Federal Register Vol. 83, No.228,

Executive Order 12372, Intergovernmental Consultation

This final rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. A Notice of Final Rule titled Department Programs and Activities Excluded from Executive Order 12372 (50 FR 47034) exempts RUS loans and loan guarantees to governmental and nongovernmental entities from coverage under this Order.

This final rule has been determined to be not significant for the purposes of Executive Order 12866, Regulatory Planning and Review, and therefore has not been reviewed by the Office of Management and Budget (OMB).

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this final rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all State and local laws and regulations that are in conflict with this rule will be preempted, no retroactive effort will be given to this rule, and, in accordance with Sec. 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. Sec. 6912(e)), administrative appeal procedures, if any, must be exhausted before an action against the Department or its agencies may be initiated.

This final rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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. The policies contained in this final rule do not have Tribal implications that preempt Tribal law. The Agency will continue to work directly with Tribes and Tribal applicants to improve access to Agency programs. This includes providing focused outreach to Tribes regarding implementation of this rule change. Additionally, the Agency will respond in a timely and meaningful manner to all Tribal government requests for consultation concerning this rule. For further information on the Agency's Tribal consultation efforts, please contact Rural Development's Native American Coordinator at (720) 544-2911 or [email protected].

The Agency has determined that this final rule will not have a significant economic impact on a substantial number of small entities, as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), given that the amendment is only an administrative act on the government's part to codify a statute with respect to obligation of funds.

In accordance with the Paperwork Reduction Act, the paperwork burden associated with this final rule has been approved by the Office of Management and Budget (OMB) under the currently approved OMB Control Numbers 0572-0107. The Agency has determined that this regulatory action does not change any current data collection that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

The programs described by this rule are listed in the Catalog of Federal Domestic Assistance programs under No. 10.850, Rural Electrification Loans and Loan Guarantees; No. 10.851, Rural Telephone Loans and Loan Guarantees; and No. 10.852, Rural Telephone Bank Loans and No. 10.886, Rural Broadband Access Loans and Loan Guarantees. All active CFDA programs can be found at www.cfda.gov. The Catalog is available on the internet at http://www.cfda.gov and the General Services Administration's (GSA's) free CFDA website at http://www.cfda.gov. The CFDA website also contains a PDF file version of the Catalog that, when printed, has the same layout as the printed document that the Government Publishing Office (GPO) provides. GPO prints and sells the CFDA to interested buyers. For information about purchasing the Catalog of Federal Domestic Assistance from GPO, call the Superintendent of Documents at 202-512-1800 or toll free at 866-512-1800, or access GPO's online bookstore at http://bookstore.thefederalregister.org.

This final rule contains no Federal mandates (under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995) for state, local, and tribal governments or the private sector. Therefore, this final rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.

The Administrator of RUS has determined that this final rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Therefore, this action does not require an environmental impact statement or assessment.

The Agency is committed to the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: (1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) email: [email protected].

USDA is an equal opportunity provider, employer, and lender.

The Rural Electrification Act requires that in making loans pursuant to the Rural Electrification Act of 1936, the Secretary of Agriculture shall require that, to the extent practicable and the cost of which is not unreasonable, the borrower agrees to use in connection with the expenditure of such funds only such unmanufactured articles, materials, and supplies, as have been mined or produced in the United States or in any eligible country, and only such manufactured articles, materials, and supplies as have been manufactured in the United States or in any eligible country, substantially all from articles, materials, or supplies mined, produced or manufactured, as the case may be, in the United States or any eligible country. This regulation will codify long-standing RUS requirements which Agency borrowers have been required to follow pursuant to statute, bulletin, and contract as early as the 1950s, but which were inadvertently never codified when all existing RUS bulletins were incorporated into regulation. Nothing in this regulation will change or modify those procedures with respect to borrowers' responsibilities in complying with the Buy American requirement, such as the waiver process, but will simplify compliance by compiling all such existing requirements into a single document.

This rule implements the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA), Public Law 101-410, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), Public Law 114-74, 129 Stat. 599, codified at 28 U.S.C. 2461 note. The FCPIAA and the 2015 Act require federal agencies to adjust minimum and maximum civil penalty amounts for inflation to preserve their deterrent impact. The 2015 Act amended the formula and frequency of inflation adjustments. It required an initial catch-up adjustment in the form of an interim final rule, followed by annual adjustments of civil penalty amounts using a statutorily mandated formula. Section 4(b)(2) of the 2015 Act specifically directs that the annual adjustment be accomplished through final rule without notice and comment. This rule is effective immediately.

The Department's authorities over the specific civil penalty regulations being amended by this rule are provided in the preamble discussion below.

On November 2, 2015, the President signed into law the 2015 Act, which amended FCPIAA, to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The 2015 Act requires federal agencies to: (1) Adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rule (IFR); and (2) make subsequent annual adjustments for inflation.

The 2015 Act directed the Office of Management and Budget (OMB) to issue guidance on implementing the required annual inflation adjustment no later than December 15 of each year.1 On December 15, 2017, OMB released this required guidance, in OMB Memorandum M-18-03, which provides instructions on how to calculate the 2018 annual adjustment. To derive the 2018 adjustment, the Department must multiply the maximum or minimum penalty amount by the percent change between the October 2017 Consumer Price Index for All Urban Consumers (CPI-U) and the October 2016 CPI-U. In this case, as explained in OMB Memorandum M-18-03, the percent change between the October 2017 CPI-U (246.663) and the October 2016 CPI-U (241.729) is 1.02041.

This final rule is being published without notice and comment and with an immediate effective date.

The 2015 Act provides clear direction for how to adjust the civil penalties, and clearly states at section 4(b)(2) that this adjustment shall be made “notwithstanding section 553 of title 5, United States Code.” By operation of the 2015 Act, DOT must publish an annual adjustment by January 15 of every year, and the new levels take effect upon publication of the rule. NHTSA and OST are finalizing their “catch-up” adjustment interim final rules in this annual adjustment. Pursuant to the 2015 Act and notwithstanding 5 U.S.C. 553, NHTSA and OST adopt their interim final rules as final and superseded by this rule. Accordingly, DOT is publishing this final rule without prior notice and comment, and with an immediate effective date.

Additionally, the Act clearly prescribes the frequency with which civil monetary penalties must be reviewed and adjusted. NHTSA's regulations at 49 CFR 578.5 stating that the Administrator will review and, if necessary, adjust its civil penalties every four years is superseded by the Act. NHTSA has no discretion to review and adjust its civil penalties at different intervals, and is therefore conforming its regulations to the requirements of the Act, as discussed in section IV below. Accordingly, and pursuant to 5 U.S.C. 553(b)(3)(B), 553(d)(3), DOT finds that good cause exists for immediate implementation of this provision of the final rule without prior notice and comment, and with an immediate effective date.

In 2016, OST and DOT's operating administrations with civil monetary penalties promulgated the “catch up” IFR required by the 2015 Act. OST and NHTSA have not yet finalized their IFRs, and accordingly, this rule both finalizes OST and NHTSA's “catch up” IFRs and makes the annual inflation adjustment required by the 2015 Act. All other DOT operating administrations have already finalized their “catch up” IFRs and for those operating administrations, this rule makes the annual inflation adjustment required by the 2015 Act.

The Department emphasizes that this rule adjusts penalties prospectively, and therefore the penalty adjustments made by this rule will apply only to violations that take place after this rule becomes effective. This rule also does not change previously assessed or enforced penalties that DOT is actively collecting or has collected.

OST's “catch-up” IFR is finalized in this rule, and superseded by the annual inflation adjustment discussed in the next section. Additionally, OST is updating its civil monetary penalties to reflect inflation for both 2017 and 2018 in this rule. OST did not timely complete the 2017 annual adjustment for civil penalties contained in 49 U.S.C. 46301. However, consistent with the intent of the law and to ensure uniform year-over-year application of the 2015 Act, the 2018 update is being calculated as if the 2017 update had occurred. No violations will be assessed at the 2017 inflation adjustment amount. It is included in the chart below to clearly show the Department's calculations.

OST's 2018 civil penalty adjustments are summarized in the chart below.

In 2016, Congress enacted 49 U.S.C. 46320. It imposes a civil penalty of not more than $20,000 for operating an unmanned aircraft where the operator knowingly or recklessly interferes with a wildfire suppression, law enforcement, or emergency response effort. The FAA did not adjust this maximum civil penalty for inflation in 2017 because, per OMB guidance, new civil monetary penalties are not adjusted for inflation the first year they are in effect.2 Therefore, the FAA is applying the 2018 adjustment directly to the statutory maximum of $20,000. The 2018 adjustment is therefore $20,408.

