(iii) because Illinois is not located in an OTR. Illinois is not required to include these requirements in its SIP until such time as EPA publishes rules that establish Illinois as a part of the OTR.

    J. Anti-backsliding Provisions for the Revoked 1997 NAAQS—40 CFR 51.165(a)(12)

    “Anti-backsliding” provisions are designed to ensure that for existing ozone nonattainment areas that are designated nonattainment for a revised and more stringent ozone NAAQS, (1) there is protection against degradation of air quality (i.e., the areas do not “backslide”), (2) the areas continue to make progress toward attainment of the new, more stringent NAAQS, and (3) there is consistency with the ozone NAAQS implementation framework outlined in CAA title 1, part D, subpart 2. See 78 FR 34211. As part of the SIP Requirements Rule, EPA revoked the 1997 NAAQS for all purposes and established anti-backsliding requirements for areas that remained designated nonattainment for the revoked NAAQS. See 80 FR 12265 and 40 CFR 51.165(a)(12). Under 40 CFR 51.165(a)(12), the anti-backsliding requirements at 40 CFR 51.1105 apply in any area designated nonattainment for the 2008 ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS on April 6, 2015. Illinois has certified that there were no areas designated as nonattainment for the 1997 8-hour ozone NAAQS on April 6, 2015.

    Attainment status designations for Illinois are found at 40 CFR 81.314. With respect to the 1997 8-hour ozone NAAQS, all areas in Illinois attained the 1997 8-hour ozone NAAQS prior to April 6, 2015. See 77 FR 25363 (April 30, 2012) and 77 FR 48062 (August 13, 2012). Since all areas in Illinois were designated as attainment or unclassifiable/attainment on April 6, 2015 for the 1997 8-hour ozone NAAQS, the anti-backsliding requirements of 40 CFR 51.165(a)(12) do not apply for the 2008 8-hour ozone NAAQS. Accordingly, Illinois' approved SIP does not contain the anti-backsliding provisions set forth in 40 CFR 51.165(a)(12).

    IV. Proposed Action

    EPA is proposing to approve Illinois' May 23, 2018 SIP revision addressing the NNSR requirements for the 2008 ozone NAAQS for the Chicago Nonattainment Area. EPA has concluded that Illinois' submission fulfills the 40 CFR 51.1114 revision requirement, meets the requirements of CAA sections 110 and 172 and the minimum SIP requirements of 40 CFR 51.165, as well as its obligations under EPA's February 3 and December 11, 2017 findings.

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

    The proposed rule approving Illinois' 2008 8-hour ozone NAAQS NNSR SIP revision 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).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 25, 2018. James Payne, Acting Regional Administrator, Region 5.
    [FR Doc. 2018-21877 Filed 10-5-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA-R05-OAR-2018-0368; EPA-R05-OAR-2018-0556; FRL-9985-10-Region 5] Air Quality Designation; Illinois; Indiana; Revised Designation of Illinois and Indiana 2012 PM2.5 Unclassifiable Areas AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve Illinois' May 8, 2018 request to revise the designation for the entire state of Illinois from unclassifiable to unclassifiable/attainment and Indiana's July 3, 2018 request to revise the designation for the Indiana portions of the Chicago IL-IN and Louisville KY-IN (herein referred to as Chicago and Louisville) areas from unclassifiable to unclassifiable/attainment for the 2012 primary and secondary annual fine particulate matter (PM2.5) National Ambient Air Quality Standards (NAAQS). EPA is proposing to approve these requests because valid, quality-assured, and certified ambient air monitoring data show that the PM2.5 monitors in the areas are meeting the 2012 primary and secondary annual PM2.5 NAAQS. This includes data from monitors in Illinois where data substitution rules have been applied consistent with applicable regulations.

    DATES:

    Comments must be received on or before November 8, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2018-0368 (Illinois) or EPA-R05-OAR-2018-0556 (Indiana) at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michelle Becker, Life Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-3901, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. Background II. What are the criteria for redesignating an area from unclassifiable to unclassifiable/attainment? III. What is EPA's rationale for proposing to revise the designation areas? IV. What action is EPA taking? V. Statutory and Executive Order Reviews I. Background

    The Clean Air Act (CAA) establishes a process for air quality management through the establishment and implementation of the NAAQS. After the promulgation of a new or revised NAAQS, EPA is required to designate areas, pursuant to section 107(d)(1) of the CAA, as attainment, nonattainment, or unclassifiable. On December 14, 2012, EPA promulgated a revised primary annual PM2.5 NAAQS to provide increased protection of public health from fine particle pollution (78 FR 3086, January 15, 2013). In that action, EPA revised the primary annual PM2.5 standard from 15.0 micrograms per cubic meter (μg/m3) to 12.0 μg/m3, which is attained when the 3-year average of the annual arithmetic mean concentration does not exceed 12.0 μg/m3. See also 40 CFR 50.18. EPA established the standards based on significant evidence and numerous health studies demonstrating that serious health effects are associated with exposures to fine particulate matter.

    The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d)(1) of the CAA. On January 15, 2015 (80 FR 2206) and April 7, 2015 (80 FR 18535), EPA designated areas across the country as nonattainment, unclassifiable, or unclassifiable/attainment for the PM2.5 NAAQS based upon air quality monitoring data from monitors for calendar years 2011-2013 or 2012-2014.

    In the first action referenced above, EPA designated the entire state of Illinois, including the multi-state areas of Chicago, IL-IN and St. Louis, MO-IL (herein referred to as St. Louis), as unclassifiable because the ambient air quality monitoring sites lacked complete data for the relevant periods, which were from 2011-2013. Therefore, EPA could not determine, based on available information, whether those areas were meeting the 2012 PM2.5 NAAQS. EPA also designated the Louisville area as nonattainment, based on monitoring data for Clark and Floyd counties for 2011-2013 showing that a monitor in Clark County had a design value above the standard.

    On April 7, 2015 (80 FR 18535), EPA changed the Louisville area initial designation from nonattainment to unclassifiable. Although Indiana submitted complete, quality-assured and certified 2014 data from the Clark County monitor showing it was attaining the NAAQS, EPA noted that an air quality determination was not possible due to invalid monitoring data for neighboring Jefferson County, Kentucky.

    On May 8, 2018, Illinois submitted to EPA a request to “redesignate” the State of Illinois, including the St. Louis area, from unclassifiable to unclassifiable/attainment based on three years of quality-assured, certified ambient air monitoring data for the three-year period of 2015-2017.

    On July 3, 2018, Indiana submitted to EPA a request to “redesignate” the Louisville and Chicago areas from unclassifiable to unclassifiable/attainment based on three years of quality-assured, certified ambient air monitoring data for the three-year period of 2015-2017.

    II. What are the criteria for revising a designation an area from unclassifiable to unclassifiable/attainment?

    Section 107(d)(3) of the CAA provides the framework for changing the area designations for any NAAQS pollutants. Section 107(d)(3)(A) provides that the Administrator may notify the Governor of any state that the designation of an area should be revised “on the basis of air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate.” The CAA further provides in section 107(d)(3)(D) that even if the Administrator has not notified a state Governor that a designation should be revised, the Governor of any state may, on the Governor's own motion, submit a request to revise the designation of any area, and the Administrator must approve or deny the request.

    When approving or denying a request to redesignate an area, EPA bases its decision on the air quality data for the area as well as the considerations provided under section 107(d)(3)(A). While CAA section 107(d)(3)(E) lists specific requirements for redesignations, those requirements only apply to redesignations of nonattainment areas to attainment and therefore are not applicable in this context of a revised designation of an area from unclassifiable to unclassifiable/attainment. In keeping with section 107(d)(3)(A), areas that request a revised designation to unclassifiable/attainment must meet the requirements for attainment areas and thus must meet the relevant NAAQS. The relevant monitoring data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA Air Quality System (AQS) database. The designated monitors generally should have remained at the same location for the duration of the monitoring period upon which the revised designation request is based.1

    1See Memorandum from John Calcagni, Director, EPA Air Quality Management Division, entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” (September 4, 1992).

    Additionally, appendix N of 40 CFR part 50 specifies the data handling conventions and computations necessary for determining when the NAAQS for PM2.5 are met. Appendix N contains data substitution tests, which allow incomplete monitoring data to be considered valid in certain instances prescribed by the rules. Appendix N also provides that, when the data substitution test conditions do not apply, EPA may consider other factors, such as monitoring site closures/moves, monitoring diligence, the consistency and levels of the daily values that are available, and nearby concentrations in determining whether to use such data. See 4.1(d) of appendix N.

    III. What is EPA's rationale for proposing to revise the designation areas?

    In order to revise the designation of an area from unclassifiable to unclassifiable/attainment for the 2012 primary and secondary annual PM2.5 NAAQS, the 3-year average of annual arithmetic mean concentrations (i.e., design value) over the most recent 3-year period must be less than or equal to 12.0 µg/m3 at all monitoring sites in the area over the full 3-year period, as determined in accordance with 40 CFR 50.18 and appendix N of part 50. EPA reviewed PM2.5 monitoring data from monitoring stations in the state of Illinois as well as the multi-state areas of St. Louis, Chicago, and Louisville for the 2012 primary and secondary annual PM2.5 NAAQS for the 3-year period of 2015-2017. These data have been quality-assured, certified, and recorded in AQS by Illinois, Indiana, Kentucky, and Missouri. As summarized in Tables 1-4, the design values for the monitors in the areas for the 2015-2017 period are below the 2012 primary and secondary annual PM2.5 NAAQS.

    Table 1—2012 Annual PM2.5 Design Values for Monitors in the Chicago, IL-IN Area for 2015-2017 Local site name Monitoring site 2015-2017 design value (μg/m3) Alsip 17-031-0001 9.5 Washington High School 17-031-0022 9.3 Mayfair Pump Station 17-031-0052 9.1 Springfield Pump Station 17-031-0057 10.2 Com Ed 17-031-0076 9.5 Schiller Park 17-031-3103 10.5 Summit 17-031-3301 9.7 Des Plaines 17-031-4007 9.4 Northbrook 17-031-4201 8.4 Cicero 17-031-6005 10.0 Naperville 17-043-4002 8.3 Elgin 17-089-0003 8.3 Aurora 17-089-0007 8.3 Cary 17-111-0001 + 8.2 Joliet 17-197-1002 7.9 Braidwood 17-197-1011 7.9 Washington School 18-089-0006 9.3 Gary Water * 18-089-0031 9.2 Purdue Calumet Powers Building * 18-089-2004 8.7 Water Treatment Plant * 18-127-0024 8.3 * Indiana monitor. + Data incomplete. Table 2—2012 Annual PM2.5 Design Values for St. Louis, MO-IL Monitors for 2015-2017 Local site name Monitoring site 2015-2017 design value (μg/m3) Jerseyville 17-083-0117 + 8.8 Granite City 17-119-1007 9.7 Alton 17-119-2009 8.8 Wood River 17-119-3007 8.7 Houston 17-157-0001 8.5 East St. Louis 17-163-0010 9.8 Blair Street * 29-510-0085 8.8 South Broadway * 29-510-0007 8.7 Arnold West * 29-099-0019 9.3 Ladue * 29-189-3001 9.4 Forest Park * 29-510-0094 8.5 * Missouri Monitor. + Data incomplete. Table 3—2012 Annual PM2.5 Design Values for Monitors in Remaining Illinois Areas for 2015-2017 Local site name Monitoring site 2015-2017 design value (μg/m3) Champaign 17-019-0006 7.9 Bondville 17-019-1001 7.8 Knight Prairie 17-065-0002 8.2 Normal 17-113-2003 8.0 Decatur 17-115-0013 8.4 Peoria 17-143-0037 8.2 Rock Island 17-161-3002 8.1 Springfield 17-167-0012 8.2 Rockford 17-201-0013 8.3 Table 4—2012 Annual PM2.5 Design Values for Monitors in the Louisville Area for 2015-2017 Local site name Monitoring site 2015-2017 design value (μg/m 3) Jefferson PFAU * 18-019-0006 9.6 Charlestown State Park * 18-019-0008 8.0 Green Valley Elementary School * 18-043-1004 8.5 Southwick 21-111-0043 9.7 Watson Lane 21-111-0051 9.2 Cannons Lane 21-111-0067 8.6 Durrett Lane 21-111-0075 9.4 * Indiana monitors.

    There are two groups of monitoring sites with incomplete data and for which data substitution rules were applied under appendix N of 40 CFR part 50. First, Illinois had eight monitoring sites with a data capture rate below 75 percent during at least one quarter, but had valid PM2.5 annual design values after applicable data substitution test conditions were applied consistent with section 4.1(c) of appendix N under 40 CFR part 50. These substitution rules were automatically applied in the EPA AQS database, and the data from these monitors all meet the 2012 PM2.5 NAAQS.2

    2 AQS contains ambient air pollution data collected by EPA, state, local, and tribal air pollution control agencies from over thousands of monitors and is used to assess air quality, assist in attainment/non-attainment designations, evaluate SIPs for non-attainment areas, and perform modeling for permit review analysis.

    Second, Illinois had two monitoring sites, Cary (17-111-0001) and Jerseyville (17-183-0117), that had at least one calendar quarter of data capture below 75 percent and did not meet the substitution test conditions under section 4.1(c) of appendix N. Because the substitution test conditions were not applicable, EPA considered other factors under section 4.1(d) of appendix N, such as monitoring site closures/moves, the consistency of daily levels, and nearby concentrations in determining whether the data from the monitors was valid. In addition, EPA performed a substitution test similar to the test methods specified in 4.1(c). Based on consideration of these factors, EPA determined that the data from these monitors could be used and the data showed that the areas were meeting the PM2.5 NAAQS, as described in the tables above. For more information regarding EPA's analyses, see the Technical Support Document titled “Evaluation of IL Monitors without valid 2017 PM2.5 Design Values” (July 2, 2018).

    Because the 3-year design values, based on valid, quality-assured data, demonstrate that the areas meet the 2012 primary and secondary annual PM2.5 standards, EPA is proposing to revise the designations of the entire state of Illinois, and the Indiana portions of the Chicago and Louisville areas from unclassifiable to unclassifiable/attainment for this NAAQS.

    IV. What action is EPA taking?

    EPA is proposing to approve Illinois' May 8, 2018 request to revise the designation of the entire state from unclassifiable to unclassifiable/attainment as well as Indiana's July 3, 2018 request to revise the designation of the Indiana portions of the Louisville and Chicago areas for the 2012 primary and secondary annual PM2.5 NAAQS. If finalized, approval of the revised designations requests would change the legal designation, found at 40 CFR part 81, for the state of Illinois and the Indiana counties of Lake, Porter, Clark, and Floyd from unclassifiable to unclassifiable/attainment for the 2012 primary and secondary annual PM2.5 NAAQS.

    V. Statutory and Executive Order Reviews

    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).

    List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Particulate matter.

    Dated: September 25, 2018. James Payne, Acting Regional Administrator, Region 5.
    [FR Doc. 2018-21878 Filed 10-5-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R4-ES-2018-0043; 4500030113] RIN 1018-BD13 Endangered and Threatened Wildlife and Plants; Threatened Species Status for Black-Capped Petrel With a Section 4(d) Rule AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to list the black-capped petrel (Pterodroma hasitata), a pelagic seabird species that nests on the island of Hispaniola and forages off the coast of the eastern United States, as a threatened species under the Endangered Species Act of 1973, as amended (Act). If we finalize this rule as proposed, it would extend the Act's protections to this species. We are also proposing a rule issued under section 4(d) of the Act to provide for the conservation of this species. We have determined that designation of critical habitat for the black-capped petrel is not prudent at this time, but are seeking public comment on that determination.

    DATES:

    We will accept comments received or postmarked on or before December 10, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by November 23, 2018.

    ADDRESSES:

    You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2018-0043, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rule box to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2018-0043; U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information).

    FOR FURTHER INFORMATION CONTACT:

    Edwin Muñiz, Field Supervisor, U.S. Fish and Wildlife Service, Caribbean Ecological Services Field Office, P.O. Box 491, Road 301 Km 5.1, Boquerón, PR; telephone 787-851-7297. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Information Requested

    We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal. We particularly seek comments concerning:

    (1) The black-capped petrel's biology, range, and population trends, including:

    (a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering that apply to both the foraging and nesting areas;

    (b) Genetics and taxonomy;

    (c) Historical and current range, including distribution patterns;

    (d) Historical and current population levels, and current and projected trends; and

    (e) Past and ongoing conservation measures for the species, its habitat, or both.

    (2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors on both the nesting and foraging grounds and migratory routes, including:

    (a) Impacts to prey species;

    (b) Predicted changes in the Gulf Stream current due to climate change;

    (c) Impacts from offshore and coastal lighting;

    (d) Impacts from offshore oil and gas exploration, development, production, and operations; and

    (e) Impacts from offshore wind energy operations.

    (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

    (4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including confirmed locations of any additional populations of this species.

    (5) Information on nesting sites on the islands of Cuba or Dominica, or other Caribbean islands.

    (6) Information concerning activities that should be considered under a rule issued in accordance with section 4(d) of the Act (16 U.S.C. 1531 et seq.) as a prohibition or exemption within U.S. territory that would contribute to the conservation of the species.

    (7) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act, including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether a designation could increase threats to the species such that the designation of critical habitat may not be prudent. We specifically request information on foraging habitat for the petrel, the only habitat located within U.S. jurisdiction, and its relationship to the biological needs of the species, to help us determine whether such habitat meets the definition of critical habitat under the Act.

    You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

    Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. All comments submitted electronically via http://www.regulations.gov will be presented on the website in their entirety as submitted. For comments submitted via hard copy, we will post your entire comment—including your personal identifying information—on http://www.regulations.gov. You may request at the top of your document that we withhold personal information, such as your street address, phone number, or email address, from public review; however, we cannot guarantee that we will be able to do so.

    Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”

    Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register (see DATES). Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule a public hea Federal Register and local newspapers at least 15 days before the hearing.

    Previous Federal Actions

    The black-capped petrel was included as a category 2 candidate species in a Federal Register notice of review dated November 15, 1994 (59 FR 58982). Category 2 candidates were taxa for which information was available indicating that listing was possibly appropriate, but insufficient data were available regarding biological vulnerability and threats. In a February 28, 1996, notice of review (61 FR 7596), we discontinued the use of multiple candidate categories and removed category 2 species, including the black-capped petrel, from the candidate list.

    We were petitioned by WildEarth Guardians on September 1, 2011, to list the species as endangered or threatened under the Act. On June 21, 2012, we published a 90-day finding, which determined there was substantial scientific or commercial information indicating that listing the species is warranted (77 FR 37367). On February 18, 2015, Center for Biological Diversity (CBD) filed a complaint against the Service for failure to complete a 12-month finding for the black-capped petrel. On September 9, 2015, the Service entered into a settlement agreement with CBD to resolve the complaint; the court approved the agreement on September 15, 2015. The agreement specified that a 12-month finding for the black-capped petrel would be delivered to the Federal Register by September 30, 2018. This document serves as our 12-month finding on the September 2011 petition.

    Species Status Assessment

    A species status assessment (SSA) team prepared an SSA report for the black-capped petrel; the science provided in the SSA, version 1.1, is the basis for this proposed rule (Service 2018). The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. The SSA report underwent independent peer review by scientists with expertise in seabird biology, habitat management, and stressors (factors negatively affecting the species) to the species. The SSA report and other materials relating to this proposal can be found on the Service's Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0043.

    Background

    A thorough review of the taxonomy, life history, and ecology of the black-capped petrel (Pterodroma hasitata) is presented in the SSA report (Service 2018); available at https://www.fws.gov/southeast and at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0043.

    The black-capped petrel is a pelagic seabird that is in the order Procellariiformes, family Procellariidae. This order is distinguished by sheathed nostrils in horny tubes from the base of the bill (Warham 1990, p. 2). It is a medium-sized seabird in the Pterodroma or gadfly genus with long slender wings and markings of a black cap and dark mantle separated by a white collar. The wings are black or dark in color on the top surface as well as the edges of the underwing. Certain morphological characteristics may vary across the species with “black-faced,” “white-face,” and “intermediate” variations of the species having different plumage coloration and patterns (Howell and Patteson 2008, p. 70). A study that compared the genetics of the dark birds to the light and intermediate-colored birds found a substantial differentiation indicating population breeding isolation (Manly et al. 2013, p. 231). The black-capped petrel is the only gadfly petrel species to breed in the West Indies. Petrels tend to maintain a strong relationship with their breeding grounds and return to the same nesting areas each year (Warham 1990, pp. 231-234). This site fidelity of these nesting birds tends to isolate breeding populations and can influence genetic, behavioral, and morphological variation due to limited genetic exchange. The variation between the dark and light birds included phenological, morphological, and behavioral differences (Howell and Patteson 2008, entire).

    Black-capped petrels currently breed at four locations on the island of Hispaniola (Pic Macaya, Haiti; Pic la Visite, Haiti; Morne Vincent/Sierra de Bahoruco, Haiti/Dominican Republic; and Valle Nuevo, Dominican Republic). Historically, the species also nested on Martinique, Dominica, Guadeloupe, and, possibly, Cuba (Simons et al. 2013, pp. S11-S19). Currently, at least 90 percent of the known nests are found within Parc National La Visite (Pic la Visite) in the Massif de la Selle mountain range in Haiti (Goetz et al. 2012, p. 5).

    Black-capped petrels spend most of their time at sea in the western Atlantic. The at-sea geographic distribution (marine range) of the black-capped petrel includes waters off the eastern coast of North America from latitude 40° N (approximately New Jersey) south to latitude 10° N (approximately northern South America) (Goetz et al. 2012, p. 4; Jodice et al. 2015, entire). Off the eastern coast of the United States, petrels forage primarily in the Gulf Stream, from northern North Carolina to northern Florida, in areas of upwelling; off the coast of North Carolina, the species is most commonly observed offshore seaward from the western edge of the Gulf Stream and in areas of deeper waters. Near-shore waters off the northern coast of Central and South America also serve as foraging areas for some black-capped petrels during the breeding season (Jodice et al. 2015, pp. 26-27). Recent surveys have also found black-capped petrels in the northern Gulf of Mexico (Haney 2018, pers. comm.). The range and extent of the species within the Gulf of Mexico is yet to be determined, but surveys are ongoing.

    Black-capped petrels feed mostly at night and pick their food from the water surface either solitarily or in close proximity to other foraging seabird species. The diet of black-capped petrels is not fully understood; however, stomach contents of black-capped petrels include squid, fish, crustaceans, and Sargassum or marine algae (Haney 1987, pp. 163-164; Simons et al. 2013, p. S30). The plant materials in the stomach suggest the species may forage around Sargassum mats, which tend to attract prey species leading to the ingestion of the algae materials while the petrels feed on their preferred prey. The limited amount of algae found within digestive tracts further suggests that petrels may only be incidentally foraging at the Sargassum (Moser and Lee 1992, p. 67).

    Black-capped petrel nesting areas are in high-elevation (greater than or equal to 1,500 meters (4,921 feet)), montane forests with steep slopes and rocky substrate with or without vegetation or humus cover that provides cavities for nesting burrows. They may also burrow at the base of native arborescent ferns (Jean and Brown 2018, in litt.). The nesting season begins around January, with high parental investment in the nest and chick rearing. The female lays only one egg each season, with an alternating male and female incubation period of 50 to 53 days, followed by shared parenting of the chick for a minimum of 80 days. Adults that are raising young may travel 500 to 1,500 kilometers (km) (310 to 932 miles (mi)) to obtain food for the young and have been found foraging in the Caribbean Sea (Jodice et al. 2015, pp. 26-27). Chicks fledge between May and July, and head out to sea to feed on their own (Simons et al. 2013, pp. S21-S22). When adult birds leave the nesting areas, they may migrate up to 2,200 km (1,367 mi) from the breeding grounds to primary offshore foraging areas off the mid-Atlantic and southern coasts of the United States (Jodice et al. 2015, p. 23).

    The travel of adults to and from nests during foraging bouts for the young generally occurs at night; this makes visual observations difficult. The nests are also in rugged montane areas that are not easily accessed, and burrows are difficult to detect. The species was historically used as a food source for the island inhabitants, as the young chicks are easily captured once a burrow is located. The petrels were also drawn in using manmade fires (Sen Sel) intended to disorient the birds, causing them to fly towards the light of the fire and ultimately crashing into the land nearby where they were captured for food (Wingate 1964, p. 154).

    Due to the cryptic nature of the species as described above, the species was thought to be extinct until it was rediscovered in by Wingate in 1963, in the Massif de la Selle mountain range in Haiti. The estimated population at that time was around 2,000 pairs, based on potential occupied suitable habitat; however, there is some uncertainty of the accuracy of this estimate due to the methods used to extrapolate. Wingate suggested the population may have been even higher (Wingate 1964, p. 154).

    Summary of Biological Status and Threats

    The Act directs us to determine whether any species is an endangered species or a threatened species because of specific factors affecting its continued existence (stressors). Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. The SSA report documents the results of our comprehensive biological status review for the black-capped petrel, including an assessment of the potential stressors to the species. It does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decision, which involves the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report.

    Risk Factors for Black-Capped Petrel

    We reviewed the potential risk factors (i.e., threats or stressors) that are affecting the black-capped petrel now and into the future. In this proposed rule, we will discuss in detail only those threats that we conclude are driving the status and future viability of the species. The primary threat to the species on the breeding grounds is habitat loss due to deforestation and forest fires (Factors A and E); additional threats that have affected the species include introduced mammals (Factor C), communication towers (Factor E), and artificial lighting (Factor E). The effects of climate change are also expected to affect the species through increased storm intensity and frequency, resulting in flooding of burrows and erosion of suitable nesting habitat (Factor E). Historically, human predation for consumption (Factor B) and natural disasters (Factor E), such as earthquakes and volcano eruptions, affected the viability of the species. However, there is no evidence that the species is still regularly harvested for consumption. While this was a threat to the species historically, causing the extirpation of some breeding populations, we do not currently consider it a threat to the species. Natural disasters, such as earthquakes and volcanic eruptions, are not regularly occurring events in the Caribbean. While geologic events such as these have occurred in the past, there is no information to indicate these would occur in the near future and were not considered in our analysis.

    At sea, the species may be affected by coastal and offshore wind farms (Factor E), offshore oil and gas development (Factor E), marine fisheries (Factor E), and mercury and plastic marine debris (Factor E). Lighting from fisheries and offshore energy operations can disorient the petrels. The predicted increase in strong Atlantic storms or hurricane frequency is also expected to lead to an increase in land strandings (Factor E).

    Synergistic interactions are possible between effects of climate change and effects of other potential threats such as habitat degradation, deforestation, agricultural development, and coastal or offshore energy development.

    We discuss each of these factors in more detail below.

