Federal Register Vol. 83, No.234,

Federal Register Volume 83, Issue 234 (December 6, 2018)

Page Range62689-63040
FR Document

83_FR_234
Current View
Page and SubjectPDF
83 FR 63039 - Announcing the Death of George Herbert Walker BushPDF
83 FR 62910 - Sunshine Act Meetings; Regular Board of Directors MeetingPDF
83 FR 62864 - Sunshine Act MeetingPDF
83 FR 62907 - Sunshine Act MeetingPDF
83 FR 62845 - Sunshine Act MeetingsPDF
83 FR 62873 - Solicitation of Nominations for Membership To Serve on the Advisory Committee on Heritable Disorders in Newborns and ChildrenPDF
83 FR 62941 - Long-Term Stock Exchange, Inc.; Notice of Filing of Application for Registration as a National Securities Exchange Under Section 6 of the Securities Exchange Act of 1934PDF
83 FR 62913 - Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 19.8, Long-Term Options ContractsPDF
83 FR 62930 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 5.8, Long-Term Equity Options Series (LEAPS)PDF
83 FR 62915 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Regarding Certain Changes Relating to Investments of the PGIM Active High Yield Bond ETFPDF
83 FR 62911 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 19.8, Long-Term Options ContractsPDF
83 FR 62928 - Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Directed Market Makers and Primary Market MakersPDF
83 FR 62951 - Michelin North America, Inc., Receipt of Petition for Decision of Inconsequential NoncompliancePDF
83 FR 62949 - Cooper Tire & Rubber Company, Receipt of Petition for Decision of Inconsequential NoncompliancePDF
83 FR 62902 - Bulk Manufacturer of Controlled Substances RegistrationPDF
83 FR 62870 - Submission for OMB Review; Comment RequestPDF
83 FR 62900 - Silicomanganese From China and Ukraine; DeterminationsPDF
83 FR 62844 - Merchant Mariner Medical Advisory Committee; VacanciesPDF
83 FR 62778 - Medicare Program: Changes to the Medicare Claims and Medicare Prescription Drug Coverage Determination Appeals Procedures, CorrectionPDF
83 FR 62833 - Notice of Request for Approval of a Renewal Information CollectionPDF
83 FR 62869 - Notice of Hearing: Reconsideration of Disapproval Washington Medicaid State Plan Amendment (SPA) 17-0002PDF
83 FR 62908 - Distribution of Cable and Satellite Royalty FundsPDF
83 FR 62959 - Office of the Assistant Secretary for International Affairs; Survey of U.S. Ownership of Foreign Securities as of December 31, 2018PDF
83 FR 62836 - Agenda and Notice of Public Meeting of the Rhode Island Advisory CommitteePDF
83 FR 62857 - Combined Notice of Filings #1PDF
83 FR 62858 - Combined Notice of FilingsPDF
83 FR 62932 - Notice of Applications for Deregistration Under Section 8(f) of the Investment Company Act of 1940PDF
83 FR 62902 - Decision and Order: Zelideh I. Cordova-Velazco, M.D.PDF
83 FR 62861 - Settlement Agreement for Recovery of Past Response Costs: ACM Smelter and Refinery Site, Great Falls, Cascade County, MontanaPDF
83 FR 62884 - Filing of Plats of Survey; MontanaPDF
83 FR 62860 - Clean Air Act Operating Permit Program; Petition for Objection To State Operating Permit for the U.S. Department of Energy-Hanford Operations, Benton County, WashingtonPDF
83 FR 62860 - Allocations of Cross-State Air Pollution Rule Allowances From New Unit Set-Asides for 2018 Control PeriodsPDF
83 FR 62774 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Nonattainment New Source Review Requirements for 2008 8-Hour Ozone StandardPDF
83 FR 62948 - Noise Exposure Map Notice; Receipt of Noise Compatibility Program and Request for Review; Westover Airport; Chicopee and Ludlow, MassachusettsPDF
83 FR 62872 - Bacterial Risk Control Strategies for Blood Collection Establishments and Transfusion Services To Enhance the Safety and Availability of Platelets for Transfusion; Draft Guidance for Industry; AvailabilityPDF
83 FR 62947 - Notice of Intent of Waiver With Respect to Land; Prairie Du Chien Municipal Airport, Prairie Du Chien, WIPDF
83 FR 62771 - Approval and Promulgation of Implementation Plans: New York Ozone Section 185PDF
83 FR 62954 - Proposed Collection; Comment Request for Form 6252PDF
83 FR 62957 - Proposed Collection; Comment Request for Regulation ProjectPDF
83 FR 62956 - Proposed Collection; Comment Request for Form 5304-SIMPLE, Form 5305-SIMPLE, and Notice 98-4PDF
83 FR 62958 - Proposed Collection; Comment Request for Form 13013, 13013-D and, 14388PDF
83 FR 62955 - Proposed Collection; Comment Request for Form 13285-APDF
83 FR 62900 - Certain Earpiece Devices and Components Thereof; Notice of Correction Concerning Commission Determination Not To Review an Initial Determination Granting a Motion for Leave To Amend the Complaint and Notice of InvestigationPDF
83 FR 62957 - Proposed Collection; Comment Request for Notice 2007-52PDF
83 FR 62955 - Proposed Collection; Comment Request for Regulation ProjectPDF
83 FR 62881 - Agency Information Collection Activities; Alaska Beak Deformity ObservationsPDF
83 FR 62959 - Reasonable Charges for Medical Care or Services; v3.25, 2019 Calendar Year Update and National Average Administrative Prescription Drug Charge UpdatePDF
83 FR 62858 - Igiugig Village Council; Notice of Application Accepted for Filing, Soliciting Motions To Intervene and Protests, Ready for Environmental Analysis, and Soliciting Comments, Recommendations, Terms and Conditions, and Fishway Prescriptions, and Waiving the Timing Requirement for Filing Competing Development ApplicationsPDF
83 FR 62859 - Tallassee Shoals, LLC; Notice Approving Use of the Traditional Licensing ProcessPDF
83 FR 62689 - Special Conditions: Textron Aviation Inc. Model 700 Airplane; Operation Without Normal Electrical PowerPDF
83 FR 62910 - Product Change-Priority Mail Negotiated Service AgreementPDF
83 FR 62911 - Product Change-Priority Mail Negotiated Service AgreementPDF
83 FR 62871 - Proposed Information Collection Activity; Strengthening Relationship Education and Marriage Services (STREAMS) Evaluation (OMB#0970-0481)PDF
83 FR 62891 - Notice of Intent To Repatriate Cultural Items: Oakland Museum of California, Oakland, CAPDF
83 FR 62892 - Notice of Inventory Completion: University of California, Davis, Davis, CAPDF
83 FR 62889 - Notice of Inventory Completion: Department of Anthropology Museum at the University of California, Davis, Davis, CA; CorrectionPDF
83 FR 62896 - Notice of Inventory Completion: Wisconsin Historical Society, Madison, WIPDF
83 FR 62888 - Notice of Inventory Completion: Wisconsin Historical Society, Madison, WIPDF
83 FR 62895 - Notice of Inventory Completion: Wisconsin Historical Society, Madison, WIPDF
83 FR 62884 - Notice of Inventory Completion: Wisconsin Historical Society, Madison, WIPDF
83 FR 62886 - Notice of Inventory Completion: Wisconsin Historical Society, Madison, WIPDF
83 FR 62890 - Notice of Inventory Completion: Wisconsin Historical Society, Madison, WIPDF
83 FR 62885 - Notice of Inventory Completion: Office of the State Archaeologist, University of Iowa, Iowa City, IAPDF
83 FR 62893 - Notice of Inventory Completion: Department of Anthropology, Southern Methodist University, Dallas, TXPDF
83 FR 62835 - Information Collection Activity; Comment RequestPDF
83 FR 62834 - Notice of Request for Reinstatement of Approval of an Information Collection; National Management Information SystemPDF
83 FR 62735 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Re-Opening of Commercial Harvest for South Atlantic Red SnapperPDF
83 FR 62838 - Application(s) for Duty-Free Entry of Scientific InstrumentsPDF
83 FR 62838 - Certain Pasta From Italy: Final Results of the Expedited Fourth Sunset Review of the Countervailing Duty OrderPDF
83 FR 62841 - Certain Pasta From Turkey: Final Results of the Expedited Fourth Sunset Review of the Countervailing Duty OrderPDF
83 FR 62840 - Certain Pasta From Italy and Turkey: Final Results of Expedited Fourth Sunset Reviews of the Antidumping Duty OrdersPDF
83 FR 62845 - Proposed Open Access Transmission Tariff; Public Hearing and Opportunities for Public Review and CommentPDF
83 FR 62899 - Agency Information Collection Activities: Nomination and Request for Payment Form for OSMRE's National Technical Training CoursesPDF
83 FR 62898 - Agency Information Collection Activities: Exemption for Coal Extraction Incidental to the Extraction of Other MineralsPDF
83 FR 62897 - Agency Information Collection Activities: Requirements for Permits and Permit ProcessingPDF
83 FR 62849 - Fiscal Year (FY) 2020-2021 Proposed Power and Transmission Rate Adjustments Public Hearing and Opportunities for Public Review and CommentPDF
83 FR 62837 - Civil Nuclear Trade Advisory Committee: Meeting of the Civil Nuclear Trade Advisory CommitteePDF
83 FR 62876 - Merchant Marine Personnel Advisory Committee; VacanciesPDF
83 FR 62836 - United States Travel and Tourism Advisory Board: Meeting of the United States Travel and Tourism Advisory BoardPDF
83 FR 62842 - Implementation of Fish and Fish Product Import Provisions of the Marine Mammal Protection Act-Notification of Comparability FindingsPDF
83 FR 62907 - Notice of Filing of Proposed Settlement Agreement Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
83 FR 62910 - New Postal ProductPDF
83 FR 62945 - 60-Day Notice of Proposed Information Collection: Local U.S. Citizen Skills/Resources SurveyPDF
83 FR 62862 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
83 FR 62863 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
83 FR 62946 - 60-Day Notice of Proposed Information Collection: Request for Entry Into Children's Passport Issuance Alert ProgramPDF
83 FR 62864 - Rescission of FMR BulletinPDF
83 FR 62842 - Submission for OMB Review; Comment RequestPDF
83 FR 62946 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Commercial Air Tour Operator ReportsPDF
83 FR 62938 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Supplementary Material .07 to ISE Rule 722PDF
83 FR 62930 - Order Regarding Alternative Net Capital Computation for BofAML Securities, Inc.PDF
83 FR 62939 - In the Matter of the NYSE Arca, Inc.; for an Order Granting the Approval of Proposed Rule Change To List and Trade Shares of the ForceShares Daily 4X US Market Futures Long Fund and ForceShares Daily 4X US Market Futures Short Fund Under Commentary .02 to NYSE Arca Equities Rule 8.200 (SR-NYSEArca-2016-120); Request for Additional CommentPDF
83 FR 62936 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Relocate the Exchange's Pricing SchedulePDF
83 FR 62933 - Self-Regulatory Organizations; Cboe EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating To Eliminate the Liquidity Swap Component of the Discretionary Range InstructionPDF
83 FR 62901 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Space Enterprise ConsortiumPDF
83 FR 62942 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To Amend the Listed Company Manual for Acquisition Companies To Reduce the Continued Listing Standards for Public Holders From 300 to 100 and To Enable the Exchange To Exercise Discretion To Allow Acquisition Companies a Reasonable Time Period Following a Business Combination To Demonstrate Compliance With the Applicable Quantitative Listing StandardsPDF
83 FR 62942 - Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Pilot Period for the Listing of P.M.-Settled Nasdaq-100 Index Options Expiring on the Third Friday of the MonthPDF
83 FR 62901 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Countering Weapons of Mass DestructionPDF
83 FR 62900 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-National Armaments ConsortiumPDF
83 FR 62694 - Airworthiness Directives; Rolls-Royce plc Turbofan EnginesPDF
83 FR 62882 - Agency Information Collection Activities; Bird Banding and Band Recovery ReportsPDF
83 FR 62901 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Cooperative Research Group on ROS-Industrial Consortium AmericasPDF
83 FR 62794 - Fisheries of the Exclusive Economic Zone Off Alaska; Gulf of Alaska; 2019 and 2020 Harvest Specifications for GroundfishPDF
83 FR 62815 - Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands; 2019 and 2020 Harvest Specifications for GroundfishPDF
83 FR 62778 - Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Sonoyta Mud TurtlePDF
83 FR 62732 - International Fisheries; Pacific Tuna Fisheries; Fishing Restrictions for Fish Aggregating Devices in the Eastern Pacific OceanPDF
83 FR 62876 - National Institute of Diabetes and Digestive and Kidney Diseases; Cancellation of MeetingPDF
83 FR 62875 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed MeetingPDF
83 FR 62924 - American Fidelity Assurance Company, et al.PDF
83 FR 62909 - Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978PDF
83 FR 62953 - Agency Information Collection Activities: Information Collection Renewal; Comment Request; Annual Stress Test RulePDF
83 FR 62877 - Final Flood Hazard DeterminationsPDF
83 FR 62952 - Pipeline Safety: Request for Special Permit; Gulf South Pipeline Company, LPPDF
83 FR 62875 - Findings of Research MisconductPDF
83 FR 62960 - Agency Information Collection Activity Under OMB Review: VA Educational Assistance Program FeedbackPDF
83 FR 62882 - Notice of Senior Executive Service Performance Review Board AppointmentsPDF
83 FR 62711 - International Trademark Classification ChangesPDF
83 FR 62879 - Intent To Request Extension From OMB of One Current Public Collection of Information: Federal Flight Deck Officer ProgramPDF
83 FR 62879 - Intent To Request Revision From OMB of One Current Public Collection of Information: Transportation Security Officer Medical QuestionnairePDF
83 FR 62878 - Intent To Request Revision From OMB of One Current Public Collection of Information: Law Enforcement/Federal Air Marshal Service Physical and Mental Health CertificationPDF
83 FR 62877 - Extension of Agency Information Collection Activity Under OMB Review: Aviation Security Customer Satisfaction Performance Measurement Passenger SurveyPDF
83 FR 62880 - Intent To Request Extension From the Office of Management and Budget of One Current Public Collection of Information: Secure Flight ProgramPDF
83 FR 62710 - Safety Zone; Sausalito Lighted Boat Parade Fireworks Display; Richardson Bay, Sausalito, CAPDF
83 FR 62697 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 62701 - Airworthiness Directives; Pacific Aerospace Limited AirplanesPDF
83 FR 62943 - Agency Information Collection Activities: Proposed Request and Comment RequestPDF
83 FR 62690 - Airworthiness Directives; Airbus SAS AirplanesPDF
83 FR 62741 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 62738 - Airworthiness Directives; Airbus SAS AirplanesPDF
83 FR 62720 - Findings of Failure To Submit Complete State Implementation Plans Required for the 1997, 2006, and 2012 PM2.5PDF
83 FR 62716 - Revision of the Agency's Privacy Act Regulations for EPA-63PDF
83 FR 62866 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
83 FR 62867 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
83 FR 62864 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
83 FR 62856 - Town of Snowmass Village, Colorado; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To IntervenePDF
83 FR 62730 - Extension of Tolerances for Emergency Exemptions (Multiple Chemicals)PDF
83 FR 62724 - Clomazone; Pesticide TolerancesPDF
83 FR 62743 - Proposed Establishment of the Crest of the Blue Ridge Henderson County Viticultural AreaPDF
83 FR 62750 - Proposed Establishment of the West Sonoma Coast Viticultural AreaPDF
83 FR 62707 - Establishment of the Upper Hudson Viticultural AreaPDF
83 FR 62719 - Air Plan Approval; Texas; Interstate Transport Requirements for the 1997 Ozone National Ambient Air Quality StandardsPDF
83 FR 62714 - Adjustment of Cable Statutory License Royalty RatesPDF
83 FR 62736 - Airworthiness Directives; Rockwell Collins, Inc. Flight Management SystemsPDF
83 FR 62705 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
83 FR 62703 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
83 FR 62760 - Protection of Human Research SubjectsPDF
83 FR 62757 - Revision of the Agency's Privacy Act Regulations for EPA-63PDF
83 FR 62964 - United States v. Sinclair Broadcast Group, Inc., et al.; Proposed Final Judgments and Competitive Impact StatementPDF
83 FR 62998 - Implementation of the 2015 National Ambient Air Quality Standards for Ozone: Nonattainment Area State Implementation Plan RequirementsPDF

Issue

83 234 Thursday, December 6, 2018 Contents Agriculture Department, Office of the Chief Financial Officer Agriculture Department, Office of the Chief Financial Officer NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 62833-62834 2018-26496 Agriculture Agriculture Department See

Agriculture Department, Office of the Chief Financial Officer

See

Animal and Plant Health Inspection Service

See

Rural Business-Cooperative Service

Alcohol Tobacco Tax Alcohol and Tobacco Tax and Trade Bureau RULES Establishment of the Upper Hudson Viticultural Area, 62707-62710 2018-26320 PROPOSED RULES Proposed Establishment of the Crest of the Blue Ridge Henderson County Viticultural Area, 62743-62750 2018-26323 Proposed Establishment of the West Sonoma Coast Viticultural Area, 62750-62757 2018-26321 Animal Animal and Plant Health Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Management Information System, 62834-62835 2018-26434 Antitrust Division Antitrust Division NOTICES Changes Under the National Cooperative Research and Production Act: Cooperative Research Group on ROS-Industrial Consortium-Americas, 62901 2018-26391 Countering Weapons of Mass Destruction, 62901 2018-26395 National Armaments Consortium, 62900-62901 2018-26394 Space Enterprise Consortium, 62901-62902 2018-26398 Proposed Final Judgment and Competitive Impact Statement: United States v. Sinclair Broadcast Group, Inc., et al., 62964-62995 2018-26201 Bonneville Bonneville Power Administration NOTICES Proposed Open Access Transmission Tariff: Public Hearing and Opportunities for Public Review and Comment, 62845-62849 2018-26427 Proposed Power and Transmission Rate Adjustments Public Hearing Fiscal Year (FY) 2020-2021: Opportunities for Public Review and Comment, 62849-62855 2018-26422 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 62864-62869 2018-26350 2018-26351 2018-26352 Centers Medicare Centers for Medicare & Medicaid Services PROPOSED RULES Medicare Program: Changes to the Medicare Claims and Medicare Prescription Drug Coverage Determination Appeals Procedures, Correction, 62778 2018-26497 NOTICES Hearings: Reconsideration of Disapproval Washington Medicaid State Plan Amendment, 62869-62870 2018-26495 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 62870-62871 2018-26416 2018-26508 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Strengthening Relationship Education and Marriage Services Evaluation, 62871-62872 2018-26450 Civil Rights Civil Rights Commission NOTICES Meetings: Rhode Island Advisory Committee, 62836 2018-26490 Coast Guard Coast Guard RULES Safety Zones: Sausalito Lighted Boat Parade Fireworks Display; Richardson Bay, Sausalito, CA, 62710 2018-26366 NOTICES Requests for Nominations: Merchant Marine Personnel Advisory Committee, 62876 2018-26420 Commerce Commerce Department See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

Commission Interstate Commission on Interstate Child Support NOTICES Requests for Nominations: Merchant Mariner Medical Advisory Committee, 62844-62845 2018-26499 Commodity Futures Commodity Futures Trading Commission NOTICES Meetings; Sunshine Act, 62845 2018-26553 Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Annual Stress Test Rule, 62953-62954 2018-26382 Copyright Royalty Board Copyright Royalty Board RULES Adjustment of Cable Statutory License Royalty Rates, 62714-62716 2018-26275 NOTICES Distribution of Cable and Satellite Royalty Funds, 62908-62909 2018-26494 Drug Drug Enforcement Administration NOTICES Bulk Manufacturer of Controlled Substances Registration, 62902 2018-26509 Decisions and Orders: Zelideh I. Cordova-Velazco, M.D., 62902-62907 2018-26485 Energy Department Energy Department See

Bonneville Power Administration

See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; San Joaquin Valley; Findings of Failure To Submit Complete State Implementation Plans Required for the 1997, 2006, and 2012 PM2.5 NAAQS, 62720-62724 2018-26359 Texas; Interstate Transport Requirements for the 1997 Ozone National Ambient Air Quality Standards, 62719-62720 2018-26287 Extension of Tolerances for Emergency Exemptions (Multiple Chemicals), 62730-62732 2018-26346 Implementation of the 2015 National Ambient Air Quality Standards for Ozone: Nonattainment Area State Implementation Plan Requirements, 62998-63036 2018-25424 Pesticide Tolerances: Clomazone, 62724-62730 2018-26345 Privacy Act Regulations for EPA-63, 62716-62719 2018-26355 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: New York Ozone Section 185, 62771-62774 2018-26475 Pennsylvania; Nonattainment New Source Review Requirements for 2008 8-Hour Ozone Standard, 62774-62778 2018-26479 Privacy Act Regulations for EPA-63, 62757-62760 2018-26214 Protection of Human Research Subjects, 62760-62771 2018-26228 NOTICES Allocations of Cross-State Air Pollution Rule Allowances from New Unit Set-Asides for 2018 Control Periods, 62860-62861 2018-26481 Clean Air Act Operating Permit Program: Petition for Objection to State Operating Permit for the U.S. Department of Energy-Hanford Operations, Benton County, WA, 62860 2018-26482 Settlement Agreement for Recovery of Past Response Costs: ACM Smelter and Refinery Site, Great Falls, Cascade County, MT, 62861-62862 2018-26484 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus SAS Airplanes, 62690-62693 2018-26362 Pacific Aerospace Limited Airplanes, 62701-62702 2018-26364 Rolls-Royce plc Turbofan Engines, 62694-62697 2018-26393 The Boeing Company Airplanes, 62697-62700 2018-26365 Special Conditions: Textron Aviation Inc. Model 700 Airplane; Operation Without Normal Electrical Power, 62689-62690 2018-26455 Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures, 62705-62707 2018-26246 Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures, 62703-62705 2018-26244 PROPOSED RULES Airworthiness Directives: Airbus SAS Airplanes, 62738-62740 2018-26360 Rockwell Collins, Inc. Flight Management Systems, 62736-62738 2018-26253 The Boeing Company Airplanes, 62741-62743 2018-26361 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Commercial Air Tour Operator Reports, 62946-62947 2018-26406 Land Waivers: Prairie Du Chien Municipal Airport, Prairie Du Chien, WI, 62947-62948 2018-26476 Noise Exposure Maps: Westover Airport, Chicopee and Ludlow, MA, 62948-62949 2018-26478 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 62862-62864 2018-26411 2018-26412 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 62864 2018-26580 Federal Emergency Federal Emergency Management Agency NOTICES Flood Hazard Determinations, 62877 2018-26381 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Igiugig Village Council, 62858-62859 2018-26457 Combined Filings, 62857-62858 2018-26488 2018-26489 Preliminary Determinations of Qualifying Conduit Hydropower Facilities: Town of Snowmass Village, CO, 62856 2018-26349 Use of Traditional Licensing Process: Tallassee Shoals, LLC, 62859-62860 2018-26456 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: Designation of Critical Habitat for Sonoyta Mud Turtle, 62778-62794 2018-26388 Food and Drug Food and Drug Administration NOTICES Guidance: Bacterial Risk Control Strategies for Blood Collection Establishments and Transfusion Services to Enhance the Safety and Availability of Platelets for Transfusion, 62872-62873 2018-26477 Foreign Claims Foreign Claims Settlement Commission NOTICES Meetings; Sunshine Act, 62907 2018-26576 General Services General Services Administration NOTICES Rescission of Federal Management Reguation Bulletin, 62864 2018-26409 Geological Geological Survey NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Alaska Beak Deformity Observations, 62881-62882 2018-26461 Bird Banding and Band Recovery Reports, 62882 2018-26392 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

NOTICES Findings of Research Misconduct, 62875 2018-26379
Health Resources Health Resources and Services Administration NOTICES Requests for Nominations: Advisory Committee on Heritable Disorders in Newborns and Children, 62873-62874 2018-26518 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

Transportation Security Administration

Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

Land Management Bureau

See

National Park Service

See

Surface Mining Reclamation and Enforcement Office

NOTICES Senior Executive Service Performance Review Board Appointments, 62882-62884 2018-26376
Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 62954-62959 2018-26465 2018-26466 2018-26468 2018-26469 2018-26470 2018-26471 2018-26472 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Pasta From Italy and Turkey, 62840-62841 2018-26429 Certain Pasta From Italy; Final Results of the Expedited Fourth Sunset Review of the Countervailing Duty Order, 62838-62839 2018-26431 Certain Pasta From Turkey, 62841-62842 2018-26430 Applications for Duty-Free Entry of Scientific Instruments, 62838 2018-26432 Meetings: Civil Nuclear Trade Advisory Committee, 62837-62838 2018-26421 United States Travel and Tourism Advisory Board, 62836-62837 2018-26419 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Earpiece Devices and Components Thereof; Correction, 62900 2018-26467 Silicomanganese From China and Ukraine, 62900 2018-26500 Justice Department Justice Department See

Antitrust Division

See

Drug Enforcement Administration

See

Foreign Claims Settlement Commission

NOTICES Proposed Settlement Agreements: CERCLA, 62907-62908 2018-26417
Land Land Management Bureau NOTICES Plats of Surveys: Montana, 62884 2018-26483 Library Library of Congress See

Copyright Royalty Board

National Highway National Highway Traffic Safety Administration NOTICES Petition for Decision of Inconsequential Noncompliance: Cooper Tire and Rubber Co., 62949-62951 2018-26510 Michelin North America, Inc., 62951-62952 2018-26511 National Institute National Institute of Standards and Technology NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 62842 2018-26408 National Institute National Institutes of Health NOTICES Meetings: Eunice Kennedy Shriver National Institute of Child Health and Human Development, 62875-62876 2018-26385 National Institute of Diabetes and Digestive and Kidney Diseases; Cancellation, 62876 2018-26386 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Re-opening of Commercial Harvest for South Atlantic Red Snapper, 62735 2018-26433 International Fisheries: Pacific Tuna Fisheries; Fishing Restrictions for Fish Aggregating Devices in the Eastern Pacific Ocean, 62732-62735 2018-26387 PROPOSED RULES Fisheries of the Exclusive Economic Zone Off Alaska: Bering Sea and Aleutian Islands; 2019 and 2020 Harvest Specifications for Groundfish, 62815-62832 2018-26389 Gulf of Alaska; 2019 and 2020 Harvest Specifications for Groundfish, 62794-62814 2018-26390 NOTICES Implementation of Fish and Fish Product Import Provisions of the Marine Mammal Protection Act—Notification of Comparability Findings, 62842-62844 2018-26418 National Park National Park Service NOTICES Inventory Completions: Department of Anthropology Museum at the University of California, Davis, Davis, CA; Correction, 62889-62890 2018-26444 Department of Anthropology, Southern Methodist University, Dallas, TX, 62893-62895 2018-26436 Office of the State Archaeologist, University of Iowa, Iowa City, IA, 62885-62886 2018-26437 University of California, Davis, Davis, CA, 62892-62893 2018-26445 Wisconsin Historical Society, Madison, WI, 62884-62891, 62895-62897 2018-26438 2018-26439 2018-26440 2018-26441 2018-26442 2018-26443 Repatriation of Cultural Items: Oakland Museum of California, Oakland, CA, 62891-62892 2018-26446 National Science National Science Foundation NOTICES Permit Applications Received Under the Antarctic Conservation Act, 62909-62910 2018-26383 Neighborhood Neighborhood Reinvestment Corporation NOTICES Meetings; Sunshine Act, 62910 2018-26585 Patent Patent and Trademark Office RULES International Trademark Classification Changes, 62711-62714 2018-26373 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Request for Special Permit: Gulf South Pipeline Co., LP; Pipeline Safety, 62952-62953 2018-26380 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 62910 2018-26415 Postal Service Postal Service NOTICES Product Changes: Priority Mail Negotiated Service Agreement, 62910-62911 2018-26451 2018-26452 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Announcing the Death of George Herbert Walker Bush (Proc. 9830), 63037-63040 2018-26612 Rural Business Rural Business-Cooperative Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 62835-62836 2018-26435 Securities Securities and Exchange Commission NOTICES Applications: American Fidelity Assurance Co., et al., 62924-62928 2018-26384 Deregistration Under the Investment Company Act of 1940, 62932-62933 2018-26487 Long-Term Stock Exchange, Inc., 62941 2018-26517 Orders: Alternative Net Capital Computation for BofAML Securities, Inc., 62930 2018-26404 Self-Regulatory Organizations; Proposed Rule Changes: Cboe BZX Exchange, Inc., 62911-62913 2018-26513 Cboe EDGA Exchange, Inc., 62933-62936 2018-26399 Cboe EDGX Exchange, Inc., 62913-62915, 62928-62930 2018-26512 2018-26516 Cboe Exchange, Inc., 62930-62932 2018-26515 Nasdaq ISE, LLC, 62938-62939 2018-26405 Nasdaq PHLX LLC, 62942-62943 2018-26396 New York Stock Exchange, LLC, 62942 2018-26397 NYSE Arca, Inc., 62915-62924, 62939-62941 2018-26403 2018-26514 The Nasdaq Stock Market LLC, 62936-62938 2018-26400 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 62943-62945 2018-26363 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Local U.S. Citizen Skills/Resources Survey, 62945-62946 2018-26414 Request for Entry Into Children's Passport Issuance Alert Program, 62946 2018-26410 Surface Mining Surface Mining Reclamation and Enforcement Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Exemption for Coal Extraction Incidental to the Extraction of Other Minerals, 62898-62899 2018-26425 Nomination and Request for Payment Form for Office of Surface Mining Reclamation and Enforcement's National Technical Training Courses, 62899 2018-26426 Requirements for Permits and Permit Processing, 62897-62898 2018-26424 Transportation Department Transportation Department See

Federal Aviation Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

Security Transportation Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Aviation Security Customer Satisfaction Performance Measurement Passenger Survey, 62877-62878 2018-26369 Federal Flight Deck Officer Program, 62879-62880 2018-26372 Law Enforcement/Federal Air Marshal Service Physical and Mental Health Certification, 62878-62879 2018-26370 Secure Flight Program, 62880-62881 2018-26368 Transportation Security Officer Medical Questionnaire, 62879 2018-26371 Treasury Treasury Department See

Alcohol and Tobacco Tax and Trade Bureau

See

Comptroller of the Currency

See

Internal Revenue Service

NOTICES Survey of U.S. Ownership of Foreign Securities as of December 31, 2018, 62959 2018-26491
Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: VA Educational Assistance Program Feedback, 62960-62961 2018-26377 Reasonable Charges for Medical Care or Services; v3.25, 2019 Calendar Year Update and National Average Administrative Prescription Drug Charge Update, 62959-62960 2018-26459 Separate Parts In This Issue Part II Justice Department, Antitrust Division, 62964-62995 2018-26201 Part III Environmental Protection Agency, 62998-63036 2018-25424 Part IV Presidential Documents, 63037-63040 2018-26612 Reader Aids

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

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83 234 Thursday, December 6, 2018 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2018-0477; Special Conditions No. 25-738-SC] Special Conditions: Textron Aviation Inc. Model 700 Airplane; Operation Without Normal Electrical Power AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Textron Aviation Inc. (Textron) Model 700 airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. These design features are electrical and electronic systems that perform critical functions, the loss of which could be catastrophic to the airplane. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on Textron on December 5, 2018. We must receive your comments by January 22, 2019.

ADDRESSES:

Send comments identified by docket number FAA-2018-0477 using any of the following methods:

Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Fax: Fax comments to Docket Operations at 202-493-2251.

Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket website, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478).

Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Stephen Slotte, FAA, Airplane and Flight Crew Interface Section, AIR-671, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, 2200 S 216th St., Des Moines, Washington 98198; telephone and fax 206-231-3163; email [email protected]

SUPPLEMENTARY INFORMATION:

The substance of these special conditions previously has been published in the Federal Register for public comment. These special conditions have been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

Comments Invited

The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to prior opportunities for comment described above. We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Background

On November 20, 2014, Textron applied for a type certificate for their new Model 700 airplane. The Model 700 airplane is a turbofan-powered executive-jet airplane with seating for 2 crewmembers and 12 passengers. This airplane will have a maximum takeoff weight of 39,500 pounds.

Type Certification Basis

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Textron must show that the Model 700 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-139, 25-141, and 25-143.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Textron Model 700 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Textron Model 700 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).

Novel or Unusual Design Features

The Textron Model 700 airplane will incorporate the following novel or unusual design feature: A fly-by-wire rudder-control system that requires a continuous source of electrical power to maintain an operable rudder flight-control system. The loss of this system may result in loss of flight control and may be catastrophic to the airplane.

Discussion

The Textron Model 700 airplane has a fly-by-wire rudder-control system that requires a continuous source of electrical power to maintain an operable flight-control system. Section 25.1351(d), operation without normal electrical power, requires safe operation in visual flight rule (VFR) conditions for at least 5 minutes after loss of normal electrical power, excluding the battery. This rule is structured around traditional designs that use mechanical control cables and linkages for flight control. These manual controls allow the crew to maintain aerodynamic control of the airplane for an indefinite time after loss of all electrical power. Under these conditions, a mechanical flight-control system provides the crew with the ability to fly the airplane while attempting to identify the cause of the electrical failure, restart engine(s) if necessary, and attempt to re-establish some of the electrical-power-generation capability.

A critical assumption in § 25.1351(d) is that the airplane is in VFR conditions at the time of an electrical failure. This is not a valid assumption in today's airline operating environment, where airplanes fly much of the time in instrument-meteorological conditions on air-traffic-control-defined flight paths. Another assumption in the existing rule is that the loss of all normal electrical power is the result of the loss of all engines. The 5-minute period in the rule is to allow at least one engine to be restarted, following an all-engines power loss, to continue the flight to a safe landing. However, service experience on airplanes with similar electrical-power-system architecture as the Textron Model 700 airplane has shown that at least the temporary loss of all electrical power for causes other than all-engine failure is not extremely improbable.

To maintain the same level of safety envisioned by the existing rule with traditional mechanical flight controls, the Textron Model 700 airplane design must not be time-limited in its operation under all reasonably foreseeable conditions, including loss of all normal sources of engine or auxiliary power unit (APU)-generated electrical power. Textron must demonstrate that the airplane can maintain safe flight and landing (including rollout and brake control through full stop) with the use of its emergency/alternate electrical-power systems. These electrical-power systems, or the minimum restorable electrical-power sources, must be able to power loads that are essential for continued safe flight and landing, including those required for the maximum length of approved flight diversion.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by existing airworthiness standards.

Applicability

As discussed above, these special conditions are applicable to the Textron Model 700 airplane. Should Textron apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

Authority Citation

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Textron Model 700 airplanes.

In lieu of 14 CFR 25.1351(d), the following special condition applies:

Textron must show, by test or combination of test and analysis that the airplane is capable of continued safe flight and landing with all normal sources of engine- and APU-generated electrical power inoperative (electrical power sources excluding the battery and any other standby electrical sources). The airplane operation should be considered at the critical phase of flight, and should include the ability to restart the engines and maintain flight for the maximum diversion-time capability being certified.

Issued in Des Moines, Washington, on November 30, 2018. Paul Siegmund, Acting Manager, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service.
[FR Doc. 2018-26455 Filed 12-4-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0512; Product Identifier 2017-NM-170-AD; Amendment 39-19513; AD 2018-25-02] RIN 2120-AA64 Airworthiness Directives; Airbus SAS Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Airbus SAS Model A318, A319, A320, and A321 series airplanes. This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the principal structural elements and certain life-limited parts are subject to widespread fatigue damage (WFD). This AD requires revising the existing maintenance or inspection program to incorporate new or more restrictive airworthiness limitations. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective January 10, 2019.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of January 10, 2019.

ADDRESSES:

For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EIAS, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0512.

Examining the AD Docket

You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0512; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223.

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A318, A319, A320 and A321 series airplanes. The NPRM published in the Federal Register on June 14, 2018 (83 FR 27724). The NPRM was prompted by an evaluation by the DAH indicating that the principal structural elements and certain life-limited parts are subject to WFD. The NPRM proposed to require revising the existing maintenance or inspection program to incorporate new or more restrictive airworthiness limitations.

We are issuing this AD to address prevent fatigue cracking, accidental damage, or corrosion in principal structural elements, and WFD, 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 Airworthiness Directive 2017-0231, dated November 21, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A318, A319, A320 and A321 series airplanes. The MCAI states:

The airworthiness limitations for the A320 family aeroplanes are currently defined and published in the Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) document(s). The Damage Tolerant Airworthiness Limitation Items are published in ALS Part 2, approved by EASA. The instructions contained in the ALS Part 2 have been identified as mandatory actions for continued airworthiness.

Failure to comply with these instructions could result in an unsafe condition.

Previously, EASA issued AD 2016-0239 [which corresponds to FAA AD 2017-22-03, Amendment 39-19083 (82 FR 49091, October 24, 2017) (“AD 2017-22-03”)] to require accomplishment of all maintenance tasks as described in ALS Part 2 at Revision 05, and [EASA] AD 2015-0038 (later revised) [which corresponds to FAA AD 2016-09-06, Amendment 39-18504 (81 FR 26113, May 2, 2016) (“AD 2016-09-06”)] to require the implementation of reduced thresholds and intervals for the detailed inspection of the forward engine mount on both right hand and left hand sides of aeroplanes equipped with CFM56-5A/5B engines, as specified in the ALS task 712111-01.

Since those [EASA] ADs were issued, Airbus published Revision 06 of the ALS Part 2, and variations up to 6.3, including new and/or more restrictive items, and new A320 family models were certified and added to the Applicability of the ALS. The ALS Part 2 Revision 06 also includes the reduced threshold and intervals required by EASA AD 2015-0038R1.

For the reason described above, this [EASA] AD retains the requirements of EASA AD 2016-0239 and EASA AD 2015-0038R1, which are superseded, requires accomplishment of all maintenance tasks as described in the ALS Part 2 Revision 06, and ALS Part 2 variations 6.1, 6.2 and 6.3 (hereafter collectively referred to as “the ALS” in this [EASA] AD), and maintains specific compliance times for ALS task 572021-01-1 (Wide Spread Fatigue Damage related).

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-2018-0512.

Comments

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.

Request To Use the Latest Service Information

Lufthansa Technik requested that we use the latest service information in the NPRM. Lufthansa Technik stated that Airbus issued A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 07, dated June 13, 2018, which is the latest revision of the document.

We disagree with the commenter's request. We, along with the EASA, have not determined that Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 07, dated June 13, 2018, is required for airplanes that do not include Revision 07 as part of the type design. In the future, should we determine that Revision 07 is required, we would consider issuing additional rulemaking at that time. However, operators may request approval to incorporate Revision 07 as an alternative method of compliance (AMOC) under the provisions of paragraph (j) of this AD. We have not changed this AD in this regard.

Change to Language for Previous Approved AMOCs

We have revised paragraph (j)(1)(ii) of this AD to state that AMOCs previously approved for AD 2015-05-02, Amendment 39-18112 (80 FR 15152, March 23, 2015) (“AD 2015-05-02”), as applicable to ALS Part 2, are approved as AMOCs for the corresponding provisions of this AD. In paragraphs (j)(1)(ii)(A), (j)(1)(ii)(B), (j)(1)(ii)(C), and (j)(1)(ii)(D) of the proposed AD, we had identified specific ALS documents. However, any previously approved AMOC for AD 2015-05-02, as applicable to ALS Part 2, is acceptable for the corresponding requirements of this AD.

Removal of Terminating Action for AD 2016-09-06

We have removed paragraph (i)(1) of the proposed AD, which specified that accomplishing the action required by paragraph (g) of this AD terminates the requirements of paragraphs (g) and (j) of AD 2016-09-06. However, we have determined that the actions required by this AD, do not terminate the requirements specified in AD 2016-09-06. The actions specified in paragraph (g) of AD 2016-09-06 were not incorporated into Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 06, dated April 10, 2017, which is specified in paragraph (g) of this AD. We have coordinated this issue with EASA.

Conclusion

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 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.

Related Service Information Under 1 CFR Part 51

Airbus has issued A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 06, dated April 10, 2017. This service information describes damage tolerant airworthiness limitations.

Airbus has also issued the following variations to A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 06, dated April 10, 2017.

• A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.1, dated May 18, 2017. The service information describes ALI tasks applicable to certain Model A320-200 and A321-200 airplane configurations.

• A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.2, dated May 24, 2017. This service information describes ALI tasks applicable to Model A321-271N and -272N airplanes.

• A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.3, dated October 24, 2017. This service information describes ALI tasks associated with door stops for certain Model A318, A319, A320, and A321 series airplanes.

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

Costs of Compliance

We estimate that this AD affects 1,180 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).

Authority for This Rulemaking

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

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

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

Regulatory Findings

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

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

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

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

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

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-25-02 Airbus SAS: Amendment 39-19513; Docket No. FAA-2018-0512; Product Identifier 2017-NM-170-AD. (a) Effective Date

This AD is effective January 10, 2019.

(b) Affected ADs

This AD affects AD 2017-22-03, Amendment 39-19083 (82 FR 49091, October 24, 2017) (“AD 2017-22-03”).

(c) Applicability

This AD applies to all Airbus SAS airplanes identified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD; certificated in any category; with an original certificate of airworthiness or original export certificate of airworthiness issued on or before October 24, 2017.

(1) Model A318-111, -112, -121, and -122 airplanes.

(2) Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.

(3) Model A320-211, -212, -214, -216, -231, -232, -233, -251N, and -271N airplanes.

(4) Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, -271N, and -272N airplanes.

(d) Subject

Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.

(e) Reason

This AD was prompted by an evaluation by the design approval holder, which indicates that principal structural elements and certain life-limited parts are subject to widespread fatigue damage (WFD). We are issuing this AD to prevent fatigue cracking, accidental damage, or corrosion in principal structural elements, and WFD, which could result in reduced structural integrity of the airplane.

(f) Compliance

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

(g) New Maintenance or Inspection Program Revision

(1) Within 90 days after the effective date of this AD, revise the existing maintenance or inspection program, as applicable, to incorporate the airworthiness limitations (ALIs) specified in Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 06, dated April 10, 2017; and Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.3, dated October 24, 2017. Except for ALIs identified in paragraphs (g)(2) and (g)(3) of this AD, the initial compliance time for accomplishing the actions is at the applicable time identified in the ALIs specified in Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 06, dated April 10, 2017, and Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.3, dated October 24, 2017; or within 90 days after the effective date of this AD; whichever occurs later, without exceeding the inspection intervals in the ALIs required by paragraph (i) of AD 2017-22-03.

(2) For airplanes identified in Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.1, dated May 18, 2017: Concurrently with the revision required by paragraph (g)(1) of this AD, revise the existing maintenance or inspection program, as applicable, to incorporate the ALIs specified in Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.1, dated May 18, 2017. The initial compliance time for accomplishing the actions is at the applicable time identified in the ALIs specified in Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.1, dated May 18, 2017; or within 90 days after the effective date of this AD; whichever occurs later, without exceeding the inspection intervals in the ALIs required by paragraph (i) of AD 2017-22-03.

(3) For airplanes identified in Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.2, dated May 24, 2017: Concurrently with the revision required by paragraph (g)(1) of this AD, revise the existing maintenance or inspection program, as applicable, to incorporate the ALIs specified in Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.2, dated May 24, 2017. The initial compliance time for accomplishing the actions is at the applicable time identified in the ALIs specified in Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.2, dated May 24, 2017; or within 90 days after the effective date of this AD; whichever occurs later, without exceeding the inspection intervals in the ALIs required by paragraph (i) of AD 2017-22-03.

(h) No Alternative Actions or Intervals

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

(i) Terminating Action for AD 2017-22-03

Accomplishing the applicable actions required by paragraph (g) of this AD terminates the requirements of paragraphs (g)(2) and (i) of AD 2017-22-03.

(j) Other FAA AD Provisions

The following provisions also apply to this AD:

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

(i) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

(ii) AMOCs previously approved for AD 2015-05-02, Amendment 39-18112 (80 FR 15152, March 23, 2015), as applicable to Airworthiness Limitations Section (ALS) Part 2, are approved as AMOCs for the corresponding provisions of this AD.

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

(k) Related Information

(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0231, dated November 21, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0512.

(2) For more information about this AD, contact Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223.

(l) Material Incorporated by Reference

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

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

(i) Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 06, dated April 10, 2017.

(ii) Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.1, dated May 18, 2017.

(iii) Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.2, dated May 24, 2017.

(iv) Airbus A318/A319/A320/A321 Airworthiness Limitation Section Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Variation 6.3, dated October 24, 2017.

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

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

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

Issued in Des Moines, Washington, on November 23, 2018. John P. Piccola, Acting Director, System Oversight Division, Aircraft Certification Service.
[FR Doc. 2018-26362 Filed 12-4-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0871; Product Identifier 2018-NE-24-AD; Amendment 39-19511; AD 2018-25-01] RIN 2120-AA64 Airworthiness Directives; Rolls-Royce plc Turbofan Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule; request for comments.

SUMMARY:

We are superseding airworthiness directive (AD) 2018-13-07 for all Rolls-Royce plc (RR) Trent 1000-A, Trent 1000-C, Trent 1000-D, Trent 1000-E, Trent 1000-G, and Trent 1000-H turbofan engine models. AD 2018-13-07 required initial inspections of the intermediate-pressure compressor (IPC) stage 1 rotor blades, IPC stage 2 rotor blades, and IPC shaft stage 2 dovetail posts, and removing any cracked parts from service. This AD requires initial inspections and adds repetitive inspections of the IPC stage 1 rotor blades, IPC stage 2 rotor blades, and IPC shaft stage 2 dovetail posts, and removing any cracked parts from service. This AD was prompted by the manufacturer determining the need for repetitive inspections of the IPC stage 1 rotor blades, IPC stage 2 rotor blades, and IPC shaft stage 2 dovetail posts. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective December 21, 2018.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 21, 2018.

We must receive any comments on this AD by January 22, 2019.

ADDRESSES:

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

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

Fax: 202-493-2251.

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

Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

For service information identified in this final rule, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE24 8BJ; phone: 011-44-1332-242424; fax: 011-44-1332-249936; email: [email protected]; internet: https://customers.rolls-royce.com/public/rollsroycecare. You may view this service information at the FAA, Engine & Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0871.

Examining the AD Docket

You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0871; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the mandatory continuing airworthiness information, regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is listed above. Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT:

Kevin M. Clark, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7088; fax: 781-238-7199; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued AD 2018-13-07, Amendment 39-19319 (83 FR 34758, July 23, 2018), (“AD 2018-13-07”), for all RR Trent 1000-A, Trent 1000-C, Trent 1000-D, Trent 1000-E, Trent 1000-G, and Trent 1000-H turbofan engine models. AD 2018-13-07 required inspecting the IPC stage 1 rotor blades, IPC stage 2 rotor blades, and IPC shaft stage 2 dovetail posts, and removing any cracked parts from service. AD 2018-13-07 resulted from crack findings on the IPC rotor blades and IPC shaft stage 2 dovetail posts, which could lead to rotor blade separations resulting in engine failures. We issued AD 2018-13-07 to prevent failure of the IPC, which could result in failure of one or more engines, loss of thrust control, and loss of the airplane.

Actions Since AD 2018-13-07 Was Issued

Since we issued AD 2018-13-07, the manufacturer determined the need for repetitive inspections of the IPC stage 1 rotor blades, IPC stage 2 rotor blades, and IPC shaft stage 2 dovetail posts. Also, since we issued AD 2018-13-07, the European Aviation Safety Agency (EASA) issued AD 2018-0167R2, dated October 16, 2018, which requires initial and repetitive inspections of the IPC stage 1 rotor blades, IPC stage 2 rotor blades, and IPC shaft stage 2 dovetail posts. We are issuing this AD to address the unsafe condition on these products.

Related Service Information Under 1 CFR Part 51

We reviewed RR Alert Non-Modification Service Bulletin (NMSB) Trent 1000 72-AK130, Revision 2, dated July 26, 2018, and RR Alert NMSB Trent 1000 72-K132, dated June 29, 2018. RR Alert NMSB Trent 1000 72-AK130 describes procedures for performing initial and repetitive inspections of the IPC stage 1 rotor blades, IPC stage 2 rotor blades, and IPC shaft stage 2 dovetail posts, and lists engine serial numbers. RR Alert NMSB Trent 1000 72-K132, describes procedures for replacement of the IPC stage 1 rotor blades, IPC stage 2 rotor blades, and the IP compressor drum during refurbishment. 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.

Other Related Service Information

We reviewed RR NMSB Trent 1000 72-K099, Initial Issue, dated June 11, 2018; RR NMSB Trent 1000 72-K099, Revision 1, dated July 3, 2018; RR NMSB Trent 1000 72-K100, Initial Issue, dated June 11, 2018; RR NMSB Trent 1000 72-K129, Initial Issue, dated June 11, 2018; and RR NMSB Trent 1000 72-K129, Revision 1, dated July 2, 2018. RR NMSB Trent 1000 72-K099, Initial Issue, and RR NMSB Trent 1000 72-K099, Revision 1, describe procedure for an ultrasonic inspection of the IPC stage 1 rotor blades. RR NMSB Trent 1000 72-K100 Initial Issue describes procedures for a visual borescope inspection of the IPC stage 2 rotor blades and IPC shaft stage 2 dovetail posts. RR NMSB Trent 1000 72-K129, Initial Issue, and RR NMSB Trent 1000 72-K129, Revision 1, describe procedures for an ultrasonic inspection of the IPC stage 2 rotor blades.

FAA's Determination

This product has been approved by 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 and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

AD Requirements

This AD requires initial and repetitive inspections of the IPC stage 1 rotor blades, IPC stage 2 rotor blades, and IPC shaft stage 2 dovetail posts, and removing any cracked parts from service.

Differences Between This AD and the MCAI or Service Information

This AD allows inspections of any affected IPC part to be completed within 15 days of the effective date of this AD. EASA AD 2018-0167R2, dated October 16, 2018, and RR Alert NMSB Trent 1000 72-AK130, Revision 2, dated July 26, 2018, allow certain affected IPC parts to be completed within 45 days of the effective date of EASA AD 2018-0167R1. We expect most operators to have already complied with EASA AD and find that completing the inspections within 15 days of the effective date of this AD provides an appropriate level of safety.

Interim Action

We consider this AD interim action. The manufacturer is still reviewing this unsafe condition and may develop follow-on actions.

FAA's Justification and Determination of the Effective Date

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

Comments Invited

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-2018-0871 and product identifier 2018-NE-24-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.

Costs of Compliance

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

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspect IPC blades and dovetail post 20 work-hours × $85 per hour = $1,700 $0 $1,700 $0

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

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replace IPC Stage 1 Rotor blade 0 work-hours × $85 per hour = $0 $1,528 $1,528 Replace IPC Stage 2 Rotor blade 0 work-hours × $85 per hour = $0 993 993 Replace IPC 1-8 drum 0 work-hours × $85 per hour = $0 1,365,219 1,365,219
    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2018-13-07, Amendment 39-19319 (83 FR 34758, July 23, 2018), and adding the following new AD: 2018-25-01 Rolls-Royce plc: Amendment 39-19511; Docket No. FAA-2018-0871; Product Identifier 2018-NE-24-AD. (a) Effective Date

    This AD is effective December 21, 2018.

    (b) Affected ADs

    This AD replaces AD 2018-13-07, Amendment 39-19319 (83 FR 34758, July 23, 2018).

    (c) Applicability

    This AD applies to all Rolls Royce plc (RR) Trent 1000-A, Trent 1000-C, Trent 1000-D, Trent 1000-E, Trent 1000-G, and Trent 1000-H turbofan engine models.

    (d) Subject

    Joint Aircraft System Component (JASC) Code 7230, Turbine Engine Compressor Section.

    (e) Unsafe Condition

    This AD was prompted by reports of intermediate-pressure compressor (IPC) rotor blade cracks, which could lead to rotor blade separations resulting in engine failures. We are issuing this AD to prevent failure of the IPC. The unsafe condition, if not addressed, could result in failure of one or more engines, loss of thrust control, and loss of the airplane.

    (f) Compliance

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

    (g) Required Actions

    (1) Within 15 days of the effective date of this AD, or within the compliance times specified in Table 1 of RR Alert Non-Modification Service Bulletin (NMSB) Trent 1000 72-AK130, Revision 2, dated July 26, 2018, whichever occurs later, perform on-wing inspection of the IPC stage 1 rotor blades in accordance with paragraph 3.A.(1) of RR Alert NMSB Trent 1000 72-AK130.

    (2) Repeat the on-wing inspection of the IPC stage 1 rotor blades in accordance with paragraph 3.A.(1) of RR Alert NMSB Trent 1000 72-AK130, Revision 2, dated July 26, 2018, and within the compliance times specified in Table 1 of that NMSB.

    (3) Within 15 days of the effective date of this AD, or within the compliance times specified in Table 1 of RR Alert NMSB Trent 1000 72-AK130 Revision 2, dated July 26, 2018, whichever occurs later, perform on-wing inspection of the IPC stage 2 rotor blades and IPC shaft stage 2 dovetail posts in accordance with paragraph 3.B.(1) and 3.C.(1) of RR Alert NMSB Trent 1000 72-AK130.

    (4) Repeat the on-wing inspection of the IPC stage 2 rotor blades and IPC shaft stage 2 dovetail posts in accordance with paragraphs 3.B.(1) and 3.C.(1) of RR Alert NMSB Trent 1000 72-AK130, Revision 2, dated July 26, 2018, and within the compliance times specified in Table 1 of RR Alert NMSB Trent 1000 72-AK130.

    (5) For the on-wing inspection required by paragraphs (g)(1) through (4) of this AD, provided the stated thresholds and intervals are not exceeded, you may substitute:

    (i) An in-shop inspection of an engine or module performed in accordance with the instructions of paragraphs 3.A.2, 3.B.2, and 3.C.2 of the RR Alert NMSB Trent 1000 72-AK130, Revision 2, dated July 26, 2018; or

    (ii) an in-shop piece part inspection during refurbishment in accordance with the Accomplishment Instructions, paragraphs 3.B.(2)(f)(vi), 3.B.(2)(g)(v), and 3.B.(3)(d)(iii) of RR Trent 1000 NMSB 72-K132, dated June 29, 2018.

    (6) If any IPC stage 1 rotor blade, IPC stage 2 rotor blade, or an IPC shaft stage 2 dovetail post is found cracked during any inspection required by this AD, remove the part from service and replace the part with a part eligible for installation before further flight.

    (h) Inspection After Operation Under Asymmetric Power

    As of the effective date of this AD, before the next flight after each occurrence where engine operation in asymmetric power conditions was sustained for more than 30 minutes at less than 25,000 feet, either resulting from engine power reduction, or from engine in-flight shut-down (IFSD), inspect the IPC stage 1 rotor blades, stage 2 rotor blades and IPC shaft stage 2 dovetail posts in accordance with the paragraphs 3.A.(1), 3.B.(1), and 3.C.(1) of the RR Alert NMSB Trent1000 72-AK130, Revision 2, dated July 26, 2018 on the engine that did not experience the power reduction or IFSD installed on the airplane.

    (i) Credit for Previous Actions

    You may take credit for the inspections required by paragraph (g)(1) and (3) of this AD if you performed these inspections before the effective date of this AD using RR Alert NMSB Trent 1000 72-AK130, Revision 1, dated June 29, 2018, or RR Alert NMSB Trent 1000 72-AK130, Initial Issue, dated June 11, 2018.

    (j) Special Flight Permits

    (1) Special flight permits, as described in Section 21.197 and Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199), are subject to the requirements of paragraph (k)(1)(i) of this AD.

    (i) Operators who are prohibited from further flight due to an IPC stage 1 rotor blade, IPC stage 2 rotor blade, or an IPC shaft stage 2 dovetail post being found cracked, may perform a one-time non-revenue ferry flight to a location where the engine can be removed from service. This ferry flight must be performed without passengers, involve non-extended operations (ETOPS), and consume no more than three flight cycles.

    (ii) [Reserved]

    (2) [Reserved]

    (k) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (l)(1) of this AD. You may email your request to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (l) Related Information

    (1) For more information about this AD, contact Kevin M. Clark, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7088; fax: 781-238-7199; email: [email protected]

    (2) Refer to European Aviation Safety Agency (EASA) AD 2018-0167R2, dated October 16, 2018, for more information. You may examine the EASA AD in the AD docket on the internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2018-0871.

    (m) Material Incorporated by Reference

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

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

    (i) Rolls-Royce plc (RR) Alert Non-Modification Service Bulletin (NMSB) Trent 1000 72-AK130, Revision 2, dated July 26, 2018.

    (ii) RR Alert NMSB Trent 1000 72-K132, dated June 29, 2018.

    (3) For RR service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE24 8BJ; phone: 011-44-1332-242424; fax: 011-44-1332-249936; email: [email protected]; internet: https://customers.rolls-royce.com/public/rollsroycecare.

    (4) You may view this service information at FAA, Engine & Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759.

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

    Issued in Burlington, Massachusetts, on November 28, 2018. Robert J. Ganley, Manager, Engine & Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-26393 Filed 12-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0960; Product Identifier 2018-NM-151-AD; Amendment 39-19512; AD 2018-23-51] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; request for comments.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 737-8 and -9 airplanes. This emergency AD was sent previously to all known U.S. owners and operators of these airplanes. This AD requires revising certificate limitations and operating procedures of the airplane flight manual (AFM) to provide the flight crew with runaway horizontal stabilizer trim procedures to follow under certain conditions. This AD was prompted by analysis performed by the manufacturer showing that if an erroneously high single angle of attack (AOA) sensor input is received by the flight control system, there is a potential for repeated nose-down trim commands of the horizontal stabilizer. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective December 21, 2018 to all persons except those persons to whom it was made immediately effective by Emergency AD 2018-23-51, issued on November 7, 2018, which contained the requirements of this amendment.

    We must receive comments on this AD by January 22, 2019.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0960; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Douglas Tsuji, Senior Aerospace Engineer, Systems and Equipment Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3548; email: [email protected].

    SUPPLEMENTARY INFORMATION: Discussion

    On November 7, 2018, we issued Emergency AD 2018-23-51, which requires revising certificate limitations and operating procedures of the AFM to provide the flight crew with runaway horizontal stabilizer trim procedures to follow under certain conditions. This emergency AD was sent previously to all known U.S. owners and operators of these airplanes. This action was prompted by analysis performed by the manufacturer showing that if an erroneously high single AOA sensor input is received by the flight control system, there is a potential for repeated nose-down trim commands of the horizontal stabilizer. This condition, if not addressed, could cause the flight crew to have difficulty controlling the airplane, and lead to excessive nose-down attitude, significant altitude loss, and possible impact with terrain.

    FAA's Determination

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

    AD Requirements

    This AD requires revising certificate limitations and operating procedures of the AFM to provide the flight crew with runaway horizontal stabilizer trim procedures to follow under certain conditions.

    Interim Action

    We consider this AD interim action. If final action is later identified, we might consider further rulemaking then.

    FAA's Determination of the Effective Date

    An unsafe condition exists that requires the immediate adoption of Emergency AD 2018-23-51, issued on November 7, 2018, to all known U.S. owners and operators of these airplanes. The FAA found that the risk to the flying public justified waiving notice and comment prior to adoption of this rule because an erroneously high single AOA sensor input received by the flight control system can result in a potential for repeated nose-down trim commands of the horizontal stabilizer, which could cause the flight crew to have difficulty controlling the airplane, and lead to excessive nose-down attitude, significant altitude loss, and possible impact with terrain. These conditions still exist and the AD is hereby published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective to all persons. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reason(s) stated above, we find that good cause exists for making this amendment effective in less than 30 days.

    Comments Invited

    This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. 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-2018-0960 and Product Identifier 2018-NM-151-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.

    Costs of Compliance

    We estimate that this AD affects 45 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs for Required Actions Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Revising the AFM 1 work-hour × $85 per hour = $85 $0 $85 $3,825
    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-23-51 The Boeing Company: Amendment 39-19512; Docket No. FAA-2018-0960; Product Identifier 2018-NM-151-AD. (a) Effective Date

    This AD is effective December 21, 2018 to all persons except those persons to whom it was made immediately effective by Emergency AD 2018-23-51, issued on November 7, 2018, which contained the requirements of this amendment.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model 737-8 and -9 airplanes, certificated in any category.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by analysis performed by the manufacturer showing that if an erroneously high single angle of attack (AOA) sensor input is received by the flight control system, there is a potential for repeated nose-down trim commands of the horizontal stabilizer. We are issuing this AD to address this potential resulting nose-down trim, which could cause the flight crew to have difficulty controlling the airplane, and lead to excessive nose-down attitude, significant altitude loss, and possible impact with terrain.

    (f) Compliance

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

    (g) Revision of Airplane Flight Manual (AFM): Certificate Limitations

    Within 3 days after the effective date of this AD, revise the Certificate Limitations chapter of the applicable AFM to include the information in figure 1 to paragraph (g) of this AD.

    ER06DE18.000 (h) AFM Revision: Operating Procedures

    Within 3 days after the effective date of this AD, revise the Operating Procedures chapter of the applicable AFM to include the information in figure 2 to paragraph (h) of this AD.

    ER06DE18.001 (i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (j) Related Information

    For more information about this AD, contact Douglas Tsuji, Senior Aerospace Engineer, Systems and Equipment Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3548; email: [email protected]

    (k) Material Incorporated by Reference

    None.

    Issued in Des Moines, Washington, on November 21, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-26365 Filed 12-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0371; Product Identifier 2018-CE-005-AD; Amendment 39-19504; AD 2018-23-16] RIN 2120-AA64 Airworthiness Directives; Pacific Aerospace Limited Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for Pacific Aerospace Limited Model 750XL airplanes. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as insufficient clearance between the pitot tubes and the primary support at the flame arrester intersection. We are issuing this AD to require actions to address the unsafe condition on these products.

    DATES:

    This AD is effective January 10, 2019.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of January 10, 2019.

    ADDRESSES:

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0371; or in person at Docket Operations, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    For service information identified in this AD, contact Pacific Aerospace Limited, Airport Road, Hamilton, Private Bag 3027, Hamilton 3240, New Zealand; phone: +64 7843 6144; fax: +64 843 6134; email: [email protected]; internet: www.aerospace.co.nz. You may view this referenced service information at the FAA, Policy and Innovation Division, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. It is also available on the internet at http://www.regulations.gov by searching for Docket No. FAA-2018-0371.

    FOR FURTHER INFORMATION CONTACT:

    Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Standards Branch, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4144; fax: (816) 329-4090; email: [email protected]

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Pacific Aerospace Limited Model 750XL airplanes. The NPRM was published in the Federal Register on May 11, 2018 (83 FR 21962). The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by the Civil Aviation Authority of New Zealand (CAA). The MCAI states:

    Pacific Aerospace SB PACSB/XL/094 issue 2, dated 20 March 2018 revised to include inspection information, and DCA/750XL/24A updated to introduce the revised SB.

    The [CAA] AD is prompted by a production inspection of installed pitot static plumbing which identified insufficient clearance between the pitot tubes and the primary support at the flame arrestor intersection.

    This AD requires inspecting the pitot static tubes for chafing damage, replacing tubing as necessary, installing an additional clamp for pitot static tube support, protecting plumbing with spiralwrap, and ensuring proper clearance between the pitot tubes and the primary support at the flame arrester intersection. The MCAI can be found in the AD docket on the internet at: https://www.regulations.gov/document?D=FAA-2018-0371-0002.

    Comments

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

    Conclusion

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Pacific Aerospace Service Bulletin PACSB/XL/094, Issue 2, dated March 20, 2018. The service information contains procedures for inspecting the pitot static tubing for chafing, replacing tubing as necessary, installing an additional clamp for pitot static tube support, protecting plumbing with spiralwrap, and ensuring proper clearance between the pitot tubes and the primary support at the flame arrester intersection. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD will affect 22 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the pitot static tubing inspection and installation of support clamps and spiral wrap required by this AD. The average labor rate is $85 per work-hour. Required parts would cost about $25 per product.

    Based on these figures, we estimate the cost of the AD on U.S. operators to be $2,420, or $110 per product.

    In addition, we estimate that any necessary follow-on actions to replace damaged tubing would take about 1 work-hour and require parts costing $25, for a cost of $110 per product. We have no way of determining the number of products that may need these actions.

    Authority for This Rulemaking

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

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

    This 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 small airplanes, gliders, balloons, airships, domestic business jet transport airplanes, and associated appliances to the Director of the Policy and Innovation Division.

    Regulatory Findings

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

    For the reasons discussed above, I certify this AD:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-23-16 Pacific Aerospace Limited: Amendment 39-19504; Docket No. FAA-2018-0371; Product Identifier 2018-CE-005-AD. (a) Effective Date

    This AD becomes effective January 10, 2019.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Pacific Aerospace Limited Model 750XL airplanes, serial numbers up to and including 200, certificated in any category.

    (d) Subject

    Air Transport Association of America (ATA) Code 34: Navigation.

    (e) Reason

    This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and address an unsafe condition on an aviation product. The MCAI describes the unsafe condition as insufficient clearance between the pitot tubes and the primary support at the flame arrester intersection. We are issuing this AD to prevent chafing between the pitot-static plumbing and the flame arrestor, which could lead to damage of the pitot-static lines.

    (f) Actions and Compliance

    Unless already done, do the following actions in paragraphs (f)(1) through (3) of this AD.

    (1) Within 100 hours time-in-service (TIS) after January 10, 2019 (the effective date of this AD) or within 60 days after January 10, 2019 (the effective date of this AD), whichever occurs first, inspect the pitot static tubing adjacent to the flame arrestor for chafing damage.

    (2) If any chafing damage is found during the inspection required in paragraph (f)(1) of this AD, before further flight, repair or replace any damaged tubing and conduct a pitot and static leak check.

    (3) Within 100 hours TIS after January 10, 2019 (the effective date of this AD) or within 60 days after January 10, 2019 (the effective date of this AD), whichever occurs first, install an additional support clamp, protect plumbing with spiralwrap, and ensure proper clearance between the pitot tubes and the primary support at the flame arrester intersection. Follow paragraphs (3) through (6) of the Accomplishment Instructions in Pacific Aerospace Service Bulletin PACSB/XL/094, Issue 2, dated March 20, 2018.

    (g) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, Small Airplane Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Standards Branch, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4144; fax: (816) 329-4090; email: [email protected] Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must instead be accomplished using a method approved by the Manager, Small Airplane Standards Branch, FAA; or Civil Aviation Authority of New Zealand (CAA).

    (h) Related Information

    Refer to MCAI CAA AD DCA/750XL/24A, dated March 22, 2018, for related information. The MCAI can be found in the AD docket on the internet at: https://www.regulations.gov/document?D=FAA-2018-0371-0002.

    (i) Material Incorporated by Reference

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

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

    (i) Pacific Aerospace Service Bulletin PACSB/XL/094, Issue 2, dated March 20, 2018.

    (ii) [Reserved]

    (3) For service information identified in this AD, contact Pacific Aerospace Limited, Airport Road, Hamilton, Private Bag 3027, Hamilton 3240, New Zealand; phone: +64 7843 6144; fax: +64 843 6134; email: [email protected]; internet: www.aerospace.co.nz.

    (4) You may view this service information at the FAA, Policy and Innovation Division, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. In addition, you can access this service information on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0371.

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

    Issued in Kansas City, Missouri, on November 27, 2018. Melvin J. Johnson, Aircraft Certification Service, Deputy Director, Policy and Innovation Division, AIR-601.
    [FR Doc. 2018-26364 Filed 12-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31225; Amdt. No. 3828] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

    DATES:

    This rule is effective December 6, 2018. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

    The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of December 6, 2018.

    ADDRESSES:

    Availability of matter incorporated by reference in the amendment is as follows:

    For Examination

    1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC, 20590-0001;

    2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

    3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

    4. The National Archives and Records Administration (NARA).

    For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Availability

    All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

    FOR FURTHER INFORMATION CONTACT:

    Thomas J. Nichols, Flight Procedures and Airspace Group, Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration. Mailing Address: FAA Mike Monroney Aeronautical Center, Flight Procedures and Airspace Group, 6500 South MacArthur Blvd., Registry Bldg 29, Room 104, Oklahoma City, OK 73125. Telephone: (405) 954-4164.

    SUPPLEMENTARY INFORMATION:

    This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

    This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

    Availability and Summary of Material Incorporated by Reference

    The material incorporated by reference is publicly available as listed in the ADDRESSES section.

    The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

    The Rule

    This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

    The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

    The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

    Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979) ; and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 97

    Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).