The FAA's 2018 adjustments are summarized in the following chart:

In addition to the civil penalties listed in the above chart, FAA regulations also provide for maximum civil penalties for violation of 49 U.S.C. 47528-47530, relating to the prohibition of operating certain aircraft not complying with stage 3 noise levels. Those civil penalties are identical to the civil penalties imposed under 49 U.S.C. 46301(a)(1) and (a)(5), which are detailed in the above chart, and therefore, the noise-level civil penalties will be adjusted in the same manner as the section 46301(a)(1) and (a)(5) civil penalties.

NHTSA's “catch-up” IFR is finalized in this rule, and superseded by the annual inflation adjustment discussed in the next section. Additionally, NHTSA is updating its civil monetary penalties to reflect inflation for both 2017 and 2018 in this rule. NHTSA did not timely complete the 2017 annual adjustment for its civil penalty authority. However, consistent with the intent of the law and to ensure uniform year-over-year application of the 2015 Act, the 2018 update is being calculated as if the 2017 update had occurred. No violations will be assessed at the 2017 inflation adjustment amount. It is included in the chart below to clearly show the Department's calculations. NHTSA's 2018 civil penalty adjustments are summarized in the chart below.3

FMCSA's civil penalties affected by this rule are all located in Appendices A and B to 49 CFR part 386. The 2018 adjustments to these civil penalties are summarized in the chart below.

FRA's 2018 civil penalty adjustments are summarized in the chart below.

PHMSA's 2018 civil penalty adjustments are summarized in the chart below.

MARAD's 2018 civil penalty adjustments are summarized in the chart below.

SLS' 2018 civil penalty adjustment is as follows:

Currently, 49 CFR 578.5 specifies that the NHTSA Administrator will review the amount of civil penalties set forth in 49 CFR part 578 at least once every four years and, if appropriate, adjust them by rule. Since this no longer reflects the law, NHTSA is updating this provision to conform to the 2015 Act's requirement of annual inflationary adjustments to civil penalty amounts.

This final rule has been evaluated in accordance with existing policies and procedures and is considered not significant under Executive Orders 12866 and 13563 or DOT's Regulatory Policies and Procedures; therefore, the rule has not been reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department has determined the Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601, et seq.) does not apply to this rulemaking. The RFA applies, in pertinent part, only when “an agency is required . . . to publish general notice of proposed rulemaking.” 5 U.S.C. 604(a).4 The Small Business Administration's A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act (2012), explains that:

As stated above, DOT has determined that good cause exists to publish this final rule without notice and comment procedures under the APA. Therefore, the RFA does not apply.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This regulation has no substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. It does not contain any provision that imposes substantial direct compliance costs on State and local governments. It does not contain any new provision that preempts state law, because states are already preempted from regulating in this area under the Airline Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. Because none of the measures in the rule have tribal implications or impose substantial direct compliance costs on Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply.

Under the Paperwork Reduction Act, before an agency submits a proposed collection of information to OMB for approval, it must publish a document in the Federal Register providing notice of and a 60-day comment period on, and otherwise consult with members of the public and affected agencies concerning, each proposed collection of information. This final rule imposes no new information reporting or record keeping necessitating clearance by the Office of Management and Budget.

The Department has analyzed the environmental impacts of this final rule pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and has determined that it is categorically excluded pursuant to DOT Order 5610.1C, Procedures for Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical exclusions are actions identified in an agency's NEPA implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See 40 CFR 1508.4. In analyzing the applicability of a categorical exclusion, the agency must also consider whether extraordinary circumstances are present that would warrant the preparation of an EA or EIS. Id. Paragraph 4(c)(5) of DOT Order 5610.1C incorporates by reference the categorical exclusions for all DOT Operating Administrations. This action qualifies for a categorical exclusion in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, (80 FR 44208, July 24, 2015), paragraph 5-6.6.f, which covers regulations not expected to cause any potentially significant environmental impacts. The Department does not anticipate any environmental impacts, and there are no extraordinary circumstances present in connection with this final rule.

The Department analyzed the final rule under the factors in the Unfunded Mandates Reform Act of 1995. The Department considered whether the rule includes a federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year. The Department has determined that this final rule will not result in such expenditures. Accordingly, this final rule is not subject to the Unfunded Mandates Reform Act.

Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” does not apply to this action because it is nonsignificant; therefore, it is not subject to the “2 for 1” and budgeting requirements.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A330-200 series airplanes; Model A330-200 Freighter series airplanes; and Model A330-300 series airplanes. The NPRM published in the Federal Register on August 24, 2018 (83 FR 42812). The NPRM was prompted by revisions to certain ALI documents, which specify more restrictive instructions and/or airworthiness limitations. The NPRM proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive instructions and/or airworthiness limitation requirements.

We are issuing this AD to address fatigue cracking, accidental damage, or corrosion in principal structural elements, and possible failure of certain life limited parts, which could result in reduced structural integrity of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0034, dated February 5, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for Airbus SAS Model A330-200 series airplanes; Model A330-200 Freighter series airplanes; and Model A330-300 series airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0759.

We gave the public the opportunity to participate in developing this final rule. We have considered the comments received. The commenter Michael Josefik indicated support for the NPRM.

We reviewed the relevant data, considered the comment 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.

Airbus has issued A330 Airworthiness Limitations Section (ALS) Part 1, Safe Life Airworthiness Limitation Items (SL-ALI), Revision 09, dated September 18, 2017. This service information describes SL-ALI for the landing gear.

Airbus has also issued A330 ALS Part 1, SL-ALI, Variation 9.2, dated November 28, 2017; and A330 ALS Part 1, SL-ALI, Variation 9.3, dated November 29, 2017. This service information describes revised life limits for certain parts. These documents are distinct because they apply to different life limited parts.

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

We estimate that this AD affects 105 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We have determined that revising the existing 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).

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.

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A330-200 Freighter, A330-200, and A330-300 series airplanes. The NPRM published in the Federal Register on August 10, 2018 (83 FR 39633). The NPRM was prompted by a revision of a certain ALI document, which specifies new or more restrictive maintenance instructions and airworthiness limitations, and a determination that those maintenance instructions and airworthiness limitations are necessary. The NPRM proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance instructions and airworthiness limitations.

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.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0068, dated March 26, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A330-200 Freighter, A330-200, and A330-300 series airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0639.

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

American Airlines requested that we clarify the applicability of the AMOC approved in letter AIR-676-18-111 R1, dated January 29, 2018, or remove the previously approved AMOC from the proposed AD. The commenter stated that, as currently written, paragraph (j)(1)(ii) of the proposed AD is confusing because it states that the AMOC approved in letter AIR-676-18-111 R1, dated January 29, 2018, previously approved for AD 2017-19-13, would still be approved for the corresponding provisions of the final rule. The commenter explained that this AMOC is limited to a specific organization and is not applicable to all operators.

We agree with the commenter's request for the reasons provided by the commenter. AMOC letter AIR-676-18-111 R1, dated January 29, 2018, was issued specifically to Singapore Technologies Aerospace Limited and is not a global AMOC. We have revised paragraph (j)(1)(ii) of this AD to clarify that the AMOC granted in letter AIR-676-18-111 R1, dated January 29, 2018, is approved as an AMOC for Model A330-300 series airplanes modified from a passenger to freighter configuration under the provisions of FAA Supplemental Type Certificate ST04038NY.

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

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

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

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

Airbus SAS has issued Airbus A330 Airworthiness Limitations Section (ALS) Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 02, Issue 2, dated November 22, 2017. This service information describes maintenance instructions and airworthiness limitations applicable to the DT-ALI. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 105 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We have determined that revising the existing 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).

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.

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 747-8 and 747-8F series airplanes. The NPRM published in the Federal Register on May 30, 2018 (83 FR 24688). The NPRM was prompted by a report that flightcrew oxygen masks did not function as designed during flight testing. The NPRM proposed to require an inspection to determine whether certain oxygen masks/regulators and stowage boxes are installed and replacement if necessary.

We are issuing this AD to address flightcrew oxygen masks/regulators that do not deploy correctly, which could result in a delay for the flightcrew to put on the masks, which may lead to hypoxia and loss of useful consciousness, potentially resulting in loss of control of the airplane.

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.

Zodiac Aerospace recommended that we revise paragraphs (g) and (h) to include training for proper mask-packing as an alternative to replacement. The commenter stated that if operators have followed proper packing procedures, no equipment change should be required.

Although we acknowledge Zodiac's recommendation, we note that the supplier had previously provided mask-packing training to Boeing, and that trained, certified mask packers had packed the masks that failed. We have determined that mandating a design change is necessary to effectively mitigate the unsafe condition. We have not changed this AD in this regard.