    Deforestation

    Deforestation, and associated loss and degradation of nesting habitat, is considered the most significant threat to the black-capped petrel (Goetz et al. 2012, entire). Many of the Caribbean islands where petrels were historically reported have experienced extremely high rates of forest conversion and loss since European colonization. Urbanization, agricultural development, and tree harvest for building materials and charcoal production, are driving the changes in the forested areas where the petrels breed. Charcoal, along with firewood, is used for cooking and is one of the primary sources of energy in Haiti. The overwhelming dependence of the human population of Haiti on wood-based cooking fuels has resulted in substantial deforestation and forest conversion in both Haiti and adjacent regions of the Dominican Republic.

    On Hispaniola, where all known active petrel nesting sites occur, estimates of current deforestation range from over 90 percent (and increasing) for the Haitian portion (Churches et al. 2014, entire), to slightly less than 90 percent for the Dominican Republic portion (Castro et al. 2005, entire; BirdLife International 2010, entire; Simons et al. 2013, p. S31). Deforestation in the Haitian nesting areas is particularly significant for the petrel, given that up to 90 percent of all active nest sites of the species may occur in forested areas (Goetz et al. 2012, p. 5; J. Goetz, pers. comm.). Although deforestation in petrel nesting areas of the Dominican Republic has been comparatively lower, recent increases in forest clearing for subsistence agriculture and charcoal production in the Sierra de Bahoruco and other areas adjacent to the Haitian border have resulted in concomitant increases in nesting habitat loss and degradation there (Checo 2009, entire; Grupo Jaragua 2011, entire; Goetz et al. 2012, p. 7; Simons et al. 2013, p. S31).

    Forested nesting areas that appear to be suitable for the black-capped petrel occur on the nearby islands of Dominica and Cuba. However, black-capped petrels do not currently breed on these islands. The island of Dominica retains over 60 percent of native forests; likewise, Cuba retains approximately 24 percent of native forest cover (BirdLife International 2010, entire).

    Forest Fires

    Because the black-capped petrel is primarily a pelagic species, forest fires only affect the species directly during the nesting season. However, effects may be significant and potentially long-term, as fires set to clear land for agriculture can result in substantial loss and conversion of forested nesting habitat. Moreover, fires during the incubation and brooding phase can cause injury or mortality for adults and nestlings within nest burrows.

    The incidence of anthropogenic fires increases with growth of human populations (Wingate 1964, p. 154; Simons et al. 2013, p. S31). Although natural fires resulting from lightning strikes also occur, these tend to occur mainly during the wetter summer months (Robbins et al. 2008, entire). Naturally-occurring fires may help maintain open, park-like pine savannahs at higher elevations, which may be more accessible to petrels (Simons et al. 2013, p. S31). In contrast, most anthropogenic fires occur during the winter dry season, when petrels are actively nesting (Simons et al. 2013, p. S31) and thereby constitute more of a direct threat. Dry season fires also tend to be more intense, delaying or inhibiting forest recovery due to destruction of seed banks and organic humus layers (Rupp and Garrido 2013, entire).

    Fires also indirectly affect petrel nesting habitat by increasing erosion and mudslides following elimination of previously existing vegetation and ground cover. In the Massif de la Selle in Haiti, deliberately-set fires likely caused increased erosion of cliffs used for nesting by petrels; the fires were set to facilitate clearing of land and for fuel wood harvesting (Woods et al. 1992, pp. 196-205; Simons et al. 2013, p. S33). For years, such fires have also denuded large swaths of forest cover in the petrel nesting areas of Pic Macaya in the Massif de la Selle of Haiti (Sergile et al. 1992, pp. 5-12). In the petrel nesting areas of the Dominican Republic, fires are also at times deliberately set in retaliation for actions taken by government officials to evict or otherwise deter Haitian migrants engaged in illegal land-clearing activities (Rupp and Garrido 2013, entire).

    Nonnative Species

    Like most native Antillean species, the black-capped petrel evolved in the absence of mammalian ground predators. However, following European colonization, many Caribbean islands quickly became host to populations of introduced black rats (Rattus rattus), Norway rats (Rattus norvegicus), domestic dogs (Canis familiaris), feral pigs (Sus scrofa), and domestic cats (Felis domesticus). In the late 1800s, the deliberate introduction of the small Indian mongoose (Herpestes javanicus) resulted in apparently uncontrollable mongoose populations on all islands (except Dominica) where the petrel is known or suspected to nest or have once nested (Barun et al. 2011, pp. 19-20; Simons et al. 2013, p. S31). Following initial introduction to Jamaica in 1872, the mongoose was promptly introduced to Cuba (1882), Hispaniola (1895), Martinique (1889), and Guadeloupe (1880-1885; Simons et al. 2013; p. S31). Although introduced also on Dominica during the 1880s, that introduction of the mongoose was apparently unsuccessful (Henderson 1992, p. 4).

    While all of these introduced mammals have negatively affected other native Caribbean species (e.g., Henderson 1992, entire; White et al. 2014, pp. 35-38), their current impact on the black-capped petrel is largely unknown (Goetz et al. 2012, p. 7; Simons et al. 2013, p. S31). Nevertheless, rats in particular are known nest predators and have been observed at entrances to petrel nest burrows (Goetz et al. 2012, p. 7); thus, the potential clearly exists for rat predation on petrel nests. Mongooses, rats, and dogs likely played a major role in the extirpation of the Jamaican petrel (Pterodroma caribbaea) (Lewis et al. 2010, p. 2; Goetz et al. 2012, pp. 13-14; Simons et al. 2013, pp. S16-S17).

    Dogs are commonly kept by security personnel and allowed to roam free at night at communication towers near petrel nest sites in the Dominican Republic (Rupp et al. 2011, entire), and may excavate petrel nest burrows or prey on fledgling or adult petrels at or near nest entrances (Woods 1987, pp. 196-205; Goetz et al. 2012, p. 7). In fact, there are historical accounts of local inhabitants on Guadeloupe using trained dogs to assist in harvesting petrels for food (Simons et al. 2013, p. S12).

    Feral cats have also been documented at elevations up to 2,100 meters in the Sierra de Bahoruco of the Dominican Republic at the base of petrel nesting cliffs (Simons et al. 2013, p. S31). Feral cats are significant predators of Hawaiian petrels and of great-winged petrels (P. macroptera) on Kerguelen Island (Simons et al. 2013, p. S31), as well as of Barau's petrels (P. baraui) on Reunion Island (Faulquier et al. 2009, entire). Accordingly, any feral cats within black-capped petrel nesting areas should be considered potential threats.

    While these introduced species currently appear to be relatively scarce and at low densities near known black-capped petrel nest locations, even low numbers of these avian nest predators could significantly impact the few active nests that currently exist, particularly those in more accessible sites (Simons et al. 2013, pp. S31-S32). For example, a pack of only three free-ranging dogs reduced a breeding colony of white-tailed tropicbirds (Phaethon lepturus) on a Bahamian island by 80 percent in only 4 years (Simons et al. 2013, p. S32). It is not known whether current nest site selection by the black-capped petrel reflects the quality of the habitat or is the product of increased predation pressure (Simons et al. 2013, pp. S31-S32).

    Communication Towers and Artificial Lighting

    Recent years have seen the proliferation of telecommunication towers throughout the Caribbean islands. These towers are typically located on high mountain ridges, hills, and other prominent topographic features, and the structures extend several meters above canopy level. Many of the tallest are also secured by numerous guy wires (Longcore et al. 2008, entire; Simons et al. 2013, p. S32). Because of the nocturnal habits of black-capped petrels, combined with the high speed at which they fly, they are highly vulnerable to aerial collisions with these unseen structures, especially on foggy nights typical of the petrel nesting season (Goetz et al. 2012, p. 8; Longcore et al. 2013, entire; Simons et al. 2013, p. S32). There have been numerous documented cases of black-capped petrels being killed or injured by aerial collisions with these structures in or near their breeding areas (Goetz et al. 2012, p. 8; Simons et al. 2013, p. S32).

    Wind Farms

    The increasing use of wind farms on and near Caribbean islands may constitute a potential threat to flying petrels (Simons et al. 2013, p. S32). As with communication towers, land-based wind farms tend to be located on high ground, where winds are higher and more constant. Threats are not only associated with collisions with fan blades, but also disorientation from associated lights with which such structures are equipped. Offshore wind farms can cause localized upwelling of marine currents, thereby attracting potential food sources of petrels and further attracting them to such sites. Collisions with wind turbines are a potential concern, and displacement of seabirds from offshore wind farm areas has also been documented (Garthe et al. 2016, entire). However, most such proposed sites are located nearer to shore than the pelagic areas typically used by petrels for feeding, so this specific threat appears comparatively low (Simons et al. 2013, p. S32). Recent construction of inland wind farms near petrel nesting areas on Hispaniola (Jodice, in litt.) may constitute an additional and yet unquantified threat, given that there are currently no data on the flying height of black-capped petrels when approaching nesting areas.

    Offshore Oil and Gas

    Offshore oil and gas activity occurs off the coast of Cuba and northern South America near Venezuela and Colombia. Black-capped petrels use the area of the Caribbean Sea off Hispaniola to northern South America (Jodice et al. 2015, p. 28); accordingly, the birds that are foraging or resting in the waters near Cuba could be directly affected by petroleum or petroleum byproducts. Lighting from offshore platforms can also disorient the petrels.

    In the United States, proposed exploratory test drilling for oil and production along the edge of the continental shelf off the coast of North Carolina (Simons et al. 2013, p. S32) may be a future threat to black-capped petrels. The discovery of petroleum reserves in this zone, and within the main foraging area of the petrel, would most likely result in establishment of drilling and production structures. Petroleum residues or discharged contaminants from production could potentially increase the probability of incidental ingestion of petroleum fragments by surface-feeding birds (Simons et al. 2013, p. S32), as well as fouling of plumage from floating residues or oil spills. Although a black-capped petrel was once reportedly found with oil-fouled feathers, as well as one with petroleum fragments in the crop (Simons et al. 2013, p. S32), such incidents are relatively few and the genus Pterodroma is considered by some (e.g., Clapp et al. 1982, p. 1) to be less vulnerable than other species to such exposure, although there are few data regarding the validity of this assertion (Simons et al. 2013, p. S32).

    Oil platforms and related structures are also typically well-lit for worker safety, and lights disorient flying petrels, especially on foggy nights. Moreover, helicopters are frequently used to transport crew and equipment to offshore production facilities, and the effects of these low-altitude overflights on foraging petrels is unknown. Regardless, because most petrels that forage in this area are adults (Simons et al. 2013, pp. S23-S28), any increase in losses from threats on the foraging grounds would disproportionally affect the adult segment of the population.

    Although black-capped petrels have recently been recorded in the central and northeastern Gulf of Mexico where oil and gas activities are ongoing, the extent of use of this area is not yet understood. The species has recently been detected in the northern Gulf of Mexico (Service 2018, appendix A). Oil and gas operations are well-established in the northern Gulf of Mexico; however, based on the best available information, black-capped petrels have not been detected in close proximity to platforms (Farnsworth and Russell 2007, entire). Black-capped petrels were also not identified as a species affected by the Deepwater Horizon oil spill in 2010, which occurred in the northern Gulf of Mexico (NOAA 2016 pp. 4-461—4-515; Haney et al. 2014a, entire; Haney et al. 2014b, entire).

    Mercury and Plastic Pollution

    In a long-term study of plastic ingestion by seabirds off the coast of North Carolina, plastic was present in stomach contents of over 55 percent of 38 species sampled (Moser and Lee 1992, entire). However, only 1.8 percent of 57 black-capped petrels sampled during the study contained plastic. Black-capped petrels appear far less likely to incidentally ingest plastic fragments than many other seabirds (Simons et al. 2013, p. S33).

    Black-capped petrels do not forage heavily in areas along current edges where such residue and flotsam tend to collect, but rather in areas of current upwelling where nutrient-rich waters promote increased abundance of primary producers and prey species; this aspect of black-capped petrel foraging behavior may make them less vulnerable to incidental ingestion of such material (Simons et al. 2013, p. S33). However, black-capped petrels have been reported with relatively high concentrations of mercury (Simons et al. 2013, p. S33), with amounts up to seven to nine times higher than that of most other pelagic species sampled. Such high levels have been associated with reduced reproductive output and neurological damage in other avian species (Simons et al. 2013, p. S33). In fact, Procellariforms are known to be particularly susceptible to heavy metal bioaccumulation compared to other seabirds (Kim et al. 1996, pp. 262-265; Kojadinovic 2007a, entire; Kojadinovic 2007b, entire). It is postulated that increases in offshore oil drilling may increase such levels of contamination, via direct release of mercury and other heavy metals into the marine food chain (Simons et al. 2013, p. S33). Any black-capped petrels potentially foraging in the northern Gulf of Mexico may already be exposed to such contaminants. Although current implications of these findings for the black-capped petrel remain unknown, because of the well-documented adverse effects of mercury contamination and accumulation for wildlife species, any increases in such levels would logically not bode well for the black-capped petrel, which is apparently already exposed to higher than normal levels of this contaminant.

    Marine Fisheries

    Marine fisheries contribute to injury and mortality of seabirds through entanglement in clear monofilament fishing lines or getting caught in hooks (Furnuss 2003, entire, Li et al. 2012, p. 563). Because of the surface-feeding habits of the black-capped petrel, the species is not considered particularly vulnerable to effects of either long-line or pelagic gill net commercial marine fisheries (Simons et al. 2013, p. S33). There are no known reports of Pterodroma bycatch in any marine fisheries of the northern Gulf of Mexico, Atlantic, or Caribbean. There is little information from foreign fishing fleets regarding the impacts from fisheries (Simons et al. 2013, p. S33). Petrels tend to concentrate foraging activities in deep pelagic zones, rather than in areas of the continental shelf where most inshore fisheries occur. Thus, marine fisheries and associated activities are considered only a minor (albeit unquantified) threat to the black-capped petrel (Simons et al. 2013, p. S33).

    Climate Change

    Under current projections of climate change, the black-capped petrel faces potential effects on both the foraging and breeding areas (Simons et al. 2013, p. S33), although by different mechanisms. First, the observed very strong association of the black-capped petrel with Gulf Stream waters and associated current upwelling off the coast of the southeastern United States make the species vulnerable to any climate-induced changes to existing marine hydrology in this zone. Changes in either the direction or temperature of these marine currents could significantly alter the foraging ecology of the species. Because there are currently no specific projections of climate-induced changes or reversal of either the Florida Current or Gulf Stream proper, the threat to the petrel from this aspect of climate change is believed to be low (Simons et al. 2013, p. S33). However, projected climate-related increases in the frequency and intensity of Atlantic hurricanes over the next century could substantially increase the numbers of black-capped petrels driven inland and stranded by these storms, thereby increasing mortality (Hass et al. 2012, entire).

    Threats from climate change to the terrestrial requirements of black-capped petrel ecology are considered greater (Simons et al. 2013, p. S33). Among the primary projections for categorical climate-induced changes for the Caribbean basin are sea level rise and increased temperatures. Because of the petrels' use of high-elevation areas for nesting, changes in sea level are not considered to threaten the species. However, predicted temperature increases (Campbell et al. 2011, entire; Karmalkar et al. 2013, entire) may manifest in numerous ways that could likely affect the petrel. First, associated changes in precipitation may result in increased episodes of heavy rainfall from storms and hurricanes, which, under current landscape conditions, would likely result in increased erosion and the flooding and loss of nesting burrows and nesting sites (Simons et al. 2013, p. S33). On the other hand, decreases in precipitation combined with higher temperatures (Campbell et al. 2011, entire; Karmalkar et al. 2013, entire) may increase frequency of drought and attendant susceptibility of breeding areas to forest fires. Increased intensity of hurricanes and tropical storms (Hass et al. 2012, entire) may also adversely affect the petrel by further accelerating erosion and degradation of nesting areas (Simons et al. 2013, p. S33). Finally, increased temperatures may likely also increase incidents of new invasive or vector-borne diseases. Black-capped petrels may be immunologically vulnerable to such pathogens (Simons et al. 2013, pp. S33-S34); thus, these may pose an additional climate-induced risk for the species.

    Current Condition of the Black-Capped Petrel

    To assess black-capped petrel viability, we used the three conservation biology principles of resiliency, representation, and redundancy (together, “the three Rs,” (3Rs)) (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency refers to the ability of populations to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years or fluctuations in recruitment or adult survival); representation refers to the ability of the species to adapt over time to long-term changes in the environment that influence adaptive capacity through natural selection processes (for example, climate changes); and redundancy refers to the ability of the species to withstand catastrophic events (for example, droughts, hurricanes). In general, the more redundant and resilient a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

    The SSA process can be divided into three sequential stages. During the first stage, we used the 3Rs to evaluate individual life-history needs. During the next stage, we assessed the historical and current condition of species' demographics and habitat characteristics, including explaining how the species arrived at its current condition. In the final stage, we made predictions about the species' responses to positive and negative environmental and anthropogenic influences.

    We assessed a range of conditions to allow us to consider the species' resiliency, representation, and redundancy. For redundancy, populations were defined as isolated nesting areas across the known breeding range of the species. The four known extant nesting areas are on the island of Hispaniola: Pic Macaya, Pic la Visite, Morne Vincent/Sierra de Bahoruco, and Valle Nuevo. Black-capped petrels have also been detected through acoustic detections and radar “petrel-like targets” on the island of Dominica, but breeding has not been confirmed there, and, therefore, we will not consider this area as a population until more information is available. Accordingly, we conclude that there are four populations of the black-capped petrel.

    These populations were evaluated for resiliency based the number of acoustic and radar detections and nest success. To provide context for the current condition of the species, we considered the historic range to assess the species' resiliency, redundancy, and representation in the past. However, in addressing the species' current condition, only extant populations were analyzed. We evaluated the condition of each population based on nest success, the number of radar petrel-like targets per night and acoustic detections per minute. Overall population condition rankings and habitat condition rankings were determined by combining these factors and elements.

    We described representation for the black-capped petrel based on the two distinct color forms of unknown genetic or geographic origins. Geographic representation for the species consists currently of a loose assemblage of the four breeding populations on a single Caribbean island, Hispaniola.

    The black-capped petrel spends most of its life at sea, except during breeding, which takes place in high-elevation areas on Caribbean islands. The actual population size of the black-capped petrel is unknown: Published estimates range from approximately 2,000 to 4,000 birds, among which are 500 to 1,000 breeding pairs (Simons et al. 2013, p. S22). Though uncertain, recent estimates suggest that the numbers of breeding pairs at sites in the Dominican Republic may be currently be in the 10s to 100s (Simons et al. 2013, p. S22), while those in neighboring Haiti may range from approximately 500 to 1,500 (Goetz et al. 2012, pp. 4-5). Nesting areas in Haiti may contain up to 95 percent of currently known nest sites for this species (Simons et al. 2013, p. 23; Goetz et al. 2012, pp. 4-5). Using recent advances in detection methodology, specifically digital acoustic monitoring, evidence of approximately 60 active nest sites was found in the nesting areas of southwestern Dominican Republic (McKown 2014, entire).

    Population resiliency is the ability to respond to stochastic disturbances that may affect individual populations; examples of such disturbances affecting the black-capped petrel include climatic factors such as droughts (and associated fires), hurricanes, and excessive rainfall. These disturbances can reduce habitat quality and nesting success on the breeding grounds, and thus may negatively affect population growth. The black-capped petrel has a large parental investment, as they typically produce only one egg per year. The low reproductive output subjects the species to declines in nesting success due to varying environmental conditions (Simons 1984, entire). Resiliency, measured at the population level, is best characterized by the number of individuals per breeding population and nest success. A resilient black-capped petrel population requires multiple areas of suitable nesting habitat and consistent and adequate pelagic food resources in traditional feeding areas. There is currently an estimated total of 500 to 1,000 breeding pairs across the species' range given data and observations over the past 10 to 15 years (Simons et al. 2013, p. S22). Although the number of breeding pairs has declined precipitously from historic times to the present, the success of existing nests is relatively high (5-year mean of 75 percent; n = 175 nests). After correcting for search effort, the average number of black-capped petrels seen annually, from 1979 to 2016, along defined transects on foraging grounds in the western Atlantic region is relatively low.

    To determine and quantify current species-level overall resiliency, we compared current population resiliency to the historical optimal, based on known prior distribution and number of breeding populations. From the calculations, the current overall resiliency of the black-capped petrel is low, being approximately one-third (.333) of its historical resiliency. The results of our assessment reflect that the black-capped petrel has experienced a progressive reduction in two key demographic parameters over (at least) the past five centuries: (1) Population size and (2) number of breeding populations. These components are not mutually exclusive, as loss of breeding populations typically results in a decline in total population. Historical information also indicates that reductions were, and continue to be, primarily a result of human activities on the Caribbean islands, which historically hosted black-capped petrel breeding populations. Although declines largely occurred following European colonization of the Caribbean region in the 16th century, at least one breeding population (Martinique) was eliminated during pre-Columbian times by overharvesting for food by the resident Carib Indians. Thus, the cumulative actions of human populations on Caribbean islands have progressively reduced the overall extent of known black-capped petrel breeding populations from that of at least seven populations on four different islands, to four current populations, all located on one island (i.e., southwestern Hispaniola). Geographic isolation increases the vulnerability of the species to catastrophic events, such as major hurricanes. Our estimates of little to no redundancy and representation are reflective of the species' vulnerability to such events.

    Once breeding populations of the black-capped petrel became geographically limited to southwestern Hispaniola, a suite of additional factors began to work synergistically to further reduce the overall population of the species. Among these, habitat loss and degradation have been, and continue to be, the most pernicious. Anthropogenic habitat loss and associated factors threaten the remaining breeding populations on Hispaniola and have almost certainly contributed to the substantial decline in overall numbers of the black-capped petrel over the past 50 years. There has also been an apparent concomitant decrease in petrel numbers within most individual breeding populations. Our estimate of low resiliency for the black-capped petrel reflects extensive nesting habitat loss and degradation, and subsequent declines in petrel population size.

    Redundancy reflects the capacity of a species to persist in the face of catastrophic events, and is best achieved by having multiple, widely distributed populations across the geographical range of the species. Black-capped petrel redundancy is characterized by the number and geographic dispersion of breeding populations. Historically, the species' breeding range included Hispaniola, Dominica, Guadaloupe, Martinique, and possibly Cuba. Currently, redundancy is characterized by only four known breeding populations occurring on one island. Moreover, given the relatively close proximity and analogous life-history characteristics of all known nesting colonies, the probability that all colonies would be similarly affected by a given extreme climatic event is quite high. Although total numbers of nests per population are highly uncertain, the majority (80 to 90 percent) of nests are believed to be within the Pic Visite nesting area (J. Goetz, pers. comm.), an area currently subject to significant and increasing pressure from deforestation and other anthropogenic activities.

    Current representation in terms of nesting habitat is limited to a relatively narrow range of characteristics shared by all four known breeding areas. Historical records up to at least the early 19th century documented nesting by the petrel on at least three additional islands: Dominica, Guadeloupe, and Martinique (Simons et al. 2013, pp. S10-S13). Of these, there is credible evidence of the possible existence of an extant breeding population only on Dominica (Brown 2015, entire). Thus, there are credible past records of up to at least seven breeding populations of the species within the Caribbean, compared to perhaps only four currently, for an approximate 43-percent reduction in geographic representation since the early 19th century.

    Conservation Actions

    Over at least the past decade, the threats to continued viability of the black-capped petrel have become well-known both locally (i.e., on Hispaniola) and internationally, and several nongovernment organizations (NGOs) are currently working in both Haiti and the Dominican Republic in an effort to reduce or otherwise mitigate the severity of these threats. These NGOs include international organizations (e.g., BirdsCaribbean, Environmental Protection in the Caribbean, Plant with Purpose, American Bird Conservancy, International Black-capped petrel Conservation Group) as well as local organizations (e.g., Grupo Jaragua, Société Audubon Haiti).

    Because most of the threats to the black-capped petrel are directly the result of anthropogenic activities, these NGOs have been providing technical assistance and education on sustainable agricultural practices, watershed management, and reforestation of previously deforested and degraded areas in the regions where petrels nest. These actions are in addition to “traditional” conservation efforts such as environmental education and heightened awareness of, and appreciation for, the black-capped petrel at the local level.

    For example, in the community of Boukan Chat, Haiti (adjacent the Morne Vincent petrel nesting area), NGOs have developed black-capped petrel educational programs for local schoolchildren, provided financial and technical assistance with construction of freshwater cisterns, and provided tree seeds and technical assistance for local reforestation projects. Some residents of Boukan Chat have also been hired to work toward improving community awareness of the black-capped petrel and its plight, and how sustainable land management can be mutually beneficial to both the community and the petrel.

    Other such NGO efforts include production of a documentary video highlighting the black-capped petrel and detailing local efforts to save the species. Additional efforts include active monitoring for forest fires near petrel nesting areas, continued monitoring of petrel nest success in the Morne Vincent/Sierra del Bahoruco nesting area, continued radar and bioacoustical monitoring for petrel detections, and working with owners of a local communication tower to reduce nocturnal lighting intensity as a means to reduce black-capped petrel collisions with these structures (Brown 2016, entire; IBPCG 2016, entire; IBPCG 2017, entire). However, these NGO efforts, albeit locally successful, are still relatively limited in both geographic scope and funding, and there are yet other areas of Hispaniola that harbor black-capped petrel nesting colonies (e.g., Pic Macaya, Pic La Visite) that could likely benefit from similar efforts.

    The black-capped petrel was added to an existing international agreement in 2014, under the Protocol Concerning Specially Protected Areas and Wildlife in the Wider Caribbean Region (SPAW). The SPAW Protocol is pursuant to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region. The SPAW Protocol was adopted in 1990, and entered into force in 2000. The United States ratified the SPAW Protocol in 2003. There are currently 16 State Parties to the SPAW Protocol from throughout the wider Caribbean region. At least 90 to 95 percent of all black-capped petrel nests are within Haiti or along its border with the Dominican Republic. Although the Dominican Republic is a party to the SPAW Protocol, Haiti is not, and the lack of conservation efforts in Haiti leaves the species vulnerable to ongoing and future impacts to the petrel's nesting habitat.

    Future Condition of the Black-Capped Petrel

    To assess the future condition of the species, we define viability as the ability of the species to sustain wild populations, both across its range and among representative units beyond a biologically meaningful timeframe. The estimated generation time of the black-capped petrel is 5 years (Goetz et al. 2012, p. 5; Simons et al. 2013, p. S22); 50 years encompasses approximately 10 generations, which we believe is an appropriate time horizon to realize predicted effects of factors acting on species viability. However, we also examined factors affecting species viability at shorter time intervals (10 and 25 years), corresponding to approximately two and five black-capped petrel generations, so that we could understand dynamics affecting the species from current condition to the end of the 50-year predictive time horizon (Service 2018, p. 45).