    Issued in Washington, DC, on November 16, 2018. Rick Domingo, Executive Director, Flight Standards Service. Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

    PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

    2. Part 97 is amended to read as follows:

    By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:

    * * * Effective Upon Publication AIRAC date State City Airport FDC No. FDC date Subject 3-Jan-19 TN Knoxville Knoxville Downtown Island 8/0373 11/6/18 VOR/DME-B, Amdt 7. 3-Jan-19 TN Knoxville Knoxville Downtown Island 8/0386 11/6/18 LOC RWY 26, Amdt 4A. 3-Jan-19 TN Knoxville Knoxville Downtown Island 8/0387 11/6/18 RNAV (GPS) RWY 26, Orig-C. 3-Jan-19 NE Harvard Harvard State 8/0416 10/31/18 RNAV (GPS) RWY 35, Amdt 1A. 3-Jan-19 NE Harvard Harvard State 8/0424 11/6/18 RNAV (GPS) RWY 17, Orig-B. 3-Jan-19 WA Hoquiam Bowerman 8/0508 10/31/18 RNAV (GPS) RWY 6, Amdt 1A. 3-Jan-19 FL West Palm Beach Palm Beach Intl 8/0515 11/1/18 RNAV (RNP) Z RWY 10L, Amdt 1A. 3-Jan-19 ND Kenmare Kenmare Muni 8/0686 10/31/18 RNAV (GPS) RWY 26, Orig. 3-Jan-19 LA Eunice Eunice 8/1301 11/1/18 VOR/DME-A, Amdt 3. 3-Jan-19 LA Eunice Eunice 8/1310 11/1/18 NDB RWY 16, Amdt 1. 3-Jan-19 LA Eunice Eunice 8/1312 11/1/18 RNAV (GPS) RWY 16, Orig. 3-Jan-19 WI Madison Dane County Rgnl-Truax Field 8/1327 11/9/18 RNAV (GPS) RWY 3, Orig-D. 3-Jan-19 CQ Saipan Island Francisco C Ada/Saipan Intl 8/1534 10/31/18 NDB RWY 25, Amdt 3. 3-Jan-19 WI La Crosse La Crosse Rgnl 8/2228 10/31/18 RNAV (GPS) RWY 18, Orig-D. 3-Jan-19 WI La Crosse La Crosse Rgnl 8/2229 10/31/18 RNAV (GPS) RWY 36, Orig-C. 3-Jan-19 VA Charlottesville Charlottesville-Albemarle 8/2275 11/9/18 ILS OR LOC RWY 3, Amdt 1A. 3-Jan-19 TX Palestine Palestine Muni 8/2360 10/31/18 NDB RWY 36, Amdt 8. 3-Jan-19 TX Palestine Palestine Muni 8/2361 10/31/18 RNAV (GPS) RWY 18, Orig-A. 3-Jan-19 TX Palestine Palestine Muni 8/2363 10/31/18 RNAV (GPS) RWY 36, Amdt 1A. 3-Jan-19 MO Fulton Elton Hensley Memorial 8/2539 11/7/18 RNAV (GPS) RWY 24, Amdt 1A. 3-Jan-19 MO Fulton Elton Hensley Memorial 8/2540 11/7/18 RNAV (GPS) RWY 6, Amdt 1A. 3-Jan-19 MO Fulton Elton Hensley Memorial 8/2541 11/7/18 VOR-A, Amdt 5. 3-Jan-19 IA Mapleton James G Whiting Memorial Field 8/3071 11/6/18 RNAV (GPS) RWY 20, Orig-A. 3-Jan-19 NJ Andover Aeroflex-Andover 8/3213 11/1/18 VOR-A, Amdt 8. 3-Jan-19 NJ Andover Aeroflex-Andover 8/3219 11/1/18 RNAV (GPS) RWY 3, Amdt 1A. 3-Jan-19 AR Batesville Batesville Rgnl 8/3237 11/1/18 RNAV (GPS) RWY 8, Amdt 1B. 3-Jan-19 AR Batesville Batesville Rgnl 8/3239 11/1/18 RNAV (GPS) RWY 26, Amdt 1A. 3-Jan-19 AR Batesville Batesville Rgnl 8/3242 11/1/18 LOC RWY 8, Amdt 1A. 3-Jan-19 ND Tioga Tioga Muni 8/3473 11/9/18 RNAV (GPS) RWY 30, Amdt 1A. 3-Jan-19 WI Hartford Hartford Muni 8/3951 10/31/18 Takeoff Minimums and Obstacle DP, Orig. 3-Jan-19 NJ Pedricktown Spitfire Aerodrome 8/4245 10/31/18 RNAV (GPS) RWY 7, Orig. 3-Jan-19 IN Seymour Freeman Muni 8/4573 11/7/18 RNAV (GPS) RWY 32, Amdt 1A. 3-Jan-19 TX Bryan Coulter Field 8/4654 11/9/18 VOR/DME-A, Amdt 3. 3-Jan-19 TX Bryan Coulter Field 8/4655 11/9/18 RNAV (GPS) RWY 15, Amdt 1A. 3-Jan-19 NC Winston Salem Smith Reynolds 8/4714 11/1/18 RNAV (GPS) RWY 15, Amdt 1B. 3-Jan-19 MS Tupelo Tupelo Rgnl 8/4747 10/31/18 ILS Y OR LOC Y RWY 36, Orig. 3-Jan-19 MS Tupelo Tupelo Rgnl 8/4748 10/31/18 RNAV (GPS) RWY 18, Amdt 1. 3-Jan-19 MS Tupelo Tupelo Rgnl 8/4749 10/31/18 RNAV (GPS) RWY 36, Amdt 1. 3-Jan-19 GA Thomson Thomson-Mcduffie County 8/5347 11/6/18 RNAV (GPS) RWY 10, Orig-A. 3-Jan-19 GA Thomson Thomson-Mcduffie County 8/5350 11/6/18 ILS OR LOC/NDB RWY 10, Amdt 1A. 3-Jan-19 GA Thomson Thomson-Mcduffie County 8/5351 11/6/18 RNAV (GPS) RWY 28, Orig-A. 3-Jan-19 TX Palacios Palacios Muni 8/5602 11/9/18 VOR RWY 13, Amdt 10D. 3-Jan-19 KY Louisville Louisville Intl-Standiford Field 8/5830 11/9/18 RNAV (RNP) Z RWY 17L, Orig-D. 3-Jan-19 NE Nebraska City Nebraska City Muni 8/6328 11/6/18 NDB RWY 15, Amdt 1A. 3-Jan-19 NE Nebraska City Nebraska City Muni 8/6337 11/6/18 RNAV (GPS) RWY 15, Orig-A. 3-Jan-19 NE Nebraska City Nebraska City Muni 8/6344 11/6/18 RNAV (GPS) RWY 33, Orig-A. 3-Jan-19 IA Corning Corning Muni 8/6394 11/6/18 RNAV (GPS) RWY 18, Orig. 3-Jan-19 ND Fargo Hector Intl 8/6518 11/1/18 ILS OR LOC RWY 18, Orig-C. 3-Jan-19 ND Fargo Hector Intl 8/6519 11/1/18 VOR RWY 36, Orig-D. 3-Jan-19 ND Fargo Hector Intl 8/6520 11/1/18 ILS OR LOC RWY 36, Amdt 2. 3-Jan-19 ND Fargo Hector Intl 8/6521 11/1/18 RNAV (GPS) RWY 9, Amdt 1B. 3-Jan-19 ND Fargo Hector Intl 8/6522 11/1/18 RNAV (GPS) RWY 18, Amdt 1B. 3-Jan-19 ND Fargo Hector Intl 8/6523 11/1/18 RNAV (GPS) RWY 27, Amdt 1B. 3-Jan-19 ND Fargo Hector Intl 8/6524 11/1/18 RNAV (GPS) RWY 36, Orig-B. 3-Jan-19 MA Hopedale Hopedale Industrial Park 8/7084 11/1/18 RNAV (GPS)-A, Orig-A. 3-Jan-19 GA Atlanta Cobb County Intl-Mccollum Field 8/7151 11/9/18 Takeoff Minimums and Obstacle DP, Amdt 2A. 3-Jan-19 ND Crosby Crosby Muni 8/7266 11/6/18 RNAV (GPS) RWY 30, Orig. 3-Jan-19 OH Caldwell Noble County 8/7353 10/31/18 VOR-A, Amdt 1A. 3-Jan-19 MD Cumberland Greater Cumberland Rgnl 8/7497 11/1/18 RNAV (GPS) RWY 5, Amdt 2. 3-Jan-19 PA Pittsburgh Pittsburgh Intl 8/7526 11/9/18 RNAV (RNP) Z RWY 10R, Orig-D. 3-Jan-19 IL Decatur Decatur 8/7779 10/31/18 RNAV (GPS) RWY 18, Amdt 1. 3-Jan-19 IL Decatur Decatur 8/7780 10/31/18 RNAV (GPS) RWY 24, Amdt 1. 3-Jan-19 GA Savannah Savannah/Hilton Head Intl 8/7859 11/1/18 RNAV (GPS) RWY 1, Amdt 2. 3-Jan-19 GA Savannah Savannah/Hilton Head Intl 8/7860 11/1/18 RNAV (GPS) Z RWY 28, Amdt 2A. 3-Jan-19 GA Savannah Savannah/Hilton Head Intl 8/7879 11/1/18 VOR/DME OR TACAN RWY 1, Orig-C. 3-Jan-19 IN Goshen Goshen Muni 8/7974 11/1/18 VOR RWY 9, Amdt 12B. 3-Jan-19 OH Millersburg Holmes County 8/7978 10/31/18 RNAV (GPS) RWY 27, Orig. 3-Jan-19 OK Tulsa Tulsa Intl 8/8001 10/31/18 VOR OR TACAN RWY 26, Amdt 24D. 3-Jan-19 AZ Sedona Sedona 8/8047 11/9/18 GPS RWY 3, Orig-A. 3-Jan-19 MN Hallock Hallock Muni 8/8357 11/7/18 RNAV (GPS) RWY 13, Orig-A. 3-Jan-19 MN Hallock Hallock Muni 8/8360 11/7/18 RNAV (GPS) RWY 31, Amdt 1A. 3-Jan-19 MN Hallock Hallock Muni 8/8364 11/7/18 VOR/DME RWY 31, Amdt 7. 3-Jan-19 MO Sullivan Sullivan Rgnl 8/8430 11/9/18 Takeoff Minimums and Obstacle DP, Orig. 3-Jan-19 MN Minneapolis Airlake 8/8517 11/7/18 RNAV (GPS) RWY 30, Orig-A. 3-Jan-19 MN Minneapolis Airlake 8/8518 11/7/18 ILS OR LOC RWY 30, Orig-F. 3-Jan-19 TX Grand Prairie Grand Prairie Muni 8/8658 11/9/18 RNAV (GPS) RWY 35, Orig. 3-Jan-19 OK Mc Alester Mc Alester Rgnl 8/8662 11/9/18 VOR RWY 20, Amdt 2G. 3-Jan-19 VA Martinsville Blue Ridge 8/8668 11/9/18 RNAV (GPS) RWY 30, Amdt 2A. 3-Jan-19 VA Martinsville Blue Ridge 8/8669 11/9/18 LOC RWY 30, Amdt 1C. 3-Jan-19 IL Jacksonville Jacksonville Muni 8/9249 10/31/18 RNAV (GPS) RWY 22, Orig-A. 3-Jan-19 IL Jacksonville Jacksonville Muni 8/9257 10/31/18 RNAV (GPS) RWY 4, Orig-A. 3-Jan-19 IL Jacksonville Jacksonville Muni 8/9265 10/31/18 RNAV (GPS) RWY 31, Orig-A. 3-Jan-19 IL Jacksonville Jacksonville Muni 8/9268 10/31/18 RNAV (GPS) RWY 13, Orig-A. 3-Jan-19 AR Nashville Howard County 8/9338 10/31/18 RNAV (GPS) RWY 1, Orig-A. 3-Jan-19 AR Nashville Howard County 8/9339 10/31/18 RNAV (GPS) RWY 19, Orig-A. 3-Jan-19 IN Goshen Goshen Muni 8/9744 11/1/18 RNAV (GPS) RWY 27, Orig. 3-Jan-19 NE Alliance Alliance Muni 8/9997 11/9/18 VOR RWY 12, Amdt 3B.
    [FR Doc. 2018-26244 Filed 12-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31224; Amdt. No. 3827] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

    DATES:

    This rule is effective December 6, 2018. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

    The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of December 6, 2018.

    ADDRESSES:

    Availability of matters incorporated by reference in the amendment is as follows:

    For Examination

    1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001.

    2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

    3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169; or,

    4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Availability

    All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

    FOR FURTHER INFORMATION CONTACT:

    Thomas J. Nichols, Flight Procedures and Airspace Group, Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration. Mailing Address: FAA Mike Monroney Aeronautical Center, Flight Procedures and Airspace Group, 6500 South MacArthur Blvd., Registry Bldg 29, Room 104, Oklahoma City, OK 73125. Telephone: (405) 954-4164.

    SUPPLEMENTARY INFORMATION:

    This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

    The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

    Availability and Summary of Material Incorporated by Reference

    The material incorporated by reference is publicly available as listed in the ADDRESSES section.

    The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

    The Rule

    This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

    The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

    Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 97

    Air traffic control, Airports, Incorporation by reference, Navigation (air).

    Issued in Washington, DC, on November 16, 2018. Rick Domingo, Executive Director, Flight Standards Service. Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

    PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

    2. Part 97 is amended to read as follows: * * * Effective 3 January 2019 Anchorage, AK, Merrill Field, RNAV (GPS)-A, Amdt 1A Valdez, AK, Valdez Pioneer Field, LDA-H, Amdt 2B Colorado City, AZ, Colorado City Muni, Takeoff Minimums and Obstacle DP, Orig-A Prescott, AZ, Ernest A Love Field, PRESCOTT TWO, GRAPHIC DP Prescott, AZ, Ernest A Love Field, Takeoff Minimums and Obstacle DP, Amdt 5 Modesto, CA, Modesto City-Co-Harry Sham Fld, ILS OR LOC RWY 28R, Amdt 14C Modesto, CA, Modesto City-Co-Harry Sham Fld, VOR RWY 28R, Orig-B Ontario, CA, Ontario Intl, ILS OR LOC RWY 26L, ILS RWY 26L CAT II, ILS RWY 26L CAT III, Amdt 8A Milford, IA, Fuller, RNAV (GPS)-B, Orig Milford, IA, Fuller, Takeoff Minimums and Obstacle DP, Amdt 1 Milford, IA, Fuller, VOR-A, Amdt 1 Rexburg, ID, Rexburg-Madison County, VOR RWY 35, Amdt 4B Chicago/Rockford, IL, Chicago/Rockford Intl, ILS OR LOC RWY 1, Amdt 28D Chicago/Rockford, IL, Chicago/Rockford Intl, ILS OR LOC RWY 7, ILS RWY 7 SA CAT I, ILS RWY 7 CAT II, ILS RWY 7 CAT III, Amdt 1E Chicago/Rockford, IL, Chicago/Rockford Intl, LOC BC RWY 19, Amdt 15C Chicago/Rockford, IL, Chicago/Rockford Intl, RADAR-1, Amdt 10B Chicago/Rockford, IL, Chicago/Rockford Intl, RNAV (GPS) RWY 1, Amdt 1C Chicago/Rockford, IL, Chicago/Rockford Intl, RNAV (GPS) RWY 7, Amdt 1C Chicago/Rockford, IL, Chicago/Rockford Intl, RNAV (GPS) RWY 19, Amdt 2B Chicago/Rockford, IL, Chicago/Rockford Intl, RNAV (GPS) RWY 25, Amdt 1B Chicago, IL, Chicago O'Hare Intl, ILS OR LOC RWY 4R, Amdt 7A Chicago, IL, Chicago O'Hare Intl, ILS OR LOC RWY 10C, ILS RWY 10C SA CAT I, ILS RWY 10C CAT II, ILS RWY 10C CAT III, Amdt 2A Chicago, IL, Chicago O'Hare Intl, ILS OR LOC RWY 10L, ILS RWY 10L SA CAT I, ILS RWY 10L CAT II, ILS RWY 10L CAT III, Amdt 19A Chicago, IL, Chicago O'Hare Intl, ILS OR LOC RWY 22L, Amdt 6A Chicago, IL, Chicago O'Hare Intl, ILS OR LOC RWY 22R, Amdt 9B Chicago, IL, Chicago O'Hare Intl, ILS PRM RWY 10C (CLOSE PARALLEL), ILS PRM RWY 10C (CLOSE PARALLEL) SA CAT I, ILS PRM RWY 10C (CLOSE PARALLEL) CAT II, ILS PRM RWY 10C (CLOSE PARALLEL) CAT III, Amdt 1A Chicago, IL, Chicago O'Hare Intl, ILS PRM Y RWY 10R (CLOSE PARALLEL), Orig-C Chicago, IL, Chicago O'Hare Intl, ILS Y OR LOC Y RWY 10R, Orig-C Chicago, IL, Chicago O'Hare Intl, ILS Z OR LOC Z RWY 10R, ILS Z RWY 10R SA CAT I, ILS Z RWY 10R CAT II, ILS Z RWY 10R CAT III, Orig-B Lake Charles, LA, Chennault Intl, ILS OR LOC RWY 15, Amdt 6 Lake Charles, LA, Chennault Intl, RNAV (GPS) RWY 15, Amdt 1 Lawrence, MA, Lawrence Muni, Takeoff Minimums and Obstacle DP, Amdt 5 Fulton, MO, Elton Hensley Memorial, RNAV (GPS) RWY 18, Orig-B Madison, MS, Bruce Campbell Field, RNAV (GPS) RWY 17, Amdt 2 Madison, MS, Bruce Campbell Field, RNAV (GPS) RWY 35, Amdt 1 Madison, MS, Bruce Campbell Field, VOR RWY 17, Orig-C Williston, ND, Sloulin Field Intl, Takeoff Minimums and Obstacle DP, Amdt 6 Lincoln Park, NJ, Lincoln Park, Takeoff Minimums and Obstacle DP, Amdt 1 Belen, NM, Belen Rgnl, RNAV (GPS) RWY 21, Amdt 1 Fulton, NY, Oswego County, RNAV (GPS) RWY 15, Orig-C Massena, NY, Massena Intl—Richards Field, RNAV (GPS) RWY 5, Amdt 2B Massena, NY, Massena Intl—Richards Field, RNAV (GPS) RWY 9, Amdt 1D Massena, NY, Massena Intl—Richards Field, RNAV (GPS) RWY 23, Amdt 1C Massena, NY, Massena Intl—Richards Field, RNAV (GPS) RWY 27, Amdt 1C Montgomery, NY, Orange County, Takeoff Minimums and Obstacle DP, Amdt 3 Wellsville, NY, Wellsville Muni Arpt, Tarantine Fld, RNAV (GPS) RWY 28, Amdt 1A Dayton, OH, Greene County—Lewis A Jackson Rgnl, RNAV (GPS) RWY 7, Amdt 1 Dayton, OH, Greene County—Lewis A Jackson Rgnl, RNAV (GPS) RWY 25, Amdt 1 Dayton, OH, Greene County—Lewis A Jackson Rgnl, Takeoff Minimums and Obstacle DP, Amdt 2 Hamilton, OH, Butler Co Rgnl—Hogan Field, ILS OR LOC RWY 29, Amdt 2 Hamilton, OH, Butler Co Rgnl—Hogan Field, RNAV (GPS) RWY 11, Amdt 1 Hamilton, OH, Butler Co Rgnl—Hogan Field, RNAV (GPS) RWY 29, Amdt 1 Hamilton, OH, Butler Co Rgnl—Hogan Field, Takeoff Minimums and Obstacle DP, Amdt 5 Mc Alester, OK, Mc Alester Rgnl, LOC RWY 2, Amdt 4B, CANCELED Mc Alester, OK, Mc Alester Rgnl, RNAV (GPS) RWY 2, Amdt 1 Mc Alester, OK, Mc Alester Rgnl, RNAV (GPS) RWY 20, Amdt 1 Stigler, OK, Stigler Rgnl, RNAV (GPS) RWY 17, Orig-B Creswell, OR, Hobby Field, HOBBY TWO, GRAPHIC DP Allentown, PA, Allentown Queen City Muni, RNAV (GPS) RWY 7, Amdt 1E Allentown, PA, Lehigh Valley Intl, ILS OR LOC RWY 6, ILS RWY 6 SA CAT I, ILS RWY 6 SA CAT II, Amdt 24 Danville, PA, Danville, RNAV (GPS) RWY 9, Orig-B Spearfish, SD, Black Hills—Clyde Ice Field, SWUNG TWO, GRAPHIC DP Austin, TX, Austin Executive, RNAV (GPS) RWY 31, Amdt 1 Eagle Pass, TX, Maverick County Memorial Intl, RNAV (GPS) RWY 13, Amdt 1 Kountze/Silsbee, TX, Hawthorne Field, RNAV (GPS) RWY 13, Amdt 1B Eau Claire, WI, Chippewa Valley Rgnl, ILS OR LOC RWY 22, Amdt 10 Eau Claire, WI, Chippewa Valley Rgnl, RNAV (GPS) RWY 22, Amdt 2 Charleston, WV, Yeager, ILS OR LOC RWY 5, Orig Charleston, WV, Yeager, ILS OR LOC RWY 23, Amdt 31 Charleston, WV, Yeager, LOC RWY 5, ORIG, CANCELED Charleston, WV, Yeager, RNAV (GPS) Y RWY 5, Amdt 3 Charleston, WV, Yeager, RNAV (RNP) Z RWY 5, Amdt 2 Charleston, WV, Yeager, RNAV (RNP) Z RWY 23, Orig-B Charleston, WV, Yeager, VOR-A, Amdt 14

    Rescinded: On November 8, 2018 (83 FR 55821), the FAA published an Amendment in Docket No. 31220, Amdt No. 3823, to Part 97 of the Federal Aviation Regulations under section 97.23, and 97.37. The following entries for New Smyrna Beach, FL, New Smyrna Beach Muni and College Station, TX, Easterwood Field, effective January 3, 2019, are hereby rescinded in their entirety:

    New Smyrna Beach, FL, New Smyrna Beach Muni, Takeoff Minimums and Obstacle DP, Amdt 3 College Station, TX, Easterwood Field, VOR OR TACAN RWY 11, Amdt 19E
    [FR Doc. 2018-26246 Filed 12-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Part 9 [Docket No. TTB-2018-0005; T.D. TTB-152; Ref: Notice No. 174] RIN 1513-AC38 Establishment of the Upper Hudson Viticultural Area AGENCY:

    Alcohol and Tobacco Tax and Trade Bureau, Treasury.

    ACTION:

    Final rule; Treasury decision.

    SUMMARY:

    The Alcohol and Tobacco Tax and Trade Bureau (TTB) establishes the approximately 1,500-square mile “Upper Hudson” viticultural area in all or portions of Albany, Montgomery, Rensselaer, Saratoga, Schenectady, Schoharie, and Washington Counties in New York. The Upper Hudson viticultural area is not located within any other established viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase.

    DATES:

    This final rule is effective January 7, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.

    SUPPLEMENTARY INFORMATION:

    Background on Viticultural Areas TTB Authority

    Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01, dated December 10, 2013 (superseding Treasury Order 120-01, dated January 24, 2003), to the TTB Administrator to perform the functions and duties in the administration and enforcement of these laws.

    Part 4 of the TTB regulations (27 CFR part 4) authorizes the establishment of definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.

    Definition

    Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

    Requirements

    Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:

    • Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;

    • An explanation of the basis for defining the boundary of the proposed AVA;

    • A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;

    • The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and

    • A detailed narrative description of the proposed AVA boundary based on USGS map markings.

    Upper Hudson Petition

    TTB received a petition from Andrew and Kathleen Weber, owners of Northern Cross Vineyard, on behalf of local grape growers and vintners, proposing to establish the “Upper Hudson” AVA in all or portions of Albany, Montgomery, Rensselaer, Saratoga, Schenectady, Schoharie, and Washington Counties in New York. The proposed Upper Hudson AVA covers approximately 1,500-square miles and is not located within any other AVA. There are 19 commercial vineyards with attached wineries covering approximately 67.5 acres within the proposed AVA. According to the petition, several vineyard owners are planning to expand their vineyards by a total of an additional 14 acres in the near future, and 4 new vineyards are also planned.

    According to the petition, the distinguishing feature of the proposed AVA is its climate, relying on the USDA plant hardiness zone map and the growing degree day accumulations (GDDs) 1 for the proposed AVA and the surrounding areas.

    1 In the Winkler climate classification system, annual heat accumulation during the growing season, measured in annual growing degree days (GDDs), defines climatic regions. One GDD accumulates for each degree Fahrenheit that a day's mean temperature is above 50 degrees, the minimum temperature required for grapevine growth. See Albert J. Winkler, General Viticulture (Berkeley: University of California Press, 2d ed. 1974), pages 61-64.

    Plant Hardiness Zones

    According to the USDA plant hardiness zone map, which ranges from the coolest zone 1 to the warmest zone 13, the proposed Upper Hudson AVA falls into zones 5a and 5b. Average minimum temperatures in these zones range from −20 to −15 degrees F. The petition states that these average minimum winter temperatures are cold enough to damage or even kill many varieties of grapes. Therefore, vineyard owners within the proposed AVA plant cold hardy varieties such as Marquette, Frontenac, La Crescent, and La Crosse, which have been developed to withstand temperatures as low as −30 degrees F. Regions to the immediate east and west of the proposed Upper Hudson AVA are also classified as zones 5a and 5b. Regions farther to the west and northwest of the proposed AVA are classified as zones 3b, 4a, and 4b, with average minimum temperatures between −35 and −25 degrees F. The region to the south of the proposed AVA is classified as zones 6a and 6b with average minimum temperatures between −10 and 0 degrees F, and able to grow a wider variety of grapes.

    Growing Degree Days

    The petition states that the locations within the proposed AVA achieved GDD accumulations ranging between 2,300 and 2,700. A GDD accumulation of over 2,500 is generally considered to be the minimum GDD accumulations needed to ripen most varieties of grapes.2 According to the petition, the locations within the proposed AVA reach 2,500 GDDs late in September, meaning that the fruit typically has only a few weeks to continue maturing before the first frost sets in. The petition states that, as a result, wineries often must work with tart fruit and remove the tartness as part of the winemaking process through the use of malolactic fermentation, pH adjustment, or residual sugars.

    2Id. at 61-64, 143.

    Locations to the north and south of the proposed AVA have GDD accumulations over 2,700 due to the warming effects of Lake Champlain and the tidal portion of the Hudson River respectively. The petition states that grapes in these warmer regions have more time to mature before the first frost, so the grapes “have the tartness removed in the vineyard.”

    The remaining locations, to the east, southeast, southwest, and west of the proposed Upper Hudson AVA, all have lower GDD accumulations than the proposed AVA. The petition claims that viticulture in these regions would be difficult because the GDD accumulations would not reach the levels necessary to reliably ripen most varieties of grapes.

    As a result of its climate, the proposed Upper Hudson AVA is suitable for growing cold-hardy grape hybrids, but not the grape varieties that are commonly grown farther south within the established Hudson River Region AVA.

    Notice of Proposed Rulemaking and Comments Received

    TTB published Notice No. 174 in the Federal Register on April 9, 2018 (83 FR 15091), proposing to establish the Upper Hudson AVA. In the notice, TTB summarized the evidence from the petition regarding the name, boundary, and distinguishing features for the proposed AVA. The notice also compared the distinguishing features of the proposed AVA to the surrounding areas. For a detailed description of the evidence relating to the name, boundary, and distinguishing features of the proposed AVA, and for a detailed comparison of the distinguishing features of the proposed AVA to the surrounding areas, see Notice No. 174. In Notice No. 174, TTB solicited comments on the accuracy of the name, boundary, and other required information submitted in support of the petition. The comment period closed on June 8, 2018.

    Comments Received

    In response to Notice No. 174, TTB received seven comments, all of which expressed support for the proposed AVA. Some of the commenters suggested that the proposed AVA will increase tourism and provide economic benefits to the region. Others suggested that the establishment of the proposed Upper Hudson AVA will help to showcase the uniqueness of this area based on its climate. TTB did not receive any comments opposing the proposed AVA.

    TTB Determination

    After careful review of the petition and the comments received in response to Notice No. 174, TTB finds that the evidence provided by the petitioner supports the establishment of the Upper Hudson AVA. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB establishes the “Upper Hudson” AVA in in all or portions of Albany, Montgomery, Rensselaer, Saratoga, Schenectady, Schoharie, and Washington Counties in New York, effective 30 days from the publication date of this document.

    Boundary Description

    See the narrative description of the boundary of the Upper Hudson AVA in the regulatory text published at the end of this final rule.

    Maps

    The petitioner provided the required maps, and they are listed below in the regulatory text.

    Impact on Current Wine Labels

    Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

    With the establishment of this AVA, its name, “Upper Hudson,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulation clarifies this point. Consequently, wine bottlers using the name “Upper Hudson” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin. The establishment of the Upper Hudson AVA will not affect any existing AVA. The establishment of the Upper Hudson AVA will allow vintners to use “Upper Hudson” as an appellation of origin for wines made primarily from grapes grown within the Upper Hudson AVA if the wines meet the eligibility requirements for the appellation.

    Regulatory Flexibility Act

    TTB certifies that this regulation will not have a significant adverse economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

    Executive Order 12866

    It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.

    Drafting Information

    Caroline Hermann of the Regulations and Rulings Division drafted this final rule.

    List of Subjects in 27 CFR Part 9

    Wine.

    The Regulatory Amendment

    For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:

    PART 9—AMERICAN VITICULTURAL AREAS 1. The authority citation for part 9 continues to read as follows: Authority:

    27 U.S.C. 205.

    Subpart C—Approved American Viticultural Areas 2. Subpart C is amended by adding § 9.264 to read as follows:
    § 9.264 Upper Hudson.

    (a) Name. The name of the viticultural area described in this section is “Upper Hudson”. For purposes of part 4 of this chapter, “Upper Hudson” is a term of viticultural significance.

    (b) Approved maps. The four United States Geological Survey (USGS) 1:100,000 scale topographic maps used to determine the boundary of the Upper Hudson viticultural area are titled:

    (1) Glens Falls, New York—Vermont, 1989;

    (2) Albany, New York—Massachusetts—Vermont, 1989;

    (3) Amsterdam, New York, 1985; photoinspected 1990; and

    (4) Gloversville, New York, 1985; photoinspected 1992.

    (c) Boundary. The Upper Hudson viticultural area is located in Albany, Montgomery, Rensselaer, Saratoga, Schenectady, Schoharie, and Washington Counties in New York. The boundary of the Upper Hudson viticultural area is as described below:

    (1) The point of the beginning is on the Glens Falls map at the intersection of U.S. Highway 9 and State Highway 32, in Glens Falls. From the beginning point, proceed east on State Highway 32 to its intersection with State Highway 254; then

    (2) Proceed southeasterly along State Highway 254 to its intersection with U.S. Highway 4 in Hudson Falls; then

    (3) Proceed south along U.S. Highway 4 to its intersection with State Highway 197 in Fort Edward; then

    (4) Proceed east, then southeast along State Highway 197 to its intersection with State Highway 40 in Argyle; then

    (5) Proceed southeast in a straight line to the intersection of State Highway 29 and State Highway 22 in Greenwich Junction; then

    (6) Proceed south along State Highway 22, crossing onto the Albany map, to the highway's intersection with State Highway 7 in Hoosick; then

    (7) Proceed southwest along State Highway 7, crossing the Hudson River, to the highway's intersection with State Highway 32 in Green Island; then

    (8) Proceed south on State Highway 32 to its intersection with U.S. Highway 20 in Albany; then

    (9) Proceed west on U.S. Highway 20 its intersection with U.S. Highway 9; then

    (10) Proceed southwest along U.S. Highway 9 to its intersection with State Highway 443; then

    (11) Proceed southwest, then westerly along State Highway 443, crossing onto the Amsterdam map, to the highway's intersection with an unnamed state highway known locally as State Highway 30 in Vroman Corners; then

    (12) Proceed northwesterly along State Highway 30 to its intersection with State Highway 30A in Sidney Corners; then

    (13) Proceed north along State Highway 30A, crossing over the Mohawk River, to the highway's intersection with State Highway 5 in Fonda; then

    (14) Proceed east along State Highway 5 to its intersection with State Highway 67 in Amsterdam; then

    (15) Proceed east along State Highway 67 to its intersection with an unnamed light-duty road known locally as Morrow Road; then

    (16) Proceed northeast in a straight line, crossing over the southeastern corner of the Gloversville map and onto the Glens Falls map, to the point where Daly Creek empties into Great Sacandaga Lake; then

    (17) Proceed northeast, then east along the southern shore of Great Sacandaga Lake to its confluence with the Hudson River in the town of Lake Luzerne; then

    (18) Proceed south, then easterly along the southern bank of the Hudson River to its intersection with U.S. Highway 9 in South Glens Falls; then

    (19) Proceed northwest along U.S. Highway 9, crossing the Hudson River, and returning to the beginning point.

    Signed: September 10, 2018. John J. Manfreda, Administrator. Approved: November 13, 2018. Timothy E. Skud, Deputy Assistant Secretary, (<E T="03">Tax, Trade, and Tariff Policy</E>).
    [FR Doc. 2018-26320 Filed 12-4-18; 8:45 am] BILLING CODE 4810-31-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2018-1038] RIN 1625-AA00 Safety Zone; Sausalito Lighted Boat Parade Fireworks Display; Richardson Bay, Sausalito, CA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce the safety zone for the Sausalito Lighted Boat Parade Fireworks Display in the Captain of the Port, San Francisco area of responsibility during the dates and times noted below. This action is necessary to protect personnel, vessels, and the marine environment from the dangers associated with pyrotechnics. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or their designated representative.

    DATES:

    The regulations in 33 CFR 165.1191, Table 1, Item number 30, will be enforced from 10 a.m. to 8:10 p.m. on December 8, 2018.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this notice, call or email Lieutenant Junior Grade Jennae Cotton, U.S. Coast Guard Sector San Francisco; telephone (415) 399-3585 or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the safety zone established in 33 CFR 165.1191, Table 1, Item number 30, on December 8, 2018. The Coast Guard will enforce a 100-foot safety zone around the fireworks barge during the loading, transit, and arrival of the fireworks barge from the loading location to the display location and until the start of the fireworks display. From 10 a.m. until 4 p.m. on December 8, 2018, the fireworks barge will be loading pyrotechnics at Pier 50 in San Francisco, CA. The fireworks barge will remain at the loading location until its transit to the display location. From 5 p.m. to 6 p.m. on December 8, 2018 the loaded fireworks barge will transit from Pier 50 to the launch site near Sausalito Point in approximate position 37°51′29.23″ N, 122°28′25″ W (NAD 83) where it will remain until the conclusion of the fireworks display. At 7 p.m. on December 8, 2018, 30 minutes prior to the commencement of the 10-minute fireworks display, the safety zone will encompass the navigable waters surrounding the fireworks barge near Sausalito Point in Sausalito, CA within a radius of 1,000 feet from approximate position 37°51′29.23″N, 122° 28′25″ W (NAD 83) for the Sausalito Lighted Boat Parade Fireworks Display in 33 CFR 165.1191, Table 1, Item number 30. The safety zone shall terminate at 8:10 p.m. on December 8, 2018.

    Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

    This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners.

    If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

    Dated: November 28, 2018. Rebecca W. Deakin, Lieutenant Commander, U.S. Coast Guard, Chief, Waterways Management Division.
    [FR Doc. 2018-26366 Filed 12-4-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Part 6 [Docket No. PTO-T-2018-0063] RIN 0651-AD32 International Trademark Classification Changes AGENCY:

    United States Patent and Trademark Office, Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    The United States Patent and Trademark Office (USPTO) issues a final rule to incorporate classification changes adopted by the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (Nice Agreement). These changes are effective January 1, 2019, and are listed in the International Classification of Goods and Services for the Purposes of the Registration of Marks (11th ed., ver. 2019), which is published by the World Intellectual Property Organization (WIPO).

    DATES:

    This rule is effective on January 1, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Catherine Cain, Office of the Deputy Commissioner for Trademark Examination Policy, (571) 272-8946, [email protected]

    SUPPLEMENTARY INFORMATION:

    Purpose: As noted above, this final rule incorporates classification changes adopted by the Nice Agreement that will become effective on January 1, 2019. This rule benefits the public by providing notice regarding these changes.

    Summary of Major Provisions: The USPTO is revising §  6.1 in part 6 of title 37 of the Code of Federal Regulations to incorporate classification changes and modifications that will become effective January 1, 2019, as listed in the International Classification of Goods and Services for the Purposes of the Registration of Marks (11th ed., 2019) (Nice Classification), published by WIPO.

    The Nice Agreement is a multilateral treaty, administered by WIPO, which establishes the international classification of goods and services for the purposes of registering trademarks and service marks. As of September 1, 1973, this international classification system is the controlling system used by the United States, and it applies to all applications filed on or after September 1, 1973, and their resulting registrations, for all statutory purposes. See 37 CFR 2.85(a). Every signatory to the Nice Agreement must utilize the international classification system.

    Each state party to the Nice Agreement is represented in the Committee of Experts of the Nice Union (Committee of Experts), which meets annually to vote on proposed changes to the Nice Classification. Any state that is a party to the Nice Agreement may submit proposals for consideration by the other members in accordance with agreed-upon rules of procedure. Proposals are currently submitted on an annual basis to an electronic forum on the WIPO website, commented upon, modified, and compiled by WIPO for further discussion and voting at the annual Committee of Experts meeting.

    In 2013, the Committee of Experts began annual revisions to the Nice Classification. The annual revisions, which are published electronically and enter into force on January 1 each year, are referred to as versions and identified by edition number and year of the effective date (e.g., “Nice Classification, 10th edition, version 2013” or “NCL 10-2013”). Each annual version includes all changes adopted by the Committee of Experts since the adoption of the previous version. The changes consist of the addition of new goods and services to, and deletion of goods and services from, the Alphabetical List, and any modifications to the wording in the Alphabetical List, the class headings, and the explanatory notes that do not involve the transfer of goods or services from one class to another. New editions of the Nice Classification continue to be published electronically and include all changes adopted annually since the previous version, as well as goods or services transferred from one class to another or new classes that are created.

    The annual revisions contained in this final rule consist of modifications to the class headings that were incorporated into the Nice Agreement during the 28th Session of the Committee of Experts, from April 30, 2018 through May 4, 2018. Under the Nice Classification, there are 34 classes of goods and 11 classes of services, each with a class heading. Class headings generally indicate the fields to which goods and services belong. Specifically, this rule adds new, or deletes existing, goods and services from 15 class headings. The changes to the class headings further define the types of goods and/or services appropriate to the class. As a signatory to the Nice Agreement, the United States adopts these revisions pursuant to Article 1.

    Discussion of Regulatory Changes

    The USPTO is revising §  6.1 as follows:

    In Class 5, the wording “dietary supplements for humans and animals” is amended to “dietary supplements for human beings and animals.”

    In Class 9, the wording “Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments” is amended to add “research” after “scientific,” amend “nautical” to “navigation,” add “audiovisual” after “cinematographic,” and amend “checking (supervision)” to “detecting, testing, inspecting.” The wording “apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity” is amended to add “the distribution or use of” after “controlling.” The wording “apparatus for recording, transmission or reproduction of sound or images” is amended to add “and instruments” after “apparatus,” amend “transmission or reproduction of” to “transmitting, reproducing or processing,” and amend “sound or images” to “sound, images or data.” The wording “magnetic data carriers, recording discs” is deleted and replaced with “recorded and downloadable media, computer software, blank digital or analogue recording or storage media.” The wording “compact discs, DVDs and other digital recording media” is deleted. The wording “cash registers, calculating machines, data processing equipment, computers” is amended to “cash registers, calculating devices.” The wording “computers and computer peripheral devices” is added thereafter. The wording “computer software” is deleted. The wording “diving suits, divers' masks, ear plugs for divers, nose clips for diver sand swimmers, gloves for divers, breathing apparatus for underwater swimming” is added thereafter.

    In Class 11, “Apparatus for lighting” is amended to “Apparatus and installations for lighting,” and “cooling” is added before the wording “steam generating.” “Refrigerating” is deleted.

    In Class 15, the wording “music stands and stands for musical instruments; conductors' batons” is added.

    In Class 19, “Building materials (non-metallic)” is amended to “Materials, not of metal, for building and construction.” The wording “non-metallic rigid pipes for building” is amended to “rigid pipes, not of metal, for building.” The wording “asphalt, pitch and bitumen” is amended to add a comma after “pitch” and the wording “tar” thereafter. The wording “non-metallic transportable buildings” is amended to “transportable buildings, not of metal.”

    In Class 23, “yarns and threads, for textile use,” is amended to delete the comma after “threads.”

    In Class 25, the wording “headgear” is amended to “headwear.”

    In Class 26, the wording “Lace and embroidery, ribbons and braid” is amended to add a comma after “Lace” and the wording “braid” thereafter, add “and haberdashery” before “ribbons,” and amend “braid” to “bows.”

    In Class 27, the wording “wall hangings (non-textile)” is amended to “wall hangings, not of textile.”

    In Class 29, “milk and milk products” is amended to “milk, cheese, butter, yoghurt and other milk products.”

    In Class 30, “rice” is amended to add a comma and the wording “pasta and noodles” thereafter. The wording “chocolate;” is added after “bread, pastries and confectionery.” The wording “ice cream, sorbets and other” is added before “edible ices.” The wording “salt;” is amended to replace the semi-colon with a comma and add the wording “seasonings, spices, preserved herbs;” thereafter. The wording “mustard;” is deleted. The wording “vinegar, sauces (condiments);” is amended to add the wording “and other” before “condiments” and delete the parentheses. The wording “spices;” is deleted where it appears as a separate clause.

    In Class 32, the wording “non-alcoholic beverages;” is added after “Beers.” The wording “mineral and aerated water and other non-alcoholic beverages” is amended to delete “and other non-alcoholic beverages.” The wording “syrups and other preparations for making beverages” is amended to add “non-alcoholic” before “preparations.”

    In Class 33, the wording “Alcoholic beverages (except beers)” is amended to add a comma after “beverages” and delete the parentheses. The wording “alcoholic preparations for making beverages” is added thereafter.

    In Class 34, “Tobacco” is amended to add “and tobacco substitutes” thereafter. The wording “cigarettes and cigars; electronic cigarettes and oral vaporizers for smokers;” is added before “smokers' articles.”

    In Class 42, the wording “industrial analysis and research services” is amended to add “industrial” before “research.”

    Rulemaking Requirements

    A. Administrative Procedure Act: The changes in this rulemaking involve rules of agency practice and procedure, and/or interpretive rules. See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015) (Interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers.” (citation and internal quotation marks omitted)); Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (Rule that clarifies interpretation of a statute is interpretive.); Bachow Commc'ns Inc. v. FCC, 237 F.3d 683, 690 (D.C. Cir. 2001) (Rules governing an application process are procedural under the Administrative Procedure Act.); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (Rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims.).

    Accordingly, prior notice and opportunity for public comment for the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law. See Perez, 135 S. Ct. at 1206 (Notice-and-comment procedures are required neither when an agency “issue[s] an initial interpretive rule” nor “when it amends or repeals that interpretive rule.”); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), does not require notice and comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” (quoting 5 U.S.C. 553(b)(A))).

    The 30-day delay in effectiveness is not applicable because this rule is not a substantive rule as the changes in this rule have no impact on the standard for reviewing trademark applications. As discussed above, the changes in this rulemaking involve rules of agency practice and procedure, and consist of modifications to the class headings that are used to classify goods and services in the trademark application process. These changes are administrative in nature and will have no substantive impact on the evaluation of a trademark application. The purpose of a delay in effectiveness is to allow affected parties time to modify their behaviors, businesses, or practices to come into compliance with new regulations. This rule imposes no additional requirements on the affected entities. Therefore, the requirement for a 30-day delay in effectiveness is not applicable, and the rule is made effective January 1, 2019.

    B. Regulatory Flexibility Act: As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 or any other law, neither a Regulatory Flexibility Act analysis, nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), is required. See 5 U.S.C. 603.

    C. Executive Order 12866 (Regulatory Planning and Review): This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

    D. Executive Order 13563 (Improving Regulation and Regulatory Review): The USPTO has complied with Executive Order 13563 (Jan. 18, 2011). Specifically, the USPTO has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector and the public as a whole, and provided on-line access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

    E. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs): This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

    F. Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

    G. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

    H. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

    I. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

    J. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

    K. Executive Order 12630 (Taking of Private Property): This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

    L. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), prior to issuing any final rule, the USPTO will submit a report containing the final rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this notice are not expected to result in an annual effect on the economy of 100 million dollars or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this notice is not expected to result in a “major rule” as defined in 5 U.S.C. 804(2).

    M. Unfunded Mandates Reform Act of 1995: The changes set forth in this notice do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

    N. National Environmental Policy Act: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

    O. National Technology Transfer and Advancement Act: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions that involve the use of technical standards.

    P. Paperwork Reduction Act: This final rule does not involve information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

    List of Subjects in 37 CFR Part 6

    Administrative practice and procedure, Classification, Trademarks.

    For the reasons given in the preamble and under the authority contained in 15 U.S.C. 1112, 1123 and 35 U.S.C. 2, as amended, the USPTO is amending part 6 of title 37 as follows:

    PART 6—CLASSIFICATION OF GOODS AND SERVICES UNDER THE TRADEMARK ACT 1. The authority citation for 37 CFR part 6 continues to read as follows: Authority:

    Secs. 30, 41, 60 Stat. 436, 440; 15 U.S.C. 1112, 1123; 35 U.S.C. 2, unless otherwise noted.

    2. Revise §  6.1 to read as follows:
    §  6.1 International schedule of classes of goods and services. Goods

    Chemicals for use in industry, science and photography, as well as in agriculture, horticulture and forestry; unprocessed artificial resins, unprocessed plastics; fire extinguishing and fire prevention compositions; tempering and soldering preparations; substances for tanning animal skins and hides; adhesives for use in industry; putties and other paste fillers; compost, manures, fertilizers; biological preparations for use in industry and science.

    2. Paints, varnishes, lacquers; preservatives against rust and against deterioration of wood; colorants, dyes; inks for printing, marking and engraving; raw natural resins; metals in foil and powder form for use in painting, decorating, printing and art.

    3. Non-medicated cosmetics and toiletry preparations; non-medicated dentifrices; perfumery, essential oils; bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations.

    4. Industrial oils and greases, wax; lubricants; dust absorbing, wetting and binding compositions; fuels and illuminants; candles and wicks for lighting.

    5. Pharmaceuticals, medical and veterinary preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical or veterinary use, food for babies; dietary supplements for human beings and animals; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides.

    6. Common metals and their alloys, ores; metal materials for building and construction; transportable buildings of metal; non-electric cables and wires of common metal; small items of metal hardware; metal containers for storage or transport; safes.

    7. Machines, machine tools, power-operated tools; motors and engines, except for land vehicles; machine coupling and transmission components, except for land vehicles; agricultural implements, other than hand-operated hand tools; incubators for eggs; automatic vending machines.

    8. Hand tools and implements, hand-operated; cutlery; side arms, except firearms; razors.

    9. Scientific, research, navigation, surveying, photographic, cinematographic, audiovisual, optical, weighing, measuring, signalling, detecting, testing, inspecting, life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling the distribution or use of electricity; apparatus and instruments for recording, transmitting, reproducing or processing sound, images or data; recorded and downloadable media, computer software, blank digital or analogue recording and storage media; mechanisms for coin-operated apparatus; cash registers, calculating devices; computers and computer peripheral devices; diving suits, divers' masks, ear plugs for divers, nose clips for divers and swimmers, gloves for divers, breathing apparatus for underwater swimming; fire-extinguishing apparatus.

    10. Surgical, medical, dental and veterinary apparatus and instruments; artificial limbs, eyes and teeth; orthopaedic articles; suture materials; therapeutic and assistive devices adapted for the disabled; massage apparatus; apparatus, devices and articles for nursing infants; sexual activity apparatus, devices and articles.

    11. Apparatus and installations for lighting, heating, cooling, steam generating, cooking, drying, ventilating, water supply and sanitary purposes.

    12. Vehicles; apparatus for locomotion by land, air or water.

    13. Firearms; ammunition and projectiles; explosives; fireworks.

    14. Precious metals and their alloys; jewellery, precious and semi-precious stones; horological and chronometric instruments.

    15. Musical instruments; music stands and stands for musical instruments; conductors' batons.

    16. Paper and cardboard; printed matter; bookbinding material; photographs; stationery and office requisites, except furniture; adhesives for stationery or household purposes; drawing materials and materials for artists; paintbrushes; instructional and teaching materials; plastic sheets, films and bags for wrapping and packaging; printers' type, printing blocks.

    17. Unprocessed and semi-processed rubber, gutta-percha, gum, asbestos, mica and substitutes for all these materials; plastics and resins in extruded form for use in manufacture; packing, stopping and insulating materials; flexible pipes, tubes and hoses, not of metal.

    18. Leather and imitations of leather; animal skins and hides; luggage and carrying bags; umbrellas and parasols; walking sticks; whips, harness and saddlery; collars, leashes and clothing for animals.

    19. Materials, not of metal, for building and construction; rigid pipes, not of metal, for building; asphalt, pitch, tar and bitumen; transportable buildings, not of metal; monuments, not of metal.

    20. Furniture, mirrors, picture frames; containers, not of metal, for storage or transport; unworked or semi-worked bone, horn, whalebone or mother-of-pearl; shells; meerschaum; yellow amber.

    21. Household or kitchen utensils and containers; cookware and tableware, except forks, knives and spoons; combs and sponges; brushes, except paintbrushes; brush-making materials; articles for cleaning purposes; unworked or semi-worked glass, except building glass; glassware, porcelain and earthenware.

    22. Ropes and string; nets; tents and tarpaulins; awnings of textile or synthetic materials; sails; sacks for the transport and storage of materials in bulk; padding, cushioning and stuffing materials, except of paper, cardboard, rubber or plastics; raw fibrous textile materials and substitutes therefor.

    23. Yarns and threads for textile use.

    24. Textiles and substitutes for textiles; household linen; curtains of textile or plastic.

    25. Clothing, footwear, headwear.

    26. Lace, braid and embroidery, and haberdashery ribbons and bows; buttons, hooks and eyes, pins and needles; artificial flowers; hair decorations; false hair.

    27. Carpets, rugs, mats and matting, linoleum and other materials for covering existing floors; wall hangings, not of textile.

    28. Games, toys and playthings; video game apparatus; gymnastic and sporting articles; decorations for Christmas trees.

    29. Meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs; milk, cheese, butter, yoghurt and other milk products; oils and fats for food.

    30. Coffee, tea, cocoa and artificial coffee; rice, pasta and noodles; tapioca and sago; flour and preparations made from cereals; bread, pastries and confectionery; chocolate; ice cream, sorbets and other edible ices; sugar, honey, treacle; yeast, baking-powder; salt, seasonings, spices, preserved herbs; vinegar, sauces and other condiments; ice (frozen water).

    31. Raw and unprocessed agricultural, aquacultural, horticultural and forestry products; raw and unprocessed grains and seeds; fresh fruits and vegetables, fresh herbs; natural plants and flowers; bulbs, seedlings and seeds for planting; live animals; foodstuffs and beverages for animals; malt.

    32. Beers; non-alcoholic beverages; mineral and aerated waters; fruit beverages and fruit juices; syrups and other non-alcoholic preparations for making beverages.

    33. Alcoholic beverages, except beers; alcoholic preparations for making beverages.

    34. Tobacco and tobacco substitutes; cigarettes and cigars; electronic cigarettes and oral vaporizers for smokers; smokers' articles; matches.

    Services

    35. Advertising; business management; business administration; office functions.

    36. Insurance; financial affairs; monetary affairs; real estate affairs.

    37. Building construction; repair; installation services.

    38. Telecommunications.

    39. Transport; packaging and storage of goods; travel arrangement.

    40. Treatment of materials.

    41. Education; providing of training; entertainment; sporting and cultural activities.

    42. Scientific and technological services and research and design relating thereto; industrial analysis and industrial research services; design and development of computer hardware and software.

    43. Services for providing food and drink; temporary accommodation.

    44. Medical services; veterinary services; hygienic and beauty care for human beings or animals; agriculture, horticulture and forestry services.

    45. Legal services; security services for the physical protection of tangible property and individuals; personal and social services rendered by others to meet the needs of individuals.

    Dated: November 28, 2018. Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.
    [FR Doc. 2018-26373 Filed 12-4-18; 8:45 am] BILLING CODE 3510-16-P
    LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 387 [Docket No. 15-CRB-0010-CA-S] Adjustment of Cable Statutory License Royalty Rates AGENCY:

    Copyright Royalty Board, Library of Congress.

    ACTION:

    Final rule.

    SUMMARY:

    The Copyright Royalty Judges (Judges) publish a final rule requiring affected cable systems to pay a separate per-telecast royalty (a Sports Surcharge) in addition to the other royalties that those cable systems must pay under Section 111 of the Copyright Act.

    DATES:

    Effective date: December 6, 2018.

    Applicability date: January 1, 2019.

    ADDRESSES:

    Docket: For access to the docket to read submitted background documents or comments, go to eCRB, the Copyright Royalty Board's electronic filing and case management system, at https://app.crb.gov/ and search for docket number 15-CRB-0010-CA-S.

    FOR FURTHER INFORMATION CONTACT:

    Anita Blaine, CRB Program Specialist, by telephone at (202) 707-7658 or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    On July 30, 2018, the Copyright Royalty Judges (Judges) published a modified proposed rule that establishes affected cable operators' obligation to pay a Sports Surcharge royalty. 83 FR 36509.

    The Judges solicited general comments for or against the proposal and specific comments on the following questions: Could the proposed provision in section 387.2 (e)(9) (“Nothing herein shall preclude any copyright owner of a live television broadcast, the secondary transmission of which would have been subject to deletion under the FCC Sports Blackout Rule, from receiving a share of royalties paid pursuant to this paragraph.”) apply to the secondary transmissions of the live television broadcasts of any entity other than a current member of the Joint Sports Claimants (JSC)? 1 If the answer is yes, which entities' transmissions would qualify for a share? If the answer is no (i.e., only JSC members could qualify), then is the current proposal nevertheless consistent with the section 111 license? If so, why? Id. at 36511.

    1 The Joint Sports Claimants are the Office of the Commissioner of Baseball, the National Football League, the National Basketball Association, the Women's National Basketball Association, the National Hockey League, and the National Collegiate Athletic Association.

    The Judges received joint comments from the JSC, NCTA-The Internet & Television Association, and American Cable Association stating support for the modified proposed rule as consistent with the section 111 license, answering the question in the affirmative, and specifying that “non-JSC members (e.g., MLS)” 2 might qualify for a share of the royalties. Joint Comments of the Moving Parties at 5. The Judges received no other comments.

    2 Major League Soccer.

    The joint commenters point out that the focus of the proposed rule is to specify the circumstances in which cable systems will owe and make Sports Surcharge royalty payments, i.e., a “pay-in” methodology. Id. at 4. The modified proposed language applies to Surcharge payments for events of JSC members and other entities, if any, who sought protection under the Sports Blackout Rule in the two years prior to its repeal. The joint commenters are not aware of any other protected entities, but they proposed removing the reference to the JSC in the rule to address the Judges' concern that the language in the rule as originally proposed appeared limiting and exclusionary. Although JSC members may be the only entities that invoked the protection, even entities who did not invoke the protection may be entitled to receive a share of the Surcharge funds in the future. Id. at 5-6. The modified proposed rule also eliminates the reference to “eligible” sports events as it only included by definition JSC-member events. Id. at 3-4.

    The joint commenters believe the original proposed rule did not implicate any of the concerns the Judges expressed because distribution of shares is not a subject of this rule. Distribution of royalty fees will be determined by the Judges or by agreement of interested parties. The modified proposed rule nonetheless states expressly that copyright owners are not precluded from sharing in future payments for the regulated secondary transmissions. Id. at 4, 6.

    The removal of the references to JSC-member events in the proposed rule and the addition of the section clarifying that no entity will be precluded from receiving shares based on this rule allay the concerns of the Judges.

    List of Subjects in 37 CFR Part 387

    Copyright, Cable television, Royalties.

    For the reasons set forth in the preamble, and under the authority of chapter 8, title 17, United States Code, the Copyright Royalty Judges amend 37 CFR chapter III as follows:

    PART 387—ADJUSTMENT OF ROYALTY FEE FOR CABLE COMPULSORY LICENSE 1. The authority citation for part 387 continues to read as follows: Authority:

    17 U.S.C. 801(b)(2), 803(b)(6).

    2. Amend § 387.2 by redesignating paragraph (e) as paragraph (f) and adding a new paragraph (e) to read as follows:
    § 387.2 Royalty fee for compulsory license for secondary transmission by cable systems.

    (e) Sports programming surcharge. Commencing with the first semiannual accounting period of 2019 and for each semiannual accounting period thereafter, in the case of an affected cable system filing Form SA3 as referenced in 37 CFR 201.17(d)(2)(ii) (2014), the royalty rate shall be, in addition to the amounts specified in paragraphs (a), (c), and (d) of this section, a surcharge of 0.025 percent of the affected cable system's gross receipts for the secondary transmission to subscribers of each live television broadcast of a sports event where the secondary transmission of that broadcast would have been subject to deletion under the FCC Sports Blackout Rule. For purposes of this paragraph:

    (1) The term “cable system” shall have the same meaning as in 17 U.S.C. 111(f)(3);

    (2) An “affected cable system”—

    (i) Is a “community unit,” as the comparable term is defined or interpreted in accordance with § 76.5(dd) of the rules and regulations of the Federal Communications Commission, in effect as of November 23, 2014, 47 CFR 76.5(dd) (2014);

    (ii) That is located in whole or in part within the 35-mile specified zone of a television broadcast station licensed to a community in which a sports event is taking place, provided that if there is no television broadcast station licensed to the community in which a sports event is taking place, the applicable specified zone shall be that of the television broadcast station licensed to the community with which the sports event or team is identified, or, if the event or local team is not identified with any particular community, the nearest community to which a television station is licensed; and

    (iii) Whose royalty fee is specified by 17 U.S.C. 111(d)(1)(B);

    (3) A “television broadcast” of a sports event must qualify as a “non-network television program” within the meaning of 17 U.S.C. 111(d)(3)(A);

    (4) The term “specified zone” shall be defined as the comparable term is defined or interpreted in accordance with § 76.5(e) of the rules and regulations of the Federal Communications Commission in effect as of November 23, 2014, 47 CFR 76.5(e) (2014);

    (5) The term “gross receipts” shall have the same meaning as in 17 U.S.C. 111(d)(1)(B) and shall include all gross receipts of the affected cable system during the semiannual accounting period except those from the affected cable system's subscribers who reside in:

    (i) The local service area of the primary transmitter, as defined in 17 U.S.C. 111(f)(4);

    (ii) Any community where the cable system has fewer than 1000 subscribers;

    (iii) Any community located wholly outside the specified zone referenced in paragraph (e)(4) of this section; and

    (iv) Any community where the primary transmitter was lawfully carried prior to March 31, 1972;

    (6) The term “FCC Sports Blackout Rule” refers to § 76.111 of the rules and regulations of the Federal Communications Commission in effect as of November 23, 2014, 47 CFR 76.111 (2014);

    (7) Subject to paragraph (e)(8) of this section, the surcharge will apply to the secondary transmission of a primary transmission of a live television broadcast of a sports event only where the holder of the broadcast rights to the sports event or its agent has provided the affected cable system—

    (i) Advance written notice regarding the secondary transmission as required by § 76.111(b) and (c) of the FCC Sports Blackout Rule; and

    (ii) Documentary evidence that the specific team on whose behalf the notice is given had invoked the protection afforded by the FCC Sports Blackout Rule during the period from January 1, 2012, through November 23, 2014;

    (8) In the case of collegiate sports events, the number of events involving a specific team as to which an affected cable system must pay the surcharge will be no greater than the largest number of events as to which the FCC Sports Blackout Rule was invoked in a particular geographic area by that team during any one of the accounting periods occurring between January 1, 2012, and November 23, 2014;

    (9) Nothing herein shall preclude any copyright owner of a live television broadcast, the secondary transmission of which would have been subject to deletion under the FCC Sports Blackout Rule, from receiving a share of royalties paid pursuant to this paragraph (e).

    Dated: October 1, 2018. David R. Strickler, Copyright Royalty Judge. Jesse M. Feder, Copyright Royalty Judge. Suzanne M. Barnett, Chief Copyright Royalty Judge.

    Approved by:

    Carla D. Hayden, Librarian of Congress.
    [FR Doc. 2018-26275 Filed 12-4-18; 8:45 am] BILLING CODE 1410-72-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 16 [EPA-HQ-OEI-2014-0849; FRL-9941-44-OEI] Revision of the Agency's Privacy Act Regulations for EPA-63 AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action on revisions to the Agency's Privacy Act regulations in order to exempt a new system of records, EPA-63, the eDiscovery Enterprise Tool Suite, from certain requirements of the Privacy Act because records in EPA's eDiscovery Enterprise Tool Suite are maintained for use in civil and criminal actions. A notice has been published in the Federal Register on July 27, 2018 for the creation of this new system of records that will contain information collected using the Agency's suite of tools that search and preserve electronically stored information (ESI) in support of the Agency's eDiscovery (electronic discovery) and Freedom of Information Act processes.

    DATES:

    This rule is effective on March 6, 2019 without further notice, unless EPA receives adverse comment by January 7, 2019. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the direct final rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OEI-2014-0849, at https://www.regulations.gov/. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Brian K. Thompson, Acting Director, eDiscovery Division, Office of Enterprise Information Programs, U.S. Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue NW, Washington, DC 20460; email: [email protected]; telephone number: 202-564-4256.

    SUPPLEMENTARY INFORMATION: I. Why is EPA using a direct final rule?

    The EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of the Federal Register, we are publishing a separate document that will serve as the proposed rule to exempt a new system of records, EPA-63, the eDiscovery Enterprise Tool Suite, from certain requirements of the Privacy Act if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

    If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule.

    II. General Information

    The EPA published a Privacy Act system of records notice for information collected using the eDiscovery Enterprise Tool Suite. Depending on the specific need, the Agency will use a combination of several electronic tools that together assist with the preservation, search, processing, review and production of electronically stored information (ESI). The tool suite will be used to preserve, search, collect, sort and review ESI including email messages, word processing documents, media files, spreadsheets, presentations, scanned documents and data sets in support of legal discovery. The Agency will also use these tools to search for ESI that is responsive to requests for information submitted under the Freedom of Information Act (FOIA), or other formal information requests.

    The records in EPA's eDiscovery Enterprise Tool Suite are maintained for use in civil and criminal actions. The Agency's system of records, EPA-63, is maintained by the Office of Environmental Information, Office of Enterprise Information Programs, eDiscovery Division, on behalf of Agency offices that will require use of the eDiscovery tool suite for both civil and criminal actions. When information is maintained for the purpose of civil actions, the relevant provision of the Privacy Act is 5 U.S.C. 552a(d)(5) which states “nothing in this [Act] shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.” 5 U.S.C. 552a(d)(5).

    The system is also maintained for support of criminal enforcement activity by the EPA. In those cases, the system is maintained on behalf of the Criminal Investigation Division, Office of Criminal Enforcement, Forensics, and Training, Office of Enforcement and Compliance Assurance—a component of EPA that performs as its principal function, activities pertaining to the enforcement of criminal laws. When information is maintained for the purpose of criminal cases, the relevant provision of the Privacy Act is 5 U.S.C. 552a(j)(2), which states that the head of an agency may promulgate regulations to exempt the system from certain provisions of the Act if the system is “maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of: (A) Information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.” 5 U.S.C. 552a(j)(2). Accordingly the EPA-63 is exempt from 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5), (e)(8) and (f)(2)-(f)(5) and (g):

    (1) From subsection (c)(3) because making available to a record subject the accounting of disclosures from records concerning him/her could reveal investigative interest on the part of EPA and/or the Department of Justice. This would permit record subjects to impede the investigation, e.g., destroy evidence, intimidate potential witnesses, or flee the area to avoid inquiries or apprehension by law enforcement personnel. Further, making available to a record subject the accounting of disclosures could reveal the identity of a confidential source.

    (2) From subsection (c)(4) because no access to these records is available under subsection (d) of the Privacy Act.

    (3) From subsection (d) because the records contained in these systems relate to official federal investigations. Individual access to these records could compromise ongoing investigations, reveal confidential informants and/or sensitive investigative techniques used in particular investigations, or constitute unwarranted invasions of the personal privacy of third parties who are involved in a certain investigation. Amendment of the records in either of these systems would interfere with ongoing law enforcement proceedings and impose an unworkable administrative burden by requiring law enforcement investigations to be continuously reinvestigated.

    (4) From subsections (e)(1) and (e)(5) because in the course of law enforcement investigations information may occasionally be obtained or introduced the accuracy of which is unclear or which is not strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of criminal activity. Moreover, it would impede any investigative process, whether civil or criminal, if it were necessary to assure the relevance, accuracy, timeliness and completeness of all information obtained.

    (5) From subsection (e)(2) because to comply with the requirements of this subsection during the course of an investigation could impede the information gathering process, thus hampering the investigation.

    (6) From subsection (e)(3) because to comply with the requirements of this subsection during the course of an investigation could impede the information gathering process, thus hampering the investigation.

    (7) From subsections (e)(4)(G) and (H) because no access to these records is available under subsection (d) of the Privacy Act.

    (8) From subsection (e)(8) because complying with this provision could prematurely reveal an ongoing criminal investigation to the subject of the investigation.

    (9) From subsection (f)(2), (f)(3), (f)(4) and (f)(5) because this system is exempt from the access and amendment provisions of subsection (d).

    (10) From subsection (g) because EPA is claiming that this system of records is exempt from subsections (c)(3) and (4), (d), (e)(1), (2), (3), (4)(G) and (H), (5), and (8), and (f)(2), (3), (4) and (5) of the Act, the provisions of subsection (g) of the Act are inapplicable and are exempted to the extent that this system of records is exempted from those subsections of the Act.

    A final relevant provision of the Privacy Act is 5 U.S.C. 552a (k)(2), which states that the head of an agency may promulgate regulations to exempt the system from certain provisions of the Act if the system “contains investigatory material compiled for law enforcement purposes other than material within the scope of subsection (j)(2)” of 5 U.S.C. 552a. Accordingly EPA-63 is exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H) and (f)(2)-(f)(5):

    (1) From subsection (c)(3) because making available to a record subject the accounting of disclosures from records concerning him/her could reveal investigative interest on the part of EPA and/or the Department of Justice. This would permit record subjects to impede the investigation, e.g., destroy evidence, intimidate potential witnesses, or flee the area to avoid inquiries or apprehension by law enforcement personnel. Further, making available to a record subject the accounting of disclosures could reveal the identity of a confidential source.

    (2) From subsection (d) because the records contained in these systems relate to official Federal investigations. Individual access to these records could compromise ongoing investigations, reveal confidential informants and/or sensitive investigative techniques used in particular investigations, or constitute unwarranted invasions of the personal privacy of third parties who are involved in a certain investigation. Amendment of the records in either of these systems would interfere with ongoing law enforcement proceedings and impose an impossible administrative burden by requiring law enforcement investigations to be continuously reinvestigated.

    (3) From subsection (e)(1) because in the course of law enforcement investigations information may occasionally be obtained or introduced the accuracy of which is unclear or which is not strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of criminal activity. Moreover, it would impede any investigative process, whether civil or criminal, if it were necessary to assure the relevance, accuracy, timeliness and completeness of all information obtained.

    (4) From subsections (e)(4) (G) and (H), because no access to these records is available under subsection (d) of the Privacy Act.

    (5) From subsection (f)(2), (f)(3), (f)(4) and (f)(5) because this system is exempt from the access and amendment provisions of subsection (d).

    III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

    This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

    C. Paperwork Reduction Act

    This action does not impose an information collection burden under the PRA. This action contains no provisions constituting a collection of information under the PRA.

    D. Regulatory Flexibility Act

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities.

    E. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.

    F. Executive Order 13132 (Federalism)

    This action does not have federalism implications. It will not have substantial direct effects 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.

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

    H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

    I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

    L. The Congressional Review Act

    This rule is exempt from the CRA because it is a rule of agency organization, procedure or practice that does not substantially affect the rights or obligations of non-agency parties.

    List of Subjects in 40 CFR Part 16

    Environmental protection, Administrative practice and procedure, Confidential business information, Privacy, Government employees.

    Dated: November 14, 2018. Vaughn Noga, Principal Deputy Assistant Administrator.

    For the reasons stated in the preamble, title 40, chapter I, part 16 of the Code of Federal Regulations is amended as follows:

    PART 16—IMPLEMENTATION OF PRIVACY ACT OF 1974 1. The authority citation for part 16 continues to read as follows: Authority:

    5 U.S.C. 301, 552a (as revised).

    2. Amend § 16.11 by: a. Adding the system number and name, EPA-63 eDiscovery Enterprise Tool Suite, at the end of the list in paragraph (a); b. Adding paragraph (c)(4); c. Revising the first two sentences of paragraph (d); and d. Revising the introductory text of paragraph (e).

    The additions and revisions read as follows:

    § 16.11 General exemptions.

    (a) * * *

    EPA-63 eDiscovery Enterprise Tool Suite.