Boeing requested that we revise paragraph (i) of the proposed AD to provide that subsequent changes or modifications may be handled by normal operator procedures without requiring approval of an alternative method of compliance (AMOC) as long as oxygen mask/regulator part number (P/N) MLD20-626-l is not reintroduced as part of the subsequent change. Boeing considered paragraph (i)(3) of the proposed AD to be too restrictive because operators would be burdened with requests for AMOCs for each subsequent change or modification.

We partially agree with the commenter. We agree that options are warranted for operators because the proposed AD was highly restrictive, given the limited nature of the unsafe condition. Therefore, we have revised paragraph (g) of this AD to provide alternative actions to correct the unsafe condition, thereby reducing the need for AMOC requests. We also removed the requirement to inspect for the oxygen mask stowage box because that inspection is no longer needed based on these alternative actions.

However, we disagree with revising or deleting paragraph (i)(3) of this AD because the requirement refers to the dependent relationship between the new mask/regulator part number and the new oxygen mask stowage box part number required by the service information. The installation of oxygen mask/regulator P/N MLD20-726-1 with any oxygen mask stowage box part number other than P/N MXP806-7 will require FAA approval in accordance with the procedures specified in paragraph (j) of this AD.

The commenter, DLH/LHT (Deutsche Lufthansa/Lufthansa-Technik), requested that we revise the proposed applicability to include P/N MLC20-626-1 as another affected oxygen mask/regulator in the proposed AD. The commenter stated that P/N MLC20-626-1 is identical to P/N MLD20-626-1, except for the goggles, and that this is why the oxygen mask/regulator shows both of these part numbers on the identification label. The commenter reasoned that an operator tracking the mask under the affected part number only would not be subject to the proposed AD.

We do not agree with the request. We are evaluating the associated risks of P/N MLC20-626-1 in relation to the unsafe condition identified in this AD; however, it is not in the interest of public safety to delay this action further. We might consider additional rulemaking to address our findings. We have not changed this AD in this regard.

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

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

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

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

We reviewed Boeing Special Attention Service Bulletin 747-35-2133, Revision 1, dated November 1, 2017. This service information describes procedures for replacing certain oxygen masks/regulators and stowage boxes. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 18 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Fokker Services B.V. Model F28 airplanes. The NPRM published in the Federal Register on August 13, 2018 (83 FR 39918). The NPRM was prompted by reports that filters, which are integral to certain T-unions in the landing gear hydraulic control system, disconnected from their housing and, in some cases, migrated. The NPRM proposed to require replacing certain T-unions with an integral filter with T-unions without an integral filter.

We are issuing this AD to address flow reduction along the hydraulic circuit and the possible inability to completely extend one or both of the main landing gear legs, which could result in damage to the airplane during landing, and consequent injury to occupants.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0076, dated April 6, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F28 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0707.

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.

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.

Fokker Services B.V. has issued Service Bulletin SBF28-32-166, dated February 21, 2018; and Service Bulletin SBF100-32-170, dated February 21, 2018. This service information describes procedures for removal of certain T-unions with an integral filter and installation of T-unions without an integral filter. These documents are distinct since they apply to different airplane models in different configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 4 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

Discussion

We issued AD 2018-20-03, Amendment 39-19437 (83 FR 50821, October 10, 2018), (“AD 2018-20-03”), for Hoffmann model HO-V 62 propellers. AD 2018-20-03 required removal of the affected propeller blades and installation of modified propeller blades marked with a change letter “A” or “B” suffix. AD 2018-20-03 resulted from the failure of the propeller blade lag screws. We issued AD 2018-20-03 to prevent failure of the propeller.

Since we issued AD 2018-20-03, we determined that we inadvertently included all Hoffmann S/N model HO-V 62 propeller blades without a change letter “A” or “B” suffix in the applicability and installation prohibition paragraphs of this AD. This AD corrects the applicability and installation prohibition paragraphs to affect only Hoffmann model HO-V 62 propeller blades with S/N 1 to 6049, inclusive. We are issuing this AD to address the unsafe condition on these products.

We reviewed Hoffmann Propeller GmbH & Co. KG Service Bulletin (SB) E34 Rev. B, dated September 18, 2017. The SB describes the instructions for the removal and installation of the propeller blades. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the European Aviation Safety Agency (EASA), and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all the relevant information provided by EASA and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires removal of the affected propeller blades and installation of modified propeller blades marked with a change letter “A” or “B” suffix.

We are revising AD 2018-20-03 to correct the applicability and installation prohibition paragraphs, which were overly inclusive. We also reduced the compliance time in this AD to align more closely with the effective compliance time in AD 2018-20-03. We previously provided notice and an opportunity to comment on the substance of this rulemaking and received no comments. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2018-0975 and product identifier 2018-NE-06-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule 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 final rule.

We estimate that this AD affects 50 propellers installed on airplanes of U.S. registry.

We estimate that 25 propellers will need to be replaced between overhaul and 25 propellers will need to be replaced at overhaul to comply with this AD:

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

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

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

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

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

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

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

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

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Dassault Aviation Model MYSTERE-FALCON 50, MYSTERE-FALCON 900, and FALCON 900EX airplanes. The NPRM published in the Federal Register on August 24, 2018 (83 FR 42810). The NPRM was prompted by reports of cracked reinforcing straps (doublers) on the ailerons of airplanes equipped with blended winglets. The NPRM proposed to require repetitive detailed inspections for cracking of the upper and lower reinforcing straps on the ailerons, and replacement if necessary.

We are issuing this AD to address cracking of aileron reinforcing straps, which could lead to fatigue cracking of the ailerons and subsequent loss of control of the airplane.

We gave the public the opportunity to participate in developing this final rule. We have considered the comment received. The commenter, Sean Sullivan, indicated support for the NPRM.

We reviewed the relevant data, considered the comment 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.

We reviewed Aviation Partners, Inc., Falcon Service Bulletin SBF9-17-001, Revision B, dated December 20, 2017. This service information describes procedures for detailed inspections for any signs of cracking of the external upper and lower reinforcing straps on the left-hand (LH) and right-hand (RH) ailerons.

We also reviewed Aviation Partners, Inc., Falcon Service Bulletin SBF9-17-002, Revision A, dated December 20, 2017. This service information describes procedures for replacing the external upper and lower reinforcing straps on the LH and RH ailerons.

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

We estimate that this AD affects 70 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

On March 10, 2016, Alaska submitted a SIP submission to address the infrastructure SIP requirements for the 2012 PM2.5 NAAQS, in addition to outstanding 1997 and 2006 PM2.5 NAAQS infrastructure elements not included in prior submissions. On January 23, 2018, the EPA proposed to approve the Alaska infrastructure SIP submission as meeting the following CAA section 110(a)(2) infrastructure elements for the 2012 PM2.5 NAAQS: (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (H), (J), (K), (L), and (M). We also proposed to approve Alaska's March 2016 infrastructure SIP submission as meeting the requirements of CAA section 110(a)(2)(G) for the 1997, 2006, and 2012 PM2.5 NAAQS (83 FR 3101). The public comment period for our proposed action ended on February 22, 2018.

We received 13 adverse comments, all of which appear to be from citizens living in North Pole, Alaska, part of the Fairbanks North Star Borough (FNSB) nonattainment area.1 Commenters expressed concerns about the local burn curtailment program and how FNSB implemented the program in the nonattainment area this past winter. The program was developed by FNSB, submitted to the EPA by the Alaska Department of Environmental Conservation (ADEC), and approved by the EPA into the Alaska SIP on September 8, 2017, as part of the FNSB Moderate 2006 24-hour PM2.5 NAAQS nonattainment plan (82 FR 42457).

Most of these commenters did not provide details about how their concerns warrant approval or disapproval of specific infrastructure SIP elements. The EPA does not consider comments on the advisability of FNSB control measures in the existing SIP to be within the scope of issues subject to public comment in this infrastructure SIP action. The provisions in question were previously approved into the SIP as part of the FNSB Moderate 2006 24-hour PM2.5 NAAQS nonattainment plan, and we are not in this action (which approves the Alaska SIP as meeting specific infrastructure requirements for the 1997, 2006, and 2012 PM2.5 NAAQS) revisiting our prior decision. Likewise, comments on potential future control measures that have not been submitted to the EPA for SIP approval are outside the scope of this action.

One commenter did include detailed information supporting their assertion that the EPA should not approve certain infrastructure SIP elements in this action, and we have responded to the commenter's assertions below.