    We used the best available information to assess the predicted future viability of the black-capped petrel. In doing so, we considered all recognized threats to the species and how and why they may impinge upon species viability. In the process, we observed that the numerous distinct threats shared common underlying drivers, and of these, the two that encompassed virtually all threats were (1) Regional climate change, and (2) human population growth, particularly on Hispaniola, where all currently known nesting by the petrel occurs. Importantly, for both of these identified drivers, there exists a body of empirical data on which to base reasonable predictions of future conditions for the black-capped petrel. Rather than attempting to predict future levels of all of the diverse threats, many of which lack adequate quantitative data, we chose instead to examine future projections for these two overarching drivers. To employ this approach, we used a combination of black-capped petrel population trajectories over the past 50 years, past trends and current levels of threats, and recognized causal relationships between and among drivers and threats, to incorporate them into a model to arrive at what we believe to be the most likely future status of the black-capped petrel.

    When determining the effects of climate on the black-capped petrel, we used the most recent analyses of projected future climate patterns in the Caribbean region that predict a median increase in annual surface air temperature of 2.8 degrees Celsius (°C) (37 degrees Fahrenheit (°F)) within the current petrel nesting areas on Hispaniola by year 2080 (Campbell et al. 2010, entire; Karmalkar 2013, entire). Additionally, precipitation is projected to substantially decrease during both the early (May to July) and late (August to October) wet seasons for these same areas with a generally drier precipitation pattern year-round. Percentage decreases in early wet season precipitation are projected to be greater (median −41 percent) than decreases in late wet season precipitation (median −22 percent). In general, decreases in wet season precipitation are particularly significant, as those months are when the greatest amount of annual rainfall occurs (Karmalkar et al. 2013, pp. 301-303). Decreases in dry season precipitation are projected to be comparatively less than decreases during the wet seasons by current models (Karmalkar et al. 2013, pp. 301-303), resulting in an overall future reduction in the degree of bimodality of current wet and dry seasons in the western Caribbean (e.g., Hispaniola). Thus, the local climate of the currently known black-capped petrel nesting areas on Hispaniola is projected to become hotter and drier over the next 50 to 60 years with less differentiation between wet season and dry season rainfall amounts.

    Although the full ecological effects of a projected hotter and drier climate in the current black-capped petrel nesting areas on Hispaniola are complex and yet unknown, such a change will likely increase the frequency and intensity of forest fires. Currently, anthropogenic forest fires cause substantial habitat degradation and loss both within and adjacent to the petrel nesting areas (Sergile et al. 1992, entire; Goetz et al. 2012, p. 7; Rupp and Garrido 2013, entire; Simons et al. 2013, p. S31), and any increases in this disturbance are likely to have significant adverse effects on species viability. Decreased rainfall and humidity during the traditional wet seasons may also exacerbate effects of naturally occurring fires from lightning strikes. Fires would likely become more intense and extensive, mimicking the effects of the more damaging dry season anthropogenic fires. Such effects include elimination of naturally occurring seed banks, increased erosion and mudslides, and loss of accumulated organic humus layers that may be used as nest sites by black-capped petrels. Moreover, because the early wet season (May to July) is projected to experience the greatest reduction in precipitation, increased occurrence of forest fires at such time may increase risks to nesting black-capped petrels as well as fledglings, which leave nests during this season.

    Changes in temperatures and rainfall patterns are not the only projected effects of regional climate change for Hispaniola. Recent projections indicate the frequency of intense hurricanes (i.e., Categories 4 and 5) are predicted to not only increase for the region, but also the amount of precipitation associated with these atmospheric events is projected to increase by at least 11 percent, with up to 20- to 30-percent increases in precipitation near the center of these storms (Elsner et al. 2008, entire; Knutson et al. 2013, entire). Fewer Atlantic hurricanes are projected; however, the intensity of the storms is expected to increase (Bender et al. 2010, p. 458). In upper elevation Caribbean forests, intense hurricanes cause widespread and severe damage to vegetation at all strata, including large accumulations of organic debris that may block or otherwise impede access by petrels to previously existing nest burrows. The physical and ecological effects of these storms may persist for decades (Lugo 2008, entire) and include redirection of ecological succession, changes in the ecological space available to organisms, and wholesale changes in forest microhabitats. In particular, hurricane-induced erosion and landslides could have potentially severe effects on black-capped petrels by degrading or eliminating currently productive nesting areas, particularly if said areas undergo prior degradation and ground cover loss due to forest fires or anthropogenic land-clearing. A massive landslide is believed to have eliminated the only known nesting area for the black-capped petrel on the island of Guadeloupe, resulting in the species' extirpation from that island (Simons et al. 2013, pp. S11-S12).

    Projected climate change and associated effects on hurricane intensities may also have repercussions for black-capped petrels in their marine foraging areas. Over 100 years of data were used in a model that depicted the relationship between black-capped petrel inland strandings (i.e., birds found far inland from normal marine habitat) and resultant mortalities in the continental United States in relation to Atlantic hurricane intensities and trajectories; it was found that on at least eight occasions over the past century, major (Categories 3 to 5) hurricanes had likely resulted in mortalities of tens to hundreds of black-capped petrels (Hass et al. 2012, entire). Also, projected increases in major hurricane activity in the region are expected due to climate change (Bender et al. 2010, entire; Knutson et al. 2010, entire), and hurricane-related mortalities of black-capped petrels could nearly double over the next 100 years (i.e., 50 percent increase over a 50-year period), particularly from the powerful “Cape Verde” hurricanes for which landfall rates along the southeastern U.S. coast are projected to increase 10 percent per decade over the next century (Hass et al. 2012, pp. 256-257). Because black-capped petrels tend to congregate at high densities on marine foraging grounds off the eastern United States during the peak of the Atlantic hurricane season, they are especially vulnerable to such atmospheric events (Hass et al. 2012, pp. 258-260). Based on climatic projections, such losses could constitute up to 5 to 10 percent of the current known breeding population of the species over the next 50 years (Hass et al. 2012, entire). However, any reductions in the current black-capped petrel breeding population from other unrelated factors (e.g., predation, tower collisions, and forest fires) could thereby amplify and exacerbate the effective proportion of hurricane-related losses.

    The factor that is expected to have the greatest effect on black-capped petrel is human population growth in Haiti. The projected increases in human population discussed below will increase the energy needs of Haiti, further influencing habitat loss due to charcoal production or agricultural conversion.

    To assess the influence of human population growth on petrel nesting habitat on Hispaniola, we considered three different plausible scenarios. The three scenarios correspond to baseline, baseline plus 20 percent, and baseline minus 20 percent, of United Nations (UN) population growth projections for Haiti and the Dominican Republic. By “bracketing” our projections, we were attempting to account for inherent uncertainties that can arise from long-term projections. By accounting for potential variation, we increased our confidence that the “true” population growth, and its subsequent effects on black-capped petrel nesting habitat, was captured within the range of our scenarios. This also provided a means of graphically depicting and examining relative differences in population growth over time, which may allow for the identification of “critical time points” beyond which certain threats may more rapidly increase in severity. In order to provide a better understanding of the projected trajectory of the future scenarios, we predicted factors affecting black-capped petrel status at two intermediate time frames, 10 and 25 years, as well as 50 years, which is the end of our predictive time horizon. The complete analyses for all three scenarios are provided in the SSA report (Service 2018, pp. 43-56).

    Scenario 1: Human Population of Hispaniola Increases per Current UN Projections

    The current population of Haiti is around 11 million people (United Nations 2018). If the population of Hispaniola increases as currently projected, by 2070, there will be 28 million inhabitants on the island, of which 15 million will reside in Haiti. At such time, the human population density of Haiti will exceed 545 persons per square kilometer (/km2), with most people living in densely populated urban areas where charcoal is currently the primary fuel used for cooking. Unless there is a significant shift away from the use of wood-based fuels to (perhaps) propane gas (as is the case in the Dominican Republic), our analysis indicates the rate of land-clearing and forest degradation both within and near black-capped petrel nesting areas will likely increase by 62 percent over the next 50 years. Moreover, the demand for food and building materials to support the human population will also increase substantially over current levels, resulting in additional deforestation for agricultural purposes. Deforestation concurrent with population growth is expected to occur in both in Haiti and adjacent areas of the Dominican Republic. Anthropogenic fires associated with land-clearing activities are also expected to increase, further threatening black-capped petrel nesting habitat. Given the level of this threat to nesting areas and the magnitude of forest conversion (i.e., for charcoal production, agriculture), the resiliency of the black-capped petrel is predicted to be very low.

    The black-capped petrel populations most likely to be adversely affected under this scenario are those within Haiti and along the Haiti-Dominican Republic border. In particular, the Pic Macaya and Pic La Visite breeding populations in Haiti, which have apparently suffered the greatest recent declines in both habitat quality and quantity (Goetz et al. 2012, pp. 9-10; Simons et al. 2013, pp. S13-S15), and a subsequent loss in the number of nesting petrels, are likely to face extirpation. If these breeding populations are adversely affected, this could potentially result in a loss of 85 to 95 percent of the currently known breeding population of the black-capped petrel (see Goetz et al. 2012, p. 5). The Haitian portion of the Morne Vincent/Sierra del Bahoruco breeding colony, having already been largely deforested, may experience slightly less adverse effects from continued deforestation. However, there is a significant potential for increased land clearing for agricultural activity in this nesting area, as it is not within any officially protected area. In contrast, although the Dominican Republic portion of this nesting area will most likely also be subject to at least some increased clearing for agricultural activities as well as charcoal production, much of this nesting habitat is at least somewhat officially protected in the Dominican Republic, which may help to reduce or slow future degradation. The remaining, and only recently discovered, nesting area is in Valle Nuevo National Park in the central mountains of the Dominican Republic. This nesting area faces many similar threats but is more remote and slightly more distant from the growing market for charcoal in Haiti. This distance from anthropogenic influence, along with its protected status, may result in this nesting area being less adversely affected than the others. However, only one black-capped petrel nest has been identified in Valle Nuevo National Park, so this area's overall importance to species resiliency and persistence is uncertain at best.

    Scenario 2: Human Population of Hispaniola Increases at Annual Rates 20 Percent Less Than UN Projections

    In Scenario 2, the human population on Hispaniola is projected to increase at an annual rate that is 20 percent less than currently predicted, resulting in approximately 27.5 million inhabitants by 2070, of which 14.6 million of those inhabitants will reside in Haiti. Note that this projected total population is only about 2 percent less than was projected in Scenario 1. Likewise, the projected population density of Haiti under this scenario is 532 persons/km2, only about 2 percent less than projected in Scenario 1. Accordingly, the future for black-capped petrel under Scenario 2 is expected to look very similar to that described in Scenario 1, resulting in a predicted very low future resiliency.

    Scenario 3: Human Population of Hispaniola Increases at Annual Rates 20 Percent Greater Than UN Projections

    In Scenario 3, the human population on Hispaniola is projected to increase at an annual rate that is 20 percent greater than predicted in Scenario 1. Under Scenario 3, there will be approximately 34 million inhabitants on the island by 2070, of which just over 20 million will reside in Haiti. Under this scenario, human population densities would reach 740 persons/km2 in Haiti, and 285 persons/km2 in the Dominican Republic. At such time, the projected demand for charcoal and firewood in Haiti (assuming all other required resources would support such a population) would result in a 220-percent increase in the amount of deforested and degraded areas on Hispaniola just for energy production. In addition to deforestation for charcoal, additional forest lost is projected to occur as a result of intensified agricultural activities. Under these projections, the magnitude of forest conversion would likely result in widespread catastrophic loss of nesting habitat and, in turn, likely extinction of the species in the wild. Because of the inherent uncertainty of projections for the more severe outcome of Scenario 3, we opted to subdivide this scenario into two equally likely outcomes: Scenario 3a (one remaining very low resiliency population; i.e., Valle Nuevo National Park), and Scenario 3b (no remaining populations; i.e., species extinction).

    All three of the future scenarios indicate a decline in the species' viability through the loss of resiliency, redundancy, and representation. As the human population on Hispaniola increases, the attendant anthropogenic factors that currently influence species viability are virtually certain to increase concomitantly. Future increases in the human population of Haiti will almost certainly result in increased deforestation rates throughout black-capped petrel nesting areas, both for production of charcoal and for necessary agricultural products and building materials. Based on the best available information, our more conservative projections suggest a future increase of approximately 0.56 to 0.65 percent per year in the areal extent of forest conversion on Hispaniola. Of the four known breeding populations on Hispaniola, two (Pic Macaya and Pic La Visite) are likely to face extirpation by 2070 under all three projected future scenarios: Pic Macaya because of the lack of control of human access or ongoing conservation efforts, and Pic La Visite because of ongoing and increasing rates of degradation and its close proximity to the capital city, Port-au-Prince, where anthropogenic demand for resources (food, fuel, building material) is very high. In the case of Pic La Visite, the discovery of any additional petrel nesting sites in the adjacent and contiguous areas of Pic La Selle could potentially attenuate such losses, but no such additional nest sites have been found to date. The loss of these two breeding populations would represent a potential loss of up to 85 to 95 percent of the entire currently known breeding population of the black-capped petrel.

    The primary effects of anthropogenic actions on black-capped petrel viability have apparently occurred over the past four or five centuries, a relatively short time in an evolutionary context. The petrel has been subject to the stochastic occurrences of tropical storms and hurricanes in the Caribbean for much longer, and has presumably evolved adaptive strategies in response to such storm events. However, such adaptations evolved in the context of multiple breeding populations across multiple islands and larger populations, and under previous regional climatic regimes. Furthermore, the conditions in which the black-capped petrel evolved have drastically changed, and this is only predicted to worsen. In the case of regional climate regimes, the best available information suggests a hotter and drier future climate within the specific area where black-capped petrels currently nest, along with a steady increase in the number of intense (Category 3 to Category 5) hurricanes across the region over the next century. Although major hurricanes were likely not a threat to the black-capped petrel under their historic (i.e., pre-Columbian) population conditions, the combination of fewer and smaller breeding populations, ongoing nesting habitat loss and degradation, and more frequent and intense tropical storms will likely result in adverse effects to the petrel from these stochastic atmospheric phenomena. Based on past trends and evidence, these adverse effects will likely also include increased mortalities of adults on the western Atlantic foraging grounds due to increased frequency of hurricane-induced inland strandings.

    There remains an additional factor that we were unable to evaluate that could conceivably influence black-capped petrel viability. For many species, particularly those that form breeding colonies or other such aggregations, as population numbers decline they may reach a “critical level” below which normal social and ecological interactions become impaired or inhibited. This is commonly referred to as the Allee effect (see, e.g., Courchamp et al. 1999, entire; Stephens et al. 1999, entire). Examples of such effects include increased per capita demographic effects of mortalities, disruption of normal pair-bond formation, skewed sex ratios, lower reproductive success, and reduced foraging efficiency. These combined effects can result in an extinction vortex from which a species cannot demographically recover (Dennis 2002; entire). As the population declines, the potential for future manifestations of demographic Allee effects in this species should not be discounted or ignored.

    Finally, the best available science at the time of the analysis indicates that the future viability of the black-capped petrel is linked to the complex and challenging socioeconomic and environmental landscape within Haiti, where as many as 90 to 95 percent of all known black-capped petrel nest sites occur. The current and future challenges faced by Haiti in terms of political and economic stability, environmental protection, food security, and public health are daunting. Also, while there are, and will continue to be, numerous successful initiatives by both local and international conservation and humanitarian organizations to provide needed financial and technical support for environmental conservation in Haiti, these efforts are nonetheless subject to the vicissitudes of donor funding in an ever unpredictable global financial setting. Natural resource conservation and management in Haiti would be seriously hampered in the event of a major global financial crisis, widespread social unrest in Haiti, or a military confrontation between Haiti and the Dominican Republic, all of which have occurred at some point in the past. Meanwhile, Haiti, and to a lesser but still significant degree, the Dominican Republic remain highly vulnerable to stochastic and catastrophic natural events such as major earthquakes and hurricanes, which can result in significant setbacks for ongoing conservation efforts (Castro et al. 2005, entire; Smucker et al. 2007, entire). In the end, the future of the black-capped petrel will depend in large measure on the long-term effectiveness of ongoing and future conservation efforts in Haiti.

    Determination

    Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants.

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the black-capped petrel. Habitat loss and degradation due to deforestation for agricultural development and charcoal production are currently the major threats to the species on its nesting grounds on the island of Hispaniola (Factor A). Historically, the black-capped petrel also nested on the islands of Guadeloupe, Martinique, Dominica, and possibly Cuba. The species was extirpated from Martinique in pre-Columbian times by island residents that over-harvested the petrel for consumption (Factor B). Nonnative mammalian species are a threat to native wildlife on islands and contributed to the loss and probable extirpation of the species on the island of Dominica in the late 19th century (Factor C). The species' nesting range is limited to the steep, high-elevation areas that can be affected by erosion due to increased hurricane intensity and frequency, reducing available cavities or access to nesting sites (Factor E). Due to the loss of nesting areas across the historical range of the species, the black-capped petrel is currently only confirmed to be reproducing on the island of Hispaniola. The species' range reduction has led to the loss of redundancy of populations, with only four known nesting colonies, all confined to one island, remaining. This also contributes to the loss of representation, as the species has high fidelity to the same nesting sites each year; there is limited genetic exchange between populations. With the loss of populations on other islands, this reduces the potential for additional genetic lineages to increase genotypic diversity within the species.

    The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species that is “likely to become endangered within the foreseeable future throughout all or a significant portion of its range.” Foreseeable future was determined to be between 30 and 50 years; based on available data regarding human population growth on Hispaniola and associated sociological factors (energy sources/demand, resource availability, increased need/conversion of land to agriculture to support increasing human populations) and climate change projections, we can reasonably project future conditions out that far.

    Climate change data are less reliable in the Caribbean, augmenting the level of uncertainty and reliability of the projections. The most important driving factor for breeding habitat changes into the future is human population growth and resource use (e.g., charcoal). The greatest threats to the species currently affect the species on their breeding grounds. Due to deforestation from agricultural development and charcoal production, the breeding range has been reduced from its historical range; the remaining habitat and populations are threatened by a variety of factors acting in combination to reduce the overall viability of the species. Viability in terms of resiliency, redundancy, and representation was analyzed and described in the SSA report. In summary, the species' resiliency is expected to decline, as well as its redundancy and representation.

    The current condition of each of the breeding populations was evaluated using the number of radar targets per night, acoustic detections per hour, and nest success at each of the confirmed nesting areas. To determine and quantify current species-level overall resiliency we compared current population resiliency to the historical optimal, based on known prior distribution and number of breeding populations (Service 2018, p. 39-41). In respect to redundancy, the number of populations has declined due to the extirpation of the species on Guadaloupe, Martinique, and Dominica. The contraction of the breeding range and loss of populations on the additional islands results in low redundancy and leaves the species more vulnerable to catastrophic events.

    The risk of extinction in the foreseeable future is high because the remaining populations are small, suitable habitat is limited for additional nesting areas, and the impacts from stressors acting on the species on the nesting grounds are expected to increase. Therefore, on the basis of the best available scientific and commercial information, we find that the black-capped petrel is likely to become endangered within the foreseeable future throughout its entire range because of the threats facing the species. However, the current status of the species as evaluated in the SSA report indicates the species is presently not at risk of extinction throughout its range (i.e., endangered throughout its range), because the species has retained resiliency, with four extant breeding populations on Hispaniola and with a current population estimated to be between 2,000 to 4,000 individuals, an estimated 500 to 1,000 breeding pairs, and an overall nesting success rate of around 75 percent (Service 2018, pp. 17-19).

    Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the black-capped petrel is likely to become an endangered species within the foreseeable future throughout its range, we find it unnecessary to proceed to an evaluation of potentially significant portions of the range. Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species' degree of imperilment and better promotes the purposes of the statute. Under this reading, we should first consider whether listing is appropriate based on a rangewide analysis and proceed to conduct a “significant portion of its range” analysis if, and only if, a species does not qualify for listing as either endangered or threatened according to the “all” language. We note that the court in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not address this issue, and our conclusion is therefore consistent with the opinion in that case.

    Therefore, we propose to list the black-capped petrel as a threatened species across its entire range in accordance with sections 3(20) and 4(a)(1) of the Act.

    Available Conservation Measures

    Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries, and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

    The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

    Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification (e.g., from endangered to threatened, also called “downlisting”) or removal from listed status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, NGOs, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website (http://www.fws.gov/endangered), or from our Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, NGOs, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands, and areas outside of U.S. jurisdiction. If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of North Carolina would be eligible for Federal funds to implement management actions that promote the protection or recovery of the black-capped petrel because North Carolina State waters are the only place in the United States where the species is found aside from vagrant or extralimital occurrences. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Although the black-capped petrel is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

    Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

    Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management of and any other landscape-altering activities on Federal waters used by the Department of Defense or National Oceanic and Atmospheric Administration (NOAA); and offshore energy activities of the Bureau of Ocean Energy Management (BOEM) and Bureau of Safety and Environmental Enforcement (BSEE).

    Provisions of Section 4(d) of the Act

    The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. Under section 4(d) of the Act, the Secretary of the Interior has the discretion to issue such regulations as he deems necessary and advisable to provide for the conservation of threatened species. The Secretary also has the discretion to prohibit, by regulation with respect to any threatened species of fish or wildlife, any act prohibited under section 9(a)(1) of the Act. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) threatened wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. The Service has exercised discretion under section 4(d) of the Act to develop a rule that is tailored to the specific threats and conservation needs of this species.

    The black-capped petrel is protected by the Migratory Bird Treaty Act (MBTA). The MBTA makes it unlawful “at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, [or] any part, nest, or egg of any such bird . . .” included in the terms of four specific conventions between the United States and certain foreign countries (16 U.S.C. 703). See 50 CFR 10.13 for the list of migratory birds protected by the MBTA.

    This proposed rule under section 4(d) of the Act adopts existing requirements under the MBTA as the appropriate regulatory provisions for the black-capped petrel. Accordingly, under the proposed 4(d) rule, incidental take is not prohibited, and purposeful take is not prohibited if the activity is authorized or exempted under the MBTA. Thus, if a permit is issued for activities resulting in purposeful take under the MBTA, it would not be necessary to have an additional permit under the Act.

    The terms “conserve”, “conserving”, and “conservation” as defined by the Act, mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary. Due to threats acting on the black-capped petrel on the nesting grounds and the projected impacts to the species and its habitat in the foreseeable future, the viability of the species is expected to decline. The loss of habitat due to deforestation along with increased precipitation and drought events leave the species vulnerable to becoming endangered in the foreseeable future. The species that was once abundant continues to decline due to the conditions at the nesting locations on Hispaniola. The primary stressors to the species are occurring on the breeding grounds in Haiti and the Dominican Republic; therefore, prohibiting incidental take in the United States is not going to contribute meaningfully to the conservation of the species. Prohibiting unregulated, purposeful take is beneficial in order to protect the black-capped petrel from activities that may occur within U.S. territory and from import/export of the species or any of its parts, nests, or eggs.

    For the reasons discussed above, we find that this rule under section 4(d) of the Act is necessary and advisable to provide for the conservation of the black-capped petrel. We do, however, seek public comment on whether there are additional activities that should be considered under the 4(d) provision for the black-capped petrel (see Information Requested, above). This proposal will not be made final until we have reviewed comments from the public and peer reviewers.

    Critical Habitat Designation Background

    Critical habitat is defined in section 3 of the Act as:

    (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

    (a) Essential to the conservation of the species, and

    (b) Which may require special management considerations or protection; and

    (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

    Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Service may consider include but are not limited to, whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat.” As explained below, we conclude that designation of critical habitat would not be beneficial to the black-capped petrel.

    Breeding and Nesting Habitat

    As stated previously in this proposed rule, black-capped petrels have only been confirmed to currently breed and nest on the island of Hispaniola within the countries of Haiti and the Dominican Republic. There are past anecdotal accounts and recent indirect indications of the possible nesting activity on the islands of Cuba and Dominica (Goetz et al. 2012, p. 13; Simons et al. 2013, p. S15; Brown 2015, entire). There are no historical or current records of the species nesting within the United States. Under Determination, above, we found that deforestation due to agricultural development and charcoal production (Factor A) due to increased population growth on Hispaniola is the primary current and future threat to the black-capped petrel. This present or threatened destruction, modification, or curtailment of the petrel's breeding and nesting habitat occurs outside of U.S. jurisdiction, and we can only designate critical habitat on lands under U.S. jurisdiction; therefore, we cannot designate the petrel's breeding and nesting habitat on Hispaniola as critical habitat for the species.

    Marine, Foraging Habitat

    The black-capped petrel is widely distributed throughout much of its range during the non-breeding season and is considered to have flexible foraging habitat requirements. The species tends to forage near areas of upwelling and other areas where prey species are abundant, and the species is typically found in warmer waters associated with the Gulf Stream (Haney 1987, p. 157; Simons et al. 2013, entire; Jodice et al. 2015, entire). The best scientific information available on foraging habitat suggests that where the black-capped petrel is found, it is widely distributed in pelagic waters offshore of the eastern United States down to northern South America. The species' foraging range extends approximately from latitude 40° North and south to 10° North near northern South America (Goetz et al. 2012, p. 4; Jodice et al. 2015, entire). Marine habitat contains elements that the black-capped petrel needs (foraging, resting, and commuting between nesting and foraging habitat); however, the best available information indicates that the species' specific needs and preferences for these habitat elements are relatively flexible, plentiful, and widely distributed, and there are no habitat-based threats to the species in the foraging range.

    Summary

    The critical habitat regulations at 50 CFR 424.12(a)(1)(ii) provide two examples of when designating critical habitat may not be beneficial to the species and, therefore, may be not prudent. These examples are where the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or where there are no areas that meet the definition of “critical habitat” for the species. In the preamble to the final rule in which these two examples were expressly added to the regulations (81 FR 7414, February 11, 2016), the Service explains: “[I]n some circumstances, a species may be listed because of factors other than threats to its habitat or range, such as disease, and the species may be a habitat generalist. In such a case, on the basis of the existing and revised regulations, it is permissible to determine that critical habitat is not beneficial and, therefore, not prudent. It is also permissible to determine that a designation would not be beneficial if no areas meet the definition of ‘critical habitat' ” (81 FR 7425). Although the present or threatened destruction, modification, or curtailment of nesting habitat is a threat to the petrel's current breeding and nesting habitat, such habitat is not located within U.S. jurisdiction thus cannot be designated as critical habitat. The foraging habitat for the black-capped petrel falls within the second example; although there are extensive areas of foraging habitat within U.S. jurisdiction, the species faces no habitat-based threats there, and designation would not be beneficial to the species.

    Therefore, we preliminarily conclude that the designation of critical habitat for the black-capped petrel is not prudent, in accordance with 50 CFR 424(a)(1), because destruction of habitat is not a threat to the species in the U.S. portions of the range. However, we seek public comment on the characteristics of black-capped petrel foraging habitat and its relationship to the needs of the species.