    (c) * * *

    (4) The Agency's system of records, EPA-63 system of records is maintained by the Office of Environmental Information, Office of Enterprise Information Programs, on behalf of the Criminal Investigation Division, Office of Criminal Enforcement, Forensics, and Training, a component of EPA which performs as its principal function activities pertaining to the enforcement of criminal laws. Authority for the Division's criminal law enforcement activities comes from Powers of Environmental Protection Agency, 18 U.S.C. 3063; Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9603; Resource Conservation and Recovery Act, 42 U.S.C. 6928; Federal Water Pollution Control Act, 33 U.S.C. 1319, 1321; Toxic Substances Control Act, 15 U.S.C. 2614, 2615; Clean Air Act, 42 U.S.C. 7413; Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136j, 136l; Safe Drinking Water Act, 42 U.S.C. 300h-2, 300i-1; Noise Control Act of 1972, 42 U.S.C. 4912; Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C. 11045; and the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. 1415.

    (d) Scope of Exemption. EPA systems of records 17, 40, 46 and 63 are exempted from the following provisions of the PA: 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (2), (3), (4)(G), and (H), (5), and (8); (f)(2) through (5); and (g). To the extent that the exemption for EPA systems of records 17, 40, 46 and 63 claimed under 5 U.S.C. 552a(j)(2) of the Act is held to be invalid, then an exemption under 5 U.S.C. 552a(k)(2) is claimed for these systems of records from (c)(3), (d), (e)(1), (e)(4)(G), (H), and (f)(2) through (5). * * *

    (e) Reasons for exemption. EPA systems of records 17, 40, 46 and 63 are exempted from the above provisions of the PA for the following reasons:

    3. Amend § 16.12 by: a. Adding the system number and name, EPA-63 eDiscovery Enterprise Tool Suite, at the end of the list in paragraph (a)(1); b. Revising the first sentence in paragraph (a)(4)(i); and c. Revising the introductory text in paragraph (a)(5).

    The addition and revisions read as follows:

    § 16.12 Specific exemptions.

    (a) * * *

    (1) * * *

    EPA-63 eDiscovery Enterprise Tool Suite.

    (4) * * * (i) EPA systems of records 17, 30, 40, 41, 46 and 63 are exempted from the following provisions of the PA, subject to the limitations set forth in 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (4)(G) and (4)(H); and (f)(2) through (5). * * *

    (5) Reasons for exemption. EPA systems of records 17, 21, 30, 40, 41, 46 and 63 are exempted from the above provisions of the PA for the following reasons:

    [FR Doc. 2018-26355 Filed 12-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2008-0408; FRL-9986-64-Region 6] Air Plan Approval; Texas; Interstate Transport Requirements for the 1997 Ozone National Ambient Air Quality Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is approving portions of two Texas State Implementation Plan (SIP) submittals that pertain to the good neighbor and interstate transport requirements of the CAA with respect to the 1997 ozone National Ambient Air Quality Standards (NAAQS). The good neighbor provision requires each state, in its SIP, to prohibit emissions that will significantly contribute to nonattainment, or interfere with maintenance, of a NAAQS in other states. In this action, EPA is approving the Texas SIP submittals as having met the requirements of the good neighbor provision for the 1997 ozone NAAQS in accordance with section 110 of the CAA.

    DATES:

    This rule is effective on January 7, 2019.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2008-0408. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through https://www.regulations.gov or in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

    FOR FURTHER INFORMATION CONTACT:

    Carl Young, 214-665-6645, [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” and “our” means the EPA.

    I. Background

    The background for this action is discussed in detail in our October 3, 2018 proposal (83 FR 49894). In that document we proposed to (1) approve the portions of the April 4, 2008 and May 1, 2008 Texas SIP submittals as they pertain to the requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS, and (2) find that the conclusion in the state's SIP submittals is consistent with EPA's conclusion regarding Texas's good neighbor obligation, that emissions from Texas will not significantly contribute to nonattainment or interfere with maintenance of the 1997 ozone NAAQS in any other state.

    We did not receive any adverse comments regarding our proposal. We received two supportive comments regarding the proposal. The first was a comment from the Texas Commission on Environmental Quality which supported the proposal; and the second comment was an anonymous comment stating general support for clean air regulations. The comments are available in the electronic docket for this action.

    II. Final Action

    We are approving the portions of the April 4, 2008 and May 1, 2008 Texas SIP submittals as they pertain to the requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS. We find that the conclusion in the state's SIP submittals is consistent with EPA's conclusion regarding the good neighbor obligation, that emissions from Texas will not significantly contribute to nonattainment or interfere with maintenance of the 1997 ozone NAAQS in any other state. This action is being taken under section 110 of the Act.

    III. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 4, 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).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Air pollution control, Incorporation by reference, Ozone.

    Dated: November 26, 2018. Anne Idsal, Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart SS—Texas 2. In § 52.2270(e) the second table titled “EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP” is amended by revising the entry for “Infrastructure and Interstate Transport for the 1997 Ozone and the 1997 and 2006 PM2.5 NAAQS” to read as follows:
    § 52.2270 Identification of plan

    (e) * * *

    EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP Name of SIP provision Applicable geographic or nonattainment area State submittal/
  • effective date
  • EPA approval date Explanation
    *         *         *         *         *         *         * Infrastructure and Interstate Transport for the 1997 Ozone and the 1997 and 2006 PM2.5 NAAQS. Statewide 12/12/2007, 3/11/2008, 4/4/2008, 5/1/2008, 11/23/2009 12/28/2011, 76 FR 81371 Approval for CAA elements 110(a)(2)(A), (B), (E), (F), (G), (H), (K), (L), and (M). Full approval for CAA elements 110(a)(2)(C), (D)(i)(II), (D)(ii) and (J) with approval of the GHG PSD revision (11/10/2014, 79 FR66626). 1997 and 2006 PM2.5 element D(i)(I) approved 5/14/2018, 83 FR 22208. 1997 ozone element D(i)(I) approved 12/6/2018, [Insert Federal Register citation]. *         *         *         *         *         *         *
    [FR Doc. 2018-26287 Filed 12-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2018-0778; FRL-9987-38-Region 9] Findings of Failure To Submit Complete State Implementation Plans Required for the 1997, 2006, and 2012 PM2.5 NAAQS; California; San Joaquin Valley AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to find that California has failed to submit complete state implementation plans (SIPs) required under the Clean Air Act (CAA or “Act”) to implement the 1997, 2006, and 2012 national ambient air quality standards (NAAQS or “standards”) for fine particulate matter (PM2.5) in the San Joaquin Valley. For the 1997 annual and 24-hour PM2.5 NAAQS, California was required to submit by December 31, 2016, a SIP submission that provides for, among other things, annual reductions in emissions of direct PM2.5 or a PM2.5 plan precursor pollutant within the area of not less than five percent of the amount of such emissions as reported in the most recent inventory for the area. For the 2006 24-hour PM2.5 NAAQS, California was required to submit by August 21, 2017, a SIP submission that meets the requirements for Serious PM2.5 nonattainment areas, including the requirement for best available control measures (BACM). For the 2012 annual PM2.5 NAAQS, California was required to submit by October 15, 2016, a SIP submission that meets the requirements for Moderate PM2.5 nonattainment areas, including the requirement for reasonably available control measures (RACM). California submitted substantial portions of each of these required SIP submissions as part of an integrated plan on November 16, 2018, but each of these submissions fails to meet the EPA's minimum criteria for completeness.

    If the EPA has not affirmatively found that the State has submitted complete SIPs that correct the deficiencies in each of these SIP submissions within 18 months of this finding, the offset sanction will apply in the area. If within 6 additional months the EPA still has not affirmatively determined that the State has submitted complete SIPs that correct the deficiencies, the highway funding sanction will apply in the area. No later than 2 years after the EPA makes these findings, if the State has not submitted, and the EPA has not approved, each of the required SIP submissions, the EPA must promulgate a federal implementation plan (FIP) to address any remaining requirements.

    DATES:

    This action will be effective on January 7, 2019.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2018-0778. Generally, documents in the docket are listed and publicly available at http://www.regulations.gov. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available in hard copy form. Publicly available docket materials are available either electronically at http://www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

    FOR FURTHER INFORMATION CONTACT:

    Wienke Tax, EPA Region IX, (415) 947-4192, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us” and “our” refer to the EPA.

    Notice and Comment Under the Administrative Procedure Act (APA)

    Section 553 of the APA, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for taking this final agency action without prior proposal and opportunity for comment because no significant EPA judgment is involved in making a finding of failure to submit complete SIPs, or elements of SIPs, required by the CAA, where a state has made incomplete submissions, to meet the requirement. Thus, notice and public procedures are unnecessary. The EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

    Table of Contents I. Background A. Statutory Requirements B. Minimum Criteria for Completeness of a SIP Submission C. California's SIP Submissions II. Consequences of Findings of Failure To Submit Complete SIPs III. Final Action IV. Statutory and Executive Order Reviews I. Background A. Statutory Requirements 1. 1997 PM2.5 NAAQS

    The EPA first promulgated NAAQS for PM2.5 on July 18, 1997, setting the primary and secondary annual standards at 15 micrograms per cubic meter (μg/m3) and the primary and secondary 24-hour standards at 65 μg/m3.1 Effective April 5, 2005, the EPA designated the San Joaquin Valley as nonattainment for the 1997 PM2.5 NAAQS.2 Following a January 4, 2013 decision of the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) remanding the EPA's 2007 PM2.5 Implementation Rule for the 1997 PM2.5 NAAQS,3 the EPA published a final rule on June 2, 2014, classifying the San Joaquin Valley, among other areas, as a “Moderate” nonattainment area for the 1997 PM2.5 NAAQS under subpart 4, part D of title I of the Act.4

    1 62 FR 38652 (July 18, 1997) (codified at 40 CFR 50.7).

    2 70 FR 944 (January 5, 2005).

    3Natural Resources Defense Council v. EPA, 706 F.3d. 428 (DC Cir. 2013) (“NRDC”). In NRDC, the court held that the EPA erred in implementing the 1997 PM2.5 standards solely pursuant to the general implementation requirements of subpart 1, without also considering the requirements specific to nonattainment areas for particles less than or equal to 10 μm in diameter (PM10) in subpart 4, part D of title I of the CAA. The court reasoned that the plain meaning of the CAA requires implementation of the 1997 PM2.5 standards under subpart 4 because PM2.5 falls within the statutory definition of PM10 and is thus subject to the same statutory requirements as PM10. The court remanded the rule, without vacatur, and instructed the EPA “to repromulgate these rules pursuant to Subpart 4 consistent with this opinion.”

    4 79 FR 31566.

    Effective May 7, 2015, the EPA reclassified the San Joaquin Valley as a “Serious” nonattainment area for the 1997 PM 2.5 NAAQS.5 Upon reclassification as a Serious Area, the San Joaquin Valley became subject to a December 31, 2015 deadline under CAA section 188(c)(2) for attaining the 1997 PM2.5 NAAQS. On February 9, 2016, the EPA proposed to grant the State's request for extensions of the December 31, 2015 attainment date under CAA section 188(e), to December 31, 2018, for the 1997 24-hour PM2.5 NAAQS and to December 31, 2020, for the 1997 annual PM2.5 NAAQS in the San Joaquin Valley.6 On October 6, 2016, after considering public comments, the EPA denied California's request for these extensions of the attainment date.7 Consequently, on November 23, 2016, the EPA determined that the San Joaquin Valley had failed to attain the 1997 annual and 24-hour PM2.5 NAAQS by the December 31, 2015 Serious Area attainment date.8 This determination triggered a requirement for California to submit, by December 31, 2016, a revised PM2.5 attainment plan that satisfies the requirements of CAA section 189(d).9

    5 80 FR 18528 (April 7, 2015).

    6 81 FR 6936. California's request for extension of the Serious Area attainment date for the San Joaquin Valley accompanied its Serious Area attainment plan for the 1997 PM2.5 NAAQS and related motor vehicle emission budgets, submitted June 25, 2015 and August 13, 2015, respectively.

    7 81 FR 69396.

    8 81 FR 84481.

    9 CAA section 189(d).

    The section 189(d) plan must, among other things, demonstrate expeditious attainment of the 1997 PM2.5 NAAQS within the time period provided under CAA section 179(d) and provide for annual reductions in emissions of direct PM2.5 or a PM2.5 plan precursor pollutant within the area of not less than five percent per year from the most recent emissions inventory for the area until attainment.10 The section 189(d) plan must also include, among other things:

    10 Id. and 40 CFR 51.1010(c).

    1. A comprehensive, accurate, current inventory of actual emissions from all sources of PM2.5 and PM2.5 precursors in the area (CAA section 172(c)(3));

    2. plan provisions that require reasonable further progress (RFP) (CAA 172(c)(2));

    3. quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate RFP toward attainment by the applicable date (CAA section 189(c)); and

    4. contingency measures to be implemented if the area fails to meet RFP or to attain by the applicable attainment date (CAA section 172(c)(9)).

    2. 2006 PM2.5 NAAQS

    On October 17, 2006, the EPA revised the 24-hour PM2.5 NAAQS by lowering it from 65 µg/m3 to 35 µg/m3.11 Effective December 14, 2009, the EPA designated the San Joaquin Valley as nonattainment for the 2006 24-hour PM2.5 NAAQS. The EPA initially classified the San Joaquin Valley area as a Moderate Area effective July 2, 2014, and reclassified the area as a Serious Area for the 2006 PM2.5 NAAQS effective February 19, 2016.12

    11 71 FR 61144 (October 17, 2006) (codified at 40 CFR 50.13).

    12 79 FR 31566 (June 2, 2014), 81 FR 2993 (January 20, 2016), and 81 FR 42263 (June 29, 2016) (correcting amendment).

    Upon the area's reclassification as a Serious Area for the 2006 PM2.5 NAAQS, California was required to submit additional SIP revisions by August 21, 2017, to satisfy the statutory requirements that apply to Serious PM2.5 nonattainment areas, including the requirements of subpart 4 of part D, title I of the Act.13

    13 Id.

    The Serious Area plan must include, among other things:

    1. A comprehensive, accurate, current inventory of actual emissions from all sources of PM2.5 and PM2.5 precursors in the area (CAA section 172(c)(3));

    2. provisions for the implementation of BACM, including best available control technology (BACT), for sources of direct PM2.5 and all PM2.5 plan precursors no later than 4 years after the area is reclassified (CAA section 189(b)(1)(B));

    3. a demonstration (including air quality modeling) that the plan provides for attainment as expeditiously as practicable but no later than December 31, 2019, or where the State is seeking an extension of the attainment date under section 188(e), a demonstration that attainment by December 31, 2019, is impracticable and that the plan provides for attainment by the most expeditious alternative date practicable and no later than December 31, 2024, (CAA sections 188(c)(2) and 189(b)(1)(A)); 14

    14 A state seeking an extension of a Serious Area attainment date under section 188(e) must also meet additional requirements under that provision, including the requirement to demonstrate that the SIP for the area includes the most stringent measures that are included in any SIP or are achieved in practice in any state, and can feasibly be implemented in the area. CAA section 188(e).

    4. plan provisions that require RFP (CAA 172(c)(2));

    5. quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate RFP toward attainment by the applicable date (CAA section 189(c));

    6. provisions to assure that control requirements applicable to major stationary sources of PM2.5 also apply to major stationary sources of PM2.5 precursors, except where the state demonstrates to the EPA's satisfaction that such sources do not contribute significantly to PM2.5 levels that exceed the standard in the area (CAA section 189(e));

    7. contingency measures to be implemented if the area fails to meet RFP or to attain by the applicable attainment date (CAA section 172(c)(9)); and

    8. a revision to the nonattainment NSR program to lower the applicable “major stationary source” thresholds from 100 tpy to 70 tpy (CAA section 189(b)(3)).

    3. 2012 PM2.5 NAAQS

    On December 14, 2012, the EPA revised the primary annual PM2.5 standard by lowering it from 15.0 to 12.0 µg/m3.15 Effective April 15, 2015, the EPA designated and classified the San Joaquin Valley as a Moderate nonattainment area for the 2012 annual PM2.5 NAAQS.16 This designation and classification triggered a requirement for California to submit a Moderate Area plan addressing attainment of the 2012 annual PM2.5 NAAQS in the San Joaquin Valley no later than 18 months after the designation, i.e., by October 15, 2016.17

    15 78 FR 3086 (January 15, 2013) (codified at 40 CFR 50.18).

    16 80 FR 2206 (January 15, 2015).

    17 CAA section 189(a)(2)(B).

    The Moderate Area plan must include, among other things:

    1. A comprehensive, accurate, current inventory of actual emissions from all sources of PM2.5 and PM2.5 precursors in the area (CAA section 172(c)(3));

    2. provisions for the implementation of RACM, including reasonably available control technology (RACT), for sources of direct PM2.5 and all PM2.5 plan precursors no later than 4 years after designation (CAA section 189(a)(1)(C));

    3. a demonstration (including air quality modeling) that the plan provides for attainment as expeditiously as practicable but no later than December 31, 2021, or a demonstration that attainment by that date is impracticable (CAA section 189(a)(1)(B));

    4. plan provisions that require RFP (CAA 172(c)(2));

    5. quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate RFP toward attainment by the applicable date (CAA section 189(c));

    6. provisions to assure that control requirements applicable to major stationary sources of PM2.5 also apply to major stationary sources of PM2.5 precursors, except where the state demonstrates to the EPA's satisfaction that such sources do not contribute significantly to PM2.5 levels that exceed the standard in the area (CAA section 189(e));

    7. contingency measures to be implemented if the area fails to meet RFP or to attain by the applicable attainment date (CAA section 172(c)(9)); and

    8. Any revisions to the nonattainment NSR program necessary to implement the requirements of CAA section 189(a)(1)(A) for the 2012 PM2.5 NAAQS.

    B. Minimum Criteria for Completeness of a SIP Submission

    Section 110(k)(1)(A) of the CAA requires that the EPA promulgate minimum criteria that any plan submission must meet before the EPA is required to act on such submission. The EPA has promulgated these criteria at 40 CFR part 51, appendix V. We refer to these requirements as the “completeness criteria.” Section 2.1 of the completeness criteria requires that each plan submission include, among other things: (1) Evidence that the State has adopted the plan in the State code or body of regulations, including the date of adoption or final issuance as well as the effective date of the plan, if different from the adoption/issuance date, and (2) evidence that the State followed all of the procedural requirements of the State's laws and constitution in conducting and completing the adoption/issuance of the plan. Section 2.2 of the completeness criteria requires that each plan submission contain certain technical support, including (1) a demonstration that the SIP will protect RFP if approved, and (2) modeling to support the proposed revision. The completeness criteria also identify other administrative materials and technical support documentation that must be included in each plan submission.18

    18 See generally 40 CFR part 51, appendix V, sections 2.1 and 2.2.

    Section 110(k)(2) of the CAA requires the EPA to act on a SIP submission only after the State has submitted a SIP submission (or part thereof) that meets the completeness criteria, either by EPA determination or by operation of law under CAA section 110(k)(1)(B).

    C. California's SIP Submissions

    On November 16, 2018, California submitted to the EPA a draft of the “2018 Plan for the 1997, 2006, and 2012 PM2.5 Standards” (“2018 PM2.5 Plan”), a comprehensive plan for attainment of the PM2.5 NAAQS in the San Joaquin Valley. This submission includes substantial portions of a section 189(d) plan addressing attainment of the 1997 PM2.5 NAAQS, a Serious Area plan addressing attainment of the 2006 PM2.5 NAAQS, and a Moderate Area plan addressing attainment of the 2012 PM2.5 NAAQS in the San Joaquin Valley. The San Joaquin Valley Air Pollution Control District adopted the 2018 PM2.5 Plan on November 15, 2018.

    As a threshold matter, however, the California Air Resources Board (CARB) noted in its letter transmitting the SIP submission to the EPA that CARB had not yet presented the 2018 PM2.5 Plan to its Board or adopted it for submission to the EPA as a revision to the California SIP. CARB stated that it was providing the submission to the EPA now so that EPA staff can begin its review while CARB completes the final step in plan development when it considers approval of the 2018 PM2.5 Plan at its hearing scheduled for January 24-25, 2019.19

    19 Letter dated November 16, 2018, from Kurt Karperos, Deputy Executive Officer, CARB, to Mike Stoker, Regional Administrator, EPA Region IX.

    Accordingly, the EPA cannot at this time find that California has submitted the required complete PM2.5 SIP revisions for the San Joaquin Valley nonattainment area. CARB's November 16, 2018 SIP submission does not include evidence that the State has adopted the plan in the State code or body of regulations or evidence that the State followed all of the procedural requirements of the State's laws and constitution in conducting and completing the adoption/issuance of the plan, as required by 40 CFR part 51, appendix V, section 2.1. Based on these deficiencies alone, the SIP submission fails to meet the EPA's minimum completeness criteria. In addition, until we receive the formal SIP submission, we cannot determine whether the plan that CARB ultimately adopts will contain all of the necessary components of the required PM2.5 attainment plans for the San Joaquin Valley and the associated technical support required for each submission under 40 CFR part 51, appendix V, section 2.2.

    We note, however, that CARB's submission represents a significant step in the State's and District's multi-year effort to address the Act's attainment planning requirements for the PM2.5 NAAQS in the San Joaquin Valley, and we commit to continue working closely with both agencies as they implement and enforce the requirements of these plans going forward.

    II. Consequences of Findings of Failure To Submit Complete SIPs

    Under section 110(k)(1)(C) of the Act, where the EPA determines that a SIP submission (or part thereof) does not meet the EPA's minimum completeness criteria established in 40 CFR part 51, appendix V, the state shall be treated as not having made the submission (or part thereof). Sections 179(a) and 110(c) of the CAA establish specific consequences for failure to submit complete SIP submissions or SIP elements required under part D of title I of the Act, including the eventual imposition of mandatory sanctions in the affected area.

    In accordance with the EPA's sanctions sequencing rule in 40 CFR 52.31, the offset sanction identified in CAA section 179(b)(2) would apply in the San Joaquin Valley area 18 months after the effective date of these findings, if the EPA has not affirmatively determined by that date that the State has submitted a complete SIP addressing the deficiency that is the basis for these findings. If, within 6 months after the offset sanction applies, the EPA still has not affirmatively determined that the State has submitted a complete SIP addressing the deficiency that is the basis for the findings, the highway funding sanction identified in CAA section 179(b)(1) would also apply in the San Joaquin Valley. Under 40 CFR 52.31(d)(5), neither sanction would apply if the EPA determines within 18 months after the effective date of these findings that the State has submitted a complete SIP submission addressing the deficiency that is the basis for these findings.

    Additionally, a finding of failure to submit a complete SIP submission triggers an obligation under CAA section 110(c) for the EPA to promulgate a FIP no later than 2 years after the finding, unless the state has submitted, and the EPA has approved, the required SIP submittal. Thus, the EPA would be required to promulgate a PM2.5 FIP for the San Joaquin Valley, in relevant part, if California does not submit and the EPA does not approve all of the necessary SIP submissions within 2 years after the effective date of these findings.

    III. Final Action

    The EPA is finding that California has failed to submit complete SIP revisions for implementation of the 1997, 2006, and 2012 PM2.5 NAAQS in the San Joaquin Valley as required under subparts 1 and 4 of part D, title I of the CAA and the PM2.5 SIP Requirements Rule. The consequences of these findings are discussed above in section II of this notice.

    IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

    B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs

    This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

    C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the provisions of the PRA. This final rule does not establish any new information collection requirement apart from what is already required by law. This rule relates to the requirements in the CAA for states to submit SIPs under sections 172, 188 and 189 which address the statutory requirements that apply to areas designated as nonattainment for the PM2.5 NAAQS.

    D. Regulatory Flexibility Act (RFA)

    I certify that this rule will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The rule is a finding that California has not submitted the necessary SIP revisions.

    E. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action does not contain any unfunded mandate as described in UMRA 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

    F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects 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.

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. This rule finds that California has failed to submit SIP revisions that satisfy certain nonattainment area planning requirements under sections 172, 188 and 189 of the CAA for the 1997, 2006, and 2012 PM2.5 NAAQS for the San Joaquin Valley nonattainment area. No tribe is subject to the requirement to submit an implementation plan under section 172 or under subpart 4 of part D of Title I of the CAA. Thus, Executive Order 13175 does not apply to this action.

    H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it is a finding that California has failed to submit certain SIP revisions that satisfy the nonattainment area planning requirements under sections 172, 188 and 189 of the CAA for the 1997, 2006, and 2012 PM2.5 NAAQS for the San Joaquin Valley nonattainment area and does not directly or disproportionately affect children.

    I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. In finding that California has failed to submit SIP revisions that satisfy certain nonattainment area planning requirements under sections 172, 188 and 189 of the CAA for the1997, 2006, and 2012 PM2.5 NAAQS for the San Joaquin Valley nonattainment area, this action does not directly affect the level of protection provided to human health or the environment.

    L. Congressional Review Act (CRA)

    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).

    M. Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 4, 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)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedures, Air pollution control, Approval and promulgation of implementation plans, Administrative practice and procedures, Incorporation by reference, Intergovernmental relations, Particulate matter, and Reporting and recordkeeping requirements.

    Dated: November 19, 2018. Deborah Jordan, Acting Regional Administrator, Region IX.
    [FR Doc. 2018-26359 Filed 12-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2017-0372; FRL-9985-83] Clomazone; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of clomazone in or on multiple commodities which are identified and discussed later in this document. Interregional Research Project No. 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective December 6, 2018. Objections and requests for hearings must be received on or before February 4, 2019, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0372, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information A. Does this action apply to me?

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    To access the OCSPP test guidelines referenced in this document electronically, please go to https://www.epa.gov/aboutepa/about-office-chemical-safety-and-pollution-prevention-ocspp and select “Test Methods and Guidelines.”

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0372 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before February 4, 2019. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0372, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of October 23, 2017 (82 FR 49020) (FRL-9967-37), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 7E8581) by IR-4, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540. The petition requested that 40 CFR 180.425 be amended by establishing tolerances for residues of the herbicide clomazone, 2-[(2-chlorophenyl)methyl]-4,4-dimethyl-3-isoxazolidinone, in or on Bean, dry at 0.05 parts per million (ppm); Bean, succulent at 0.05 ppm; Broccoli, Chinese at 0.10 ppm; Cilantro, dried leaves at 0.3 ppm; Cilantro, fresh leaves at 0.05 ppm; Coriander, seed at 0.05 ppm; Cottonseed subgroup 20C at 0.05 ppm; Dill, dried leaves at 0.4 ppm; Dill, fresh leaves at 0.08 ppm; Dill, oil at 0.06 ppm; Dill, seed at 0.05 ppm; Kohlrabi at 0.10 ppm; Rapeseed subgroup 20A at 0.05 ppm; Stalk and stem vegetable subgroup 22A, except kohlrabi at 0.05 ppm; Vegetable, brassica, head and stem, group 5-16 at 0.10 ppm; and Vegetable, cucurbit, group 9 at 0.1 ppm.

    The petitioner also proposed to remove the following established tolerances Asparagus at 0.05 ppm; Bean, snap, succulent at 0.05 ppm; Brassica, head and stem, subgroup 5A at 0.10 ppm; Cotton, undelinted seed at 0.05 ppm; Cucumber at 0.1 ppm; Pea, southern, dry seed at 0.05 ppm; Pea, southern, succulent seed at 0.05 ppm; Pumpkin at 0.1 ppm; Squash, summer at 0.1 ppm; Squash, winter at 0.1 ppm; Sweet potato, roots at 0.05 ppm; Vegetable, cucurbit, group 9 at 0.05 ppm. That document referenced a summary of the petition prepared by FMC Corporation, the registrant, which is available in the docket, http://www.regulations.gov. EPA received one comment the notice of filing. EPA's response to this comment is discussed in Unit IV.C.

    Based upon review of the data supporting the petition, EPA is establishing tolerances that vary from the levels requested. The reasons for these changes are explained in Unit IV.D.

    III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

    Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for clomazone including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with clomazone follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

    The primary target of clomazone is the liver, with hepatocellular cytomegaly and increased liver weight noted in the sub-chronic rat study. There were no effects up to the limit dose in the chronic dog study. The 28-day dermal toxicity study in rats showed no effects up to the limit dose. There was no quantitative or qualitative evidence of susceptibility in the developmental toxicity study in rabbits or in the 2-generation reproduction toxicity study in rats. In the developmental toxicity study in rabbits, no developmental effects were seen at the highest dose tested where maternal effects, including mortality, abortions, decreased body weight gain and decreased defecation or no feces, occurred. In the 2-generation reproduction study, decreased body weight was seen at the same dose in both parents and offspring. Qualitative susceptibility was observed in the developmental toxicity study in rats. Developmental effects, including delayed ossification in the form of either partial ossification or the absence of the manubrium sternebrae 3-4, xiphoid, caudal vertebrae and metacarpals, occurred at the same dose as maternal effects, which included chromorhinorrhea and abdominogenital staining. The concern is low since there are clear NOAELs and LOAELs in this study and the study was used for risk assessment, and, therefore, is protective of the developmental effects. Using a weight of evidence approach, the Agency concluded that the acute and sub-chronic neurotoxicity studies, mouse carcinogenicity study, inhalation study, and immunotoxicity study are not required at this time. There are no dermal absorption studies available for clomazone. An acceptable dermal toxicity study is available to assess hazard through the dermal route therefore, a dermal absorption study is not required at this time.

    In the rat and mouse carcinogenicity studies, there was no evidence of carcinogenicity. The mouse carcinogenicity study was classified as unacceptable/guideline since no systemic toxicity was observed at the highest dose tested, however, the study was considered adequate to assess the carcinogenicity in mice. The Agency has determined that an additional mouse carcinogenicity study is not needed. This finding is based upon the following conclusions: (1) The rat is more sensitive than the mouse for the chronic assessment; (2) the consistent effect in rats (decreased body weight and increased liver weight) has been used as the point of departure for the chronic assessment; (3) a new mouse study would only use doses well above the current POD for the chronic assessment; and (4) even if a new mouse study identified positive carcinogenicity effects, that finding would not result in the adoption of a quantitative linear assessment of cancer risk due to the negative carcinogenicity finding in the rat study and the lack of a positive finding for genotoxicity. Clomazone is classified as “Not Likely to be Carcinogenic to Humans”. Quantification of cancer risk is not required.

    Clomazone has low acute toxicity (Category III and IV) via the oral, dermal and inhalation routes. It is non-irritating to the eyes and mildly irritating to the skin. It is not a dermal sensitizer. Clomazone is absorbed, metabolized (16 metabolites identified) and rapidly excreted in urine and feces in rats following oral administration. Most of the administered dose (48-85%) is eliminated within 24 hours, mostly in urine. The quantities of metabolites varied with dose regimen, sex and route of administration, but were the same qualitatively in urine and feces. The total recovery after 48 hours was 91-100%.

    Specific information on the studies received and the nature of the adverse effects caused by clomazone as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document Clomazone: Human Health Risk Assessment for Proposed (1) New Uses on Cilantro, Dill, and Rapeseed Subgroup 20A; (2) Tolerance Revisions of Cucurbit Vegetable Group 9; (3) Tolerance Expansions of Representative Commodities to (i) Cottonseed Subgroup 20C, (ii) Stalk and Stem Vegetable Subgroup 22A, except Kohlrabi, (iii) Dry Bean, and (iv) Succulent Bean; and (4) Tolerance Conversions from Crop Subgroup 5A (Head and Stem Brassica) to Crop Group 5-16 (Brassica, Head and Stem Vegetable), Chinese Broccoli and Kohlrabi at page 35 in docket ID number EPA-HQ-OPP-2017-0372.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks.

    A summary of the toxicological endpoints for clomazone used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of November 10, 2016 (Vol. 81 FR 78914) (FRL-9953-88).

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to clomazone, EPA considered exposure under the petitioned-for tolerances as well as all existing clomazone tolerances in 40 CFR 180.425. EPA assessed dietary exposures from clomazone in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

    Such effects were identified for clomazone. In estimating acute dietary exposure, EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID) Version 3.16, which incorporates 2003-2008 food consumption data from the U.S. Department of Agriculture's (USDA) National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, EPA incorporated tolerance level residues, assumed 100% crop treated, and used DEEM default processing factors.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the DEEM-FCID Version 3.16, which incorporates 2003-2008 food consumption data from USDA's NHANES/WWEIA. As to residue levels in food, EPA incorporated tolerance level residues, assumed 100% crop treated, and used DEEM default processing factors.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that clomazone does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

    iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for clomazone. Tolerance level residues and/or 100% CT were assumed for all food commodities.

    2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for clomazone in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of clomazone. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

    Based on the Food Quality Protection Act (FQPA) Index Reservoir Screening Tool (FIRST), Tier 1 Rice Model and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of clomazone and its degradate, FMC 65317 (N-[(2-chlorophenyl)methyl]-3-hydroxy-2,2-dimenthylpropanamide), for acute exposures are estimated to be 550 parts per billion (ppb) for surface water and 85.7 ppb for ground water.

    The EDWCs of clomazone plus FMC 65317 for chronic exposures for non-cancer assessments are estimated to be 550 ppb for surface water and 77.4 ppb for ground water.

    Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 550 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration value of 550 ppb was used to assess the contribution to drinking water.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Clomazone is not registered for any specific use patterns that would result in residential exposure. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found clomazone to share a common mechanism of toxicity with any other substances, and clomazone does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that clomazone does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. There was no evidence of increased quantitative or qualitative susceptibility in the prenatal developmental toxicity study in rabbits or in the reproductive toxicity study in rats with clomazone. In the developmental toxicity study in rats, delayed ossification occurred at doses that produced maternal effects (chromorhinorrhea and abdominogenital staining). Although qualitative susceptibility was observed in the developmental toxicity study in rats, the concern is low since there are clear NOAELs and LOAELs and the PODs selected for risk assessment are protective of the qualitative susceptibility.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

    i. The toxicity database for clomazone is complete.

    ii. There is no indication that clomazone is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

    iii. There is no evidence that clomazone results in increased quantitative susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

    iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to clomazone in drinking water. These assessments will not underestimate the exposure and risks posed by clomazone.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure analysis, the risk estimate for acute dietary exposure from food and water to clomazone is at 3.0% of the aPAD for females 13-49 years old, the only population group for which an acute dietary endpoint was selected. The acute dietary risk for females 13-49 years old is not of concern (<100% of aPAD).

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure analysis, EPA has concluded that the risk estimates for chronic exposure to clomazone from food and water are not of concern (<100% of cPAD) with a risk estimate at 3.6% of the cPAD for all infants less than 1 year of age, the population group receiving the greatest exposure.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Currently, there are no registered or proposed residential uses for clomazone, therefore, a short-term aggregate risk is the same as the chronic risk, which does not exceed the Agency's level of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Currently, there are no registered or proposed residential uses for clomazone, therefore, an intermediate-term aggregate risk is the same as the chronic risk, which does not exceed the Agency's level of concern..

    5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, clomazone is not expected to pose a cancer risk to humans.

    6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to clomazone residues.

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology, gas chromatography (GC) using a nitrogen phosphorus detector (NPD) or mass spectrometer (MS), is available. A confirmatory procedure (GC/MS-SIM: Gas Chromatography/Mass Spectroscopy-Selected Ion Monitoring) is also available (Method I, PAM [Pesticide Analytical Manual] II) to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected]

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

    The Codex has not established any MRLs for clomazone.

    C. Response to Comments

    One comment was received on the Notice of Filing expressing concern about the effects of wind turbines on bats. The comment did not raise any issue related to the Agency's safety determination for clomazone tolerances. The receipt of this comment is acknowledged; however, this comment is not relevant to this action.

    D. Revisions to Petitioned-For Tolerances

    For dill oil, the Agency is establishing a tolerance at 0.07 ppm rather than 0.06 ppm due to rounding based on the available data. Although the petitioner requested a tolerance for vegetable, cucurbit, group 9 at 0.1 ppm, the Agency is maintaining the established tolerance of 0.05 ppm for cucurbit vegetable group 9 and setting an expiration date for the existing tolerances on the individual commodities of cucumber, summer squash, winter squash and pumpkin at 0.1 ppm. Available residue data demonstrates that the 0.05 ppm tolerance value is sufficient to cover residues on the commodities in this group so there is no need to maintain the separate higher tolerances. Moreover, setting these tolerances at 0.05 ppm would harmonize tolerance values with Canada. In addition, the Agency is adding significant figures to the tolerances requested for cilantro, dried leaves and dill, dried leaves to conform to Agency practice.

    The petitioner requested tolerances on “bean, dry” and “bean, succulent”. Although those terms are defined in 40 CFR 180.1(g), the Agency is establishing individual tolerances for each of the dry and succulent forms of the beans contained in that definition to more accurately reflect the commodities as distributed in interstate commerce: asparagus bean, chickpea, kidney bean, mung bean, navy bean, pinto bean, grain lupin, sweet lupin, white lupin, and white sweet lupin come in the dry bean form only; snap bean and wax bean come in succulent form only; and broad bean, lima bean, and southern pea come in both the dry and succulent forms. Tolerances for snap bean (succulent) and southern pea (dry and succulent) are already established and are being maintained.

    E. International Trade Considerations

    In this Final Rule, EPA is reducing the existing tolerances for the commodities of cucumber, pumpkin, and summer and winter squash from 0.1 ppm to 0.05 ppm as part of vegetable, cucurbit, group 9. The Agency is reducing these tolerances to harmonize with Canadian tolerances on cucurbit vegetables and available residue data demonstrates that tolerances at 0.05 ppm are sufficient to cover residues on these commodities.

    In accordance with the World Trade Organization's (WTO) Sanitary and Phytosanitary Measures (SPS) Agreement, EPA intends to notify the WTO of this revision in order to satisfy its obligation. In addition, the SPS Agreement requires that Members provide a “reasonable interval” between the publication of a regulation subject to the Agreement and its entry into force to allow time for producers in exporting Member countries to adapt to the new requirement. At this time, EPA is establishing an expiration date for the existing tolerances to allow those tolerances to remain in effect for a period of six months after the effective date of this final rule, in order to address this requirement. After the six-month period expires, residues of clomazone on cucumber, pumpkin, and summer and winter squash cannot exceed the vegetable, cucurbit, group 9 tolerance of 0.05 ppm.

    This reduction in tolerance levels is not discriminatory; the same food safety standard contained in the FFDCA applies equally to domestically produced and imported foods. The new tolerance levels are supported by available residue data.

    V. Conclusion

    Therefore, tolerances are established for residues of clomazone, 2-[(2-chlorophenyl)methyl]-4,4-dimethyl-3-isoxazolidinone, in or on Bean, asparagus, dry seed at 0.05 parts per million (ppm); Bean, broad, dry seed at 0.05 ppm; Bean, broad, succulent seed at 0.05 ppm; Bean, kidney, dry seed at 0.05 ppm; Bean, lima, dry seed at 0.05 ppm; Bean, lima, succulent seed at 0.05 ppm; Bean, mung, dry seed at 0.05 ppm; Bean, navy, dry seed at 0.05 ppm; Bean, pinto, dry seed at 0.05 ppm; Bean, wax, succulent seed at 0.05 ppm; Broccoli, Chinese at 0.10 ppm; Chickpea, dry seed at 0.05 ppm; Cilantro, dried leaves at 0.30 ppm; Cilantro, fresh leaves at 0.05 ppm; Coriander, seed at 0.05 ppm; Cottonseed subgroup 20C at 0.05 ppm; Dill, dried leaves at 0.40 ppm; Dill, fresh leaves at 0.08 ppm; Dill, oil at 0.07 ppm; Dill, seed at 0.05 ppm; Grain, lupin, dry seed at 0.05 ppm; Kohlrabi at 0.10 ppm; Rapeseed subgroup 20A at 0.05 ppm; Stalk and stem vegetable subgroup 22A, except kohlrabi at 0.05 ppm; Sweet, lupin, dry seed at 0.05 ppm; Vegetable, Brassica, head and stem, group 5-16 at 0.10 ppm; White lupin, dry seed at 0.05 ppm; and White sweet lupin, dry seed at 0.05 ppm. Upon the establishment of the tolerances referenced above, the following tolerances for residues of the herbicide clomazone, 2-[(2-chlorophenyl)methyl]-4,4-dimethyl-3-isoxazolidinone in or on the raw agricultural commodities should be removed: Asparagus at 0.05 parts per million (ppm); Brassica, head and stem, subgroup 5A at 0.10 ppm; Cotton, undelinted seed at 0.05 ppm; and Sweet potato, roots at 0.05 ppm. In addition, EPA is imposing an expiration date on the tolerances for Cucumber at 0.1 ppm; Pumpkin at 0.1 ppm; Squash, summer at 0.1 ppm; and Squash, winter at 0.1 ppm, so that they will expire six months after the publication of this rule.

    VI. Statutory and Executive Order Reviews

    This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    VII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule 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. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: November 14, 2018. Donna S. Davis, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.425, amend the table in paragraph (a) by: a. Removing the commodities: “Asparagus”; “Brassica, head and stem, subgroup 5A”; “Cotton, undelinted seed”; and “Sweet potato, roots”. b. Adding alphabetically the commodities: “Bean, asparagus, dry seed” at 0.05 ppm; “Bean, broad, dry seed” at 0.05 ppm; “Bean, broad, succulent seed” at 0.05 ppm; “Bean, kidney, dry seed” at 0.05 ppm; “Bean, lima, dry seed” at 0.05 ppm; “Bean, lima, succulent seed” at 0.05 ppm; “Bean, mung, dry seed” at 0.05 ppm; “Bean, navy, dry seed” at 0.05 ppm; “Bean, pinto, dry seed” at 0.05 ppm; “Bean, wax, succulent seed” at 0.05 ppm; “Broccoli, Chinese” at 0.10 ppm; “Chickpea, dry seed” at 0.05 ppm; “Cilantro, dried leaves” at 0.30 ppm; “Cilantro, fresh leaves” at 0.05 ppm; “Coriander, seed” at 0.05 ppm; “Cottonseed subgroup 20C” at 0.05 ppm; “Dill, dried leaves” at 0.40 ppm; “Dill, fresh leaves” at 0.08 ppm; “Dill, oil” at 0.07 ppm; “Dill, seed” at 0.05 ppm; “Grain, lupin, dry seed” at 0.05 ppm; “Kohlrabi” at 0.10 ppm; “Rapeseed subgroup 20A” at 0.05 ppm; “Stalk and stem vegetable subgroup 22A, except kohlrabi” at 0.05 ppm; “Sweet, lupin, dry seed” at 0.05 ppm; “Vegetable, Brassica, head and stem, group 5-16” at 0.10 ppm; “White lupin, dry seed” at 0.05 ppm; and “White sweet lupin, dry seed” at 0.05 ppm. c. Revise the entries for “Cucumber”; “Pumpkin”; “Squash, summer”; and “Squash, winter” by adding a footnote.

    The additions and revisions read as follows:

    § 180.425 Clomazone; tolerances for residues.

    (a) * * *

    Commodity Parts per
  • million
  • Bean, asparagus, dry seed 0.05 Bean, broad, dry seed 0.05 Bean, broad, succulent seed 0.05 Bean, kidney, dry seed 0.05 Bean, lima, dry seed 0.05 Bean, lima, succulent seed 0.05 Bean, mung, dry seed 0.05 Bean, navy, dry seed 0.05 Bean, pinto, dry seed 0.05 *         *         *         *         *         *         * Bean, wax, succulent seed 0.05 Broccoli, Chinese 0.10 Chickpea, dry seed 0.05 Cilantro, dried leaves 0.30 Cilantro, fresh leaves 0.05 Coriander, seed 0.05 Cottonseed subgroup 20C 0.05 *         *         *         *         *         *         * Cucumber * 0.1 Dill, dried leaves 0.40 Dill, fresh leaves 0.08 Dill, oil 0.07 Dill, seed 0.05 Grain lupin, dry seed 0.05 Kohlrabi 0.10 *         *         *         *         *         *         * Pumpkin * 0.1 Rapeseed subgroup 20A 0.05 *         *         *         *         *         *         * Squash, summer * 0.1 Squash, winter * 0.1 Stalk and stem vegetable subgroup 22A, except kohlrabi 0.05 *         *         *         *         *         *         * Sweet lupin, dry seed 0.05 Vegetable, Brassica, head and stem, group 5-16 0.10 *         *         *         *         *         *         * White lupin, dry seed 0.05 White sweet lupin, dry seed 0.05 * This tolerance expires on June 5, 2019.
    [FR Doc. 2018-26345 Filed 12-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2018-0717; FRL-9985-77] Extension of Tolerances for Emergency Exemptions (Multiple Chemicals) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation extends time-limited tolerances for the pesticides listed in this document. These actions are in response to EPA's granting of emergency exemptions under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of these pesticides. In addition, the Federal Food, Drug, and Cosmetic Act (FFDCA) requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA.

    DATES:

    This regulation is effective December 6, 2018. Objections and requests for hearings must be received on or before February 4, 2019, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2018-0717, is available at https://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at https://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael L. Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected].

    SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me?

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to https://www.epa.gov/aboutepa/about-office-chemical-safety-and-pollution-prevention-ocspp and select “Test Guidelines for Pesticides and Toxic Substances.”

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2018-0717 in the subject line on the first page of your submission. All requests must be in writing, and must be received by the Hearing Clerk on or before February 4, 2019. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2018-0717, by one of the following methods:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/dockets.

    II. Background and Statutory Findings

    EPA previously published final rules in the Federal Register for each chemical/commodity combination listed, establishing time-limited tolerances under FFDCA section 408, 21 U.S.C. 346a.

    EPA established the tolerances because FFDCA section 408(l)(6) requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established on EPA's own initiative and without providing notice or time for public comment.

    EPA received requests to extend the uses of these chemicals for this year's growing season. After having reviewed these submissions, EPA concurs that emergency conditions exist. EPA assessed the potential risks presented by residues for each chemical in the listed commodities. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18.

    The data and other relevant material have been evaluated and discussed in the final rules originally published to support these uses. Based on those data and information considered, the Agency reaffirms that extension of these time-limited tolerances will continue to meet the requirements of FFDCA section 408(l)(6). Therefore, the time-limited tolerances are extended until the dates listed. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations (CFR). Although these tolerances will expire and are revoked on the date listed, under FFDCA section 408(l)(5), residues of the pesticides not in excess of the amounts specified in the tolerances remaining in or on the named commodities after that date will not be unlawful, provided the residues are present as a result of an application or use of the pesticides at a time and in a manner that was lawful under FIFRA, the tolerances were in place at the time of the application, and the residues do not exceed the levels that were authorized by the tolerances. EPA will act to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

    Tolerances for the uses of the following pesticide chemicals on specific commodities are being extended:

    Bifenthrin. EPA has authorized under FIFRA section 18 the use of bifenthrin on apple, peach, and nectarine for control of the brown marmorated stinkbug in multiple states. This regulation extends existing time-limited tolerances for residues of the insecticide bifenthrin, including its metabolites and degradates, in or on apple, peach, and nectarine at 0.5 part per million (ppm) for an additional three-year period. These tolerances will expire and are revoked on December 31, 2021. Time-limited tolerances originally published in the Federal Register of September 14, 2012 (77 FR 56782) (FRL-9361-6).

    Dinotefuran. EPA has authorized under FIFRA section 18 the use of dinotefuran on pome fruit and stone fruit for control of the brown marmorated stinkbug in multiple states. This regulation extends existing time-limited tolerances for residues of the insecticide dinotefuran, including its metabolites and degradates in or on fruit, pome, group 11 and fruit, stone, group 12 at 2.0 ppm for an additional three-year period. These tolerances will expire and are revoked on December 31, 2021. Time-limited tolerances originally published in the Federal Register of November 9, 2012 (77 FR 67282) (FRL-9366-3); and were revised in the Federal Register of January 22, 2014 (79 FR 3508) (FRL-9402-8).

    III. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

    The Codex has not established MRLs for bifenthrin in/on apple, peach, or nectarine; nor dinotefuran in/on pome fruit or stone fruit.

    IV. Statutory and Executive Order Reviews

    This action establishes tolerances under FFDCA section 408(d) in response to petitions submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    V. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule 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. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: November 9, 2018. Michael Goodis, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.442, in the table in paragraph (b), revise entries for “Apple”, “Nectarine” and “Peach” to read as follows:
    § 180.442 Bifenthrin; tolerances for residues.

    (b) * * *

    Commodity Parts per
  • million
  • Expiration/
  • revocation
  • date
  • Apple 0.5 12/31/21 *    *    *    *    * Nectarine 0.5 12/31/21 Peach 0.5 12/31/21 *    *    *    *    *
    3. In § 180.603, revise the table in paragraph (b) to read as follows:
    § 180.603 Dinotefuran; tolerances for residues.

    (b) * * *

    Commodity Parts per
  • million
  • Expiration/
  • revocation
  • date
  • Fruit, pome, Group 11 2.0 12/31/21 Fruit, stone, Group 12 2.0 12/31/21
    [FR Doc. 2018-26346 Filed 12-4-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 180716668-8668-01] RIN 0648-BI37 International Fisheries; Pacific Tuna Fisheries; Fishing Restrictions for Fish Aggregating Devices in the Eastern Pacific Ocean AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    NMFS is issuing regulations under the Tuna Conventions Act to implement Resolution C-18-05 (Amendment of Resolution C-16-01 on the Collection and Analysis of Data on Fish-Aggregating Devices), which was adopted at the 93rd Meeting of the Inter-American Tropical Tuna Commission (IATTC) in August 2018. The Resolution includes construction standards for fish aggregating devices (FADs) intended to reduce entanglements of marine life when fishing for tropical tuna (i.e., bigeye tuna (Thunnus obesus), yellowfin tuna (Thunnus albacares), and skipjack tuna (Katsuwonus pelamis)) in the eastern Pacific Ocean (EPO). This final rule will revise the existing regulations for consistency with the new Resolution. In addition, this rule revises the definition of “Active FAD” and regulations related to activating FADs at sea that were codified in the April 2018 rule. This final rule is necessary for the conservation of living marine resources in the EPO and for the United States to satisfy its obligations as a member of the IATTC.

    DATES:

    This rule is effective January 7, 2019.

    ADDRESSES:

    Copies of the Regulatory Impact Review, and other supporting documents are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2018-0124, or by contacting the Highly Migratory Species Branch Chief, Heidi Taylor, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90208, [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Rachael Wadsworth, NMFS at 562-980-4036.

    SUPPLEMENTARY INFORMATION:

    Background

    The final rule is implemented under the Tuna Conventions Act (16 U.S.C. 951 et seq.). This final rule applies to U.S. purse seine vessels fishing for tropical tunas in the IATTC Convention Area. The IATTC Convention Area is defined as waters of the EPO bounded by the west coast of the Americas and by 50° N latitude, 150° W longitude, and 50° S latitude.

    Changes From Final Rule Published in April 2018

    Resolution C-18-05 imposes new restrictions on FAD design standards. NMFS implemented FAD construction standards adopted by the IATTC in a final rule published on April 11, 2018, in the Federal Register (83 FR 15503) which implemented Resolution C-17-02 (Conservation Measures for Tropical Tunas in the Eastern Pacific Ocean During 2018-2020 and Amendment to Resolution C-17-01). These regulations are set to become effective January 1, 2019.

    Although Resolution C-17-02 included broadly worded restrictions on the use of entangling material on FADs, NMFS opted to establish standards that were more specific than the Resolution in the April 2018 final rule. NMFS did this to aid with compliance and enforcement and to further the intent of the Resolution that member nations require owners and operators of their vessels ensure FADs designed and deployed reduce entanglements of sharks, sea turtles, and other species.

    Under the April 2018 final rule, U.S. vessel owners, operators, or crew must ensure any netting used in the subsurface structure of the FAD is tightly tied into bundles (“sausages”). In addition, if the FAD design includes a covered raft (e.g., flat raft or rolls of material) and if mesh netting is used for the cover, the mesh netting must be tightly wrapped around the entire raft such that no loose netting hangs below.

    New Regulations Beginning in 2019

    This final rule implements provisions in Resolution C-18-05 that specifies materials and designs that must be used to reduce entanglement on FADs; those specifications are only partially consistent with the April 2018 final rule. In accordance with Resolution C-18-05, this final rule gives fishermen an additional option for netting that hangs beneath a FAD, i.e., netting with small mesh (stretched mesh size less than 7 centimeters) in a panel that is weighted on the lower end with at least enough weight to keep the netting taut in the water column. In addition, also in accordance with Resolution C-18-05, this final rule also requires that if mesh netting is used as part of the raft (e.g., flat raft or rolls of material) then the mesh netting must be small mesh and must be tightly wrapped such that no netting hangs below the FAD when deployed. This final rule also includes a definition for mesh as the distance between the inside of one knot to the inside of the opposing knot when the mesh is stretched, regardless of twine size.

    These requirements are intended to prohibit FAD designs that are most dangerous for bycatch species, such as sharks. As stated in the preamble of the April 2018 final rule, NMFS recognizes that any netting used in a FAD may become loose over time. However, to achieve the intent of Resolution C-18-05, the netting must remain secure and tight whenever deployed. Therefore, NMFS reminds the fleet that in order to keep FADs in compliance with these regulations, the purse seine operators must remain vigilant in maintaining and securing all mesh net used in FADs.

    Futhermore, NMFS recognizes that the IATTC may continue to conduct more work to define non-entangling FADs and to develop more specific guidance on materials and designs for FADs. The United States intends to continue working with the IATTC FAD Working Group and the IATTC on methods to reduce entanglements in FADs. These regulations are likely to be amended again in the next few years as the IATTC refines FAD design requirements.

    Although Resolution C-17-02 does not specifically define an “Active FAD,” paragraph 10 of Resolution C-17-02 states that for the purposes of this resolution, a FAD is considered active when it: (a) Is deployed at sea; and (b) starts transmitting its location and is being tracked by the vessel, its owner, or operator. The April 2018 Final rule codified a definition of “Active FAD” at 50 CFR 300.21 as a FAD that is equipped with gear capable of tracking location, such as radio or satellite buoys. A FAD with this equipment attached shall be considered an Active FAD unless/until the equipment is removed and the vessel owner or operator notifies the IATTC or HMS Branch that the FAD is no longer active (i.e., deactivated). After publication of that rule, information became available to NMFS from both industry and the IATTC FAD Working Group meetings that revealed U.S. vessels and vessels from other countries often stop tracking the location of FADs, while the FAD is deployed on the high seas, but typically do not remove the tracking equipment from FADs. Sometimes vessel owners or operators sell the information or the right to access the existing tracking equipment to other vessel owners or operators; the new owners/operators then assume ownership and start tracking the FAD. The owner of the FAD also, at times, stop tracking the location of a FAD for a period of time and then “reactivate” and begin to track the location of the FAD again at a later time.

    In re-evaluating the meaning of “Active FAD” in Resolution C-17-02, NMFS interprets paragraph 10(b) to mean that an Active FAD is a FAD that is being “tracked” by a vessel owner or operator. Therefore, in this rule, NMFS revises the definition of Active FAD to clarify that a FAD that a FAD is considered Active when its location is being tracked by the vessel owner or operator using tracking equipment, such as radio or satellite buoys. A FAD shall be considered an Active FAD unless/until (i) the vessel is no longer tracking it, and (ii) the vessel owner or operator notifies the IATTC that the FAD is no longer active (i.e., deactivated). In addition, NMFS is revising the prohibition at § 300.24 (kk) and FAD restrictions at § 300.28 (b) to clarify that “when deploying a FAD” the tracking equipment must be turned on. This revision is necessary to clarify that FADs already deployed at sea may be reactivated if they were previously deactivated.

    Classification

    After consultation with the Departments of State and Homeland Security, the NMFS Assistant Administrator has determined that this final rule is consistent with the Tuna Conventions Act of 1950, as amended, and other applicable laws, subject to further consideration after public comment.

    This rule has been determined to be not significant for purposes of Executive Order 12866.

    This rule does not require new collection-of-information requirements subject to the Paperwork Reduction Act (PRA). The existing information collection approval requirements under Office of Management and Business (OMB) Control No. 0648-0148 (West Coast Region Pacific Tuna Fisheries Logbook and Fish Aggregating Device Form) covers the collections of information as amended by this rule. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

    The Assistant Administrator for Fisheries has determined that the need to comply by January 2019 with the international obligations of the United States under a binding resolution adopted by the IATTC under the Antigua Convention constitutes good cause, under 5 U.S.C. 553(b)(B), to waive the requirement for providing advance notice and comment.

    Good cause exists because the IATTC adopted Resolution C-18-05 at the end of August, effective January 2019, rather than adopting the resolution in June or early July, which is the typical timing of the IATTC annual meeting. If the effectiveness of this rule were delayed pending publication of a proposed rule, consideration of additional public comments, and a 30-day delay in effectiveness, the U.S. would likely miss the January 2019 deadline and be out of compliance with a binding resolution. Additionally, the purse seine industry would be delayed in being allowed the option of using small mesh hanging in a panel beneath FADs, which we understand industry prefers to the current requirement that it be tied in a bundle.

    Further rationale for finding good cause to waive advance notice and comment is that the proposed rule published on November 14, 2017, in the Federal Register (82 FR 52700) to implement Resolution C-17-02 (Conservation Measures for Tropical Tunas in the Eastern Pacific Ocean During 2018-2020 and Amendment to Resolution C-17-01), gave the public notice that the FAD design requirements were likely to be further refined. The revised requirements in Resolution C-18-05 are within the scope of the alternatives for FAD design discussed in that proposed rule. NMFS had initially proposed more stringent FAD construction requirements than those that were promulgated in the final rule. The changes between the proposed and final rule were made in consideration of a comment from the American Tunaboat Association (ATA) that proposed FAD design regulation went beyond the requirements in Resolution C-17-02 and would disadvantage the U.S. fleet.

    The revisions to the Active FAD definition and regulations related to activating a FAD before deploying in the water will relieve restrictions, as explained in the preamble of this rule.

    The owners and operators of the sixteen U.S. large purse seine vessels registered to fish in the EPO that would be impacted by the rule are already familiar with the measures adopted by the IATTC. In addition to sending professional representatives and lobbyists, many owners and operators personally attended the 2017 and 2018 IATTC meetings when Resolution C-17-02 and C-18-05 were adopted and were closely involved in briefings and discussions with U.S. State Department and NOAA leadership and staff. This action is necessary for the United States to satisfy its international obligations as a member of the IATTC.

    As soon as the rule is published, NMFS will send a notice of this rule to owners of vessels that are affected by this rule. The Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), requires a Regulatory Flexibility Analysis only for rules promulgated through notice and comment rulemaking under Section 553(b) of the Administrative Procedure Act or any other law. Because there is good cause to waive notice and comment for this final rule, an RFA Analysis was not prepared for this rule.

    List of Subjects in 50 CFR Part 300

    Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties.

    Dated: November 29, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 300, subpart C, is amended as follows:

    PART 300—INTERNATIONAL FISHERIES REGULATIONS Subpart C—Eastern Pacific Tuna Fisheries 1. The authority citation for part 300, subpart C, continues to read as follows: Authority:

    16 U.S.C. 951 et seq.

    2. In § 300.21, revise the definition of “Active FAD” and add a definition for “Mesh size” in alphabetical order to read as follows:
    § 300.21 Definitions.

    Active FAD means a FAD whose location is being tracked by the vessel owner or operator using tracking equipment, such as radio or satellite buoys. A FAD shall be considered an Active FAD unless/until the vessel is no longer tracking its location and the vessel owner or operator notifies the IATTC that the FAD is no longer active (i.e., deactivated).

    Mesh size means the distance between the inside of one knot to the inside of the opposing knot when the mesh is stretched, regardless of twine size.

    3. In § 300.24, revise paragraph (kk) to read as follows:
    § 300.24 Prohibitions.

    (kk) When deploying a FAD, activate the transmission equipment attached to a FAD in a location other than on a purse seine vessel at sea as required in § 300.28(b).

    4. In § 300.28, revise paragraph (b) and (e), added by the final rule at 83 FR 15510, April 11, 2018, to read as follows:
    § 300.28 FAD restrictions.

    (b) Activating FADs for purse seine vessels. When deploying a FAD, a vessel owner, operator, or crew shall turn on the tracking equipment while the FAD is onboard the purse seine vessel and before it is deployed in the water.

    (e) FAD design requirements to reduce entanglements. All FADs onboard or deployed by U.S. vessel owners, operators, or crew, must comply with the following design requirements:

    (1) Raft: If the FAD design includes a raft (e.g., flat raft or rolls of material) and if mesh netting is used as part of the structure, the mesh netting shall have a mesh size less than 7 centimeters and the mesh net must be tightly wrapped such that no netting hangs below the FAD when deployed; and,

    (2) Subsurface: Any netting used in the subsurface structure of the FAD must be tightly tied into bundles (“sausages”), or have stretched mesh size less than 7 centimeters in a panel that is weighted on the lower end with at least enough weight to keep the netting taut in the water column.

    [FR Doc. 2018-26387 Filed 12-4-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 1710319998630-02] RIN 0648-XG652 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Re-Opening of Commercial Harvest for South Atlantic Red Snapper AGENCY:

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

    ACTION:

    Temporary rule; re-opening.

    SUMMARY:

    NMFS announces the re-opening of the commercial sector for red snapper in the exclusive economic zone (EEZ) of the South Atlantic through this temporary rule. The most recent commercial landings of red snapper indicate that the commercial annual catch limit (ACL) for the 2018 fishing year has not yet been reached. Therefore, NMFS re-opens the commercial sector for red snapper in the South Atlantic EEZ for 10 calendar days to allow the commercial ACL to be reached, while minimizing the risk of the commercial ACL being exceeded.

    DATES:

    This rule is effective 12:01 a.m., local time, December 5, 2018, until 12:01 a.m., local time, December 15, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The snapper-grouper fishery of the South Atlantic includes red snapper and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

    The commercial ACL for red snapper in the South Atlantic is 124,815 lb (56,615 kg), round weight. Under 50 CFR 622.193(y)(1), NMFS is required to close the commercial sector for red snapper when landings reach, or are projected to reach, the commercial ACL by filing a notification to that effect with the Office of the Federal Register.

    NMFS previously projected that the commercial ACL for South Atlantic red snapper for the 2018 fishing year would be reached by November 7, 2018. Accordingly, NMFS published a temporary rule in the Federal Register to implement accountability measures (AMs) to close the commercial sector for red snapper in the South Atlantic EEZ effective November 7, 2018 (83 FR 55292; November 5, 2018).

    However, recent landings data for red snapper indicate that the commercial ACL has not been yet been reached. Consequently, and in accordance with 50 CFR 622.8(c), NMFS temporarily re-opens the commercial sector for red snapper effective at 12:01 a.m. on December 5, 2018. The commercial sector will remain open for 10 calendar days and will close at 12:01 a.m. on December 15, 2018. Re-opening the commercial sector for 10 days allows an additional opportunity to commercially harvest the red snapper ACL while minimizing the risk of exceeding the commercial ACL. For the 2019 fishing year, NMFS will announce the commercial season opening date in the Federal Register.

    Classification

    The Regional Administrator, NMFS Southeast Region, has determined this temporary rule is necessary for the conservation and management of red snapper and the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.8(c) and is exempt from review under Executive Order 12866.

    These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

    This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA), finds that the need to immediately implement this action to temporarily re-open the commercial sector for red snapper constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the commercial ACL and AMs for red snapper has already been subject to notice and comment, and all that remains is to notify the public of the re-opening. Such procedures are contrary to the public interest because of the need to immediately implement this action to allow commercial fishers to further harvest the commercial ACL of red snapper from the South Atlantic EEZ, while minimizing the risk of exceeding the commercial ACL. Prior notice and opportunity for public comment would require time and would delay the re-opening of the commercial sector.

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 30, 2018. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-26433 Filed 11-30-18; 4:15 pm] BILLING CODE 3510-22-P
    83 234 Thursday, December 6, 2018 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0977; Product Identifier 2018-CE-041-AD] RIN 2120-AA64 Airworthiness Directives; Rockwell Collins, Inc. Flight Management Systems AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Rockwell Collins, Inc. (Rockwell Collins) flight management systems (FMS) installed on airplanes. This proposed AD was prompted by reports of the flight management computer (FMC) software issuing incorrect turn commands when the altitude climb field is edited or the temperature compensation is activated on the FMS control display unit. This proposed AD would require disabling the automatic temperature compensation feature of the FMS through the configuration strapping units (CSU) and revising the airplane flight manual (AFM) Limitations section. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by January 22, 2019.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Rockwell Collins, Inc., Collins Aviation Services, 400 Collins Road NE, M/S 164-100, Cedar Rapids, IA 52498-0001; telephone: 888-265-5467 (U.S.) or 319-265-5467; fax: 319-295-4941 (outside U.S.); email: [email protected]; internet: http://www.rockwellcollins.com/Services_and_Support/Publications.aspx. You may review copies of the referenced service information at the FAA, Policy and Innovation Division, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0977; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is listed above. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Avi Acharya, Aerospace Engineer, Wichita Aircraft Certification Office, FAA, 1801 Airport Road, Room 100, Wichita, Kansas 67209; phone: 316-946-4192; fax: 316-946-4107; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0977; Product Identifier 2018-CE-041-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    During flight inspection on a Bombardier Model CRJ-200 airplane, Nav Canada, which is Canada's civil air navigation service provider, observed the FMS map displaying an incorrect turn for the Fort St. John airport instrument landing system runway 29 missed approach while using temperature compensation. Nav Canada assumed this was only an issue with the map display and reported the incident to Rockwell Collins.

    Rockwell Collins subsequently determined that an error in the design of the Pro Line 4 and Pro Line 21 FMC software causes changes to the procedure-defined turn direction when the procedure has been significantly modified. The FMS will change the planned database turn direction to an incorrect turn direction when the altitude climb field is edited, and the flight crew may not notice the change during climb. The FMS will also change the planned database turn direction to an incorrect turn direction if the temperature compensation is activated, which may go unnoticed by the flight crew with the increased workload involved with a missed approach procedure. Editing the altitude or using temperature compensation does not change the flight segment. However, due to the design error, the software thinks the flight segment has changed. The change of the planned turn direction can occur for either left or right turns.

    The FMS commanding incorrect turn direction may result in a collision or controlled flight into terrain.

    Related Service Information Under 1 CFR Part 51

    We reviewed Rockwell Collins Service Information Letter, CSU-XX00-18-1, dated June 27, 2018. The service letter contains procedures for disabling the automatic temperature compensation option in Pro Line 4 and Pro Line 21 FMC systems. We also reviewed Rockwell Collins Service Information Letter FMC-XX00-18-1, dated June 27, 2018. The service letter provides instructions for revising the Limitations section of the AFM by adding prohibitions on editing altitudes for specific Pro Line 4 and Pro Line 21 Flight Management Systems. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require disabling the automatic temperature compensation feature on the FMS through the CSUs. This proposed AD would also require revising the Limitations section of the AFM by adding limitations on the use of the temperature compensation feature and the editing of altitudes.

    Costs of Compliance

    We estimate that this proposed AD affects 2,855 products installed on airplanes of U.S. registry.

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

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • CSU strapping change 2 work-hours × $85 per hour = $170 Not applicable $170 $485,350 Revision to the AFM Limitations section .5 work-hour × $85 per hour = $42.50 Not applicable 42.50 121,337.50
    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Rockwell Collins, Inc.: Docket No. FAA-2018-0977; Product Identifier 2018-CE-041-AD. (a) Comments Due Date

    We must receive comments by January 22, 2019.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Rockwell Collins, Inc. (“Rockwell Collins”) Pro Line 4 and Pro Line 21 Flight Management Systems installed on airplanes, certificated in any category, that has a flight management computer (FMC) with a Rockwell Collins part number (RCPN) listed in paragraph (c)(1) of this AD and with a configuration strapping unit (CSU) listed in paragraph (c)(2) of this AD.

    (1) FMC-3000 RCPN 822-0883-031, -036, -038, -040, -041, -053, -054, -056, -057, -058, -059, -060, -081, -082, -083, -084; FMC-4200 RCPN 822-0783-022, -025, -028, -032, -036, -039, -040; FMC-5000 RCPN 822-0891-021, -027, -028, -034, -040; or FMC-6000 RCPN 822-0868-074, -075, -082, -083, -084, -085, -087, -089, -090, -109, -17, -111, -112, -113, -114, -116, -117, -122, -123, -127, -130, -132, -133, -134, -139.

    (2) CSU-3100 RCPN 822-1363-002, CSU-4000 RCPN 822-0049-002, or CSU-4100 RCPN 822-1364-002.

    Note 1 to paragraph (c) of this AD:

    To determine the CSU and FMC unit RCPN, refer to the aircraft manufacturer or applicable STC holder maintenance instructions for accessing them.

    (d) Subject

    Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 3460, Flight Management Computing Hardware System.

    (e) Unsafe Condition

    This AD was prompted by reports of the FMC software issuing incorrect turn commands when the altitude climb field is edited or when the temperature compensation is activated. We are issuing this AD to prevent the FMC from issuing an incorrect turn direction command. The unsafe condition, if not addressed, could result in a collision or controlled flight into terrain.

    (f) Compliance

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

    (g) Disable the Temperature Compensation

    Within the next 12 months after the effective date of this AD, disable the automatic temperature compensation feature on the CSU by following steps (2) through (6) of the Instructions in Rockwell Collins Service Information Letter CSU-XX00-18-1, dated June 27, 2018.