One commenter stated that CAA section 110(a)(2)(A) requires SIPs to include enforceable emission limits, but the “FNSB has set a standard for home wood burning devices that is much more strict than the EPA requires.” The commenter included a link to the ADEC web page comparing the EPA's 2015 New Source Performance Standards (NSPS) for Residential Wood Heaters to Alaska regulations addressing solid fuel-fired heating device emission standards, specifically, regulations set forth in Alaska Administrative Code (AAC) at 18 AAC 50.077 and 18 AAC 50.079.2 The commenter alleged that the Alaska standards are more stringent than the EPA's NSPS and concluded that the Alaska standards are, therefore, an unenforceable emission limit under CAA section 110(a)(2)(A).

The EPA disagrees with this comment for a number of reasons. First, CAA section 110(a)(2)(A) requires SIPs to include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA. In the context of an infrastructure SIP submission for a new or revised NAAQS, however, the EPA is not evaluating the substantive merit of existing control measures in the SIP, unlike the evaluation of such measures in a nonattainment plan SIP submission. For an infrastructure SIP submission, the EPA interprets section 110(a)(2)(A) to require states to make a submission that identifies the existing measures in their SIPs that are relevant to the NAAQS at issue, as the first step in their planning for implementation of a new or revised NAAQS.3 These infrastructure SIP submissions should identify enforceable control measures as part of the demonstration that the State has the available tools and authority to develop and implement plans to attain and maintain the NAAQS.

The EPA's longstanding position is that infrastructure SIPs are statewide planning SIPs to implement, maintain, and enforce a NAAQS in general, and are not detailed attainment and maintenance plans for an individual area of a state.4 Infrastructure SIPs are due within three years of adoption or revision of a particular NAAQS, according to CAA sections 110(a)(1) and (2). The separate nonattainment plan SIP submissions to address the emission limits and other control measures needed to attain a particular NAAQS in an area designated nonattainment are due on a separate schedule, pursuant to CAA section 172 and the various pollutant-specific subparts 2 through 5 of part D.5

Second, the EPA disagrees because the comment is not germane to this action on the State's infrastructure SIP submission. The commenter's assertions focus on control measures already established by the State in 18 AAC 50.077 and 18 AAC 50.079 to attain the 2006 24-hour PM2.5 NAAQS in the FNSB nonattainment area. On September 8, 2017, the EPA approved 18 AAC 50.077 as an appropriate control measure for the area and we are not revisiting our prior decision.6 The EPA already addressed the substance and validity of the control measures, and the need for such measures to help reach attainment of the NAAQS in the FNSB area in that prior action. We note that the standards in 18 AAC 50.079 have not been submitted by Alaska to the EPA and are therefore outside the scope of this action.

Third, the EPA does not agree that it is appropriate to compare the stringency of an NSPS with the stringency of other forms of control measures that may be necessary for a given source category. The NSPS for woodstoves focuses on emission reductions achievable through redesign of new woodstoves to reduce emissions. By contrast, potential SIP control measures can, and may be required to, achieve emission reductions by other means such as requirements to burn dry wood, opacity standards, curtailment programs, or other mechanism to reduce emissions from both new and existing sources, perhaps over and above what may result from the NSPS alone. The commenter incorrectly presumes that an NSPS is necessarily the proper point of comparison for the validity of SIP provisions to address emissions from woodstoves.

Fourth, the EPA disagrees with the premise that states cannot regulate a source category more stringently than may be required in a Federal regulation. In enacting section 110 of the CAA, Congress gave states the lead in developing plans to implement, maintain, and enforce the NAAQS. The EPA's role is to review and approve state choices if they meet the minimum criteria of the CAA. See 42 U.S.C. 7410(k) and 40 CFR 52.02(a). There is nothing in the CAA that prevents SIP provisions from being more stringent than Federal NSPS standards. To the contrary, CAA section 116 explicitly authorizes states to regulate sources more stringently than the EPA does through Federal regulations. More importantly, states have the obligation to regulate sources as necessary to meet nonattainment area plan stringency requirements, such as reasonably- and best available control measures, and the obligation to regulate sources as necessary to attain the NAAQS in a given nonattainment area. Thus, the fact that 18 AAC 50.077 may be more stringent than the NSPS for home heating devices does not make it unenforceable.

Finally, we note that Alaska's infrastructure SIP submission established that the State has a program for implementation, maintenance, and enforcement of the 2012 PM2.5 NAAQS that covers a range of relevant sources of emissions. As discussed in the proposed action, Alaska regulates emissions of PM2.5 and its precursors through the SIP-approved major and minor new source review (NSR) permitting programs, most recently updated on August 28, 2017 (82 FR 40712). In addition to permitting requirements, Alaska's SIP contains other rules that limit particulate matter emissions. These rules include incinerator emission standards, emission limits for specific industrial processes and fuel burning equipment, open burning restrictions, visible emission limits on marine vessel emissions, and requirements for installing and operating solid fuel-fired devices.

We continue to find that the Alaska infrastructure SIP submission meets the requirements of CAA section 110(a)(2)(A) for purposes of the 2012 PM2.5 NAAQS and we are finalizing our proposed approval. To the extent that additional control measures are necessary to meet other requirements, such as control measures necessary to reach attainment of the NAAQS in the FNSB nonattainment area in a nonattainment plan SIP submission, Alaska and the EPA will address that in subsequent actions.

The commenter asserted that the regulatory monitor at Hurst Road in North Pole, Alaska “routinely records the highest levels of PM2.5 seen in the nation, while devices nearby record normal levels of PM2.5.” The commenter concluded that “the FNSB is using faulty air quality parameters” that are being used to dictate the strategy for the nonattainment area and that the State has failed to meet CAA sections 110(a)(2)(B) and (K).

The EPA disagrees that the relative levels of ambient PM2.5 at monitors in the FNSB affects the approvability of the infrastructure SIP submission. In the context of an infrastructure SIP submission, the EPA interprets CAA section 110(a)(2)(B) to require states to have SIP provisions to provide for the establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to the EPA upon request. In our proposed action, we stated that Alaska has a comprehensive air quality monitoring plan, originally approved by the EPA into the Alaska SIP on April 15, 1981 (46 FR 21994). We also determined that the plan includes statutory and regulatory authority to establish and operate an air quality monitoring network, including PM2.5 monitoring (January 23, 2018; 83 FR 3101, at page 3103). In practice, Alaska operates a comprehensive PM2.5 monitoring network, compiles and analyzes collected data, and submits the data to the EPA's Air Quality System on a quarterly basis.

With respect to monitor siting, Alaska regularly assesses the adequacy of the State monitoring network and submits that assessment to the EPA for review. The most recent Alaska network assessment is available at http://dec.alaska.gov/air/air-monitoring/network-assessments. The fact that a single monitor records ambient PM2.5 values higher than monitors in surrounding areas does not establish that the monitoring data is inaccurate. The EPA's network design criteria are found in Appendix D to 40 CFR part 58. The fine particulate matter design criteria for state and local air monitors, at paragraph 4.7 of the Appendix, directs states to appropriately monitor the area of maximum concentration. We continue to find that Alaska has met the infrastructure SIP monitoring requirement of CAA section 110(a)(2)(B) for the 2012 PM2.5 NAAQS and we are finalizing our proposed approval with respect to this requirement.

In the context of an infrastructure SIP submission, the EPA interprets CAA section 110(a)(2)(K) to require that SIPs provide for the performance of air quality modeling as may be prescribed by the EPA, and the submission of that modeling data by states to the EPA as required or upon request. In our proposed action, we stated that Alaska's SIP meets the infrastructure SIP requirements for modeling because, as stated in the submission, Alaska incorporates the EPA's Guideline on Air Quality Models into the SIP at 18 AAC 50.040 and requires its use based on 18 AAC 50.215 Ambient Air Quality Analysis Methods.

Beyond alleging that “the FNSB is using faulty air quality parameters,” the commenter did not specify why they felt the Alaska SIP failed to meet CAA section 110(a)(2)(K) for the 2012 PM2.5 NAAQS. We continue to find that the Alaska SIP provides the necessary authority to perform required air quality modeling and to submit that data to the EPA.7 Therefore, we are finalizing our proposed approval of the infrastructure SIP submission with respect to CAA section 110(a)(2)(K) for the 2012 PM2.5 NAAQS.

The commenter alleged that the FNSB cannot enforce wood burning curtailment as a practical matter and pointed to public statements that the FNSB has found “very low compliance” but has issued “only one citation.” The commenter concluded that the program is unenforceable and that the State has failed to meet CAA section 110(a)(2)(C) with respect to enforcement.

In the context of an infrastructure SIP submission, the EPA interprets CAA section 110(a)(2)(C) to require, among other things, a program providing for enforcement of all SIP measures. As stated in the infrastructure SIP submission, Alaska statute provides ADEC authority to enforce air quality regulations, permits, and orders promulgated pursuant to AS 46.03 and AS 46.14. ADEC staffs and maintains an enforcement program to ensure compliance with SIP requirements. ADEC has emergency order authority when there is an imminent or present danger to health or welfare or potential for irreversible or irreparable damage to natural resources or the environment. Enforcement cases may be referred to the State Department of Law. Therefore, we proposed to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(C) related to enforcement for the 2012 PM2.5 NAAQS.