    Required Determinations Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (1) Be logically organized;

    (2) Use the active voice to address readers directly;

    (3) Use clear language rather than jargon;

    (4) Be divided into short sections and sentences; and

    (5) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act, need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    References Cited

    A complete list of references cited in this rulemaking is available on the internet at http://www.regulations.gov and upon request from the Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

    2. Amend § 17.11, paragraph (h), in the Table the “List of Endangered and Threatened Wildlife”, under the heading BIRDS, by adding a new entry for “Petrel, black-capped” in alphabetical order to read as set forth below:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules *         *         *         *         *         *         * Birds *         *         *         *         *         *         * Petrel, black-capped Pterodroma hasitata Wherever found T [Federal Register citation when published as a final rule]; 50 CFR 17.41(g).4d *         *         *         *         *         *         *
    3. Amend § 17.41 by adding a paragraph (g) to read as set forth below:
    § 17.41 Special rules—birds.

    (g) Black-capped petrel (Pterodroma hasitata).

    (1) Except as noted in paragraphs (g)(2) and (g)(3) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 of this part apply to the black-capped petrel.

    (2) Incidental take of black-capped petrel is not prohibited.

    (3) None of the prohibitions in § 17.31 of this part apply to any activity conducted in a manner that is consistent with the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703-712, provided that the person carrying out the activity has complied with the terms and conditions that apply to that activity under the provisions of the MBTA and its implementing regulations.

    Dated: September 20, 2018. James W. Kurth, Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2018-21793 Filed 10-5-18; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R8-ES-2018-0076; 4500030113] RIN 1018-BD19 Endangered and Threatened Wildlife and Plants; Threatened Species Status for Coastal Distinct Population Segment of the Pacific Marten AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to list the coastal distinct population segment (DPS) of Pacific marten (Martes caurina), a mammal species from coastal California and Oregon, as a threatened species under the Endangered Species Act (Act). If we finalize this rule as proposed, it would extend the Act's protections to this species. The effect of this regulation will be to add this species to the List of Endangered and Threatened Wildlife.

    DATES:

    We will accept comments received or postmarked on or before December 10, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by November 23, 2018.

    ADDRESSES:

    You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R8-ES-2018-0076, which is the docket number for this rulemaking. Then, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R8-ES-2018-0076; U.S. Fish and Wildlife Service Headquarters, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments below for more information).

    FOR FURTHER INFORMATION CONTACT:

    Dan Everson, Field Supervisor, U.S. Fish and Wildlife Service, Arcata Ecological Services Field Office, 1655 Heindon Road, Arcata, California 95521, or by telephone 707-822-7201. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION: Information Requested Public Comments

    We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

    (1) The coastal marten's biology, range, and population trends, including:

    (a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

    (b) Genetics and taxonomy;

    (c) Historical and current range including distribution patterns;

    (d) Historical and current population levels, and current and projected trends; and

    (e) Past and ongoing conservation measures for the species, its habitat or both.

    (2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

    (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

    (4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

    (5) Information on activities that are necessary and advisable for the conservation of the coastal marten to include in a 4(d) rule for the species. Section 4(d) of the Act provides that when a species is listed as a threatened species, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Service has proposed such measures here and will evaluate ideas provided by the public in considering the prohibitions that are appropriate to include in the 4(d) rule.

    Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information do not provide substantial information necessary to support a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”

    You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

    If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

    Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arcata Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Public Hearing

    Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register. Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

    Species Status Assessment

    A species status assessment (SSA) team prepared an SSA report for the coastal marten. The SSA team was composed of Service biologists, who worked throughout the process with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. The SSA report underwent independent peer review by scientists with expertise in carnivore biology, habitat management, and stressors (factors negatively affecting the species) to the species. The SSA report and other materials relating to this proposal can be found on the Arcata Ecological Services Field Office website at https://www.fws.gov/arcata/ and at http://www.regulations.gov under Docket No. FWS-R8-ES-2018-0076, and at the Arcata Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Previous Federal Action

    On September 28, 2010, we received a petition from the Center for Biological Diversity (CBD) and the Environmental Protection Information Center (EPIC), requesting that we consider for listing the (then-classified) subspecies Humboldt marten (Martes americana humboldtensis), or the (now-recognized) subspecies Humboldt marten (M. caurina humboldtensis), or the Humboldt marten DPS of the Pacific marten (M. caurina). The petitioners further stipulated that, based on recent genetic analyses indicating that populations of marten from coastal Oregon (considered members of M. a. caurina) are more closely related to M. a. humboldtensis than to M. a. caurina in the Cascades of Oregon (citing Dawson 2008, Slauson et al. 2009a), the range of the subspecies or DPS of the Humboldt marten should be expanded to include coastal Oregon populations of martens. In a letter to the petitioners dated October 22, 2010, we responded that we reviewed the information presented in the petition and determined that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act was not warranted.

    On January 12, 2012, we published in the Federal Register a 90-day finding (77 FR 1900) that the petition presented substantial information indicating that listing may be warranted, and, subsequently, we initiated a status review. For purposes of the 90-day finding, the common name Humboldt marten referred to the then-classified American marten (M. americana) populations in coastal northern California and coastal Oregon.

    On June 23, 2014, we published a scoping notice in the Federal Register (79 FR 35509) that summarized the uncertainty regarding the taxonomic classification of the subspecies (based on current genetics information) and indicated our intent to conduct an evaluation (for the 12-month finding) of a potential DPS of martens in coastal northern California and coastal Oregon relative to the full species classification level. On April 7, 2015, we published a not-warranted 12-month finding on the September 2010 petition (80 FR 18742).

    On December 12, 2015, the Center for Biological Diversity and EPIC filed a complaint for declaratory and injunctive relief, alleging that our determination on the coastal marten violated the Act. By Order Re: Summary Judgment issued on March 28, 2017, the District Court for the Northern District of California remanded for reconsideration the Service's 12-month finding. On May 3, 2017, the court issued a stipulated order that the Service was to submit a 12-month finding to the Federal Register by October 1, 2018. This document serves as our 12-month finding on the September 2010 petition.

    Background

    A thorough review of the taxonomy, life history, and ecology of the coastal marten is presented in the SSA report (Service 2018; available at https://www.fws.gov/arcata/ and at http://www.regulations.gov under Docket No. FWS-R8-ES-2018-0076).

    Our SSA report synthesizes the biology and status of the DPS of the Pacific marten (Martes caurina) in coastal Oregon and northern coastal California, commonly referred to as the coastal marten. On June 23, 2014, we published a notice in the Federal Register (79 FR 35509) that summarized the taxonomic classification of the subspecies (based on current genetic information) and indicated our intent to conduct an evaluation of a potential DPS of martens in coastal Oregon and coastal northern California relative to the full species classification level. On April 7, 2015, we published a DPS analysis (80 FR 18742) concluding that Pacific martens in coastal Oregon and northern coastal California were both discrete and significant and constituted a listable entity referred to collectively as the “coastal DPS of the Pacific marten.” This document and the associated SSA reflect our analysis of that DPS. Preliminary results of genetic evaluation of the Pacific marten indicate that coastal Oregon and northern coastal California marten populations likely represent a single subspecies (Slauson et al. 2009a, pp. 1338-1339; Schwartz et al. 2016, unpublished report) but the taxonomic change has not yet been published. In this case, our listable entity may be a subspecies, but the analysis maintains its validity.

    The coastal marten is a medium-sized carnivore that historically occurred throughout the coastal forests of northwestern California and Oregon. Martens have a long and narrow body type typical of the mustelid family (e.g., weasels, minks, otters, and fishers): Overall brown fur with distinctive coloration on the throat and upper chest that varies from orange to yellow to cream, large and distinctly triangular ears, and a bushy tail that is proportionally equivalent to about 75 percent of the head and body length. They are polygamous, with females solely responsible for raising young. Females do not mate until 15 months of age and, due to delayed implantation, will not produce their first litters until they are at least 24 months old. Juveniles disperse from their natal home range at around 6 months of age. Martens exhibit intrasexual territoriality, and dominant males maintain home ranges that encompass one or more female's home ranges.

    In the wild, most martens live less than 5 years. In light of delayed implantation, a small proportion of female martens, perhaps 10 percent at best, are reproducing for more than 3 years, contributing to a slow reproductive output.

    Coastal martens have a generalist diet that changes seasonally with prey availability. Overall, their diet is dominated by mammals, but birds, insects, and fruits are seasonally important. They need to eat 15-25 percent of their body mass daily to meet their metabolic requirements.

    Martens tend to select older forest stands (e.g., late-successional, old-growth, large-conifer, mature, late-seral, structurally complex). These forests have a mixture of old and large trees, multiple canopy layers, snags and other decay elements, dense understory development, and biologically complex structure and composition.

    Summary of Biological Status and Threats

    The Act directs us to determine whether any species is an endangered species or a threatened species because of factors affecting its continued existence as set forth in section 4(a)(1) of the Act. The SSA report documents the results of our comprehensive biological status review for the coastal marten, including an assessment of the potential stressors to the species. It does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. It provides the scientific basis that informs our regulatory decision, which involves the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report.

    To evaluate the biological status of the coastal marten both currently and into the future, we assessed a range of conditions to allow us to consider the species' resiliency, redundancy, and representation (together, the 3Rs). The coastal marten needs multiple resilient populations distributed widely across its range to maintain persistence into the future and to avoid extinction. If populations lose resiliency, they are more vulnerable to extirpation, with resulting losses in representation and redundancy. Several factors influence whether coastal marten populations will increase to maximize habitat occupancy, which increases the resiliency of a population to stochastic events. These factors include the connectivity between populations, amount of suitable habitat for establishing home ranges, and amount of habitat that allows for predator avoidance. As we consider the future viability of the species, more populations with high resiliency distributed across the known range of the species are associated with higher overall species viability.

    Coastal marten historically ranged throughout coastal Oregon and coastal northern California, but the species has not recently been detected throughout much of the historical range, despite extensive surveys. The species currently exists in four small (<100) populations and is absent from the northern and southern ends of its historical range. This current range is approximately 7.3 percent of its known historical range, with two populations in Oregon and two populations in California. The species has been extirpated from Sonoma and Mendocino Counties, CA, and largely from Humboldt, Del Norte, and Siskiyou Counties, CA. In Oregon, coastal martens have been largely extirpated from much of the inland counties within the historical range and are known to currently occur in Coos, Curry, Josephine, Douglas, Lane, and Lincoln Counties.

    We have assessed the coastal marten's levels of resiliency, redundancy, and representation currently and into the future by first ranking the condition of each population. We ranked the four populations into three categories (high, moderate, and low) based on key population factors and habitat elements: Three between-population factors (least-cost path distance, filters, and number of populations in proximity) and four within-population factors (population size, available male home ranges, available female home ranges, and proportion of habitat subject to high predation risk). Least-cost path distance describes the distance a marten must travel for dispersal needs in order to reach the next closest population. Filters are barriers to this movement and can be either natural or manmade, such as large rivers or highways. This analysis provided condition categories to describe the resiliency of each population. A summary of this analysis is provided in Table 1.

    Maintaining representation in the form of genetic or ecological diversity is important to maintain the coastal marten's capacity to adapt to future environmental changes. We consider the coastal marten to have representation in the form of two different ecological settings. Some animals are adapted to the dunes ecosystems of coastal dune forest, and others are adapted to late-seral forest and serpentine ridges. One population represents the dune ecological setting, and three represent the forest and serpentine ecological settings. Genetic variation between populations is unknown at this time, as no studies have been conducted to determine the degree of genetic variation between the four populations.

    The coastal marten needs to have multiple resilient populations distributed throughout its range to provide for redundancy. The more populations, and the wider the distribution of those populations, the more redundancy the species exhibits. Based on the distributions of current verifiable marten detections and adjacent suitable habitat, we identified four extant population areas (EPAs) within coastal Oregon and northern coastal California:

    (1) Central Coastal Oregon Extant Population Area;

    (2) Southern Coastal Oregon Extant Population Area;

    (3) Oregon-California Border Extant Population Area; and

    (4) Northern Coastal California Extant Population Area.

    Additional detections of coastal martens have occurred outside of the current EPAs but they did not meet the criteria of a population (most likely, they represent transient individuals in search of new territories) according to methods used in the Humboldt Marten Conservation Strategy and Assessment, a synthesis of literature on marten ecology developed by the Humboldt Marten Conservation Group. This group is made of State, Federal, Tribal, private, and non-governmental organizations in coastal Oregon and northwestern California to conserve and manage coastal martens.

    Table 1—Resiliency of Coastal Marten Populations [Data used to assign categories are included for each population and each factor] Population
  • (quantity of suitable habitat out of minimum convex
  • polygon)
  • Between-population factors Least-cost path distance through
  • suitable
  • habitat
  • Number of
  • filters
  • Number of populations in proximity
  • (6-45 km)
  • Within-population factors Population Size Number of available male home ranges Number of available
  • female home ranges
  • Proportion of suitable
  • habitat that
  • allows for
  • predator
  • avoidance
  • Overall
  • current
  • condition
  • Central Coastal Oregon—62 km2/403 km2 Low, 201 km Low, >1 Low, 0 Low, 71 Low, 30 Low, 44 Low, 15% Low. Southern Coastal Oregon—1,103 km2/2,420 km2 Low, 65 km Low, >1 Low, 0 Low, 12-<100 High, 276-368 High, 173-230 Moderate, 65% Low. CA-OR Border—56 km2/206 km2 High, 14 km Moderate, 1 Moderate, 1 Low, 12-<100 Low, 14-19 Low, 7-9 High, 82% Low-Moderate. Northern Coastal CA—704 km2/1,170 km2 High, 14 km Moderate, 1 Moderate, 1 Low, 80-100 High, 176-235 Moderate, 96-128 Moderate, 52% Moderate.

    Our analysis of the past, current, and future influences on what the coastal marten needs for long-term viability revealed that two factors pose the largest risk to future viability of the species. These risks are primarily related to habitat loss and associated changes in habitat quality and distribution and include: (1) A decrease in connectivity between populations; and (2) habitat conversion from that suitable for martens to that suitable for generalist predators and competitors, thereby increasing potential interactions and subsequent marten injury, mortality, or predation. These factors are all influenced by vegetation management, wildfire, and changing climate.

    Predation of martens (Factor B) has increased due to the changes in forest composition. Bobcats are their predominant predator, with predation accounting for 41 percent of marten mortalities in one study, and the sources of all those predations being bobcat. Bobcats prefer regenerating harvested stands less than 30 years old, and are nearly absent from older forests, the preferred marten habitat. Martens are vulnerable to predation and increased competition in habitats that have been subject to either high-moderate severity fires or intensive logging in the last 40 years because both of these events remove the structural characteristics of the landscape that provide escape cover and are important to marten viability (canopy cover, shrub cover, etc.). These older forests have declined substantially from historical amounts: Older forests historically encompassed >75 percent of the coastal California area, 50 percent of the Klamath and Siskiyou region in northern California and southwest Oregon, and 25 to 85 percent of the Oregon Coast Range. Remaining older forests in the redwood region, Oregon Coast Range, and Klamath-Siskiyou region is estimated around 5, 20, and 38 percent, respectively, of what occurred historically.

    In addition to logging, fires are a regular occurrence where the southern 3 marten populations occur; between 2000 and 2014, approximately 17 percent of the suitable habitat in the north coastal California population was burned. In the California—Oregon border population area, roughly 12 percent of suitable habitat was burned in the Longwood Fire of 1987. Substantial amounts of marten habitat in a population area can be burned in single fire events or over a few years at varying severities. Climate change is projected to result in longer fire seasons, producing more and larger fires. Fires large enough to totally encompass all or most of all four individual population areas are already occurring and are expected to increase, raising concern over the resiliency of at least the three southern marten population areas, which have been most affected by recent fires and are in a fire regime particularly vulnerable to future fires.

    Dispersal is the means by which marten populations maintain and expand their distribution. Successful dispersal functional habitat between patches of habitat suitable for reproduction to maintain or expand population size and distribution. A resilient coastal marten population would have suitable habitat between populations that provides important habitat for key prey, abundant daily resting sites, and a maximum distance within the range of their average dispersal distance. Both Oregon populations do not have functional connectivity to any other population and if a stochastic or catastrophic event eliminated either of them, natural recolonization would not be feasible. The two California populations have connectivity to one another but not the Oregon populations.

    In addition to being mostly isolated, all four populations are relatively small and face other threats in addition to habitat loss. Since 1980, 19 mortalities of coastal martens caused by vehicles (Factor E) have been documented, all in Oregon and mostly along U.S. Highway 101. We expect that some unknown amount of marten roadkills go undetected, so this is likely an underestimate of the number of martens killed by cars. Exposure to rodenticides (Factor E) through direct ingestion or the consumption of exposed prey has lethal and sub-lethal effects on coastal martens. Illegal marijuana cultivation sites on public, tribal, and private forest lands are implicated as the likely source of these rodenticides. In a similar carnivore species, 85% of carcasses tested were exposed to rodenticides, with the exposure in 13% being the direct cause of death.

    Certain diseases (Factor C) are also a concern to martens and other carnivore populations, including canine distemper viruses (CDV), rabies viruses, parvoviruses, and the protozoan (single-celled organism) Toxoplasma gondii. We acknowledge that there has been limited testing of coastal martens for the presence of pathogens or exposure to pathogens, but exposure levels and ultimate effect on populations are difficult to document until an outbreak is actually observed. While larger populations might display a mass mortality as a result of disease infections, extinction or extirpation is rare. With population sizes estimated at less than 100 each for all four coastal marten populations, an outbreak in an individual population puts it at a higher risk for extirpation, particularly when diseases act synergistically with other threats.

    The coastal marten faces a variety of risks including loss of habitat, wildfire, and increased predation risk. These risks play a large role in the resiliency and future viability of the coastal marten. Given the uncertainty regarding connectivity between populations, suitable habitat, and increases in predation within the populations, we forecasted what the coastal marten may have in terms of resiliency, redundancy, and representation under three plausible future scenarios. All three scenarios were forecast out over the next 15, 30, and 60 years. A range of timeframes with a multitude of possible scenarios allows us to create a “risk profile” for the coastal marten and its viability into the future. Scenario 1 evaluates the future condition of the coastal marten if there is no change in trends in threats to the populations from what exists today, while the other two scenarios evaluate the response of the species to increases or decreases in the major factors that are influencing marten viability. While we do not expect every condition for each scenario to be realized, we are using these scenarios to bound the range of possibilities. Scenarios 2 and 3 are considered the “outside bounds” for the range of potential plausible future conditions. For each scenario we describe the stressors that would occur in each population. We use the best available science to predict trends in future stressors (timber harvest, wildfire, etc.). Data availability varies across States and populations. Where data on future trends is not available, we look to past trends and evaluate if it is reasonable to assume these trends will continue. The results of the analysis of resiliency in our plausible future scenarios are described in further detail in the SSA report and summarized in Table 2.

    Table 2—Coastal Marten Population Conditions Under Each Scenario Population Current
  • condition
  • Years into
  • the future
  • Scenario 1 Scenario 2 Scenario 3
    Central Oregon Low 15 Low Low Low. 30 Low Low Low-0. 60 Low-0 * Low Low-0 Southern Oregon Low 15 Low Low Low. 30 Low Low Low. 60 Low Low Low. CA-OR Border Low-Mod 15 Low-Mod Low-Mod Low-Mod. 30 Low-Mod Low-Mod Low-Mod. 60 Low-Mod Low-Mod Low-Mod. Northern Coastal California Moderate 15 Moderate Moderate Moderate. 30 Moderate Mod-High Moderate. 60 Low-Mod Mod-High Low-Mod. * 0 = extirpated.
    Determination

    Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations in title 50 of the Code of Federal Regulations (at 50 CFR part 424), set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the coastal marten. The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act, either singly or in combination. A thorough analysis and discussion of the threats that may impact the coastal marten are included in the final SSA report (Service 2018, entire) associated with this document, and here we apply those threats to the statutory listing criteria to which they apply. We considered whether the coastal marten is presently in danger of extinction and determined that proposing endangered status is not appropriate. While threats are currently acting on the species and many of those threats are expected to continue into the future (see below), we did not find that the species is currently in danger of extinction throughout all of its range. With four populations occurring across the range of the species, the current condition of the species still provides for enough resiliency, redundancy, and representation such that it is not at risk of extinction now.

    However, estimates of future resiliency, redundancy, and representation for the coastal marten are low. As discussed in greater detail in the SSA, the species faces a variety of threats including loss of habitat (Factor A) due to wildfire, timber harvest, and vegetation management. Trapping (Factor B), collisions with vehicles (Factor E), and rodenticides (Factor E) are all impacting marten individuals, and the threat of disease (Factor C) carries the risk of further reducing populations. Changes in vegetation composition and distribution have also made coastal martens more susceptible to predation (Factor C) from larger carnivores. These threats, which are expected to be exacerbated by the species' small and isolated populations (Factor E) and the effects of climate change (Factor E), were central to our assessment of the future viability of the coastal marten.

    Given current and future decreases in resiliency, populations will become more vulnerable to extirpation from stochastic events, in turn, resulting in concurrent losses in representation and redundancy. The range of plausible future scenarios for coastal marten predicts decreased resiliency in all four currently extant populations. Under most modeled scenarios, the species is likely to lose enough resiliency, redundancy, and representation such that it is at risk of not being viable. All three scenarios presented as representative of plausible future scenarios create conditions where the coastal marten would not have enough resiliency, redundancy, or representation to sustain populations over time. While determining the probability of each scenario was not possible with the available data, the entire risk profile that was provided by looking across the range of the three plausible scenarios showed that the species will likely continue to lose resiliency, redundancy, and representation throughout the range in all scenarios.

    In short, our analysis of the species' current and future conditions, including the impact of the factors described in section 4(a)(1) of the Act, as well as the conservation efforts discussed below, show that the between-population and within-population factors used to determine the resiliency, representation, and redundancy for the species will continue to decline over the next 15-60 years. Consequently, the species is likely to become in danger of extinction throughout its range within the foreseeable future. We chose 15 years as a temporal extant for assessing the impact of stressors to marten populations in the near term because it is roughly the length of three marten generations and is a recommended timeframe established by the International Union for Conservation of Nature. We chose the two longer periods of 30 and 60 years as multiples of generation length (6 and 12 marten generations, respectively) and to provide a longer temporal extant to assess the threat of wildfire and climate change based on availability of wildfire data and climate models.

    Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the coastal marten is likely to become an endangered species within the foreseeable future throughout its range, we find it unnecessary to proceed to an evaluation of potentially significant portions of the range. Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species' degree of imperilment and better promotes the purposes of the statute. Under this reading, we should first consider whether listing is appropriate based on a rangewide analysis and proceed to conduct a “significant portion of its range” analysis if, and only if, a species does not qualify for listing as either endangered or threatened according to the “all” language. We note that the court in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not address this issue, and our conclusion is therefore consistent with the opinion in that case.

    Therefore, on the basis of the best available scientific and commercial information and in accordance with sections 3(6) and 4(a)(1) of the Act, we propose adding the coastal marten as a threatened species to the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h).

    Available Conservation Measures

    Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

    The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

    Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website (http://www.fws.gov/endangered), or from our Arcata Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of California and Oregon would be eligible for Federal funds to implement management actions that promote the protection or recovery of the coastal marten. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Although the coastal marten is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

    Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

    Several Federal agency actions that occur within the species' habitat may require conference or consultation or both as described in the preceding paragraph. These actions include management and any other landscape-altering activities on lands administered by the Service and the Department of the Interior's Bureau of Indian Affairs, Bureau of Land Management, and National Park Service and the Department of Agriculture's U.S. Forest Service; issuance of section 404 Clean Water Act permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Department of Transportation's Federal Highway Administration or the California Department of Transportation (Cal Trans).

    Provisions of Section 4(d) of the Act

    Under section 4(d) of the Act, the Secretary of the Interior has the discretion to issue such regulations as he deems necessary and advisable to provide for the conservation of threatened species. The Secretary also has the discretion to prohibit by regulation with respect to any threatened species of fish or wildlife any act prohibited under section 9(a)(1) of the Act. The prohibitions of section 9(a)(1) of the Act make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered species of fish or wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered fish or wildlife species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife or fish that has been taken illegally. To the extent the section 9(a)(1) prohibitions apply only to endangered species, this proposed rule would apply those same prohibitions to the coastal marten with some exceptions, in accordance with section 4(d) of the Act.

    The courts have recognized the extent of the Secretary's discretion to develop prohibitions, as well as exclusions from those prohibitions, that are appropriate for the conservation of a species. For example, the Secretary may decide not to prohibit take, or to put in place only limited take prohibitions. See Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the protective regulation for a species need not address all the threats to the species. As noted by Congress when the Act was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him with regard to the permitted activities for those species.” He may, for example, “permit taking, but not importation of such species,” or he may choose to forbid both taking and importation but allow the transportation of such species, as long as the measures will “serve to conserve, protect, or restore the species concerned in accordance with the purposes of the Act” (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).

    Proposed 4(d) Rule for the Coastal Marten

    Under this proposed section 4(d) rule, except as noted below, all prohibitions and provisions of section 9(a)(1) would apply to the coastal marten. The following management activities would not be subject to the general prohibitions of section 9(a)(1):

    (1) Forestry management activities for the purposes of reducing the risk or severity of wildfire, such as fuels reduction projects, fire breaks, and wildfire firefighting activities.

    (2) Forestry management activities included in a State-approved plan or agreement for lands covered by a Natural Communities Conservation Plan, Habitat Management Agreement, or Safe Harbor Agreement that addresses coastal marten as a covered species and is approved by the California Department of Fish and Wildlife under the authority of the California Endangered Species Act.

    (3) Forestry management activities consistent with the conservation needs of the coastal marten. These include activities consistent with formal approved conservation plans or strategies, such as Federal or State plans and documents that include coastal marten conservation prescriptions or compliance, and for which the Service has determined that meeting such plans or strategies, or portions thereof, would be consistent with this proposed rule.

    Although these management activities may result in some minimal level of harm or temporary disturbance to the coastal marten, overall, these activities benefit the subspecies by contributing to conservation and recovery. With adherence to the limitations described in the preceding paragraphs, these activities will have a net beneficial effect on the species by encouraging active forest management that creates and maintains the complex tree and shrub conditions needed to support the persistence of marten populations, which is essential to the species' long-term viability and conservation.

    These provisions are necessary because, absent the protections of the Act, the species is likely to become in danger of extinction in the foreseeable future. Applying the prohibitions of the Act will minimize threats that could cause further declines in the status of the species. Additionally, these provisions are advisable because the species needs active conservation to maintain or improve the quality of its habitat, and to sustain and expand the species' population and occupied range. By exempting some of the forestry management activities from the prohibitions, these provisions can encourage cooperation by landowners and other affected parties in implementing conservation measures that will maintain or enhance habitat and expand the population of the species and its occupied range. These provisions will allow for use of the land while at the same time ensuring the maintenance or enhancement of suitable habitat and minimizing impacts to the species.

    For activities funded, permitted, or carried out by a Federal agency that are not covered by the provisions and that may result in take, the Federal agency with jurisdiction would need to ensure, in consultation with the Service, that the activities are not likely to jeopardize the continued existence of the species. Private citizens who would like to have coverage for take resulting from activities not covered by these provisions may wish to seek an incidental take permit from the Service before proceeding with the activity (if there is no Federal nexus).