    (h) Revise the Airplane Flight Manual Limitations

    Within the next 12 months after the effective date of this AD, revise the airplane flight manual by adding the information from step 2 of the Aircraft Flight Manual Recommendation in Rockwell Collins Service Information Letter FMC-XX00-18-1, dated June 27, 2018, into the Limitations section of the AFM.

    (i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Wichita ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j)(1) of this AD.

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (j) Related Information

    (1) For more information about this AD, contact Avi Acharya, Aerospace Engineer, Wichita ACO Branch, FAA, 1801 Airport Road, Room 100, Wichita, Kansas 67209; phone: 316-946-4192; fax: 316-946-4107; email: [email protected]

    (2) For service information identified in this AD, contact Rockwell Collins, Inc., Collins Aviation Services, 400 Collins Road NE, M/S 164-100, Cedar Rapids, IA 52498-0001; telephone: 888-265-5467 (U.S.) or 319-265-5467; fax: 319-295-4941 (outside U.S.); email: [email protected]; internet: http://www.rockwellcollins.com/Services_and_Support/Publications.aspx. You may view this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.

    Issued in Kansas City, Missouri, on November 26, 2018. Melvin J. Johnson, Aircraft Certification Service, Deputy Director, Policy and Innovation Division, AIR-601.
    [FR Doc. 2018-26253 Filed 12-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-1003; Product Identifier 2018-NM-133-AD] RIN 2120-AA64 Airworthiness Directives; Airbus SAS Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Airbus SAS Model A330-201, -202, and -203, and Model A330-301, -302, and -303 airplanes. This proposed AD was prompted by reports of damaged drain pipes located above the lower aft pylon fairing (LAPF), caused by a contact between the drain pipe and the two u-shape ribs of the LAPF. This proposed AD would require a special detailed inspection for damage and corrective actions, if necessary. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by January 22, 2019.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Airbus SAS, Airworthiness Office—EAL, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; phone: +33 5 61 93 36 96; fax: +33 5 61 93 45 80; email: [email protected]; internet: http://www.airbus.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-1003; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Vladimir Ulyanov, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3229.

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-1003; Product Identifier 2018-NM-133-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0198, dated September 6, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A330-201, -202, and -203, and Model A330-301, -302, and -303 airplanes. The MCAI states:

    Some cases of damaged drain pipes, Part Number F7173000700000, located above the Lower Aft Pylon Fairing (LAPF) and dedicated to drain pylon compartment A in case of hydraulic fluid leakage, were reported. Subsequent examination identified that the cracks were caused by a contact between the drain pipe and the two U-Shape Ribs of the LAPF. This interference condition can be present during the installation of the LAPF assembly to the pylon. The trailing edge assembly of the fairing has an internal frame bracket and shear clip which can cause chafing with the hydraulic drain pipes.

    This condition, if not detected and corrected, combined with an additional independent failure as hydraulic leakage in pylon compartment A, could lead to hydraulic leakage in the LAPF box. In addition, the hydraulic fluid may flow forward of the LAPF and leak above engine hot surfaces, possibly resulting in a temporary uncontrolled fire in the pylon compartment A, and consequent reduced control of the aeroplane.

    To address this unsafe condition, Airbus issued the inspection SB [Airbus Service Bulletin A330-54-3042, dated May 17, 2018] to provide instructions for a special detailed inspection (SDI) of the LAPF drain pipes.

    For the reasons described above, this [EASA] AD requires a one-time SDI (borescope inspection method) of the LAPF of each pylon [for damage (including but not limited to cracks and leaks of the hydraulic drain pipe, and contact, interference, and chafing of the internal frame bracket and the shear clip of the trailing edge assembly of the LAPF with the aircraft hydraulic drain pipe)] and, depending on findings, replacement of the LAPF drain pipes and clamp block, and rework of the U-shape ribs.

    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-2018-1003.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued the following service information.

    • Airbus Service Bulletin A330-54-3041, dated May 17, 2018. This service information describes procedures for replacement of the hydraulic drain pipe clamp blocks of the LAPFs of the left-hand (LH) and right-hand (RH) pylons and modification of the LAPFs.

    • Airbus Service Bulletin A330-54-3042, dated May 17, 2018. This service information describes procedures for a special detailed inspection for damage (including but not limited to cracks and leaks of the hydraulic drain pipe, and contact, interference, and chafing of the internal frame bracket and the shear clip of the trailing edge assembly of the LAPF with the aircraft hydraulic drain pipe), and corrective actions. Corrective actions include replacement of the hydraulic drain pipe at the LH or RH pylon.

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

    FAA's Determination

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

    Proposed Requirements of This NPRM

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

    Costs of Compliance

    We estimate that this proposed AD affects 10 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs for Required Actions Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    2 work-hours × $85 per hour = $170 $0 $170 $1,700

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

    Estimated Costs of On-Condition Actions Labor cost Parts cost Cost per
  • product
  • 29 work-hours × $85 per hour = $2,465 $1,640 $4,105

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus SAS: Docket No. FAA-2018-1003; Product Identifier 2018-NM-133-AD. (a) Comments Due Date

    We must receive comments by January 22, 2019.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the Airbus SAS airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category, all manufacturer serial numbers, except those on which Airbus modification 207430 has been embodied in production, or Airbus Service Bulletin A330-54-3041 has been embodied in service.

    (1) Model A330-201, -202, and -203 airplanes.

    (2) Model A330-301, -302, and -303 airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 54, Nacelles/pylons.

    (e) Reason

    This AD was prompted by reports of damaged drain pipes located above the lower aft pylon fairing (LAPF), caused by a contact between the drain pipe and the two u-shape ribs of the LAPF. We are issuing this AD to address damaged drain pipes located above the LAPF, which combined with an additional independent failure could lead to hydraulic leakage in the LAPF box, possibly resulting in a temporary uncontrolled fire and consequent reduced control of the airplane.

    (f) Compliance

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

    (g) One-Time Inspections

    Within 26 months after the effective date of this AD, accomplish a one-time special detailed inspection of the pylon drain pipes (inside and outside) on the left-hand and right-hand pylons, located above both LAPFs, for contact with the U-shaped ribs of the LAPF and damage (including but not limited to cracks and leaks of the pylon drain pipe, and contact, interference, and chafing of the internal frame bracket and the shear clip of the trailing edge assembly of the LAPF with the pylon drain pipe) in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-54-3042, dated May 17, 2018.

    (h) Corrective Actions

    If, during any inspection required by paragraph (g) of this AD, any damage is found, at the applicable time specified in Airbus Service Bulletin A330-54-3042, dated May 17, 2018, accomplish the applicable corrective actions on the affected pylon in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-54-3042, dated May 17, 2018; and Airbus Service Bulletin A330-54-3041, dated May 17, 2018.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

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

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0198, dated September 6, 2018, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-1003.

    (2) For more information about this AD, contact Vladimir Ulyanov, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3229.

    (3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; phone: +33 5 61 93 36 96; fax: +33 5 61 93 45 80; email: [email protected]; internet: http://www.airbus.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on November 23, 2018. John P. Piccola, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-26360 Filed 12-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-1004; Product Identifier 2018-NM-106-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This proposed AD was prompted by reports of cracks caused by corrosion of the edge of the bore of the spot face and corrosion of the lug bore of certain side-strut support fitting lugs. This proposed AD would require repetitive detailed inspections of the left and right side-strut support fitting lugs with bushings installed for any corrosion, any crack, or any severed lug; repetitive detailed and high frequency eddy current (HFEC) inspections of the left and right side-strut support fitting lugs with bushings removed for any corrosion or any crack; and applicable on-condition actions. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by January 22, 2019.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-1004.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-1004; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Alan Pohl, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3527; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-1004; Product Identifier 2018-NM-106-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    We have received reports of cracks caused by corrosion of the edge of the bore of the spot face and corrosion of the lug bore of the body station (BS) 685 side-strut support fitting lugs. This condition, if not addressed, could result in sudden loss of the side-strut support fitting joint and main landing gear attachment to the airplane, resulting in the collapse of a main landing gear.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Service Bulletin 737-53-1246, Revision 1, dated May 30, 2018. This service information describes procedures for repetitive detailed inspections of the left and right side-strut support fitting lugs at BS 685 with bushings installed for any corrosion, any crack, or any severed lug; repetitive detailed and HFEC inspections of the left and right side-strut support fitting lugs at BS 685 with bushings removed for any corrosion or any crack; and applicable on-condition actions. On-condition actions include, among other things, inspections, corrosion removal, and a preventative modification. Doing the repetitive detailed and HFEC inspections of the side-strut support fitting lugs at BS 685 with bushings removed terminates the repetitive detailed inspections of the side-strut support fitting lugs at BS 685 with bushings installed. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require accomplishment of the actions identified as “RC” (required for compliance) in the Accomplishment Instructions of Boeing Service Bulletin 737-53-1246, Revision 1, dated May 30, 2018, described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

    For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-1004.

    Costs of Compliance

    We estimate that this proposed AD affects 302 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs for Required Actions Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Repetitive detailed inspection of left and right side lugs with bushings installed 17 work-hours × $85 per hour = $1,445 per inspection cycle $0 $1,445 per inspection cycle $436,390 per inspection cycle. Repetitive detailed and HFEC inspections of left and right side lugs with bushings removed 29 work-hours × $85 per hour = $2,465 per inspection cycle 0 $2,465 per inspection cycle $744,430 per inspection cycle.

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

    Estimated Costs of On-Condition Actions Labor cost Parts cost Cost per product Up to 18 work-hour × $85 per hour = $1,530 per inspection cycle Unknown Up to $1,530 per inspection cycle.

    We have received no definitive data that would enable us to provide parts cost estimates for the on-condition inspections and repairs specified in this proposed AD.

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2018-1004; Product Identifier 2018-NM-106-AD. (a) Comments Due Date

    We must receive comments by January 22, 2019.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Unsafe Condition

    This AD was prompted by reports of cracks caused by corrosion of the edge of the bore of the spot face and corrosion of the lug bore of the body station (BS) 685 side-strut support fitting lugs. We are issuing this AD to address cracks caused by corrosion, which could result in sudden loss of the side-strut support fitting joint and main landing gear attachment to the airplane, resulting in the collapse of a main landing gear.

    (f) Compliance

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

    (g) Actions for Group 7

    For airplanes identified as Group 7 in Boeing Service Bulletin 737-53-1246, Revision 1, dated May 30, 2018: Within 120 days after the effective date of this AD, inspect the left and right side-strut support fitting lugs at BS 685 and do all applicable on-condition actions using a method approved in accordance with the procedures specified in paragraph (j) of this AD.

    (h) Required Actions for Groups 1 Through 6

    For airplanes identified as Groups 1 through 6 in Boeing Service Bulletin 737-53-1246, Revision 1, dated May 30, 2018, except as specified in paragraph (i) of this AD: At the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Service Bulletin 737-53-1246, Revision 1, dated May 30, 2018, do all applicable actions identified as “RC” (required for compliance) in, and in accordance with, the Accomplishment Instructions of Boeing Service Bulletin 737-53-1246, Revision 1, dated May 30, 2018.

    (i) Exceptions to Service Information Specifications

    (1) For purposes of determining compliance with the requirements of this AD: Where Boeing Service Bulletin 737-53-1246, Revision 1, dated May 30, 2018, uses the phrase “the Revision 1 date of this service bulletin,” this AD requires using “the effective date of this AD.”

    (2) Where Boeing Service Bulletin 737-53-1246, Revision 1, dated May 30, 2018, specifies contacting Boeing for repair instructions or for work instructions: This AD requires doing the repair or the work instructions and doing applicable on-condition actions using a method approved in accordance with the procedures specified in paragraph (j) of this AD.

    (j) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (k)(1) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) Except as required by paragraph (i) of this AD: For service information that contains steps that are labeled as RC, the provisions of paragraphs (j)(4)(i) and (j)(4)(ii) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

    (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    (k) Related Information

    (1) For more information about this AD, contact Alan Pohl, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3527; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on November 23, 2018. John P. Piccola, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-26361 Filed 12-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Part 9 [Docket No. TTB-2018-0009; Notice No. 178] RIN 1513-AC43 Proposed Establishment of the Crest of the Blue Ridge Henderson County Viticultural Area AGENCY:

    Alcohol and Tobacco Tax and Trade Bureau, Treasury.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Alcohol and Tobacco Tax and Trade Bureau (TTB) proposes to establish the approximately 215-square mile “Crest of the Blue Ridge Henderson County” viticultural area in Henderson County, North Carolina. The proposed viticultural area is not located within, nor does it contain, any other established viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase. TTB invites comments on this proposed addition to its regulations.

    DATES:

    Comments must be received by February 4, 2019.

    ADDRESSES:

    Please send your comments on this proposed rule to one of the following addresses:

    internet: https://www.regulations.gov (via the online comment form for this proposed rule as posted within Docket No. TTB-2018-0009 at “Regulations.gov,” the Federal e-rulemaking portal);

    U.S. Mail: Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; or

    Hand delivery/courier in lieu of mail: Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Suite 400, Washington, DC 20005.

    See the Public Participation section of this proposed rule for specific instructions and requirements for submitting comments, and for information on how to request a public hearing or view or request copies of the petition and supporting materials.

    FOR FURTHER INFORMATION CONTACT:

    Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.

    SUPPLEMENTARY INFORMATION: Background on Viticultural Areas TTB Authority

    Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01, dated December 7, 2013, (superseding Treasury Order 120-01,dated January 24, 2003), to the TTB Administrator to perform the functions and duties in the administration and enforcement of these provisions.

    Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.

    Definition

    Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

    Requirements

    Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:

    • Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;

    • An explanation of the basis for defining the boundary of the proposed AVA;

    • A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;

    • The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and

    • A detailed narrative description of the proposed AVA boundary based on USGS map markings.

    Crest of the Blue Ridge Henderson County Petition

    TTB received a petition from Mark Williams, the executive director of Agribusiness Henderson County, and Barbara Walker, the county extension support specialist for North Carolina Cooperative Extension, on behalf of local grape growers and winemakers, proposing to establish the approximately 215-square mile “Crest of the Blue Ridge Henderson County” AVA. The proposed AVA has 14 commercial vineyards, covering a total of approximately 70 acres. According to the petition, several existing vineyards are planning to expand by a total of 55 additional acres in the next 5 years. In addition, there are two wineries located within the proposed AVA.

    According to the petition, the distinguishing features of the proposed Crest of the Blue Ridge Henderson County AVA are its climate and topography—specifically its elevation. Unless otherwise noted, all information and data pertaining to the proposed AVA contained in this proposed rule comes from the petition for the proposed Crest of the Blue Ridge Henderson County AVA and its supporting exhibits.

    Name Evidence

    The proposed Crest of the Blue Ridge Henderson County AVA straddles the ridgeline that forms the crest of the Blue Ridge Mountains. The ridgeline forming the crest of the Blue Ridge is marked and labeled on eight of the nine U.S.G.S. topographic maps used to form the boundary of the proposed AVA. Because the entire crest covers a multi-State region that is significantly larger than the proposed AVA, the petitioners added “Henderson County” to the proposed name in order to identify the location of the proposed AVA more specifically. TTB is not requiring the addition of “North Carolina” to the proposed name because TTB is not aware of the crest of the Blue Ridge Mountains running through any other county named Henderson County.

    According to the petition, the term “Crest of the Blue Ridge” was first used by Colonel Joseph Pratt, who was the chief of the North Carolina Geological and Economic Survey from 1906 to 1923.1 In 197, Pratt proposed creating a scenic road and chain of tourist hotels atop or adjacent to the summit of the Blue Ridge Mountains. Pratt named the project the “Crest of the Blue Ridge Highway.” Several small sections of the road were built, but the start of World War I interrupted the work, and completion was put on hold. In the end, the project was never completed, but the term “Crest of the Blue Ridge” survived and remains in widespread, present-day use to describe areas of the Southern Appalachians, especially in North Carolina.

    1See North Carolina History Project (site last accessed August 27, 2018), https://northcarolinahistory.org/encyclopedia/blue-ridge-parkway; see also Mitchell County Historical Society (site last accessed August 27, 2018), http://mitchellnchistory.org/2016/12/21/crest-blue-ridge-highway-parkway-parkway/.

    The petition included examples of current use of the term “Crest of the Blue Ridge” to describe the region of the proposed AVA. Henderson County is also often promoted as the Crest of the Blue Ridge Agricultural Area for its variety of commercial agricultural products. For example, the Henderson County Tourism Development Authority's “Cheers Trail” publication, which advertises commercial breweries, cideries, and wineries in the county, notes that all the producers on the trail are “located in Henderson County in the Crest of the Blue Ridge Agricultural Area.” 2 The county also promotes its apple orchards with its Crest of the Blue Ridge Orchard Trail guide.3 Agribusiness Henderson County, a local non-profit agriculture and agri-tourism advocate, promotes the county's farm businesses through its Southern Mountain Fresh brand, which states, “Enjoy the freshness of the Crest of the Blue Ridge Mountains and sustain our local heritage.” 4

    2 Henderson County Tourism Development Authority (site last accessed August 27, 2018), http://visithendersonvillenc.org/wp-content/uploads/cheers-trail.pdf.

    3 Henderson County Tourism Development Authority (site last accessed August 27, 2018), http://visithendersonvillenc.org/wp-content/uploads/crest-br-orchard-trail-1.pdf.

    4 Agribusiness Henderson County (site last accessed August 27, 2018), http://southernmountainfresh.com.

    Finally, two wineries with vineyards within the proposed AVA use the term “Crest of the Blue Ridge” to describe their locations. Burntshirt Vineyards' website states that its vineyards occupy “. . . a unique position with two vineyards on both sides of the Eastern Continental Divide on the Crest of the Blue Ridge.” 5 St. Paul Mountain Vineyards' website describes its vineyards as being “on the crest of the Blue Ridge in Edneyville.” 6

    5 Burntshirt Vineyards (site last accessed August 27, 2018), http://www.burntshirtvineyards.com/info/vineyards.

    6 St. Paul Mountain Vineyards (site last accessed August 27, 2018), http://saintpaulmountainvineyards.com/scripts/historyPg.cfm.

    Boundary Evidence

    The proposed Crest of the Blue Ridge Henderson County AVA is located in Henderson County, North Carolina, and straddles the ridgeline that forms the crest of the Blue Ridge Mountains. To the east and south of the proposed AVA are the low, rolling hills of the Inner Piedmont region. To the west of the proposed AVA are the rugged mountains of the Pisgah National Forest. To the north of the proposed AVA are the Asheville Basin, which is marked by the wide valley of the French Broad River, and the rugged highlands that surround the basin.

    Distinguishing Features

    The distinguishing features of the proposed Crest of the Blue Ridge Henderson County AVA are its elevation and climate.

    Elevation

    The petition describes the proposed Crest of the Blue Ridge Henderson County AVA as straddling two physiographic provinces—the Blue Ridge Escarpment and the Blue Ridge Plateau, which are separated by the Eastern Continental Divide, also known as the Crest of the Blue Ridge. To the north of the proposed AVA are two distinct geomorphic regions: The Asheville Basin and a region of higher mountains known informally as the “northern highlands,” which includes the Black Mountain range and Mount Mitchell, the highest point east of the Mississippi River. To the east and south of the proposed AVA is the Inner Piedmont region. West of the proposed AVA are the rugged mountains of the Pisgah National Forest.

    The petition included information about the minimum, maximum, and mean elevations of the proposed Crest of the Blue Ridge Henderson County AVA and each of the surrounding regions. That information is summarized in the following table.

    Table 1—Elevation Region Elevation parameters
  • (in feet)
  • Minimum Maximum Mean
    Proposed AVA 1,394.4 4,396.3 2,361.8 North (Asheville Basin) 1,236.9 3,284.1 2,147.9 North (Highlands) 1,305.8 6,684.0 3,177.8 East 702.1 3,966.5 1,150.9 South 816.9 3,631.9 1,409.5 West 1,958.7 5,715.2 2,769.9

    The data in Table 1 shows that the proposed AVA has elevations that are generally lower than those in the region to the west and in the northern highlands region. The regions to the south and east of the proposed AVA, as well as in the Asheville Basin to the north, are generally lower than the proposed AVA. According to the petition, elevation plays a major role in determining the temperatures, length of growing season, and precipitation within the proposed AVA. In general, regions at high elevations have cooler temperatures and shorter growing seasons than regions at low elevations. Regions at intermediate elevations, such as the proposed AVA, generally have warmer temperatures and longer growing seasons than neighboring regions within higher elevations, and they have cooler temperatures and shorter growing seasons than adjacent lower elevations.

    Climate

    The petition for the proposed Crest of the Blue Ridge Henderson County AVA included information on several different climate aspects of the proposed AVA and surrounding regions, including average growing season temperatures, average length of growing season, growing degree day zones, and precipitation amounts for the proposed AVA and the surrounding regions. The climate data is based on data generated by the Precipitation-elevation Regressions on Independent Slopes Model (PRISM) Climate Group at Oregon State University.7

    7 PRISM Climate Group, Oregon State University, http://prism.oregonstate.edu. Data from the PRISM climate data mapping system was used to calculate the average growing season temperatures for the area within the proposed AVA and areas surrounding the proposed AVA. PRISM is a computerized climate mapping system that estimates climate patterns by using data gathered from weather stations, global positioning systems, and remote sensing technologies, along with other factors such as elevation, longitude, slope angles, and solar aspects. Such “climate normals” are only calculated every 10 years and at the time the petition was submitted, the most recent climate normals available were from the period of 1980-2010. See Christopher Daly and Kirk Bryant, June 2013, “The PRISM Climate and Weather System—An Introduction” (site last accessed August 27, 2018), http://prism.oregonstate.edu/documents/PRISM_history_jun2013.pdf; see also Daly et al., February 1994, “A Statistical-Topographic Model for Mapping Climatological Precipitation over Mountainous Terrain” (site last accessed August 27, 2018), http://prism.oregonstate.edu/documents/pubs/1994jappclim_mountainPrecip_gibson.pdf.

    Temperature

    First, the petition included information on the average growing season temperatures of the proposed AVA and the surrounding regions. The petition states that a professor at Southern Oregon University used the average growing season temperatures of major wine producing areas of the world to create four major “Climate/Maturity Groupings.” 8 The information was intended to help vineyard owners determine what varietals would ripen the best in their region.9 Using this system, the petitioners calculated the average growing season temperatures of the proposed AVA and the surrounding regions, as well as the percentage of land within each region that fell into each of the climate/maturity groupings, as summarized in Table 2.

    8See GuildSomm, Gregory Jones, “Climate Grapes, and Wine—Terroir and the Importance of Climate to Winegrape Production,” August 12, 2015 (site last accessed August 27, 2018), https://www.guildsomm.com/public_content/features/articles/b/gregory_jones/posts/climate-grapes-and-wine.

    9Id.

    Table 2—Average Growing Season Temperatures [Degrees Fahrenheit] Region Wine grape climate/maturity groupings Cool
  • (55-59 °F)
  • Intermediate
  • (59-63 °F)
  • Warm
  • (63-67 °F)
  • Hot
  • (67-72 °F)
  • Percentage of Each Region in Each Grouping Proposed AVA X X 94.9 5.1 North (Asheville Basin) X 1.7 97.0 1.3 North (Highlands) 4.0 66.7 29.3 X East X 4.9 13.4 81.7 South X X 3.8 96.2 West 5.6 57.2 36.5 0.7

    As shown in Table 2, the majority of the proposed Crest of the Blue Ridge Henderson County AVA has average annual growing season temperatures that are in the “Warm” grouping. No portion of the proposed AVA falls into the “Cool” or “Intermediate” groupings. The Ashville Basin region north of the proposed AVA has a larger percentage of land within the “Warm” grouping and also has some land that can be classified in the slightly cooler “Intermediate” grouping. The highlands region north of the proposed AVA and the region to the west of the proposed AVA are both primarily within the “Intermediate” grouping, while the regions to the south and east of the proposed AVA are mainly within the “Hot” grouping. According to the petition, regions in the “Warm” grouping are well-suited for growing grape varietals such as Merlot, Cabernet Franc, and Cabernet Sauvignon, which are among the most commonly grown grape varietals within the proposed AVA.

    Growing Season Length 10

    10 The petition defines “growing season length” as the average number of days between the last 28 °F temperature in the spring and the first occurrence of this temperature in the fall. The petition states that plant tissues begin to freeze and die at 28 °F. See also Institute for the Application of Geospatial Technologies and Cornell University's College of Agriculture and Life Sciences—New York Site Vineyard Elevation Project, Alan N. Lasko and Tim E. Martinson, “The Basics of Vineyard Site Elevation and Selection,” (site last accessed August 27, 2018), http://arcserver2.iagt.org/vll/learnmore.aspx.

    As shown in Tables 3 and 4 below, the petition also included data on the length of the growing season within the proposed Crest of the Blue Ridge Henderson County AVA and the surrounding regions. The petition states that according to a vineyard site study conducted by the Institute for the Application of Geospatial Technologies and Cornell University's College of Agriculture and Life Sciences,11 regions with growing seasons shorter than 160 days are generally unsuitable for vineyards because the grapes will not have sufficient time to ripen. Locations with growing seasons of 170 to 180 days are considered “satisfactory,” while sites with growing seasons of 180 to 190 days are considered “good.” Vineyard locations with growing seasons of over 190 days are considered “not limited by growing season” and are generally the most desirable sites.

    11See Lasko, id.

    Table 3—Growing Season Length Region Growing season length in days 140-150 150-160 160-170 170-180 180-190 190-200 200-210 210-220 220-230 230-240 Percentage of each region in each category Proposed AVA X X X 0.1 0.7 6.2 32.7 59.7 0.6 X North (Asheville Basin) X X X X X 0.1 13.5 82.8 3.6 X North (Highlands) 0.2 0.9 2.0 5.0 21.3 27.4 40.5 2.7 X X East X X X 0.2 0.6 2.4 5.9 13.0 41.6 36.3 South X X X X X 0.4 1.7 2.7 16.9 78.3 West X 1.1 3.9 7.9 17.5 26.4 29.5 13.3 0.4 X Table 4—Mean Growing Season Length Region Growing
  • season
  • length
  • (days)
  • Proposed AVA 209 North (Asheville Basin) 213 North (Highlands) 197 East 225 South 231 West 196

    The data in Tables 3 and 4 shows that the proposed Crest of the Blue Ridge Henderson County AVA has a growing season that is longer than the northern highlands region and the region to the west of the proposed AVA and shorter than the Asheville Basin region and the regions to the east and south. The petition notes that although the majority of land within the proposed AVA has a growing season of between 210 and 220 days, there is also a large percentage of land with a growing season length between 200 and 210 days, and a small percentage of land with a growing season length of between 170 and 190 days. As a result, the proposed AVA can support some early-ripening varietals of grapes, as well as varietals that require longer growing seasons.

    Growing Degree Day Zones

    As shown in Table 5 below, the petition also included an analysis of the growing degree day (GDD) zones 12 13 within the proposed AVA and the surrounding regions. GDD zones range from Zone I (coolest) to Zone V (warmest).

    12See Albert J. Winkler, General Viticulture (Berkeley: University of California Press, 1974), pages 61-64. In the Winkler climate classification system, annual heat accumulation during the growing season, measured in annual GDDs, defines climatic regions. One GDD accumulates for each degree Fahrenheit that a day's mean temperature is above 50 degrees F, the minimum temperature required for grapevine growth.

    13Id. In the Winkler scale, the GDD regions are defined as follows: Region I = less than 2,500 GDDs; Region II = 2,501-3,000 GDDs; Region III = 3,001-3,500 GDDs; Region IV = 3,501-4,000 GDDs; Region V = greater than 4,000 GDDs.

    Table 5—Growing Degree Day Regions Region Growing degree day regions Zone I Zone II Zone III Zone IV Zone V Percentage of occurrence in each location Proposed AVA 1.3 18.1 77.5 3.1 X North (Asheville Basin) X 6.6 89.7 3.7 X North (Highlands) 43.6 46.2 10.1 0.1 X East 2.3 6.0 11.0 34.0 46.7 South X 0.9 2.8 4.0 92.3 West 46.6 36.6 16.0 0.7 0.1

    As shown in Table 5, most of the proposed Crest of the Blue Ridge Henderson County AVA is classified as Zone III with GDD accumulations of between 3,001 and 3,500. The data supports the petition's assertion that the proposed AVA has a long, warm growing season that is cooler than the regions to the south and east of the Asheville Basin and warmer than the region to the west and the northern highlands region. The petition states that the two primary GDD zones found within the proposed AVA are suitable for growing both cooler-climate grapes such as Cabernet Sauvignon and Cabernet Franc as well as warmer-climate grapes such as Sauvignon Blanc and Syrah.

    Precipitation

    Finally, the petition included information on the mean annual, growing season, and winter precipitation amounts for the proposed AVA and the surrounding regions for the period from 1980-2010. According to the petition, within the region of the proposed AVA, air moving inland from the southeastern Atlantic Ocean and the Gulf of Mexico drops its moisture along the mountainous elevations of the Blue Ridge Escarpment and the Eastern Continental Divide. As a result, precipitation amounts decrease as one moves from southeast to northwest through the region. Sufficient annual precipitation amounts are important to prevent vines from experiencing excessive heat and water stress.

    The data shown below in Table 6 demonstrates that the proposed Crest of the Blue Ridge Henderson County AVA generally has higher mean annual precipitation amounts than the regions to the north and lower mean annual precipitation amounts than the regions to the east and south, which are within the Blue Ridge Escarpment. Although the data also suggests that the region to the west of the proposed AVA also has higher annual precipitation amounts than the proposed AVA, Figure 18 of the petition shows that the higher rainfall amounts are actually in the region to the southwest of the proposed AVA, where moist air from the Gulf of Mexico encounters high elevations, rather than in the region due west of the proposed AVA, which is in the rain shadow of the Eastern Continental Divide.

    Table 6—Mean Annual Precipitation in Inches Region Minimum Maximum Mean Proposed AVA 45.1 70.8 57.5 North (Asheville Basin) 36.4 50.5 42.6 North (Highlands) 37.9 72.3 50.7 East 46.6 75.4 60.3 South 45.9 82.4 60.2 West 37.1 93.5 62.8

    The petition states that is also important to consider the timing of the rainfall. For example, the petition states that during the growing season, excessive rainfall can cause excess vine and leaf growth, promote fungal disease, and attract insects, while too little rainfall can stress the vines and lead to reduced photosynthesis, cell desiccation, and potential death of the vines. The petition also cites a study that found that the recommended growing season precipitation amount for vineyards in North Carolina is between 24 and 30 inches.14 The data shown below in Table 7 demonstrates that the mean minimum growing season precipitation amount within the proposed AVA meets the minimum recommended amount. The mean growing season amount slightly exceeds the recommended precipitation amount.

    14 Poling, E.B., 2006, ed., The North Carolina Winegrape Growers Guide: North Carolina State University, Department of Horticultural Sciences, page 41.

    Table 7—Mean Growing Season Precipitation in Inches Region Minimum Maximum Mean Proposed AVA 27.1 40.9 33.2 North (Asheville Basin) 21.5 31.2 24.5 North (Highlands) 22.2 42.3 28.7 East 27.0 43.7 30.2 South 25.0 47.1 29.7 West 21.9 51.0 34.4

    Finally, the petition states that it is also important to consider the winter precipitation amounts. Excessive precipitation during December, January, and February can delay bud break and vineyard pruning, leading to a later harvest date and an increased risk that grapes will still be on the vine when the first fall frost occurs. The data listed in Table 8 below shows that the proposed AVA has a mean winter precipitation amount of 13.9 inches, which is between the lower amounts of the regions to the north, east, and south and the higher amount of the region to the west.

    Table 8—Mean Winter Precipitation in Inches Region Minimum Maximum Mean Proposed AVA 10.6 17.6 13.9 North (Asheville Basin) 8.4 12.0 9.7 North (Highlands) 8.9 18.6 11.7 East 10.9 18.7 12.5 South 12.0 20.9 13.4 West 8.9 24.5 16.0 Summary of Distinguishing Features

    In summary, the evidence provided in the petition indicates that the elevation and climate of the proposed Crest of the Blue Ridge Henderson County AVA distinguish it from the surrounding regions in each direction. The proposed AVA has elevations that are generally higher than those of the regions to the south and east and in the Asheville Basin to the north, and lower than those of the northern highlands region and the region to the west. The proposed AVA also has a moderate climate that slightly differs from the climate in the Asheville Basin to the north, is cooler than the regions to the south and east and warmer than the region to the west and the northern highlands. Finally, annual precipitation amounts in the proposed AVA are generally lower than amounts in the regions to the south, west, and east and higher amounts than the highlands and Asheville Basin regions to the north.

    TTB Determination

    TTB concludes that the petition to establish the approximately 215-square mile Crest of the Blue Ridge Henderson County AVA merits consideration and public comment, as invited in this proposed rule.

    Boundary Description

    See the narrative description of the boundary of the petitioned-for AVA in the proposed regulatory text published at the end of this proposed rule.

    Maps

    The petitioner provided the required maps, and they are listed below in the proposed regulatory text.

    Impact on Current Wine Labels

    Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in § 4.25(e)(3) of the TTB regulations (27 CFR 4.25(e)(3)). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See § 4.39(i)(2) of the TTB regulations (27 CFR 4.39(i)(2)) for details.

    If TTB establishes this proposed AVA, its name, “Crest of the Blue Ridge Henderson County,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the proposed regulation clarifies this point. Consequently, if this proposed rule is adopted as a final rule, wine bottlers using the name “Crest of the Blue Ridge Henderson County” in a brand name, including a trademark, or in another label reference as to the origin of the wine, would have to ensure that the product is eligible to use the AVA name as an appellation of origin. TTB is not proposing to designate either “Crest of the Blue Ridge,” standing alone, or “Blue Ridge,” standing alone, as terms of viticultural significance because the Blue Ridge Mountains and the ridgeline that forms the crest of the mountains both cover a multi-State area that is significantly larger than the region of the proposed AVA, which is located entirely within Henderson County, North Carolina. Therefore, wine bottlers using either “Crest of the Blue Ridge,” standing alone, or “Blue Ridge,” standing alone, in a brand name or in another label reference on their wines would not be affected by the establishment of this proposed AVA.

    Public Participation Comments Invited

    TTB invites comments from interested members of the public on whether it should establish the proposed AVA. TTB is also interested in receiving comments on the sufficiency and accuracy of the name, boundary, soils, climate, and other required information submitted in support of the petition. Please provide any available specific information in support of your comments.

    Because of the potential impact of the establishment of the proposed Crest of the Blue Ridge Henderson County AVA on wine labels that include the term “Crest of the Blue Ridge Henderson County,” as discussed above under Impact on Current Wine Labels, TTB is particularly interested in comments regarding whether there will be a conflict between the proposed area name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed AVA will have on an existing viticultural enterprise. TTB is also interested in receiving suggestions for ways to avoid conflicts, for example, by adopting a modified or different name for the AVA.

    Submitting Comments

    You may submit comments on this proposed rule by using one of the following three methods (please note that TTB has a new address for comments submitted by U.S. Mail):

    Federal e-Rulemaking Portal: You may send comments via the online comment form posted with this proposed rule within Docket No. TTB-2018-0009 on “Regulations.gov,” the Federal e-rulemaking portal, at https://www.regulations.gov. A direct link to that docket is available under Notice No. 178 on the TTB website at https://www.ttb.gov/wine/wine-rulemaking.shtml. Supplemental files may be attached to comments submitted via Regulations.gov. For complete instructions on how to use Regulations.gov, visit the site and click on the “Help” tab.

    U.S. Mail: You may send comments via postal mail to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005.

    Hand Delivery/Courier: You may hand-carry your comments or have them hand-carried to the Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Suite 400, Washington, DC 20005.

    Please submit your comments by the closing date shown above in this proposed rule. Your comments must reference Notice No. 178 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.

    In your comment, please clearly indicate if you are commenting on your own behalf or on behalf of an association, business, or other entity. If you are commenting on behalf of an entity, your comment must include the entity's name, as well as your name and position title. If you comment via Regulations.gov, please enter the entity's name in the “Organization” blank of the online comment form. If you comment via postal mail or hand delivery/courier, please submit your entity's comment on letterhead.

    You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.

    Confidentiality

    All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.

    Public Disclosure

    TTB will post, and you may view, copies of this proposed rule, selected supporting materials, and any online or mailed comments received about this proposal within Docket No. TTB-2018-0009 on the Federal e-rulemaking portal, Regulations.gov, at https://www.regulations.gov. A direct link to that docket is available on the TTB website at https://www.ttb.gov/wine/wine-rulemaking.shtml under Notice No. 178. You may also reach the relevant docket through the Regulations.gov search page at https://www.regulations.gov. For information on how to use Regulations.gov, click on the site's “Help” tab.

    All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including email addresses. TTB may omit voluminous attachments or material that the Bureau considers unsuitable for posting.

    You may also view copies of this proposed rule, all related petitions, maps and other supporting materials, and any electronic or mailed comments that TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW, Washington, DC 20005. You may also obtain copies at 20 cents per 8.5- x 11-inch page. Please note that TTB is unable to provide copies of USGS maps or any similarly-sized documents that may be included as part of the AVA petition. Contact TTB's Regulations and Rulings Division at the above address, by email at https://www.ttb.gov/webforms/contact_RRD.shtm, or by telephone at 202-453-1039, ext. 175, to schedule an appointment or to request copies of comments or other materials.

    Regulatory Flexibility Act

    TTB certifies that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

    Executive Order 12866

    It has been determined that this proposed rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.

    Drafting Information

    Karen A. Thornton of the Regulations and Rulings Division drafted this proposed rule.

    List of Subjects in 27 CFR Part 9

    Wine.

    Proposed Regulatory Amendment

    For the reasons discussed in the preamble, TTB proposes to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:

    PART 9—AMERICAN VITICULTURAL AREAS 1. The authority citation for part 9 continues to read as follows: Authority:

    27 U.S.C. 205.

    Subpart C—Approved American Viticultural Areas 2. Subpart C is amended by adding § 9.__ to read as follows:
    § 9.__ Crest of the Blue Ridge Henderson County.

    (a) Name. The name of the viticultural area described in this section is “Crest of the Blue Ridge Henderson County”. For purposes of part 4 of this chapter, “Crest of the Blue Ridge Henderson County” is a term of viticultural significance.

    (b) Approved maps. The nine United States Geological Survey (USGS) 1:24,000 scale topographic maps used to determine the boundary of the Crest of the Blue Ridge Henderson County viticultural area are titled:

    (1) Black Mountain, North Carolina, 1941; photorevised 1978;

    (2) Bat Cave, North Carolina, 1997;

    (3) Cliffield Mountain, North Carolina, 1946; photorevised 1991;

    (4) Saluda, North Carolina-South Carolina, 1983 (provisional edition);

    (5) Zirconia, North Carolina-South Carolina, 1997;

    (6) Standingstone Mountain, South Carolina-North Carolina, 1997;

    (7) Horse Shoe, North Carolina, 1997;

    (8) Hendersonville, North Carolina, 1997; and

    (9) Fruitland, North Carolina, 1997.

    (c) Boundary. The Crest of the Blue Ridge Henderson County viticultural area is located in Henderson County, North Carolina. The boundary of the Crest of the Blue Ridge Henderson County viticultural area is as described below:

    (1) The beginning point is on the Black Mountain map at the 4,412-foot elevation marker atop Little Pisgah Mountain, along the shared Buncombe-Henderson county line. From the beginning point, proceed southeast along the shared Buncombe-Henderson county line approximately 4.4 miles, crossing onto the Bat Cave map, to the intersection of the Buncombe-Henderson county line with the shared Henderson-Rutherford county line; then

    (2) Proceed southerly along the shared Henderson-Rutherford county line approximately 5.1 miles to its intersection with the Polk county line; then

    (3) Proceed southwest along the shared Henderson-Polk county line approximately 14.9 miles, crossing over the Cliffield Mountain map and onto the Saluda map, to its intersection with the North Carolina-South Carolina border; then

    (4) Proceed westerly along the North Carolina-South Carolina border approximately 8.1 miles, crossing onto the Zirconia map, to the 3,058-foot elevation marker atop Big Top Mountain; then

    (5) Proceed northwest in a straight line approximately 2.0 miles, crossing onto the Standingstone Mountain map, to the center of the highest closing contour atop Maybin Mountain; then

    (6) Proceed northeast in a straight line approximately 2.2 miles, crossing back onto the Zirconia map, to the intersection of an unnamed road, known locally as County Road 1113/Maybin Road, with Mountain Valley Road, also known as County Road 1109/Cabin Creek Road; then

    (7) Proceed northwest along Mountain Valley Road/County Road 1109/Cabin Creek Road approximately 1.3 miles, crossing back onto the Standingstone Mountain map, to its intersection with Pinnacle Mountain Road; then

    (8) Proceed northwest in a straight line approximately 1.0 mile to the intersection of Little Cove Creek with the 2,800-foor elevation contour; then

    (9) Proceed westerly along the 2,800-foot elevation contour approximately 2.4 miles to its intersection with an unnamed creek on the north slope of Stone Mountain that flows north into Jeffers Lake; then

    (10) Proceed southwest in a straight line approximately 2.0 miles to the intersection of the shared Henderson-Transylvania county line with the Dupont State Forest boundary atop Hickory Mountain; then

    (11) Proceed northeast along the Henderson-Transylvania county line approximately 2.6 miles, crossing onto the Horse Shoe map, to its intersection with an unnamed road, known locally as Clipper Lane, on the hilltop above the Sentell Cemetery; then

    (12) Proceed northeast in a straight line approximately 1.6 miles to the center of the highest closing contour atop Jeter Mountain; then

    (13) Proceed southeast in a straight line approximately 1.3 miles to the center of the highest closing contour atop Evans mountain; then

    (14) Proceed northeast in a straight line approximately 2.0 miles to the center of the highest closing contour atop Wolf Mountain; then

    (15) Proceed northeast in a straight line approximately 1.2 miles to the center of the highest closing contour atop Drake Mountain; then

    (16) Proceed northwest in a straight line approximately 0.7 mile to the center of the highest closing contour atop Cantrell Mountain; then

    (17) Proceed northeast in a straight line approximately 3.3 miles to the 2,618-foot elevation marker on the northeast slope of Long John Mountain; then

    (18) Proceed northeast in a straight line approximately 1.4 miles, crossing onto the Hendersonville map, to the center of the highest closing contour atop Stoney Mountain; then

    (19) Proceed northeast in a straight line approximately 0.6 mile to the intersection of Brookside Camp Road with Dixie Highway; then

    (20) Proceed northeast along Brookside Camp Road approximately 2.1 miles, crossing onto the Fruitland map, to its intersection with Locust Grove Road; then

    (21) Proceed northeast along Locust Grove Road approximately 1.4 miles to its intersection with an unnamed trail near Locust Grove Church; then

    (22) Proceed northeast in a straight line approximately 0.7 mile to the 3,442-foot elevation marker atop Rich Mountain; then

    (23) Proceed northwest in a straight line approximately 0.4 mile to the intersection of Southern Leveston Road with an unnamed jeep trail; then

    (24) Proceed northwest along Southern Leveston Road approximately 2.4 miles to its intersection with Hoopers Creek Road; then

    (25) Proceed northeast in a straight line approximately 0.7 mile to the 2,983-foot elevation marker labeled Edneyville-5 atop a peak on Burney Mountain along the shared Henderson-Buncombe county line; then

    (26) Proceed northeast along the Henderson-Buncombe county line approximately 8.2 miles, crossing onto the Black Mountain map, and return to the beginning point atop Little Pisgah Mountain.

    Signed: September 19, 2018. John J. Manfreda, Administrator. Approved: November 13, 2018. Timothy E. Skud, Deputy Assistant Secretary, (Tax, Trade, and Tariff Policy).
    [FR Doc. 2018-26323 Filed 12-4-18; 8:45 am] BILLING CODE 4810-31-P
    DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Part 9 [Docket No. TTB-2018-0008; Notice No. 177] RIN 1513-AC40 Proposed Establishment of the West Sonoma Coast Viticultural Area AGENCY:

    Alcohol and Tobacco Tax and Trade Bureau, Treasury.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Alcohol and Tobacco Tax and Trade Bureau (TTB) proposes to establish the 141,846-acre “West Sonoma Coast” viticultural area in Sonoma County, California. The proposed viticultural area lies entirely within the established Sonoma Coast and North Coast viticultural areas and contains the established Fort Ross-Seaview viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase. TTB invites comments on this proposed addition to its regulations.

    DATES:

    Comments must be received by January 7, 2019.

    ADDRESSES:

    Please send your comments on this notice to one of the following addresses:

    Internet: https://www.regulations.gov (via the online comment form for this notice as posted within Docket No. TTB-2018-0008 at “Regulations.gov,” the Federal e-rulemaking portal);

    U.S. Mail: Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; or

    Hand delivery/courier in lieu of mail: Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Suite 400, Washington, DC 20005.

    See the Public Participation section of this notice for specific instructions and requirements for submitting comments, and for information on how to request a public hearing or view or obtain copies of the petition and supporting materials.

    FOR FURTHER INFORMATION CONTACT:

    Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.

    SUPPLEMENTARY INFORMATION:

    Background on Viticultural Areas TTB Authority

    Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01, dated December 7, 2013, (superseding Treasury Order 120-01, dated January 24, 2003), to the TTB Administrator to perform the functions and duties in the administration and enforcement of these provisions.

    Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.

    Definition

    Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

    Requirements

    Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes the standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:

    • Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;

    • An explanation of the basis for defining the boundary of the proposed AVA;

    • A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA;

    • The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and

    • A detailed narrative description of the proposed AVA boundary based on USGS map markings.

    West Sonoma Coast Petition

    TTB received a petition from Patrick Shabram, on behalf of the West Sonoma Coast Vintners, proposing the establishment of the “West Sonoma Coast” AVA. The proposed West Sonoma Coast AVA is located within Sonoma County, California. The proposed AVA lies entirely within the established Sonoma Coast AVA (27 CFR 9.116) and North Coast AVA (27 CFR 9.30) and entirely overlaps the smaller established Fort Ross-Seaview AVA (27 CFR 9.221). The proposed West Sonoma Coast AVA contains 141,846 acres, with approximately 47 commercially-producing vineyards covering approximately 1,028 acres distributed throughout the proposed AVA. Grape varieties planted within the proposed AVA include Pinot Noir and Chardonnay.

    According to the petition, the distinguishing features of the proposed West Sonoma Coast AVA include its topography, geology, and climate. Unless otherwise noted, all information and data pertaining to the proposed AVA contained in this document are from the petition for the proposed West Sonoma Coast AVA and its supporting exhibits.

    Name Evidence

    The proposed West Sonoma Coast AVA is located within the western portion of Sonoma County. The petition states that Sonoma County is typically referred to in terms of “east” and “west,” and that terms such as “West County,” “West Sonoma,” and “Western Sonoma” are frequently used to describe the region that includes the proposed AVA. For example, the school district that serves the proposed AVA is the West Sonoma County Union High School District.1 A newspaper that serves the town of Sebastopol and points west, including the region of the proposed AVA, is called the Sonoma West Times & News.2 Additionally, in his book about wineries and vineyards along the Russian River, Steve Heimoff refers to residents of the area as “West Sonomans.” 3

    1 West Sonoma County Union High School District (May 7, 2018), http://wscuhsd.k12.ca.us/.

    2 Sonoma West Times & News (May 16, 2018), http://www.sonomawest.com/.

    3 Heimoff, Steve. A Wine Journey Along the Russian River (Berkeley: University of California Press, 2005).

    The petition states that although the terms “West Sonoma” and “Western Sonoma” apply to the region of the proposed AVA, both terms encompass a broader area than just the extreme coastal region covered by the proposed AVA. Therefore, the petition states that “West Sonoma Coast” is a more accurate and precise name for the proposed AVA, as this name conveys the idea that the proposed AVA is located both within the coastal region of the area known as West Sonoma and also within the western portion of the larger established Sonoma Coast AVA. The petition included several examples of the use of “West Sonoma Coast” to refer to the region of the proposed AVA. For example, a 2013 Wall Street Journal article notes, “It's only in the last 20 years or so that the West Sonoma Coast has been recognized as a superb region for Burgundian varietals of Pinot Noir and Chardonnay.” 4 A 2014 article in Forbes is titled “California's Edgiest Wine Region: Western Sonoma Coast.” 5 A 2015 article for Wine and Spirits refers to “the region unofficially known as `west [sic] Sonoma Coast'.” 6 Finally, the petition included a real estate listing for “West Sonoma Coast ranch land” for sale in the town of Annapolis, California, which is within the proposed West Sonoma Coast AVA.

    4 McInerney, Jay. “West Sonoma Coast Wines Are on the Rise,” The Wall Street Journal (July 18, 2013).

    5 Bell, Katie Kelly. “California's Edgiest Wine Region: Western Sonoma Coast,” Forbes (March 6, 2014).

    6 Brown, Elaine Chukan. “Sonoma's Far Coast: A haven for pinot noir,” Wines and Spirits (August 31, 2015).

    Boundary Evidence

    The proposed West Sonoma Coast AVA encompasses the mountainous terrain along the Pacific coastline of Sonoma County. The Pacific Ocean forms the western boundary of the proposed AVA, and the shared Sonoma-Mendocino County line forms the northern boundary. The petition notes that the proposed AVA does not extend farther north because use of the term “Sonoma” does not extend into Mendocino County. The eastern boundary follows a series of elevation contours, creeks, and U.S.G.S. map section lines to separate the proposed AVA from the more inland region of Sonoma County that has lower elevations and warmer climates. The region east of the proposed AVA includes the established Russian River Valley AVA (27 CFR 9.66) and Northern Sonoma AVA (27 CFR 9.70), both of which have boundaries that are concurrent with portions of the proposed West Sonoma Coast AVA's eastern boundary. The southern boundary of the proposed West Sonoma Coast AVA is shared with the northern boundary of the Petaluma Gap AVA (27 CFR 9.261), which has generally lower elevations.

    Distinguishing Features

    The distinguishing features of the proposed West Sonoma Coast AVA are its topography, geology, and climate. The petition included detailed information and supporting evidence regarding the distinguishing features of only the regions to the east and south of the proposed AVA. The Pacific Ocean is to the west of the proposed AVA and cannot be used for viticultural purposes. The petition did include a broad summary of the characteristics of the region to the north of the proposed AVA. TTB is not including the information in this document because the petition did not provide evidence to support the claims. However, TTB does not consider information from that region to be necessary because the term “Sonoma” is not used to describe the region to the north of the proposed AVA, within Mendocino County. Therefore, the proposed West Sonoma Coast AVA could not extend farther north even if the distinguishing features of both regions were similar because TTB regulations require the proposed AVA name to apply to the entire proposed AVA. See 27 CFR 9.12(a)(1).

    Topography

    The petition states that the terrain of the proposed West Sonoma Coast is characterized by the steep, rugged mountains and ridgelines that form the Coastal Ranges, which run parallel to the coastline. Very little area within the proposed AVA contains slopes of less than 5 percent, and the summits of the coastal mountains can exceed 1,000 feet. In the coastal regions of California, elevations below 900 feet are below the fog line and are typically exposed to heavy marine fog, which can lower temperatures and impede photosynthesis. However, the petition states that within the proposed AVA, the ridgelines of the Coastal Ranges form protected areas below the fog line where the heavy marine fog does not reach and successful viticulture can occur. The petition states that examples of such protected regions within the proposed AVA include the areas around Freestone, Annapolis, and Occidental. The high elevations within the proposed AVA also allow for vineyards to be placed above the fog. The petition states that the established Fort Ross-Seaview AVA, in particular, benefits from elevations above the fog line. According to the petition, commercial viticulture would likely not occur within the proposed AVA without protection from the extreme marine influences, either in the form of elevations above the fog line or lower elevations sheltered by the ridgelines, because the cold temperatures and reduced sunlight caused by heavy marine fog would not allow grapes to ripen reliably.

    By contrast, the region immediately to the east of the proposed AVA, within the established Russian River Valley AVA, lacks summits that exceed 1,000 feet. Additionally, the Russian River Valley AVA is dominated by large areas with gentler slopes, including the Santa Rosa Plain and the Green Valley that forms the established Green Valley of the Russian River Valley AVA (27 CFR 9.57). The Petaluma Gap AVA, to the south of the proposed West Sonoma Coast AVA, also has lower elevations and gentler slopes.

    Geology

    Much of the proposed West Sonoma Coast AVA is characterized by sedimentary rock of the Franciscan Complex, including Franciscan sandstone. Other major geological formations within the proposed AVA include the German Rancho Formation and the Gualala Formation, both of which also contain sedimentary rock. To the south of the proposed AVA, the region is dominated by the Wilson Grove Formation, which is comprised of claystone, siltstone, and fine sandstone overlaying Franciscan Formation sedimentary rock. Northeast of the proposed AVA, the Franciscan Formation is prevalent, but to the southeast, the Wilson Grove Formation is more common. Farther east, the Santa Rosa Plain is characterized by Quaternary alluvium and fluvial deposits, which are uncommon within the proposed West Sonoma Coast AVA.

    The petition states that the underlying geology of a region contributes to the topography. Because the Wilson Grove Formation and alluvial deposits are more easily eroded than the geological formations of the proposed AVA, the topography to the south and east of the proposed AVA is characterized by lower elevations, rounded hills, and gentle slopes with generally deep soils. By contrast, the proposed AVA has high elevations and steep, rugged slopes with thin soils that have a high sand content. The petition states that both the thin soils and high sand content promote good drainage in vineyards, which is important to disease prevention.

    Climate

    Temperature: The proposed West Sonoma Coast AVA boundary begins at the Pacific coast and extends inland only a few miles. As a result, the climate of the proposed AVA is strongly influenced by the cold marine air and heavy marine fog. The petition states that much of the proposed AVA is located within the “Marine” climate zone, a category within a climate scale created by former University of California Extension farm advisors Robert Sisson and Paul Vossen during their work in Sonoma County.7 Sisson believed that the Marine zone was too cold for successful viticulture. However, the petition states that Sisson's climate scale did not take into account the role the coastal mountains play in creating areas below the fog line that are protected from the heaviest marine influences, the ridgelines that are above the fog line in the proposed AVA, or the advances in viticultural practices that have been made since the scale was created. The petition notes that the areas within the proposed AVA around Annapolis, Seaview, Occidental, and Freestone are examples of such protected locations within the Marine zone where successful commercial viticulture takes place.

    7See Vossen, Paul, Sonoma County Climatic Zones, University of California Cooperative Extension Service, Sonoma County, 1986 (This publication notes the findings of University of California Extension Farm Advisors Robert Sisson and Paul Vossen regarding the climate zones of Sonoma County, California.).

    The petition states that although the proposed West Sonoma Coast AVA contains ridgelines above the fog line as well as areas at lower elevations that are sheltered from the heaviest marine fog and air, the marine influence is still strong enough to affect the climate within the proposed AVA. The petition included growing degree day (GDD) accumulations for a location in Occidental, which is within the proposed AVA, and a location in Windsor, which is within the established Russian River Valley AVA and also within the eastern portion of the established Sonoma Coast AVA. The data shows that the location within the proposed AVA accumulates fewer GDDs than the location to the east of the proposed AVA.

    Table 1—Growing Degree Day Accumulations Location Winkler method 8 2011 2012 2013 2014 Daily method 9 2011 2012 2013 2014 10 Windsor 1,860 2,271 2,466 2,628 1,918 2,331 2,513 2,685 Occidental 1,761 2,024 2,070 2,358 1,872 1,991 2,045 2,411

    The lower GDD accumulations reflect the lower daytime temperatures within the proposed AVA. The petition included a graph showing the average monthly maximum temperatures during the growing seasons from 2010 to 2014 for locations in Occidental, which is within the proposed AVA, and within Windsor and Santa Rosa, which are east of the proposed AVA and also within the Sonoma Coast AVA and the Russian River Valley AVA. The graph shows that temperatures were highest in Windsor, ranging from approximately 79 degrees F to approximately 108 degrees F. In Santa Rosa, the temperature range was almost identical to the range for Windsor. By contrast, maximum temperatures in Occidental did not exceed 100 degrees F and ranged from approximately 71 degrees F to approximately 98 degrees F.

    8 A.J. Winkler et al., General Viticulture 60-71 (2nd. Ed. 1974). The Winkler method of calculating GDDs utilizes the monthly average temperature above 50 degrees Fahrenheit (the minimum temperature required for grapevine growth) multiplied by the number of days in the month during the growing season (April 1 through October 31).

    9 This method of calculating GDDs utilizes the sum of daily average temperatures above 50 degrees F during the growing season. See Washington State University, Growing Degree Days (July 23, 2018), http://wine.wsu.edu/extension/weather/growing-degree-days/.

    10 Data is incomplete for a 17-day period in September and October 2014 at the Occidental station. Daily GDD accumulations during these days are based on an average of temperatures two weeks prior and two weeks following this period.

    The petition states that, in spite of the heavy marine influence, the proposed West Sonoma Coast AVA generally has warmer nocturnal temperatures than the regions to the east. According to the petition, cool air drains off of the mountains of the proposed AVA at night and settles in the lower elevations to the east, resulting in cooler nighttime temperatures to the east. The petition included a graph showing the monthly low temperatures from 2012 to 2014 for locations in Occidental, Windsor, and Santa Rosa. The graph shows that monthly low temperatures within Occidental, in the proposed West Sonoma Coast AVA, range from approximately 37 degrees F to approximately 47 degrees F. By contrast, at the Windsor station to the east of the proposed AVA, temperatures range from approximately 31 degrees F to approximately 43 degrees F. At the Santa Rosa station, also to the east of the proposed AVA and at lower elevations than both the Occidental and Windsor stations, temperatures range from approximately 28 degrees F to approximately 44 degrees F. The petition states that, when compared to the region to the east, the proposed AVA has more nights with temperatures that are warm enough to allow the grapes to continue maturing. Additionally, because nighttime temperatures seldom drop low enough to cause significant damage to the vines, the petition states that frost protection measures within the proposed AVA are “nearly non-existent,” whereas frost protection methods are more frequently used in the lower inland areas to the east of the proposed AVA.

    Wind Speed: Finally, the petition included data on wind speed averages from 2010 to 2013 within the proposed West Sonoma Coast AVA, the region to the east, and Valley Ford, which is to the south of the proposed AVA within the Petaluma Gap AVA. The petition states that wind speeds are higher within the region to the south of the proposed West Sonoma Coast AVA due to the lower elevations and more open terrain that does not block the wind. Furthermore, wind speeds are higher to the east of the proposed AVA because winds can enter that region from the San Pablo Bay, to the south of the proposed AVA, and blow relatively unhindered up the broad Santa Rosa Plain. The petition states that high wind speeds, such as those found in the regions to the east and south of the proposed West Sonoma Coast AVA, can slow photosynthesis rates in grapevines and, therefore, can also slow fruit development and maturation.

    Table 2—Wind Speed Location (direction from proposed AVA) Average wind speed (miles per hour) 2010 2011 2012 2013 Valley Ford (south) 8.0 7.4 7.6 8.5 Windsor (east) 3.4 3.2 3.3 3.9 Santa Rosa (east) 3.9 4.0 4.1 N/A Occidental (within) 1.6 1.4 1.6 1.5 Summary of Distinguishing Features

    In summary, the topography, geology, and climate of the proposed West Sonoma Coast AVA distinguish it from the surrounding regions. The proposed AVA has steeper slopes and reaches higher maximum elevations than the regions to the south and east. The proposed AVA also has lower wind speeds than the regions to the south and east. Additionally, in contrast to the region to the east, the proposed AVA has geological features that lack large amounts of alluvium, lower GDD accumulations, cooler daytime temperatures and warmer nighttime temperatures, and lower wind speeds. To the west of the proposed AVA is the Pacific Ocean. The petition did not provide comparison data for the region to the north of the proposed AVA, in Mendocino County, because the term “Sonoma Coast” is not used to describe regions outside of Sonoma County; therefore, per TTB regulations, the region to the north could not be included in an AVA called “West Sonoma Coast.”

    Comparison of the Proposed West Sonoma Coast AVA to the Existing Sonoma Coast AVA Sonoma Coast AVA

    T.D. ATF-253, which published in the Federal Register on June 11, 1987 (52 FR 22304), established the Sonoma Coast AVA in Sonoma County, California. The primary feature of the Sonoma Coast AVA, as described in T.D. ATF-253, is a marine-influenced climate that is cooler than the region of Sonoma County east of the Russian River Valley AVA. The proposed West Sonoma Coast AVA shares this characteristic with the larger Sonoma Coast AVA. Therefore, TTB believes that the proposed West Sonoma Coast AVA appears to share enough similarities to remain within the established Sonoma Coast AVA.

    However, the proposed West Sonoma Coast AVA does have some characteristics that distinguish it from the Sonoma Coast AVA, which TTB believes would warrant its establishment as a new AVA. For example, the proposed West Sonoma Coast AVA is largely within the “Marine” climate zone, which results in lower GDD accumulations than are found within the eastern portion of the Sonoma Coast AVA, which is in the “Coastal Cool” climate zone.11 Additionally, the proposed AVA is in a mountainous region with steeper slopes and more rugged terrain than the majority of the Sonoma Coast AVA.

    11See Vossen, Paul, Sonoma County Climatic Zones, University of California Cooperative Extension Service, Sonoma County, 1986 (This publication notes the findings of University of California Extension Farm Advisors Robert Sisson and Paul Vossen regarding the climate zones of Sonoma County, California.).

    Comparison of the Proposed West Sonoma Coast AVA to the Existing North Coast AVA

    The North Coast AVA was established by T.D. ATF-145, published in the Federal Register on September 21, 1983 (48 FR 42973). It includes all or portions of Napa, Sonoma, Mendocino, Lake, Marin, and Solano Counties, California. In the conclusion of the “Geographical Features” section of the preamble, T.D. ATF-145 states that “[d]ue to the enormous size of the North Coast, variations exist in climatic features such as temperature, rainfall, and fog intrusion.”

    The proposed West Sonoma Coast AVA shares the basic viticultural feature of the North Coast AVA--the marine influence that moderates growing season temperatures in the area. However, the proposed AVA is much more uniform in its climatic features, namely temperature, soils, and topography than the diverse, multicounty North Coast AVA. In this regard, TTB notes that T.D. ATF-145 specifically states that “approval of this viticultural area does not preclude approval of additional areas, either wholly contained with the North Coast, or partially overlapping the North Coast,” and that “smaller viticultural areas tend to be more uniform in their geographical and climatic characteristics, while very large areas such as the North Coast tend to exhibit generally similar characteristics, in this case the influence of maritime air off of the Pacific Ocean and San Pablo Bay.” Thus, the proposal to establish the West Sonoma Coast AVA is not inconsistent with what was envisioned when the North Coast AVA was established.

    Comparison of the Proposed West Sonoma Coast AVA to the Existing Fort Ross-Seaview AVA

    The Fort Ross-Seaview AVA was established by T.D. TTB-98, published in the Federal Register on December 14, 2011 (76 FR 77684). The Fort Ross-Seaview AVA is located within both the Sonoma Coast and North Coast AVAs and would be located entirely within the proposed West Sonoma Coast AVA, if that AVA is established. T.D. TTB-98 describes the Fort Ross-Seaview AVA as an area of coastal ridges, mountains, and hills of elevations generally above 920 feet. T.D. TTB-98 states that these higher elevations are typically above the fog line, allowing the AVA to receive more sunlight and warmer temperatures than the lower elevations. Additional information provided by the proposed West Sonoma Coast AVA petitioner shows that there are approximately 12 vineyards within the Fort Ross-Seaview AVA, and they are all planted at elevations above the fog line.

    The Fort Ross-Seaview AVA shares the mountainous topography and marine-influenced climate of the proposed West Sonoma Coast AVA. However, although there are elevations within the proposed West Sonoma Coast AVA that are above the fog line, similar to those within the Fort Ross-Seaview AVA, the proposed AVA also includes areas at elevations below the fog line. Some of these lower elevations are sheltered from the heaviest marine fog and, therefore, can support viticulture. Additional information provided by the petitioner shows that there are approximately 15 vineyards within the proposed West Sonoma Coast AVA and outside of the Fort Ross-Seaview AVA, 9 of which are planted at elevations at or below the fog line. Therefore, TTB believes that although the Fort Ross-Seaview AVA shares the general topographic and climatic characteristics of the proposed West Sonoma Coast AVA, the proposed AVA has a broader range of elevations where viticulture takes place that distinguish it from the established AVA and would warrant its establishment as a new AVA.

    TTB Determination

    TTB concludes that the petition to establish the 141,846-acre West Sonoma Coast AVA merits consideration and public comment, as invited in this notice of proposed rulemaking.

    Boundary Description

    See the narrative description of the boundary of the petitioned-for AVA in the proposed regulatory text published at the end of this proposed rule.

    Maps

    The petitioner provided the required maps, and they are listed below in the proposed regulatory text.

    Impact on Current Wine Labels

    Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in § 4.25(e)(3) of the TTB regulations (27 CFR 4.25(e)(3)). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See § 4.39(i)(2) of the TTB regulations (27 CFR 4.39(i)(2)) for details.

    If TTB establishes this proposed AVA, its name, “West Sonoma Coast,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the proposed regulation clarifies this point. Consequently, wine bottlers using the name “West Sonoma Coast” in a brand name, including a trademark, or in another label reference as to the origin of the wine, would have to ensure that the product is eligible to use the AVA name as an appellation of origin if this proposed rule is adopted as a final rule. TTB is not proposing “Sonoma Coast,” standing alone, as a term of viticultural significance with regards to the proposed West Sonoma Coast AVA because the term already has viticultural significance pursuant to 27 CFR 9.116 as the name of an established AVA. Accordingly, the proposed part 9 regulatory text set forth in this document specifies only the full name “West Sonoma Coast” as a term of viticultural significance for the proposed AVA for the purposes of part 4 of the TTB regulations.

    The approval of the proposed West Sonoma Coast AVA would not affect any existing AVA, and any bottlers using “Sonoma Coast,” “Fort Ross-Seaview,” or “North Coast” as an appellation of origin or in a brand name for wines made from grapes grown within the Sonoma Coast, Fort Ross-Seaview, or North Coast AVAs would not be affected by the establishment of this new AVA. The establishment of the proposed West Sonoma Coast AVA would allow vintners to use “West Sonoma Coast,” “Sonoma Coast,” and “North Coast” as appellations of origin for wines made from grapes grown within the proposed West Sonoma Coast AVA if the wines meet the eligibility requirements for the appellation. Additionally, vintners would be allowed to use “West Sonoma Coast,” as well as “North Coast,” “Sonoma Coast,” and “Fort Ross-Seaview,” as appellations of origin for wines made from grapes grown within the Fort Ross-Seaview AVA if the wines meet the eligibility requirements for the appellation.

    Public Participation Comments Invited

    TTB invites comments from interested members of the public on whether it should establish the proposed AVA. TTB is also interested in receiving comments on the sufficiency and accuracy of the name, boundary, soils, climate, and other required information submitted in support of the petition. In addition, given the proposed West Sonoma Coast AVA's location within the existing Sonoma Coast and North Coast AVAs, TTB is interested in comments on whether the evidence submitted in the petition regarding the distinguishing features of the proposed AVA sufficiently differentiates it from the existing established AVAs. TTB is also interested in comments on whether the geographic features of the proposed AVA are so distinguishable from the surrounding Sonoma Coast and North Coast AVA that the proposed West Sonoma Coast AVA should no longer be part of that AVA. Finally, TTB is interested in comments on whether the geographic features of the proposed AVA are so distinguishable from the established Fort Ross-Seaview AVA, which is located within the proposed West Sonoma Coast AVA, that the established AVA should not be part of the proposed AVA. Please provide any available specific information in support of your comments.

    Because of the potential impact of the establishment of the proposed West Sonoma Coast AVA on wine labels that include the term “West Sonoma Coast” as discussed above under Impact on Current Wine Labels, TTB is particularly interested in comments regarding whether there will be a conflict between the proposed AVA name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed AVA will have on an existing viticultural enterprise. TTB is also interested in receiving suggestions for ways to avoid conflicts, for example, by adopting a modified or different name for the AVA.

    Submitting Comments

    You may submit comments on this notice by using one of the following three methods:

    Federal e-Rulemaking Portal: You may send comments via the online comment form posted with this notice within Docket No. TTB-2018-0008 on “Regulations.gov,” the Federal e-rulemaking portal, at https://www.regulations.gov. A direct link to that docket is available under Notice No. 177 on the TTB website at https://www.ttb.gov/wine/wine-rulemaking.shtml. Supplemental files may be attached to comments submitted via Regulations.gov. For complete instructions on how to use Regulations.gov, visit the site and click on the “Help” tab.

    U.S. Mail: You may send comments via postal mail to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005.

    Hand Delivery/Courier: You may hand-carry your comments or have them hand-carried to the Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Suite 400, Washington, DC 20005.

    Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 177 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.

    In your comment, please clearly state if you are commenting for yourself or on behalf of an association, business, or other entity. If you are commenting on behalf of an entity, your comment must include the entity's name, as well as your name and position title. If you comment via Regulations.gov, please enter the entity's name in the “Organization” blank of the online comment form. If you comment via postal mail or hand delivery/courier, please submit your entity's comment on letterhead.