The commenter asserted that the FNSB burn curtailment program is unenforceable and that the EPA should therefore disapprove the infrastructure SIP submission with respect to CAA section 110(a)(2)(C). The EPA disagrees that the amount or type of enforcement of a SIP provision necessarily affects the approvability of an infrastructure SIP submission. In the context of evaluating an infrastructure SIP submission, the EPA is focused upon the facial sufficiency of the State's SIP and does not evaluate issues related to the State's implementation of the SIP. The EPA has other authority to take action, in the event the State is actually failing to implement its SIP, such as the issuance of a finding of failure to implement or a SIP call. In this instance, the comment also relates to the State's exercise of enforcement discretion, rather than to the facial sufficiency of the State's SIP with respect to enforcement authority.

As stated in our proposal, the SIP contains the required statutory authority to enforce air quality regulations, permits, and orders.8 We continue to find that the Alaska SIP meets the infrastructure requirements of CAA section 110(a)(2)(C) for the 2012 PM2.5 NAAQS and we are finalizing our proposed approval.

The commenter stated that “the emergency episode plan for FNSB is not sustainable” and specifically referred to a voter initiative to remove wood burning from FNSB regulatory oversight. The commenter also alleged that the FNSB is using the SIP emergency episode plan “as a surrogate for its own desires to limit wood burning.” The commenter therefore argued that the State has failed to meet 110(a)(2)(G) infrastructure requirements.

In the context of an infrastructure SIP submission, the EPA interprets CAA section 110(a)(2)(G) to require two things: (1) States must have general emergency authority to address activities causing imminent and substantial endangerment to public health, and (2) if the area has high ambient PM2.5 concentrations in the past, a contingency plan in their SIPs to achieve emission reductions in the event of an emergency episode.

In the March 10, 2016, infrastructure submission, with respect to general emergency authority, Alaska cited to Alaska Statute (AS) 46.03.820 Emergency powers, which provides ADEC with emergency order authority where there is an imminent or present danger to the health or welfare of the people of the state or would result in or be likely to result in irreversible or irreparable damage to the natural resources or environment. In addition, with respect to a contingency plan to achieve emission reductions in the event of an emergency episode, Alaska referenced State-wide emergency episode rules at 18 AAC 50.246 Air Quality Episodes and Advisories for PM 2.5. These rules authorize ADEC to declare an air alert, air warning, or air advisory to notify the public and prescribe and publicize curtailment action, including imposition of restrictions on open burning under 18 AAC 50.065 and limits on visible emissions from solid fuel-fired heating devices under 18 AAC 50.075. The submission also noted that the FNSB developed a local emergency episode plan for PM2.5 applicable in the FNSB area, and the State adopted the plan into the Alaska SIP at 18 AAC 50.030.

On January 23, 2018, the EPA proposed to find that AS 46.03.820 Emergency powers provides emergency order authority comparable to CAA section 303.9 We also proposed to find that Alaska's State-wide emergency episode rules are consistent with the requirements of 40 CFR part 51 subpart H for PM2.5 (prevention of air pollution emergency episodes, sections 51.150 through 51.153).10 These State-wide, SIP-approved regulations and statute continue to meet the CAA section 110(a)(2)(G) emergency episode infrastructure requirements. Therefore, we are finalizing our proposed approval of the Alaska SIP as meeting CAA section 110(a)(2)(G) for the 1997, 2006, and 2012 PM2.5 NAAQS.

We are approving the Alaska SIP as meeting the following CAA section 110(a)(2) infrastructure elements for the 2012 PM2.5 NAAQS: (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (H), (J), (K), (L), and (M). We are also approving the Alaska SIP as meeting CAA section 110(a)(2)(G) for the 1997, 2006, and 2012 PM2.5 NAAQS. This action is being taken under section 110 of the CAA.

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, the 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 (Public Law 104-4);

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where 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 it 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. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 28, 2019. 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).

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

This is a summary of the Commission's Report and Order, FCC 18-148, adopted and released on October 23, 2018. The full text of these documents is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, CY-A257, Washington, DC 20554. These documents will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW, Room CY-B402, Washington, DC 20554. To request these documents in accessible formats (computer diskettes, large print, audio recording, and Braille), send an email to [email protected] or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

In the Report and Order, we eliminate and revise rules that have become obsolete due to the sunset of rate regulation for cable programming service tiers, are unnecessary given changes in industry practices, or have become obsolete due to changes in Commission policy. For the reasons stated below, we find good cause to modify § 76.923(i) without notice and comment because the modification in question merely codifies an existing uncodified rule. We also eliminate the hard copies of Forms 328 and 329 located at the end of § 76.985 of our rules. We are not changing the text of § 76.985 by deleting these hard copies, and they are unnecessary because Form 329 is no longer in use and Form 328 is available electronically. Finally, we eliminate §§ 76.986, 76.987, 76.922(g)(7) and 76.922(n) of the rules and close proceedings related to uniform regional rate structures, which are moot due to the sunset of cable programming service tier (CPST) regulation.

A la Carte Packages and New Product Tiers. We eliminate §§ 76.986 and 76.987 because they are vestiges of CPST regulation. These rule sections address “a la carte” packages and “new product tiers,” both of which are types of CPSTs. Therefore, because of the sunset of CPST regulation we remove these two sections from our rules.

Equipment Leasing. We modify § 76.923(i) to codify our previously adopted uncodified rule that, where an operator offers its equipment for sale as well as for lease, the sales price is unregulated. The lease price offers the safety of a cost-based regulated rate to subscribers and the operator's sales price for the same equipment is regulated by the market.

Single Tier Small System Headend Upgrades. We remove § 76.922(g)(7) to reflect the sunset of the opportunity for single tier small systems to make headend upgrade adjustments. The time period for taking this rate increase, January 1, 1995 to December 31, 1997, has expired, and we see no continued need for this rule section.

Uniform Regional Rate Structures. The Notice of Proposed Rulemaking in the Cable Pricing Flexibility Order, 61 FR 45387, and our interpretation in the Uniform Rate Order, 62 FR 15121, of § 76.922(n) of our rules are both moot due to the deregulation of the CPST. In the Cable Pricing Flexibility Order, we proposed exceptions to the CPST rate rules to allow operators to reduce BST prices and offset those reductions with increased CPST rates. Section 76.922(n) permits similar offsets for CPST rates in order to permit cable operators to establish uniform rates across multiple franchise areas. Now that CPST rates are no longer regulated, an operator may increase CPST rates without Commission approval so the exceptions to the CPST rate rules are no longer needed. Accordingly, we terminate CS Docket No. 96-157 and remove § 76.922(n) from our rules.

Forms 328 and 329. Two hard copy FCC forms are located at the end of § 76.985 of our rules in the Code of Federal Regulations. Form 329 is an obsolete CPST complaint form. Form 328 is now available electronically. We delete these hard copy forms, including instructions, from § 76.985 and modify § 76.910 to direct interested parties to the electronic Form 328 and instructions.

Paperwork Reduction Act.—The Report and Order eliminates, and thus does not contain new or revised, information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, therefore, it does not contain any new or modified “information burden for small business concerns with fewer than 25 employees” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4).

Final Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”), an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Notice of Proposed Rulemaking and Order, Revisions to Cable Television Rate Regulations (“NPRM”). The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. No comments on the IRFA were received. This present Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA.

Need for, and Objectives of, the Revised Rules. In the past, the Commission developed rules and forms for the regulation of cable television rates when both the basic service tier (“BST”) and the cable programming service tiers (“CPST”) were subject to rate regulation. In this Report and Order, the Commission updates some of these regulations. Updating is needed so that the rules and rate forms will reflect the March 1999 sunset of cable programming services tier (“CPST”) rate regulation pursuant to the Telecommunications Act of 1996. Finally, updating is required to address issues which have arisen over time. This Report and Order makes changes to remove rule sections that are obsolete due to the sunset of upper tier regulation. For cable systems in general, including small cable systems, in this Report and Order the Commission deletes or modifies rules relating solely to CPST regulation and modifies a rule to codify existing policy. All of these changes have the effect of eliminating or reducing regulatory burdens.

Legal Basis. The authority for this action is contained in sections 1, 2(a), 3, 4(i), 4(j), 303(r), 601(3), 602, and 623 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 153, 154(i), 154(j), 303(r), 521, 522, and 543.

Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the modified rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

The SBA has developed a small business size standard for Cable and Other Program Distribution, which consists of all such firms having $12.5 million or less in annual receipts. This category includes, among others, cable operators, closed circuit television services, direct broadcast satellite services, multipoint distribution services, open video systems, satellite master antenna television systems, and subscription television services. According to Census Bureau data for 1997, in this category, there was a total of 1,311 firms that operated for the entire year, of which 1180 have less than $10 million in revenue and an additional 52 firms had revenue of $10 million or more but less than $25 million. Thus, under this size standard, the majority of firms can be considered small. In this category, only cable system operators are affected by this Report and Order and we address them below to provide a more precise estimate of the affected small entities.

Cable Systems. The Commission has developed its own small business size standard for a small cable operator for the purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide. Based on our most recent information, we estimate that there were 1,439 cable operators that qualified as small cable companies at the end of 1995. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, we estimate that there are fewer than 1,439 small cable companies that may be affected by the proposed rules. A “small system” under the Commission's rules, is one serving “15,000 or fewer subscribers. The service area of a small system shall be determined by the number of subscribers that are served by the system's principal headend, including any other headends or microwave receive sites that are technically integrated to the principal headend.” The Communications Act of 1934, as amended, also contains a size standard for a “small cable operator,” which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are 67,700,000 cable subscribers in the United States. Therefore, an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on this available data, we estimate that the number of cable operators serving 677,000 subscribers or less totals approximately 1,450. We do not request or collect information on whether cable operators are affiliated with entities whose gross annual revenues exceed $250,000,000, and therefore are unable to estimate accurately the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

Description of Projected Reporting, Recordkeeping and Other Compliance Requirements for Small Entities. No increase in the regulatory burden on small systems or small governmental entities is expected to result from this proceeding.

Steps Taken to Minimize Significant Impact on Small Entities and Significant Alternatives Considered. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.” In general, this item does not impose any new regulatory burdens on large or small entities. Rather, it serves to streamline and update rules, thereby relieving burdens in general. Although the Commission requested comment on any changes in the rate rules that might address continuing difficulties faced by operators of small systems, such as the problems associated with the simultaneous growth in competition and the need for additional investment to upgrade facilities, no comments were received. The changes do not increase the regulatory burden small systems face as a result of rate regulation and may lessen it by reducing the amount of information required to be reported.

Federal Rules Which Duplicate, Overlap, or Conflict with the Commission's Rules. None.

For the reasons stated above, IT IS ORDERED that, pursuant to the authority found in sections 1, 2(a), 3, 4(i), 4(j), 303(r), 601(3), 602, and 623 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 153, 154(i), 154(j), 303(r), 521, 522, 543, this Report and Order IS ADOPTED. IT IS FURTHER ORDERED that, pursuant to the authority found in sections 1, 2(a), 3, 4(i), 4(j), 303(r), 601(3), 602, and 623 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 153, 154(i), 154(j), 303(r), 521, 522, 543, the Commission's rules ARE AMENDED as set forth below. IT IS FURTHER ORDERED that CS Docket No. 96-157 IS TERMINATED. IT IS FURTHER ORDERED that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Report and Order, including the Final Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of the Small Business Administration. IT IS FURTHER ORDERED that the Commission SHALL SEND a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons set forth in the preamble, the Federal Communications Commission amends 47 CFR part 76 as follows:

The Atlantic shark fisheries are managed under the 2006 Consolidated Highly Migratory Species (HMS) Fishery Management Plan (FMP), its amendments, and implementing regulations (50 CFR part 635) issued under authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.).

Under § 635.5(b)(1), dealers must electronically submit reports on sharks that are first received from a vessel on a weekly basis through a NMFS-approved electronic reporting system. Reports must be received by no later than midnight, local time, of the first Tuesday following the end of the reporting week unless the dealer is otherwise notified by NMFS.

Under § 635.28(b)(2), when NMFS calculates that the landings for any species and/or management group that has a non-linked quota has reached or is projected to reach a threshold of 80 percent of the available quota, NMFS will file for publication, with the Office of the Federal Register, a notice of closure for that species and/or management group that will be effective no fewer than four days from date of filing.

From the effective date and time of the closure until and if NMFS announces, via a notice in the Federal Register, that additional quota is available and the season is reopened, the fisheries for all linked species and/or management groups and specified non-linked species and/or management groups are closed, even across fishing years.

On November 22, 2017 (82 FR 55512), NMFS announced that for 2018, the commercial eastern Gulf of Mexico blacktip shark sub-regional quota was 37.7 metric tons (mt) dressed weight (dw) (83,158 lb dw). Dealer reports received through November 16, 2018, indicate that 97 percent (36.7 mt dw) of the available eastern Gulf of Mexico blacktip shark sub-regional quota has been landed. Based on these dealer reports, landings have exceeded 80 percent of the eastern Gulf of Mexico blacktip shark sub-regional quota. Therefore, the blacktip shark fishery meets the closure threshold. Accordingly, NMFS is closing the blacktip shark fishery in the eastern Gulf of Mexico sub-region as of 11:30 p.m. local time November 25, 2018.

All other shark species or management groups in the eastern Gulf of Mexico sub-region that are currently open will remain open, including the commercial eastern Gulf of Mexico aggregated LCS, eastern Gulf of Mexico hammerhead sharks, Gulf of Mexico non-blacknose small coastal sharks, blue sharks, smoothhound sharks, and pelagic sharks other than porbeagle or blue sharks.

The boundary between the Gulf of Mexico region and the Atlantic region is defined at § 635.27(b)(1) as a line beginning on the East Coast of Florida at the mainland at 25°20.4′ N lat, proceeding due east. Any water and land to the south and west of that boundary is considered for the purposes of monitoring and setting quotas, to be within the Gulf of Mexico region. The boundary between the eastern and western Gulf of Mexico sub-regions is drawn along 88°00′ W long (§ 635.27(b)(1)(ii)).

During the closure, retention of blacktip sharks in the eastern Gulf of Mexico sub-region is prohibited for persons fishing aboard vessels issued a commercial shark limited access permit under § 635.4. However, persons aboard a commercially permitted vessel that is also properly permitted to operate as a charter vessel or headboat for HMS, has a shark endorsement, and is engaged in a for-hire trip could fish under the recreational retention limits for sharks and “no sale” provisions (§ 635.22 (c)). Similarly, persons aboard a commercially permitted vessel that possesses a valid shark research permit under § 635.32 and has a NMFS-approved observer onboard may continue to harvest and sell blacktip sharks in the eastern Gulf of Mexico sub-region pursuant to the terms and conditions of the shark research permit.

During this closure, a shark dealer issued a permit pursuant to § 635.4 may not purchase or receive blacktip sharks in the eastern Gulf of Mexico sub-region from a vessel issued an Atlantic shark limited access permit (LAP), except that a permitted shark dealer or processor may possess blacktip sharks in the eastern Gulf of Mexico sub-region that were harvested, off-loaded, and sold, traded, or bartered prior to the effective date of the closure and were held in storage consistent with § 635.28(b)(6). Additionally, a permitted shark dealer or processor may possess blacktip sharks in the eastern Gulf of Mexico sub-region that were harvested by a vessel issued a valid shark research fishery permit per § 635.32 with a NMFS-approved observer onboard during the trip the sharks were taken on as long as the blacktip research fishery quota remains open. Similarly, a shark dealer issued a permit pursuant to § 635.4 may, in accordance with relevant state regulations, purchase or receive blacktip sharks in the eastern Gulf of Mexico sub-region if the sharks were harvested, off-loaded, and sold, traded, or bartered from a vessel that fishes only in state waters and that has not been issued an Atlantic Shark LAP, HMS Angling permit, or HMS Charter/Headboat permit pursuant to § 635.4.

Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA (AA), finds that providing prior notice and public comment for this action is impracticable and contrary to the public interest because the fishery is currently underway and any delay in this action would result in overharvest of the quotas for these species and management groups and thus would be inconsistent with fishery management requirements and objectives. The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of availability on the fishing grounds, the migratory nature of the species, and the regional variations. NMFS is not able to give notice sooner nor would sooner notice be practicable given the structure of the regulations, which close the fisheries under specified regulatory criteria or thresholds, and closure determinations need to be based on near real-time data to balance fishing opportunities against the management goal of preventing quota overharvests. Similarly, affording prior notice and opportunity for public comment on this action is contrary to the public interest because if a quota is exceeded, the stock may be negatively affected and fishermen ultimately could experience reductions in the available quota and a lack of fishing opportunities in future seasons. For these reasons, the AA also finds good cause to waive the 30-day delay in effective date pursuant to 5 U.S.C. 553(d)(3). This action is required under § 635.28(b)(2) and is exempt from review under Executive Order 12866.