    Based on the explanations above, the prohibitions under section 9(a)(1) would apply to the coastal marten throughout its range, with specific exemptions tailored to the conservation of the species. Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) and consultation requirements under section 7 of the Act or the ability of the Service to enter into partnerships for the management and protection of the coastal marten.

    Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Arcata Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Critical Habitat

    Section 4(a)(3) of the Act, as amended, and implementing regulations in 50 CFR 424.12, require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be an endangered or threatened species. Critical habitat is defined in section 3 of the Act as:

    (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features

    (a) Essential to the conservation of the species, and

    (b) Which may require special management considerations or protection; and

    (2) Specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary of the Interior that such areas are essential for the conservation of the species.

    Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when any of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. The regulations also provide that, in determining whether a designation of critical habitat would not be beneficial to the species, the factors that the Service may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat” (50 CFR 424.12(a)(1)(ii)).

    We do not know of any imminent threat of take attributed to collection or vandalism for the coastal marten. The available information does not indicate that identification and mapping of critical habitat is likely to initiate any threat of collection or vandalism. Therefore, in the absence of finding that the designation of critical habitat would increase threats to the species, if there are benefits to the species from a critical habitat designation, a finding that designation is prudent is appropriate.

    The potential benefits of designation may include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is unoccupied; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the protected species. Because designation of critical habitat would not likely increase the degree of threat to the coastal marten and may provide some measure of benefit, designation of critical habitat may be prudent for the coastal marten.

    Our regulations (50 CFR 424.12(a)(2)) further state that critical habitat is not determinable when one or both of the following situations exists: (1) Information sufficient to perform required analysis of the impacts of the designation is lacking; or (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. A careful assessment of the economic impacts that may occur due to a critical habitat designation is still ongoing, and we are in the process of working with the States and other partners in acquiring the complex information needed to perform that assessment. The information sufficient to perform a required analysis of the impacts of the designation is lacking, and, therefore, we find designation of critical habitat for the coastal marten to be not determinable at this time.

    Required Determinations Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (1) Be logically organized;

    (2) Use the active voice to address readers directly;

    (3) Use clear language rather than jargon;

    (4) Be divided into short sections and sentences; and

    (5) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. In development of the SSA, we sent letters noting our intent to conduct a status review and requested information from all tribal entities within the historical range of the coastal DPS of the Pacific marten, as well as providing a draft SSA Report to the Yurok Tribe for review. As we move forward in this listing process, we will continue to consult on a government-to-government basis with tribes as necessary.

    Authors

    The primary authors of this proposed rule are the staff members of the Service's Species Assessment Team, with assistance from the Arcata Ecological Services Field Office and the Portland Ecological Services Field Office.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless otherwise noted.

    2. Amend § 17.11(h) by adding an entry for “Marten, Pacific (coastal DPS)” to the List of Endangered and Threatened Wildlife in alphabetical order under MAMMALS to read as set forth below:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules Mammals *         *         *         *         *         *         * Marten, Pacific (coastal DPS) Martes caurina Wherever found T [Federal Register citation when published as a final rule], 50 CFR 17.40(s).4d *         *         *         *         *         *         *
    3. Amend § 17.40 by adding paragraph (s) to read as set forth below:
    § 17.40 Special rules—mammals.

    (s) Coastal marten (Martes caurina).—(1) Prohibitions. Except as noted in paragraph (a)(2) of this section, all prohibitions and provisions of section 9(a)(1) of the Act apply to the coastal marten.

    (2) Exceptions from prohibitions. Incidental take of the coastal marten will not be considered a violation of the Act if the take results from any of the following activities:

    (i) Forestry management activities for the purposes of reducing the risk or severity of wildfire, such as fuels reduction projects, fire breaks, and wildfire firefighting activities.

    (ii) Forestry management activities included in a State-approved plan or agreement for lands covered by a Natural Communities Conservation Plan, Habitat Management Agreement, or Safe Harbor Agreement that addresses coastal marten as a covered species and is approved by the California Department of Fish and Wildlife under the authority of the California Endangered Species Act.

    (iii) Forestry management activities consistent with the conservation needs of the coastal marten. These include activities consistent with formal approved conservation plans or strategies, such as Federal or State plans and documents that include coastal marten conservation prescriptions or compliance, and for which the Service has determined that meeting such plans or strategies, or portions thereof, would be consistent with this rule.

    James W. Kurth, Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2018-21794 Filed 10-5-18; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R4-ES-2018-0069; 4500030113] RIN 1018-BD36 Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule and Critical Habitat Designation for Slenderclaw Crayfish AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule and 12-month finding.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the slenderclaw crayfish (Cambarus cracens) as an endangered or threatened species under the Endangered Species Act of 1973 (Act), as amended. The slenderclaw crayfish is a relatively small, cryptic freshwater crustacean that is endemic to streams on Sand Mountain within the Tennessee River Basin in DeKalb and Marshall Counties, Alabama. After review of the best available scientific and commercial information, we find that listing the slenderclaw crayfish is warranted. Accordingly, we propose to list it as a threatened species. If we finalize this rule as proposed, it would extend the Act's protections to this species and, accordingly, add this species to the List of Endangered and Threatened Wildlife. We also propose a rule under the authority of section 4(d) of the Act that provides measures that are necessary and advisable to provide for the conservation of the slenderclaw crayfish. In addition, we propose to designate approximately 78 river miles (126 river kilometers) in Alabama as critical habitat for the species under the Act. We announce the availability of a draft economic analysis of the proposed designation of critical habitat.

    DATES:

    We will accept comments received or postmarked on or before December 10, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by November 23, 2018.

    ADDRESSES:

    Written comments: You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2018-0069, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rule box to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2018-0069, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information).

    Supporting materials: The species status assessment (SSA) report and other materials relating to this listing proposal can be found on the Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069.

    For the critical habitat designation, the coordinates or plot points or both from which the maps are generated are included in the administrative record and are available at https://www.fws.gov/southeast/, at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069, and at the Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for this critical habitat designation will also be available at the Service website and Field Office set out above, and may also be included in the preamble and/or at http://www.regulations.gov. In addition, the draft economic analysis of the proposed critical habitat designation is available at https://www.fws.gov/southeast/, at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069, and at the Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    FOR FURTHER INFORMATION CONTACT:

    William Pearson, Field Supervisor, U.S. Fish and Wildlife Service, Alabama Ecological Services Field Office, 1208-B Main Street, Daphne, AL 36526; telephone 251-441-5870. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Executive Summary

    Why we need to publish a rule. Under the Act, if we determine that a species may be an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal to list the species in the Federal Register and make a determination on our proposal within 1 year. To the maximum extent prudent and determinable, we must designate critical habitat for any species that we determine to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designation of critical habitat can only be completed by issuing a rule.

    This rule proposes the listing of the slenderclaw crayfish (Cambarus cracens) as a threatened species, proposes a rule under the authority of section 4(d) of the Act that provides measures that are necessary and advisable to provide for the conservation of the slenderclaw crayfish, and proposes the designation of critical habitat for this species.

    The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that competition from a nonnative species (Factors A and E) and habitat degradation resulting from poor water quality (Factor A) pose the largest risk to the future viability of the slenderclaw crayfish.

    Under section 4(a)(3) of the Act, we must, to the maximum extent prudent and determinable, designate critical habitat for the species concurrent with the listing determination. Section 4(b)(2) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. The Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed if such areas are essential to the conservation of the species. In accordance with section 4(b)(2) of the Act, we prepared an analysis of the economic impacts of the proposed critical habitat designation.

    Peer review. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought the expert opinions of six appropriate specialists regarding the species status assessment report, which informs this proposed rule. The purpose of peer review is to ensure that our listing determination, critical habitat determination, and 4(d) rule are based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in crayfish biology, habitat, and stressors to the species.

    Information Requested

    We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. We particularly seek comments concerning:

    (1) The slenderclaw crayfish's biology, range, abundance, and population trends, including:

    (a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

    (b) Genetics and taxonomy;

    (c) Historical and current range, including distribution patterns;

    (d) Historical and current population levels, and current and projected trends; and

    (e) Past and ongoing conservation measures for the species, its habitat, or both.

    (2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

    (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

    (4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

    (5) Additional information concerning the nonnative virile crayfish (Faxonius virilis), including:

    (a) Distribution, rate of spread, and effects of the virile crayfish on the slenderclaw crayfish; and

    (b) Biological techniques or methods to control and manage the virile crayfish.

    (6) Information on activities which might warrant consideration in the rule issued under section 4(d) of the Act (16 U.S.C. 1531 et seq.), including:

    (a) Whether the provision in the proposed 4(d) rule related to streambank stabilization activities should be revised to include additional restrictions; and

    (b) Additional provisions the Service may wish to consider for a 4(d) rule in order to conserve, recover, and manage the slenderclaw crayfish, such as the management of invasive species.

    (7) The reasons why designation of habitat as “critical habitat” under section 4 of the Act is or is not prudent, including whether there are threats to the species from human activity and/or a lack of benefits of designating critical habitat.

    (8) Specific information on:

    (a) The amount and distribution of slenderclaw crayfish habitat;

    (b) What areas, that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the species, should be included in the designation and why;

    (c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and

    (d) What areas not occupied at the time of listing are essential for the conservation of the species and why.

    (9) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

    (10) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the benefits of including or excluding areas that may be impacted.

    (11) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts.

    (12) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.

    (13) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

    You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

    Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. All comments submitted electronically via http://www.regulations.gov will be presented on the website in their entirety as submitted. For comments submitted via hardcopy, we will post your entire comment—including your personal identifying information—on http://www.regulations.gov. You may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so.

    Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Please note that submissions merely stating support for or opposition to the listing action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.” We also invite additional comments from peer reviewers during the public comment period.

    Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests for a public hearing must be received by the date specified in DATES at the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of that hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

    Previous Federal Actions

    On April 20, 2010, we were petitioned by the Center for Biological Diversity and others to list 404 aquatic species in the southeastern United States, including the slenderclaw crayfish, under the Act. In response to the petition, we completed a partial 90-day finding on September 27, 2011 (76 FR 59836), in which we announced our finding that the petition contained substantial information indicating that listing may be warranted for numerous species, including the slenderclaw crayfish. On June 17, 2014, the Center for Biological Diversity filed a complaint against the Service for failure to complete a 12-month finding for the slenderclaw crayfish in accordance with statutory deadlines. On September 22, 2014, the Service and the Center for Biological Diversity filed stipulated settlements in the District of Columbia, agreeing that the Service would submit to the Federal Register a 12-month finding for the slenderclaw crayfish no later than September 30, 2018 (Center for Biological Diversity v. Jewell, case 1:14-CV-01021-EGS/JMF). We have conducted the species status assessment (SSA) for the species, and this document constitutes our concurrent 12-month warranted petition finding, proposed listing rule, and proposed critical habitat rule.

    Species Status Assessment Report

    An SSA team prepared an SSA report for the slenderclaw crayfish. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. The SSA report underwent independent peer review by scientists with expertise in crayfish biology, habitat management, and stressors (factors negatively affecting the species) to the slenderclaw crayfish. The SSA report and other materials relating to this proposal can be found on the Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069.

    I. Proposed Listing Determination Background

    A thorough review of the taxonomy, life history, and ecology of the slenderclaw crayfish is presented in the SSA report (Service 2018, entire; available at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069).

    Species Description

    The slenderclaw crayfish is a relatively small, cryptic freshwater crustacean that is endemic to streams on Sand Mountain within the Tennessee River Basin in DeKalb and Marshall Counties, Alabama. This species is a stream-dwelling crayfish and is considered a tertiary burrower (Bearden 2017, pers. comm.). The slenderclaw crayfish was described in 1976, from collections from Short Creek in Marshall County, Alabama (Bouchard and Hobbs 1976, p. 7). The largest individual collected was a female with a carapace length of 1.56 inches (in) (39.7 millimeters (mm)), and reproductively-active males have ranged from 1.09 in (27.7 mm) to 1.47 in (37.3 mm) in carapace length (Bouchard and Hobbs, pp. 7-8). The slenderclaw crayfish is likely sexually mature at 1 year of age and has a lifespan of 2 to 3 years (Schuster 2017, pers. comm.).

    Distribution

    The slenderclaw crayfish is known to occupy streams in two adjacent watersheds, Short Creek and Town Creek, leading into Guntersville Lake on the Tennessee River in Alabama. The historical (1970-1974) range of the slenderclaw crayfish included four small streams or tributaries within the two watersheds, and the species was known from five sites: One site in Short Creek, one site in Shoal Creek, and two sites in Scarham Creek within the Short Creek population; and one site in Bengis Creek within the Town Creek population (Bouchard and Hobbs 1976, p. 7). The slenderclaw crayfish is currently extant at five sites: Three sites in Shoal Creek within the Short Creek population, and two sites (one in Bengis Creek and one in Town Creek) within the Town Creek population. The species is presumed extirpated from four historically occupied sites, including the type locality within the Short Creek population.

    Habitat

    The slenderclaw crayfish occupies small to medium flowing streams (typically 20 feet (ft) (6.1 meters (m) wide or smaller, with depths of 2.3 ft (0.7 m) or shallower), intact riparian cover, and boulder/cobble structure (Bouchard and Hobbs 1976, p. 8; Bearden 2017, pers. comm.). The stream habitat consists of predominately large boulders and fractured bedrock in sites from the Short Creek watershed (Bouchard and Hobbs 1976, p. 8; Bearden 2017, pers. comm.) and streams dominated by smaller substrate types with a mix of gravel and cobble in sites from the Town Creek watershed (Bearden 2017, pers. comm.). The species needs abundant interstitial space within each habitat type for sheltering (Schuster 2017, pers. comm.; Taylor 2017, pers. comm.) and adequate seasonal water flows to maintain benthic habitats and maintain connectivity of streams. During low stream flow periods, slenderclaw crayfish appear to use any available water, so during the low water flow events, individuals have been found in pool habitats or near undercut banks (Bearden 2017, pers. comm.). Slenderclaw crayfish likely feed upon aquatic macroinvertebrates in the juvenile stage and shift toward omnivory in the adult stage (Schuster 2017, pers. comm.).

    Summary of Biological Status and Threats

    Section 4(a)(1) of the Act directs us to determine whether any species is an endangered species or a threatened species because of one or more of five factors affecting its continued existence: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

    We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself. However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

    The SSA report documents the results of our comprehensive biological status review for the slenderclaw crayfish, including an assessment of these potential stressors to the species (factors). It does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or a threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decision, which involves the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report.

    To assess slenderclaw crayfish viability, we used the three conservation biology principles of resiliency, representation, and redundancy (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency refers to the ability of a species to withstand environmental and demographic stochasticity (for example, wet or dry years, flood events); representation refers to the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes); and redundancy refers to the ability of the species to withstand catastrophic events (for example, droughts). In general, the more redundant and resilient a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the factors, both beneficial and risk, influencing the species' viability.

    The SSA process can be divided into three sequential stages. During the first stage, we evaluated the life-history needs of individual slenderclaw crayfish, assessed the historical and current distribution of the species, and delineated populations. During the next stage, we assessed the current condition of the species' demographics and habitat characteristics, including explaining how it arrived at its current condition. In the final stage, we made predictions about the species' responses to positive and negative environmental and anthropogenic influences. This process used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We utilized this information to inform our regulatory decision in this finding.

    To evaluate the current and future viability of the slenderclaw crayfish, we assessed a range of conditions to allow us to consider the species' resiliency, representation, and redundancy. Populations were delineated using the U.S. Geological Survey Hydrological Unit Code (HUC) 12 watershed boundaries and tributaries leading to the Tennessee River, which species experts identified as the most appropriate unit for assessing population-level resiliency; this delineation aligned with the two watersheds, Short and Town Creeks, that slenderclaw crayfish historically occupied.

    To assess resiliency, we qualitatively analyzed data related to two demographic factors (abundance and evidence of reproduction) and two habitat factors (presence of virile crayfish and water quality). Overall population condition rankings were determined by combining the demographic and habitat factors.

    Finally, we described representation for the slenderclaw crayfish in terms of habitat variability (known from two slightly different habitat types) and morphometric variability (as described above under Species Description). We assessed slenderclaw crayfish redundancy by evaluating the number and distribution of resilient populations throughout the species' range.

    Current Condition of Slenderclaw Crayfish

    The historical range of the slenderclaw crayfish included two known populations, Short and Town Creeks, in watersheds leading into the Tennessee River in Alabama. Within the Short Creek population, 90 total slenderclaw crayfish, with 56 of those being juveniles, were collected from 1970-1974 (Bouchard and Hobbs 1976, entire; Schuster 2017, unpublished data). Only one crayfish was historically collected in the Town Creek population from 1970-1974 (Bouchard and Hobbs 1976, entire; Schuster 2017, unpublished data). Surveys conducted from 2009-2017 have documented the slenderclaw crayfish within the same two populations, Short Creek (three sites in Shoal Creek) and Town Creek (one site in Bengis Creek and one site in Town Creek) (Kilburn et al. 2014, pp. 116-117; Bearden et al. 2017, pp. 17-18; Schuster 2017, unpublished data; Taylor 2017, unpublished data). Of the five historical sites, the slenderclaw crayfish is no longer found and is presumed extirpated at four sites (one site in Short Creek, two sites in Scarham Creek, and one site in Bengis Creek) despite repeated survey efforts (Kilburn et al. 2014, pp. 116-117; Bearden et al. 2017, pp. 17-18; Schuster 2017, unpublished data; Taylor 2017, unpublished data). Across current survey efforts from 2009-2017, 28 slenderclaw crayfish, including 2 juveniles, were collected within the Short Creek population, and 2 adult and 2 juvenile slenderclaw crayfish were collected from the Town Creek population. It should be noted that there are no actual historical or current population estimates for slenderclaw crayfish, and the abundance numbers (total number collected) reported are not population estimates.

    At the population level, the overall current condition in terms of resiliency was estimated to be low for both Short Creek and Town Creek populations. We estimated that the slenderclaw crayfish currently has some adaptive potential (i.e., representation) due to the habitat variability features occurring in the Short Creek and Town Creek populations. The Short Creek population occurs in streams with predominantly large boulders and fractured bedrock, broader stream widths, and greater depths, and the Town Creek population occurs in streams with larger amounts of gravel and cobble, narrower stream widths, and shallower depths (Bearden 2017, pers. comm.). At present, the slenderclaw crayfish has two populations in low condition (resiliency) with habitat types that vary between populations. Therefore, given the variable habitat in which the slenderclaw crayfish occurs, the species may have some level of adaptive capacity, given the low resiliency of both populations of the slenderclaw crayfish, current representation is reduced.

    The slenderclaw crayfish exhibits limited redundancy given its narrow range and that four out of five sites within the species' historical range are presumed extirpated. In addition, connectivity between the Short Creek and Town Creek populations is likely low, because both Short and Town Creek streams flow downstream into, and thus are separated by, Guntersville Lake. To date, no slenderclaw crayfish have been documented in impounded areas including Guntersville Lake. Multiple sites in the same population could allow recolonization following a catastrophic event (e.g., chemical spill) that may affect a large proportion of a population; however, given the species' limited redundancy and current low resiliency of both populations, it might be difficult to re-establish an entire population affected by a catastrophic event, as the connectivity between the two populations is low. Further, the currently occupied sites in the Short Creek population are in a single tributary, and one catastrophic event could impact this entire population.

    Risk Factors for Slenderclaw Crayfish

    We reviewed the potential risk factors (see discussion of section 4(a)(1) of the Act, above) that are affecting the slenderclaw crayfish now and are expected to affect it into the future. We have determined that competition from a nonnative species (Factors A and E) and habitat degradation resulting from poor water quality (Factor A) pose the largest risk to the future viability of the slenderclaw crayfish. Other potential stressors to the species are hydrological variation and alteration (Factors A and E), land use (Factor A), low abundance (Factor E), and scientific collection (Factor B). There are currently no existing regulatory mechanisms that adequately address these threats to the slenderclaw crayfish such that it does not warrant listing under the Act (Factor D). We find the species does not face significant threats from disease or predation (Factor C). We also reviewed the conservation efforts being undertaken for the habitat in which the slenderclaw crayfish occurs. A brief summary of relevant stressors is presented below; for a full description, refer to chapter 3 of the SSA report.

    Nonnative Species

    The virile crayfish (Faxonius virilis), previously recognized as Orconectes virilis (Crandall and De Grave 2017, p. 5), is a crayfish native to the Missouri, upper Mississippi, lower Ohio, and the Great Lakes drainages (USFWS 2015, p. 1). The species has spread from its native range through dispersal as fishing bait, as pets, and through commercial (human) consumption (Schwartz et al. 1963, p. 267; USFWS 2015, p. 4). Virile crayfish inhabit a variety of watersheds in the United States, including those with very few to no native crayfish species, and have been documented in lake, wetland, and stream environments (Larson et al. 2010, p. 2; Loughman and Simon 2011, p. 50). Virile crayfish are generalists, able to withstand various conditions, and have the natural tendency to migrate (Loughman and Simon 2011, p. 50). This species has been documented to spread approximately 124 mi (200 km) over 15 years (B. Williams 2018, pers. comm.; Williams et al. 2011, entire).

    Based on comparison of body size, average claw size, aggression levels, and growth rates, it appears that virile crayfish has an ecological advantage over several native crayfish species, including those in the Cambarus and Procambarus genera (Hale et al. 2016, p. 6). In addition, virile crayfish have been documented to displace native crayfish (Hubert 2010, p. 5).

    Virile crayfish were first collected near the range of slenderclaw crayfish in 1967 (Schuster 2017, unpublished data). Since then, the virile crayfish has been documented in Guntersville Lake (a Tennessee Valley Authority reservoir constructed in 1939, on the Tennessee River mainstem) (Schuster 2017, unpublished data; Taylor 2017, unpublished data). In addition, the virile crayfish was found at the type locality (location where the species was first described) for the slenderclaw crayfish in Short Creek (Short Creek population) in 2015, in which the slenderclaw crayfish no longer occurs (Schuster 2017, unpublished data; Taylor 2017, unpublished data). In 2016, the virile crayfish was found at two sites in Drum Creek within the Short Creek population boundary and at the confluence of Short Creek and Guntersville Lake (Schuster 2017, unpublished data; Taylor 2017, unpublished data). During 2017, 20 virile crayfish were found again at the location where slenderclaw crayfish was first described in Short Creek (Taylor 2017, unpublished data). Also during 2017, this nonnative crayfish was documented at four new sites in adjacent watersheds outside of the Short Creek population boundary. Juvenile virile crayfish have been collected in the Short Creek population, indicating that the species is established there (Taylor 2017, unpublished data). To date, no virile crayfish have been documented within the Town Creek population boundary (Schuster 2017, unpublished data; Taylor 2017, unpublished data).

    The adaptive nature of the virile crayfish, the effects of this nonnative species on other crayfish species in their native ranges, and records of the virile crayfish's presence in the slenderclaw crayfish's historical and current range indicate that the virile crayfish is a factor that negatively influences the viability of the slenderclaw crayfish in the near term and future. Also, considering that the virile crayfish is a larger crayfish, is a strong competitor, and tends to migrate, while the slenderclaw crayfish has low abundance and is a smaller-bodied crayfish, it is reasonable to infer that once the virile crayfish is established at a site, it will out-compete slenderclaw crayfish.

    Water Quality

    Direct impacts of poor water quality on the slenderclaw crayfish are unknown; however, aquatic macroinvertebrates (i.e., mayflies, caddisflies, stoneflies) are known to be negatively affected by poor water quality, and this may indirectly impact the slenderclaw crayfish, which feeds on them. Degradation of water quality has been documented to impact aquatic macroinvertebrates and may even cause stress to individual crayfish (Arthur et al. 1987, p. 328; Devi and Fingerman 1995, p. 749; Rosewarne et al. 2014, p. 69). Although crayfish generally have a higher tolerance to ammonia than some aquatic species (i.e., mussels), their food source, larval insects, is impacted by ammonia at lower concentrations (Arthur et al. 1987, p. 328). Juvenile slenderclaw crayfish likely feed exclusively on aquatic macroinvertebrates, which are impacted by elevated ammonia and poor water quality.

    Within the range of the slenderclaw crayfish, Scarham Creek and Town Creek were identified as impaired waters by the Alabama Department of Environmental Management (ADEM), and were listed on Alabama's 303(d) list of impaired water bodies (list of waterbodies that do not meet established state water quality standards) in 1996 and 1998, respectively (ADEM 1996, p. 1; ADEM 2001, p. 11). Scarham Creek was placed on the 303(d) list for impacts from pesticides, siltation, ammonia, low dissolved oxygen/organic enrichment, and pathogens from agricultural sources; this section of Scarham Creek stretched 24 mi (39 km) upstream from its confluence with Short Creek to its source (ADEM 2013, p. 1). However, Scarham Creek was removed from Alabama's 303(d) list of impaired waters in 2004, after the total maximum daily loads (TMDLs; maximum amount of a pollutant or pollutants allowed in a water body while still meeting water quality standards) were developed in 2002 (ADEM 2002, p. 5; ADEM 2006, entire). Town Creek was previously listed on the 303(d) list for ammonia and organic enrichment/dissolved oxygen impairments. Although TMDLs have been in development for these issues (ADEM 1996, entire), all of Town Creek is currently on the 303(d) list for mercury contamination due to atmospheric deposition (ADEM 2016a, appendix C). One identified source of wastewater discharge to Town Creek is Hudson Foods near Geraldine, Alabama (ADEM 1996, p. 1).

    Pollution from nonpoint sources stemming from agriculture, animal production, and unimproved roads has been documented within the range of the slenderclaw crayfish (Bearden et al. 2017, p. 18). Alabama is ranked third in the United States for broiler (chicken) production (Alabama Poultry Producers 2017, unpaginated), and DeKalb and Marshall Counties are two of the four most active counties in Alabama for poultry farming (Conner 2008, unpaginated). Poultry farms and poultry litter (a mixture of chicken manure, feathers, spilled food, and bedding material that frequently is used to fertilize pastureland or row crops) have been documented to contain nutrients, pesticides, bacteria, heavy metals, and other pathogens (Bolan et al. 2010, pp. 676-683; Stolz et al. 2007, p. 821). A broiler house containing 20,000 birds will produce approximately 150 tons of litter a year (Ritz and Merka 2013, p. 2). Surface-spreading of litter allows runoff from heavy rains to carry nutrients from manure into nearby streams. Poultry litter spreading is a practice that occurs within the Short Creek watershed (Short Creek population of slenderclaw crayfish) (TARCOG 2015, p. 8).