    You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.

    Confidentiality

    All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.

    Public Disclosure

    TTB will post, and you may view, copies of this notice, selected supporting materials, and any online or mailed comments received about this proposal within Docket No. TTB-2018-0008 on the Federal e-rulemaking portal, Regulations.gov, at http://www.regulations.gov. A direct link to that docket is available on the TTB website at https://www.ttb.gov/wine/wine_rulemaking.shtml under Notice No. 177. You may also reach the relevant docket through the Regulations.gov search page at http://www.regulations.gov. For information on how to use Regulations.gov, click on the site's “Help” tab.

    All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including email addresses. TTB may omit voluminous attachments or material that the Bureau considers unsuitable for posting.

    You may also view copies of this notice, all related petitions, maps and other supporting materials, and any electronic or mailed comments that TTB receives about this proposal by appointment at the TTB Public Reading Room, 1310 G Street NW, Washington, DC 20005. You may also obtain copies at 20 cents per 8.5- x 11-inch page. Please note that TTB is unable to provide copies of USGS maps or other similarly-sized documents that may be included as part of the AVA petition. Contact TTB's Public Reading Room at the above address or by telephone at 202-453-2135 to schedule an appointment or to request copies of comments or other materials.

    Regulatory Flexibility Act

    TTB certifies that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

    Executive Order 12866

    It has been determined that this proposed rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.

    Drafting Information

    Karen A. Thornton of the Regulations and Rulings Division drafted this notice of proposed rulemaking.

    List of Subjects in 27 CFR Part 9

    Wine.

    Proposed Regulatory Amendment

    For the reasons discussed in the preamble, TTB proposes to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:

    PART 9—AMERICAN VITICULTURAL AREAS 1. The authority citation for part 9 continues to read as follows: Authority:

    27 U.S.C. 205.

    Subpart C—Approved American Viticultural Areas 2. Subpart C is amended by adding § 9.__ to read as follows:
    § 9.__ West Sonoma Coast.

    (a) Name. The name of the viticultural area described in this section is “West Sonoma Coast”. For purposes of part 4 of this chapter, “West Sonoma Coast” is a term of viticultural significance.

    (b) Approved maps. The 14 United States Geological Survey (USGS) 1:24,000 scale topographic maps used to determine the boundary of the West Sonoma Coast viticultural area are titled:

    (1) McGuire Ridge, California, 1991 (provisional edition);

    (2) Stewarts Point, California, 1978;

    (3) Annapolis, California, 1977;

    (4) Tombs Creek, California, 1978;

    (5) Fort Ross, California, 1998;

    (6) Cazadero, California, 1998;

    (7) Duncans Mills, California, 1979;

    (8) Camp Meeker, California, 1995;

    (9) Valley Ford, California, 1954; photorevised 1971;

    (10) Two Rock, California, 1954; photorevised 1971;

    (11) Bodega Head, California, 1972;

    (12) Arched Rock, California, 1977;

    (13) Plantation, California, 1977; and

    (14) Gualala, California, 1998.

    (c) Boundary. The West Sonoma Coast viticultural area is located in Sonoma County, California. The boundary of the West Sonoma Coast viticultural area is as described below:

    (1) The beginning point is on the McGuire Ridge map at the intersection of the Sonoma County/Mendocino County boundary and the northwest corner of section 29, T11N/R14W. From the beginning point, proceed southeast in a straight line for 0.4 mile to an unnamed hilltop with a marked elevation of 820 feet in section 29, T11N/R14W; then

    (2) Proceed southeast in a straight line for 1.4 miles to the intersection of the eastern boundary of section 32 and the 800-foot elevation contour, T11/R14W; then

    (3) Proceed southeast along the 800-foot elevation contour for 3.1 miles, crossing onto the Stewarts Point map, to its intersection with the northern boundary of section 3, T10N/R14W; then

    (4) Proceed east along the northern boundary of section 3 and then along the northern boundary of section 2 for a total of 0.8 mile to the intersection of the northern boundary of section 2 and the 600-foot elevation contour, T10N, R14W; then

    (5) Proceed generally southeast along the 600-foot elevation contour for 3.3 miles, crossing onto the Annapolis map, to its intersection with the northern boundary of section 12, T10N/R14W; then

    (6) Proceed east along the northern boundary of section 12, T10N/R14W, for 0.1 mile to its intersection with the 600-foot elevation contour; then

    (7) Proceed north then generally east along the meandering 600-foot elevation contour for 4.8 miles to its sixth intersection with the northern boundary of section 7, T10N/R13W; then

    (8) Proceed southeast in a straight line for 0.2 mile to the intersection of an unnamed light-duty road known locally as Kelly Road and an unnamed, unimproved road with a marked elevation of 725 feet, known locally as Oak Hill LO Road, in section 8, T10N/R13W; then

    (9) Proceed south in a straight line for 0.6 mile to the intersection of Soda Springs Road and the eastern boundary of section 7, T10N/R13W; then

    (10) Proceed in a straight line southeast for 1.6 miles to the intersection of the eastern boundary of section 17, T10N/R13W, and the 800-foot elevation contour; then

    (11) Proceed southeast along the 800-foot elevation contour for 2.6 miles to its intersection with an unnamed, unimproved road near the 862-foot benchmark in section 21, T10N/R13W; then

    (12) Proceed southeast in a straight line for 0.2 mile to the intersection of the 600-foot elevation contour and an intermittent stream in section 28, T10N/R13W; then

    (13) Proceed south along the 600-foot elevation contour for 1.7 miles to its intersection with the eastern boundary of section 33, T10N/R13W; then

    (14) Proceed southeast in a straight line for 0.5 mile to the intersection of an unnamed light-duty road known locally as Skaggs Springs Road and an unnamed, unimproved road known locally as Skyline Road, near the Mendosoma Fire Station in section 34, T10N/R13W; then

    (15) Proceed southeast along the unnamed, unimproved road (Skyline Road) for total of 5.9 miles as it follows Skyline Ridge and crosses onto the Tombs Creek map, back onto the Annapolis map, then back on to the Tombs Creek map, to the intersection of the road with the 1,200-foot elevation contour in section 13, T9N/R13W; then

    (16) Proceed southeast along the 1,200-foot elevation contour for 0.6 mile to the intersection with Allen Creek in section 18, T9N/R12W; then

    (17) Proceed north along Allen Creek for 0.2 mile to the intersection with the 920-foot elevation contour in section 18, T9N/R12W; then

    (18) Proceed east and then southeast along the meandering 920-foot elevation contour, crossing onto the Fort Ross map, then onto the Tombs Creek map, and then back onto the Fort Ross map, to the intersection of the elevation contour with Jim Creek in section 21, T9N/R12W; then

    (19) Proceed southeast along Jim Creek for 0.7 mile to the intersection of the creek with the northern boundary of section 27, T9N, R12W, then

    (20) Proceed east along the northern boundary of section 27 for 0.5 mile to the northeast corner of section 27; then

    (21) Proceed south along the eastern boundaries of sections 27, 34, 3, 7, 15, and 22 for 5.1 miles to the intersection of the eastern boundary of section 22 and Fort Ross Road, T8N/R12W; then

    (22) Proceed east along Fort Ross Road for approximately 262 feet to the intersection of the road with the middle branch of Russian Gulch Creek in section 23, T8N/R12W; then

    (23) Proceed south along the middle branch of Russian Gulch Creek for 1.2 miles to the intersection with the 920-foot elevation contour in section 26, T8N/R12W; then

    (24) Proceed southeast in a straight line east for 2 miles, crossing onto the Cazadero map, to the summit of Pole Mountain in section 30, T8N/R11W; then

    (25) Proceed southeast in a straight line for 4.7 miles, crossing onto the Duncans Mills map, to the confluence of Austin Creek and the Russian River, T7N/R11W; then

    (26) Proceed generally east (upstream) along the Russian River for 3.1 miles to the intersection of the Russian River and the Bohemian Highway in section 7, T7N/R10W; then

    (27) Proceed southeast along the Bohemian Highway for a total of 10.1 miles, crossing onto the Camp Meeker map and through the towns of Camp Meeker and Occidental, then crossing onto the Valley Ford map and through the town of Freestone, to the intersection of the Bohemian Highway and an unnamed medium-duty road known locally as Bodega Road near benchmark (BM) 214 in section 12, T6N/R10W; then

    (28) Proceed northeast along Bodega Road for 0.9 mile, crossing onto the Camp Meeker map, to the intersection of the road with an unnamed light-duty road known locally as Barnett Valley Road north of the marked 486-foot elevation point in the Cañada de Jonive land grant, T6N/R10W; then

    (29) Proceed south then east along Barnett Valley Road for 2.2 miles, crossing onto the Valley Ford map and then onto the Two Rock map, to the intersection of Bennett Valley Road with Burnside Road in section 17, T6N/R9W; then

    (30) Proceed southeast along Burnside Road for 3.2 miles to its intersection with the 400-foot elevation contour just north of an unnamed light duty road known locally as Bloomfield Road in the Cañada de Pogolimi land grant, T5N/R9W; then

    (31) Proceed west along the 400-foot elevation contour for 6.7 miles, crossing onto the Valley Ford map, to the intersection of the elevation contour with an unimproved road, Cañada de Pogolimi land grant, T6N/R9W; then

    (32) Proceed northwest then southwest along the unnamed, unimproved road for 0.9 mile to its terminus, Cañada de Pogolimi land grant, T6N/R9W; then

    (33) Proceed northwest in a straight line for 0.1 mile to the marked 448-foot summit of an unnamed hilltop, Cañada de Pogolimi land grant, T6N/R10W; then

    (34) Proceed northwest in a straight line for 0.6 mile to the 61-foot benchmark along an unnamed secondary highway known locally as Freestone Valley Ford Road, Cañada de Pogolimi land grant, T6N/R10W; then

    (35) Proceed west-northwest in a straight line for 0.8 mile to VABM 724 in the Estero Americano land grant, T6N/R10W; then

    (36) Proceed west in a straight line for 1.0 mile to the intersection of Salmon Creek and an intermittent stream, Estero Americano land grant, T6N/R10W; then

    (37) Proceed west (downstream) along Salmon Creek for 9.6 miles, crossing onto the Bodega Head map, to the mouth of the creek at the Pacific Ocean; then

    (38) Proceed north along the Pacific coastline for 51.4 miles, crossing over the Duncan Mills, Arched Rock, Fort Ross, Plantation, and Stewarts Point maps and onto the Gualala map to the intersection of the coastline with the Sonoma County/Mendocino County line; then

    (39) Proceed east along the Sonoma County/Mendocino County line for 5.6 miles, crossing onto the McGuire Ridge map, and returning to the beginning point, T11N, R14W.

    Signed: July 27, 2018. John J. Manfreda, Administrator. Approved: November 13, 2018. Timothy E. Skud, Deputy Assistant Secretary (Tax, Trade, and Tariff Policy). Editorial note:

    This document was received for publication by the Office of the Federal Register on November 29, 2018.

    [FR Doc. 2018-26321 Filed 12-4-18; 8:45 am] BILLING CODE 4810-31-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 16 [EPA-HQ-OEI-2014-0849; FRL-9941-43-OEI] Revision of the Agency's Privacy Act Regulations for EPA-63 AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing revisions to the Agency's Privacy Act regulations in order to exempt a new system of records, EPA-63, the eDiscovery Enterprise Tool Suite, from certain requirements of the Privacy Act because records in EPA's eDiscovery Enterprise Tool Suite are maintained for use in civil and criminal actions. A notice has been published in the Federal Register on July 27, 2018 for the creation of this new system of records that will contain information collected using the Agency's suite of tools that search and preserve electronically stored information (ESI) in support of the Agency's eDiscovery (electronic discovery) and Freedom of Information Act processes. In the “Rules and Regulations” section of this Federal Register, we are simultaneously publishing the Revision of the Agency's Privacy Act Regulations for EPA-63 as a direct final rule without a prior proposed rule. If we receive no adverse comment, we will not take further action on this proposed rule.

    DATES:

    Comments must be received on or before January 7, 2019.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OEI-2014-0849, at https://www.regulations.gov/. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Brian K. Thompson, Acting Director, eDiscovery Division, Office of Enterprise Information Programs, U.S. Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue NW, Washington, DC 20460; email: [email protected]; telephone number: 202-564-4256.

    SUPPLEMENTARY INFORMATION:

    I. Why is EPA issuing this proposed rule?

    This document proposes to revise the Agency's Privacy Act regulations in order to exempt a new system of records, EPA-63, the eDiscovery Enterprise Tool Suite, from certain requirements of the Privacy Act. We have published a direct final rule making this revision in the “Rules and Regulations” section of this Federal Register because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule.

    If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule. We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document.

    II. General Information

    The EPA published a Privacy Act system of records notice for information collected using the eDiscovery Enterprise Tool Suite. Depending on the specific need, the Agency will use a combination of several electronic tools that together assist with the preservation, search, processing, review and production of electronically stored information (ESI). The tool suite will be used to preserve, search, collect, sort and review ESI including email messages, word processing documents, media files, spreadsheets, presentations, scanned documents and data sets in support of legal discovery. The Agency will also use these tools to search for ESI that is responsive to requests for information submitted under the Freedom of Information Act (FOIA), or other formal information requests.

    The records in EPA's eDiscovery Enterprise Tool Suite are maintained for use in civil and criminal actions. The Agency's system of records, EPA-63, is maintained by the Office of Environmental Information, Office of Enterprise Information Programs, eDiscovery Division, on behalf of Agency offices that will require use of the eDiscovery tool suite for both civil and criminal actions. When information is maintained for the purpose of civil actions, the relevant provision of the Privacy Act is 5 U.S.C. 552a(d)(5) which states “nothing in this [Act] shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.” 5 U.S.C. 552a(d)(5).

    The system is also maintained for support of criminal enforcement activity by the EPA. In those cases, the system is maintained on behalf of the Criminal Investigation Division, Office of Criminal Enforcement, Forensics, and Training, Office of Enforcement and Compliance Assurance—a component of EPA that performs as its principal function, activities pertaining to the enforcement of criminal laws. When information is maintained for the purpose of criminal cases, the relevant provision of the Privacy Act is 5 U.S.C. 552a(j)(2), which states that the head of an agency may promulgate regulations to exempt the system from certain provisions of the Act if the system is “maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of: (A) Information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.” 5 U.S.C. 552a(j)(2). Accordingly the EPA is proposing to exempt EPA-63 from 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5), (e)(8) and (f)(2)-(f)(5) and (g):

    (1) From subsection (c)(3) because making available to a record subject the accounting of disclosures from records concerning him/her could reveal investigative interest on the part of EPA and/or the Department of Justice. This would permit record subjects to impede the investigation, e.g., destroy evidence, intimidate potential witnesses, or flee the area to avoid inquiries or apprehension by law enforcement personnel. Further, making available to a record subject the accounting of disclosures could reveal the identity of a confidential source.

    (2) From subsection (c)(4) because no access to these records is available under subsection (d) of the Privacy Act.

    (3) From subsection (d) because the records contained in these systems relate to official federal investigations. Individual access to these records could compromise ongoing investigations, reveal confidential informants and/or sensitive investigative techniques used in particular investigations, or constitute unwarranted invasions of the personal privacy of third parties who are involved in a certain investigation. Amendment of the records in either of these systems would interfere with ongoing law enforcement proceedings and impose an unworkable administrative burden by requiring law enforcement investigations to be continuously reinvestigated.

    (4) From subsections (e)(1) and (e)(5) because in the course of law enforcement investigations information may occasionally be obtained or introduced the accuracy of which is unclear or which is not strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of criminal activity. Moreover, it would impede any investigative process, whether civil or criminal, if it were necessary to assure the relevance, accuracy, timeliness and completeness of all information obtained.

    (5) From subsection (e)(2) because to comply with the requirements of this subsection during the course of an investigation could impede the information gathering process, thus hampering the investigation.

    (6) From subsection (e)(3) because to comply with the requirements of this subsection during the course of an investigation could impede the information gathering process, thus hampering the investigation.

    (7) From subsections (e)(4)(G) and (H) because no access to these records is available under subsection (d) of the Privacy Act.

    (8) From subsection (e)(8) because complying with this provision could prematurely reveal an ongoing criminal investigation to the subject of the investigation.

    (9) From subsection (f)(2), (f)(3), (f)(4) and (f)(5) because this system is exempt from the access and amendment provisions of subsection (d).

    (10) From subsection (g) because EPA is claiming that this system of records is exempt from subsections (c)(3) and (4), (d), (e)(1), (2), (3), (4)(G) and (H), (5), and (8), and (f)(2), (3), (4) and (5) of the Act, the provisions of subsection (g) of the Act are inapplicable and are exempted to the extent that this system of records is exempted from those subsections of the Act.

    A final relevant provision of the Privacy Act is 5 U.S.C. 552a(k)(2), which states that the head of an agency may promulgate regulations to exempt the system from certain provisions of the Act if the system “contains investigatory material compiled for law enforcement purposes other than material within the scope of subsection (j)(2)” of 5 U.S.C. 552a. Accordingly EPA-63 is exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H) and (f)(2)-(f)(5):

    (1) From subsection (c)(3) because making available to a record subject the accounting of disclosures from records concerning him/her could reveal investigative interest on the part of EPA and/or the Department of Justice. This would permit record subjects to impede the investigation, e.g., destroy evidence, intimidate potential witnesses, or flee the area to avoid inquiries or apprehension by law enforcement personnel. Further, making available to a record subject the accounting of disclosures could reveal the identity of a confidential source.

    (2) From subsection (d) because the records contained in these systems relate to official Federal investigations. Individual access to these records could compromise ongoing investigations, reveal confidential informants and/or sensitive investigative techniques used in particular investigations, or constitute unwarranted invasions of the personal privacy of third parties who are involved in a certain investigation. Amendment of the records in either of these systems would interfere with ongoing law enforcement proceedings and impose an impossible administrative burden by requiring law enforcement investigations to be continuously reinvestigated.

    (3) From subsection (e)(1) because in the course of law enforcement investigations information may occasionally be obtained or introduced the accuracy of which is unclear or which is not strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of criminal activity. Moreover, it would impede any investigative process, whether civil or criminal, if it were necessary to assure the relevance, accuracy, timeliness and completeness of all information obtained.

    (4) From subsections (e)(4) (G) and (H), because no access to these records is available under subsection (d) of the Privacy Act.

    (5) From subsection (f)(2), (f)(3), (f)(4) and (f)(5) because this system is exempt from the access and amendment provisions of subsection (d).

    III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

    This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

    C. Paperwork Reduction Act

    This action does not impose an information collection burden under the PRA. This action contains no provisions constituting a collection of information under the PRA.

    D. Regulatory Flexibility Act

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities.

    E. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.

    F. Executive Order 13132 (Federalism)

    This action does not have federalism implications. It will not have substantial direct effects 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.

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

    H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

    I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

    List of Subjects in 40 CFR Part 16

    Environmental protection, Administrative practice and procedure, Confidential business information, Privacy, Government employees.

    Dated: November 14, 2018. Vaughn Noga, Principal Deputy Assistant Administrator.

    For the reasons stated in the preamble, title 40, chapter I, part 16 of the Code of Federal Regulations is proposed to be amended as follows:

    PART 16—IMPLEMENTATION OF PRIVACY ACT OF 1974 1. The authority citation for part 16 continues to read as follows: Authority:

    5 U.S.C. 301, 552a (as revised).

    2. Amend § 16.11 by: a. Adding the system number and name, EPA-63 eDiscovery Enterprise Tool Suite, at the end of the list in paragraph (a); b. Adding paragraph (c)(4); c. Revising the first two sentences of paragraph (d); and d. Revising the introductory text of paragraph (e).

    The additions and revisions read as follows:

    § 16.11 General exemptions.

    (a) * * *

    EPA-63 eDiscovery Enterprise Tool Suite.

    (c) * * *

    (4) The Agency's system of records, EPA-63 system of records is maintained by the Office of Environmental Information, Office of Enterprise Information Programs, on behalf of the Criminal Investigation Division, Office of Criminal Enforcement, Forensics, and Training, a component of EPA which performs as its principal function activities pertaining to the enforcement of criminal laws. Authority for the Division's criminal law enforcement activities comes from Powers of Environmental Protection Agency, 18 U.S.C. 3063; Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9603; Resource Conservation and Recovery Act, 42 U.S.C. 6928; Federal Water Pollution Control Act, 33 U.S.C. 1319, 1321; Toxic Substances Control Act, 15 U.S.C. 2614, 2615; Clean Air Act, 42 U.S.C. 7413; Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136j, 136l; Safe Drinking Water Act, 42 U.S.C. 300h-2, 300i-1; Noise Control Act of 1972, 42 U.S.C. 4912; Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C. 11045; and the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. 1415.

    (d) Scope of Exemption. EPA systems of records 17, 40, 46 and 63 are exempted from the following provisions of the PA: 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (2), (3), (4)(G), and (H), (5), and (8); (f)(2) through (5); and (g). To the extent that the exemption for EPA systems of records 17, 40, 46 and 63 claimed under 5 U.S.C. 552a(j)(2) of the Act is held to be invalid, then an exemption under 5 U.S.C. 552a(k)(2) is claimed for these systems of records from (c)(3), (d), (e)(1), (e)(4)(G), (H), and (f)(2) through (5). * * *

    (e) Reasons for exemption. EPA systems of records 17, 40, 46 and 63 are exempted from the above provisions of the PA for the following reasons:

    3. Amend § 16.12 by: a. Adding the system number and name, EPA-63 eDiscovery Enterprise Tool Suite, at the end of the list in paragraph (a)(1); b. Revising the first sentence in paragraph (a)(4)(i); and c. Revising the introductory text in paragraph (a)(5).

    The addition and revisions read as follows:

    § 16.12 Specific exemptions.

    (a) * * *

    (1) * * *

    EPA-63 eDiscovery Enterprise Tool Suite.

    (4) * * * (i) EPA systems of records 17, 30, 40, 41, 46 and 63 are exempted from the following provisions of the PA, subject to the limitations set forth in 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (4)(G) and (4)(H); and (f)(2) through (5). * * *

    (5) Reasons for exemption. EPA systems of records 17, 21, 30, 40, 41, 46 and 63 are exempted from the above provisions of the PA for the following reasons:

    [FR Doc. 2018-26214 Filed 12-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 26 [EPA-HQ-ORD-2018-0280; FRL-9987-01-ORD] RIN 2080-AA13 Protection of Human Research Subjects AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    On January 19, 2017, the Environmental Protection Agency (EPA), acting in concert with other agencies, promulgated revisions to the “Common Rule,” which is based on regulations for the protection of human research subjects originally promulgated by the Department of Health and Human Services (HHS) that were then revised and jointly adopted by multiple departments and agencies that conduct or support research involving human subjects. EPA's codification of these revisions is in 40 CFR part 26, subpart A. These revisions will go into effect on January 21, 2019. In addition to the core protections found in the Common Rule, EPA has promulgated regulations that are specific to research involving human subjects conducted or sponsored by EPA or submitted to EPA for regulatory purposes. The revisions to the Common Rule create a discrepancy within some of these EPA-specific regulations. This proposed action is to harmonize the EPA-specific regulations with revisions to the Common Rule in order to resolve those discrepancies.

    DATES:

    Comments must be received on or before February 4, 2019.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2018-0280, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Tom Sinks, Director, Office of Science Advisor, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460 (Mail Code: 8105R); telephone number: 202-560-3099; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information A. Does this action apply to me?

    This action is directed to the public in general. This action may, however, be of particular interest to those who conduct human research on substances regulated by EPA. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

    B. What action is the agency taking?

    The Agency is proposing to amend subparts C, D, K, and M of its regulations relating to human research. These changes are intended to correct regulatory citation references in subparts C and D that have been rendered ineffective by the revisions to the Common Rule, 82 FR 7149 (Jan. 19, 2017), codified by EPA at 40 CFR part 26, subpart A, and to harmonize language in subpart K with those revisions, where appropriate. Finally, there is a single typographical error in subpart M that should be corrected while this action is being undertaken.

    Subparts C and D refer back to provisions in the Common Rule codified at subpart A, and, in light of the revisions to the Common Rule, several numerical citations (i.e., regulatory reference numbers) in subparts C and D are no longer accurate and need to be updated.

    Subpart K, in establishing a process for review of third-party research involving intentional exposure of human subjects, borrows heavily from the provisions contained in the previous version of the Common Rule. The proposed amendments would allow the Agency to align subpart K with the revised Common Rule and maintain consistency of Institutional Review Board (IRB) review between agency-conducted or agency-sponsored human research and third-party human research.

    Failure to resolve these discrepancies will create confusion and, more seriously, potential compliance and/or legal liabilities for researchers, institutions, and sponsors who must follow EPA regulations. In the absence of the proposed revisions to EPA-specific subparts, there will effectively be two conflicting sets of regulations to follow, once the Common Rule changes are reflected in subpart A and compliance is required. These changes will reduce regulatory burdens and potential confusion among the regulated community about which standards to apply by enhancing consistency among those standards. In addition, as discussed in the final rule amending the Common Rule, the proposed amendments would enhance protections for human subjects and improving consistency means that similar protections for human subjects apply, regardless of who is conducting the study.

    C. What is the agency's authority for taking this action?

    The proposed rule described in this document is authorized under provisions of the following statutes that EPA administers. The proposed amendments to EPA's codification of the Common Rule and other provisions regarding first- and second-party research are authorized pursuant to 5 U.S.C. 301; the underlying Common Rule also cites to 42 U.S.C. 300v-1(b) as authority for the revisions to the Common Rule provisions. The proposed amendments to regulations governing third-party research involving intentional human exposure to pesticides or to other substances where such research is used for purposes of pesticide decision-making are authorized under the following statutory provisions. Section 3(a) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizes EPA to regulate the distribution, sale, or use of any unregistered pesticide in any State “[t]o the extent necessary to prevent unreasonable adverse effects on the environment” (defined at FIFRA section 2(bb), in pertinent part, as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide”). 7 U.S.C. 136a(a) and 136(bb). In addition, section 25(a) of FIFRA authorizes EPA to “prescribe regulations to carry out the provisions of [FIFRA].” Id. at § 136w(a). Section 408(e)(1)(C) of the Federal Food, Drug, and Cosmetic Act (FFDCA) authorizes the Administrator to issue a regulation establishing “general procedures and requirements to implement [Section 408].” 21 U.S.C. 346a(e)(1)(C).

    EPA has also used the authority provided in section 201 of the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2006, Public Law 109-54 (2006 Appropriations Act) to promulgate the subparts B through Q of EPA's regulations at part 26.

    Public Law 109-54, 201, 119 Stat. 499, 531 (Aug. 2, 2005). In the 2006 Appropriations Act, Congress directed EPA to promulgate a rule on “third-party intentional dosing human toxicity studies for pesticides . . . ”, prohibiting the use of pregnant women, infants or children as subjects, consistent with the principles proposed in the 2004 report of the National Academy of Sciences on intentional human dosing and the principles of the Nuremberg Code, and establishing an independent Human Subjects Review Board. Id.

    II. Background A. Common Rule

    In 1991, 15 federal departments and agencies, including EPA, adopted a set of regulations intended to create a uniform body of regulations across the federal government for the protection of human subjects involved in research. See 56 FR 28003 (June 18, 1991). Patterned after the regulations originally promulgated by HHS under 45 CFR part 46, this set of regulations was titled the “Federal Policy for the Protection of Human Subjects” and is commonly referred to as the “Common Rule.” The Common Rule regulations were subsequently promulgated into each federal department's or agency's own set of regulations and implemented, and are enforced at the individual department or agency level. EPA codified the Common Rule provisions at 40 CFR part 26, subpart A.

    A number of changes in research involving human subjects have occurred since the Common Rule was initially adopted in 1991. In 2011, the Office of the Secretary of HHS, in coordination with the Executive Office of the President's Office of Science and Technology Policy, published an advance notice of proposed rulemaking, seeking comment on areas where revisions to the Common Rule might be warranted. See 76 FR 44512 (Jul. 26, 2011). Then in 2015, HHS and the other Common Rule agencies issued a notice of proposed rulemaking, proposing and seeking comment on several potential regulatory revisions to the Common Rule. See 80 FR 53931 (Sept. 8, 2015).

    On January 19, 2017, all Common Rule agencies and departments, including EPA, adopted several revisions intended to “modernize, strengthen, and make [the Common Rule] more effective”. See 82 FR 7149 (Jan. 19, 2017). The preamble to the final rule noted that the revisions are “intended to better protect human subjects involved in research, while facilitating valuable research and reducing burden, delay, and ambiguity for investigators.” Id. In brief, the January 2017 revisions established new requirements for the informed consent process; allowed the use of broad consent (i.e., seeking prospective consent to unspecified future research) from a subject for storage, maintenance, and secondary research use of identifiable private information and identifiable biospecimens; established new exempt categories of research based on their risk profile; required the use of a single IRB for U.S.-based cooperative research; and removed the continuing review requirement for certain research, in addition to making minor changes intended to improve the clarity and accuracy of the rule. Id. at 7150. There are currently 20 Federal agencies and departments that are signatories or have otherwise adopted the Common Rule.

    The January 19, 2017 rule stated that its effective date and compliance date would be January 19, 2018, with the exception of one section (§ _.114(b) (cooperative research)), which would have a compliance date of January 20, 2020. Id. at 7274. The effective date and January 19, 2018 compliance date were delayed until July 19, 2018, through an interim final rule. See 83 FR 2885 (Jan. 22, 2018). Further delay of the compliance date until January 21, 2019, was proposed in a notice of proposed rulemaking, see 83 FR 17595 (Apr. 20, 2018), and finalized on June 19, 2018. See 83 FR 28497.

    B. EPA's Human Studies Subparts

    In addition to the Common Rule (subpart A), EPA has adopted several additional subparts to the rule at 40 CFR 26 that provide enhanced protection for participants in human research conducted or supported by EPA, or certain types of third party research. These EPA-specific subparts were added in 2006 in response to a Congressional mandate. See EPA, Protections for Subjects in Human Research, 71 FR 6138 (Feb. 6, 2006). Specifically, Congress prohibited EPA use of certain appropriated funds until EPA issued a rule on the subject of EPA's acceptance, consideration, or reliance on third-party intentional dosing human toxicity studies for pesticides. Congress mandated three requirements for EPA's rule: (1) Prohibit the use of pregnant women, infants or children as subjects; (2) be consistent with the principles proposed in the 2004 report of National Academy of Sciences “Intentional Human Dosing Studies for EPA Regulatory Purposes: Scientific and Ethical Issues” and the principles of the Nuremberg Code; and (3) establish an independent Human Subjects Review Board. See Public Law 109-54.

    In accordance with that mandate, EPA created several regulatory subparts in addition to subpart A. Subparts B through D govern research conducted or sponsored by EPA involving pregnant or nursing women and children. Specifically, subpart B categorically prohibits any EPA-conducted or EPA-sponsored research involving intentional exposure to any substance of human subjects who are children or pregnant or nursing women; subparts C and D provide extra protections for pregnant women and for children who are the subjects of observational research conducted or supported by EPA.

    EPA also created several subparts, K through Q, governing third-party pesticide research and EPA's reliance on research involving intentional exposure of human subjects. EPA concluded that it was appropriate to apply equivalent ethical standards to EPA-conducted and EPA-sponsored research, as well as to third-party research and thus in subpart K, extended the Common Rule provisions to third-party human research involving intentional exposure of non-pregnant, non-nursing adults relevant to pesticide regulatory decision-making. See 70 FR 53838, 53845 (Sept. 12, 2005). EPA copied the requirements from the Common Rule into a new subpart K with a parallel numbering system to the Common Rule, making minor modifications that reflected the more limited set of human research subject to subpart K. For a discussion of those minor modifications, see 71 FR at 6147. The other subparts prohibited use of pregnant or nursing women or children as human subjects in third-party research involving intentional exposure (subpart L); established requirements for submission of information on the ethical conduct of completed human research (subpart M); established provisions to address noncompliance of an IRB or institution (subpart O); established a Human Studies Review Board (HSRB) and standards for EPA and HSRB review of proposed and completed research involving intentional exposure (subpart P); and standards for EPA reliance on such studies (subpart Q).

    Additional modifications to subparts K through Q were made in 2013. Among those modifications were broadening its applicability to decision-making outside the scope of the pesticide laws and eliminating the option for a “legally authorized representative” to provide informed consent for a human subject within the context of third-party research involving intentional exposure to pesticides or submitted for pesticide decision making. See 78 FR 10538, 10538-39 (Feb. 14, 2013).

    III. Proposed Amendments and Request for Comment

    This section of the preamble provides a description of the proposed changes to subparts C, D, K, and M. In sum, the rationale for revisions to subparts C, D, and K is to ensure consistency with the revisions to 40 CFR part 26, subpart A, i.e., the Common Rule; the rationale for the revision to subpart M is to correct a minor typographical error.

    A. Harmonizing Subparts C and D With the Revised Common Rule

    Subpart C: Subpart C, which sets forth additional protections for pregnant women and fetuses involved as subjects in observational research conducted or supported by EPA, refers back to subpart A in several provisions. First, the text at §  26.301(b) provides that the exemptions found in the Common Rule are applicable to the observational research studies covered by subpart C. The purpose of these exemptions is to provide a mechanism to allow for the conduct of research that is of such low risk that full IRB review and related processes are not warranted and would only serve to inhibit research without adding meaningful protections for human subjects. Recognizing this, the Common Rule pre-emptively identifies several categories of research (including much educational and social science research, simple surveys, and use of existing data or records) that are exempt from the full set of regulatory requirements that follow. In the revised Common Rule, the exempt categories were revised and expanded and moved to a different section number. Without a regulatory correction, EPA's regulations would no longer reference the section describing exempt research. Thus, a study involving an innocuous survey would no longer be eligible for exemption, and EPA researchers or grantees for such studies would need to comply with the full requirements of the Common Rule, in contrast to other federal agencies and grantees, which would be able to proceed with such research outside the scope of the Common Rule.

    The second change required to subpart C is found in §  26.301(c), which refers back to the general provisions of the Common Rule. The revised Common Rule contains several new provisions, including a new reference to tribal laws in the preemption provision of the Common Rule found at § 26.101(f). EPA had initially added a provision to its subpart clarifying that tribal laws are not preempted, but this addition is no longer necessary, with updates to the Common Rule. Specifically, the revised Common Rule provides that: “This policy does not affect any state or local laws or regulations (including tribal law passed by the official governing body of an American Indian or Alaska Native tribe).” (Emphasis added). The italicized language is new, and renders redundant and unnecessary EPA's previous statement to the same effect. In addition, the Common Rule contains new provisions on the effective and compliance dates of the revised Common Rule and severability, that must also be included in subpart C for consistency in implementation.

    Subpart D: Like subpart C, subpart D also incorporates by reference the exemptions found in subpart A. Specifically, §  26.401(b) lists the applicable exemptions in subpart A that are also applicable to subpart D. Unlike subpart C, however, subpart D, which provides additional protections for children involved as subjects in observational research conducted or supported by EPA, provides that the Common Rule exemption for research involving survey or interview procedures or observations of public behavior does not apply to research covered by subpart D, except in limited circumstances. Changes to the relevant section numbers are needed to preserve access to the exemptions incorporated by reference, as well as the provision limiting the application in research involving children. In addition, changes are needed to §  26.401(a) and (c), respectively, to remove the now- unnecessary clarification regarding preemption of tribal laws and to include reference to the new general provisions in the Common Rule, including the effective date information provision.

    In practice, failing to amend subparts C and D, especially with respect to ensuring that the applicable exemptions in subpart A are accurately incorporated by reference, would greatly complicate the conduct of the above types of studies that have little to no risk, without commensurate benefit for their subjects. It would also place EPA at odds with the scientists and institutions conducting EPA-sponsored research, and their IRBs that review the studies, all of whom will be applying the new Common Rule.

    B. Harmonizing Subpart K With the Revised Common Rule

    As noted above, when establishing new regulations for third-party research in 2006, EPA determined that it was appropriate to extend the Common Rule provisions to third-party research, so that equivalent ethical standards were applied to both research conducted and supported by EPA and by third parties. See 70 FR at 53845. At the same time, EPA narrowed the extension of the Common Rule provisions by limiting the scope of subpart K to third-party research involving intentional exposure of human subjects to pesticides and intended to be submitted to EPA under the pesticide laws and made minor modifications to those provisions to reflect the narrower scope of studies in subpart K. See id.

    With the adoption of revisions to the Common Rule, EPA believes that many of the Common Rule revisions should again be extended to subpart K for the same reasons that EPA adopted Common Rule provisions for the original subpart K. The Common Rule amendments, as noted above, are intended to accommodate changes in the field of human research and to better protect human subjects, while facilitating research and reducing burden and delay. Those revisions can similarly apply to research subject to subpart K. EPA continues to believe that it is appropriate for third-party research to be held to equivalent ethical standards as research conducted or supported by EPA. In addition, EPA recognizes the efficiencies in having equivalent or similar standards for regulating the ethical conduct of research involving human subjects, regardless of who conducts that research, and the confusion that might arise if standards are different. Many investigators and their IRBs will be following the revised Common Rule in non-EPA research and in EPA-sponsored research. Increased variability in standards will likely impose greater burden on the regulated community to keep straight and apply the different standards for review of research. Consistency in standards will result in greater clarity and less regulatory burden as well as less potential for confusion and misapplication of standards for the regulated community.

    Accordingly, EPA proposes to adopt the revisions finalized for the Common Rule in January 19, 2017, with a few exceptions that are not relevant or appropriate given the scope of subpart K. The same considerations that informed the original drafting of subpart K and the reasons for the 2013 revisions, as mentioned above, inform the harmonization of subpart K with the applicable provisions of the revised Common Rule. As with the original drafting of subpart K, there are some elements of the broader Common Rule that are not applicable to the particular subset of research subject to EPA's subpart K, and inclusion of these provisions would be confusing and problematic. These exceptions include definitions that did not apply to third-party studies; categories of exempt research that are not relevant to third-party studies; requirements for Federal Register notifications that would be redundant with the HSRB process; references to research involving pregnant women, fetuses or children that would not be allowed under subpart L; and provisions for alteration or waiver of informed consent. For various reasons, these provisions would generally not be appropriate or permissible for intentional exposure studies, so those provisions are not included in the proposed amendments to subpart K. EPA already determined that waiver of informed consent and consent by legally authorized representative are not appropriate for intentional exposure studies, nor would such studies be eligible for exemption, so these options are not offered under subpart K. See 71 FR at 6148; 76 FR at 5744-45.

    EPA is proposing to adopt the broad consent provisions, which were newly added in the revised Common Rule, with a clarifying statement. There was concern that the Common Rule reference to broad consent as an “alternative” to the informed consent requirements might lead to mistaken use as a replacement for, rather than an adjunct to, full informed consent. Because this would never be appropriate for an intentional exposure study of the type regulated under this EPA-specific subpart, a statement was added to clarify and confirm that the option to obtain broad consent for the limited purposes of storage, maintenance and secondary research use of identifiable private information or identifiable biospecimens is not a replacement for obtaining full informed consent for the primary research involving intentional exposure of a human subject that is subject to subpart K.

    Another similarity with the Common Rule revisions is that EPA intends that the proposed amendments to subpart K to apply prospectively, i.e., to research subject to subpart K that is initiated after the final rule goes into effect. As such, EPA proposes to replace the date in section 26.1101(a) with the date the final rule becomes effective. This revision would not eliminate the prior obligation any third-party had to comply with subpart K if it was conducting or sponsoring research involving intentional exposure to human subjects covered by subpart K that was initiated prior to that date; such research would have had to comply with the EPA regulations in effect at the time the research was initiated. Clarity on this point is significant because, in contrast to other Common Rule agencies, EPA's regulations also require a retrospective analysis of completed research involving intentional exposure to human subjects before EPA may rely on any such research. Specifically, section 26.1705 of EPA's regulations applies to research that was subject to EPA's rules “at the time it was conducted” and requires that EPA determine, among other things, that certain completed research involving intentional exposure of human subjects was conducted in substantial compliance with “[a]ll applicable provisions of subparts A through L . . . .” 40 CFR 26.1705. It is important to be clear about the scope of research subject to this retrospective review and to ensure that the research subject to the retrospective review is evaluated under the appropriate standards. To avoid the misinterpretation that subpart K no longer applies to research initiated before the effective date of the final rule and to avoid the retrospective application of newer regulatory requirements, EPA is proposing to add a new paragraph (h) to § 26.1101, clarifying that research initiated before the effective date of the final rule would be subject to the standards of EPA's regulations that were in effect at the time the research was initiated.

    C. Correcting Error in Subpart M

    The existing text at 40 CFR 26.1302 reads, “[t]he definitions in § 26.102 apply to this subpart as well.” EPA is proposing to amend this text to reference the definitions in subpart K, which are found at § 26.1102, instead of the definitions in subpart A, found at § 26.102. With the exception of subpart M, all EPA subparts from L to Q refer to the definitions in subpart K, which include terms necessary and relevant to these EPA-specific subparts. Subpart M was intended to reference the same set of definitions. See 71 FR at 6147 (indicating that definition in section 26.1102 was intended to apply to subpart M). This was a typographical error at the time of original drafting, which EPA is proposing to correct.

    IV. FIFRA Review Requirements

    In accordance with FIFRA section 25(a), EPA has submitted a draft of the proposed rule to the FIFRA Scientific Advisory Panel (SAP), the Secretary of Agriculture (USDA), and appropriate Congressional Committees. The SAP waived its review on June 4, 2018. USDA responded on July 3, 2018 and had no substantive comments on the proposal. Both responses are in the docket for this rulemaking.

    V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket for this rulemaking as required by the Executive Order.

    The incremental costs of these proposed amendments both to industry and to EPA are expected to be negligible, including the costs to industry related to informed consent documentation and the cost to EPA of reviewing research submitted under the revised subpart K requirements. Entities who would be impacted by the proposed amendments have already been accounted for in previous economic analyses for the revised Common Rule and the 2006 and 2013 EPA rulemakings concerning human subjects research. EPA has not, therefore, prepared a new economic analysis for this rulemaking. The cost estimates for complying with the 2006 rule were incremental costs of $39,000 for industry and $808,000 for EPA (71 FR at 6166), and the costs for the 2013 amendments were estimated to be negligible (76 FR at 5751). The costs and benefits associated with implementing these proposed amendments, particularly those linked to IRBs, have already been captured by the economic analysis for the Common Rule. The costs for this rule include costs for some additional parties, i.e., third-party investigators, who may need to spend some time familiarizing themselves with the new requirements, but these costs will be negligible 1 and outweighed by the benefits to the regulated community of having consistent standards applied to third-party studies. In addition to providing equally protective ethical standards to the human subjects of third-party intentional exposure research, the benefits of greater consistency will improve efficiencies in the oversight and review of human research, improve understanding of the standards that apply, and reduce the potential for misapplication of standards. This proposal provides no basis on which to revise the cost estimates that were provided in the economic analysis for the 2006 rulemaking or those most recently provided in the 2013 renewal of the Information Collection Request (ICR) for the existing regulation at 40 CFR part 26.

    1 The revised Common Rule economic analysis, which included more revisions than proposed in this document, estimated that affected individuals would spend five hours to familiarize themselves with the changes. See 82 FR at 7238.

    B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs

    This action is not expected to be subject to Executive Order 13771 because this proposed rule is expected to result in no more than de minimis costs.

    C. Paperwork Reduction Act

    This action does not impose any new information collection burden that would require additional review or approval by OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. OMB previously approved the information collection requirements contained in the existing regulations at 40 CFR part 26 under OMB Control No. 2070-0169.

    D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA.

    The Agency has not identified any small entities subject to the requirements in this proposal, but it is possible that some small pesticide registrants may initiate research subject to EPA's Human Studies rule. The Agency has determined that impacted small entities, if any, may experience an impact of 0.02% as indicated in the “Economic Analysis of Final Rule: Protections for Human Research Participants” (Jan. 12, 2006). The Agency does not have any information to support revising that analysis.

    E. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.

    F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects 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.

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. This action is not expected to have substantial direct effects on Indian Tribes, will not significantly or uniquely affect the communities of Indian Tribal governments, and does not involve or impose any requirements that affect Indian Tribes. Thus, Executive Order 13175 does not apply to this action.

    H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. EPA's regulations governing research involving human subjects applies to the conduct and review of research involving intentional exposure of human subjects, and prohibits the conduct of or EPA reliance on any such research involving subjects who are children, or pregnant or nursing women. These provisions remain in effect and would not be affected by the proposed amendments.

    I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not a “significant energy action” because it is not likely to have any effect on the supply, distribution, or use of energy.

    J. National Technology Transfer and Advancement Act

    This action does not involve any technical standards.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    This action does not entail special considerations of environmental justice-related issues as delineated by Executive Order 12898. The strengthened protections for human subjects participating in covered research established in the 2006 rule would not be altered by these proposed amendments.

    List of Subjects in 40 CFR Part 26

    Environmental protection, Administrative practice and procedures, Human research, Pesticides and pests.

    Dated: November 16, 2018. Andrew R. Wheeler, Acting Administrator.

    Therefore, it is proposed that 40 CFR chapter I be amended as follows:

    PART 26—[AMENDED] 1. The authority citation for part 26 continues to read as follows: Authority:

    5 U.S.C. 301; 7 U.S.C. 136a(a) and 136w(a)(1); 21 U.S.C. 346a(e)(1)(C); sec. 201, Pub. L. 109-54, 119 Stat. 531; and 42 U.S.C. 300v-1(b).

    2. Amend § 26.301 by revising paragraphs (b) and (c) to read as follows:
    §  26.301 To what does this subpart apply?

    (b) The exemptions at §  26.104(d) are applicable to this subpart.

    (c) The provisions of §  26.101(c) through (m) are applicable to this subpart.

    3. Amend §  26.401 by revising paragraphs (a) and (b) to read as follows:
    §  26.401 To what does this subpart apply?

    (a) This subpart applies to all observational research involving children as subjects, conducted or supported by EPA. This includes research conducted in EPA facilities by any person and research conducted in any facility by EPA employees.

    (b) Exemptions at §  26.104(d)(1) and (d)(3) through (d)(8) are applicable to this subpart. The exemption at §  26.104(d)(2) regarding educational tests is also applicable to this subpart. However, the exemption at §  26.104(d)(2) for research involving survey or interview procedures or observations of public behavior does not apply to research covered by this subpart, except for research involving observation of public behavior when the investigator(s) do not participate in the activities being observed.

    §  26.402 [Amended]
    4. Amend §  26.402 by removing paragraph (g). 5. Amend §  26.406 by revising the last sentence of paragraph (a) to read as follows:
    §  26.406 Requirements for permission by parents or guardians and for assent by children.

    (a) * * * Even where the IRB determines that the subjects are capable of assenting, the IRB may still waive the assent requirement under circumstances in which consent may be waived in accord with §  26.116(e).

    6. Revise subpart K, consisting of §§ 26.1101 through 26.1125, to read as follows: PART 26—PROTECTION OF HUMAN RESEARCH SUBJECTS Subpart K—Basic Ethical Requirements for Third-Party Human Research for Pesticides Involving Intentional Exposure of Non-Pregnant, Non-Nursing Adults Sec. 26.1101 To what does this subpart apply 26.1102 Definitions 26.1103-26.1106 [Reserved] 26.1107 IRB membership 26.1108 IRB functions and operations 26.1109 IRB review of research 26.1110 Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research. 26.1111 Criteria for IRB approval of research 26.1112 Review by institution 26.1113 Suspension or termination of IRB approval of research 26.1114 Cooperative research 26.1115 IRB records 26.1116 General requirements for informed consent 26.1117 Documentation of informed consent 26.1118-26.1122 [Reserved] 26.1123 Early termination of research 26.1124 [Reserved] § 26.1125 Prior submission of proposed human research for EPA review
    § 26.1101 To what does this subpart apply?

    (a) Except as provided in paragraph (c) of this section, this subpart applies to all research initiated on or after [effective date for final rule] involving intentional exposure of a human subject to:

    (1) Any substance if, at any time prior to initiating such research, any person who conducted or supported such research intended either to submit results of the research to EPA for consideration in connection with any action that may be performed by EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136-136y) or section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA) (21 U.S.C. 346a), or to hold the results of the research for later inspection by EPA under FIFRA or section 408 of FFDCA; or

    (2) A pesticide if, at any time prior to initiating such research, any person who conducted or supported such research intended either to submit results of the research to EPA for consideration in connection with any action that may be performed by EPA under any regulatory statute administered by EPA other than those statutes designated in paragraph (a)(1) of this section, or to hold the results of the research for later inspection by EPA under any regulatory statute administered by EPA other than those statutes designated in paragraph (a)(1) of this section.

    (b) For purposes of determining a person's intent under paragraph (a) of this section, EPA may consider any available and relevant information. EPA must rebuttably presume the existence of intent if:

    (1) The person or the person's agent has submitted or made available for inspection the results of such research to EPA; or

    (2) The person is a member of a class of people who, or whose products or activities, are regulated by EPA and, at the time the research was initiated, the results of such research would be relevant to EPA's exercise of its regulatory authority with respect to that class of people, products, or activities.

    (c) Unless otherwise required by the Administrator, research is exempt from this subpart if it involves only the collection or study of existing data, documents, records, pathological specimens, or diagnostic specimens from previously conducted studies, and if these sources are publicly available or if the information is recorded by the investigator in such a manner that subjects cannot be identified, directly or through identifiers linked to the subjects.

    (d) The EPA Administrator retains final judgment as to whether a particular activity is covered by this subpart and this judgment shall be exercised consistent with the ethical principles of the Belmont Report.

    (e) Compliance with this subpart requires compliance with pertinent Federal laws or regulations that provide additional protections for human subjects.

    (f) This subpart does not affect any state or local laws or regulations (including tribal law passed by the official governing body of an American Indian or Alaska Native tribe) that may otherwise be applicable and that provide additional protections for human subjects.

    (g) This subpart does not affect any foreign laws or regulations that may otherwise be applicable and that provide additional protections to human subjects of research.

    (h) Notwithstanding paragraph (a), nothing in this section alters the previous obligation to comply with EPA regulations in this subpart that governed research involving intentional exposure of human subjects initiated prior to [effective date of final rule] and that were in effect and applicable to such research at the time it was initiated.

    § 26.1102 Definitions.

    (a) Administrator means the Administrator of the Environmental Protection Agency (EPA) and any other officer or employee of EPA to whom authority has been delegated.

    (b) Common Rule refers to the Federal Policy for the Protection of Human Subjects as established in 1991 and codified by EPA and 14 other Federal departments and agencies (see the Federal Register issue of June 18, 1991 (56 FR 28003)) and its subsequent revisions as adopted by EPA and other federal departments and agencies (see the Federal Register issue of January 19, 2017 (82 FR 7149)). The Common Rule contains a widely accepted set of standards for conducting ethical research with human subjects, together with a set of procedures designed to ensure that the standards are met. Once codified or adopted by a Federal department or agency, the requirements of the Common Rule apply to research conducted or sponsored by that Federal department or agency. EPA's codification of the Common Rule appears in 40 CFR part 26, subpart A.

    (c) Federal department or agency refers to a federal department or agency (the department or agency itself rather than its bureaus, offices or divisions) that takes appropriate administrative action to make the Common Rule applicable to the research involving human subjects it conducts, supports, or otherwise regulates (e.g., the U.S. Department of Health and Human Services, the U.S. Department of Defense, or the Central Intelligence Agency).

    (d)(1) Human subject means a living individual about whom an investigator (whether professional or student) conducting research:

    (i) Obtains information or biospecimens through intervention or interaction with the individual, and uses, studies, or analyzes the information or biospecimens, or

    (ii) Obtains, uses, studies, analyzes, or generates identifiable private information or identifiable biospecimens.

    (2) Intervention includes both physical procedures by which information or biospecimens are gathered (e.g., venipuncture) and manipulations of the subject or the subject's environment that are performed for research purposes.

    (3) Interaction includes communication or interpersonal contact between investigator and subject.

    (4) Private information includes information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and information which has been provided for specific purposes by an individual and which the individual can reasonably expect will not be made public (e.g., a medical record).

    (5) Identifiable private information is private information for which the identity of the subject is or may readily be ascertained by the investigator or associated with the information.

    (6) An identifiable biospecimen is a biospecimen for which the identity of the subject is or may readily be ascertained by the investigator or associated with the biospecimen.

    (e) Institution means any public or private entity or agency (including federal, state, and other agencies).

    (f) IRB means an institutional review board established in accord with and for the purposes expressed in this part.

    (g) IRB approval means the determination of the IRB that the research has been reviewed and may be conducted at an institution within the constraints set forth by the IRB and by other institutional and federal requirements.

    (h) Minimal risk means that the probability and magnitude of harm or discomfort anticipated in the research are not greater in and of themselves than those ordinarily encountered in daily life or during the performance of routine physical or psychological examinations or tests.

    (i) Person means any person, as that term is defined in FIFRA section 2(s) (7 U.S.C. 136), except:

    (1) A federal agency that is subject to the provisions of the Federal Policy for the Protection of Human Subjects of Research, and

    (2) A person when performing human research supported by a federal agency covered by paragraph (i)(1) of this section.

    (j) Pesticide means any substance or mixture of substances meeting the definition in 7 U.S.C. 136(u) (Federal Insecticide, Fungicide, and Rodenticide Act, section 2(u)).

    (k) Research means a systematic investigation, including research, development, testing and evaluation, designed to develop or contribute to generalizable knowledge. Activities that meet this definition constitute research for purposes of this subpart, whether or not they are considered research for other purposes. For example, some demonstration and service programs may include research activities.

    (l) Research involving intentional exposure of a human subject means a study of a substance in which the exposure to the substance experienced by a human subject participating in the study would not have occurred but for the human subject's participation in the study.

    (m) Written, or in writing, for purposes of this subpart refers to writing on a tangible medium (e.g., paper) or in an electronic format.

    §§ 26.1103-26.1106 [Reserved]
    § 26.1107 IRB membership.

    (a) Each IRB shall have at least five members, with varying backgrounds to promote complete and adequate review of research activities that are presented for its approval. The IRB shall be sufficiently qualified through the experience and expertise of its members (professional competence), and the diversity of the members, including consideration of race, gender, and cultural backgrounds and sensitivity to such issues as community attitudes, to promote respect for its advice and counsel in safeguarding the rights and welfare of human subjects. The IRB shall be able to ascertain the acceptability of proposed research in terms of institutional commitments (including policies and resources) and regulations, applicable law, and standards of professional conduct and practice. The IRB shall therefore include persons knowledgeable in these areas. If an IRB regularly reviews research that involves a category of subjects vulnerable to coercion or undue influence, such as prisoners, individuals with impaired decision-making capacity, or economically or educationally disadvantaged persons, consideration shall be given to the inclusion of one or more individuals who are knowledgeable about and experienced in working with these categories of subjects.

    (b) Each IRB shall include at least one member whose primary concerns are in scientific areas and at least one member whose primary concerns are in nonscientific areas.

    (c) Each IRB shall include at least one member who is not otherwise affiliated with the institution and who is not part of the immediate family of a person who is affiliated with the institution.

    (d) No IRB may have a member participate in the IRB's initial or continuing review of any project in which the member has a conflicting interest, except to provide information requested by the IRB.

    (e) An IRB may, in its discretion, invite individuals with competence in special areas to assist in the review of issues that require expertise beyond or in addition to that available on the IRB. These individuals may not vote with the IRB.

    § 26.1108 IRB functions and operations.

    (a) In order to fulfill the requirements of this subpart each IRB shall:

    (1) Have access to meeting space and sufficient staff to support the IRB's review and recordkeeping duties;

    (2) Prepare and maintain a current list of the IRB members identified by name; earned degrees; representative capacity; indications of experience such as board certifications or licenses sufficient to describe each member's chief anticipated contributions to IRB deliberations; and any employment or other relationship between each member and the institution, for example, full-time employee, part-time employee, member of governing panel or board, stockholder, paid or unpaid consultant;

    (3) Establish and follow written procedures for:

    (i) Conducting its initial and continuing review of research and for reporting its findings and actions to the investigator and the institution;

    (ii) Determining which projects require review more often than annually and which projects need verification from sources other than the investigator that no material changes have occurred since previous IRB review;

    (iii) Ensuring prompt reporting to the IRB of proposed changes in research activity, and for ensuring that investigators will conduct the research activity in accordance with the terms of the IRB approval until any proposed changes have been reviewed and approved by the IRB, except when necessary to eliminate apparent immediate hazards to the subject.

    (4) Establish and follow written procedures for ensuring prompt reporting to the IRB, appropriate institutional officials, and the Environmental Protection Agency of:

    (i) Any unanticipated problems involving risks to human subjects or others or any instance of serious or continuing noncompliance with this subpart or the requirements or determinations of the IRB; and

    (ii) Any suspension or termination of IRB approval.

    (b) Except when an expedited review procedure is used (see § 26.1110), an IRB must review proposed research at convened meetings at which a majority of the members of the IRB are present, including at least one member whose primary concerns are in nonscientific areas. In order for the research to be approved, it shall receive the approval of a majority of those members present at the meeting.

    § 26.1109 IRB review of research.

    (a) An IRB shall review and have authority to approve, require modifications in (to secure approval), or disapprove all research activities covered by this subpart.

    (b) An IRB shall require that information given to subjects as part of informed consent is in accordance with § 26.1116. The IRB may require that information, in addition to that specifically mentioned in § 26.1116, be given to the subjects when, in the IRB's judgment, the information would meaningfully add to the protection of the rights and welfare of subjects.

    (c) An IRB shall require documentation of informed consent in accordance with § 26.1117

    (d) An IRB shall notify investigators and the institution in writing of its decision to approve or disapprove the proposed research activity, or of modifications required to secure IRB approval of the research activity. If the IRB decides to disapprove a research activity, it shall include in its written notification a statement of the reasons for its decision and give the investigator an opportunity to respond in person or in writing.

    (e) An IRB shall conduct continuing review of research requiring review by the convened IRB at intervals appropriate to the degree of risk, not less than once per year, except as described in paragraph (f) of this section.

    (f)(1) Unless an IRB determines otherwise, continuing review of research is not required in the following circumstances:

    (i) Research eligible for expedited review in accordance with § 26.1110;

    (ii) Research that has progressed to the point that it involves only one or both of the following, which are part of the IRB-approved study:

    (A) Data analysis, including analysis of identifiable private information or identifiable biospecimens, or

    (B) Accessing follow-up clinical data from procedures that subjects would undergo as part of clinical care.

    (2) [Reserved.]

    (g) An IRB shall have authority to observe or have a third party observe the consent process and the research.

    § 26.1110 Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research.

    (a) The Secretary of HHS, has established, and published as a Notice in the Federal Register, a list of categories of research that may be reviewed by the IRB through an expedited review procedure. The Secretary will evaluate the list at least every 8 years and amend it, as appropriate after consultation with other federal departments and agencies and after publication in the Federal Register for public comment. A copy of the list is available from the Office for Human Research Protections, HHS, or any successor office.

    (b)(1) An IRB may use the expedited review procedure to review the following:

    (i) Some or all of the research appearing on the list described in paragraph (a) of this section, unless the reviewer finds that the study involves more than minimal risk.

    (ii) Minor changes in previously approved research during the period for which approval is authorized.

    (2) Under an expedited review procedure, the review may be carried out by the IRB chairperson or by one or more experienced reviewers designated by the chairperson from among members of the IRB. In reviewing the research, the reviewers may exercise all of the authorities of the IRB except that the reviewers may not disapprove the research. A research activity may be disapproved only after review in accordance with the non-expedited procedure set forth in § 26.1108(b).

    (c) Each IRB that uses an expedited review procedure shall adopt a method for keeping all members advised of research proposals that have been approved under the procedure.

    (d) The Administrator may restrict, suspend, terminate, or choose not to authorize an institution's or IRB's use of the expedited review procedure for research covered by this subpart.

    § 26.1111 Criteria for IRB approval of research.

    (a) In order to approve research covered by this subpart the IRB shall determine that all of the following requirements are satisfied:

    (1) Risks to subjects are minimized:

    (i) By using procedures that are consistent with sound research design and that do not unnecessarily expose subjects to risk, and

    (ii) Whenever appropriate, by using procedures already being performed on the subjects for diagnostic or treatment purposes.

    (2) Risks to subjects are reasonable in relation to anticipated benefits, if any, to subjects, and the importance of the knowledge that may reasonably be expected to result. In evaluating risks and benefits, the IRB should consider only those risks and benefits that may result from the research (as distinguished from risks and benefits of therapies subjects would receive even if not participating in the research). The IRB should not consider possible long-range effects of applying knowledge gained in the research (e.g., the possible effects of the research on public policy) as among those research risks that fall within the purview of its responsibility.

    (3) Selection of subjects is equitable. In making this assessment the IRB should take into account the purposes of the research and the setting in which the research will be conducted. The IRB should be particularly cognizant of the special problems of research that involves a category of subjects who are vulnerable to coercion or undue influence, such as prisoners, individuals with impaired decision-making capacity, or economically or educationally disadvantaged persons.

    (4) Informed consent will be sought from each prospective subject, in accordance with, and to the extent required by § 26.1116.

    (5) Informed consent will be appropriately documented in accordance with § 26.1117.

    (6) When appropriate, the research plan makes adequate provision for monitoring the data collected to ensure the safety of subjects.

    (7) When appropriate, there are adequate provisions to protect the privacy of subjects and to maintain the confidentiality of data.

    (b) When some or all of the subjects are likely to be vulnerable to coercion or undue influence, such as prisoners, individuals with impaired decision-making capacity, or economically or educationally disadvantaged persons, additional safeguards have been included in the study to protect the rights and welfare of these subjects.

    § 26.1112 Review by institution.

    Research covered by this subpart that has been approved by an IRB may be subject to further appropriate review and approval or disapproval by officials of the institution. However, those officials may not approve the research if it has not been approved by an IRB.

    § 26.1113 Suspension or termination of IRB approval of research.

    An IRB shall have authority to suspend or terminate approval of research that is not being conducted in accordance with the IRB's requirements or that has been associated with unexpected serious harm to subjects. Any suspension or termination of approval shall include a statement of the reasons for the IRB's action and shall be reported promptly to the investigator, appropriate institutional officials, and the Administrator of EPA.

    § 26.1114 Cooperative research.

    In complying with this subpart, sponsors, investigators, or institutions involved in multi-institutional studies may use joint review, reliance upon the review of another qualified IRB, or similar arrangements aimed at avoidance of duplication of effort.

    § 26.1115 IRB records.

    (a) An institution, or when appropriate an IRB, shall prepare and maintain adequate documentation of IRB activities, including the following:

    (1) Copies of all research proposals reviewed, scientific evaluations, if any, that accompany the proposals, approved sample consent documents, progress reports submitted by investigators, and reports of injuries to subjects.

    (2) Minutes of IRB meetings, which shall be in sufficient detail to show attendance at the meetings; actions taken by the IRB; the vote on these actions including the number of members voting for, against, and abstaining; the basis for requiring changes in or disapproving research; and a written summary of the discussion of controverted issues and their resolution.

    (3) Records of continuing review activities, including the rationale for conducting continuing review of research that otherwise would not require continuing review as described in § 26.1109(f)(1).

    (4) Copies of all correspondence between the IRB and the investigators.

    (5) A list of IRB members in the same detail as described in § 26.1108(a)(2).

    (6) Written procedures for the IRB in the same detail as described in § 26.1108(a)(3) and (4).

    (7) Statements of significant new findings provided to subjects, as required by § 26.1116(c)(5).

    (8) The rationale for an expedited reviewer's determination under § 26.1110(b)(1)(i) that research appearing on the expedited review list described in § 26.1110(a) is more than minimal risk.

    (9) Documentation specifying the responsibilities that an institution and an organization operating an IRB each will undertake to ensure compliance with the requirements of this subpart.

    (b) The records required by this subpart shall be retained for at least 3 years, and records relating to research which is conducted shall be retained for at least 3 years after completion of the research. The institution or IRB may maintain the records in printed form or electronically. All records shall be accessible for inspection and copying by authorized representatives of EPA at reasonable times and in a reasonable manner.

    § 26.1116 General requirements for informed consent.

    (a) General. General requirements for informed consent, whether written or oral, are set forth in this paragraph and apply to consent obtained in accordance with the requirements set forth in paragraphs (b) and (c) of this section. Except as provided elsewhere in this subpart:

    (1) Before involving a human subject in research covered by this subpart, an investigator shall obtain the legally effective informed consent of the subject.

    (2) An investigator shall seek informed consent only under circumstances that provide the prospective subject sufficient opportunity to discuss and consider whether or not to participate and that minimize the possibility of coercion or undue influence.

    (3) The information that is given to the subject shall be in language understandable to the subject.

    (4) The prospective subject must be provided with the information that a reasonable person would want to have in order to make an informed decision about whether to participate, and an opportunity to discuss that information.

    (5)(i) Informed consent must begin with a concise and focused presentation of the key information that is most likely to assist a prospective subject in understanding the reasons why one might or might not want to participate in the research. This part of the informed consent must be organized and presented in a way that facilitates comprehension.

    (ii) Informed consent as a whole must present information in sufficient detail relating to the research, and must be organized and presented in a way that does not merely provide lists of isolated facts, but rather facilitates the prospective subject's understanding of the reasons why one might or might not want to participate.

    (6) No informed consent may include any exculpatory language through which the subject is made to waive or appear to waive any of the subject's legal rights, or releases or appears to release the investigator, the sponsor, the institution, or its agents from liability for negligence.

    (b) Basic elements of informed consent. In seeking informed consent the following information shall be provided to each subject:

    (1) A statement that the study involves research, an explanation of the purposes of the research and the expected duration of the subject's participation, a description of the procedures to be followed, and identification of any procedures that are experimental;

    (2) A description of any reasonably foreseeable risks or discomforts to the subject;

    (3) A description of any benefits to the subject or to others that may reasonably be expected from the research;

    (4) A disclosure of appropriate alternative procedures or courses of treatment, if any, that might be advantageous to the subject;

    (5) A statement describing the extent, if any, to which confidentiality of records identifying the subject will be maintained;

    (6) For research involving more than minimal risk, an explanation as to whether any compensation and an explanation as to whether any medical treatments are available if injury occurs and, if so, what they consist of, or where further information may be obtained;

    (7) An explanation of whom to contact for answers to pertinent questions about the research and research subjects' rights, and whom to contact in the event of a research- related injury to the subject;

    (8) A statement that participation is voluntary, refusal to participate will involve no penalty or loss of benefits to which the subject is otherwise entitled, and the subject may discontinue participation at any time without penalty or loss of benefits to which the subject is otherwise entitled; and

    (9) One of the following statements about any research that involves the collection of identifiable private information or identifiable biospecimens:

    (i) A statement that identifiers might be removed from the identifiable private information or identifiable biospecimens and that, after such removal, the information or biospecimens could be used for future research studies or distributed to another investigator for future research studies without additional informed consent from the subject, if this might be a possibility; or

    (ii) A statement that the subject's information or biospecimens collected as part of the research, even if identifiers are removed, will not be used or distributed for future research studies.

    (c) Additional elements of informed consent. One or more of the following elements of information, when appropriate, shall also be provided to each subject:

    (1) A statement that the particular treatment or procedure may involve risks to the subject (or to the embryo or fetus, if the subject may become pregnant) that are currently unforeseeable;

    (2) Anticipated circumstances under which the subject's participation may be terminated by the investigator without regard to the subject's consent;

    (3) Any additional costs to the subject that may result from participation in the research;

    (4) The consequences of a subject's decision to withdraw from the research and procedures for orderly termination of participation by the subject;

    (5) A statement that significant new findings developed during the course of the research that may relate to the subject's willingness to continue participation will be provided to the subject;

    (6) The approximate number of subjects involved in the study;

    (7) A statement that the subject's biospecimens (even if identifiers are removed) may be used for commercial profit and whether the subject will or will not share in this commercial profit;

    (8) A statement regarding whether clinically relevant research results, including individual research results, will be disclosed to subjects, and if so, under what conditions; and

    (9) For research involving biospecimens, whether the research will (if known) or might include whole genome sequencing (i.e., sequencing of a human germline or somatic specimen with the intent to generate the genome or exome sequence of that specimen).