Background

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

On September 11, 2018 (83 FR 45866), NMFS published a proposed rule that proposed opening all Atlantic commercial shark management groups on January 1, 2019. NMFS proposed to start the 2019 commercial shark fishing year in the eastern and western Gulf of Mexico sub-regions with a retention limit of 36 LCS other than sandbar sharks per vessel per trip. In the Atlantic region, NMFS proposed to start the fishing year with a retention limit of 25 LCS other than sandbar sharks per vessel per trip and adjust the commercial shark retention limit between zero and 55 LCS other than sandbar sharks per vessel per trip to ensure equitable access to the fishery throughout the year. In addition, NMFS proposed quota adjustments to account for underharvest of the Gulf of Mexico blacktip shark management group, Gulf of Mexico smoothhound shark management group, and Atlantic smoothhound shark management group quotas. The proposed rule contains details about the action that are not repeated here. The comment period on the proposed rule closed on October 11, 2018.

NMFS received eight written and oral comments regarding the proposed opening dates, retention limits, and potential inseason retention limit adjustments as it applied to LCS in the Gulf of Mexico and Atlantic regions. Those comments, along with the Agency's responses, are summarized below. After considering all the comments, NMFS is opening the fishing year for all shark management groups on January 1, 2019, as proposed. NMFS is changing the retention limit for directed shark limited access permit holders in the blacktip, aggregated LCS, and hammerhead management groups for the entire Gulf of Mexico region to 45 LCS other than sandbar sharks per vessel per trip in this final rule. The proposed rule would have set the retention limit at 36 LCS other than sandbar sharks per vessel per trip. The aggregated LCS and hammerhead shark management groups in the Atlantic region will start the fishing year with a retention limit of 25 LCS other than sandbar sharks per vessel per trip for directed shark limited access permit holders, as proposed. The retention limit for incidental shark limited access permit holders for all regions has not changed from the proposed rule and remains at 3 LCS other than sandbar sharks per trip and a combined total of 16 small coastal sharks (SCS) and pelagic sharks, combined per trip consistent with § 635.24(a)(3) and (4). Additionally, the retention limit for blacknose sharks for all permit holders in the Atlantic region south of 34000′ N.lat. has not changed from the proposed rule and remains at an eight blacknose sharks per trip consistent with § 635.24 (a)(4).

This final rule serves as notification of the 2019 opening date for the Atlantic commercial shark fisheries and 2019 retention limits and quotas, based on shark landings data updated as of October 15, 2018 and criteria set in existing regulations at 50 CFR, Part 635. In setting the opening date, NMFS considered the “opening commercial fishing season” criteria at § 635.27(b)(3). This criteria includes the following factors: Available annual quotas for the current fishing season; estimated season length and average weekly catch rates from previous years; length of the season and fishermen participation in past years; impacts to accomplishing objectives of the 2006 Consolidated HMS FMP and its amendments; temporal variation in behavior or biology of target species (e.g., seasonal distribution or abundance); impact of catch rates in one region on another; and effects of delayed season openings.

While this action adjusts certain quotas as allowable, this action does not establish or change the annual baseline commercial quotas established under the 2006 Consolidated HMS FMP and its amendments for any shark management group. The baselines quotas were established under previous actions, and any changes to those baseline quotas would be performed through a separate action. Rather, this action adjusts the annual commercial quotas for 2019 based on over- and/or underharvests that occurred in 2018, consistent with existing regulations, and establishes the opening dates for the fisheries. Based on updated landings information as of October 15, 2018, only the adjusted blacktip quota in the Gulf of Mexico region has changed from the proposed rule. All other quotas remain the same as proposed.

NMFS received eight written and oral comments on the proposed rule from fishermen, dealers, and other interested parties. All written comments can be found at http://www.regulations.gov/ by searching for RIN 0648-XG263. All of the comments received are summarized below.

Comment 1: NMFS received several comments regarding the proposed decrease in the commercial retention limit for the aggregated LCS, hammerhead, and blacktip management groups in the eastern and western Gulf of Mexico sub-regions. Of those comments, all were opposed to the proposed retention limit of 36 aggregated LCS other than sandbar sharks per vessel per trip, and noted that NMFS should maintain the retention limit at 45 aggregated LCS other than sandbar sharks per vessel per trip. The State of Louisiana along with commercial fishermen from the western Gulf of Mexico sub-region noted that they preferred keeping the retention limit at the default limit of 45 sharks per vessel per trip. Commenters prefer to maximize shark landings per trip, regardless of the length or timing of the season. NMFS also received comments from commercial fishermen in the eastern Gulf of Mexico sub-region that stated they also preferred a retention limit of 45 aggregated LCS per vessel per trip. Specifically, the fishermen in the eastern Gulf of Mexico sub-region noted that because of the consistent regulations over the past few years, the market for shark meat has expanded in their area. NMFS did not receive any comments in support of the reduction.

Response: After considering these comments, NMFS has determined that the default retention limit of 45 LCS other than sandbar sharks per vessel per trip is appropriate and will ensure equitable fishing opportunities in both Gulf of Mexico sub-regions, to the extent practicable. NMFS originally proposed a lower retention limit in the western Gulf of Mexico sub-region with the goal of preserving quota for the fishery through April 1, which is when the State of Louisiana closes shark fishing in state waters. However, comments from the western Gulf of Mexico sub-region, including comments from the State of Louisiana, did not support the lower proposed retention and preferred a higher retention limit per trip. The State of Louisiana has a default limit of 45 LCS including blacktips and hammerheads per trip per vessel per day and prefers that the federal limit match the state limit. Regarding the eastern Gulf of Mexico sub-region, NMFS proposed the lower retention limit to reduce any confusion caused by having two separate retention limits in the Gulf of Mexico region. Given public comment from both sub-regions, and supporting information from eastern Gulf of Mexico fishermen regarding the expanding market for shark meat, NMFS will also maintain the default retention limit in the eastern Gulf of Mexico sub-region.

Comment 2: Several commenters supported the proposed opening date of January 1, 2019 for the Gulf of Mexico region.

Response: Given the support for this opening date, NMFS will open the Gulf of Mexico blacktip, aggregated LCS, and hammerhead shark management groups on January 1, 2019, as proposed. NMFS will also open all the other shark management groups, including those in the Atlantic region, on January 1, 2019, as proposed.

Comment 3: One commenter expressed concern about adequate enforcement of the quotas and retention limits, noting that they feel shark populations are being decimated, and requested a closure of all shark fisheries.

Response: NMFS is responsible for managing quotas for the Atlantic shark fisheries consistent with the Magnuson-Stevens Act and other applicable laws. Based on various stock assessments and best available science, NMFS established baseline quotas for various Atlantic shark management groups in the 2006 Consolidated HMS FMP and its amendments. These baseline quotas were established to prevent overfishing and ensure overfished stocks would rebuild within a specified timeframe. NMFS adjusts these baseline quotas, as needed, on an annual basis as a result of over- or underharvests in previous years. When establishing the shark commercial baseline quota, NMFS uses the total allowable catch calculated during the stock assessment then subtracts all other sources of mortality, including recreational landings, commercial discards, post-release mortality, and research set-aside mortality. NMFS also takes into account the effects of fishing on essential fish habitat, protected resources, and the environment to fulfill requirements for the associated FMP amendment along with socioeconomic value of these shark species to various groups. The quota is then monitored using dealer reports on a weekly basis throughout the year. NMFS closes the commercial fishery for any shark management group if the landings have reached, or are projected to reach, 80 percent of the available overall, regional, and/or sub-regional quota if the fishery's landings are not projected to reach 100 percent of the applicable quota before the end of the season, or when the quota-linked management group is closed. Once the quota is reached, these fishery closures prevent overfishing of the relevant stock(s). Since these quotas are based on the best scientific information available, NMFS is confident that allowing commercial shark fishing in 2019 will not cause shark populations to be decimated.

Regarding the comment about adequate enforcement, NMFS takes enforcement of these regulations seriously. If suspected illegal activities are observed in any fishery and/or region, specific information regarding such incidents can be reported to NOAA Office of Law Enforcement through the national enforcement hotline at 1-800-853-1964. All commercial shark landings and quotas are monitored with the HMS electronic dealer reporting system, which has been in use since 2013. This system monitors data on a weekly basis, and provides information on each dealer transaction, including all shark landings to the species level, and ensures that quotas are not exceeded. In addition, NMFS can verify and detect falsified reporting by dealers and fishermen by cross-checking dealer reports to fishermen's logbooks.

Comment 4: NMFS received comments regarding the Gulf of Mexico blacktip shark stock. Specifically, commenters asked for a new Gulf of Mexico blacktip shark stock assessment and an increase in the blacktip shark quota. Commenters also requested that NMFS combine the Gulf of Mexico blacktip shark management group with the aggregated LCS management group.