    During recent survey efforts for the slenderclaw crayfish, water quality analysis indicated that water quality was impaired due to nutrients and bacteria within the Short Creek population, and levels of atrazine may be of concern in the watershed (Bearden et al. 2017, p. 32). In Bengis Creek (Town Creek population), water quality analysis found lead measurements that exceeded the acute and chronic aquatic life criteria set by the U.S. Environmental Protection Agency and ADEM (Bearden et al. 2017, p. 32; ADEM 2017, p. 10-7). These criteria are based on levels developed by the U.S. Environmental Protection Agency and ADEM to protect fish and wildlife (ADEM 2017, entire), and exceedance of these values is likely to harm animal or plant life (U.S. Environmental Protection Agency 2018b, unpaginated). Elevated ammonia concentrations in Town Creek were also documented and reflected nonpoint source pollution at low flow and high flow measurements (Bearden et al. 2017, p. 21). In late summer and fall surveys, potential eutrophication likely stemming from low water conditions, elevated nutrients, and low dissolved oxygen was documented within both Short and Town Creek watersheds (Bearden et al. 2017, p. 31).

    Hydrological Alteration and Variation

    Dams and reservoirs on the Tennessee River have reduced connectivity between slenderclaw crayfish populations by altering some of the habitat from a flowing stream to standing, impounded water. The Town Creek and Short Creek watersheds, each containing one of the two extant populations of the slenderclaw crayfish, drain into Guntersville Lake, a Tennessee Valley Authority reservoir constructed in 1939, on the Tennessee River. Despite survey efforts, no slenderclaw crayfish has been found in Guntersville Lake, and to date, the slenderclaw crayfish has not been documented in any impounded areas. Guntersville Lake likely poses a barrier between the two slenderclaw crayfish populations and prevents the exchange of genetic material (Schuster 2017, unpublished data). It should be noted that slenderclaw crayfish was first collected in 1970 (approximately 31 years after the completion of Guntersville Lake), and, therefore, the range of the slenderclaw crayfish prior to Guntersville Lake's creation is unknown, and the impacts of the lake's creation on the slenderclaw crayfish during that time are unknown.

    Streams on Sand Mountain, which include streams in Short and Town Creek watersheds, are prone to seasonal low water conditions during the fall and early winter months before the winter wet season (USGS 2017, unpaginated), and the Pottsville aquifer is not a reliable source of large amounts of groundwater for recharge of these streams (Kopaska-Merkel et al. 2008, p. 19). Therefore, these streams are vulnerable to changes in hydrology and water availability. In addition to the seasonal low water conditions, there is a high number of small impoundments on Sand Mountain (Holley 2017, pers. comm.) that further alter the hydrology and available surface water in these streams. In the future, if these streams have a further reduction in water availability due to hydrological alteration or natural variation, this could be a factor that negatively influences the viability of the slenderclaw crayfish.

    Land Use

    Within DeKalb and Marshall Counties, the amount of land area in farms (pastureland, poultry production, and row crop production) has decreased over time (Bearden et al. 2017, p. 27). Prior to the discovery of the slenderclaw crayfish, DeKalb and Marshall Counties' total acreage in farms in 1969 was 60 percent (299,316 acres (ac) (121,128 hectares (ha))) and 51 percent (205,105 ac (83,003 ha)), respectively, which included pastureland, poultry production, and row crop production (USDA 1972, p. 285). By 2012, the total acreage in farms had decreased to 46 percent (229,294 ac (92,792 ha)) and 41 percent (162,980 ac (65,956 ha)) in DeKalb and Marshall Counties, respectively (USDA 2014, pp. 230, 234). However, although the amount of area in farm land has decreased since 1969, water quality is still impacted by agricultural practices, as discussed above (Bearden et al. 2017, p. 18). In the future, land use is not expected to change drastically; however, a change from agriculture and poultry farming to urban uses could potentially impact the slenderclaw crayfish. The expansion of urban areas could reduce available habitat for the slenderclaw crayfish, as well as increase impervious surfaces and resultant runoff, which can reduce water quality.

    Low Abundance and Scientific Collection

    The current estimated low abundance (n=32), scientific collection, and genetic drift may negatively affect populations of the slenderclaw crayfish. In general, the fewer populations a species has or the smaller its population size, the greater the likelihood of extinction by chance alone (Shaffer and Stein 2000, p. 307). Genetic drift occurs in all species, but is more likely to negatively affect populations that have a smaller effective population size (Caughley 1994, pp. 219-220; Huey et al. 2013, p. 10). There are only two populations of the slenderclaw crayfish with limited connectivity between those populations, which may have reduced genetic diversity. However, no testing for genetic drift has been conducted for the slenderclaw crayfish.

    Due to its small size, slenderclaw crayfish are difficult to identify in the field during surveys. Therefore, experts have historically collected individuals for later identification, resulting in removal of individuals from the populations. These vouchered specimens are important for identification and documentation purposes; however, if collection is removing breeding adults from the population, then it could make the overall population unsustainable as individual populations may decline. With the current estimated low number of individuals (n=32), as evidenced by low capture rates, collection, and particularly repeated collection (for example, in multiple subsequent years), could further deplete the number of breeding adults.

    Synergistic Effects

    In addition to impacting the species individually, it is likely that several of the above summarized risk factors are acting synergistically or additively on the species. The combined impact of multiple stressors is likely more harmful than a single stressor acting alone. For example, in the Town Creek watershed, Town Creek was previously listed as an impaired stream due to ammonia and organic enrichment/dissolved oxygen impairments, and recent surveys documented eutrophic conditions of elevated nutrients and low dissolved oxygen. In addition, hydrologic variation and alteration has occurred within the Town Creek watershed. Low water conditions naturally occur in streams where the slenderclaw crayfish occurs, and alteration causing prolonged low water periods could have a negative impact on the reproductive success of the slenderclaw crayfish. Further, connectivity between Town Creek and Short Creek watersheds is likely low due to Guntersville Lake. The combination of all of these stressors on the sensitive aquatic species in this habitat has probably impacted slenderclaw crayfish, in that only four individuals have been recorded here since 2009.

    Conservation Actions

    TMDLs have been developed in Scarham Creek for siltation, ammonia, pathogens, organic enrichment/low dissolved oxygen, and pesticides (ADEM 2002, p. 5). Town Creek is currently on the 303(d) list for mercury contamination due to atmospheric deposition (ADEM 2016a, appendix C). However, a TMDL for organic enrichment/dissolved oxygen has been developed for Town Creek (ADEM 1996, entire). Through the 303(d) program, ADEM provides section 319 funding targeting the watersheds to improve water quality. In 2014, the Upper Scarham Creek Watershed was selected as a priority by ADEM for the development of a watershed management plan. In Fiscal Year 2016, the DeKalb County Soil and Water Conservation District contracted with ADEM to implement the Upper Scarham Creek Watershed Project using section 319 funding (ADEM 2016b, p. 39).

    The U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) National Water Quality Initiative program identified the Guntersville Lake/Upper Scarham Creek in DeKalb County as an Alabama Priority Watershed in 2015 (NRCS 2017, unpaginated). This watershed is within the historical range of the slenderclaw crayfish. It is recognized as in need of conservation practices, as it was listed on the Alabama 303(d) list as impaired due to organic enrichment/low dissolved oxygen and ammonia as nitrogen (ADEM 2002, p. 4). The National Water Quality Initiative helps farmers, ranchers, and forest landowners improve water quality and aquatic habitats in impaired streams through conservation and management practices. Such practices include controlling and trapping nutrient and manure runoff, and installation of cover crops, filter strips, and terraces.

    Future Scenarios

    For the purpose of this assessment, we define viability as the ability of the species to sustain populations in the wild over time. To help address uncertainty associated with the degree and extent of potential future stressors and their impacts on the needs of the species, the concepts of resiliency, redundancy, and representation were applied using three plausible future scenarios. We devised these scenarios by identifying information on the following primary stressors that are anticipated to affect the species in the future: Nonnative virile crayfish, hydrological variation (precipitation and water quantity), land-use change, and water quality.

    Our three scenarios reflected differing levels of impacts on hydrological variation (precipitation change), land-use change, and nonnative virile crayfish spread. In the future, the virile crayfish will expand farther and is anticipated to occupy both the Short Creek and Town Creek watersheds where slenderclaw crayfish is known to occur. Water quality may improve on Sand Mountain; however, the presence of virile crayfish is expected to be a more powerful driver in the future condition of the slenderclaw crayfish. In addition, the effect of the other factors identified to be impacting the species is expected to reduce available habitat through time.

    To understand how precipitation will change in the future and apply this to our future scenarios, we used the U.S. Geological Survey's National Climate Change Viewer (Alder and Hostetler 2013, entire) to predict change in precipitation through 2040. We used the Slope, Land use, Excluded, Urban, Transportation and Hillshade (SLEUTH-3r) urban-growth model to explore potential land-use change and urbanization on Sand Mountain and the surrounding area through 2040 (Belyea and Terando 2013, entire; Terando et al. 2014, entire). Regarding spread of virile crayfish, there is uncertainty regarding the rate at which the virile crayfish is expected to expand, and it has been documented to spread at a rate of approximately 124 mi (200 km) over 15 years (3,609 ft per month (1,100 m per month)) (Williams 2018, pers. comm.; Williams et al. 2011, entire). However, we applied the approximate natural rate of spread (1,640 ft per month (500 m per month)) (Wong 2014, p. 4) to known virile crayfish locations to estimate virile crayfish occupation of known slenderclaw crayfish sites. Then, we projected how these stressors would change over time and developed future scenarios at three time periods: 2020, 2030, and 2040. Given the documented rate of virile crayfish spread of 124 mi (200 km) over 15 years (Williams 2018, pers. comm.) and that the virile crayfish was found at the type locality for the slenderclaw crayfish in 2015 (Schuster 2017, unpublished data), we chose a first time-step of 2020 to assess the earlier stages of virile crayfish spread, and we chose an ending time step of 2040 because we were reasonably certain we could forecast the virile crayfish's spread, as well as precipitation and land-use change, to this time period. However, the time period for our projections begins in 2017, as this was the end of our current condition timeframe. Brief descriptions of the three scenarios are below; for more detailed information on these scenarios and projections used to inform these scenarios, please see the SSA report (Service 2018, chapter 5).

    In Scenario 1, we projected continuation of the current rate of seasonal low water events, continued impact from land-use on water quality, low level of urban sprawl, and continued rate of virile crayfish spread to 2040. Current impacts to the landscape due to farming practices are expected to continue as evident in the water quality conditions, and low water events during the late summer to winter season will also continue. We expect the virile crayfish to spread farther into the Short Creek population, specifically into the currently occupied Shoal Creek sites, and to occupy the Town Creek population and its known slenderclaw crayfish sites. This Shoal Creek site is currently considered the most abundant slenderclaw crayfish location (n=26) (Schuster 2017, unpublished data; Bearden et al. 2017, p. 17); we expect that abundance of this population will be reduced, and the population will be in low to extirpated condition by 2040. We expect that by 2040, the Short Creek population of the slenderclaw crayfish will be extirpated and all currently known sites will be occupied by the virile crayfish. By 2040, in the Town Creek population, we expect that the virile crayfish will occupy the slenderclaw crayfish's sites on Bengis and Town creeks, but the slenderclaw crayfish will still be present, though in very low abundance.

    In Scenario 2, we projected a continuation of the current rate of seasonal low water events, but with additional conservation measures to improve and protect water quality, a reduced level of urban sprawl, and a slower rate of virile crayfish spread to 2040. We projected that best management practices and conservation programs would improve conditions on farm land, and, therefore, water quality conditions gradually improve. Low water events during the late summer to winter season will continue, but will not become longer than the current average. Although this scenario projected a lower rate of spread than Scenario 1, the virile crayfish is still expected to spread farther into the Short Creek population and will occupy the lower reaches of the Town Creek mainstem in the Town Creek population by 2040. Despite improved water quality conditions for the slenderclaw crayfish and aquatic macroinvertebrates, we expect that the presence of virile crayfish will still cause the extirpation of the slenderclaw crayfish in the Short Creek population, and keep the Town Creek population in low condition, by 2040.

    In Scenario 3, we projected an increased frequency and extended rate of seasonal low water events, reduction in water quality from poor land management practices, a moderate to high rate of urban sprawl, and a faster rate of virile crayfish spread to 2040. We expect that poor land management practices will result in degraded water quality and negative impacts to the macroinvertebrate community. We expect that longer and more frequent low water events during the late summer to winter season will impact critical life stages of the slenderclaw crayfish. In addition, we projected virile crayfish to spread more rapidly than in the other two scenarios. With the faster rate of spread, we expect the virile crayfish to be present at all currently known locations of the slenderclaw crayfish in the Short Creek population by 2020, and this population extirpated by 2030. By the year 2040, we expect that the virile crayfish will occupy all currently known sites in the Town Creek slenderclaw crayfish population, and, therefore, we expect this population to be extirpated as well.

    In summary, the resiliency of the Short Creek population is expected to remain low under Scenarios 1 and 2 in the year 2020, and the resiliency of the Town Creek population is expected to remain low under all three scenarios in the year 2020. By the year 2030, we expect the Short Creek population to become extirpated under Scenario 1 and under Scenario 3. By 2030, we expect the resiliency of the Town Creek population to remain low under Scenarios 1 and 2 and to be reduced to very low condition under Scenario 3. By the year 2040, we expect the Short Creek population to become extirpated under all three scenarios, and the Town Creek population to become extirpated under Scenario 3, remain in low resiliency under Scenario 2, and reduced to very low resiliency under Scenario 1.

    We evaluated future representation by assessing the habitat variability and morphological variation of the slenderclaw crayfish. With the expected extirpation of the Short Creek population under all of the above scenarios by 2040, we expect habitat variability to be lost to the slenderclaw crayfish. The Short Creek population occurs in the large boulder, wider stream habitat type, and, therefore, this population is adapted to this habitat type, which is expected to be lost, as well as the morphological variation of the species encountered in the Short Creek population. Thus, representation will be further reduced.

    We anticipate a reduction in the occupied range of the species (redundancy) through the loss of the Short Creek population, and, at a minimum, the species' range within the Town Creek population will be highly restricted to the headwaters due to the expansion of virile crayfish. Therefore, the slenderclaw crayfish is expected to have very limited redundancy in the future. The recolonization of sites (or one of the populations) following a catastrophic event would be very difficult given the loss of additional sites (and one or both populations) and reduced habitat available to the remaining population.

    Determination

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the slenderclaw crayfish. The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species that “is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.”

    We considered whether the slenderclaw crayfish is presently in danger of extinction and determined that proposing endangered status is not appropriate. Our review of the best available information indicates that there are currently two populations of slenderclaw crayfish occurring across the species' historical range in Alabama. Although there is some evidence of reduced abundance and presumed extirpation at four historical sites, the species has also been identified at three new sites as reflected by recent increased survey efforts. In addition, the best available information does not suggest that this species occurred in much greater numbers than it does today. While there are potentially several sources of indirect water quality impacts, no direct water quality-related impacts to the slenderclaw crayfish are known at this time, and crayfish generally have a higher tolerance to poor water quality conditions compared to other aquatic species such as mussels. However, water quality was identified as a potential factor that may indirectly affect the viability of the slenderclaw crayfish. Currently, the primary threat to the slenderclaw crayfish is the nonnative virile crayfish, which is expanding into the slenderclaw crayfish's range. At present, the virile crayfish has been reported as occurring at only one site, the type locality, where the slenderclaw crayfish was known to occur. The slenderclaw crayfish no longer occurs at this site, but we do not know whether the virile crayfish is the cause. At this time, the virile crayfish occupies a few sites approximately 7 mi (11 km) downstream of current slenderclaw crayfish sites in one (Short Creek) of the two watersheds. There are currently no records of the virile crayfish in the Town Creek population. Therefore, we expect the slenderclaw crayfish to continue to persist in this watershed, as long as the virile crayfish does not expand its range. In addition, given that the species occurs in two different watersheds, a single catastrophic event (e.g., a chemical spill) is not likely to impact both populations at the same time. Therefore, we determine that the slenderclaw crayfish is not currently in danger of extinction throughout all of its range.

    However, we expect that resiliency, redundancy, and representation for the slenderclaw crayfish will be reduced from its current condition. The nonnative virile crayfish is the primary threat to the slenderclaw crayfish in the foreseeable future. The term foreseeable future extends only so far as the Services can reasonably rely on predictions about the future in making determinations about the future conservation status of the species. Those predictions can be in the form of extrapolation of population or threat trends, analysis of how threats will affect the status of the species, or assessment of future events that will have a significant new impact on the species. The foreseeable future described here, uses the best available data and takes into account considerations such as the species' life history characteristics, threat projection timeframes, and environmental variability, which may affect the reliability of projections. We also considered the time frames applicable to the relevant threats and to the species' likely responses to those threats in view of its life history characteristics. The foreseeable future for a particular status determination extends only so far as predictions about the future are reliable.

    In cases where the available data allow for projections, the time horizon for such analyses does not necessarily dictate what constitutes the “foreseeable future” or set the specific threshold for determining when a species may be in danger of extinction. Rather, the foreseeable future can only extend as far as the Service can reasonably explain reliance on the available data to formulate a reliable prediction and avoid reliance on assumption, speculation, or preconception. Regardless of the type of data available underlying the Service's analysis, the key to any analysis is a clear articulation of the facts, the rationale, and conclusions regarding foreseeability.

    We determined the foreseeable future for the slenderclaw crayfish to be 10 to 20 years from present. The SSA's future scenarios modeled and projected both precipitation and land-use change, and the threat and rate of the virile crayfish's expansion, out to 2040, and we determined that we can rely on the range of 10 to 20 years as presented in the scenarios and predict how those threats will affect the slenderclaw crayfish within that time range. Given the projected rate of virile crayfish spread of 1,640 ft per month (500 m per month) (Wong 2014, p. 4) and documented behavior and current locations of the virile crayfish, we can reliably predict within the next 10 to 20 years that the virile crayfish will expand further into the slenderclaw crayfish's range and likely outcompete the slenderclaw crayfish. In addition, 10 to 20 years represents 10 to 20 generations, which would allow population-level impacts from threats to be detected.

    There is uncertainty regarding the rate at which virile crayfish may extend into the range of the slenderclaw crayfish and the effects on slenderclaw crayfish populations should the virile crayfish become established. We acknowledge this uncertainty, and we are specifically seeking additional information from the public to better inform our final determination (see Information Requested, above). However, based on the documented past expansion of the virile crayfish, future invasion and expansion into the slenderclaw crayfish's range is expected to occur within the foreseeable future. As discussed above and based on the scenarios, we expect the Short Creek population to be extirpated and the Town Creek population to have lower resiliency or become extirpated within the foreseeable future. We expect the remaining population of the slenderclaw crayfish to become more vulnerable to extirpation, as evidenced by concurrent losses in representation and redundancy. Primarily due to this nonnative species invasion reducing or extirpating most, if not all, of the sites and both populations, we expect the species to be in danger of extinction in the foreseeable future. Accordingly, we find that the slenderclaw crayfish is likely to become in danger of extinction within the foreseeable future throughout its range.

    Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the slenderclaw crayfish is likely to become an endangered species within the foreseeable future throughout its range, we find it unnecessary to proceed to an evaluation of potentially significant portions of the range. Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species' degree of imperilment and better promotes the purposes of the statute. Under this reading, we should first consider whether listing is appropriate based on a rangewide analysis and proceed to conduct a “significant portion of its range” analysis if, and only if, a species does not qualify for listing as either endangered or threatened according to the “all” language. We note that the court in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not address this issue, and our conclusion is therefore consistent with the opinion in that case.

    Therefore, on the basis of the best available scientific and commercial information, we propose to list the slenderclaw crayfish as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

    Available Conservation Measures

    The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

    Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems. Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification (such as “downlisting” from endangered to threatened) or removal from the Federal Lists of Endangered and Threatened Wildlife and Plants (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website (http://www.fws.gov/endangered), or from our Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

    If we list the slenderclaw crayfish, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Alabama would be eligible for Federal funds to implement management actions that promote the protection or recovery of the slenderclaw crayfish. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Although the slenderclaw crayfish is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

    II. Proposed Rule Issued Under Section 4(d) of the Act Background

    The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. Under section 4(d) of the Act, the Service has discretion to issue regulations that we find necessary and advisable to provide for the conservation of threatened species. The Secretary also has the discretion to prohibit, by regulation with respect to any threatened species of fish or wildlife, any act prohibited under section 9(a)(1) of the Act. The same prohibitions of section 9(a)(1) of the Act, as applied to threatened wildlife and codified at 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) threatened wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally.

    In accordance with section 4(d) of the Act, the regulations implementing the Act include a provision that generally applies to threatened wildlife the same prohibitions that apply to endangered wildlife (50 CFR 17.31(a)). However, for any threatened species, the Service may instead develop a protective regulation that is specific to the conservation needs of that species. Such a regulation would contain all of the protections applicable to that species (50 CFR 17.31(c)); this may include some of the general prohibitions and exceptions under 50 CFR 17.31 and 17.32, but would also include species-specific protections that may be more or less restrictive than the general provisions at 50 CFR 17.31.

    For the slenderclaw crayfish, the Service has developed a proposed 4(d) rule that is tailored to the specific threats and conservation needs of this species. The proposed 4(d) rule will not remove or alter in any way the consultation requirements under section 7 of the Act.

    Proposed 4(d) Rule for Slenderclaw Crayfish

    Under this proposed 4(d) rule, the following prohibitions apply to the slenderclaw crayfish except as otherwise noted:

    Take

    Protecting the slenderclaw crayfish from direct forms of take, such as physical injury or killing, whether incidental or intentional, will help preserve and recover the remaining populations of the species. Therefore, we propose to prohibit intentional take of slenderclaw crayfish, including, but not limited to, capturing, handling, trapping, collecting, or other activities. In addition, we propose to prohibit the import, export, possession, sale, offer for sale, delivery, carry, transport, or shipment, by any means whatsoever, any slenderclaw crayfish.

    Protecting the slenderclaw crayfish from indirect forms of take, such as harm that results from habitat degradation, will likewise help preserve the species' populations and also decrease negative effects from other stressors impeding recovery of the species. We determined that the primary threat to the slenderclaw crayfish is the nonnative virile crayfish, which is expanding farther into the slenderclaw crayfish's range. Therefore, any intentional or incidental introduction of nonnative species, such as the virile crayfish, that compete with, prey upon, or destroy the habitat of the slenderclaw crayfish would further impact the species and its habitat. Also, destruction or alteration of the species' habitat by discharge of fill material, draining, ditching, tiling, pond construction, stream channelization or diversion, or diversion or alteration of surface or ground water flow into or out of the stream, will impact the habitat for the slenderclaw crayfish, and therefore potentially harm the slenderclaw crayfish. In addition, a further reduction in streamwater availability due to hydrological alteration from modification of water flow of any stream in which the slenderclaw crayfish is known to occur could harm the crayfish as it resides in flowing streams, not impounded waters. Finally, water quality impacts have been documented to occur in both watersheds in which the slenderclaw crayfish occurs, and any discharge of chemicals or fill material into these watersheds will further impact the habitat of the slenderclaw crayfish. Therefore, we propose to prohibit actions that result in the incidental take of slenderclaw crayfish by altering or degrading the habitat.

    Exceptions From Prohibitions

    The proposed 4(d) rule includes the following exceptions from the above-stated prohibitions:

    Permitted Activities

    We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: Scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

    Activities Not Requiring a Permit

    We may allow take of the slenderclaw crayfish without a permit by any employee or agent of the Service or a State conservation agency designated by his agency for such purposes and when acting in the course of his official duties if such action is necessary to aid a sick, injured or orphaned specimen; dispose of a dead specimen; or salvage a dead specimen which may be useful for scientific study. In addition, Federal and State law enforcement officers may possess, deliver, carry, transport, or ship slenderclaw crayfish taken in violation of the Act as necessary.

    Streambank Stabilization

    Streambank stabilization is used as a habitat restoration technique to restore degraded and eroded streambanks back to vegetated, stable streambanks. When done correctly, these projects reduce bank erosion and instream sedimentation, resulting in improved habitat conditions for aquatic species. However, given the slenderclaw crayfish's current low abundance, any take from streambank stabilization projects using equipment instream would be harmful to the species. Therefore, we would allow streambanks to be stabilized using the following bioengineering methods: Live stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), live fascines (live branch cuttings, usually willows, bound together into long, cigar shaped bundles), or brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill). These methods would not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures, but could be used in conjunction with the above bioengineering methods. In addition, to reduce streambank erosion and sedimentation into the stream, we would require that work using these bioengineering methods would be performed at base-flow or low water conditions and when significant rainfall is not predicted. Further, streambank stabilization projects must keep all equipment out of the stream channels and water.

    This provision of the proposed 4(d) rule for streambank stabilization would promote conservation of the slenderclaw crayfish by excepting from prohibitions activities that would improve habitat conditions by reducing bank erosion and instream sedimentation.

    Finding

    The terms “conserve”, “conserving”, and “conservation” as defined by the Act, mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary. Due to threats acting on the slenderclaw crayfish and the projected impacts to the species and its habitat in the foreseeable future, its viability is expected to decline. The encroachment of the virile crayfish along with reduced water quality leave the species vulnerable to becoming in danger of extinction within the foreseeable future. The species has historically continued to persist in two populations despite its narrow endemic nature; however, the viability is expected to decline due to the virile crayfish and the conditions of the habitat. Prohibiting intentional take as described above as well as incidental take by altering or degrading the habitat will be beneficial in order to protect the slenderclaw crayfish from activities that negatively affect the species and further exacerbate population declines.

    For the reasons discussed above, we find that this rule under section 4(d) of the Act is necessary and advisable to provide for the conservation of the slenderclaw crayfish. We do, however, seek public comment on whether there are additional activities that should be considered under the 4(d) provision for the slenderclaw crayfish (see Information Requested, above). This proposal will not be made final until we have reviewed comments from the public and peer reviewers.

    III. Proposed Critical Habitat Designation Background

    Critical habitat is defined in section 3 of the Act as:

    (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

    (a) Essential to the conservation of the species, and

    (b) Which may require special management considerations or protection; and

    (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

    Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

    Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

    Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

    Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the specific features that support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.

    Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We will determine whether unoccupied areas are essential for the conservation of the species by considering the life-history, status, and conservation needs of the species. This will be further informed by any generalized conservation strategy, criteria, or outline that may have been developed for the species to provide a substantive foundation for identifying which features and specific areas are essential to the conservation of the species and, as a result, the development of the critical habitat designation. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation.

    Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

    When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.

    Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

    Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species to the maximum extent prudent and determinable. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist:

    (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or

    (2) Such designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Service may consider include, but are not limited to, whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat.”

    There is currently no imminent threat of take attributed to collection or vandalism identified under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, we next determine whether such designation of critical habitat would not be beneficial to the species. In the information provided above on threats to the species, we determined that there are habitat-based threats to the slenderclaw crayfish identified under Factor A; therefore, we cannot say that the designation of critical habitat would not be beneficial to the species. Rather, we determine that critical habitat would be beneficial to the species through the application of section 7 of the Act to actions that affect habitat as well as those that affect the species.

    Because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and would be beneficial, we find that designation of critical habitat is prudent for the slenderclaw crayfish.