    (d) Elements of broad consent for the storage, maintenance, and secondary research use of identifiable private information or identifiable biospecimens. Broad consent for the storage, maintenance, and secondary research use of identifiable private information or identifiable biospecimens (collected for either research studies other than the proposed research or non-research purposes) is permitted as an alternative to the informed consent requirements in paragraphs (b) and (c) of this section. Broad consent is only permitted for the purposes mentioned and may not be substituted for the elements of informed consent in paragraphs (b) and (c) of this section, as required for the intentional exposure research subject to this subpart. If the subject is asked to provide broad consent, in addition to providing the informed consent required in paragraph (b) and (c), the following shall be provided to each subject:

    (1) The information required in paragraphs (b)(2), (b)(3), (b)(5), and (b)(8) and, when appropriate, (c)(7) and (9) of this section;

    (2) A general description of the types of research that may be conducted with the identifiable private information or identifiable biospecimens. This description must include sufficient information such that a reasonable person would expect that the broad consent would permit the types of research conducted;

    (3) A description of the identifiable private information or identifiable biospecimens that might be used in research, whether sharing of identifiable private information or identifiable biospecimens might occur, and the types of institutions or researchers that might conduct research with the identifiable private information or identifiable biospecimens;

    (4) A description of the period of time that the identifiable private information or identifiable biospecimens may be stored and maintained (which period of time could be indefinite), and a description of the period of time that the identifiable private information or identifiable biospecimens may be used for research purposes (which period of time could be indefinite);

    (5) Unless the subject will be provided details about specific research studies, a statement that they will not be informed of the details of any specific research studies that might be conducted using the subject's identifiable private information or identifiable biospecimens, including the purposes of the research, and that they might have chosen not to consent to some of those specific research studies;

    (6) Unless it is known that clinically relevant research results, including individual research results, will be disclosed to the subject in all circumstances, a statement that such results may not be disclosed to the subject; and

    (7) An explanation of whom to contact for answers to questions about the subject's rights and about storage and use of the subject's identifiable private information or identifiable biospecimens, and whom to contact in the event of a research-related harm.

    (e) Screening, recruiting, or determining eligibility. An IRB may approve a research proposal in which an investigator will obtain information or biospecimens for the purpose of screening, recruiting, or determining the eligibility of prospective subjects without the informed consent of the prospective subject, if either of the following conditions are met:

    (1) The investigator will obtain information through oral or written communication with the prospective subject, or

    (2) The investigator will obtain identifiable private information or identifiable biospecimens by accessing records or stored identifiable biospecimens.

    (f) Preemption. The informed consent requirements in this subpart are not intended to preempt any applicable Federal, state, or local laws (including tribal laws passed by the official governing body of an American Indian or Alaska Native tribe) that require additional information to be disclosed in order for informed consent to be legally effective.

    (g) Emergency medical care. Nothing in this subpart is intended to limit the authority of a physician to provide emergency medical care, to the extent the physician is permitted to do so under applicable Federal, state, or local law (including tribal law passed by the official governing body of an American Indian or Alaska Native tribe).

    (h) Additional information for subjects when research involves a pesticide. If the research involves intentional exposure of subjects to a pesticide, the subjects of the research must be informed of the identity of the pesticide and the nature of its pesticidal function.

    § 26.1117 Documentation of informed consent.

    (a) Informed consent shall be documented by the use of a written consent form approved by the IRB and signed (including in an electronic format) by the subject. A written copy shall be given to the subject.

    (b) The informed consent form may be either of the following:

    (1) A written informed consent form that meets the requirements of § 26.1116. The investigator shall give the subject adequate opportunity to read the informed consent form before it is signed; alternatively, this form may be read to the subject.

    (2) A short form written informed consent form stating that the elements of informed consent required by § 26.1116 have been presented orally to the subject, and that the key information required by § 26.1116(a)(5)(i) was presented first to the subject, before other information, if any, was provided. The IRB shall approve a written summary of what is to be said to the subject. When this method is used, there shall be a witness to the oral presentation. Only the short form itself is to be signed by the subject. However, the witness shall sign both the short form and a copy of the summary, and the person actually obtaining consent shall sign a copy of the summary. A copy of the summary must be given to the subject, in addition to a copy of the short form.

    §§ 26.1118-26.1122 [Reserved]
    § 26.1123 Early termination of research.

    The Administrator may require that any project covered by this subpart be terminated or suspended when the Administrator finds that an IRB, investigator, sponsor, or institution has materially failed to comply with the terms of this subpart.

    § 26.1124 [Reserved]
    § 26.1125 Prior submission of proposed human research for EPA review.

    Any person or institution who intends to conduct or sponsor human research covered by § 26.1101(a) shall, after receiving approval from all appropriate IRBs, submit to EPA prior to initiating such research all information relevant to the proposed research specified by § 26.1115(a), and the following additional information, to the extent not already included:

    (a) A discussion of:

    (1) The potential risks to human subjects;

    (2) The measures proposed to minimize risks to the human subjects;

    (3) The nature and magnitude of all expected benefits of such research, and to whom they would accrue;

    (4) Alternative means of obtaining information comparable to what would be collected through the proposed research; and

    (5) The balance of risks and benefits of the proposed research.

    (b) All information for subjects and written informed consent agreements as originally provided to the IRB, and as approved by the IRB.

    (c) Information about how subjects will be recruited, including any advertisements proposed to be used.

    (d) A description of the circumstances and methods proposed for presenting information to potential human subjects for the purpose of obtaining their informed consent.

    (e) All correspondence between the IRB and the investigators or sponsors.

    (f) Official notification to the sponsor or investigator, in accordance with the requirements of this subpart, that research involving human subjects has been reviewed and approved by an IRB.

    7. Revise § 26.1302 to read as follows:
    §  26.1302 Definitions.

    The definitions in § 26.1102 apply to this subpart as well.

    [FR Doc. 2018-26228 Filed 12-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R02-OAR-2017-0094; FRL-9987-49-Region 2] Approval and Promulgation of Implementation Plans: New York Ozone Section 185 AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve the State of New York's Low Emissions Vehicle program as an alternative program to fulfill the Clean Air Act Section 185 requirement for the New York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area for the revoked 1979 1-hour ozone National Ambient Air Quality Standard. Clean Air Act Section 185 requires fees to be paid, per ton of emissions, by major sources located in ozone nonattainment areas classified as Severe or Extreme that have failed to attain the National Ambient Air Quality Standard by the required attainment date. The EPA is proposing to find that New York's Low Emissions Vehicle program is no less stringent than a Clean Air Act Section 185 fee program because the emissions reductions achieved by the Low Emissions Vehicle program are at least equivalent to reductions associated with a 185 fee program.

    DATES:

    Comments must be received on or before January 7, 2019.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R02-OAR-2017-0094 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Gavin Lau, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, NY 10007-1866, (212) 637-3708, or by email at [email protected]

    SUPPLEMENTARY INFORMATION: I. What Action is the EPA proposing? II. What is the background for the proposed action? III. What did New York Submit? IV. What is New York's alternative to the Clean Air Act Section 185 fee program? V. What is the EPA's analysis of the alternative to Clean Air Act Section 185 fee program? VI. What action is the EPA taking? VII. Statutory and Executive Order Reviews I. What Action is the EPA proposing?

    The EPA is proposing to approve into the State of New York's State Implementation Plan (SIP) the use of an alternative program to fulfill the requirements of Clean Air Act (CAA) Section 185 for the New York (NY) portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT (NY-NJ-CT) nonattainment area for the 1979 1-hour ozone National Ambient Air Quality Standard (NAAQS). NY's Low Emissions Vehicle program (LEV) was updated and adopted as LEV II in 2000 and further revised in 2002. The LEV II program was fully phased in as of the 2007 vehicle model year and resulted in excess emissions reductions. The EPA is proposing to approve the LEV II program as an equivalent alternative program no less stringent than the program required by CAA Section 185 consistent with the principles of CAA Section 172(e).

    II. What is the background for the proposed action? 1979 1-Hour Ozone NAAQS

    The 1-hour ozone standard designations were established by the EPA following the CAA Amendments in 1990. Each area of the country that was designated as nonattainment for the 1-hour ozone NAAQS was classified by operation of law as marginal, moderate, serious, severe, or extreme depending on the severity of the area's 1-hour ozone air quality problem.1 The 1-hour ozone NAAQS was set at 0.12 parts per million (ppm). The NY-NJ-CT area was designated as nonattainment and classified as severe-17 with an attainment date of November 15, 2007. The 1-hour NY-NJ-CT area is composed of: Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, Morris, Ocean, Passaic, Somerset, Sussex, and Union Counties in New Jersey; Bronx, Kings, Nassau, New York, Queens, Richmond, Rockland, Suffolk, Westchester, and part of Orange County in New York; and parts of Fairfield and Litchfield Counties in Connecticut.

    1 See Clean Air Act sections 107(d)(C) and 181(a).

    The EPA revoked the 1-hour ozone standard effective June 15, 2005 (69 FR 23951). The EPA still determines whether an area has attained the 1-hour ozone NAAQS by its applicable deadline if it relates to effectuating anti-backsliding requirements that have been specifically retained.

    In a June 18, 2012 rulemaking, the EPA determined that the NY-NJ-CT 1-hour ozone nonattainment area failed to attain the 1-hour ozone NAAQS by its applicable attainment deadline of November 15, 2007, based on complete, quality assured and certified ozone monitoring data for 2005-2007. See 77 FR 36163 (June 19, 2012). This determination of failure to attain by the NY-NJ-CT attainment date, triggered the provisions of CAA Section 185. In the determination of failure to attain by the NY-NJ-CT attainment date, the EPA indicated that it would address CAA Section 185 fee programs in a future rulemaking.

    In the same June 18, 2012 rulemaking, the EPA determined that the NY-NJ-CT 1-hour ozone nonattainment area attained the 1-hour ozone NAAQS based on complete, quality assured, and certified monitoring data for 2008-2010 (77 FR 36163). Current complete, quality assured, and certified monitoring data for the most recent time period of 2015-2017 continues to show that the NY-NJ-CT area continues to attain the 1-hour ozone NAAQS.

    Clean Air Act Section 185

    CAA Section 185 fee program requirements apply to ozone nonattainment areas classified as Severe or Extreme that fail to attain by the required attainment date. CAA Section 185 requires each major stationary source of volatile organic compounds (VOC) located in an area that fails to attain by its attainment date to pay a fee to the state, for each calendar year following the attainment year, for each ton it emits in excess of 80 percent of the baseline amount. CAA Section 182(f) extends the application of this provision to major stationary sources of oxides of nitrogen (NOX). In 1990, the CAA set the fee as $5,000 per ton of VOC and NOX emitted, which is adjusted for inflation, based on the Consumer Price Index, on an annual basis.

    Applicability of CAA Section 185 to the NY-NJ-CT area

    As discussed above, the NY-NJ-CT 1-hour ozone nonattainment area failed to attain the 1-hour ozone NAAQS by its attainment date of November 15, 2007 (77 FR 36163). As a result, the requirements of CAA Section 185 are applicable to the area, starting in calendar year 2008. The NY-NJ-CT area was determined to attain the 1-hour ozone NAAQS for 2008-2010 (77 FR 36163).

    CAA Section 185 Equivalent Alternative Programs

    CAA Section 172(e) provides that when the Administrator relaxes a NAAQS, the EPA must ensure that all areas which have not attained that NAAQS maintain “controls which are not less stringent than the controls applicable to areas designated nonattainment before such relaxation.” Although Section 172(e) does not apply directly to supplanting one NAAQS with a stronger standard, the EPA has applied the principles of CAA Section 172(e) following revocation of ozone standards. The EPA interprets the principles of 172(e) as authorizing the Administrator to approve on a case-by-case basis and through rulemaking to accept alternatives to the applicable CAA Section 185 fee programs associated with a revoked ozone NAAQS that are “not less stringent.” See generally 80 FR 12264, 12306 (March 6, 2015).

    The EPA notes that it has previously approved alternative programs as not less stringent than the requirements of CAA Section 185 fee programs, consistent with the principles of CAA Section 172(e). See, e.g., 77 FR 50021 (August 20, 2012) (CAA Section 185 alternative for the San Joaquin Valley Unified Air Pollution Control District); 77 FR 74372 (December 14, 2012) (CAA Section 185 alternative for the South Coast Air Quality Management District); see also Natural Res. Def. Council v. EPA, 779 F.3d 1119 (9th Cir. 2015) (denying petition to review the approval of alternative programs “[b]ecause EPA reasonably interpreted CAA § 172(e) to give it authority to approve programs that are alternative to, but not less stringent than, § 185 fee programs, EPA's approval of . . . such an alternative program, after reasoned consideration and notice and comment procedure regarding [the rule's] stringency and approach to fee collecting, was proper.”).

    Consistent with the principles of CAA Section 172(e), a state can meet the 1-hour ozone Section 185 obligation through either the fee program prescribed in Section 185 of the CAA or an equivalent alternative program, if the state demonstrates that the alternative is not less stringent than the otherwise applicable Section 185 fee program and the EPA approves such demonstration after notice and comment rulemaking. In this action, the EPA is proposing that the State of New York's Low Emission Vehicle program (LEV II) constitutes an approvable alternative CAA Section 185 fee program and invites public comment on this determination.

    III. What did New York submit?

    On January 31, 2014, the New York State Department of Environmental Conservation (NYSDEC) submitted a request on behalf of the State of New York to the EPA to determine that the State's LEV II program is an equivalent alternate program to the program required under CAA Section 185. On April 7, 2014, NYSDEC submitted a letter to the EPA which included the State's Environmental Notice Bulletin and public comment received on the State's CAA Section 185 submission to the EPA. NYSDEC's submissions included demonstrations of emissions reductions associated with NY's LEV II program, calculation of reductions needed to fulfill the requirements of CAA Section 185, examples of additional VOC and NOX control measures, a copy of the public notice, and the supportive comment that was received during the state's public participation process. On October 13, 2016, NYSDEC submitted a letter to the EPA providing additional details clarifying LEV II reductions. On April 3, 2018, NYSDEC submitted additional information to the EPA which included an analysis of actual and allowable emissions for facilities located in the NY portion of the NY-NJ-CT 1-hour ozone nonattainment area to support the use of actual emissions for baseline calculations.

    IV. What is New York's alternative to the Clean Air Act Section 185 fee program?

    NYSDEC submitted a request to the EPA to determine that its LEV II program is an alternative program which satisfies the requirements of CAA Section 185. The CAA Section 185 fee program requires a fee per ton of VOC and NOX emissions, in the NY-NJ-CT 1-hour ozone nonattainment area, in excess of 80% the baseline amount. NYSDEC examined actual and allowable emissions from major sources of VOC and NOX for 2007 and determined that the actual emissions were lower than the allowable emissions. In accordance with the methodology required under CAA Section 185(b)(2) for computing a baseline amount, NYSDEC then compared the actual 2008 and 2009 emissions of VOC and NOX for each major source to 80% of its 2007 emissions. For sources that emitted greater than 80% of their emissions for 2007, NYSDEC calculated its corresponding excess emissions for 2008 and 2009. For 2008 and 2009, VOC and NOX excess emissions for major sources were totaled and daily excess emissions per day were calculated. The amount of emissions from the NY State portion of the NY-NJ-CT area subject to the CAA Section 185 fee program was determined to be for 2008: 2.2 tons per day (tpd) of VOC and 8.7 tpd of NOX; and for 2009: 1.4 tpd of VOC and 4.5 tpd of NOX. As an alternative to the CAA Section 185 fee program requirement, NYSDEC requested that the EPA find that its LEV II program provided excess emissions reductions greater than 80% of the 2007 baseline for 2008 and 2009.

    New York adopted LEV II new vehicle emission standards, identical to those of California LEV II, in Title 6 of the New York Codes, Rules and Regulations (6 NYCRR) Part 218, “Emission Standards for Motor Vehicles and Motor Vehicle Engines.” LEV II exhaust emissions standards were fully phased in by the 2007 model year and provided additional reductions from previous LEV standards. NYSDEC had previously submitted to the EPA a supplemental Reasonable Further Progress Plan (RFP) and 2008 projection year emissions inventory, which included VOC and NOX projections, as part of the attainment demonstration for the New York State Implementation Plan for ozone. The EPA subsequently approved the RFP and 2008 projection year emissions inventory. See 76 FR 51264 (August 18, 2011). The RFP control measures for the 2008 projection year inventory resulted in surplus reductions of 3.94 tpd of VOC and 81.8 tpd of NOX. LEV II was part of 2008 projection year surplus and was expected to reduce VOC by 2.5 tons per ozone season day and reduce NOX by 18.9 tons per ozone season day. New York identified that LEV II could be used for an equivalent alternate program to meet the requirements of CAA Section 185 since the reductions were part of the RFP surplus emissions reductions.

    In order to make the LEV II ozone season day reductions representative of an entire year, NYSDEC applied a seasonal adjustment factor based on recommendations from the New York State Department of Transportation (NYSDOT). NYSDEC chose a seasonal adjustment factor that was more conservative than the NYSDOT recommendation for urban areas like the New York City area to assure that sufficient reductions were achieved. In applying a seasonal adjustment factor, LEV II attributable reductions of VOC and NOX were 2.3 tpd and 17.5 tpd, respectively, for all of 2008. Interpolating between 2008 and 2011 projections included in the RFP yielded seasonally adjusted LEV II attributable reductions of VOC and NOX of 3.2 tpd and 24.4 tpd, respectively, for all of 2009. Additional details regarding seasonal adjustment of emissions reductions can be found in the Technical Support Document.

    New York's LEV II emission standards continue to be in place under 6 NYCRR Part 218 and continue to achieve reductions in VOC and NOX emissions. EPA performed an analysis to verify that LEV II continued to achieve emissions reduction through 2017. The emissions reductions attributable to LEV II in the NY state portion of the NY-NJ-CT area for 2017 were 1,321 tons of NOX and 558 tons of VOCs. Details regarding 2017 LEV II emissions reduction can be found in the Technical Support Document.

    V. What is the EPA's analysis of the alternative to Clean Air Act Section 185 fee program?

    For an alternative to CAA Section 185 fee program to be approvable, a state must provide a demonstration that the proposed alternative program is no less stringent than the application of CAA Section 185. EPA has previously stated that one way to demonstrate this is to show that the alternative program provides equivalent or greater fees and/or emissions reductions directly attributable to the application of CAA Section 185 2 . The state's demonstration should also not underestimate the expected fees and/or emissions reduction from the CAA Section 185 fee program nor overestimate the expected fees and/or emissions reductions associated with the proposed alternative program. In principle, the alternative program must encourage 1-hour ozone NAAQS nonattainment areas to reach attainment as effectively and expeditiously as a CAA Section 185 program. The EPA has previously approved CAA Section 185 alternative programs for the San Joaquin Valley Unified Air Pollution Control District (77 FR 50021) and the South Coast Air Quality Management District (77 FR 74372) (upheld in Natural Res. Def. Council v. EPA, 779 F.3d 1119 (9th Cir. 2015)).

    2 The EPA initially explained this position in a January 2010 Guidance document. Memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards, to Regional Air Division Directors, “Guidance on Developing Fee Programs Required by Clean Air Act Section 185 for the 1-hour Ozone NAAQS,” dated January 5, 2010 (January 2010 guidance). The D.C. Circuit Court of Appeals vacated the January 2010 guidance on procedural grounds, but the Court did not prohibit alternative programs, stating that “neither the statute nor our case law obviously precludes that alternative.” NRDC v. EPA, 643 F.3d 322 (D.C. Cir. July 2011).

    The EPA is proposing to determine that NY demonstrated that the emissions reductions from LEV II were at least as significant as those that would have been gained from direct application of CAA Section 185 fees. The surplus RFP LEV II projected emissions reductions for 2008 VOC and NOX were 2.3 tpd and 17.5 tpd. The 2008 CAA Section 185 emissions reductions targets, calculated as amount in excess of 80% of the 2007 baseline, for VOC and NOX were 2.2 tpd and 8.7 tpd. LEV II projected emissions reductions for 2009 VOC and NOX were 3.2 tpd and 24.4 tpd. The 2009 CAA Section 185 emissions reductions targets for VOC and NOX were 1.4 tpd and 4.5 tpd. For 2008 and 2009, the LEV II emissions reduction were greater than the CAA Section 185 targets for both VOC and NOX. Table 1 below shows the emissions targets and LEV II emission reductions. Since the amount of LEV II attributable emissions reductions is not less stringent than the emissions in excess of 80% of the 2007 baseline, the alternative program is consistent with the anti-backsliding provisions of CAA Section 172(e). LEV II has continued to achieve emissions reductions through 2017.

    Table 1 Emission reduction Emissions reduction
  • (tons per day)
  • NOX VOC
    2008 CAA Section 185 Target 8.7 2.2 2008 LEV II Projection 17.5 2.3 LEV II emissions reduction greater than 2008 target? Yes Yes 2009 CAA Section 185 Target 4.5 1.4 2009 LEV II Projection 24.4 3.2 LEV II emissions reduction greater than 2009 target? Yes Yes

    LEV II was not included as a control measure relied on in the 1-hour Ozone Attainment SIP, including Rate of Progress and RFP for the NY-NJ-CT 1-hour ozone area (67 FR 5170 (February 4, 2002)). LEV was included in the Ozone Attainment Demonstration SIP, but emissions reductions attributable to the LEV II program were not. Projected emissions reductions by control strategy provided by NYSDEC included specific reductions for each control measure including LEV II. Emissions reductions attributable to LEV II are surplus, were not previously accounted for and do not interfere with other applicable requirements concerning attainment, Rate of Progress, and RFP.

    In this action, EPA is proposing that the LEV II program is an acceptable alternative program to the 185 fee program consistent with the anti-backsliding provisions of CAA Section 172(e) because it achieves greater emissions reductions than application of the 185 fee program. The principles of Section 172(e) require controls in nonattainment areas that are not less stringent than those that were applied to an area before EPA revoked the one-hour NAAQS.

    VI. What action is EPA taking?

    EPA is proposing to approve NY's LEV II program as an alternative program to the requirements of CAA Section 185. The EPA proposes to find the LEV II program achieves sufficient reductions to fulfill the requirements of CAA Section 172(e) and 185 for the NY portion of the NY-NJ-CT 1-hour ozone nonattainment area. The LEV II program will be incorporated into the federally enforceable SIP as an alternative CAA Section 185 program if EPA finalizes this action.

    VII. Statutory and Executive Order Reviews

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

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

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

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

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

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

    • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 7, 1999);

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

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

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

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

    In addition, the proposed rulemaking action 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 proposed rulemaking action does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    List of Subjects in 40 CFR Part 52

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

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: November 19, 2018. Peter D. Lopez, Regional Administrator, Region 2.
    [FR Doc. 2018-26475 Filed 12-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2017-0735; FRL-9987-48-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Nonattainment New Source Review Requirements for 2008 8-Hour Ozone Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a revision to the Commonwealth of Pennsylvania's state implementation plan (SIP). The revision is in response to EPA's February 3, 2017 Findings of Failure to Submit for various requirements relating to the 2008 8-hour ozone national ambient air quality standards (NAAQS). This SIP revision is specific to nonattainment new source review (NNSR) requirements. EPA is approving this revision in accordance with the requirements of the Clean Air Act (CAA).

    DATES:

    Written comments must be received on or before January 7, 2019.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2017-0735 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Mrs. Amy Johansen, (215) 814-2156, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On October 30, 2017, the Pennsylvania Department of Environmental Protection (PADEP) submitted on behalf of the Commonwealth of Pennsylvania a formal revision, requesting EPA's approval for the SIP of its NNSR Certification for the 2008 Ozone Standard and its existing Emission Statement Program. EPA is only acting on the NNSR Certification portion of the SIP revision in this action. EPA previously finalized a rulemaking action for the existing Emission Statement Program. See 83 FR 26221 (June 6, 2018). This SIP revision is in response to EPA's final 2008 8-hour ozone NAAQS Findings of Failure to Submit for NNSR requirements. See 82 FR 9158 (February 3, 2017). Specifically, Pennsylvania is certifying that its existing NNSR program, covering the Allentown-Bethlehem-Easton, PA Nonattainment Area (which includes Carbon, Lehigh, and Northampton Counties), the Lancaster, PA Nonattainment Area (which includes Lancaster County) the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE Nonattainment Area (which includes Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties), Pittsburgh-Beaver Valley, PA Nonattainment Area (which includes Allegheny, Beaver, Butler, Fayette, Washington, and Westmoreland Counties) and the Reading, PA Nonattainment Area (which includes Berks County) for the 2008 8-hour ozone NAAQS, is at least as stringent as the requirements at 40 CFR 51.165, as amended by the final rule titled “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements” (SIP Requirements Rule), for ozone and its precursors.1 2 See 80 FR 12264 (March 6, 2015).

    1 The SIP Requirements Rule addresses a range of nonattainment area SIP requirements for the 2008 8-hour ozone NAAQS, including requirements pertaining to attainment demonstrations, reasonable further progress (RFP), reasonably available control technology, reasonably available control measures, major new source review, emission inventories, and the timing of SIP submissions and of compliance with emission control measures in the SIP. The rule also revokes the 1997 ozone NAAQS and establishes anti-backsliding requirements.

    2 On February 16, 2018, the United States Court of Appeals for the District of Columbia Circuit (D.C. Cir. Court or Court) issued an opinion on the EPA's SIP Requirements Rule. South Coast Air Quality Mgmt. Dist. v. EPA, 882 F.3d 1138, 2018 U.S. App. LEXIS 3636 (D.C. Cir. Feb. 16, 2018). The D.C. Cir. Court found certain provisions from the SIP Requirements Rule, including certain provisions relating to anti-backsliding, to be inconsistent with the statute or unreasonable and vacated those provisions. Id. The Court found other parts of the SIP Requirements Rule unrelated to anti-backsliding and this action reasonable and denied the petition for appeal on those provisions. Id.

    A. 2008 8-Hour Ozone NAAQS

    On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone NAAQS is attained when the three-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.075 ppm.

    Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS based on the three most recent years of ambient air quality data at the conclusion of the designation process. The Allentown-Bethlehem-Easton, PA Nonattainment Area, the Lancaster, PA Nonattainment Area, the Pittsburgh-Beaver Valley, PA Nonattainment Area, and the Reading, PA Nonattainment Area were classified as marginal nonattainment areas for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2009-2011 ambient air quality data. See 77 FR 30088. The Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE Nonattainment Area was classified as a marginal nonattainment area for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2008-2010 ambient air quality data. See 77 FR 30088. On March 6, 2015, EPA issued the final SIP Requirements Rule, which establishes the requirements that state, tribal, and local air quality management agencies must meet as they develop implementation plans for areas where air quality exceeds the 2008 8-hour ozone NAAQS. See 80 FR 12264. Areas that were designated as marginal ozone nonattainment areas were required to attain the 2008 8-hour ozone NAAQS no later than July 20, 2015, based on 2012-2014 monitoring data. See 40 CFR 51.1103.

    The Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE and the Pittsburgh-Beaver Valley, PA Nonattainment Areas did not attain the 2008 8-hour ozone NAAQS by July 20, 2015; however, these areas did meet the CAA section 181(a)(5) criteria, as interpreted in 40 CFR 51.1107, for a one-year attainment date extension. See 81 FR 26697 (May 4, 2016). Therefore, on April 11, 2016, the EPA Administrator signed a final rule extending the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE and the Pittsburgh-Beaver Valley, PA Nonattainment Area 8-hour ozone NAAQS attainment dates from July 20, 2015 to July 20, 2016. Id. 3 Based on initial nonattainment designations for the 2008 8-hour ozone standard, as well as the March 6, 2015 final SIP Requirements Rule, Pennsylvania was required to develop a SIP revision addressing certain CAA requirements for the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE, the Pittsburgh-Beaver Valley, PA, and the Reading, PA Nonattainment Areas, and submit to EPA a NNSR Certification SIP or SIP revision no later than 36 months after the effective date of area designations for the 2008 8-hour ozone NAAQS (i.e., July 20, 2015).4 See 80 FR 12264 (March 6, 2015). EPA is proposing to approve Pennsylvania's October 30, 2017 NNSR Certification SIP revision. EPA's analysis of how this SIP revision addresses the NNSR requirements for the 2008 8-hour ozone NAAQS is provided in Section II below.

    3 EPA proposed approval of a Determination of Attainment (DOA) for the 2008 8-hour ozone NAAQS for the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE Area and the Pittsburgh-Beaver Valley, PA Area on April 18, 2017, and August 25, 2016, respectively. These proposed actions were based on complete, certified, and quality assured ambient air quality monitoring data for the 2013-2015 monitoring period. See 82 FR 18268 (April 18, 2017) and 81 FR 58435 (August 25, 2016). It should be noted that a DOA does not alleviate the need for Pennsylvania to certify that their existing SIP approved NNSR program is as stringent as the requirements at 40 CFR 51.165, as NNSR applies in nonattainment areas until an area has been redesignated to attainment. EPA issued final rulemaking actions on both of these DOAs. See 82 FR 50814 (November 2, 2017) (Philadelphia Area) and 81 FR 87819 (December 6, 2016) (Pittsburgh Area).

    4 Neither Pennsylvania's obligation to submit the NNSR Certification SIP nor the requirements governing that submission were affected by the D.C. Circuit's February 16, 2018 decision on portions of the SIP Requirements Rule in South Coast Air Quality Mgmt. Dist. v. EPA.

    B. 2017 Findings of Failure To Submit SIP for the 2008 8-Hour Ozone NAAQS

    Areas designated nonattainment for the ozone NAAQS are subject to the general nonattainment area planning requirements of CAA section 172 and also to the ozone-specific planning requirements of CAA section 182.5 States in the ozone transport region (OTR), such as Pennsylvania, are additionally subject to the requirements outlined in CAA section 184.

    5 Ozone nonattainment areas are classified based on the severity of their ozone levels (as determined based on the area's “design value,” which represents air quality in the area for the most recent three years). The possible classifications for ozone nonattainment areas are Marginal, Moderate, Serious, Severe, and Extreme. See CAA section 181(a)(1).

    Ozone nonattainment areas in the lower classification levels have fewer and/or less stringent mandatory air quality planning and control requirements than those in higher classifications. For marginal areas, such as the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, PA, and the Reading, PA Areas, a state is required to submit a baseline emissions inventory, adopt a SIP requiring emissions statements from stationary sources, and implement a NNSR program for the relevant ozone standard. See CAA section 182(a). For each higher ozone nonattainment classification, a state needs to comply with all lower area classification requirements, plus additional emissions controls and more expansive NNSR offset requirements.

    The CAA sets out specific requirements for states in the OTR.6 Upon promulgation of the 2008 8-hour ozone NAAQS, states in the OTR were required to submit a SIP revision addressing reasonably available control technology (RACT). See 40 CFR 51.1116. This requirement is the only recurring obligation for an OTR state upon revision of a NAAQS, unless that state also contains some portion of a nonattainment area for the revised NAAQS.7 In that case, the nonattainment requirements described previously also apply to those portions of that state.

    6 CAA section 184 details specific requirements for a group of states (and the District of Columbia) that make up the OTR. States in the OTR are required to submit RACT SIP revisions and mandate a certain level of emissions control for the pollutants that form ozone, even if the areas in the state meet the ozone standards.

    7 NNSR requirements continue to apply in the OTR. See CAA section 184(b).

    In the March 6, 2015 SIP Requirements Rule, EPA detailed the requirements applicable to ozone nonattainment areas, as well as requirements that apply in the OTR, and provided specific deadlines for SIP submittals. See 80 FR 12264.

    On February 3, 2017, EPA found that 15 states and the District of Columbia failed to submit SIP revisions in a timely manner to satisfy certain requirements for the 2008 8-hour ozone NAAQS that apply to nonattainment areas and/or states in the OTR. See 82 FR 9158. As explained in that rulemaking action, consistent with the CAA and EPA regulations, these Findings of Failure to Submit established certain deadlines for the imposition of sanctions, if a state does not submit a timely SIP revision addressing the requirements for which the finding is being made, and for the EPA to promulgate a Federal implementation plan (FIP) to address any outstanding SIP requirements.

    EPA found, inter alia, that the Commonwealth of Pennsylvania failed to submit SIP revisions in a timely matter to satisfy NNSR requirements for its marginal nonattainment areas, specifically the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, PA, and the Reading, PA Areas.8 Pennsylvania submitted its October 30, 2017 SIP revision to address the specific NNSR requirements for the 2008 8-hour ozone NAAQS, located in 40 CFR 51.160-165, as well as its obligations under EPA's February 3, 2017 Findings of Failure to Submit. EPA's analysis of how this SIP revision addresses the NNSR requirements for the 2008 8-hour ozone NAAQS and the Findings of Failure to Submit is provided in Section II below.

    8 The EPA found that the Commonwealth of Pennsylvania also failed to submit a SIP revision for the Control Techniques Guidelines (CTG) for the volatile organic compound RACT (for all 44 CTGs). This SIP requirement will be addressed in a separate rulemaking action and will not be discussed here. See 82 FR 9158 (February 3, 2017).

    II. Summary of SIP Revision and EPA Analysis

    This rulemaking action is specific to Pennsylvania's NNSR requirements. NNSR is a preconstruction review permit program that applies to new major stationary sources or major modifications at existing sources located in a nonattainment area.9 The specific NNSR requirements for the 2008 8-hour ozone NAAQS are located in 40 CFR 51.160-165. As set forth in the SIP Requirements Rule, for each nonattainment area, a NNSR plan or plan revision was due no later than 36 months after the July 20, 2012 effective date of area designations for the 2008 8-hour ozone standard (i.e., July 20, 2015).10

    9See CAA sections 172(c)(5), 173 and 182.

    10 With respect to states with nonattainment areas subject to a Findings of Failure to Submit NNSR SIP revisions, such revisions would no longer be required if the area were redesignated to attainment. The CAA's prevention of significant deterioration (PSD) program requirements apply in lieu of NNSR after an area is redesignated to attainment. For areas outside the OTR, NNSR requirements do not apply in areas designated as attainment.

    The minimum SIP requirements for NNSR permitting programs for the 2008 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR 51.1114. These NNSR program requirements include those promulgated in the “Phase 2 Rule” implementing the 1997 8-hour ozone NAAQS (75 FR 71018 (November 29, 2005)) and the SIP Requirements Rule implementing the 2008 8-hour ozone NAAQS. Under the Phase 2 Rule, the SIP for each ozone nonattainment area must contain NNSR provisions that: Set major source thresholds for oxides of nitrogen (NOX) and volatile organic compounds (VOC) pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv) and (2); classify physical changes as a major source if the change would constitute a major source by itself pursuant to 40 CFR 51.165(a)(1)(iv)(A)(3); consider any significant net emissions increase of NOX as a significant net emissions increase for ozone pursuant to 40 CFR 51.165(a)(1)(v)(E); consider certain increases of VOC emissions in extreme ozone nonattainment areas as a significant net emissions increase and a major modification for ozone pursuant to 40 CFR 51.165(a)(1)(v)(F); set significant emissions rates for VOC and NOX as ozone precursors pursuant to 40 CFR 51.165(a)(1)(x)(A)-(C) and (E); contain provisions for emissions reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)-(2); provide that the requirements applicable to VOC also apply to NOX pursuant to 40 CFR 51.165(a)(8); and set offset ratios for VOC and NOX pursuant to 40 CFR 51.165(a)(9)(i)-(iii) (renumbered as (a)(9)(ii)-(iv) under the SIP Requirements Rule for the 2008 8-hour ozone NAAQS). Under the SIP Requirements Rule for the 2008 8-hour ozone NAAQS, the SIP for each ozone nonattainment area designated nonattainment for the 2008 8-hour ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS on April 6, 2015, must also contain NNSR provisions that include the anti-backsliding requirements at 40 CFR 51.1105. See 40 CFR 51.165(a)(12).

    Pennsylvania's SIP approved NNSR program, established in the Pennsylvania Code of Regulations (Pa. Code) Rule 25 Pa. Code Chapter 127—Construction, Modification, Reactivation, and Operation of Sources, applies to the construction and modification of major stationary sources in nonattainment areas. In its October 30, 2017 SIP revision, Pennsylvania certifies that the version of 25 Pa. Code Chapter 127 in the SIP is at least as stringent as the Federal NNSR requirements for the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, PA, and the Reading, PA Nonattainment Areas. EPA last approved revisions to Pennsylvania's major NNSR SIP on May 14, 2012. In that action, EPA approved revisions to Pennsylvania's SIP which made PADEP's NNSR program consistent with Federal requirements. See 77 FR 28261.

    EPA notes that 25 Pa. Code Section 127.207(5) nor Pennsylvania's approved SIP contain a regulatory provision pertaining to establishing emissions reductions credits (ERC), as specified in 40 CFR 51.165(a)(3)(ii)(C)(2)(i) and 40 CFR 51.165(a)(3)(ii)(C)(2)(ii). However, even if Pennsylvania's regulations do not offer this emissions reductions credit option, their approved SIP is still adequate to meet the standard ERC requirements found in 40 CFR 51.165(a)(3)(ii)(C)(1), where emissions reductions must be surplus, permanent, quantifiable, and Federally enforceable, for example. Pennsylvania has the appropriate ERC requirements approved in their regulations and their SIP, which enables them to implement the program appropriately and in accordance with Federal requirements.

    Given the D.C. Cir. Court's recent ruling in South Coast Air Quality Mgmt. Dist. v. EPA vacating the anti-backsliding provisions of the SIP Requirements Rule, Pennsylvania remains required to comply with the anti-backsliding provisions found in 40 CFR 51.165(a)(12). In Pennsylvania, neither 25 Pa. Code Chapter 127 or the Pennsylvania SIP contain the anti-backsliding provisions found in 40 CFR 51.165(a)(12), which applied to NNSR requirements for the 1997 ozone NAAQS. However, EPA finds that 25 Pa. Code and Pennsylvania's SIP presently include appropriate thresholds for major stationary sources and emissions offset ratios for the worst air quality designations these nonattainment areas have been designated. For example, in 25 Pa. Code Section 121.1, a source is considered a “major NOX emitting facility” if it emits 25 tons per year of NOX in Bucks, Chester, Delaware, Montgomery or Philadelphia County (the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE Nonattainment Area). This emissions threshold is equivalent to an area that was designated as severe nonattainment for the ozone NAAQS and is therefore more stringent. In addition, the entire state of Pennsylvania is located in the OTR and any source in the OTR is considered major for NOX and VOC if it emits or has the potential to emit at least 100 tons per year or 50 tons per year, respectively. This requirement can be found in 25 Pa. Code Section 127.201(c), as well as Pennsylvania's approved SIP and is equivalent to the higher moderate nonattainment area classification. Additionally, emissions offset ratios for sources located in Pennsylvania are more stringent than the requirements of 40 CFR 51.165(a)(9)(i). 25 Pa. Code Section 127.210 and the approved Pennsylvania SIP require sources in a marginal nonattainment area to offset their NOX and VOC emissions at a ratio of 1.15 to 1 versus the Federal NNSR requirement for a source located in a marginal nonattainment area to offset NOX and VOC at a less stringent ratio of 1.1 to 1. See 40 CFR 51.165(a)(9)(i)(A). Therefore, EPA finds that Pennsylvania's regulations and approved SIP are more stringent than EPA's NNSR anti-backsliding requirements and their program is adequate to implement NNSR for the 2008 ozone NAAQS.

    The version of 25 Pa. Code Chapter 127 that is contained in the current SIP has not changed since the 2012 rulemaking where EPA last approved Pennsylvania's NNSR provisions, with respect to ozone and its precursors.11 This version of the rule covers the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, PA, and the Reading, PA Nonattainment Areas and remains adequate to meet all applicable NNSR requirements for the 2008 8-hour ozone NAAQS found in 40 CFR 51.165, the Phase 2 Rule and the SIP Requirements Rule.

    11 Subsequently, EPA did approve an update to Pennsylvania's SIP incorporating preconstruction permitting requirements for fine particulate matter (PM2.5) into their NNSR regulations on July 13, 2012. See 77 FR 41276.

    III. Proposed Action

    EPA is proposing to approve Pennsylvania's October 30, 2017 SIP revision addressing the NNSR requirements for the 2008 ozone NAAQS for the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, PA, and the Reading, PA Nonattainment Areas. EPA has concluded that the Commonwealth's submission fulfills the 40 CFR 51.1114 revision requirement, meets the requirements of CAA sections 110 and 172 and the minimum SIP requirements of 40 CFR 51.165, as well as its obligations under EPA's February 3, 2017 Findings of Failure to Submit. See 82 FR 9158. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

    • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 7, 1999);

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

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

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

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

    In addition, this proposed rule, approving Pennsylvania's 2008 8-hour ozone NAAQS Certification SIP revision for NNSR does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 52

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

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: November 26, 2018. Cosmo Servidio, Regional Administrator, Region III.
    [FR Doc. 2018-26479 Filed 12-4-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 405 and 423 [CMS-4174-CN] RIN 0938-AT62 Medicare Program: Changes to the Medicare Claims and Medicare Prescription Drug Coverage Determination Appeals Procedures, Correction AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Proposed rule; correction.

    SUMMARY:

    This document corrects technical and typographical errors in the proposed rule that appeared in the Federal Register on October 2, 2018 entitled “Medicare Program: Changes to the Medicare Claims and Medicare Prescription Drug Coverage Determination Appeals Procedures.”

    FOR FURTHER INFORMATION CONTACT:

    Joella Roland, (410) 786-7638.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In FR Doc. 2018-21223 of October 2, 2018 (83 FR 49513), there were technical and typographical errors that are identified and corrected in the Correction of Errors section of this document.

    II. Summary of Errors

    On page 49513, we in inadvertently made a typographical error in the alphanumeric portion of the regulation identification number (RIN).

    On page 49523, in our discussion of the “Notice of a Remand,” we inadvertently referenced an incorrect subsection of the regulation. In noting the corresponding change to part 423, subpart U, we erroneously referenced § 423.2056(d)(1) instead of § 423.2056(f).

    On page 49525, in the “Regulatory Impact Statement,” although our calculation of the total amount of time that would be saved by not requiring appellants to sign appeals was correct, we made an inadvertent typographical error in the formula used to calculate this amount. Instead of referencing .083 hours, we incorrectly listed .0083 hours in the formula.

    III. Correction of Errors

    In FR Doc. 2018-21223 of October 2, 2018 (83 FR 49513), make the following corrections:

    1. On page 49513, second column, line 5, the alphanumeric term “AT27” is corrected to read “AT62” in the RIN.

    2. On page 49523, first column, first full paragraph, last line 23, the reference “§ 423.2056(d)(1)” is corrected to read “§ 423.2056(f)”.

    3. On page 49525, first column, first partial paragraph, line 2, the figure “.0083” is corrected to read “.083”.

    Dated: November 29, 2018. Ann C. Agnew, Executive Secretary to the Department, Department of Health and Human Services.
    [FR Doc. 2018-26497 Filed 12-4-18; 8:45 am] BILLING CODE 4120-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2017-0014; 4500090023] RIN 1018-BD53 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Sonoyta Mud Turtle AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Sonoyta mud turtle (Kinosternon sonoriense longifemorale) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 12.28 acres (4.97 hectares) in Pima County, Arizona, located entirely within Organ Pipe Cactus National Monument, fall within the boundaries of the proposed critical habitat designation. If we finalize this rule as proposed, it would extend the Act's protections to this subspecies' critical habitat. We also announce the availability of a draft economic analysis of the proposed designation of critical habitat for the Sonoyta mud turtle.

    DATES:

    We will accept comments on the proposed rule or draft economic analysis that are received or postmarked on or before February 4, 2019. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by January 22, 2019.

    ADDRESSES:

    Written comments: You may submit comments on the proposed rule or draft economic analysis by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2017-0014, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2017-0014, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information).

    Document availability: The draft economic analysis and the species status assessment report (SSA Report) are available online at http://www.fws.gov/southwest/es/arizona/ and at http://www.regulations.gov under Docket No. FWS-R2-ES-2017-0014, and at the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    The coordinates or plot points or both from which the map was generated are included in the administrative record for this critical habitat designation and are available online at http://www.fws.gov/southwest/es/arizona/ and at http://www.regulations.gov under Docket No. FWS-R2-ES-2017-0014, and in person at the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for this critical habitat designation will also be available at the Fish and Wildlife Service website and Field Office set out above, and may also be available on http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, Fish and Wildlife Office, 9828 North 31st Ave. #C3, Phoenix, AZ 85051-2517; telephone 602-242-0210; facsimile 602-242-2513. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Executive Summary

    The basis for our action. Section 4(b)(2) of the Act states that the Secretary of the Interior shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species.

    Why we need to publish a rule. Under the Act, any species that is determined to be endangered or threatened requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule. This is a proposed rule to designate critical habitat for the Sonoyta mud turtle under the Act. Supplemental documentation includes a draft economic analysis and species status assessment.

    Information Requested

    We intend that any final action resulting from this proposed rule will be based on the best scientific data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned government agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:

    (1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.) including whether there are threats to the subspecies from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat may not be prudent.

    (2) Specific information on:

    (a) The amount and distribution of Sonoyta mud turtle habitat;

    (b) What areas, occupied at the time of listing and that contain the physical or biological features essential to the conservation of the subspecies, should be included in the designation and why;

    (c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change;

    (d) What areas not occupied at the time of listing are essential for the conservation of the subspecies and why; and

    (e) Current habitat information within the Rio Sonoyta watershed and whether any potential habitat areas there may be essential to the conservation of the Sonoyta mud turtle.

    (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

    (4) Information on the projected and reasonably likely impacts of climate change on the Sonoyta mud turtle and proposed critical habitat.

    (5) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the benefits of including or excluding areas that may be impacted.

    (6) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts of the designation.

    (7) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.

    (8) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the draft economic analysis, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.

    (9) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

    You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

    All comments submitted electronically via http://www.regulations.gov will be presented on the website in their entirety as submitted. For comments submitted via hard copy, we will post your entire comment—including your personal identifying information—on http://www.regulations.gov. You may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so.

    Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Previous Federal Actions

    The final rule listing the Sonoyta mud turtle as endangered was published in the Federal Register on September 20, 2017 (82 FR 43897). All other previous Federal actions are described in the proposed rule to list Sonoyta mud turtle as an endangered species under the Act, published in the Federal Register on September 21, 2016 (81 FR 64829).

    Background

    Critical habitat is defined in section 3 of the Act as:

    (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

    (a) Essential to the conservation of the species, and

    (b) Which may require special management considerations or protection; and

    (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

    Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary of the Interior (i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

    Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

    Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

    Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the specific features that support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.

    Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We will determine whether unoccupied areas are essential for the conservation of the species by considering the life-history, status, and conservation needs of the species. This will be further informed by any generalized conservation strategy, criteria, or outline that may have been developed for the species to provide a substantive foundation for identifying which features and specific areas are essential to the conservation of the species and, as a result, the development of the critical habitat designation. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation.

    Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

    When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the species status assessment document and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species, the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.

    Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

    Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist:

    (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or

    (2) Such designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Service may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat.”

    As discussed in the final rule listing the Sonoyta mud turtle as an endangered species (82 FR 43897; September 20, 2017), there is currently no imminent threat of take attributed to collection or vandalism identified under Factor B (overutilization for commercial, recreational, scientific, or educational purposes) for this subspecies, and identification and mapping of critical habitat is not expected to initiate any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, we next determine whether such designation of critical habitat would not be beneficial to the species. As discussed in our final listing rule, we determined that the present destruction, modification, or curtailment of a species' habitat or range is a threat to the Sonoyta mud turtle. Therefore, because we have determined that the designation of critical habitat will not likely increase the degree of threat to the subspecies and would be beneficial, we find that designation of critical habitat is prudent for the Sonoyta mud turtle.

    Critical Habitat Determinability

    Having determined that designation is prudent, under section 4(a)(3) of the Act, we must find whether critical habitat for the Sonoyta mud turtle is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:

    (1) Data sufficient to perform required analyses are lacking, or

    (2) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”

    On September 20, 2017, our final listing rule (82 FR 43897) concluded that critical habitat was not determinable at that time. When critical habitat is not determinable at the time of listing, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)). Therefore, the Act requires that we publish a rule for critical habitat by September 20, 2018. As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. We have reviewed the available information pertaining to the biological needs of the subspecies and habitat characteristics where this subspecies is located. This and other information represent the best scientific data available for the proposed designation of critical habitat for the Sonoyta mud turtle.

    Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. For example, physical features might include gravel of a particular size required for spawning, alkali soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic needed to support the life history of the species. In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.

    We conducted a species status assessment for Sonoyta mud turtle, which is an evaluation of the best available scientific and commercial data on the status of the subspecies. The species status assessment report (SSA Report; Service 2017, which is available at https://www.fws.gov/southwest/es/arizona/Sonoyta.html and at http://www.regulations.gov under Docket No. FWS-R2-ES-2017-0014) is based on a thorough review of the natural history, habitats, ecology, populations, and range of the Sonoyta mud turtle, and risks to the subspecies. The SSA Report provides the scientific information upon which this proposed critical habitat designation is based.

    The Sonoyta mud turtle is a freshwater turtle encountered in or near water in an otherwise arid environment that commonly experiences drought and extreme heat (ambient temperatures can exceed 45 degrees Celsius (°C) (113 degrees Fahrenheit (°F)). Sonoyta mud turtles depend on aquatic habitat with adjacent terrestrial habitat for life-history functions. Aquatic habitat consists of streams and natural and manmade ponds with perennial or near-perennial (water present more than 11 months of the year for multiple years) sources of water. Terrestrial habitat consists of riparian areas along water sources that maintain moist soil and a cooler environment than adjacent uplands. Much of the information on resource needs of the Sonoyta mud turtle subspecies is inferred from work on the nominate subspecies, Sonora mud turtle (Kinosternon sonoriense sonoriense), and noted accordingly in the text that follows.

    Aquatic habitat in ponds and streams is usually shallow water to 2 meters (m) (7 feet (ft)) deep, with a rocky, muddy, or sandy substrate, and emergent or submergent vegetation, or both (NPS 2015, p. 2; Paredes-Aguilar and Rosen 2003, pp. 5-7; Rosen 2003, p. 5; Rosen et al. 207, p. 14). Sonoyta mud turtles need perennial or near-perennial surface water for feeding, for protection from predators, to prevent desiccation, and for mating. Hatchling, juvenile, and sub-adult turtles prefer aquatic habitat with shallow water and dense emergent vegetation that provides foraging opportunities as well as protection from predators (Rosen 1986, pp. 14, 36; Rosen and Lowe 1996, p. 11). Emergent aquatic vegetation includes plants such as cattail (Typha domingensis), spikerush (Eleocharis geniculata), and travelling spikerush (Eleocharis rostellata) (Felger et al. 1992, pp. 33, 36). Adults will also use shallow water habitat, but prefer aquatic habitat with deeper (up to 2 m (7 ft)) open water (with no or little vegetation growing in the water column), and submerged vegetation for feeding on benthic and plant-crawling invertebrates along the substrate (Rosen 1986, pp. 14, 16; Rosen and Lowe 1996, p. 11). American bulrush (Schoenoplectus americanus), an introduced nonnative plant species, and the native cattails can encroach into open water used by Sonoyta mud turtles. Historically, Sonoyta mud turtles occurred in rivers or cienegas with a natural ecosystem that maintained aquatic vegetation suitable to the Sonoyta mud turtle's needs. However, habitat at some Sonoyta mud turtle locations has been altered from this natural ecosystem to ponded water maintained by water control structures. American bulrush and cattails encroach these ponded sites such that open water is eliminated. Consequently, mechanical removal of American bulrush and cattails may be needed periodically to maintain patches of open water. The submerged aquatic vegetation required for prey includes plants such as holly-leaved water nymph (Najas marina), slender pondweed (Potamogeton pectinatus), ditch-grass (Ruppia maritima), and horned pondweed (Zannichellia palustris) (Felger et al. 1992, p. 36).

    Reduced water levels would reduce overall habitat amount (water and vegetation) and quality, causing crowding and increased competition for remaining, limited resources such as cover and prey (Stanila 2009, p. 45). A reduction in water and emergent vegetation would likely reduce the amount of space and invertebrate prey for Sonoyta mud turtles. Large adult Sonora mud turtles have exhibited site fidelity to specific pools in a stream channel (Hall and Steidl, 2007, p. 410), and although not studied, this could also be true for the Sonoyta mud turtle. As a result, lower water levels could reduce carrying capacity and increase overlap of adult Sonoyta mud turtle territory. Adequate prey allows juvenile turtles to grow rapidly and allows adults to have sufficient lipid content to support reproduction. Poor body condition (i.e., low lipids) may be associated with lower clutch size (total number of eggs produced) and, therefore, lower population growth (Rosen and Lowe 1996, pp. 40-43). Sonoyta mud turtles in dry or low surface water reaches would burrow in channels to escape desiccation for a short period of time. Over time, however, burrows themselves may become too dry; turtles will lose fat reserves due to lack of foraging opportunity. If adult Sonoyta mud turtles mate during or after losing fat reserves, females may not have viable eggs due to lack of nutrition and fat reserves, and eventually turtles will die from either starvation or desiccation. Potential population-level impacts include lower reproductive rates, reduced recruitment, reduced population growth rate, and changes in distribution.

    Sonoyta mud turtles are opportunistic carnivores, feeding primarily on aquatic invertebrates that live on emergent and submergent vegetation or the substrate of ponds and streams (Rosen 1986, pp. 14, 31; Rosen and Lowe 1996, pp. 32-35). Sonoyta mud turtle hatchlings and juveniles feed on littoral invertebrate fauna, while subadults and adults prefer benthic and plant-crawling invertebrates (Hulse 1974, pp. 197-198; Lovich et al. 207, pp. 135-136; Rosen 1986, pp. 14, 31; Rosen and Lowe 1996, pp. 32-35; Stanila et al. 2008, p. 42). In habitats with poor aquatic invertebrate faunas, Sonoyta mud turtles will shift to omnivorous feeding, including plants and vertebrates such as fish (Rosen and Lowe 1996, pp. 32-35). However, where fish are abundant, Sonoyta mud turtles catch few of them (Rosen and Lowe 1996, p. 32). Sonora mud turtles are also known to consume other vertebrates including toads, and even reptiles and birds when available for capture (Ligon and Stone 2003, entire; Stone et al. 2005, entire). Analysis of stomach contents of the Sonora mud turtle revealed animal material represented 69.0-93.6 percent total volume, with plant material making up the remaining volume (Hulse 1974, p. 197). Aquatic invertebrates found in the stomach contents of Sonora mud turtles included members of 11 invertebrate orders such as dragonflies (Anisoptera), caddisflies (Trichoptera), flies (Diptera), beetles (Coleoptera), and aquatic snail species (Basommatophora). Aquatic invertebrates require submergent or emergent vegetation and a variety of prey, such as algae, diatoms, and other microorganisms.

    Sonoyta mud turtles need aquatic habitat free of nonnative predators and competitors. Aquatic habitat with nonnative predators, including crayfish (Orconectes spp. and Cherax spp.), American bullfrogs (Lithobates catesbeianus), and sunfish (centrarchids), could decrease population stability or potentially decimate populations of the Sonoyta mud turtle (Drost et al. 207, pp. 33-34; Hensley et al. 207, pp. 186-187; Fernandez and Rosen 1996, pp. 39-41). These species, along with black bullheads (Ameiurus melas), African cichlid fishes (tilapia), western mosquitofish (Gambusia affinis), and exotic turtles, compete with mud turtles for food or disrupt the food chain, which could alter the invertebrate community (Taylor et al. 1984, pp. 330-331; Fernandez and Rosen 1996, pp. 39-40; Duncan 2013, p. 1). Such competition, in turn, could decrease type and amount of aquatic invertebrate prey available to Sonoyta mud turtles (Fernandez and Rosen 1996, pp. 39-40).

    Because high average annual juvenile survivorship is required for populations of long-lived organisms to maintain population stability (Congdon et al. 1993, pp. 831-832; Congdon et al. 1994, pp. 405-406), nonnative predators that reduce recruitment into Sonoyta mud turtle populations could cause population declines. Bullfrogs and crayfish are known predators of hatchling and juvenile turtles of the Sonora mud turtle (Fernandez and Rosen 1996, pp. 33-43; Akins and Jones 207, p. 343; Hensley et al. 207, pp. 186-187; Schwendiman 2001, p. 39), and would likely eat hatchling Sonoyta mud turtles if introduced. Populations of the Sonora mud turtle have coexisted with moderate and high densities of bullfrogs (Rosen and Schwalbe 2002, p. 230). However, a high density of bullfrogs may reduce population density of mud turtles (van Lobel Sells 1997, p. 343). Crayfish are detrimental to populations of the Sonora mud turtle and not only prey on small mud turtles, but likely compete with them for native aquatic invertebrate food sources (Fernandez and Rosen 1996, pp. 39-40). One study documented cessation of Sonora mud turtle recruitment 2 years after crayfish introduction to an area that had supported a population of approximately 1,000 Sonora mud turtles (Fernandez and Rosen 1996, pp. 40-41). Large sunfish, such as largemouth bass (Micropterus salmoides), also have the potential to reduce recruitment in populations of Sonora mud turtles because their large gape (external mouth width) makes it possible for them to prey on hatchling and juvenile Sonoyta mud turtles (Stanila 2009, p. 50). Largemouth bass are known to eat other aquatic turtle species, and Rosen (1987, p. 6) reported the lowest population densities of Sonora mud turtles in habitats with largemouth bass.

    Adult and juvenile Sonoyta mud turtles use aquatic habitat with complex structure that provides protection from predators such as root masses, rock features, and undercut banks (Rosen 1986, pp. 14, 16; Rosen and Lowe 1996, p. 11). Shallow water areas with dense emergent vegetation also provides protection from predators for hatchlings, juveniles, and adults. Overhanging riparian vegetation along the stream channel or pond margin and soil burrows under overhanging banks provide some protection from predators for turtles in the water near the shoreline. Riparian vegetation may also provide some level of protection from terrestrial predators while turtles are out of the water.

    Terrestrial habitat that maintains soil moisture for Sonoyta mud turtles occurs in riparian areas along the banks of ponds and streams, and in intermittently dry sections of stream channels. Riparian habitat provides shadier, cooler, and moister conditions than the adjacent upland areas. Sonoyta mud turtles require moist soil for nesting to prevent desiccation of eggs and for estivation (a state of dormancy) sites to prevent desiccation of hatchlings, juveniles, and adults. Riparian vegetation includes plants such as Fremont cottonwood (Populus fremontii), Goodding willow (Salix gooddingii), honey mesquite (Prosopis glandulosa), screwbean mesquite (P. pubescens), seepwillow (Baccharis salicifolia), greythorn (Ziziphus obtusifolia), wolfberry (Lycium spp.), salt grass (Distichlis spicata), and arrowweed (Pluchea sericea) (Felger et al. 1992, p. 4).

    Sonoyta mud turtles need accessible shoreline without insurmountable rock or artificial vertical barriers to allow for movement between wetted sites, between aquatic habitat and terrestrial nest sites, and between water and estivation (dormancy during drought) sites. Sonora mud turtles in dry or low surface water conditions may either travel along dry intermittent sections of a stream to find water or they will estivate (Hall and Steidl 2007, p. 406; Hensley et al. 207, pp. 181-182; Ligon and Stone 2003, pp. 752-753; Stone 2001, pp. 46-49). Sonora mud turtles that live in permanent bodies of water have shown highly aquatic behavior with little terrestrial behavior or movement between water sources, while Sonora mud turtles in more ephemeral habits have been documented moving through or out of dry stream beds to reach wetted pools, for winter hibernation, or for estivation during drought as a drought-survival strategy (Hall and Steidl 2007, pp. 406-408; Hensley et al. 207, pp. 181-182; Ligon and Stone 2003, pp. 752-753; Stone 2001, pp. 46-51).

    Sonora mud turtles can endure lack of surface water for a short time and have been documented estivating in the wild for 11 to 34 days (Ligon and Stone 2003, p. 752), and once for up to 68 days (Ligon and Stone 2002, entire; Ligon and Stone 2003, p. 753). However, prolonged and recurrent estivation is expected to reduce fitness and increase mortality (Peterson and Stone 2000, pp. 692-698). Terrestrial estivation sites consisted of depressions under vegetation, soil, or organic matter; in rock crevices; or in soil burrows under overhanging banks of streams or ponds. One study found Sonora mud turtles estivating up to 79 m (259 ft) from a streambed during summer even when water was available, with mud turtles using clumps of vegetation or spaces under large rocks in the terrestrial environment (Ligon and Stone 2003, pp. 752-753).

    Estivation has not been verified in the Sonoyta mud turtle, and physiological tolerances for estivation are unknown. However, Sonoyta mud turtles have been found in burrows up to 1 m (3.3 ft) deep in stream banks, presumably using these burrows to escape from predators (Paredes-Aguilar and Rosen 2003, p. 8) or for drought refuge. Further, based on the physiological requirements of the Sonora mud turtle and the arid environment in which the Sonoyta mud turtle lives, we believe that they estivate during times of little or no surface water.

    Long-distance movements of Sonora mud turtles exceeding 7 kilometers (5 miles) in straight-line distance occurred between aquatic habitats. Such movements may reduce reproductive isolation and lower the probability of extirpation of populations (Hall and Steilde 2007, p. 408; Hensley et al. 207, pp. 181-182; Stone et al. 2015, p. 736). Although not well-studied, no movement of Sonoyta mud turtles of these magnitudes has been documented, and restrictions associated with their extreme arid environment may reduce such movements (P. Rosen 2016, pers. comm.). Dispersal habitat along drainages is likely needed to maintain connectivity between populations of the Sonoyta mud turtle on a rangewide scale.

    The Sonora mud turtle is known to mate from April to October, and female Sonora and Sonoyta mud turtles lay eggs from mid to late July through September in vegetation litter, soil burrows, and rock crevices up to 52 m (171 ft) away from water (Rosen and Lowe 1996, pp. 21, 23; Stone et al. 2015, p. 735; D. Hall 2016, pers. comm.; Rosen 1986, p. 7; A. Owens 2007, pers. comm.; P. Holm 2016, pers. comm.). Eggs may undergo embryonic diapause in the nest for 11 months after being laid, with hatchlings emerging the following year (van Loben Sels et al. 1997, p. 343; Ernst and Lovich 2009, p. 497; Stone et al. 2015, p. 735). In mid to late July through September, females leave the water briefly to lay eggs in terrestrial nests that maintain some level of moisture. Three presumed nest sites have been observed for the Sonoyta mud turtle that indicate this subspecies uses nest sites similar to the Sonora mud turtle. The only potential nesting behavior of the Sonoyta mud turtle observed was a gravid female, “apparently preparing to lay eggs,” digging 15 centimeters (cm) (6 inches (in)) into the soil in a mesquite bosque (cluster of trees along a stream) 9 m (30 ft) from the edge of the pond at Quitobaquito Springs (Rosen and Lowe 1996, p. 23). A second turtle nest site was found in a small cavity (5 by 5 cm (2 by 2 in)) within a 3 m (10 ft) high soil bank that runs next to the spring-fed channel leading to the pond at Quitobaquito Springs (A. Owens 2007, pers. comm.). The third nest site was found in a small depression in soil beneath a piece of tree bark on top of an undercut bank at the edge the pond at Quitobaquito Springs (P. Holm 2016, pers. comm.).

    Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential for Sonoyta mud turtle from studies of the Sonora mud turtle, used as a proxy, of this subspecies' habitat, ecology, and life history, as described above. Additional information can be found in the proposed listing rule (81 FR 64829; September 21, 2016). We have determined that the following physical or biological features are essential to the conservation of Sonoyta mud turtle:

    (1) Aquatic habitat, such as streams and natural or manmade ponds, with perennial or near-perennial sources of water, containing or including:

    (a) Surface water to 2 m (7 ft) deep, with a rocky, muddy, or sandy substrate, and emergent or submergent vegetation, or both;

    (b) Surface water free of nonnative predators and competitors, including crayfish, American bullfrogs, and large sunfish;

    (c) Shallow water areas with dense emergent vegetation (e.g., cattail, spikerush, and travelling spikerush);

    (d) Access to deeper open water in ponds, and submerged vegetation (e.g., holly-leaved water nymph, slender pondweed, ditch-grass, and horned pondweed); and

    (e) Areas with complex structure, including protective shelter sites such as root masses, rock features, and undercut banks.

    (2) Aquatic invertebrate prey base (e.g., Anisoptera, Trichoptera, Diptera, Coleoptera, aquatic snail species) and their corresponding habitat, including submergent or emergent vegetation and a variety of forage, and prey such as algae, diatoms, other microorganisms.

    (3) Terrestrial, riparian habitat, adjacent to suitable aquatic habitat, containing or including:

    (a) Accessible shoreline for Sonoyta mud turtles without insurmountable rock or artificial vertical barriers to allow movement between wetted sites, between aquatic habitat and terrestrial nest sites, and between aquatic habitat and estivation sites;

    (b) Riparian areas that maintain soil moisture to prevent desiccation of eggs and provide estivation sites, located along the banks of ponds and streams with riparian vegetation (e.g., cottonwood, willow, seepwillow, mesquite, greythorn, wolfberry, salt grass, arroweed); and

    (c) Estivation and nesting sites, including depressions under vegetation, soil, or organic matter; rock crevices; and soil burrows under overhanging banks of streams or ponds, that are available year-round.

    Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of the Sonoyta mud turtle may require special management considerations or protection to reduce the following threats: (1) Water loss; (2) loss of riparian habitat; (3) reduction of invertebrate prey; (4) presence of nonnative species; and (5) land management activities incompatible with maintaining needed habitat (such as dredging).

    Management activities that could ameliorate these threats and protect the quantity and quality of the aquatic and riparian habitat include, but are not limited to: (1) Maximizing surface water and aquatic habitat available through structure maintenance, such as berms, lining ponds and spring runs, and removing sediment; (2) decreasing groundwater pumping to maintain surface water that supports aquatic and riparian habitat, as well as the invertebrate prey base; (3) controlling and removing introduced nonnative plant species, such as American bulrush, to maintain aquatic habitat; and (4) controlling and removing introduced nonnative predators and competitors, such as crayfish, American bullfrogs, and large sunfish.

    Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species that are essential for the species' conservation to be considered for designation as critical habitat. We are proposing to designate critical habitat in areas within the United States that are occupied by Sonoyta mud turtle at the time we published the final rule to list the subspecies as endangered (September 20, 2017). For purposes of this proposed rule, we define “occupied habitat” for Sonoyta mud turtle as areas with a positive survey records since 2000. This definition of occupied is based on the average life span of the subspecies (ranging from 12 to 17 years). Since Sonoyta mud turtles live approximately 12 to 17 years, we used records from this time period and concluded that a portion of the turtles found during this time would still be alive, and, therefore, we consider the site occupied. We are not currently proposing to designate any areas outside the geographical area occupied by the subspecies because we did not find any such areas that were essential for the conservation of the subspecies, as we are not aware of any other areas within the historic range of the subspecies that maintain perennial or nearly perennial surface water.

    Sources of occupancy data on the Sonoyta mud turtle are monitoring data from Organ Pipe Cactus National Monument (NPS 2002-2016, p. 1). We obtained information on ecology and habitat requirements of the Sonoyta mud turtle from multiple sources, as identified in the SSA Report. For mapping of proposed critical habitat, we used Organ Pipe Cactus National Monument geo-referenced data of the water features used by Sonoyta mud turtles at Quitobaquito. In addition, we used satellite imagery available in ArcGIS to delineate riparian areas surrounding the surface water habitat.

    Areas Occupied at the Time of Listing

    We are proposing for designation as critical habitat lands that we have determined are occupied at the time of listing (in this case, the date we published the final listing rule: September 20, 2017) and contain one or more of the physical or biological features to support life-history processes essential to the conservation of the subspecies. The proposed critical habitat designation includes the only known extant population of Sonoyta mud turtles in the Unites States, within the Organ Pipe Cactus National Monument. This is also the only known population in the United States.

    We propose to designate one critical habitat unit based on one or more of the physical or biological features being present to support the life-history processes of the Sonoyta mud turtle.

    The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the Proposed Regulation Promulgation section. We include more detailed information on the boundaries of the critical habitat designation in the Proposed Critical Habitat Designation section, below. We will make the coordinates or plot points or both on which the map is based available to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-2017-0014, on our internet site at http://www.fws.gov/southwest/es/arizona, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT, above).

    When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the Sonoyta mud turtle. However, manmade water conveyance structures within the proposed designated critical habitat are part of the designation and are needed to manage the existing habitat. The current occupied unit includes a manmade spring enclosure and spring channel that convey water to a manmade pond surrounded by a manmade berm. The spring channel not only conveys water to the pond but also serves as habitat for the subspecies. Therefore, all of these manmade features are considered critical habitat. The scale of the map we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of developed lands otherwise excluded from critical habitat. Any such lands inadvertently left inside critical habitat boundaries shown on the map of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.

    Proposed Critical Habitat Designation

    We are proposing to designate approximately 12.28 acres (ac) (4.97 hectares (ha)) in one unit as critical habitat for the Sonoyta mud turtle. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for Sonoyta mud turtle.

    Table 1—Occupancy, Land Ownership, and Size of Sonoyta Mud Turtle Proposed Critical Habitat [Area estimates reflect all land within critical habitat unit boundaries] Unit name Occupied
  • at time of
  • listing?
  • Currently
  • occupied?
  • Ownership Size
  • (ha)
  • Size
  • (ac)
  • Quitobaquito Yes Yes National Park Service 4.97 12.28

    Below, we present a brief description of the Quitobaquito Unit, and reasons why it meets the definition of critical habitat for the Sonoyta mud turtle.

    Quitobaquito Unit

    This unit consists of 12.28 ac (4.97 ha) in the Rio Sonoyta watershed of Organ Pipe Cactus National Monument. This unit is within the geographic area occupied by the subspecies at the time of listing and contains at least one of the physical or biological features essential to the conservation of the Sonoyta mud turtle.