Response: These comments are outside the scope of this rulemaking. The purpose of this rulemaking is to adjust quotas for the 2019 shark year based on over- and underharvests from the previous years and set opening dates and initial retention limits for the 2019 shark year. Issues regarding new baseline quotas, new management units, and the timing of stock assessments are not addressed by this rulemaking. NMFS did complete an update to the Gulf of Mexico blacktip stock assessment in October 2018 (http://sedarweb.org/sedar-29u), and is reviewing the results to determine if any changes, such as modifying the various management units or changes to the quotas, are needed. Additionally, NMFS will be assessing the Atlantic blacktip stock via the SouthEast Data, Assessment, and Review process in 2019, and will consider appropriate management measures for that stock once the assessment is complete.

Comment 5: NMFS received a comment requesting the division between eastern and western Gulf of Mexico sub-regions be moved from 88 to 89 degrees west longitude.

Response: This comment is outside the scope of this rulemaking because the purpose of this rulemaking is to adjust quotas for the 2019 shark year based on over- and underharvests from the previous years and set opening dates and initial retention limits for the 2019 shark year. In Amendment 6 to the 2006 Consolidated HMS FMP, NMFS analyzed, among other things, the impacts and justification for a regional management boundary to apportion the Gulf of Mexico regional commercial quotas for aggregated LCS, and blacktip shark management groups. Based on public comments and additional analyses, and after consulting with the HMS Advisory Panel, NMFS established a division of the Gulf of Mexico at 88° W. longitude. The issue of subdividing the Gulf of Mexico regional quota is not being re-addressed in this rulemaking.

As described above, and as a result of public comment and additional analyses, NMFS made changes from the proposed rule. Specifically, NMFS changed the retention limit for directed shark limited access permit holders at the start of the commercial shark fishing year for the blacktip, aggregated LCS, and hammerhead shark management groups in the eastern and western Gulf of Mexico sub-regions from 36 LCS other than sandbar sharks per vessel per trip to 45 LCS other than sandbar sharks per vessel per trip. NMFS changed the retention limit after considering public comment and the 2018 landings data. NMFS noted in the proposed rule that retention limits might change in response to public comment. The default retention limit is within the allowable range and consistent with the limits established in recent years. NMFS expects that a retention limit of 45 LCS other than sandbar sharks per vessel per trip will provide equitable fishing opportunities throughout the sub regions, to the extent practicable, and retains its discretion to make inseason adjustments to retention limits, in accordance with existing regulations and in furtherance of the goals and objectives of the 2006 Consolidated HMS FMP and its amendments.

Additionally, based on updated landings information, NMFS changed the final blacktip shark quota in both Gulf of Mexico sub-regions. As NMFS explained in the proposed rule (83 FR 45866; Sept 11, 2018), shark management group quotas in this final rule are based on dealer reports received as of mid-October. Specifically, the final adjustments are based on updated landings through October 15, 2018. Updated landing reports indicate an additional 11.5 metric tons (mt) of blacktip shark was landed in the Gulf of Mexico in 2018. Accordingly, the regional underharvest for the Gulf of Mexico region is now only 26.9 mt dressed weight (dw) (59,355 pounds (lb) dw). Since more blacktip sharks were landed, the final adjustment is lower than the proposed adjustment of 38.4 mt dw (84,702 lb dw).

Therefore, the sub-regional quota adjustments are also lower than the adjustments in the proposed rule. The underharvest is divided between the two sub-regions, based on the percentages that are allocated to each sub-region, which are set forth at § 635.27(b)(1)(ii)(C). The western Gulf of Mexico sub-regional baseline quota is being increased by 24.3 mt dw (53,538 lb dw), which is a reduction of 10.3 mt dw from the proposed rule. Similarly, the eastern Gulf of Mexico sub-regional baseline quota is being increased by 2.6 mt dw (5,817 lb dw), which is a reduction of 1.1 mt dw from the proposed rule.

This final rule adjusts the 2019 commercial quotas due to overharvests and/or underharvests in 2018 and previous fishing years, based on landings data through October 15, 2018. The 2018 annual quotas by species and management group are summarized in Table 1. Any dealer reports that are received by NMFS after October 15, 2018 will be used to adjust the 2020 quotas, if necessary. A description of the quota calculations is provided in the proposed rule and is not repeated here. Any changes are described in the “Changes from the Proposed Rule” section.

NMFS considered the seven “opening commercial fishing season” criteria listed in § 635.27(b)(3), as discussed above and as described in the proposed rule (83 FR 45866; September 11, 2018). These include, among other things: the available annual quotas based on any over- and/or underharvests experienced during the previous seasons; the estimated season length based on available quotas and catch rates from previous years; the length of the season in the previous years and whether fishermen were able to participate in the fishery in those years; and the effects of catch rates in one part of a region precluding vessels in another part of that region from having a reasonable opportunity to harvest a portion of the different species and/or management quotas.

Regarding the LCS retention limit, as shown in Table 2, directed shark limited access permit holders fishing on the Gulf of Mexico blacktip shark, aggregated LCS, and hammerhead shark management groups will start the commercial fishing year at 45 LCS other than sandbar sharks per vessel per trip. Directed shark limited access permits fishing on the Atlantic aggregated LCS and hammerhead shark management groups will start the commercial fishing year at 25 LCS other than sandbar sharks per vessel per trip. These retention limits could be changed throughout the year based on consideration of the inseason trip limit adjustment criteria at § 635.24(a)(8).

Specifically, in the Atlantic region, NMFS will closely monitor the quota at the beginning of the year. If it appears that the quota is being harvested too quickly to allow fishermen throughout the entire region the opportunity to fish (e.g., if approximately 20 percent of the quota is caught at the beginning of the year), NMFS will consider reducing the commercial retention limit, potentially to 3 LCS other than sandbar sharks per vessel per trip. Given the geographic distribution of the sharks at this time of year (i.e., they head north before moving south again later in the year), the retention limit would be adjusted to ensure there is quota available later in the year (see the criteria at § 635.24(a)(8)(i), (ii), (v), and (vi)). Then, based on the prior years' fishing activity, and to allow more consistent fishing opportunities later in the year, NMFS will consider raising the commercial retention around July 15, 2019. The specific increase or decrease in retention limit depends on a review of the inseason trip limit adjustment criteria at § 635.24(a)(8).

All of the shark management groups will remain open until December 31, 2019, or until NMFS determines that the landings for any shark management group have reached, or are projected to reach, 80 percent of the available overall, regional, and/or sub-regional quota, if the fishery's landings are not projected to reach 100 percent of the applicable quota before the end of the season, or when the quota-linked management group is closed. For the blacktip shark management group, regulations at § 635.28(b)(5)(i) through (v) authorize NMFS to close the management group before landings reach, or are expected to reach 80 percent of the available overall, regional, and/or sub-regional quota after considering the following criteria and other relevant factors: Season length based on available sub-regional quota and average sub-regional catch rates; variability in regional and/or sub-regional seasonal distribution, abundance, and migratory patterns; effects on accomplishing the objectives of the 2006 Consolidated Atlantic HMS FMP and its amendments; amount of remaining shark quotas in the relevant sub-region; and regional and/or sub-regional catch rates of the relevant shark species or management groups. Additionally, NMFS has previously established non-linked and linked quotas; linked quotas are explicitly designed to concurrently close multiple shark management groups that are caught together to prevent incidental catch mortality from exceeding the total allowable catch. The linked and non-linked quotas are shown in Table 2. If NMFS determines that a shark species or management group must be closed, then NMFS will publish a notice in the Federal Register of closure for that shark species, shark management group, region, and/or sub-region that will be effective no fewer than four days from the date of filing (§ 635.28(b)(2) and (3)). From the effective date and time of the closure until NMFS announces, via the publication of a notice in the Federal Register, that additional quota is available and the season is reopened, the fisheries for the shark species or management group are closed, even across fishing years.

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2018 rock sole and yellowfin sole CDQ reserves specified in the BSAI are 4,540 metric tons (mt) and 17,023 mt as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018) and revised by flatfish exchange (83 FR 50036, October 4, 2018). The 2018 rock sole and yellowfin sole CDQ ABC reserves are 10,772 mt and 12,670 mt as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018) and revised by flatfish exchange (83 FR 50036, October 4, 2018).

The Norton Sound Economic Development Corporation has requested that NMFS exchange 400 mt of rock sole CDQ reserves for 400 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 400 mt of rock sole CDQ reserves for 400 mt of yellowfin sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018) and revised by flatfish exchange (83 FR 50036, October 4, 2018), are further revised as follows:

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Norton Sound Economic Development Corporation in the BSAI. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 19, 2018.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.