    Critical Habitat Determinability

    Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the slenderclaw crayfish is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:

    (i) Data sufficient to perform required analyses are lacking, or

    (ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”

    We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where the species is located. We find that this information is sufficient for us to conduct both the biological and economic analyses required for the critical habitat determination. Therefore, we conclude that the designation of critical habitat is determinable for the slenderclaw crayfish.

    Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:

    (1) Space for individual and population growth and for normal behavior;

    (2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

    (3) Cover or shelter;

    (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

    (5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

    The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic needed to support the life history of the species. In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species.

    We derive the specific physical or biological features essential for slenderclaw crayfish from studies of this species' and similar crayfish species' habitat, ecology, and life history. The primary habitat elements that influence resiliency of the slenderclaw crayfish include water quantity, water quality, substrate, interstitial space, and habitat connectivity. More detail of the habitat and resource needs are summarized above under Habitat. We use the ADEM water quality standards for fish and wildlife criteria to determine the minimum standards of water quality necessary for the slenderclaw crayfish. A full description of the needs of individuals, populations, and the species is available from the SSA report; the resource needs of individuals are summarized below in Table 1.

    Table 1—Resource Needs for Slenderclaw Crayfish To Complete Each Life Stage Life stage Resources needed Fertilized Eggs • Female to carry eggs.
  • • Water to oxygenate eggs.
  • • Female to fan eggs to prevent sediment buildup and oxygenate water as needed.
  • • Female to shelter in boulder/cobble substrate and available interstitial space.
  • Juveniles • Female to carry juveniles in early stage.
  • • Water.
  • • Food (likely aquatic macroinvertebrates).
  • • Boulder/cobble substrate and available interstitial space for shelter.
  • Adults • Water.
  • • Food (likely omnivorous, opportunistic, and generalist feeders).
  • • Boulder/cobble substrate and available interstitial space for shelter.
  • Summary of Essential Physical or Biological Features

    In summary, we derive the specific physical or biological features essential to the conservation of the slenderclaw crayfish from studies of this species' and similar crayfish species' habitat, ecology, and life history, as described above. Additional information can be found in the SSA report (Service 2018, entire) available on http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069. We have determined that the following physical or biological features are essential to the conservation of the slenderclaw crayfish:

    (1) Geomorphically stable, small to medium, flowing streams:

    (a) That are typically 19.8 feet (ft) (6 meters (m)) wide or smaller;

    (b) With attributes ranging from:

    (i) Streams with predominantly large boulders and fractured bedrock, with widths from 16.4 to 19.7 ft (5 to 6 m), low to no turbidity, and depths up to 2.3 ft (0.7 m), to

    (ii) Streams dominated by small substrate types with a mix of cobble, gravel, and sand, with widths of approximately 9.8 feet (3 m), low to no turbidity, and depths up to 0.5 feet (0.15 m);

    (c) With substrate consisting of boulder and cobble containing abundant interstitial spaces for sheltering and breeding; and

    (d) With intact riparian cover to maintain stream morphology and to reduce erosion and sediment inputs.

    (2) Seasonal water flows, or a hydrologic flow regime (which includes the severity, frequency, duration, and seasonality of discharge over time), necessary to maintain benthic habitats where the species is found and to maintain connectivity of streams with the floodplain, allowing the exchange of nutrients and sediment for maintenance of the crayfish's habitat and food availability.

    (3) Appropriate water and sediment quality (including, but not limited to, conductivity; hardness; turbidity; temperature; pH; and minimal levels of ammonia, heavy metals, pesticides, animal waste products, and nitrogen, phosphorus, and potassium fertilizers) necessary to sustain natural physiological processes for normal behavior, growth, and viability of all life stages.

    (4) Prey base of aquatic macroinvertebrates and detritus. Prey items may include, but are not limited to, insect larvae, snails and their eggs, fish and their eggs, and plant and animal detritus.

    Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of the slenderclaw crayfish may require special management considerations or protections to reduce the following threats: (1) Impacts from invasive species, including the nonnative virile crayfish; (2) nutrient pollution from agricultural activities that impact water quantity and quality; (3) significant alteration of water quality and water quantity, including conversion of streams to impounded areas; (4) culvert and pipe installation that creates barriers to movement; and (5) other watershed and floodplain disturbances that release sediments or nutrients into the water.

    Management activities that could ameliorate these threats include, but are not limited to: Control and removal of introduced invasive species; limiting the spreading of poultry litter to time periods of dry, stable weather conditions; use of best management practices designed to reduce sedimentation, erosion, and bank side destruction; protection of riparian corridors and retention of sufficient canopy cover along banks; moderation of surface and ground water withdrawals to maintain natural flow regimes; and reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water.

    Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat.

    The current distribution of the slenderclaw crayfish is much reduced from its historical distribution in one (Short Creek watershed) of the two populations. The currently occupied sites in the Short Creek watershed occur in a single tributary (Shoal Creek), and one catastrophic event could impact this entire population. In addition, the nonnative virile crayfish occupies sites within the Short Creek watershed, including the type locality for the slenderclaw crayfish in Short Creek in which the slenderclaw crayfish no longer occurs. We anticipate that recovery will require continued protection of existing populations and habitat, as well as establishing sites in additional streams that more closely approximate its historical distribution in order to ensure there are adequate numbers of crayfish in stable populations and that these populations have multiple sites occurring in at least two streams within each watershed. This will help ensure that catastrophic events, such as a chemical spill, cannot simultaneously affect all known populations.

    Sources of data for this proposed critical habitat designation include numerous survey reports on streams throughout the species' range and databases maintained by crayfish experts and universities (Bouchard and Hobbs 1976, entire; Bearden 2017, unpublished data; Schuster 2017, unpublished data; Taylor 2017, unpublished data; Service 2018, entire). We have also reviewed available information that pertains to the habitat requirements of this species. Sources of information on habitat requirements include surveys conducted at occupied sites and published in agency reports, and data collected during monitoring efforts.

    Areas Occupied at the Time of Listing

    For locations within the geographic area occupied by the species at the time of listing, we identified stream channels that currently support populations of the slenderclaw crayfish. We defined “current” as stream channels with observations of the species from 2009 to the present. Due to the recent breadth and intensity of survey efforts for the slenderclaw crayfish throughout the historical range of the species, it is reasonable to assume that streams with no positive surveys since 2009 should not be considered occupied for the purpose of our analysis. Within these areas, we delineated critical habitat unit boundaries using the following process:

    We evaluated habitat suitability of stream channels within the geographical area occupied at the time of listing, and retained for further consideration those streams that contain one or more of the physical and biological features to support life-history functions essential to conservation of the species. We refined the starting and ending points of units by evaluating the presence or absence of appropriate physical and biological features. We selected the headwaters as upstream cutoff points for each stream and downstream cutoff points that omit areas that are not suitable habitat. For example, the Guntersville Lake Tennessee Valley Authority project boundary was selected as an endpoint for one unit, as there was a change to unsuitable parameters (e.g., impounded waters).

    Based on this analysis, the following streams meet criteria for areas occupied by the species at the time of listing: Bengis Creek, Scarham Creek, Shoal Creek, Short Creek, Town Creek, and Whippoorwill Creek (see Unit Descriptions, below). The proposed critical habitat designation does not include all stream segments known to have been occupied by the species historically; rather, it includes only the occupied stream segments within the historical range that have also retained one or more of the physical or biological features that will allow for the maintenance and expansion of existing populations.

    Areas Outside the Geographical Area Occupied at the Time of Listing

    To consider for designation areas not occupied by the species at the time of listing, we must demonstrate that these areas are essential for the conservation of the species. To determine if these areas are essential for the conservation of the slenderclaw crayfish, we considered the life history, status, and conservation needs of the species such as: (1) The importance of the stream to the overall status of the species, the importance of the stream to the prevention of extinction, and the stream's contribution to future recovery of the slenderclaw crayfish; (2) whether the area could be maintained or restored to contain the necessary habitat to support the slenderclaw crayfish; (3) whether the site provides connectivity between occupied sites for genetic exchange; (4) whether a population of the species could be reestablished in the location; and (5) whether the virile crayfish is currently present in the stream.

    For areas outside the geographical area occupied by the species at the time of listing, we delineated critical habitat unit boundaries by evaluating stream segments not known to have been occupied at listing (i.e., outside of the geographical area occupied by the species) but that are within the historical range of the species to determine if they are essential for the survival and recovery of the species. Essential areas are those that:

    (a) Expand the geographical distribution within areas not occupied at the time of listing across the historical range of the species; and

    (b) Are connected to other occupied areas, which will enhance genetic exchange between populations.

    General Information on the Maps of the Proposed Critical Habitat Designation

    When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for slenderclaw crayfish. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation under the Act with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.

    The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the proposed critical habitat designation in the discussion of individual units below. We will make the coordinates or plot points or both on which each map is based available to the public on http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT, above).

    Proposed Critical Habitat Designation

    We are proposing to designate approximately 78 river miles (mi) (126 river kilometers (km)) in two units as critical habitat for the slenderclaw crayfish. These proposed critical habitat areas, described below, constitute our current best assessment of areas that meet the definition of critical habitat for the slenderclaw crayfish. The two units proposed as critical habitat are: (1) Town Creek Unit, and (2) Short Creek Unit. Unit 2 is subdivided into two subunits: (2a) Shoal Creek and Short Creek subunit, and (2b) Scarham-Laurel Creek subunit. Table 2 shows the name, occupancy of the unit, land ownership of the riparian areas surrounding the units, and approximate river miles of the proposed designated units for the slenderclaw crayfish.

    Table 2—Proposed Critical Habitat Units for the Slenderclaw Crayfish Stream(s) Occupied at
  • the time
  • of listing
  • Ownership Length of
  • unit in
  • river miles
  • (kilometers)
  • Unit 1—Town Creek Bengis and Town creeks Yes Private 42 (67) Unit 2—Short Creek Subunit 2a—Shoal Creek and Short Creek Scarham, Shoal, Short, and Whippoorwill creeks Yes Private 10 (17) Subunit 2b—Scarham-Laurel Creek Scarham-Laurel Creek No Private 26 (42) Total 78 (126) Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all proposed units, and reasons why they meet the definition of critical habitat for the slenderclaw crayfish, below.

    Unit 1: Town Creek

    Unit 1 consists of 41.8 river mi (67.2 river km) of Bengis and Town creeks in DeKalb County, Alabama. Unit 1 includes stream habitat up to bank full height, consisting of the headwaters of Bengis Creek to its confluence with Town Creek and upstream to the headwaters of Town Creek. Stream channels in and lands adjacent to Unit 1 are privately owned except for bridge crossings and road easements, which are owned by the State and County. The slenderclaw crayfish occupies all stream reaches in this unit, and the unit currently supports all breeding, feeding, and sheltering needs essential to the conservation of the slenderclaw crayfish.

    Special management considerations or protection may be required for control and removal of introduced invasive species, including the nonnative virile crayfish, which occupies the boulder and cobble habitats and interstitial spaces within these habitats that the slenderclaw crayfish needs. At present, the virile crayfish is not present in this unit, although it has been documented just outside the watershed boundary. However, based on future projections in the SSA report, the virile crayfish is expected to be present in the Town Creek watershed within the next 2 years.

    In addition, special management considerations or protection may be required to address water withdrawals and drought as well as excess nutrients, sediment, and pollutants that enter the streams and serve as indicators of other forms of pollution, such as bacteria and toxins. A primary source of these types of pollution is agricultural runoff. However, during recent survey efforts for the slenderclaw crayfish, water quality analysis found lead measurements in Bengis Creek that exceeded the acute and chronic aquatic life criteria set by U.S. Environmental Protection Agency and ADEM, and elevated ammonia concentrations in Town Creek. Special management or protection may include moderating surface and ground water withdrawals, using best management practices to reduce sedimentation, and reducing watershed and floodplain disturbances that release pollutants and nutrients into the water.

    Unit 2: Short Creek

    Subunit 2a—Shoal Creek and Short Creek: Subunit 2a consists of 10.3 river mi (16.6 river km) of Scarham, Shoal, Short, and Whippoorwill creeks in DeKalb and Marshall Counties, Alabama. Subunit 2a includes stream habitat up to bank full height, consisting of the headwaters of Shoal Creek to its confluence with Whippoorwill Creek, Whippoorwill Creek to its confluence with Scarham Creek, Scarham Creek to its confluence with Short Creek, and Short Creek downstream to the Guntersville Lake Tennessee Valley Authority project boundary. Stream channels in and lands adjacent to subunit 2a are privately owned except for bridge crossings and road easements, which are owned by the State and Counties. The slenderclaw crayfish occupies all stream reaches in this unit, and the unit currently supports all breeding, feeding, and sheltering needs essential to the conservation of the slenderclaw crayfish.

    Special management considerations or protection may be required for control and removal of introduced invasive species, including the virile crayfish (see Unit 1 discussion, above). At present, the virile crayfish is present at sites in Short Creek and Drum Creek within the Short Creek watershed and just outside of the unit boundary in Guntersville Lake. Based on future projections in the SSA report, the virile crayfish is expected to be present in more tributaries within the Short Creek watershed within the next 2 to 5 years.

    In addition, special management considerations or protection may be required to address water withdrawals and drought as well as excess nutrients, sediment, and pollutants that enter the streams and serve as indicators of other forms of pollution such as bacteria and toxins. A primary source of these types of pollution is agricultural runoff. During recent survey efforts for the slenderclaw crayfish, water quality analysis indicated that impaired water quality due to nutrients, bacteria, and levels of atrazine may be of concern in the Short Creek watershed. Special management or protection may include moderating surface and ground water withdrawals, using best management practices to reduce sedimentation, and reducing watershed and floodplain disturbances that release pollutants and nutrients into the water.

    Subunit 2b—Scarham-Laurel Creek: Subunit 2b consists of 25.9 river mi (41.7 river km) of Scarham-Laurel Creek in DeKalb and Marshall Counties, Alabama. Subunit 2b includes stream habitat up to bank full height, consisting of the headwaters of Scarham-Laurel Creek to its confluence with Short Creek. Stream channels in and lands adjacent to Subunit 2b are privately owned except for bridge crossings and road easements, which are owned by the State and Counties.

    This unoccupied subunit is considered to be essential for the conservation of the species. Scarham-Laurel Creek is within the historical range of the slenderclaw crayfish but is not within the geographical range currently occupied by the species at the time of listing. The slenderclaw crayfish has not been documented at sites in Scarham-Laurel Creek in over 40 years. We presume these sites to be extirpated. Scarham-Laurel Creek is in restorable condition and is currently devoid of the virile crayfish. Water quality concerns have been documented within Scarham-Laurel Creek, with it listed on Alabama's 303(d) list of impaired waters for impacts from pesticides, siltation, ammonia, low dissolved oxygen/organic enrichment, and pathogens from agricultural sources in 1998 (ADEM 1996, p. 1). However, in 2004, Scarham Creek was removed from the 303(d) list after TMDLs were established (ADEM 2002, p. 5). Recent water quality analysis indicated that water quality was impaired within the Short Creek watershed in which Scarham-Laurel Creek is located (Bearden et al. 2017, p. 32). However, when the water quality of Scarham-Laurel Creek is restored, the stream could be an area for population expansion within the Short Creek watershed, and thereby provide redundancy needed to support the species' recovery. Therefore, we conclude that this stream is essential for the conservation of the slenderclaw crayfish.

    Exemptions Application of Section 4(a)(3) of the Act

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense lands with a completed INRMP within the proposed critical habitat designation.

    Exclusions Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

    As discussed below, we are not proposing to exclude any areas from critical habitat. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES).

    Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate whether a specific critical habitat designation may restrict or modify such land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socioeconomic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (e.g., under the Federal listing as well as other Federal, State, and local regulations). The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act (i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary 4(b)(2) exclusion analysis.

    For this proposed designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the slenderclaw crayfish (IEc 2018, entire). The purpose of the screening analysis is to filter out the geographic areas in which the critical habitat designation is unlikely to result in probable incremental economic impacts. In particular, the screening analysis considers baseline costs (i.e., absent critical habitat designation) and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. The screening analysis filters out particular areas of critical habitat that would be subject to such protections and are, therefore, unlikely to incur incremental economic impacts. Ultimately, the screening analysis allows us to focus our analysis on the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. This screening analysis, combined with the information contained in our IEM, constitutes our draft economic analysis of the proposed critical habitat designation for the slenderclaw crayfish, and is summarized in the narrative below.

    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the proposed critical habitat designation. In our June 6, 2018, IEM, we first identified probable incremental economic impacts associated with each of the following categories of activities: (1) Agriculture and poultry farming; (2) development; (3) recreation; (4) restoration activities; (5) flood control; and (6) transportation and utilities. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. If we list the species, as proposed in this document, in areas where the slenderclaw crayfish is present, under section 7 of the Act, Federal agencies would be required to consult with the Service on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the consultation process.

    In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation (i.e., difference between the jeopardy and adverse modification standards) for the slenderclaw crayfish's critical habitat. Because the designation of critical habitat is being proposed concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which would result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the slenderclaw crayfish would also likely adversely affect the essential physical or biological features of critical habitat. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat.

    The proposed critical habitat designation for the slenderclaw crayfish totals approximately 78 river mi (126 river km), which includes both occupied and unoccupied streams. Within the occupied streams, any actions that may affect the species would likely also affect proposed critical habitat, and it is unlikely that any additional conservation efforts would be required to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the species. Within the unoccupied streams, the Service will consult with Federal agencies on any projects that occur within the watershed boundaries containing unoccupied critical habitat due to overlap with the ranges of other listed species such as Indiana bat (Myotis sodalis), gray bat (Myotis grisescens), northern long-eared bat (Myotis septentrionalis), harperella (Ptilimnium nodosum), and green pitcher-plant (Sarracenia oreophila) in these areas. In addition, all of the watershed boundaries containing unoccupied habitat are within the range of the slenderclaw crayfish. Therefore, any section 7 consultation would consider effects to the slenderclaw crayfish, even in the absence of designated critical habitat. Thus, no incremental project modifications resulting solely from the presence of unoccupied critical habitat are anticipated. Therefore, the only additional costs that are expected in all of the proposed critical habitat designation are administrative costs, due to the fact that this additional analysis will require time and resources by both the Federal action agency and the Service. We anticipate a maximum of three informal section 7 consultations and five technical assistance efforts annually at a total incremental cost of less than $10,000 per year.

    As we stated earlier, we are soliciting data and comments from the public on the draft economic analysis, as well as all aspects of this proposed rule and our required determinations. See ADDRESSES, above, for information on where to send comments. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period.

    Exclusions Based on Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. As discussed above, we prepared an analysis of the probable economic impacts of the proposed critical habitat designation and related factors. The Secretary does not propose to exercise his discretion to exclude any areas from the final designation based on economic impacts.

    Exclusions Based on National Security Impacts or Homeland Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense or Department of Homeland Security where a national security impact might exist. In preparing this proposal, we have determined that no lands within the proposed designation of critical habitat for slenderclaw crayfish are owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security. Consequently, the Secretary is not intending to exercise his discretion to exclude any areas from the final designation based on impacts on national security.

    Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether there are permitted conservation plans covering the species in the area, such as habitat conservation plans, safe harbor agreements, or candidate conservation agreements with assurances, or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.

    In preparing this proposal, we have determined that there are currently no habitat conservation plans or other management plans for the slenderclaw crayfish, and the proposed critical habitat does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or habitat conservation plans from this proposed critical habitat designation. Accordingly, the Secretary does not intend to exercise his discretion to exclude any areas from the final designation based on other relevant impacts.

    During the development of a final designation, we will consider any additional information we receive during the public comment period, including, but not limited to, economic impact information, which may result in areas being excluded from the final critical habitat designation under section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.

    Effects of Critical Habitat Designation Section 7 Consultation

    Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

    We published a final regulation with a new definition of destruction or adverse modification on February 11, 2016 (81 FR 7214). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.

    If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit or that involve some other Federal action. Federal agency actions within the species' habitat that may require conference or consultation or both include management and any other landscape-altering activities on private lands seeking funding by Federal agencies, which may include, but are not limited to, the U.S. Department of Agriculture (USDA) Farm Service Agency, USDA Natural Resources Conservation Service, and Federal Emergency Disaster Service; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration. Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation.

    As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:

    (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

    (2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.

    When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (50 CFR 402.02) as alternative actions identified during consultation that:

    (1) Can be implemented in a manner consistent with the intended purpose of the action,

    (2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

    (3) Are economically and technologically feasible, and

    (4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

    Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have newly listed a species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

    Application of the “Adverse Modification” Standard

    The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that result in a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of the slenderclaw crayfish. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of the species or that preclude or significantly delay development of such features. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.

    Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the slenderclaw crayfish These activities include, but are not limited to:

    (1) Actions that would alter the minimum flow or the existing flow regime. Such activities could include, but are not limited to, impoundment, channelization, water diversion, and water withdrawal. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of the slenderclaw crayfish by decreasing or altering seasonal flows to levels that would adversely affect the species' ability to complete its life cycle.

    (2) Actions that would significantly alter water chemistry or quality. Such activities could include, but are not limited to, release of chemicals (including pharmaceuticals, metals, and salts) or biological pollutants into the surface water or connected groundwater at a point source or by dispersed release (non-point source). These activities could alter water conditions to levels that are beyond the tolerances of the slenderclaw crayfish and result in direct or cumulative adverse effects to these individuals and their life cycles.

    (3) Actions that would significantly increase sediment deposition within the stream channel. Such activities could include, but are not limited to, excessive sedimentation from livestock grazing, road construction, channel alteration, timber harvest, off-road vehicle use, and other watershed and floodplain disturbances. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of the slenderclaw crayfish by increasing the sediment deposition to levels that would adversely affect the species' ability to complete its life cycle.

    (4) Actions that would significantly increase eutrophic conditions. Such activities could include, but are not limited to, release of nutrients into the surface water or connected groundwater at a point source or by dispersed release (non-point source). These activities can result in excessive nutrients and algae filling streams and reducing habitat for the slenderclaw crayfish, degrading water quality from excessive nutrients and during algae decay, and decreasing oxygen levels to levels below the tolerances of the slenderclaw crayfish.

    (5) Actions that would significantly alter channel morphology or geometry, or decrease connectivity. Such activities could include, but are not limited to, channelization, impoundment, road and bridge construction, mining, dredging, and destruction of riparian vegetation. These activities may lead to changes in water flows and levels that would degrade or eliminate the slenderclaw crayfish and its habitats. These actions can also lead to increased sedimentation and degradation in water quality to levels that are beyond the tolerances of the slenderclaw crayfish.

    (6) Actions that result in the introduction, spread, or augmentation of nonnative aquatic species in occupied stream segments, or in stream segments that are hydrologically connected to occupied stream segments, or introduction of other species that compete with or prey on the slenderclaw crayfish. Possible actions could include, but are not limited to, stocking of nonnative crayfishes and fishes, stocking of sport fish, or other related actions. These activities can introduce parasites or disease; result in direct predation or direct competition; or affect the growth, reproduction, and survival of the slenderclaw crayfish.

    IV. Required Determinations Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (1) Be logically organized;

    (2) Use the active voice to address readers directly;

    (3) Use clear language rather than jargon;

    (4) Be divided into short sections and sentences; and

    (5) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    Executive Order 13771

    This rule is not an E.O. 13771 (“Reducing Regulation and Controlling Regulatory Costs”) (82 FR 9339, February 3, 2017) regulatory action because this rule is not significant under E.O. 12866.

    Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

    Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

    Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

    According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

    The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and, therefore, are not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if promulgated, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.

    In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

    Energy Supply, Distribution, or Use—Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our economic analysis, we did not find that the designation of this proposed critical habitat will significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

    Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:

    (1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

    The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

    (2) We do not believe that this proposed rule would significantly or uniquely affect small governments because the lands within and adjacent to the streams being proposed for critical habitat designation are owned by private landowners. These government entities do not fit the definition of “small governmental jurisdiction.” Therefore, a Small Government Agency Plan is not required.

    Takings—Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for slenderclaw crayfish in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes that, if adopted, this designation of critical habitat for slenderclaw crayfish does not pose significant takings implications for lands within or affected by the designation.

    Federalism—Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, the appropriate State resource agency in Alabama. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the State, or on the relationship between the national government and the State, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).

    Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

    Civil Justice Reform—Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed areas of designated critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.

    Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget under the Paperwork Reduction Act of 1995. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA), need not be prepared in connection with listing a species as an endangered or threatened species under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to NEPA in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

    Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We have identified no tribal interests that will be affected by this proposed rulemaking.

    References Cited

    A complete list of references cited in this rulemaking is available on the internet at http://www.regulations.gov and upon request from the Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this proposed rule are the staff members of the U.S. Fish and Wildlife Service Species Assessment Team and Alabama Ecological Services Field Office.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

    2. Amend § 17.11(h) by adding an entry for “Crayfish, slenderclaw” to the List of Endangered and Threatened Wildlife in alphabetical order under CRUSTACEANS to read as set forth below:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules *         *         *         *         *         *         * CRUSTACEANS *         *         *         *         *         *         * Crayfish, slenderclaw Cambarus cracens Wherever found T [Federal Register citation when published as a final rule] 50 CFR 17.46(b)4d; 50 CFR 17.95(h)CH. *         *         *         *         *         *         *
    3. Amend § 17.46 by revising paragraph (b) to read as set forth below:
    § 17.46 Special rules—crustaceans.

    (b) Slenderclaw crayfish (Cambarus cracens).—(1) Prohibitions. The following prohibitions apply to the slenderclaw crayfish:

    (i) Take. Except as provided under paragraph (b)(2) of this section, it is unlawful to take the slenderclaw crayfish within the United States. Take includes:

    (A) Intentional take of slenderclaw crayfish, including capture, handling, or other activities, and

    (B) Actions that result in the incidental take of slenderclaw crayfish by altering or degrading the habitat.

    (ii) Possession and other acts with unlawfully taken slenderclaw crayfish. It is unlawful to possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any slenderclaw crayfish that was taken in violation of this section or State laws.

    (iii) Import and export. It is unlawful to import or to export the slenderclaw crayfish. Any shipment in transit through the United States is an importation and an exportation, whether or not it has entered the country for customs purposes.

    (iv) Interstate or foreign commerce. It is unlawful to deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever, and in the course of a commercial activity, any slenderclaw crayfish.

    (v) Sale or offer for sale. (A) It is unlawful to sell or to offer for sale in interstate or foreign commerce any slenderclaw crayfish.

    (B) An advertisement for the sale of slenderclaw crayfish that carries a warning to the effect that no sale may be consummated until a permit has been obtained from the Service shall not be considered an offer for sale within the meaning of this section.

    (2) Exceptions from prohibitions. The following exceptions from prohibitions apply to the slenderclaw crayfish:

    (i) All of the provisions of § 17.32 apply to the slenderclaw crayfish.

    (ii) Any employee or agent of the Service or a State conservation agency, who is designated by his agency for such purposes, may, when acting in the course of his official duties, take the slenderclaw crayfish without a permit if such action is necessary to:

    (A) Aid a sick, injured or orphaned specimen;

    (B) Dispose of a dead specimen; or

    (C) Salvage a dead specimen which may be useful for scientific study.