    Aquatic habitat within this unit consists of the two Quitobaquito springs, the piped water that connects the two springs, a manmade spring channel that connects the springs to Quitobaquito pond, and a manmade pond with a perennial source of water. The spring channel and pond both have shallow water habitat, an aquatic invertebrate prey base, and no nonnative predators. The pond includes surface water up to 107 cm (42 in) deep with a muddy substrate; dense emergent and submergent vegetation; access to deeper open water in a pond for feeding along the substrate; and areas with complex structure and protective shelter sites, including root masses and undercut banks.

    Terrestrial habitat within this unit consists of adjacent, accessible shoreline along the stream channel and around Quitobaquito pond without insurmountable rock or artificial vertical barriers to movement of the Sonoyta mud turtle, as well as riparian areas, located along the banks of the pond, stream channel, and berm around the pond. These terrestrial habitat components maintain soil moisture to prevent desiccation of eggs and estivating turtles, and include estivation and nesting sites, including depressions under vegetation, soil, organic matter, and soil burrows under overhanging banks of the pond, that are available year-round.

    The physical or biological features in this unit may require special management considerations or protection to address threats from loss of surface water due to groundwater pumping, berm leaking, aquatic vegetation control, and sedimentation removal in the pond. This unit is entirely within the Organ Pipe Cactus National Monument, and the National Park Service (NPS) manages the habitat to support the Sonoyta mud turtle population. This unit is not being considered for exclusion or exemption.

    Effects of Critical Habitat Designation Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

    We published a final rule adopting a new definition of “destruction or adverse modification” on February 11, 2016 (81 FR 7214). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.

    If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation.

    As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:

    (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

    (2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.

    When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:

    (1) Can be implemented in a manner consistent with the intended purpose of the action,

    (2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction.

    (3) Are economically and technologically feasible, and

    (4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

    Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

    Application of the “Adverse Modification” Standard

    The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that result in a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of the Sonoyta mud turtle. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of this subspecies or that preclude or significantly delay development of such features. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.

    Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.

    Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Sonoyta mud turtle. These activities include, but are not limited to:

    (1) Actions that would decrease the amount of water available to to ponds and streams used by Sonoyta mud turtles. Such actions could include, but are not limited to, groundwater pumping. Groundwater pumping could decrease the amount of groundwater that infiltrates streamflow so that streams become smaller, intermittent, or dry, and thereby could reduce the amount of space, prey, nest sites, and cover available for Sonoyta mud turtles.

    (2) Actions that would maintain habitat for the Sonoyta mud turtles. Such actions could include the maintenance of springheads, stream or channel courses, and ponds. Maintaining springheads and manmade or natural spring channels will maximize the amount of surface water available to Sonoyta mud turtles. All ponds that support Sonoyta mud turtles are manmade and require constant management to remove sediment that builds up and to stop encroaching vegetation from completely filling in the ponds.

    Exemptions Application of Section 4(a)(3) of the Act

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense lands with a completed INRMP within the proposed critical habitat designation.

    Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

    We have not considered any areas for exclusion from critical habitat. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis (DEA) concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES, above).

    Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (e.g., under the Federal listing as well as other Federal, State, and local regulations). The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act (i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary section 4(b)(2) exclusion analysis.

    For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Sonoyta mud turtle (IEc 2017, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out the geographic areas in which the critical habitat designation is unlikely to result in probable incremental economic impacts. In particular, the screening analysis considers baseline costs (i.e., absent critical habitat designation) and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the subspecies. The screening analysis filters out particular areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. The screening analysis also assesses whether units are unoccupied by the subspecies and may require additional management or conservation efforts as a result of the critical habitat designation for the subspecies, which may incur incremental economic impacts. This screening analysis, combined with the information contained in our IEM, is what we consider our DEA of the proposed critical habitat designation for the Sonoyta mud turtle and is summarized in the narrative below.

    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the Sonoyta mud turtle, first we identified, in the IEM (Service 2017), probable incremental economic impacts associated with the following categories of activities: (1) Federal lands management (National Park Service, Organ Pipe Cactus National Monument); (2) groundwater pumping; and (3) Customs and Border Protection. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; the Act's designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the Sonoyta mud turtle is present, Federal agencies already are required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the subspecies, because the subspecies is listed as an endangered species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

    In our IEM, we attempted to clarify the distinction between the effects that result from the subspecies being listed and those that would be attributable to the critical habitat designation (i.e., difference between the jeopardy and adverse modification standards) for the Sonoyta mud turtle's critical habitat. Because the designation of critical habitat for the Sonoyta mud turtle is being proposed soon after the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the subspecies being listed and those which would result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the subspecies; and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the Sonoyta mud turtle would also likely adversely affect the essential physical or biological features of critical habitat. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this subspecies. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat.

    The proposed critical habitat designation for the Sonoyta mud turtle consists of a single unit currently occupied by the subspecies. We are not proposing to designate any units of unoccupied habitat. The proposed Quitobaquito critical habitat unit totals 12.28 ac (4.97 ha) and is entirely contained within federally owned land at Organ Pipe Cactus National Monument. In this area, any actions that may affect the subspecies or its habitat would also affect designated critical habitat, and it is unlikely that any additional recommendations or project modifications to avoid adversely modifying critical habitat above those we would recommend for avoiding jeopardy. Therefore, only administrative costs of conducting any section 7 consultation are expected in all of the proposed critical habitat designation. While this additional analysis will require time and resources by both the Federal action agency and the Service, it is believed that, in most circumstances, these costs would predominantly be administrative in nature and would not be significant.

    We anticipate minimal change in behavior at Organ Pipe Cactus National Monument if we designate critical habitat for the Sonoyta mud turtle. Based on Organ Pipe Cactus National Monument's history of consultation under section 7 of the Act and on the consultation history of the most comparable species, desert pupfish (Cyprinodon macularius), we anticipate that this critical habitat designation may result in a maximum of two additional consultations per decade.

    As we stated earlier, we are soliciting data and comments from the public on the draft economic analysis, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this subspecies.

    Exclusion Exclusions Based on Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared an analysis of the probable economic impacts of the proposed critical habitat designation and related factors. In our DEA, we did not identify any ongoing or future actions that would warrant additional recommendations or project modifications to avoid adversely modifying critical habitat above those we would recommend for avoiding jeopardy to the subspecies, and we anticipate minimal change in behavior at Organ Pipe Cactus National Monument due to the designation of critical habitat for Sonoyta mud turtle (IEc 2017).

    At this time, we are not considering any exclusion based on economic impacts from the proposed designation of critical habitat for Sonoyta mud turtle. During the development of a final designation, we will consider any additional economic impact information we receive during the public comment period; as such, areas may be excluded from the final critical habitat designation under section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.

    Exclusions Based on National Security Impacts or Homeland Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for the Sonoyta mud turtle are not owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security. Consequently, the Secretary does not intend to exercise his discretion to exclude any areas from the final designation based on impacts on national security.

    Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether there are permitted conservation plans covering the subspecies in the area such as HCPs, safe harbor agreements, or candidate conservation agreements with assurances, or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.

    In preparing this proposal, we have determined that there are currently no HCPs or other management plans on non-federal lands for the Sonoyta mud turtle, and the proposed designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this proposed critical habitat designation. Accordingly, the Secretary does not intend to exercise his discretion to exclude any areas from the final designation based on other relevant impacts.

    Peer Review

    In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270) and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought the expert opinions of at least three appropriate and independent specialists regarding the SSA Report, which informed this proposed rule. The purpose of peer review is to ensure that our critical habitat designation is based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in Sonoyta or Sonora mud turtle life history, needs, habitat, and stressors (factors negatively affecting the species). We will consider all comments and information we receive during the comment period on this proposed rule during our preparation of a final designation. Accordingly, the final decision may differ from this proposal.

    Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received by the date specified above in DATES. Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

    Required Determinations Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

    Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

    Executive Order 13771—Reducing Regulation and Controlling Regulatory Costs

    This proposed rule is not an Executive Order (E.O.) 13771 (82 FR 9339, February 3, 2017) regulatory action because this proposed rule is not significant under E.O. 12866.

    Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

    According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

    The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and, therefore, are not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated by this designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if adopted, this proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.

    In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if adopted, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

    Energy Supply, Distribution, or Use—Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our economic analysis, we did not find that the designation of this proposed critical habitat would significantly affect energy supplies, distribution, or use because the proposed critical habitat unit is entirely contained within Organ Pipe Cactus National Monument. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted.

    Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:

    (1) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

    The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

    (2) We do not believe that this rule would significantly or uniquely affect small governments because we are proposing to designate only a single critical habitat unit that is entirely owned by the National Park Service. Therefore, a Small Government Agency Plan is not required.

    Takings—Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Sonoyta mud turtle in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes that this proposed designation of critical habitat for Sonoyta mud turtle does not pose significant takings implications for lands within or affected by the designation.

    Federalism—Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies in Arizona. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, this proposed rule would not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the subspecies are more clearly defined, and the physical or biological features of the habitat necessary to the conservation of the subspecies are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).

    Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

    Civil Justice Reform—Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the E.O. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the subspecies, the proposed rule identifies the elements of physical or biological features essential to the conservation of the subspecies. The proposed areas of critical habitat are presented on a map, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.

    Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). Because this proposed critical habitat does not occur on lands within the U.S. Court of Appeals for the Tenth Circuit, we are not conducting an environmental analysis.

    Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. The Quitobaquito Pond is a culturally significant site for the Tohono O'odham. We will request a meeting with the Tohono O'odham Nation to inform them of this proposed rule to designate critical habitat.

    We determined that there are no tribal lands that were occupied by the Sonoyta mud turtle at the time of listing that contain the features essential for conservation of the subspecies, and no tribal lands unoccupied by the Sonoyta mud turtle that are essential for the conservation of the subspecies. Therefore, we are not proposing to designate critical habitat for the Sonoyta mud turtle on tribal lands.

    Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (1) Be logically organized;

    (2) Use the active voice to address readers directly;

    (3) Use clear language rather than jargon;

    (4) Be divided into short sections and sentences; and

    (5) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    References Cited

    A complete list of references cited in this proposed rule is available on the internet at http://www.regulations.gov and upon request from the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this proposed rule are the staff members of the Arizona Ecological Services Field Office.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

    2. Amend § 17.11(h) by revising the entry for “Turtle, Sonoyta mud” under “REPTILES” in the List of Endangered and Threatened Wildlife to read as follows:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules *         *         *         *         *         *         * Reptiles *         *         *         *         *         *         * Turtle, Sonoyta mud Kinosternon sonoriense longifemorale Wherever found E 82 FR 43897, 9/20/2017;
  • 50 CFR 17.95(c).CH
  • *         *         *         *         *         *         *
    3. Amend § 17.95(c) by adding an entry for “Sonoyta Mud Turtle (Kinosternon sonoriense longifemorale),” immediately following the entry for “Plymouth Red-bellied Turtle (Chrysemys rubriventris bangsi)”, to read as follows:
    § 17.95 Critical habitat—fish and wildlife.

    (c) Reptiles.

    Sonoyta Mud Turtle (Kinosternon sonoriense longifemorale)

    (1) Critical habitat unit is depicted for Pima County, Arizona, on the map below.

    (2) Within this area, the physical or biological features essential to the conservation of the Sonoyta mud turtle consist of the following components:

    (i) Aquatic habitat, such as streams and natural or manmade ponds, with perennial or near-perennial sources of water, containing or including:

    (A) Surface water to 2 meters (7 feet) deep, with a rocky, muddy, or sandy substrate, and emergent or submergent vegetation, or both;

    (B) Surface water free of nonnative predators and competitors, including crayfish, American bullfrogs, and large sunfish;

    (C) Shallow water areas with dense emergent vegetation (e.g., cattail, spikerush, and travelling spikerush);

    (D) Access to deeper open water in ponds, and submerged vegetation (e.g., holly-leaved water nymph, slender pondweed, ditch-grass, and horned pondweed); and

    (E) Areas with complex structure, including protective shelter sites such as root masses, rock features, and undercut banks.

    (ii) Aquatic invertebrate prey base (e.g., Anisoptera, Trichoptera, Diptera, Coleoptera, aquatic snail species) and their corresponding habitat, including submergent or emergent vegetation and a variety of forage, and prey such as algae, diatoms, other microorganisms.

    (iii) Terrestrial, riparian habitat, adjacent to suitable aquatic habitat, containing or including:

    (A) Accessible shoreline for Sonoyta mud turtles without insurmountable rock or artificial vertical barriers to allow movement between wetted sites, between aquatic habitat and terrestrial nest sites, and between aquatic habitat and estivation sites;

    (B) Riparian areas that maintain soil moisture to prevent desiccation of eggs and provide estivation sites, located along the banks of ponds and streams with riparian vegetation (e.g., cottonwood, willow, seepwillow, mesquite, greythorn, wolfberry, salt grass, arroweed); and

    (C) Estivation and nesting sites, including depressions under vegetation, soil, or organic matter; rock crevices; and soil burrows under overhanging banks of streams or ponds, that are available year-round.

    (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on [Insert effective date of final rule]. However, the spring enclosure, the manmade pond, the manmade channel that connects the springs to the pond, and the piped water that connects the two springs within the designated critical habitat are part of the designation.

    (4) Critical habitat map units. Data layers defining map unit were developed using ESRI ArcGIS mapping software along with various spatial layers. We used ground-truthed data provided by Organ Pipe Cactus National Monument staff that depicts all aquatic habitat used by the Sonoyta mud turtle, including Quitobaquito Pond and moat, the two Quitobaquito springs, the manmade channel that connects the springs to the pond, and the piped water that connects the two springs. For terrestrial, we used satellite imagery available in ArcGIS to delineate the riparian areas surrounding the surface water habitat. World Imagery used from ArcGIS provides 1 meter or better satellite and aerial imagery in many parts of the world and lower resolution satellite imagery worldwide. The map includes 15m TerraColor 0.3m resolution imagery at this map scale of 1:6,000. Additionally, imagery at different resolutions has been contributed by the GIS User Community. ArcGIS was also used to calculate area hectares and acres, and was used to determine longitude and latitude coordinates in decimal degrees. The coordinate system used in mapping and calculating area and locations within the unit was Universal Transverse Mercator (UTM) conformal projection with 1983 North American Datum in Zone 12. The map in this entry, as modified by any accompanying regulatory text, establishes the boundaries of the critical habitat designation. The coordinates or plot points or both on which the map is based are available to the public at http://www.fws.gov/southwest/es/arizona/, at http://www.regulations.gov at Docket No. FWS-R2-ES-2017-0014, and at the field office responsible for this designation. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2.

    (5) Quitobaquito Unit, Pima County, Arizona.

    (i) General description: This unit consists of approximately 12.28 acres (4.97 hectares) in the Rio Sonoyta watershed in Pima County, and is composed entirely of Federal land owned by the National Park Service on Organ Pipe Cactus National Monument. The unit includes Quitobaquito Pond, the two Quitobaquito springs, the manmade channel that connects the springs to the pond, and the piped water that connects the two springs and surrounding riparian habitat.

    (ii) Unit map follows:

    BILLING CODE 4333-15-P EP06DE18.002
    Dated: October 11, 2018. James W. Kurth, Deputy Director, Exercising the Authority of the Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2018-26388 Filed 12-4-18; 8:45 am] BILLING CODE 4333-15-C
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 180831813-8813-01] RIN 0648-XG471 Fisheries of the Exclusive Economic Zone Off Alaska; Gulf of Alaska; 2019 and 2020 Harvest Specifications for Groundfish AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS proposes 2019 and 2020 harvest specifications, apportionments, and Pacific halibut prohibited species catch limits for the groundfish fishery of the Gulf of Alaska (GOA). This action is necessary to establish harvest limits for groundfish during the 2019 and 2020 fishing years and to accomplish the goals and objectives of the Fishery Management Plan for Groundfish of the Gulf of Alaska. The intended effect of this action is to conserve and manage the groundfish resources in the GOA in accordance with the Magnuson-Stevens Fishery Conservation and Management Act.

    DATES:

    Comments must be received by January 7, 2019.

    ADDRESSES:

    Submit comments on this document, identified by NOAA-NMFS-2018-0103, by either of the following methods:

    Federal e-Rulemaking Portal: Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0103, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

    Instructions: NMFS may not consider comments if they are sent by any other method, to any other address or individual, or received after the comment period ends. All comments received are a part of the public record, and NMFS will post the comments for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender is publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    Electronic copies of the Alaska Groundfish Harvest Specifications Final Environmental Impact Statement (Final EIS), Record of Decision (ROD) for the Final EIS, the annual Supplementary Information Reports (SIRs) to the Final EIS, and the Initial Regulatory Flexibility Analysis (IRFA) prepared for this action may be obtained from http://www.regulations.gov or from the Alaska Region website at https://alaskafisheries.noaa.gov. An updated SIR for the final 2019 and 2020 harvest specifications will be available from the same sources. The final 2017 Stock Assessment and Fishery Evaluation (SAFE) report for the groundfish resources of the GOA, dated November 2017, is available from the North Pacific Fishery Management Council (Council) at 605 West 4th Avenue, Suite 306, Anchorage, AK 99501, phone 907-271-2809, or from the Council's website at http://www.npfmc.org. The 2018 SAFE report for the GOA will be available from the same source.

    FOR FURTHER INFORMATION CONTACT:

    Obren Davis, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the GOA groundfish fisheries in the exclusive economic zone (EEZ) of the GOA under the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). The Council prepared the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801, et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600, 679, and 680.

    The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify the total allowable catch (TAC) for each target species, the sum of which must be within the optimum yield (OY) range of 116,000 to 800,000 metric tons (mt) (§ 679.20(a)(1)(i)(B)). Section 679.20(c)(1) further requires NMFS to publish and solicit public comment on proposed annual TACs and apportionments thereof, Pacific halibut prohibited species catch (PSC) limits, and seasonal allowances of pollock and Pacific cod. The proposed harvest specifications in Tables 1 through 19 of this rule satisfy these requirements. For 2019 and 2020, the sum of the proposed TAC amounts is 375,280 mt.

    Under § 679.20(c)(3), NMFS will publish the final 2019 and 2020 harvest specifications after (1) considering comments received within the comment period (see DATES), (2) consulting with the Council at its December 2018 meeting, (3) considering information presented in the 2019 SIR that assesses the need to prepare a Supplemental EIS (see ADDRESSES), and (4) considering information presented in the final 2018 SAFE report prepared for the 2019 and 2020 groundfish fisheries.

    Other Actions Affecting or Potentially Affecting the 2019 and 2020 Harvest Specifications Amendment 106: Reclassify Squid as an Ecosystem Species

    On July 6, 2018, NMFS published the final rule to implement Amendment 106 to the FMP (83 FR 31460). This rule reclassified squid in the FMP as an “Ecosystem Component” species, which is a category of non-target species that are not in need of conservation and management. Accordingly, NMFS will no longer set an Overfishing Level (OFL), acceptable biological catch (ABC), and TAC for squid in the GOA groundfish harvest specifications, beginning with the proposed 2019 and 2020 harvest specifications. Amendment 106 prohibits directed fishing for squid, while maintaining recordkeeping and reporting requirements for squid. Amendment 106 also establishes a squid maximum retainable amount when directed fishing for groundfish species at 20 percent to discourage targeting squid species.

    Rulemaking To Prohibit Directed Fishing for American Fisheries Act (AFA) and Crab Rationalization (CR) Program Sideboard Limits

    On August 16, 2018, NMFS published a proposed rule (83 FR 40733) that would modify regulations for the AFA Program and CR Program participants subject to limits on the catch of specific species (sideboard limits) in the GOA. Sideboard limits are intended to prevent participants who benefit from receiving exclusive harvesting privileges in a particular fishery from shifting effort into other fisheries.

    Specifically, the proposed rule would primarily establish regulations to prohibit directed fishing for sideboard limits for specific groundfish species or species groups, rather than prohibiting directed fishing for AFA and CR Program sideboard limits through the GOA annual harvest specifications. The proposed rule would streamline and simplify NMFS's management of applicable groundfish sideboard limits. Currently, NMFS calculates numerous AFA Program and CR Program sideboard limits as part of the annual GOA groundfish harvest specifications process and publishes these limits in the Federal Register. Concurrently, NMFS prohibits directed fishing for the majority of the groundfish sideboard limits because most limits are too small to support directed fishing. Rather than continue this annual process, this action proposes to revise regulations to prohibit directed fishing in regulation for most AFA Program and CR Program groundfish sideboard limits. NMFS would no longer calculate and publish AFA Program and CR Program sideboard limit amounts for most groundfish species in the annual GOA harvest specifications. If the final rulemaking implementing these changes is effective prior to the publication of the final 2019 and 2020 harvest specifications, NMFS would no longer publish the majority of the sideboard limits contained in Tables 13 and 15 of this proposed action.

    Proposed ABC and TAC Specifications

    At the October 2018 Council meeting, the Council, its Scientific and Statistical Committee (SSC), and its Advisory Panel (AP) reviewed the most recent biological and harvest information about the condition of groundfish stocks in the GOA. This information was compiled by the GOA Groundfish Plan Team (Plan Team) and presented in the final 2017 SAFE report for the GOA groundfish fisheries, dated November 2017 (see ADDRESSES). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the GOA ecosystem and the economic condition of the groundfish fisheries off Alaska. From these data and analyses, the Plan Team recommends—and the SSC sets—an OFL and ABC for each species or species group. The amounts proposed for the 2019 and 2020 OFLs and ABCs are based on the 2017 SAFE report. The AP and Council recommended that the proposed 2019 and 2020 TACs be set equal to proposed ABCs for all species and species groups, with the exception of the species categories further discussed below. The proposed OFLs, ABCs, and TACs could be changed in the final harvest specifications depending on the most recent scientific information contained in the final 2018 SAFE report. The draft stock assessments that will comprise, in part, the 2018 SAFE report are available at https://www.npfmc.org/fishery-management-plan-team/goa-bsai-groundfish-plan-team/. The final SAFE report will be available from the same source.

    In November 2018, the Plan Team will update the 2017 SAFE report to include new information collected during 2018, such as NMFS stock surveys, revised stock assessments, and catch data. The Plan Team will compile this information and present the draft 2018 SAFE report at the December 2018 Council meeting. At that meeting, the SSC and the Council will review the 2018 SAFE report, and the Council will approve the 2018 SAFE report. The Council will consider information in the 2018 SAFE report, recommendations from the November 2018 Plan Team meeting and December 2018 SSC and AP meetings, public testimony, and relevant written public comments in making its recommendations for the final 2019 and 2020 harvest specifications. Pursuant to § 679.20(a)(2) and (3), the Council could recommend adjusting the TACs if warranted based on the biological condition of groundfish stocks or a variety of socioeconomic considerations, or if required to cause the sum of TACs to fall within the optimum yield range.

    In previous years, the most significant changes (relative to the amount of assessed tonnage of fish) to the OFLs and ABCs from the proposed to the final harvest specifications have been based on the most recent NMFS stock surveys. These surveys provide updated estimates of stock biomass and spatial distribution, and changes to the models used for producing stock assessments. NMFS scientists presented updated and new survey results, potential changes to assessment models, and accompanying, preliminary stock estimates at the September 2018 Plan Team meeting, and the SSC reviewed this information at the October 2018 Council meeting. The species with possible significant model changes are demersal shelf rockfish, northern rockfish, thornyhead rockfish, and sharks. Model changes can result in changes to final OFLs, ABCs, and TACs.

    In November 2018, the Plan Team will consider updated stock assessments for groundfish, which will be included in the draft 2018 SAFE report. If the 2018 SAFE report indicates that the stock biomass trend is increasing for a species, then the final 2019 and 2020 harvest specifications for that species may reflect an increase from the proposed harvest specifications. Conversely, if the 2018 SAFE report indicates that the stock biomass trend is decreasing for a species, then the final 2019 and 2020 harvest specifications may reflect a decrease from the proposed harvest specifications.

    The proposed 2019 and 2020 OFLs, ABCs, and TACs are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. The FMP specifies the tiers to be used to compute OFLs and ABCs. The tiers applicable to a particular stock or stock complex are determined by the level of reliable information available to the fisheries scientists. This information is categorized into a successive series of six tiers to define OFL and ABC amounts, with Tier 1 representing the highest level of information quality available and Tier 6 representing the lowest level of information quality available. The Plan Team used the FMP tier structure to calculate OFLs and ABCs for each groundfish species. The SSC adopted the proposed 2019 and 2020 OFLs and ABCs recommended by the Plan Team for all groundfish species. The Council adopted the SSC's OFL and ABC recommendations and the AP's TAC recommendations. These amounts have changed from the final 2019 harvest specifications published in the Federal Register on March 1, 2018 (83 FR 8768) as a result of the removal of squid as a specified species. This results in an OFL reduction of 1,516 mt, and ABC and TAC reductions of 1,137 mt.

    Specification and Apportionment of TAC Amounts

    The Council recommended proposed 2019 and 2020 TACs that are equal to proposed ABCs for all species and species groups, with the exception of pollock in the Western and Central GOA and the West Yakutat District of the Eastern GOA, Pacific cod, shallow-water flatfish in the Western GOA, arrowtooth flounder, flathead sole in the Western and Central GOA, “other rockfish” in Southeast Outside (SEO) District, and Atka mackerel. The combined Western, Central, and West Yakutat pollock TACs and GOA Pacific cod TACs are set to account for the State of Alaska's (State's) guideline harvest levels (GHLs) for the State water pollock and Pacific cod fisheries so that the ABCs are not exceeded. The shallow-water flatfish, arrowtooth flounder, and flathead sole TACs are set to allow for increased harvest opportunities for these target species while conserving the halibut PSC limit for use in other fisheries. The “other rockfish” TAC is set to reduce the potential amount of discards of the species in that complex. The Atka mackerel TAC is set to accommodate incidental catch amounts in other fisheries. These reductions are described below.

    NMFS' proposed apportionments of groundfish species are based on the distribution of biomass among the regulatory areas under which NMFS manages the species. Additional regulations govern the apportionment of pollock, Pacific cod, and sablefish. Additional detail on these apportionments are described below, and briefly summarized here.

    The ABC for the pollock stock in the combined Western and Central Regulatory Areas and the West Yakutat District of the Eastern Regulatory Area (W/C/WYK) includes the amount for the GHL established by the State for the Prince William Sound (PWS) pollock fishery. The Plan Team, SSC, AP, and Council recommended that the sum of all State water and Federal water pollock removals from the GOA not exceed ABC recommendations. For 2019 and 2020, the SSC recommended and the Council recommended the combined W/C/WYK pollock ABC, including the amount to account for the State's PWS GHL. At the November 2017 Plan Team meeting, State fisheries managers recommended setting the PWS GHL at 2.5 percent of the annual W/C/WYK pollock ABC. For 2019, this yields a PWS pollock GHL of 2,664 mt, a decrease from the 2018 PWS GHL of 4,037 mt. After accounting for PWS GHL, the 2019 and 2020 pollock ABC for the combined W/C/WYK areas is then apportioned between four statistical areas (Areas 67, 620, 630, and 640) as both ABCs and TACs, as described below and detailed in Table 1. The total ABCs and TACs for the four statistical areas, plus the State GHL, do not exceed the combined W/C/WYK ABC. The proposed W/C/WYK 2019 and 2020 pollock ABC is 106,569 mt, and the proposed TAC is 103,905 mt.

    Apportionments of pollock to the W/C/WYK management areas are considered to be “apportionments of annual catch limit (ACLs)” rather than “ABCs.” This more accurately reflects that such apportionments address management, rather than biological or conservation, concerns. In addition, apportionments of the ACL in this manner allow NMFS to balance any transfer of TAC among Areas 67, 620, and 630 pursuant to § 679.20(a)(5)(iv)(B) to ensure that the combined W/C/WYK ACL, ABC, and TAC are not exceeded.

    NMFS proposes pollock TACs in the Western (Area 610), Central (Areas 620 and 630), and the West Yakutat District (Area 640) and the SEO District (Area 650) of the Eastern Regulatory Area of the GOA (see Table 1). NMFS also proposes seasonal apportionment of the annual pollock TAC in the Western and Central Regulatory Areas of the GOA between Statistical Areas 67, 620, and 630. These apportionments are divided equally among each of the following four seasons: the A season (January 20 through March 10), the B season (March 10 through May 31), the C season (August 25 through October 1), and the D season (October 1 through November 1) (§§ 679.23(d)(2)(i) through (iv), and 679.20(a)(5)(iv)(A) and (B)). Additional detail is provided below; Table 2 lists these amounts.

    The proposed 2019 and 2020 Pacific cod TACs are set to accommodate the State's GHLs for Pacific cod in State waters in the Western and Central Regulatory Areas, as well as in PWS. The Plan Team, SSC, AP, and Council recommended that the sum of all State water and Federal water Pacific cod removals from the GOA not exceed ABC recommendations. Therefore, the proposed 2019 and 2020 Pacific cod TACs are less than the proposed ABCs by the following amounts: (1) Western GOA, 2,290 mt; (2) Central GOA, 1,917 mt; and (3) Eastern GOA, 425 mt. These amounts reflect the State's 2019 and 2020 GHLs in these areas, which are 30 percent of the Western GOA proposed ABC, and 25 percent of the Eastern and Central GOA proposed ABCs.

    NMFS proposes Pacific cod TACs in the Western, Central, and Eastern GOA (see Table 1). NMFS also proposes seasonal apportionments of the Pacific cod TAC in the Western and Central Regulatory Areas. Sixty percent of the annual TAC is apportioned to the A season for hook-and-line, pot, and jig gear from January 1 through June 7, and for trawl gear from January 20 through June 10. Forty percent of the annual TAC is apportioned to the B season for jig gear from June 10 through December 31, for hook-and-line and pot gear from September 1 through December 31, and for trawl gear from September 1 through November 1 (§§ 679.23(d)(3) and 679.20(a)(12)). The Western and Central GOA Pacific cod TACs are allocated among various gear and operational sectors. Additional detail is provided below; Table 3 lists the amounts apportioned to each sector.

    The Council's recommendation for sablefish area apportionments takes into account the prohibition on the use of trawl gear in the SEO District of the Eastern Regulatory Area (§ 679.7(b)(1)) and makes available 5 percent of the combined Eastern Regulatory Area TACs to vessels using trawl gear for use as incidental catch in other trawl groundfish fisheries in the WYK District (§ 679.20(a)(4)(i)). Additional detail is provided below. Tables 4 and 5 list the proposed 2019 and 2020 allocations of the sablefish TAC to fixed gear and trawl gear in the GOA.

    For 2019 and 2020, the Council recommends and NMFS proposes the OFLs, ABCs, and TACs listed in Table 1. The proposed ABCs reflect harvest amounts that are less than the specified overfishing levels. Table 1 lists the proposed 2019 and 2020 OFLs, ABCs, TACs, and area apportionments of groundfish in the GOA. These amounts are consistent with the biological condition of groundfish stocks as described in the 2017 SAFE report, and adjusted for other biological and socioeconomic considerations, including maintaining the total TAC within the required OY range. The sum of the proposed TACs for all GOA groundfish is 375,280 mt for 2019 and 2020, which is within the OY range specified by the FMP. These proposed amounts and apportionments by area, season, and sector are subject to change pending consideration of the 2018 SAFE report and the Council's recommendations for the final 2019 and 2020 harvest specifications during its December 2018 meeting.

    Table 1—Proposed 2019 and 2020 OFLs, ABCs, and TACs of Groundfish for the Western/Central/West Yakutat, Western, Central, and Eastern Regulatory Areas, the West Yakutat and Southeast Outside Districts of the Eastern Regulatory Area, and Gulfwide District of the Gulf of Alaska [Values are rounded to the nearest metric ton] Species Area 1 OFL ABC TAC 2 Pollock 2 Shumagin (610) n/a 19,921 19,921 Chirikof (620) n/a 52,459 52,459 Kodiak (630) n/a 27,016 27,016 WYK (640) n/a 4,509 4,509 W/C/WYK (subtotal) 131,170 106,569 103,905 SEO (650) 11,697 8,773 8,773 Total 142,867 115,341 112,678 Pacific cod 3 W n/a 7,633 5,343 C n/a 7,667 5,750 E n/a 1,700 1,275 Total 21,412 17,000 12,368 Sablefish 4 W n/a 2,174 2,174 C n/a 7,260 7,260 WYK n/a 2,573 2,573 SEO n/a 4,187 4,187 E (WYK and SEO) (subtotal) n/a 6,760 6,760 Total 35,989 16,194 16,194 Shallow-water flatfish 5 W n/a 25,544 13,250 C n/a 25,655 25,655 WYK n/a 2,272 2,272 SEO n/a 1,951 1,951 Total 68,114 55,422 43,128 Deep-water flatfish 6 W n/a 416 416 C n/a 3,442 3,442 WYK n/a 3,279 3,279 SEO n/a 2,361 2,361 Total 11,431 9,499 9,499 Rex sole W n/a 2,909 2,909 C n/a 8,236 8,236 WYK n/a 1,657 1,657 SEO n/a 1,727 1,727 Total 17,692 14,529 14,529 Arrowtooth flounder W n/a 35,844 14,500 C n/a 70,700 48,000 WYK n/a 15,845 6,900 SEO n/a 22,845 6,900 Total 173,872 145,234 76,300 Flathead sole W n/a 13,222 8,650 C n/a 21,087 15,400 WYK n/a 2,013 2,013 SEO n/a 424 424 Total 44,822 36,746 26,487 Pacific ocean perch 7 W n/a 3,240 3,240 C n/a 19,678 19,678 WYK n/a 3,298 3,298 W/C/WYK 31,170 26,216 26,216 SEO 2,840 2,389 2,389 Total 34,010 28,605 28,605 Northern rockfish 8 W n/a 382 382 C n/a 2,965 2,965 E n/a 3 Total 3,984 3,350 3,347 Shortraker rockfish 9 W n/a 44 44 C n/a 305 305 E n/a 514 514 Total 1,151 863 863 Dusky rockfish 10 W n/a 135 135 C n/a 3,246 3,246 WYK n/a 215 215 SEO n/a 72 72 Total 4,488 3,668 3,668 Rougheye and blackspotted rockfish 11 W n/a 174 174 C n/a 550 550 E n/a 703 703 Total 1,715 1,427 1,427 Demersal shelf rockfish 12 SEO 394 250 250 Thornyhead rockfish 13 W n/a 344 344 C n/a 921 921 E n/a 773 773 Total 2,717 2,038 2,038 Other rockfish 14 15 W/C combined n/a 1,737 1,737 WYK n/a 368 368 SEO n/a 3,488 200 Total 7,356 5,593 2,305 Atka mackerel GW 6,200 4,700 3,000 Big skates 16 W n/a 504 504 C n/a 1,774 1,774 E n/a 570 570 Total 3,797 2,848 2,848 Longnose skates 17 W n/a 149 149 C n/a 2,804 2,804 E n/a 619 619 Total 4,763 3,572 3,572 Other skates 18 GW 1,845 1,384 1,384 Sculpins GW 6,958 5,301 5,301 Sharks GW 6,020 4,514 4,514 Octopuses GW 1,300 975 975 Total 19 602,897 479,050 375,280 1 Regulatory areas and districts are defined at § 679.2. (W=Western Gulf of Alaska; C=Central Gulf of Alaska; E=Eastern Gulf of Alaska; WYK=West Yakutat District; SEO=Southeast Outside District; GW=Gulf-wide). 2 The total for the W/C/WYK management area pollock ABC is 106,569 mt. After deducting 2.5 percent (2,664 mt) of that ABC for the State's pollock GHL fishery, the remaining pollock ABC of 103,905 mt (for the W/C/WYK management areas) is apportioned among four statistical areas (Areas 67, 620, 630, and 640). These apportionments are considered subarea ACLs, rather than ABCs, for specification and reapportionment purposes. The ACLs in Areas 610, 620, and 630 are further divided by season, as detailed in Table 2. In the West Yakutat (Area 640) and Southeast Outside (Area 650) Districts of the Eastern Regulatory Area, pollock is not divided into seasonal allowances. 3 The annual Pacific cod TAC is apportioned 60 percent to the A season and 40 percent to the B season in the Western and Central Regulatory Areas of the GOA. Pacific cod TAC in the Eastern Regulatory Area of the GOA is allocated 90 percent to vessels harvesting Pacific cod for processing by the inshore component and 10 percent to vessels harvesting Pacific cod for processing by the offshore component. Table 3 lists the proposed 2019 and 2020 Pacific cod seasonal apportionments. 4 Sablefish is allocated to fixed and trawl gear in 2019 and trawl gear in 2020. Tables 4 and 5 list the proposed 2019 and 2020 allocations of sablefish TACs. 5 “Shallow-water flatfish” means flatfish not including “deep-water flatfish,” flathead sole, rex sole, or arrowtooth flounder. 6 “Deep-water flatfish” means Dover sole, Greenland turbot, Kamchatka flounder, and deep-sea sole. 7 “Pacific ocean perch” means Sebastes alutus. 8 “Northern rockfish” means Sebastes polyspinous. For management purposes the 3 mt apportionment of ABC to the WYK District of the Eastern Regulatory Area has been included in the other rockfish species group. 9 “Shortraker rockfish” means Sebastes borealis. 10 “Dusky rockfish” means Sebastes variabilis. 11 “Rougheye and blackspotted rockfish” means Sebastes aleutianus (rougheye) and Sebastes melanostictus (blackspotted). 12 “Demersal shelf rockfish” means Sebastes pinniger (canary), S. nebulosus (china), S. caurinus (copper), S. maliger (quillback), S. helvomaculatus (rosethorn), S. nigrocinctus (tiger), and S. ruberrimus (yelloweye). 13 “Thornyhead rockfish” means Sebastes species. 14 “Other rockfish means Sebastes aurora (aurora), S. melanostomus (blackgill), S. paucispinis (bocaccio), S. goodei (chilipepper), S. crameri (darkblotch), S. elongatus (greenstriped), S. variegatus (harlequin), S. wilsoni (pygmy), S. babcocki (redbanded), S. proriger (redstripe), S. zacentrus (sharpchin), S. jordani (shortbelly), S. brevispinis (silvergray), S. diploproa (splitnose), S. saxicola (stripetail), S. miniatus (vermilion), S. reedi (yellowmouth), S. entomelas (widow), and S. flavidus (yellowtail). In the Eastern GOA only, “other rockfish” also includes northern rockfish (S. polyspinous). 15 “Other rockfish” in the Western and Central Regulatory Areas and in the West Yakutat District of the Eastern Regulatory Area means all rockfish species included in the “other rockfish” and demersal shelf rockfish categories. The “other rockfish” species group in the SEO District only includes other rockfish. 16 “Big skates” means Raja binoculata. 17 “Longnose skates” means Raja rhina. 18 “Other skates” means Bathyraja and Raja spp. 19 On July 6, 2018, the final rule to implement Amendment 106 to the FMP was published (83 FR 31460). This rule reclassified squid in the FMP as an “Ecosystem Component” species, which is a category of non-target species that are not in need of conservation and management. NMFS will no longer set an OFL, ABC, and TAC for squid in the GOA groundfish harvest specifications, beginning with the proposed 2019 and 2020 harvest specifications. Proposed Apportionment of Reserves

    Section 679.20(b)(2) requires NMFS to set aside 20 percent of each TAC for pollock, Pacific cod, flatfish, sculpins, sharks, and octopuses in reserves for possible apportionment at a later date during the fishing year. Section 679.20(b)(3) authorizes NMFS to reapportion all or part of these reserves. In 2018, NMFS reapportioned all of the reserves in the final harvest specifications. For 2019 and 2020, NMFS proposes reapportionment of each of the reserves for pollock, Pacific cod, flatfish, sculpins, sharks, and octopuses back into the original TAC from which the reserve was derived. NMFS expects, based on recent harvest patterns, that such reserves are not necessary and the entire TAC for each of these species will be caught. The TACs in Table 1 reflect this proposed reapportionment of reserve amounts for these species and species groups, i.e., each proposed TAC for the above-mentioned species or species groups contains the full TAC recommended by the Council.

    Proposed Apportionments of Pollock TAC Among Seasons and Regulatory Areas, and Allocations for Processing by Inshore and Offshore Components

    In the GOA, pollock is apportioned by season and area, and is further allocated for processing by inshore and offshore components. Pursuant to § 679.20(a)(5)(iv)(B), the annual pollock TAC specified for the Western and Central Regulatory Areas of the GOA is apportioned into four equal seasonal allowances of 25 percent. As established by § 679.23(d)(2)(i) through (iv), the A, B, C, and D season allowances are available from January 20 through March 7, March 10 through May 31, August 25 through October 1, and October 1 through November 1, respectively.

    Pollock TACs in the Western and Central Regulatory Areas of the GOA are apportioned among Statistical Areas 67, 620, and 630 in proportion to the distribution of pollock biomass, pursuant to § 679.20(a)(5)(iv)(A). In the A and B seasons, the apportionments had historically, since 2000, been based on the proportional distribution of pollock biomass based on the four most recent NMFS winter surveys. In the C and D seasons, the apportionments were in proportion to the distribution of pollock biomass based on the four most recent NMFS summer surveys. For 2019 and 2020, the Council recommends, and NMFS proposes, following the methodology that was used for the 2018 and 2019 harvest specifications. This methodology averages the winter and summer distribution of pollock in the Central Regulatory Area for the A season instead of using the distribution based on only the winter surveys. The average is intended to reflect the best available information about migration patterns, distribution of pollock, and the performance of the fishery in the area during the A season. For the A season, the apportionment is based on the proposed adjusted estimate of the relative distribution of pollock biomass of approximately 3 percent, 73 percent, and 24 percent in Statistical Areas 67, 620, and 630, respectively. For the B season, the apportionment is based on the relative distribution of pollock biomass of approximately 3 percent, 85 percent, and 11 percent in Statistical Areas 67, 620, and 630, respectively. For the C and D seasons, the apportionment is based on the relative distribution of pollock biomass of approximately 37 percent, 27 percent, and 37 percent in Statistical Areas 67, 620, and 630, respectively. The pollock chapter of the 2017 SAFE report (see ADDRESSES) contains a comprehensive description of the apportionment process and reasons for the minor changes from past apportionments.

    Within any fishing year, the amount by which a seasonal allowance is underharvested or overharvested may be added to, or subtracted from, subsequent seasonal allowances in a manner to be determined by the Regional Administrator (§ 679.20(a)(5)(iv)(B)). The rollover amount is limited to 20 percent of the seasonal TAC apportionment for the statistical area. Any unharvested pollock above the 20-percent limit could be further distributed to the subsequent season in other statistical areas, in proportion to the estimated biomass and in an amount no more than 20 percent of the seasonal TAC apportionment in those statistical areas (§ 679.20(a)(5)(iv)(B)). The proposed 2019 and 2020 pollock TACs in the WYK District of 4,509 mt and the SEO District of 8,773 mt are not allocated by season.

    Table 2 lists the proposed 2019 and 2020 seasonal biomass distribution of pollock in the Western and Central Regulatory Areas, area apportionments, and seasonal allowances. The amounts of pollock for processing by the inshore and offshore components are not shown. Section 679.20(a)(6)(i) requires the allocation of 100 percent of the pollock apportionments in all regulatory areas and all seasonal allowances to vessels catching pollock for processing by the inshore component after subtraction of amounts projected by the Regional Administrator to be caught by, or delivered to, the offshore component incidental to directed fishing for other groundfish species. Thus, the amount of pollock available for harvest by vessels harvesting pollock for processing by the offshore component is that amount that will be taken as incidental catch during directed fishing for groundfish species other than pollock, up to the maximum retainable amounts allowed by §  679.20(e) and (f). At this time, the incidental catch amounts of pollock are unknown and will be determined during the 2019 fishing year during the course of fishing activities by the offshore component.

    Table 2—Proposed 2019 and 2020 Distribution of Pollock in the Central and Western Regulatory Areas of the Gulf of Alaska; Seasonal Biomass Distribution, Area Apportionments; and Seasonal Allowances of Annual TAC 1 [Values are rounded to the nearest metric ton] Season 2 Shumagin Chirikof Kodiak Total 3 (Area 610) (Area 620) (Area 630) A (Jan 20-Mar 10) 869 (3.50%) 18,025 (72.54%) 5,955 (23.97%) 24,849 B (Mar 10-May 31) 869 (3.50%) 21,219 (85.39%) 2,761 (11.11%) 24,849 C (Aug 25-Oct 1) 9,091 (36.59%) 6,608 (26.59%) 9,150 (36.82%) 24,849 D (Oct 1-Nov 1) 9,091 (36.59%) 6,608 (26.59%) 9,150 (36.82%) 24,849 Annual Total 19,921 52,459 27,016 99,395 1 Area apportionments and seasonal allowances may not total precisely due to rounding. 2 As established by § 679.23(d)(2)(i) through (iv), the A, B, C, and D season allowances are available from January 20 through March 10, March 10 through May 31, August 25 through October 1, and October 1 through November 1, respectively. The amounts of pollock for processing by the inshore and offshore components are not shown in this table. 3 The West Yakutat and Southeast Outside District pollock TACs are not allocated by season and are not included in the total pollock TACs shown in this table. Proposed Annual and Seasonal Apportionments of Pacific Cod TAC

    Pursuant to § 679.20(a)(12)(i), NMFS proposes allocations for the 2019 and 2020 Pacific cod TACs in the Western and Central Regulatory Areas of the GOA among gear and operational sectors. NMFS also proposes allocating the 2019 and 2020 Pacific cod TACs annually between the inshore and offshore components in the Eastern Regulatory Area of the GOA (§ 679.20(a)(6)(ii)). In the Central GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear, and then among catcher vessels (CVs) less than 50 feet in length overall using hook-and-line gear, CVs equal to or greater than 50 feet in length overall using hook-and-line gear, catcher/processors (C/Ps) using hook-and-line gear, CVs using trawl gear, C/Ps using trawl gear, and vessels using pot gear (§ 679.20(a)(12)(i)(B)). In the Western GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear, and then among CVs using hook-and-line gear, C/Ps using hook-and-line gear, CVs using trawl gear, C/Ps using trawl gear, and vessels using pot gear (§ 679.20(a)(12)(i)(A)). The overall seasonal apportionments in the Western and Central GOA are 60 percent of the annual TAC to the A season and 40 percent of the annual TAC to the B season.

    Under § 679.20(a)(12)(ii), any overage or underage of the Pacific cod allowance from the A season may be subtracted from, or added to, the subsequent B season allowance. In addition, any portion of the hook-and-line, trawl, pot, or jig sector allocations that is determined by NMFS as likely to go unharvested by a sector may be reallocated to other sectors for harvest during the remainder of the fishing year.

    Pursuant to § 679.20(a)(12)(i)(A) and (B), a portion of the annual Pacific cod TACs in the Western and Central GOA will be allocated to vessels with a Federal fisheries permit that use jig gear before the TACs are apportioned among other non-jig sectors. In accordance with the FMP, the annual jig sector allocations may increase to up to 6 percent of the annual Western and Central GOA Pacific cod TACs, depending on the annual performance of the jig sector (see Table 1 of Amendment 83 to the FMP for a detailed discussion of the jig sector allocation process (76 FR 74670, December 1, 2011)). Jig sector allocation increases are established for a minimum of 2 years.

    NMFS has evaluated the historical harvest performance of the jig sector in the Western and Central GOA, and is establishing the proposed 2019 and 2020 Pacific cod apportionments to this sector based on its historical harvest performance through 2017. For 2019 and 2020, NMFS proposes that the jig sector receive 1.5 percent of the annual Pacific cod TAC in the Western GOA. This includes a base allocation of 1.5 percent and no additional performance increase. NMFS also proposes that the jig sector receive 1.0 percent of the annual Pacific cod TAC in the Central GOA. This includes a base allocation of 1.0 percent and no additional performance increase. The 2014-2017 Pacific cod jig allocations, catch, and percent allocation changes are listed in Figure 1.

    Figure 1—Summary of Western GOA and Central GOA Pacific Cod Catch by Jig Gear in 2014 Through 2017, and Corresponding Percent Allocation Changes Area Year Initial percent of TAC
  • (%)
  • Initial TAC
  • allocation
  • Catch
  • (mt)
  • Percent of
  • initial
  • allocation
  • (%)
  • >90% of initial allocation? Change to percent allocation
    WGOA 2014 2.5 573 785 137 Y Increase 1%. 2015 3.5 948 55 6 N None. 2016 3.5 992 52 5 N Decrease 1%. 2017 2.5 635 49 8 N Decrease 1%. CGOA 2014 2.0 797 262 33 N Decrease 1%. 2015 1.0 460 355 77 N None. 2016 1.0 370 267 72 N None. 2017 1.0 331 18 6 N None.

    NMFS will re-evaluate the annual 2018 harvest performance of the jig sector in the Western and Central GOA when the 2018 fishing year is complete to determine whether to change the jig sector allocations proposed by this action in conjunction with the final 2019 and 2020 harvest specifications. The current catch through October 2018 by the Western GOA jig sector indicates that the Pacific cod allocation percentage to this sector would probably increase by 1 percent in 2019 (from 1.5 percent to 2.5 percent). Also, the current catch by the Central GOA jig sector indicates that this sector's Pacific cod allocation percentage would not change in 2019, and would remain at 1 percent. NMFS prohibited directed fishing for Pacific cod by vessels using jig gear in the Central GOA in 2018, due to the small apportionment of Pacific cod to this sector and the potential for the Central GOA jig sector to exceed the TAC, were directed fishing to be open. The jig sector allocations for the Western and Central GOA are further apportioned between the A (60 percent) and B (40 percent) seasons (§§ 679.20(a)(12)(i) and 679.23(d)(3)(iii)).

    Table 3 lists the seasonal apportionments and allocations of the proposed 2019 and 2020 Pacific cod TACs.

    Table 3—Proposed 2019 and 2020 Seasonal Apportionments and Allocations of Pacific Cod TAC Amounts in the GOA; Allocations in the Western GOA and Central GOA Sectors, and the Eastern GOA for Processing by the Inshore and Offshore Components [Values are rounded to the nearest metric ton] Regulatory area and sector Annual
  • allocation
  • (mt)
  • A Season Sector
  • percentage of
  • annual non-jig TAC
  • Seasonal
  • allowances
  • (mt)
  • B Season Sector
  • percentage of
  • annual non-jig TAC
  • Seasonal
  • allowances
  • (mt)
  • Western GOA Jig (1.5% of TAC) 80 N/A 48 N/A 23 Hook-and-line CV 74 0.70 37 0.70 37 Hook-and-line C/P 1,042 10.90 574 8.90 468 Trawl CV 2,021 27.70 1,458 10.70 563 Trawl C/P 126 0.90 47 1.50 79 Pot CV and Pot C/P 2,000 19.80 1,042 18.20 958 Total 5,343 60.00 3,206 40.00 2,137 Central GOA Jig (1.0% of TAC) 58 N/A 35 N/A 32 Hook-and-line <50 CV 831 9.32 530 5.29 301 Hook-and-line ≥50 CV 382 5.61 319 1.10 62 Hook-and-line C/P 291 4.11 234 1.00 57 Trawl CV 1 2,367 21.13 1,203 20.45 1,164 Trawl C/P 239 2.00 114 2.19 125 Pot CV and Pot C/P 1,583 17.83 1,015 9.97 568 Total 5,750 60.00 3,450 40.00 2,300 Eastern GOA Inshore (90% of Annual TAC) Offshore (10% of Annual TAC) 1,275 1,148 128 1 Trawl catcher vessels participating in Rockfish Program cooperatives receive 3.81 percent, or 219 mt, of the annual Central GOA Pacific cod TAC. This apportionment percentage is specified in Table 28c to 50 CFR part 679. This apportionment is deducted from the Trawl CV B season allowance (see Table 8: Apportionments of Rockfish Secondary Species in the Central GOA).
    Proposed Allocations of the Sablefish TAC Amounts to Vessels Using Fixed Gear and Trawl Gear

    Section 679.20(a)(4)(i) and (ii) requires allocations of sablefish TACs for each of the regulatory areas and districts to fixed and trawl gear. In the Western and Central Regulatory Areas, 80 percent of each TAC is allocated to fixed gear, and 20 percent of each TAC is allocated to trawl gear. In the Eastern Regulatory Area, 95 percent of the TAC is allocated to fixed gear, and 5 percent is allocated to trawl gear. The trawl gear allocation in the Eastern Regulatory Area may only be used to support incidental catch of sablefish, while directed fishing for other target species using trawl gear (§ 679.20(a)(4)(i)).

    In recognition of the prohibition against trawl gear in the SEO District of the Eastern Regulatory Area, the Council recommended and NMFS proposes specifying for incidental catch the allocation of 5 percent of the combined Eastern Regulatory Area sablefish TAC to trawl gear in the WYK District. The remainder of the WYK sablefish TAC is available to vessels using fixed gear. This proposed action allocates 100 percent of the sablefish TAC in the SEO District to vessels using fixed gear. This results in a proposed 2019 allocation of 338 mt to trawl gear and 2,235 mt to fixed gear in the WYK District, a proposed 2019 allocation of 4,187 mt to fixed gear in the SEO District, and a proposed 2020 allocation of 338 mt to trawl gear in the WYK District. Table 4 lists the allocations of the proposed 2019 sablefish TACs to fixed and trawl gear. Table 5 lists the allocations of the proposed 2020 sablefish TACs to trawl gear.

    The Council recommended that the trawl sablefish TAC be established for 2 years so that retention of incidental catch of sablefish by trawl gear could commence in January in the second year of the groundfish harvest specifications. Tables 4 and 5 list the proposed 2019 and 2020 trawl allocations, respectively.

    The Council recommended that the fixed gear sablefish TAC be established annually to ensure that the sablefish IFQ fishery is conducted concurrently with the halibut IFQ fishery and is based on the most recent survey information. Since there is an annual assessment for sablefish and the final harvest specifications are expected to be published before the IFQ season begins (typically, in early March), the Council recommended that the fixed gear sablefish TAC be set annually, rather than for 2 years, so that the best available scientific information could be considered in establishing the sablefish ABCs and TACs. Accordingly, Table 4 lists the proposed 2019 fixed gear allocations, and the 2020 fixed gear allocations will be specified in the 2020 and 2021 harvest specifications.

    With the exception of the trawl allocations that are provided to the Rockfish Program cooperatives (see Table 28c to 50 CFR part 679), directed fishing for sablefish with trawl gear is closed during the fishing year. Also, fishing for groundfish with trawl gear is prohibited prior to January 20. Therefore, it is not likely that the sablefish allocation to trawl gear would be reached before the effective date of the final 2019 and 2020 harvest specifications.

    Table 4—Proposed 2019 Sablefish TAC Amounts in the Gulf of Alaska and Allocations to Fixed and Trawl Gear [Values are rounded to the nearest metric ton] Area/district TAC Fixed gear
  • allocation
  • Trawl
  • allocation
  • Western 2,174 1,739 435 Central 1 7,260 5,808 1,452 West Yakutat 2 2,573 2,235 338 Southeast Outside 4,187 4,187 0 Total 16,194 13,969 2,225 1 The trawl allocation to the Central Regulatory Area is further reduced by the sablefish apportioned to the Rockfish Program cooperatives (747 mt). See Table 8: Apportionments of Rockfish Secondary Species in the Central GOA. This results in 705 mt being available for the non-Rockfish Program trawl fisheries. 2 The proposed trawl allocation is based on allocating 5 percent of the combined Eastern Regulatory Area (West Yakutat and Southeast Outside Districts combined) sablefish TAC to trawl gear in the West Yakutat District.
    Table 5—Proposed 2020 Sablefish TAC Amounts in the Gulf of Alaska and Allocation to Trawl Gear 1 [Values are rounded to the nearest metric ton] Area/district TAC Fixed gear
  • allocation
  • Trawl
  • allocation
  • Western 2,174 n/a 435 Central 2 7,260 n/a 1,452 West Yakutat 3 2,573 n/a 338 Southeast Outside 4,187 n/a 0 Total 16,194 n/a 2,225 1 The Council recommended that harvest specifications for the fixed gear sablefish Individual Fishing Quota fisheries be limited to 1 year. 2 The trawl allocation to the Central Regulatory Area is further reduced by the sablefish apportioned to the Rockfish Program cooperatives (747 mt). See Table 8: Apportionments of Rockfish Secondary Species in the Central GOA. This results in 705 mt being available for the non-Rockfish Program trawl fisheries. 3 The proposed trawl allocation is based on allocating 5 percent of the combined Eastern Regulatory Area (West Yakutat and Southeast Outside Districts combined) sablefish TAC to trawl gear in the West Yakutat District.
    Proposed Allocations, Apportionments, and Sideboard Limitations for the Rockfish Program

    These proposed 2019 and 2020 harvest specifications for the GOA include the fishery cooperative allocations and sideboard limitations established by the Rockfish Program. Program participants are primarily trawl CVs and trawl C/Ps, with limited participation by vessels using longline gear. The Rockfish Program assigns quota share and cooperative quota to participants for primary species (Pacific ocean perch, northern rockfish, and dusky rockfish) and secondary species (Pacific cod, rougheye rockfish, sablefish, shortraker rockfish, and thornyhead rockfish), allows a participant holding a license limitation program (LLP) license with rockfish quota share to form a rockfish cooperative with other persons, and allows holders of C/P LLP licenses to opt out of the fishery. The Rockfish Program also has an entry level fishery for rockfish primary species for vessels using longline gear. Longline gear includes hook-and-line, jig, troll, and handline gear.

    Under the Rockfish Program, rockfish primary species in the Central GOA are allocated to participants after deducting for incidental catch needs in other directed groundfish fisheries (§ 679.81(a)(2)). Participants in the Rockfish Program also receive a portion of the Central GOA TAC of specific secondary species. Besides groundfish species, the Rockfish Program allocates a portion of the halibut PSC limit (191 mt) from the third season deep-water species fishery allowance for the GOA trawl fisheries to Rockfish Program participants (§ 679.81(d) and Table 28d to 50 CFR part 679). The Rockfish Program also establishes sideboard limits to restrict the ability of harvesters that operate under the Rockfish Program to increase their participation in other, non-Rockfish Program fisheries. These restrictions, as well as halibut PSC limits, are discussed in a subsequent section titled “Rockfish Program Groundfish Sideboard and Halibut PSC Limitations.”

    Section 679.81(a)(2)(ii) and Table 28e to 50 CFR part 679 require allocations of 5 mt of Pacific ocean perch, 5 mt of northern rockfish, and 50 mt of dusky rockfish to the entry level longline fishery in 2019 and 2020. The allocation for the entry level longline fishery may increase incrementally each year if the catch exceeds 90 percent of the allocation of a species. The incremental increase in the allocation would continue each year until it reaches the maximum percentage of the TAC for that species. In 2018, the catch for all three primary species did not exceed 90 percent of any allocated rockfish species. Therefore, NMFS is not proposing any increases to the entry level longline fishery 2019 and 2020 allocations in the Central GOA. The remainder of the TACs for the rockfish primary species would be allocated to the CV and C/P cooperatives (§ 679.81(a)(2)(iii)). Table 6 lists the allocations of the proposed 2019 and 2020 TACs for each rockfish primary species to the entry level longline fishery, the potential incremental increases for future years, and the maximum percentages of the TAC for the entry level longline fishery.

    Table 6—Proposed 2019 and 2020 Allocations of Rockfish Primary Species to the Entry Level Longline Fishery in the Central Gulf of Alaska Rockfish primary species 2019 and 2020
  • allocations
  • Incremental increase in 2020 if ≥90 percent of 2019 allocation is harvested Up to maximum percent of each TAC of:
    Pacific ocean perch 5 metric tons 5 metric tons 1% Northern rockfish 5 metric tons 5 metric tons 2% Dusky rockfish 50 metric tons 20 metric tons 5%

    Section 679.81 requires allocations of rockfish primary species among various sectors of the Rockfish Program. Table 7 lists the proposed 2019 and 2020 allocations of rockfish primary species in the Central GOA to the entry level longline fishery, and rockfish CV and C/P cooperatives in the Rockfish Program. NMFS also proposes setting aside incidental catch amounts (ICAs) for other directed fisheries in the Central GOA of 4,000 mt of Pacific ocean perch, 300 mt of northern rockfish, and 250 mt of dusky rockfish. These amounts are based on recent average incidental catches in the Central GOA by other groundfish fisheries.

    Allocations among vessels belonging to CV or C/P cooperatives are not included in these proposed harvest specifications. Rockfish Program applications for CV cooperatives and C/P cooperatives are not due to NMFS until March 1 of each calendar year; therefore, NMFS cannot calculate 2019 and 2020 allocations in conjunction with these proposed harvest specifications. NMFS will post the 2019 allocations on the Alaska Region website at http://alaskafisheries.noaa.gov/fisheries/central-goa-rockfish-program when they become available after March 1.

    Table 7—Proposed 2019 and 2020 Allocations of Rockfish Primary Species in the Central Gulf of Alaska to the Entry Level Longline Fishery and Rockfish Cooperatives in the Rockfish Program [Values are rounded to the nearest metric ton] Rockfish primary species Central GOA TAC Incidental catch
  • allowance
  • (ICA)
  • TAC minus ICA Allocation to
  • the entry level
  • longline 1
  • fishery
  • Allocation to the rockfish cooperatives 2
    Pacific ocean perch 19,678 4,000 15,678 5 15,673 Northern rockfish 2,965 300 2,665 5 2,660 Dusky rockfish 3,246 250 2,996 50 2,946 Total 25,889 4,550 21,339 60 21,279 1 Longline gear includes hook-and-line, jig, troll, and handline gear (§ 679.2). 2 Rockfish cooperatives include vessels in CV and C/P cooperatives (§ 679.81).

    Section 679.81(c) and Table 28c to 50 CFR part 679 requires allocations of rockfish secondary species to CV and C/P cooperatives in the Central GOA. CV cooperatives receive allocations of Pacific cod, sablefish from the trawl gear allocation, and thornyhead rockfish. C/P cooperatives receive allocations of sablefish from the trawl allocation, rougheye rockfish, shortraker rockfish, and thornyhead rockfish. Table 8 lists the apportionments of the proposed 2019 and 2020 TACs of rockfish secondary species in the Central GOA to CV and C/P cooperatives.

    Table 8—Proposed 2019 and 2020 Apportionments of Rockfish Secondary Species in the Central GOA to Catcher Vessel and Catcher/Processor Cooperatives [Values are in metric tons] Rockfish secondary species Central GOA annual TAC Catcher vessel cooperatives Percentage of TAC Apportionment (mt) Catcher/processor
  • cooperatives
  • Percentage of TAC Apportionment (mt)
    Pacific cod 5,750 3.81 219 0.0 0 Sablefish 7,260 6.78 492 3.51 255 Shortraker rockfish 305 0.0 0 40.00 122 Rougheye rockfish 550 0.0 0 58.87 324 Thornyhead rockfish 921 7.84 72 26.50 244
    Halibut PSC Limits

    Section 679.21(d) establishes annual halibut PSC limit apportionments to trawl and hook-and-line gear, and authorizes the establishment of apportionments for pot gear. In October 2018, the Council recommended proposed halibut PSC limits of 1,706 mt for trawl gear, 257 mt for hook-and-line gear, and 9 mt for the demersal shelf rockfish (DSR) fishery in the SEO District.

    The DSR fishery in the SEO District is defined at § 679.21(d)(2)(ii)(A). This fishery is apportioned 9 mt of the halibut PSC limit in recognition of its small-scale harvests of groundfish. NMFS estimates low halibut bycatch in the DSR fishery because (1) The duration of the DSR fisheries and the gear soak times are short, (2) the DSR fishery occurs in the winter when there is less overlap in the distribution of DSR and halibut, and (3) the directed commercial DSR fishery has a low DSR TAC. The Alaska Department of Fish and Game sets the commercial GHL for the DSR fishery after deducting (1) estimates of DSR incidental catch in all fisheries (including halibut and subsistence); and (2) the allocation to the DSR sport fish fishery. Of the 250 mt TAC for DSR in 2018, 50 mt were available for directed fishing by the DSR commercial fishery, of which 26 mt were harvested (through November 6, 2018).

    The FMP authorizes the Council to exempt specific gear from the halibut PSC limits. NMFS, after consultation with the Council, proposes to exempt pot gear, jig gear, and the sablefish IFQ hook-and-line gear fishery categories from the non-trawl halibut PSC limit for 2019 and 2020. The Council recommended, and NMFS is proposing, these exemptions because (1) pot gear fisheries have low annual halibut bycatch mortality; (2) IFQ program regulations prohibit discard of halibut if any halibut IFQ permit holder on board a CV holds unused halibut IFQ for that vessel category and the IFQ regulatory area in which the vessel is operating (§ 679.7(f)(11)); (3) some sablefish IFQ permit holders hold halibut IFQ permits and are therefore required to retain the halibut they catch while fishing sablefish IFQ; and (4) NMFS estimates negligible halibut mortality for the jig gear fisheries given the small amount of groundfish harvested by jig gear, the selective nature of jig gear, and the high survival rates of halibut caught and released with jig gear.

    The best available information on estimated halibut bycatch consists of data collected by fisheries observers during 2018. The calculated halibut bycatch mortality through October 30, 2018, is 1,037 mt for trawl gear and 44 mt for hook-and-line gear for a total halibut mortality of 1,081 mt. This halibut mortality was calculated using groundfish and halibut catch data from the NMFS Alaska Region's catch accounting system. This accounting system contains historical and recent catch information compiled from each Alaska groundfish fishery.

    Section 679.21(d)(4)(i) and (ii) authorizes NMFS to seasonally apportion the halibut PSC limits after consultation with the Council. The FMP and regulations require that the Council and NMFS consider the following information in seasonally apportioning halibut PSC limits: (1) Seasonal distribution of halibut, (2) seasonal distribution of target groundfish species relative to halibut distribution, (3) expected halibut bycatch needs on a seasonal basis relative to changes in halibut biomass and expected catch of target groundfish species, (4) expected bycatch rates on a seasonal basis, (5) expected changes in directed groundfish fishing seasons, (6) expected actual start of fishing effort, and (7) economic effects of establishing seasonal halibut allocations on segments of the target groundfish industry. Based on public comment and the information presented in the 2018 SAFE report, the Council may recommend, or NMFS may make changes to the seasonal, gear-type, or fishery category apportionments of halibut PSC limits for the final 2019 and 2020 harvest specifications pursuant to § 679.21(d)(1) and (d)(4).

    The final 2018 and 2019 harvest specifications (83 FR 8768, March 1, 2018) summarized the Council's and NMFS' findings with respect to halibut PSC for each of these FMP considerations. The Council's and NMFS' findings for 2019 are unchanged from 2018. Table 9 lists the proposed 2019 and 2020 Pacific halibut PSC limits, allowances, and apportionments. The halibut PSC limits in these tables reflect the halibut PSC limits set forth at § 679.21(d)(2) and (3). Section 679.21(d)(4)(iii) and (iv) specifies that any underages or overages of a seasonal apportionment of a halibut PSC limit will be added to or deducted from the next respective seasonal apportionment within the fishing year.

    Table 9—Proposed 2019 and 2020 Pacific Halibut PSC Limits, Allowances, and Apportionments [Values are in metric tons] Trawl gear Season Percent Amount Hook-and-line gear 1 Other than DSR Season Percent Amount DSR Season Amount January 20-April 1 27.5 469 January 1-June 10 86 221 January 1-December 31 9 April 1-July 1 20 341 June 10-September 1 2 5 July 1-September 1 30 512 September 1-December 31 12 31 September 1-October 1 7.5 128 October 1-December 31 15 256 Total 1,706 257 9 1 The Pacific halibut prohibited species catch (PSC) limit for hook-and-line gear is allocated to the demersal shelf rockfish (DSR) fishery and fisheries other than DSR. The hook-and-line sablefish fishery is exempt from halibut PSC limits, as are pot and jig gear for all groundfish fisheries.

    Section 679.21(d)(3)(ii) authorizes further apportionment of the trawl halibut PSC limit as bycatch allowances to trawl fishery categories listed in § 679.21(d)(3)(iii). The annual apportionments are based on each category's proportional share of the anticipated halibut bycatch mortality during a fishing year and optimization of the total amount of groundfish harvest under the halibut PSC limit. The fishery categories for the trawl halibut PSC limits are (1) a deep-water species fishery, composed of sablefish, rockfish, deep-water flatfish, rex sole, and arrowtooth flounder; and (2) a shallow-water species fishery, composed of pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, and “other species” (sculpins, sharks, squids, and octopuses) (§ 679.21(d)(3)(iii)). Halibut mortality incurred while directed fishing for skates with trawl gear accrues towards the shallow-water species fishery halibut PSC limit (69 FR 26320, May 12, 2004).

    NMFS will combine available trawl halibut PSC limit apportionments in part of the second season deep-water and shallow-water fisheries for use in either fishery from May 15 through June 30 (§ 679.21(d)(4)(iii)(D)). This is intended to maintain groundfish harvest while minimizing halibut bycatch by these sectors to the extent practicable. This provides the deep-water and shallow-water trawl fisheries additional flexibility and the incentive to participate in fisheries at times of the year that may have lower halibut PSC rates relative to other times of the year.

    Table 10 lists the proposed 2019 and 2020 seasonal apportionments of trawl halibut PSC limits between the trawl gear deep-water and the shallow-water species fisheries.