    (iii) Any take under paragraph (b)(2)(ii) of this section must be reported in writing to the U.S. Fish and Wildlife Service, Office of Law Enforcement, 5275 Leesburg Pike, Falls Church, VA 22041, within 5 days of the taking. The specimen may only be retained, disposed of, or salvaged under directions from the Office of Law Enforcement.

    (iv) Streambank stabilization projects that replace pre-existing bare, eroding streambanks with vegetated, stable streambanks are allowed in accordance with the provisions of this paragraph, thereby reducing current and future bank erosion and instream sedimentation, and improving habitat conditions for the slenderclaw crayfish.

    (A) Streambanks may be stabilized using live stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), live fascines (live branch cuttings, usually willows, bound together into long, cigar shaped bundles), or brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill).

    (B) The methods of streambank stabilization described in paragraph (b)(2)(iv)(A) must not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures; however, rip-rap, rock baskets, or gabion structures may be used in conjunction with the methods of streambank stabilization described in paragraph (b)(2)(iv)(A).

    (C) Streambank stabilization projects must be performed at base-flow or low water conditions and when significant rainfall is not predicted.

    (D) Streambank stabilization projects must keep all equipment out of the stream channels and water.

    (v) Federal and State law enforcement officers may possess, deliver, carry, transport or ship slenderclaw crayfish taken in violation of the Act as necessary in performing their official duties.

    4. Amend § 17.95(h) by adding, in alphabetical order, an entry for “Slenderclaw Crayfish (Cambarus cracens)” to read as set forth below:
    § 17.95 Critical habitat—fish and wildlife.

    (h) Crustaceans.

    Slenderclaw Crayfish (Cambarus cracens)

    (1) Critical habitat units are depicted for DeKalb and Marshall Counties, Alabama, on the maps in this entry.

    (2) Within these areas, the physical or biological features essential to the conservation of the slenderclaw crayfish consist of the following components:

    (i) Geomorphically stable, small to medium, flowing streams:

    (A) That are typically 19.8 feet (ft) (6 meters (m)) wide or smaller;

    (B) With attributes ranging from:

    (1) Streams with predominantly large boulders and fractured bedrock, with widths from 16.4 to 19.7 ft (5 to 6 m), low to no turbidity, and depths up to 2.3 ft (0.7 m), to

    (2) Streams dominated by small substrate types with a mix of cobble, gravel, and sand, with widths of approximately 9.8 feet (3 m), low to no turbidity, and depths up to 0.5 feet (0.15 m);

    (C) With substrate consisting of boulder and cobble containing abundant interstitial spaces for sheltering and breeding; and

    (D) With intact riparian cover to maintain stream morphology and to reduce erosion and sediment inputs.

    (ii) Seasonal water flows, or a hydrologic flow regime (which includes the severity, frequency, duration, and seasonality of discharge over time), necessary to maintain benthic habitats where the species is found and to maintain connectivity of streams with the floodplain, allowing the exchange of nutrients and sediment for maintenance of the crayfish's habitat and food availability.

    (iii) Appropriate water and sediment quality (including, but not limited to, conductivity; hardness; turbidity; temperature; pH; and minimal levels of ammonia, heavy metals, pesticides, animal waste products, and nitrogen, phosphorus, and potassium fertilizers) necessary to sustain natural physiological processes for normal behavior, growth, and viability of all life stages.

    (iv) Prey base of aquatic macroinvertebrates and detritus. Prey items may include, but are not limited to, insect larvae, snails and their eggs, fish and their eggs, and plant and animal detritus.

    (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule.

    (4) Critical habitat map units. Data layers defining map units were created using Universal Transverse Mercator (UTM) Zone 16N coordinates and species' occurrence data. The hydrologic data used in the maps were extracted from U.S. Geological Survey National Hydrography Dataset High Resolution (1:24,000 scale) using Geographic Coordinate System North American 1983 coordinates. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0069 and at the field office responsible for this designation. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2.

    (5) Index map follows:

    EP09OC18.001

    (6) Unit 1: Town Creek, DeKalb County, Alabama.

    (i) This unit consists of 41.8 river miles (67.2 river kilometers) of occupied habitat in Bengis and Town creeks. Unit 1 includes stream habitat up to bank full height consisting of the headwaters of Bengis Creek to its confluence with Town Creek and upstream to the headwaters of Town Creek.

    (ii) Map of Unit 1 follows:

    EP09OC18.002

    (7) Unit 2: Short Creek, DeKalb and Marshall Counties, Alabama.

    (i) Subunit 2a: Shoal Creek and Short Creek, DeKalb and Marshall Counties, Alabama.

    (A) This subunit consists of 10.3 river miles (16.6 river kilometers) of occupied habitat in Scarham, Shoal, Short, and Whippoorwill Creeks. Subunit 2a includes stream habitat up to bank full height consisting of the headwaters of Shoal Creek to its confluence with Whippoorwill Creek, Whippoorwill Creek to its confluence with Scarham Creek, Scarham Creek to its confluence with Short Creek, and Short Creek to its downstream extent to the Guntersville Lake Tennessee Valley Authority project boundary.

    (B) Map of Subunit 2a follows:

    EP09OC18.003

    (ii) Subunit 2b: Scarham-Laurel Creek, DeKalb and Marshall Counties, Alabama.

    (A) This subunit consists of 25.9 river miles (41.7 river kilometers) of unoccupied habitat in Scarham-Laurel Creek. Subunit 2b includes stream habitat up to bank full height consisting of the headwaters of Scarham-Laurel Creek to its confluence with Whippoorwill Creek.

    (B) Map of Subunit 2b follows:

    EP09OC18.004
    Dated: September 20, 2018. James W. Kurth, Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2018-21797 Filed 10-5-18; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R4-ES-2018-0057; 4500030113] RIN 1018-BD21 Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Threatened Species Status for Eastern Black Rail With a Section 4(d) Rule AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), announce a 12-month petition finding on a petition to list the eastern black rail (Laterallus jamaicensis jamaicensis) as an endangered or threatened species under the Endangered Species Act of 1973 (Act), as amended. After review of the best available scientific and commercial information, we find that listing the eastern black rail is warranted. Accordingly, we propose to list the eastern black rail, a bird subspecies that occurs in as many as 35 States, the District of Columbia, Puerto Rico, and several countries in the Caribbean and Central America, as a threatened species under the Act. If we finalize this rule as proposed, it would extend the Act's protections to this subspecies and, accordingly, add this subspecies to the List of Endangered and Threatened Wildlife. We also propose a rule under the authority of section 4(d) of the Act that provides measures that are necessary and advisable to provide for the conservation of the eastern black rail. We have determined that designation of critical habitat for the eastern black rail is not prudent at this time, but we are seeking public comment on that determination.

    DATES:

    We will accept comments received or postmarked on or before December 10, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by November 23, 2018.

    ADDRESSES:

    You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2018-0057, which is the docket number for this rulemaking. Then, click the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rule box to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2018-0057, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information).

    FOR FURTHER INFORMATION CONTACT:

    Tom McCoy, Field Supervisor, South Carolina Ecological Services Field Office, 176 Croghan Spur Road, Suite 200, Charleston, SC 29407; telephone 843-727-4707; facsimile 843-300-0204. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION: Executive Summary

    Why we need to publish a rule. Under the Act, if we determine that a species is an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within 1 year. Listing a species as an endangered or threatened species can only be completed by issuing a rule.

    This rule proposes to list the eastern black rail (Laterallus jamaicensis jamaicensis) as a threatened species and to provide measures under section 4(d) of the Act that are tailored to our current understanding of the conservation needs of the eastern black rail.

    The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that habitat loss and destruction, sea level rise and tidal flooding, incompatible land management, and increasing storm intensity and frequency are the primary threats to this subspecies.

    Peer review. We prepared a species status assessment report (SSA report) for the eastern black rail. The SSA report represents a compilation and assessment of the best scientific and commercial information available concerning the status of the eastern black rail, including the past, present, and future factors influencing the subspecies (Service 2018, entire). We solicited independent peer review of the SSA report by 10 individuals with expertise in rail biology and ecology and in species modeling; we received comments from 5 of the 10 reviewers. The reviewers were generally supportive of our approach and made suggestions and comments that strengthened our analysis. The SSA report and other materials relating to this proposal can be found at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0057.

    Information Requested Public Comments

    We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

    (1) The eastern black rail's biology, range, and population trends, including:

    (a) Biological or ecological requirements of the subspecies, including habitat requirements for feeding, breeding, and sheltering;

    (b) Genetics and taxonomy;

    (c) Historical and current range, including distribution patterns;

    (d) Historical and current population levels, and current and projected trends; and

    (e) Past and ongoing conservation measures for the subspecies, its habitat, or both.

    (2) Factors that may affect the continued existence of the subspecies, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

    (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to the eastern black rail and existing regulations that may be addressing those threats.

    (4) Additional information concerning the historical and current status, range, distribution, and population size of the eastern black rail, including the locations of any additional populations of this subspecies.

    (5) The reasons why areas should or should not be designated as critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et seq.), including the possible risks or benefits of designating critical habitat, including risks associated with publication of maps designating any area on which this subspecies may be located, now or in the future, as critical habitat. We specifically request information on the threats of taking or other human activity, particularly by birders, on the eastern black rail and its habitat, and the extent to which designation might increase those threats, as well as the possible benefits of critical habitat designation to the eastern black rail.

    (6) Whether the measures outlined in the proposed section 4(d) rule are necessary and advisable for the conservation and management of the eastern black rail. We particularly seek comments concerning:

    (a) Whether the provision related to the prescribed burn activities should be revised to include additional spatial or temporal restrictions or deferments, or additional best management practices;

    (b) Whether the provision related to the haying, mowing, and mechanical treatment activities should be revised to include additional spatial or temporal restrictions or deferments;

    (c) Whether the provision related to the grazing activities should be revised to include spatial or temporal restrictions or deferments. We also seek comment on the level of grazing density that is compatible with eastern black rail occupancy; and

    (d) Whether there are additional provisions the Service may wish to consider for the section 4(d) rule in order to conserve, recover, and manage the eastern black rail, such as limitations on road construction and other infrastructure or construction activities, moist soil management, or structural marsh management activities.

    Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

    Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

    You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

    If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

    Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, South Carolina Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. We must receive requests within 45 days after the date of publication of this proposed rule in the Federal Register (see DATES, above). Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of that hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

    Peer Review

    The purpose of peer review is to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we sought the expert opinions of 10 appropriate and independent specialists with expertise in eastern black rail ecology and modeling regarding the SSA report (Service 2018, entire) that supports this proposed rule. We received comments from 5 of the 10 peer reviewers.

    Previous Federal Action

    In April 2010, the Center for Biological Diversity (CBD) petitioned the Service to list 404 aquatic, riparian, and wetland species from the southeastern United States under the Act. The eastern black rail was among these 404 species. On September 27, 2011, the Service published a 90-day finding that the petition presented substantial scientific or commercial information indicating that listing may be warranted for 374 species, including the eastern black rail (76 FR 59836). On September 13, 2012, CBD filed a complaint against the Service for failure to complete a 12-month finding for the eastern black rail. On April 25, 2013, the Service entered into a settlement agreement with CBD to resolve the complaint; the court approved the agreement on April 26, 2013. The agreement specified that a 12-month finding for the eastern black rail would be delivered to the Federal Register by September 30, 2018. This document serves as our 12-month finding on the April 2010 petition.

    Background

    A thorough review of the taxonomy, life history, and ecology of the eastern black rail is presented in the SSA report (Service 2018, entire).

    Taxonomy and Species Description

    The eastern black rail is a subspecies of black rail, which is a member of the family Rallidae (rails, gallinules, and coots) in the order Gruiformes (rails, cranes, and allies; American Ornithologists' Union, 1998, p. 130). The eastern black rail is one of four recognized subspecies of black rail. The California black rail (Laterallus jamaicensis coturniculus) is the only other subspecies that occurs in North America; its range does not overlap with the eastern black rail Taylor and van Perlo 1998, p. 221; Clements et al. 2016, unpaginated). The Birds of North America and Avibase both currently recognize the eastern black rail as a valid subspecies (Eddleman et al. 1994, unpaginated; Avibase 2003, unpaginated). We have no information to suggest there is scientific disagreement about the eastern black rail's taxonomy; therefore, we accept that the eastern black rail is a valid taxon.

    The black rail is the smallest rail in North America. Males and females are similar in size, and adults are generally pale to blackish gray, with a small blackish bill and bright red eyes. The eastern black rail is larger (mean mass=35 grams) but has less brightly colored plumage than the California black rail (mean mass = 29 grams) (Eddleman et al. 1994, unpaginated).

    The eastern black rail has four life stages: egg, chick, juvenile, and adult; we discuss specifics of each of these life stages in detail in our SSA report (Service 2018, pp. 8-12). Eastern black rail egg laying and incubation primarily occur from May to August, with some early nesting in March and April (Watts 2016, pp. 10-11; A. Moore and J. Wilson 2018, unpublished data). The chick stage occurs from May through September. The juvenile stage begins when a chick has fledged and is independent from the parents. Eastern black rails reach the sexually mature adult life stage the spring after hatch year. Adults undergo a complete postbreeding molt each year between July and September on the breeding grounds (Pyle 2008, p. 477; Hand 2017b, p. 15). During that time, individuals simultaneously lose all of their wing flight feathers and tail flight feathers, and are unable to fly for approximately 3 weeks (Flores and Eddleman 1991, pp. iii, 62-63; Eddleman, Flores, and Legare 1994, unpaginated). We recognize that there is latitudinal variability of these life-history events across the range of the eastern black rail. The subspecies' lifespan is not known.

    The nature of migration for the eastern black rail is poorly understood. Preliminary results suggest there are two populations of eastern black rail in the south-central United States: A migratory population breeding in Colorado and Kansas, and wintering in Texas; and a non-migratory population living in Texas year-round (Butler 2017, pers. comm.). Additionally, it is suspected that the northern U.S. Atlantic coast population migrates and winters on the southern Atlantic coast (e.g., the Carolinas and Florida) and also in the Caribbean and Central America (Eddleman, Flores, and Legare 1994, unpaginated; Taylor and van Perlo, 1998, pp. 221-222).

    Distribution

    The eastern black rail occupies portions of the eastern United States (east of the Rocky Mountains), Mexico, Central America, and the Caribbean. Individuals that are presumed to be the eastern black rail have also been reported on occasion in Brazil. In the United States, eastern black rails are found in both coastal and inland areas, but the majority of detections are from coastal sites. In a recent assessment of 23 States that comprise the primary area of the subspecies' range within the contiguous United States (i.e., along the Atlantic and Gulf Coasts), approximately 90 percent of documented breeding-season occurrence records occurred at coastal locations (Watts 2016, p. 117). Inland records accounted for less than 10 percent of total occurrences, and more than 60 percent of the inland records occurred before 1950 (Watts 2016, p. 117). The eastern black rail has been reported to occur throughout the Caribbean and Central America, and it has been hypothesized that some birds may migrate from the coastal United States to the Caribbean in the winter; however, the subspecies' distribution is poorly understood (Taylor and van Perlo 1998, pp. 221-222). There have been very few reports of eastern black rails in recent years from the Caribbean and Central America. It is not certain whether this is due to lack of survey effort, loss of habitat, predation, or a combination of these.

    See the figure, below, for a distribution map for the eastern black rail. This figure shows the current areas where black rails are found year-round and in the spring and summer. Shaded countries and U.S. States are those that may have detections of eastern black rails; however, detections in these countries or U.S. States may be few in number and the bird may not be detected regularly, i.e., it may be considered a vagrant or accidental migrant in these areas. The individual detections in Central America, the Caribbean, and Brazil occurred from 2011 to present.

    BILLING CODE 4333-15-P EP09OC18.000 BILLING CODE 4333-15-C Habitat

    Eastern black rails are found in a variety of salt, brackish, and freshwater marsh habitats that can be tidally or non-tidally influenced. Within these habitats, the birds occupy relatively high elevations along heavily vegetated wetland gradients, with soils that are moist or flooded to a shallow depth (Eddleman, Knopf, Meanley, Reid, and Zembal 1988, p. 463; Nadeau and Conway 2015, p. 292). Eastern black rails require dense vegetative cover that allows movement underneath the canopy. Plant structure is considered more important than plant species composition in predicting habitat suitability for the subspecies (Flores and Eddleman 1995, pp. 357, 362). Occupied habitat tends to be primarily composed of fine-stemmed emergent plants (rushes, grasses, and sedges) with high stem densities and dense canopy cover (Flores and Eddleman 1995, p. 362; Legare and Eddleman 2001, pp. 173-174). However, when shrub densities become too high, the habitat becomes less suitable for eastern black rails. Soils are moist to saturated (occasionally dry) and interspersed with or adjacent to very shallow water (1 to 6 centimeters) (Legare and Eddleman 2001, pp. 173, 175). Eastern black rails forage on a variety of small (<1 centimeter (cm) (0.39 inches (in))) aquatic and terrestrial invertebrates, especially insects, and seeds (e.g., Typha, Scirpus, Spartina spp.) by gleaning or pecking at individual items (Eddleman, Flores, and Legare 1994, unpaginated; Ehrlich, Dobkin, and Wheye 1988, p. 102).

    Species Needs

    The eastern black rail is a wetland dependent subspecies. While it can be found in salt, brackish, and freshwater marshes that are tidally or non-tidally influenced, it has a very specific niche habitat. It requires dense herbaceous vegetation to provide shelter and cover and areas for protected nest sites; it is not found in areas with woody vegetation.

    The bird requires shallow water or moist soil for its nesting sites. Ideally, the water level is 1 to 6 cm (0.39 to 2.36 in), although less than 3 cm (1.18 in) is ideal for foraging and chick rearing. Water levels must be below the nests during egg laying and incubation for nests to be successful. Eastern black rails require elevated refugia with dense cover to survive high water events, because juvenile and adult black rails prefer to walk and run rather than fly and chicks are unable to fly. Eastern black rails fly little during the breeding and wintering seasons—they prefer to remain on the ground, running quickly through dense vegetation—and are considered secretive because of this behavior. Having higher elevation areas with dense vegetation allows the birds to escape flood events during the flightless molt period, and provides shelter from predators.

    Summary of Biological Status and Threats

    We completed a comprehensive assessment of the biological status of the eastern black rail, and prepared a report of the assessment (SSA report; Service 2018, entire), which provides a thorough account of the subspecies' overall viability. Below, we summarize the key results and conclusions of the SSA report, which can be viewed under Docket No. FWS-R4-ES-2018-0057 at http://www.regulations.gov.

    To assess eastern black rail viability, we used the three conservation biology principles of resiliency, representation, and redundancy (together, “the three Rs,” (3Rs)) (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency refers to the ability of a species to withstand environmental and demographic stochasticity (for example, wet or dry years); representation refers to the ability of the species to adapt over time to long-term changes in the environment (for example, climate change); and redundancy refers to the ability of the species to withstand catastrophic events (for example, hurricanes). In general, the more redundant and resilient a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the eastern black rail's ecological requirements for survival and reproduction at the individual, population, and subspecies levels, and described the beneficial and risk factors influencing the subspecies' viability.

    We delineated analysis units for the eastern black rail based on environmental variables (aquifer permeability, slope, mean precipitation, mean potential evapotranspiration, and percent sand in soil). We used 8,281 point localities from combined datasets (i.e., eBird, Center for Conservation Biology, University of Oklahoma, and additional research partners) from 1980 through 2017, to delineate the analysis units for the eastern black rail. We named the analysis units using standard topographic and ecological landmarks: New England, Mid-Atlantic Coastal Plain, Appalachians, Southeast Coastal Plain, Southwest Coastal Plain, Central Lowlands, and Great Plains. Based on available data, we have concluded that the New England, Appalachians, and Central Lowlands analysis units are effectively extirpated. While these three analysis units historically did not support abundances of the eastern black rail as high as the other four analysis units, an evaluation of the current status information, including the paucity of current records, negative survey results, and the demonstrated range contraction throughout these areas, supports our conclusion that the eastern black rail is effectively extirpated from these analysis units. The remaining four analysis units, the Mid-Atlantic Coastal Plain, Southeast Coastal Plain, Southwest Coastal Plain, and Great Plains, have records of current populations of eastern black rails.

    To assess resiliency, we analyzed occupancy within the analysis units through the creation of a dynamic occupancy model. We used data from repeated presence/absence surveys across the range of the eastern black rail to estimate the probability of presence at a site and related the occupancy probability to environmental covariates of interest (wettest month precipitation, temperature range, annual mean temperature, coldest month mean temperature, presence/absence of fire ants, and State identification). The lower the occupancy probability in an analysis unit, the less resiliency that analysis unit exhibits. We found the four extant analysis units (Southeast Coastal Plain, Mid-Atlantic Coastal Plain, Great Plains, and Southwest Coastal Plain) to have very low occupancy probabilities ranging from 0.099 to 0.25. The results also indicated fairly high site extinction probabilities with accompanying low site persistence.

    To assess representation, we used two metrics to estimate and predict representative units that reflect the subspecies' adaptive capacity: Habitat variability and latitudinal variability. The eastern black rail exhibits adaptive potential by using similar habitat elements within different wetland types (habitat variability) within analysis units, i.e., higher elevation areas within wetlands with dense vegetation, moist soils, and shallow flood depths (Eddleman, Knopf, Meanley, Reid, and Zembal 1988, p. 463; Nadeau and Conway 2015, p. 292). Therefore, the subspecies shows a level of adaptive capacity by using different wetland types that contain the required habitat elements. Additionally, we used the metric of latitudinal variability to reflect the eastern black rail's wide range across the contiguous United States. To maintain existing adaptive capacity, it is important to have resilient populations (analysis units) that exhibit habitat variability and latitudinal variability to maintain adaptive capacity.

    To assess redundancy, we evaluated the current distribution of eastern black rail analysis units through their present-day spatial locations. To have high redundancy, the eastern black rail would need to have multiple resilient analysis units spread throughout its range.

    Current Condition of Eastern Black Rail

    Historically, the eastern black rail ranged across the eastern, central, and southern United States; historical records also exist from the Caribbean and Central America. It occupied multiple areas of wetlands (including salt marshes, coastal prairies, and hay fields) throughout the range; approximately 90 percent of documented breeding-season occurrence records occurred at coastal locations and less than 10 percent were inland records, with more than 60 percent of the inland records occurring before 1950 (Watts 2016, entire). The eastern black rail also occupied multiple areas of wetlands within each analysis unit. Within the northeastern United States, historical (1836-2010) records document the eastern black rail as present during breeding months from Virginia to Massachusetts, with 70 percent of historical observations (773 records) in Maryland, Delaware, and New Jersey (Watts 2016, p. 22). Maryland, Delaware, and New Jersey are considered historical strongholds for eastern black rail in this region of the United States (the Northeast) as well as across the subspecies' entire breeding range (Watts 2016, p. 22), due to the total number and frequency of observations reported over time. Virginia, New York, and Connecticut account for an additional 21 percent of the historical records (235 records) from the Northeast (Watts 2016, p. 22). Recent (2011-2016) records from the Northeast are low in number (64 records), with almost all records restricted to outer coastal habitats (Watts 2016, pp. 22, 24). The distribution of the recent records points toward a substantial southward contraction in the subspecies' range of approximately 450 kilometers (280 miles), with vacated historical sites from 33 counties extending from the Newbury marshes in Massachusetts to Ocean County, New Jersey (Watts 2016, pp. 24, 119). Further, the distribution of the recent records has become patchy along the Atlantic coast, and an evaluation of the records within the 15 counties still currently occupied suggests an almost full collapse of the eastern black rail population in the Northeast (Watts 2016, p. 24).

    While the Appalachians and Central Lowlands analysis units supported less habitat for eastern black rails compared to the more coastal analysis units, interior occurrences were more common historically. Current population estimates for States with a large area occurring within the boundaries of the Appalachians analysis unit are effectively zero (Watts 2016, p. 19). Within that unit, an estimated 0 to 5 breeding pairs currently occur in Pennsylvania, and no breeding pairs are thought to occur in New York or West Virginia (Watts 2016, p. 19). Birds previously detected in the Appalachians analysis unit were found in small depressional wetlands within active pastures; other freshwater wetlands dominated by cattails, rushes, or sedges; and drainage ditches (Watts 2016, pp. 48, 74). While these wetland types still exist within the analysis unit and may support individuals or a very low-density, scattered population (Watts 2016, pp. 48, 74), a substantial amount of this kind of habitat has been lost primarily due to the draining of freshwater wetlands for agricultural purposes. These estimates likely hold true for the interior portions of the other States within the Appalachians analysis unit (based on few current detections). Similar losses of habitat have occurred in the Central Lowlands analysis unit, and there are currently few detections of eastern black rails across this unit. Moreover, the current detections are not consistent from year to year even when habitat remains suitable. For example, Indiana Department of Natural Resources surveys for eastern black rails at multiple sites from 2010-2016 yielded one detection at a single site previously known to support eastern black rails (Gillett 2017, unpublished data).

    In the Chesapeake Bay region, the distribution of eastern black rail has contracted, and the counts of birds have declined. A series of systematic surveys for eastern black rails has been conducted around the Chesapeake Bay since the early 1990s (Watts 2016, pp. 59, 67). Surveys estimated 140 individuals in the 1990-1992 survey period, decreasing to 24 individuals in 2007, and only 8 individuals in 2014, a decline of over 90 percent in less than 25 years (Watts 2016, p. 59; D. Brinker, unpublished data). Of 328 points surveyed in Virginia in 2007, 15 birds were detected; a second round of surveys in 2014 yielded two detections at 135 survey points (including all survey points with positive occurrences in the 2007 survey effort), equating to an 85 percent decline over 7 years (Watts 2016, pp. 67, 71; Wilson et al. 2015, p. 3).

    Historically, the eastern black rail was also present during breeding months at inland and coastal locations throughout southeastern coastal States (the Southeast), a region that included North Carolina, South Carolina, Georgia, Florida, Tennessee, Mississippi, Alabama, Louisiana, and Texas (Watts 2016, pp. 75-76). Of these States, Texas, Florida, South Carolina, and North Carolina contained 89 percent of all historical observations (734 records) (Watts 2016, p. 77). The other States (Georgia, Tennessee, Mississippi, Alabama, and Louisiana) either do not have a history of supporting eastern black rails consistently or are considered to be on the peripheries of known breeding areas (Watts 2016, p. 77). Recently, there have been 108 records of eastern black rails during the breeding season, and at a coarse view, the same four southeastern States that substantially supported the subspecies historically still support the subspecies (Watts 2016, pp. 77, 79). However, North Carolina shows a severe decline in the number of occupied sites, with only four properties occupied in 2014-2015, down from nine in 1992-1993 (Watts 2016, p. 80). Additional surveys in 2017 yielded no new occupied sites in coastal North Carolina (B. Watts and F. Smith 2017, unpublished data). South Carolina shows a limited distribution, w