    Table 28d to 50 CFR part 679 specifies the amount of the trawl halibut PSC limit that is assigned to the CV and C/P sectors that are participating in the Central GOA Rockfish Program. This includes 117 mt of halibut PSC limit to the CV sector and 74 mt of halibut PSC limit to the C/P sector. These amounts are allocated from the trawl deep-water species fishery's halibut PSC third seasonal apportionment.

    Section 679.21(d)(4)(iii)(B) limits the amount of the halibut PSC limit allocated to Rockfish Program participants that could be re-apportioned to the general GOA trawl fisheries to no more than 55 percent of the unused annual halibut PSC apportioned to Rockfish Program participants. The remainder of the unused Rockfish Program halibut PSC limit is unavailable for use by any person for the remainder of the fishing year (§ 679.21(d)(4)(iii)(C)).

    Table 10—Proposed 2019 and 2020 Seasonal Apportionments of the Pacific Halibut PSC Limit Apportioned Between the Trawl Gear Shallow-Water and Deep-Water Species Fisheries [Values are in metric tons] Season Shallow-water Deep-water 1 Total January 20-April 1 384 85 469 April 1-July 1 85 256 341 July 1-September 1 171 341 512 September 1-October 1 128 Any remainder 128 Subtotal, January 20-October 1 768 682 1,450 October 1-December 31 2 256 Total 1,706 1 Vessels participating in cooperatives in the Rockfish Program will receive 191 mt of the third season (July 1 through September 1) deep-water species fishery halibut PSC apportionment. 2 There is no apportionment between trawl shallow-water and deep-water species fisheries during the fifth season (October 1 through December 31).

    Section 679.21(d)(2) requires that the “other hook-and-line fishery” halibut PSC limit apportionment to vessels using hook-and-line gear must be divided between CVs and C/Ps. NMFS must calculate the halibut PSC limit apportionments for the entire GOA to hook-and-line CVs and C/Ps in accordance with § 679.21(d)(2)(iii) in conjunction with these harvest specifications. A comprehensive description and example of the calculations necessary to apportion the “other hook-and-line fishery” halibut PSC limit between the hook-and-line CV and C/P sectors were included in the proposed rule to implement Amendment 83 to the FMP (76 FR 44700, July 26, 2011) and are not repeated here.

    For 2019 and 2020, NMFS proposes annual halibut PSC limit apportionments of 120 mt and 137 mt to the hook-and-line CV and hook-and-line C/P sectors, respectively. The 2019 and 2020 annual halibut PSC limits are divided into three seasonal apportionments, using seasonal percentages of 86 percent, 2 percent, and 12 percent. Table 11 lists the proposed 2019 and 2020 annual halibut PSC limits and seasonal apportionments between the hook-and-line CV and hook-and-line C/P sectors in the GOA.

    No later than November 1 each year, any halibut PSC limit allocated under § 679.21(d)(2)(ii)(B) not projected by the Regional Administrator to be used by one of the hook-and-line sectors during the remainder of the fishing year will be made available to the other sector. NMFS calculates the projected unused amount of halibut PSC limit by either the CV hook-and-line or the C/P hook-and-line sectors of the “other hook-and-line fishery” for the remainder of the year. The projected unused amount of halibut PSC limit by either of these sectors is made available to the remaining hook-and-line sector for the remainder of that fishing year if NMFS determines that an additional amount of halibut PSC limit is necessary for that sector to continue its directed fishing operations (§ 679.21(d)(2)(iii)(C)).

    Table 11—Proposed 2019 and 2020 Apportionments of the “Other Hook-and-Line Fisheries” Halibut PSC Allowance Between the Hook-and-Line Gear Catcher Vessel and Catcher/Processor Sectors [Values are in metric tons] “Other than DSR”
  • allowance
  • Hook-and-
  • line sector
  • Sector annual amount Season Seasonal
  • percentage
  • Sector
  • seasonal
  • amount
  • 257 Catcher Vessel 120 January 1-June 10
  • June 10-September 1
  • September 1-December 31
  • 86
  • 2
  • 12
  • 103
  • 2
  • 14
  • Catcher/Processor 137 January 1-June 10
  • June 10-September 1
  • September 1-December 31
  • 86
  • 2
  • 12
  • 118
  • 3
  • 16
  • Halibut Discard Mortality Rates

    To monitor halibut bycatch mortality allowances and apportionments, the Regional Administrator uses observed halibut incidental catch rates, halibut discard mortality rates (DMRs), and estimates of groundfish catch to project when a fishery's halibut bycatch mortality allowance or seasonal apportionment is reached. Halibut incidental catch rates are based on observers' estimates of halibut incidental catch in the groundfish fishery. DMRs are estimates of the proportion of incidentally caught halibut that do not survive after being returned to the sea. The cumulative halibut mortality that accrues to a particular halibut PSC limit is the product of a DMR multiplied by the estimated halibut PSC. DMRs are estimated using the best scientific information available in conjunction with the annual GOA stock assessment process. The DMR methodology and findings are included as an appendix to the annual GOA groundfish SAFE report.

    In 2016, the DMR estimation methodology underwent revisions per the Council's directive. An interagency halibut working group (International Pacific Halibut Commission, Council, and NMFS staff) developed improved estimation methods that have undergone review by the Plan Team, the SSC, and the Council. A summary of the revised methodology is contained in the GOA proposed 2017 and 2018 harvest specifications (81 FR 87881, December 6, 2016), and the comprehensive discussion of the working group's statistical methodology is available from the Council (see ADDRESSES). The DMR working group's revised methodology is intended to improve estimation accuracy, transparency, and transferability in the methodology used for calculating DMRs. The working group will continue to consider improvements to the methodology used to calculate halibut mortality, including potential changes to the reference period (the period of data used for calculating the DMRs). Future DMRs may change based on additional years of observer sampling, which could provide more recent and accurate data, and which could improve the accuracy of estimation and progress on methodology. The new methodology will continue to ensure that NMFS is using DMRs that more accurately reflect halibut mortality, which will inform the different sectors of their estimated halibut mortality and allow specific sectors to respond with methods that could reduce mortality and, eventually, the DMR for that sector.

    In October 2018, the Council recommended adopting the halibut DMRs derived from the revised methodology for the proposed 2019 and 2020 DMRs. The proposed 2019 and 2020 DMRs use an updated 2-year reference period of 2016 and 2017. Comparing the proposed DMRs to the final DMRs from the 2018 and 2019 harvest specifications, the proposed DMR for Rockfish Program CVs using non-pelagic trawl gear decreased to 49 percent from 62 percent, the proposed DMR for C/Ps and motherships using non-pelagic trawl gear decreased to 79 percent from 84 percent, and the proposed DMRs for C/Ps and CVs using hook-and-line gear increased to 11 percent from 10 percent, and to 21 percent from 17 percent, respectively. Finally, the DMR for C/Ps and CVs using pot gear decreased to 4 percent from 7 percent. Table 12 lists the proposed 2019 and 2020 DMRs.

    Table 12—Proposed 2019 and 2020 DMRs for Vessels Fishing in the Gulf of Alaska [Values are percent of halibut assumed to be dead] Gear Sector Groundfish fishery Halibut discard
  • mortality rate (percent)
  • Pelagic trawl Catcher vessel All 100 Catcher/processor All 100 Non-pelagic trawl Catcher vessel Rockfish Program 49 Catcher vessel All others 67 Mothership and catcher/processor All 79 Hook-and-line Catcher/processor All 11 Catcher vessel All 21 Pot Catcher vessel and catcher/processor All 4
    Chinook Salmon Prohibited Species Catch Limits

    Amendment 93 to the FMP (77 FR 42629, July 20, 2012) established separate Chinook salmon PSC limits in the Western and Central GOA in the directed pollock trawl fishery. These limits require NMFS to close the pollock directed fishery in the Western and Central regulatory areas of the GOA if the applicable Chinook salmon PSC limit is reached (§ 679.21(h)(8)). The annual Chinook salmon PSC limits in the pollock directed fishery of 6,684 salmon in the Western GOA and 18,316 salmon in the Central GOA are set in § 679.21(h)(2)(i) and (ii).

    Amendment 97 to the FMP (79 FR 71350, December 2, 2014) established an initial annual PSC limit of 7,500 Chinook salmon for the non-pollock groundfish trawl fisheries in the Western and Central GOA. This limit is apportioned among three sectors: 3,600 Chinook salmon to trawl C/Ps; 1,200 Chinook salmon to trawl CVs participating in the Rockfish Program; and 2,700 Chinook salmon to trawl CVs not participating in the Rockfish Program (§ 679.21(h)(4)). NMFS will monitor the Chinook salmon PSC in the non-pollock GOA groundfish fisheries and close an applicable sector if it reaches its Chinook salmon PSC limit.

    The Chinook salmon PSC limit for two sectors, trawl C/Ps and trawl CVs not participating in the Rockfish Program, may be increased in subsequent years based on the performance of these two sectors and their ability to minimize their use of their respective Chinook salmon PSC limits. If either or both of these two sectors limit its use of Chinook salmon PSC to a certain threshold amount in 2018 (3,120 for trawl C/Ps and 2,340 for trawl CVs), that sector will receive an incremental increase to its 2019 Chinook salmon PSC limit (4,080 for trawl C/Ps and 3,060 for trawl CVs) (§ 679.21(h)(4)). NMFS will evaluate the annual Chinook salmon PSC by trawl C/Ps and non-Rockfish Program CVs when the 2018 fishing year is complete to determine whether to increase the Chinook salmon PSC limits for these two sectors. Based on preliminary 2018 Chinook salmon PSC data, the trawl C/P sector and the non-Rockfish Program trawl CV sector may receive an incremental increase of Chinook salmon PSC limit in 2019. This evaluation will be completed in conjunction with the final 2019 and 2020 harvest specifications.

    AFA C/P and CV Groundfish Sideboard Limits

    Section 679.64 establishes groundfish harvesting and processing sideboard limits on AFA C/Ps and CVs in the GOA. These sideboard limits are necessary to protect the interests of fishermen and processors who do not directly benefit from the AFA from those fishermen and processors who receive exclusive harvesting and processing privileges under the AFA. Section 679.7(k)(1)(ii) prohibits listed AFA C/Ps from harvesting any species of fish in the GOA. Additionally, § 679.7(k)(1)(iv) prohibits listed AFA C/Ps from processing any pollock harvested in a directed pollock fishery in the GOA and any groundfish harvested in Statistical Area 630 of the GOA.

    AFA CVs that are less than 125 ft (38.1 meters) length overall, have annual landings of pollock in the Bering Sea and Aleutian Islands of less than 5,100 mt, and have made at least 40 landings of GOA groundfish from 1995 through 1997 are exempt from GOA CV groundfish sideboard limits under § 679.64(b)(2)(ii). Sideboard limits for non-exempt AFA CVs in the GOA are based on their traditional harvest levels of TAC in groundfish fisheries covered by the FMP. Section 679.64(b)(3)(iv) establishes for CVs the groundfish sideboard limitations in the GOA based on the retained catch of non-exempt AFA CVs of each sideboard species from 1995 through 1997 divided by the TAC for that species over the same period.

    As discussed earlier in this preamble, NMFS published a proposed rule (83 FR 40733, August 16, 2018) that would, if implemented, establish regulations to prohibit directed fishing for sideboard limits for specific groundfish species or species groups, rather than prohibiting directed fishing for non-exempt AFA CV sideboards through the GOA annual harvest specifications. This would apply to most, but not all, of the species and area apportionments listed in Table 13. If the final rulemaking to implement the proposed changes to sideboard management is effective prior to the publication of the final 2019 and 2020 harvest specifications, NMFS would incorporate such changes into the specification and management of non-exempt AFA CV sideboard limits.

    Table 13 lists the proposed 2019 and 2020 groundfish sideboard limits for non-exempt AFA CVs. NMFS will deduct all targeted or incidental catch of sideboard species made by non-exempt AFA CVs from the sideboard limits listed in Table 13.

    Table 13—Proposed 2019 and 2020 GOA Non-Exempt American Fisheries Act Catcher Vessel (CV) Groundfish Sideboard Limits [Values are rounded to the nearest metric ton] Species Apportionments by season/gear Area/component Ratio of 1995-1997
  • non-exempt
  • AFA CV catch to 1995-1997 TAC
  • Proposed 2019 and 2020 TACs 3 Proposed 2019 and 2020
  • non-exempt
  • AFA CV
  • sideboard limit
  • Pollock A Season
  • January 20-March 10
  • Shumagin (610)
  • Chirikof (620)
  • Kodiak (630)
  • 0.6047
  • 0.1167
  • 0.2028
  • 869
  • 18,025
  • 5,955
  • 525
  • 2,103
  • 1,208
  • B Season
  • March 10-May 31
  • Shumagin (610)
  • Chirikof (620)
  • Kodiak (630)
  • 0.6047
  • 0.1167
  • 0.2028
  • 869
  • 21,219
  • 2,761
  • 525
  • 2,476
  • 560
  • C Season
  • August 25-October 1
  • Shumagin (610)
  • Chirikof (620)
  • Kodiak (630)
  • 0.6047
  • 0.1167
  • 0.2028
  • 9,091
  • 6,608
  • 9,150
  • 5,498
  • 771
  • 1,856
  • D Season
  • October 1-November 1
  • Shumagin (610)
  • Chirikof (620)
  • Kodiak (630)
  • 0.6047
  • 0.1167
  • 0.2028
  • 9,091
  • 6,608
  • 9,150
  • 5,498
  • 771
  • 1,856
  • Annual WYK (640)
  • SEO (650)
  • 0.3495
  • 0.3495
  • 4,509
  • 8,773
  • 1,576
  • 3,066
  • Pacific cod A Season 1
  • January 1-June 10
  • W
  • C
  • 0.1331
  • 0.0692
  • 3,206
  • 3,450
  • 427
  • 239
  • B Season 2
  • September 1-December 31
  • W
  • C
  • 0.1331
  • 0.0692
  • 2,137
  • 2,300
  • 284
  • 159
  • Annual E inshore
  • E offshore
  • 0.0079
  • 0.0078
  • 1,148
  • 128
  • 9
  • 1
  • Sablefish Annual, trawl gear W
  • C
  • E
  • 0.0000
  • 0.0642
  • 0.0433
  • 435
  • 1,452
  • 338
  • 0
  • 93
  • 15
  • Flatfish, shallow-water Annual W
  • C
  • E
  • 0.0156
  • 0.0587
  • 0.0126
  • 13,250
  • 25,655
  • 4,223
  • 207
  • 1,506
  • 53
  • Flatfish, deep-water Annual W
  • C
  • E
  • 0.0000
  • 0.0647
  • 0.0128
  • 416
  • 3,442
  • 5,640
  • 0
  • 223
  • 72
  • Rex sole Annual W
  • C
  • E
  • 0.0007
  • 0.0384
  • 0.0029
  • 2,909
  • 8,236
  • 3,384
  • 2
  • 316
  • 10
  • Arrowtooth flounder Annual W
  • C
  • E
  • 0.0021
  • 0.0280
  • 0.0002
  • 14,500
  • 48,000
  • 13,800
  • 30
  • 1,344
  • 3
  • Flathead sole Annual W
  • C
  • E
  • 0.0036
  • 0.0213
  • 0.0009
  • 8,650
  • 15,400
  • 2,437
  • 31
  • 328
  • 2
  • Pacific ocean perch Annual W
  • C
  • E
  • 0.0023
  • 0.0748
  • 0.0466
  • 3,240
  • 19,678
  • 5,687
  • 7
  • 1,472
  • 265
  • Northern rockfish Annual W
  • C
  • 0.0003
  • 0.0277
  • 382
  • 2,965
  • 0
  • 82
  • Shortraker rockfish Annual W
  • C
  • E
  • 0.0000
  • 0.0218
  • 0.0110
  • 44
  • 305
  • 514
  • 0
  • 7
  • 6
  • Dusky Rockfish Annual W
  • C
  • E
  • 0.0001
  • 0.0000
  • 0.0067
  • 135
  • 3,246
  • 287
  • 0
  • 0
  • 2
  • Rougheye rockfish Annual W
  • C
  • E
  • 0.0000
  • 0.0237
  • 0.0124
  • 174
  • 550
  • 703
  • 0
  • 13
  • 9
  • Demersal shelf rockfish Annual SEO 0.0020 250 1 Thornyhead rockfish Annual W
  • C
  • E
  • 0.0280
  • 0.0280
  • 0.0280
  • 344
  • 921
  • 773
  • 10
  • 26
  • 22
  • Other Rockfish Annual W/C
  • E
  • 0.1699
  • 0.0000
  • 1,737
  • 568
  • 295
  • 0
  • Atka mackerel Annual Gulfwide 0.0309 3,000 93 Big skates Annual W
  • C
  • E
  • 0.0063
  • 0.0063
  • 0.0063
  • 504
  • 1,774
  • 570
  • 3
  • 11
  • 4
  • Longnose skates Annual W
  • C
  • E
  • 0.0063
  • 0.0063
  • 0.0063
  • 149
  • 2,804
  • 619
  • 1
  • 18
  • 4
  • Other skates Annual Gulfwide 0.0063 1,384 9 Sculpins Annual Gulfwide 0.0063 5,301 33 Sharks Annual Gulfwide 0.0063 4,514 28 Octopuses Annual Gulfwide 0.0063 975 6 1 The Pacific cod A season for trawl gear does not open until January 20. 2 The Pacific cod B season for trawl gear closes November 1. 3 The Western and Central GOA area apportionments of pollock are considered ACLs.
    Non-Exempt AFA Catcher Vessel Halibut PSC Sideboard Limits

    The halibut PSC sideboard limits for non-exempt AFA CVs in the GOA are based on the aggregate retained groundfish catch by non-exempt AFA CVs in each PSC target category from 1995 through 1997 divided by the retained catch of all vessels in that fishery from 1995 through 1997 (§ 679.64(b)(4)(ii)). Table 14 lists the proposed 2019 and 2020 non-exempt AFA CV halibut PSC limits for vessels using trawl gear in the GOA.

    Table 14—Proposed 2019 and 2020 Non-Exempt American Fisheries Act Catcher Vessel Halibut PSC Sideboard Limits for Vessels Using Trawl Gear in the GOA [PSC limits are rounded to the nearest metric ton] Season Season dates Fishery
  • category
  • Ratio of 1995-1997
  • non-exempt
  • AFA CV
  • retained
  • catch to
  • total retained catch
  • Proposed 2019 and 2020 PSC limit Proposed 2019 and 2020 non-
  • exempt AFA
  • CV PSC limit
  • 1 January 20-April 1 shallow-water
  • deep-water
  • 0.340
  • 0.070
  • 384
  • 85
  • 131
  • 6
  • 2 April 1-July 1 shallow-water
  • deep-water
  • 0.340
  • 0.070
  • 85
  • 256
  • 29
  • 18
  • 3 July 1-September 1 shallow-water
  • deep-water
  • 0.340
  • 0.070
  • 171
  • 341
  • 58
  • 24
  • 4 September 1-October 1 shallow-water
  • deep-water
  • 0.340
  • 0.070
  • 128
  • 0
  • 44
  • 0
  • 5 October 1-December 31 all targets 0.205 256 52 Annual Total shallow-water 262 Total deep-water 48 Grand Total, all seasons and categories 1,706 362
    Non-AFA Crab Vessel Groundfish Sideboard Limits

    Section 680.22 establishes groundfish sideboard limits for vessels with a history of participation in the Bering Sea snow crab fishery to prevent these vessels from using the increased flexibility provided by the CR Program to expand their level of participation in the GOA groundfish fisheries. Sideboard harvest limits restrict these vessels' catch to their collective historical landings in each GOA groundfish fishery (except the fixed-gear sablefish fishery). Sideboard limits also apply to landings made using an LLP license derived from the history of a restricted vessel, even if that LLP license is used on another vessel.

    The basis for these sideboard harvest limits is described in detail in the final rules implementing the major provisions of the CR Program, including Amendments 18 and 19 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (Crab FMP) (70 FR 10174, March 2, 2005), Amendment 34 to the Crab FMP (76 FR 35772, June 20, 2011), Amendment 83 to the GOA FMP (76 FR 74670, December 1, 2011), and Amendment 45 to the Crab FMP (80 FR 28539, May 19, 2015).

    As discussed earlier in this preamble, NMFS published a proposed rule (83 FR 40733, August 16, 2018) that would, if implemented, establish regulations to prohibit directed fishing for sideboard limits for specific groundfish species or species groups, rather than prohibiting directed fishing for non-AFA crab vessel sideboards through the GOA annual harvest specifications. This would apply to most, but not all, of the species and area apportionments listed in Table 15. If the final rulemaking to implement the proposed changes to sideboard management is effective prior to the publication of the final 2019 and 2020 harvest specifications, NMFS would incorporate such changes into the specification and the management of non-AFA crab vessel sideboard limits.

    Table 15 lists the proposed 2019 and 2020 groundfish sideboard limits for non-AFA crab vessels. All targeted or incidental catch of sideboard species made by non-AFA crab vessels or associated LLP licenses will be deducted from these sideboard limits.

    Table 15—Proposed 2019 and 2020 GOA Non-American Fisheries Act Crab Vessel Groundfish Sideboard Limits [Values are rounded to the nearest metric ton] Species Season/gear Area/component/
  • gear
  • Ratio of 1996-2000 non-AFA crab vessel catch to 1996-2000 total
  • harvest
  • Proposed 2019 and 2020 TACs Proposed 2019 and 2020 non-AFA crab vessel sideboard limit
    Pollock A Season Shumagin (610) 0.0098 869 9 January 20-March 10 Chirikof (620)
  • Kodiak (630)
  • 0.0031
  • 0.0002
  • 18,025
  • 5,955
  • 56
  • 1
  • B Season Shumagin (610) 0.0098 869 9 March 10-May 31 Chirikof (620)
  • Kodiak (630)
  • 0.0031
  • 0.0002
  • 21,219
  • 2,761
  • 66
  • 1
  • C Season Shumagin (610) 0.0098 9,091 89 August 25-October 1 Chirikof (620)
  • Kodiak (630)
  • 0.0031
  • 0.0002
  • 6,608
  • 9,150
  • 20
  • 2
  • D Season Shumagin (610) 0.0098 9,091 89 October 1-November 1 Chirikof (620)
  • Kodiak (630)
  • 0.0031
  • 0.0002
  • 6,608
  • 9,150
  • 20
  • 2
  • Annual WYK (640)
  • SEO (650)
  • 0.0000
  • 0.0000
  • 4,509
  • 8,773
  • 0
  • 0
  • Pacific cod A Season 1 W Jig CV
  • W Hook-and-line CV
  • 0.0000
  • 0.0004
  • 3,206
  • 3,206
  • 0
  • 1
  • January 1-June 10 W Pot CV
  • W Pot C/P
  • 0.0997
  • 0.0078
  • 3,206
  • 3,206
  • 320
  • 25
  • W Trawl CV 0.0007 3,206 2 C Jig CV 0.0000 3,450 0 C Hook-and-line CV 0.0001 3,450 0 C Pot CV 0.0474 3,450 164 C Pot C/P 0.0136 3,450 47 C Trawl CV 0.0012 3,450 4 B Season 2 W Jig CV
  • W Hook-and-line CV
  • 0.0000
  • 0.0004
  • 2,137
  • 2,137
  • 0
  • 1
  • September 1-December 31 W Pot CV 0.0997 2,137 213 W Pot C/P 0.0078 2,137 17 W Trawl CV 0.0007 2,137 1 C Jig CV 0.0000 2,300 0 C Hook-and-line CV 0.0001 2,300 0 C Pot CV 0.0474 2,300 109 C Pot C/P 0.0136 2,300 31 C Trawl CV 0.0012 2,300 3 Annual E inshore 0.0110 1,148 13 E offshore 0.0000 128 0 Sablefish Annual, trawl gear W
  • C
  • 0.0000
  • 0.0000
  • 435
  • 1,452
  • 0
  • 0
  • E 0.0000 338 0 Flatfish, shallow-water Annual W
  • C
  • 0.0059
  • 0.0001
  • 13,250
  • 25,655
  • 78
  • 3
  • E 0.0000 4,223 0 Flatfish, deep-water Annual W
  • C
  • 0.0035
  • 0.0000
  • 416
  • 3,442
  • 1
  • 0
  • E 0.0000 5,640 0 Rex sole Annual W
  • C
  • 0.0000
  • 0.0000
  • 2,909
  • 8,236
  • 0
  • 0
  • E 0.0000 3,384 0 Arrowtooth flounder Annual W
  • C
  • 0.0004
  • 0.0001
  • 14,500
  • 48,000
  • 6
  • 5
  • E 0.0000 13,800 0 Flathead sole Annual W
  • C
  • 0.0002
  • 0.0004
  • 8,650
  • 15,400
  • 2
  • 6
  • E 0.0000 2,437 0 Pacific ocean perch Annual W
  • C
  • 0.0000
  • 0.0000
  • 3,240
  • 19,678
  • 0
  • 0
  • E 0.0000 5,687 0 Northern rockfish Annual W
  • C
  • 0.0005
  • 0.0000
  • 382
  • 2,965
  • 0
  • 0
  • Shortraker rockfish Annual W
  • C
  • 0.0013
  • 0.0012
  • 44
  • 305
  • 0
  • 0
  • E 0.0009 514 0 Dusky rockfish Annual W
  • C
  • 0.0017
  • 0.0000
  • 135
  • 3,246
  • 0
  • 0
  • E 0.0000 287 0 Rougheye rockfish Annual W
  • C
  • 0.0067
  • 0.0047
  • 174
  • 550
  • 1
  • 3
  • E 0.0008 703 1 Demersal shelf rockfish Annual SEO 0.0000 250 0 Thornyhead rockfish Annual W
  • C
  • 0.0047
  • 0.0066
  • 344
  • 921
  • 2
  • 6
  • E 0.0045 773 3 Other Rockfish Annual W/C 0.0033 1,737 6 E 0.0000 568 0 Atka mackerel Annual Gulfwide 0.0000 3,000 0 Big skate Annual W 0.0392 504 20 C 0.0159 1,774 28 E 0.0000 570 0 Longnose skate Annual W
  • C
  • 0.0392
  • 0.0159
  • 149
  • 2,804
  • 6
  • 45
  • E 0.0000 619 0 Other skates Annual Gulfwide 0.0176 1,384 24 Sculpins Annual Gulfwide 0.0176 5,301 93 Sharks Annual Gulfwide 0.0176 4,514 79 Octopuses Annual Gulfwide 0.0176 975 17 1 The Pacific cod A season for trawl gear does not open until January 20. 2 The Pacific cod B season for trawl gear closes November 1.
    Rockfish Program Groundfish Sideboard and Halibut PSC Limitations

    The Rockfish Program establishes three classes of sideboard provisions: CV groundfish sideboard restrictions,C/P rockfish sideboard restrictions, and C/P opt-out vessel sideboard restrictions (§ 679.82(c)(1)). These sideboards are intended to limit the ability of rockfish harvesters to expand into other fisheries.

    CVs participating in the Rockfish Program may not participate in directed fishing for dusky rockfish, northern rockfish, and Pacific ocean perch in the Western GOA and West Yakutat District from July 1 through July 31. Also, CVs may not participate in directed fishing for arrowtooth flounder, deep-water flatfish, and rex sole in the GOA from July 1 through July 31 (§ 679.82(d)).

    C/Ps participating in Rockfish Program cooperatives are restricted by rockfish and halibut PSC sideboard limits. These C/Ps are prohibited from directed fishing for northern rockfish, Pacific ocean perch, and dusky rockfish in the Western GOA and West Yakutat District from July 1 through July 31 (§ 679.82(e)(2)). Holders of C/P-designated LLP licenses that opt out of participating in a Rockfish Program cooperative will be able to access those sideboard limits that are not assigned to Rockfish Program cooperatives (§ 679.82(e)(7)). The sideboard ratio for each rockfish fishery in the Western GOA and West Yakutat District is set forth in § 679.82(e)(4). Table 16 lists the proposed 2019 and 2020 Rockfish Program C/P rockfish sideboard limits in the Western GOA and West Yakutat District. Due to confidentiality requirements associated with fisheries data, the sideboard limits for the West Yakutat District are not displayed.

    Table 16—Proposed 2019 and 2020 Rockfish Program Sideboard Limits for the Western GOA and West Yakutat District by Fishery for the Catcher/Processor (C/P) Sector [Values are rounded to the nearest metric ton] Area Fishery C/P sector
  • (% of TAC)
  • Proposed 2019 and 2020 TACs Proposed 2019 and 2020 C/P sideboard limit
    Western GOA Dusky rockfish 72.3 135 98. Pacific ocean perch 50.6 3,240 1,639. Northern rockfish 74.3 382 284. West Yakutat District Dusky rockfish Confidential 1 215 Confidential. 1 Pacific ocean perch Confidential 1 3,298 Confidential. 1 1 Not released due to confidentiality requirements associated with fish ticket data, as established by NMFS and the State of Alaska.

    Under the Rockfish Program, the C/P sector is subject to halibut PSC sideboard limits for the trawl deep-water and shallow-water species fisheries from July 1 through July 31 (§ 679.82(e)(3) and (e)(5)). Halibut PSC sideboard ratios by fishery are set forth in § 679.82(e)(5). No halibut PSC sideboard limits apply to the CV sector, as vessels participating in a rockfish cooperative receive a portion of the annual halibut PSC limit. C/Ps that opt out of the Rockfish Program would be able to access that portion of the deep-water and shallow-water halibut PSC sideboard limit not assigned to C/P rockfish cooperatives. The sideboard provisions for C/Ps that elect to opt out of participating in a rockfish cooperative are described in § 679.82(c), (e), and (f). Sideboard limits are linked to the catch history of specific vessels that may choose to opt out. After March 1, NMFS will determine which C/Ps have opted-out of the Rockfish Program in 2019, and will know the ratios and amounts used to calculate opt-out sideboard ratios. NMFS will then calculate any applicable opt-out sideboard limits and post these limits on the Alaska Region website at https://alaskafisheries.noaa.gov/fisheries/central-goa-rockfish-program. Table 17 lists the 2019 and 2020 proposed Rockfish Program halibut PSC limits for the C/P sector.

    Table 17—Proposed 2019 and 2020 Rockfish Program Halibut PSC Limits for the Catcher/Processor Sector [Values are rounded to the nearest metric ton] Sector Shallow-water species fishery halibut PSC sideboard ratio
  • (percent)
  • Deep-water species fishery halibut PSC sideboard ratio
  • (percent)
  • Annual halibut PSC limit (mt) Annual
  • shallow-water
  • species
  • fishery
  • halibut PSC
  • sideboard
  • limit
  • (mt)
  • Annual deep-water species fishery halibut PSC sideboard limit (mt)
    Catcher/processor 0.10 2.50 1,706 2 43
    Amendment 80 Program Groundfish and PSC Sideboard Limits

    Amendment 80 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (Amendment 80 Program) established a limited access privilege program for the non-AFA trawl C/P sector. The Amendment 80 Program established groundfish and halibut PSC limits for Amendment 80 Program participants to limit the ability of participants eligible for the Amendment 80 Program to expand their harvest efforts in the GOA.

    Section 679.92 establishes groundfish harvesting sideboard limits on all Amendment 80 Program vessels, other than the F/V Golden Fleece, to amounts no greater than the limits shown in Table 37 to 50 CFR part 679. Under § 679.92(d), the F/V Golden Fleece is prohibited from directed fishing for pollock, Pacific cod, Pacific ocean perch, dusky rockfish, and northern rockfish in the GOA.

    Groundfish sideboard limits for Amendment 80 Program vessels operating in the GOA are based on their average aggregate harvests from 1998 through 2004 (72 FR 52668, September 14, 2007). Table 18 lists the proposed 2019 and 2020 sideboard limits for Amendment 80 Program vessels. NMFS will deduct all targeted or incidental catch of sideboard species made by Amendment 80 Program vessels from the sideboard limits in Table 18.

    Table 18-Proposed 2019 and 2020 GOA Groundfish Sideboard Limits for Amendment 80 Program Vessels [Values are rounded to the nearest metric ton] Species Season Area Ratio of Amendment 80 sector
  • vessels
  • 1998-2004
  • catch to TAC
  • Proposed 2019 and 2020 TAC
  • (mt)
  • Proposed 2019
  • and 2020 Amendment 80 vessel
  • sideboard
  • limits
  • (mt)
  • Pollock A Season Shumagin (610) 0.003 869 3 January 20-March 10 Chirikof (620) 0.002 18,025 36 Kodiak (630) 0.002 5,955 12 B Season Shumagin (610) 0.003 869 3 March 10-May 31 Chirikof (620) 0.002 21,219 42 Kodiak (630) 0.002 2,761 6 C Season Shumagin (610) 0.003 9,091 27 August 25-October 1 Chirikof (620) 0.002 6,608 13 Kodiak (630) 0.002 9,150 18 D Season Shumagin (610) 0.003 9,091 27 October 1-November 1 Chirikof (620) 0.002 6,608 13 Kodiak (630) 0.002 9,150 18 Annual WYK (640) 0.002 4,509 9 Pacific cod A Season 1 W 0.020 3,206 64 January 1-June 10 C 0.044 3,450 152 B Season 2 W 0.020 2,137 43 September 1-December 31 C 0.044 2,300 101 Annual WYK 0.034 1,275 43 Pacific ocean perch Annual W 0.994 3,240 3,221 WYK 0.961 3,298 3,169 Northern rockfish Annual W 1.000 382 382 Dusky rockfish Annual W 0.764 135 103 WYK 0.896 215 193 1 The Pacific cod A season for trawl gear does not open until January 20. 2 The Pacific cod B season for trawl gear closes November 1.

    The halibut PSC sideboard limits for Amendment 80 Program vessels in the GOA are based on the historic use of halibut PSC by Amendment 80 Program vessels in each PSC target category from 1998 through 2004. These values are slightly lower than the average historic use to accommodate two factors: Allocation of halibut PSC cooperative quota under the Rockfish Program and the exemption of the F/V Golden Fleece from this restriction (§ 679.92(b)(2)). Table 19 lists the proposed 2019 and 2020 halibut PSC sideboard limits for Amendment 80 Program vessels. These tables incorporate the maximum percentages of the halibut PSC sideboard limits that may be used by Amendment 80 Program vessels, as contained in Table 38 to 50 CFR part 679. Any residual amount of a seasonal Amendment 80 sideboard halibut PSC limit may carry forward to the next season limit (§ 679.92(b)(2)).

    Table 19—Proposed 2019 and 2020 Halibut PSC Sideboard Limits for Amendment 80 Program Vessels in the GOA [Values are rounded to the nearest metric ton] Season Season dates Fishery category Historic Amendment 80 use of the annual halibut PSC limit (ratio) Proposed 2019 and 2020 annual PSC limit
  • (mt)
  • Proposed 2019 and 2020
  • Amendment 80
  • vessel PSC
  • sideboard limit
  • (mt)
  • 1 January 20-April 1 shallow-water 0.0048 1,706 8 deep-water 0.0115 1,706 20 2 April 1-July 1 shallow-water 0.0189 1,706 32 deep-water 0.1072 1,706 183 3 July 1-September 1 shallow-water 0.0146 1,706 25 deep-water 0.0521 1,706 89 4 September 1-October 1 shallow-water 0.0074 1,706 13 deep-water 0.0014 1,706 2 5 October 1-December 31 shallow-water 0.0227 1,706 39 deep-water 0.0371 1,706 63 Annual Total shallow-water 117 Total deep-water 357 Grand Total, all seasons and categories 474
    Classification

    NMFS has determined that the proposed harvest specifications are consistent with the FMP and preliminarily determined that the proposed harvest specifications are consistent with the Magnuson-Stevens Act and other applicable laws, subject to further review after public comment.

    This action is authorized under 50 CFR 679.20 and is exempt from review under Executive Order 12866.

    NMFS prepared an EIS for this action and made it available to the public on January 12, 2007 (72 FR 1512). On February 13, 2007, NMFS issued the Record of Decision (ROD) for the Final EIS. A SIR that assesses the need to prepare a Supplemental EIS is being prepared for the final harvest specifications. Copies of the Final EIS, ROD, and annual SIRs for this action are available from NMFS (see ADDRESSES). The Final EIS analyzes the environmental, social, and economic consequences of the proposed groundfish harvest specifications and alternative harvest strategies on resources in the action area. Based on the analysis in the Final EIS, NMFS concluded that the preferred Alternative (Alternative 2) provides the best balance among relevant environmental, social, and economic considerations and allows for continued management of the groundfish fisheries based on the most recent, best scientific information.

    NMFS prepared an IRFA as required by section 603 of the Regulatory Flexibility Act (RFA), analyzing the methodology for establishing the relevant TACs. The IRFA evaluated the economic impacts on small entities of alternative harvest strategies for the groundfish fisheries in the EEZ off Alaska. As set forth in the methodology, TACs are set to a level that falls within the range of ABCs recommended by the SSC; the sum of the TACs must achieve the OY specified in the FMP. While the specific numbers that the methodology produces may vary from year to year, the methodology itself remains constant.

    A description of the proposed action, why it is being considered, and the legal basis for this proposed action are contained in the preamble above. A copy of the IRFA is available from NMFS (see ADDRESSES). A summary of the IRFA follows.

    The action under consideration is a harvest strategy to govern the catch of groundfish in the GOA. The preferred alternative is the existing harvest strategy in which TACs fall within the range of ABCs recommended by the SSC. This action is taken in accordance with the FMP prepared by the Council pursuant to the Magnuson-Stevens Act.

    The entities directly regulated by this action are those that harvest groundfish in the EEZ of the GOA and in parallel fisheries within State of Alaska waters. These include entities operating CVs and C/Ps within the action area and entities receiving direct allocations of groundfish.

    For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual gross receipts not in excess of $11 million for all its affiliated operations worldwide.

    The IRFA shows that, in 2017, there were 821 individual CVs with gross revenues less than or equal to $11 million. This estimate accounts for corporate affiliations among vessels, and for cooperative affiliations among fishing entities, since some of the fishing vessels operating in the GOA are members of AFA inshore pollock cooperatives, GOA rockfish cooperatives, or BSAI CR Program cooperatives. Therefore, under the RFA, it is the aggregate gross receipts of all participating members of the cooperative that must meet the “under $11 million” threshold. Vessels that participate in these cooperatives are considered to be large entities within the meaning of the RFA. After accounting for membership in these cooperatives, there are an estimated 821 small CV entities remaining in the GOA groundfish sector. This latter group of vessels had average gross revenues that varied by gear type. Average gross revenues for hook-and-line CVs, pot gear CVs, and trawl gear CVs are estimated to be $380,000, $790,000, and $1.97 million, respectively. Revenue data for the three C/Ps considered to be small entities are confidential.

    The preferred alternative (Alternative 2) was compared to four other alternatives. Alternative 1 would have set TACs to generate fishing rates equal to the maximum permissible ABC (if the full TAC were harvested), unless the sum of TACs exceeded the GOA OY, in which case TACs would be limited to the OY. Alternative 3 would have set TACs to produce fishing rates equal to the most recent 5-year average fishing rate. Alternative 4 would have set TACs to equal the lower limit of the GOA OY range. Alternative 5, the “no action alternative,” would have set TACs equal to zero.

    The TACs associated with Alternative 2, the preferred harvest strategy, are those recommended by the Council in October 2018. OFLs and ABCs for the species were based on recommendations prepared by the Council's Plan Team in September 2018, and reviewed by the Council's SSC in October 2018. The Council based its TAC recommendations on those of its AP, which were consistent with the SSC's OFL and ABC recommendations.

    Alternative 1 selects harvest rates that would allow fishermen to harvest stocks at the level of ABCs, unless total harvests were constrained by the upper bound of the GOA OY of 800,000 mt. As shown in Table 1 of the preamble, the sum of ABCs in 2019 and 2020 would be 479,050 mt, which falls below the upper bound of the OY range. The sum of TACs is 375,280 mt, which is less than the sum of ABCs. In this instance, Alternative 1 is consistent with the preferred alternative (Alternative 2), meets the objectives of that action, and has small entity impacts that may be equivalent to the preferred alternative. However, it is not likely that Alternative 1 would result in reduced adverse economic impacts to directly-regulated small entities relative to Alternative 2. The selection of Alternative 1, which could increase all TACs up to the sum of ABCs, would not reflect the practical implications that increased TACs for some species probably would not be fully harvested. This could be due to a variety of reasons, including the lack of commercial or market interest in some species. Additionally, an underharvest of flatfish TACs could result due to other factors, such as the fixed, and therefore constraining, PSC limits associated with the harvest of the GOA groundfish species. Furthermore, TACs may be set lower than ABC for conservation purposes, as is the case with other rockfish in the Eastern GOA. Finally, the TACs for two species (pollock and Pacific cod) cannot be set equal to ABC, as the TAC must be reduced to account for the State's GHLs in these fisheries.

    Alternative 3 selects harvest rates based on the most recent 5 years of harvest rates (for species in Tiers 1 through 3) or based on the most recent 5 years of harvests (for species in Tiers 4 through 6). This alternative is inconsistent with the objectives of this action because it does not take account of the most recent biological information for this fishery, as required by the Magnuson-Stevens Act. NMFS annually conducts at-sea stock surveys for different species, as well as statistical modeling, to estimate stock sizes and permissible harvest levels. Actual harvest rates or harvest amounts are a component of these estimates, but in and of themselves may not accurately portray stock sizes and conditions. Harvest rates are listed for each species category for each year in the SAFE report (see ADDRESSES).

    Alternative 4 would lead to significantly lower harvests of all groundfish species and reduce the TACs from the upper end of the OY range in the GOA to its lower end of 116,000 mt. Overall, this alternative would reduce 2019 TACs by about 80 percent and would lead to significant reductions in harvests of species harvested by small entities. While production declines in the GOA would be associated with offsetting price increases in the GOA, the size of these increases is uncertain and would still be constrained by production of substitutes. There are close substitutes for GOA groundfish species available in significant quantities from the Bering Sea and Aleutian Islands management area. Thus, price increases associated with reduction production are not likely to fully offset revenue declines from reduced production, and this alternative would have a detrimental impact on small entities.

    Alternative 5, which sets all harvests equal to zero, would have a significant adverse economic impact on small entities and would be contrary to obligations to achieve OY on a continuing basis, as mandated by the Magnuson-Stevens Act. Under Alternative 5, all 821 individual CVs impacted by this rule would have gross revenues of $0. Additionally, the three small C/Ps impacted by this rule also would have gross revenues of $0.

    The proposed harvest specifications (Alternative 2) extend the current 2019 OFLs, ABCs, and TACs to 2019 and 2020, with the exceptions of the removal of the squid OFL, ABC, and TAC. As noted in the IRFA, the Council may modify its recommendations for final OFLs, ABCs, and TACs in December 2018, when it reviews the November 2018 SAFE report from its Groundfish Plan Team, and the December 2018 Council meeting reports of its SSC and AP. Because the 2019 TACs (with the exception of squid) in the proposed 2019 and 2020 harvest specifications are unchanged from the 2019 TACs, and because the sum of all TACs remains within OY for the GOA, NMFS does not expect adverse impacts on small entities. Also, NMFS does not expect any changes made by the Council in December 2018 to have significant adverse impacts on small entities.

    This action does not modify recordkeeping or reporting requirements, or duplicate, overlap, or conflict with any Federal rules.

    Adverse impacts on marine mammals or endangered species resulting from fishing activities conducted under this rule are discussed in the Final EIS and its accompanying annual SIRs (see ADDRESSES).

    Authority:

    16 U.S.C. 773 et seq.; 16 U.S.C. 1540(f); 16 U.S.C. 1801 et seq.; 16 U.S.C. 3631 et seq.; Pub. L. 105-277; Pub. L. 106-31; Pub. L. 106-554; Pub. L. 108-199; Pub. L. 108-447; Pub. L. 109-241; Pub. L. 109-479.

    Dated: November 29, 2018. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2018-26390 Filed 12-4-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 180713633-8633-01] RIN 0648-XG356 Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands; 2019 and 2020 Harvest Specifications for Groundfish AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS proposes 2019 and 2020 harvest specifications, apportionments, and prohibited species catch allowances for the groundfish fisheries of the Bering Sea and Aleutian Islands (BSAI) management area. This action is necessary to establish harvest limits for groundfish during the 2019 and 2020 fishing years, and to accomplish the goals and objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area. The intended effect of this action is to conserve and manage the groundfish resources in the BSAI in accordance with the Magnuson-Stevens Fishery Conservation and Management Act.

    DATES:

    Comments must be received by January 7, 2019.

    ADDRESSES:

    Submit your comments, identified by NOAA-NMFS-2018-0089, by either of the following methods:

    Federal e-Rulemaking Portal: Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0089, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

    Instructions: NMFS may not consider comments if they are sent by any other method, to any other address or individual, or received after the comment period ends. All comments received are a part of the public record, and NMFS will post the comments for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender is publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    Electronic copies of the Alaska Groundfish Harvest Specifications Final Environmental Impact Statement (Final EIS), Record of Decision (ROD), the annual Supplementary Information Reports (SIRs) to the Final EIS, and the Initial Regulatory Flexibility Analysis (IRFA) prepared for this action may be obtained from https://www.regulations.gov or from the Alaska Region website at https://alaskafisheries.noaa.gov. An updated 2019 SIR for the final 2019 and 2020 harvest specifications will be available from the same sources. The final 2017 Stock Assessment and Fishery Evaluation (SAFE) report for the groundfish resources of the BSAI, dated November 2017, is available from the North Pacific Fishery Management Council (Council) at 605 West 4th Avenue, Suite 306, Anchorage, AK 99501-2252, phone 907-271-2809, or from the Council's website at https://www.npfmc.org/. The 2018 SAFE report for the BSAI is available from the same source.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    Federal regulations at 50 CFR part 679 implement the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) and govern the groundfish fisheries in the BSAI. The Council prepared the FMP, and NMFS approved it, under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). General regulations governing U.S. fisheries also appear at 50 CFR part 600.

    The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify annually the total allowable catch (TAC) for each target species category. The sum of TACs for all groundfish species in the BSAI must be within the optimum yield (OY) range of 1.4 million to 2.0 million metric tons (mt) (see § 679.20(a)(1)(i)(A)). Section 679.20(c)(1) further requires NMFS to publish proposed harvest specifications in the Federal Register and solicit public comments on proposed annual TACs and apportionments thereof, prohibited species catch (PSC) allowances, prohibited species quota (PSQ) reserves established by § 679.21, seasonal allowances of pollock, Pacific cod, and Atka mackerel TAC, American Fisheries Act allocations, Amendment 80 allocations, Community Development Quota (CDQ) reserve amounts established by § 679.20(b)(1)(ii), and acceptable biological catch (ABC) surpluses and reserves for CDQ groups and Amendment 80 cooperatives for flathead sole, rock sole, and yellowfin sole. The proposed harvest specifications set forth in Tables 1 through 16 of this action satisfy these requirements.

    Under § 679.20(c)(3), NMFS will publish the final harvest specifications for 2019 and 2020 after (1) considering comments received within the comment period (see DATES), (2) consulting with the Council at its December 2018 meeting, (3) considering information presented in the 2019 SIR to the EIS that assesses the need to prepare a Supplemental EIS (see ADDRESSES), and (4) considering information presented in the final 2018 SAFE reports prepared for the 2019 and 2020 groundfish fisheries.

    Other Actions Affecting or Potentially Affecting the 2019 and 2020 Harvest Specifications Amendment 117: Reclassify Squid as an Ecosystem Species

    On July 6, 2018, NMFS published the final rule to implement Amendment 117 to the FMP (83 FR 31460). This rule reclassified squid in the FMP as an “Ecosystem Component” species, which is a category of non-target species that are not in need of conservation and management. Accordingly, NMFS will no longer set an Overfishing Level (OFL), ABC, and TAC for squid in the BSAI groundfish harvest specifications, beginning with the proposed 2019 and 2020 harvest specifications. Amendment 117 prohibits directed fishing for squid, while maintaining recordkeeping and reporting requirements for squid. Amendment 117 also establishes a squid maximum retainable amount when directed fishing for halibut and groundfish species at 20 percent to discourage targeting squid.

    Rulemaking To Prohibit Directed Fishing for American Fisheries Act (AFA) Sideboard Limits

    On August 16, 2018, NMFS published a proposed rule (83 FR 40733) that would modify regulations for the American Fisheries Act (AFA) Program participants subject to limits on the catch of specific species (sideboard limits) in the BSAI. Sideboard limits are intended to prevent AFA Program participants who benefit from receiving exclusive harvesting privileges in a particular fishery from shifting effort into other fisheries.

    Specifically, the proposed rule would primarily establish regulations to prohibit directed fishing for sideboard limits for specific groundfish species or species groups, rather than prohibiting directed fishing for AFA sideboard limits through the BSAI annual harvest specifications. The proposed rule would streamline and simplify NMFS's management of applicable groundfish sideboard limits. Currently, NMFS calculates numerous AFA Program sideboard limits as part of the annual BSAI groundfish harvest specifications process and publishes these sideboard limits in the Federal Register. Concurrently, NMFS prohibits directed fishing for the majority of the groundfish sideboard limits because most limits are too small to support directed fishing. Rather than continue this annual process, this action proposes to revise regulations to prohibit directed fishing in regulation for most AFA Program groundfish sideboard limits. NMFS would no longer calculate and publish AFA Program sideboard limit amounts for most groundfish species in the annual BSAI harvest specifications. If the final rulemaking implementing these changes is effective prior to the publication of the final 2019 and 2020 harvest specifications, NMFS would no longer publish the majority of the sideboard limits contained in Tables 13 and 15 of this proposed action.

    State of Alaska Guideline Harvest Levels

    For 2019 and 2020, the Board of Fisheries (BOF) for the State of Alaska (State) established the guideline harvest level (GHL) for vessels using pot gear in State waters in the Bering Sea subarea (BS) equal to 8 percent of the Pacific cod ABC in the BS. Also, for 2019 and 2020, the BOF established an additional GHL for vessels using jig gear in State waters in the BS equal to 45 mt of Pacific cod. The Council and its BSAI Groundfish Plan Team (Plan Team), Scientific and Statistical Committee (SSC), and Advisory Panel (AP) recommended that the sum of all State and Federal water Pacific cod removals from the BS not exceed the proposed ABC recommendations of 170,000 mt. Accordingly, the Council recommended, and NMFS proposes, that the 2019 and 2020 Pacific cod TACs in the BS account for the State's GHLs for Pacific cod caught in State waters in the BS. Also, the BOF approved a one percent annual increase in the BS GHL, up to 15 percent of the Pacific cod ABC in the BS, if 90 percent of the GHL is harvested by November 15 of the preceding year. If 90 percent of the 2019 BS GHL is not harvested by November 15, 2019, the 2020 GHL will remain at 8 percent. If, however, 90 percent of the 2019 BS GHL is harvested by November 15, 2019, the 2020 GHL will increase by 1 percent to 9 percent of the 2020 Pacific cod ABC in the BS, and the 2020 BS TAC will decrease to account for the increased BS GHL.

    For 2019 and 2020, the BOF established a GHL in State waters in the Aleutian Islands subarea (AI) equal to 31 percent of the Pacific cod ABC for the AI. The Council and its Plan Team, SSC, and AP recommended that the sum of all State and Federal water Pacific cod removals from the AI not exceed the proposed ABC recommendations of 21,500 mt. Accordingly, the Council recommended, and NMFS proposes, that the 2019 and 2020 Pacific cod TACs in the AI account for the State's GHL for Pacific cod caught in State waters in the AI.

    Proposed ABC and TAC Harvest Specifications

    At the October 2018 Council meeting, the SSC, AP, and Council reviewed the most recent biological and harvest information on the condition of the BSAI groundfish stocks. This information was compiled by the Plan Team and presented in the final 2017 SAFE report for the BSAI groundfish fisheries, dated November 2017 (see ADDRESSES). The final 2018 SAFE report will be available from the same source.

    The only changes to the proposed 2019 and 2020 harvest specifications from the final 2019 harvest specifications published in February 2018 (83 FR 8365, February 27, 2018) are associated with squid OFL, ABC, and TAC; BS pollock TAC; and Pacific cod TACs. Consistent with the final approval of Amendment 117 and the reclassification of squid as an ecosystem component species (83 FR 31460), the 2019 harvest specifications include the removal of the squid OFL (6,912 mt), squid ABC (5,184 mt), and squid TAC (1,200 mt) in the BSAI. The Council recommended, and NMFS includes in these proposed specifications, a corresponding 1,200 mt increase in the BS pollock TAC. The net increase of the BS pollock TAC equals the decrease of the squid TAC. As discussed earlier in this preamble, the BS and AI Pacific cod TACs were reduced to account for the increases in the BS and AI Pacific cod GHLs. This reduced the 2019 and 2020 BS Pacific cod TAC from 159,120 mt to 156,355 mt, and the AI Pacific cod TAC from 15,695 mt to 14,835 mt. Therefore, the sum of the 2019 and 2020 proposed TACs decreased from 2.0 million mt to 1,996,375 mt.

    The proposed 2019 and 2020 harvest specifications are based on the final 2019 harvest specifications published in February 2018, which were set after consideration of the most recent 2017 SAFE report, and are based on the initial survey data that were presented at the September 2018 Plan Team meeting. These proposed 2019 and 2020 harvest specifications are subject to change in the final harvest specifications to be published by NMFS following the Council's December 2018 meeting. In November 2018, the Plan Team will update the 2017 SAFE report to include new information collected during 2018, such as NMFS stock surveys, revised stock assessments, and catch data. The Plan Team will compile this information and present the draft 2018 SAFE report at the December 2018 Council meeting. At that meeting, the SSC and the Council will review the 2018 SAFE report, and the Council will approve the 2018 SAFE report. The Council will consider information contained in the 2018 SAFE report, recommendations from the November 2018 Plan Team meeting and December 2018 SSC and AP meetings, public testimony, and relevant written comments in making its recommendations for the final 2019 and 2020 harvest specifications.

    In previous years, the most significant changes (relative to the amount of assessed tonnage of fish) to the OFLs and ABCs from the proposed to the final harvest specifications have been based on the most recent NMFS stock surveys. These surveys provide updated estimates of stock biomass and spatial distribution, and changes to the models or the models' results used for producing stock assessments. Any changes to models used in stock assessments will be recommended by the Plan Team in November 2018 and then included in the final 2018 SAFE report. Model changes can result in changes to final OFLs, ABCs, and TACs. The final 2018 SAFE report will include the most recent information, such as catch data.

    The final harvest specification amounts for these stocks are not expected to vary greatly from the proposed harvest specification amounts published here. If the 2018 SAFE report indicates that the stock biomass trend is increasing for a species, then the final 2019 and 2020 harvest specifications may reflect an increase from the proposed harvest specifications. Conversely, if the 2018 SAFE report indicates that the stock biomass trend is decreasing for a species, then the final 2019 and 2020 harvest specifications may reflect a decrease from the proposed harvest specifications. In addition to changes driven by biomass trends, there may be changes in TACs due to the sum of ABCs exceeding 2 million mt. Since the regulations require TACs to be set to an OY between 1.4 and 2 million mt, the Council may be required to recommend TACs that are lower than the ABCs recommended by the Plan Team and the SSC, if setting TACs equal to ABCs would cause total TACs to exceed an OY of 2 million mt. Generally, total ABCs greatly exceed 2 million mt in years with a large pollock biomass. For both 2019 and 2020, NMFS anticipates that the sum of the ABCs will exceed 2 million mt. NMFS expects that the final total TAC for the BSAI for both 2019 and 2020 will equal 2 million mt each year.

    The proposed OFLs, ABCs, and TACs are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. The FMP specifies a series of six tiers to define OFLs and ABCs based on the level of reliable information available to fishery scientists. Tier 1 represents the highest level of information quality available, while Tier 6 represents the lowest.

    In October 2018, the SSC adopted the proposed 2019 and 2020 OFLs and ABCs recommended by the Plan Team for all groundfish species. The Council adopted the SSC's OFL and ABC recommendations. These amounts are unchanged from the final 2019 harvest specifications published in the Federal Register on February 27, 2018 (83 FR 8365), with the exception of the removal of the squid OFL and ABC. The Council adopted the AP's TAC recommendations, including the 1,200 mt increase in the BS pollock TAC because of the removal of the 2019 squid TAC of 1,200 mt. For 2019 and 2020, the Council recommended, and NMFS proposes, the OFLs, ABCs, and TACs listed in Table 1. The proposed ABCs reflect harvest amounts that are less than the specified OFLs. The sum of the proposed 2019 and 2020 ABCs for all assessed groundfish is 3,573,772 mt. The sum of the proposed TACs is 1,996,375 mt, which accounts for the increases in the BS and AI Pacific cod GHLs and subsequent reductions of the proposed BS and AI Pacific cod TACs. As discussed above, NMFS expects that the final total BSAI TAC for both 2019 and 2020 will equal 2 million mt each year.

    Specification and Apportionment of TAC Amounts

    The Council recommended proposed TACs for 2019 and 2020 Aleutian Islands sablefish, BS sablefish, BS and Eastern Aleutian Islands Atka mackerel, BS Pacific ocean perch, Central Aleutian Islands Pacific ocean perch, and Eastern Aleutian Islands Pacific ocean perch that are equal to the proposed ABCs. The Council recommended proposed TACs less than the respective proposed ABCs for all other species. Section 679.20(a)(5)(iii)(B)(1) requires the AI pollock TAC to be set at 19,000 mt when the AI pollock ABC equals or exceeds 19,000 mt. The Bogoslof pollock TAC is set to accommodate incidental catch amounts. TACs are set so that the sum of the overall TAC does not exceed the BSAI OY.

    The proposed groundfish OFLs, ABCs, and TACs are subject to change pending the completion of the final 2018 SAFE report and the Council's recommendations for the final 2019 and 2020 harvest specifications during its December 2018 meeting. These proposed amounts are consistent with the biological condition of groundfish stocks as described in the 2018 SAFE report, and have been adjusted for other biological and socioeconomic considerations. Pursuant to Section 3.2.3.4.1 of the FMP, the Council could recommend adjusting the final TACs if “warranted on the basis of bycatch considerations, management uncertainty, or socioeconomic considerations; or if required in order to cause the sum of the TACs to fall within the OY range.” Table 1 lists the proposed 2019 and 2020 OFL, ABC, TAC, initial TAC (ITAC), and CDQ amounts for groundfish for the BSAI. The proposed apportionment of TAC amounts among fisheries and seasons is discussed below.

    Table 1—Proposed 2019 and 2020 Overfishing Level (OFL), Acceptable Biological Catch (ABC), Total Allowable Catch (TAC), Initial TAC (ITAC), and CDQ Reserve Allocation of Groundfish in the BSAI 1 [Amounts are in metric tons] Species Area Proposed 2019 and 2020 OFL ABC TAC ITAC 2 CDQ 3 4 Pollock 4 BS 4,592,000 2,467,000 1,384,200 1,245,780 138,420 AI 37,431 30,803 19,000 17,100 1,900 Bogoslof 130,428 60,800 500 500 Pacific cod 5 BS 201,000 170,000 156,355 139,625 16,730 AI 28,700 21,500 14,835 13,248 1,587 Sablefish BS 4,576 2,061 2,061 876 77 AI 6,209 2,798 2,798 595 52 Yellowfin sole BSAI 295,600 267,500 156,000 139,308 16,692 Greenland turbot BSAI 13,540 11,473 5,294 4,500 n/a BS n/a 7,016 5,125 4,356 548 AI n/a 1,457 169 144 Arrowtooth flounder BSAI 75,084 64,494 14,000 11,900 1,498 Kamchatka flounder BSAI 12,022 7,317 5,000 4,250 Rock sole 6 BSAI 136,000 132,000 49,100 43,846 5,254 Flathead sole 7 BSAI 78,036 65,227 16,500 14,735 1,766 Alaska plaice BSAI 38,800 32,700 16,252 13,814 Other flatfish 8 BSAI 17,591 13,193 4,000 3,400 Pacific Ocean perch BSAI 50,098 41,212 37,880 33,332 n/a BS n/a 11,499 11,499 9,774 EAI n/a 9,715 9,715 8,675 1,040 CAI n/a 7,549 7,549 6,741 808 WAI n/a 12,449 9,117 8,141 976 Northern rockfish BSAI 15,563 12,710 6,500 5,525 Blackspotted and Rougheye rockfish 9 BSAI 829 678 225 191 EBS/EAI n/a 414 75 64 CAI/WAI n/a 264 150 128 Shortraker rockfish BSAI 666 499 150 128 Other rockfish 10 BSAI 1,816 1,362 845 718 BS n/a 791 275 234 AI n/a 571 570 485 Atka mackerel BSAI 97,200 84,400 72,500 64,743 7,758 EAI/BS n/a 33,780 33,780 30,166 3,614 CAI n/a 29,350 24,895 22,231 2,664 WAI n/a 21,270 13,825 12,346 1,479 Skates BSAI 44,202 36,957 27,000 22,950 Sculpins BSAI 53,201 39,995 5,000 4,250 Sharks BSAI 689 517 180 153 Octopuses BSAI 4,769 3,576 200 170 Total 5,936,050 3,573,772 1,996,375 1,785,636 195,105 1 These amounts apply to the entire BSAI management area unless otherwise specified. With the exception of pollock, and for the purpose of these harvest specifications, the BS includes the Bogoslof District. 2 Except for pollock, the portion of the sablefish TAC allocated to hook-and-line and pot gear, and the Amendment 80 species (Atka mackerel, Aleutian Islands Pacific ocean perch, yellowfin sole, rock sole, flathead sole, and Pacific cod), 15 percent of each TAC is put into a non-specified reserve. The ITAC for these species is the remainder of the TAC after the subtraction of these reserves. For pollock and Amendment 80 species, ITAC is the non-CDQ allocation of TAC (see footnote 3 and 4). 3 For the Amendment 80 species (Atka mackerel, flathead sole, Pacific cod, rock sole, yellowfin sole, and Aleutian Islands Pacific ocean perch), 10.7 percent of the TAC is reserved for use by CDQ participants (see §§ 679.20(b)(1)(ii)(C) and 679.31). Twenty percent of the sablefish TAC is allocated to hook-and-line gear or pot gear, 7.5 percent of the sablefish TAC is allocated to trawl gear, and 10.7 percent of the TACs for Bering Sea Greenland turbot and BSAI arrowtooth flounder are reserved for use by CDQ participants (see § 679.20(b)(1)(ii)(B) and (D)). The 2019 hook-and-line or pot gear portion of the sablefish ITAC and CDQ reserve will not be specified until the final 2019 and 2020 harvest specifications. Aleutian Islands Greenland turbot, “other flatfish,” Alaska plaice, Bering Sea Pacific ocean perch, Kamchatka flounder, northern rockfish, shortraker rockfish, blackspotted and rougheye rockfish, “other rockfish,” octopuses, skates, sculpins, and sharks are not allocated to the CDQ Program. 4 Under § 679.20(a)(5)(i)(A), the annual BS pollock TAC, after subtracting first for the CDQ directed fishing allowance (10 percent) and second for the incidental catch allowance (3.9 percent), is further allocated by sector for a pollock directed fishery as follows: Inshore—50 percent; catcher/processor—40 percent; and motherships—10 percent. Under § 679.20(a)(5)(iii)(B)(2), the annual AI subarea pollock TAC, after subtracting first for the CDQ directed fishing allowance (10 percent) and second for the incidental catch allowance (2,400 mt), is allocated to the Aleut Corporation for a directed pollock fishery. 5 The BS Pacific cod TAC is set to account for the 8 percent of the BS ABC for the State of Alaska's (State) guideline harvest level in State waters of the BS. The AI Pacific cod TAC is set to account for 31 percent of the AI ABC for the State guideline harvest level in State waters of the AI. 6 “Rock sole” includes Lepidopsetta polyxystra (Northern rock sole) and Lepidopsetta bilineata (Southern rock sole). 7 “Flathead sole” includes Hippoglossoides elassodon (flathead sole) and Hippoglossoides robustus (Bering flounder). 8 “Other flatfish” includes all flatfish species, except for halibut (a prohibited species), flathead sole, Greenland turbot, rock sole, yellowfin sole, arrowtooth flounder, Kamchatka flounder, and Alaska plaice. 9 “Blackspotted and Rougheye rockfish” includes Sebastes melanostictus (blackspotted) and Sebastes aleutianus (rougheye). 10 “Other rockfish” includes all Sebastes and Sebastolobus species except for Pacific ocean perch, northern, shortraker, and rougheye rockfish. Note: Regulatory areas and districts are defined at § 679.2 (BSAI = Bering Sea and Aleutian Islands management area, BS = Bering Sea subarea, AI = Aleutian Islands subarea, EAI = Eastern Aleutian district, CAI = Central Aleutian district, WAI = Western Aleutian district). Groundfish Reserves and the Incidental Catch Allowance (ICA) for Pollock, Atka Mackerel, Flathead Sole, Rock Sole, Yellowfin Sole, and AI Pacific Ocean Perch

    Section 679.20(b)(1)(i) requires NMFS to reserve 15 percent of the TAC for each target species category, except for pollock, hook-and-line and pot gear allocation of sablefish, and Amendment 80 species, in a non-specified reserve. Section 679.20(b)(1)(ii)(B) requires NMFS to allocate 20 percent of the hook-and-line or pot gear allocation of sablefish to the fixed gear sablefish CDQ reserve. Section 679.20(b)(1)(ii)(D) requires NMFS to allocate 7.5 percent of the trawl gear allocation of sablefish and 10.7 percent of BS Greenland turbot and arrowtooth flounder TACs to the respective CDQ reserves. Section 679.20(b)(1)(ii)(C) requires NMFS to allocate 10.7 percent of the TACs for Atka mackerel, AI Pacific ocean perch, yellowfin sole, rock sole, flathead sole, and Pacific cod to the respective CDQ reserves. Sections 679.20(a)(5)(i)(A) and 679.31(a) require allocation of 10 percent of the BS pollock TAC to the pollock CDQ directed fishing allowance (DFA). Sections 679.20(a)(5)(iii)(B)(2)(i) and 679.31(a) require 10 percent of the Aleutian Islands pollock TAC be allocated to the pollock CDQ DFA. The entire Bogoslof District pollock TAC is allocated as an ICA pursuant to § 679.20(a)(5)(ii) because the Bogoslof Area is closed to directed fishing for pollock by regulation (§ 679.22(a)(7)(i)(B)). With the exception of the hook-and-line or pot gear sablefish CDQ reserve, the regulations do not further apportion the CDQ reserves by gear.

    Pursuant to § 679.20(a)(5)(i)(A)(1), NMFS proposes a pollock ICA of 3.9 percent or 48,585 mt of the BS pollock TAC after subtracting the 10 percent CDQ reserve. This allowance is based on NMFS' examination of the pollock incidentally retained and discarded catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2000 through 2018. During this 19-year period, the pollock incidental catch ranged from a low of 2.2 percent in 2006 to a high of 4.6 percent in 2014, with a 19-year average of 3 percent. Pursuant to §§ 679.20(a)(5)(iii)(B)(2)(i) and (ii), NMFS proposes a pollock ICA of 14 percent or 2,400 mt of the AI pollock TAC after subtracting the 10-percent CDQ reserve. This allowance is based on NMFS' examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2003 through 2018. During this 16-year period, the incidental catch of pollock ranged from a low of 5 percent in 2006 to a high of 17 percent in 2014, with a 16-year average of 8 percent.

    Pursuant to §§ 679.20(a)(8) and (10), NMFS proposes ICAs of 4,000 mt of flathead sole, 6,000 mt of rock sole, 4,000 mt of yellowfin sole, 10 mt of Western Aleutian District Pacific ocean perch, 60 mt of Central Aleutian District Pacific ocean perch, 100 mt of Eastern Aleutian District Pacific ocean perch, 20 mt of Western Aleutian District Atka mackerel, 75 mt of Central Aleutian District Atka mackerel, and 800 mt of Eastern Aleutian District and BS Atka mackerel after subtracting the 10.7 percent CDQ reserve. These ICAs are based on NMFS' examination of the average incidental retained and discarded catch in other target fisheries from 2003 through 2018.

    The regulations do not designate the remainder of the non-specified reserve by species or species group. Any amount of the reserve may be apportioned to a target species that contributed to the non-specified reserve during the year, provided that such apportionments are consistent with § 679.20(a)(3) and do not result in overfishing (see § 679.20(b)(1)(i)).

    Allocations of Pollock TAC Under the American Fisheries Act (AFA)

    Section 679.20(a)(5)(i)(A) requires that BS pollock TAC be apportioned as a DFA, after subtracting 10 percent for the CDQ Program and 3.9 percent for the ICA, as follows: 50 percent to the inshore sector, 40 percent to the catcher/processor sector, and 10 percent to the mothership sector. In the BS, 45 percent of the DFA is allocated to the A season (January 20 to June 10), and 55 percent of the DFA is allocated to the B season (June 10 to November 1) (§§ 679.20(a)(5)(i)(B)(1) and 679.23(e)(2)). The AI directed pollock fishery allocation to the Aleut Corporation is the amount of pollock TAC remaining in the AI after subtracting 1,900 mt for the CDQ DFA (10 percent), and 2,400 mt for the ICA (§ 679.20(a)(5)(iii)(B)(2)). In the AI, the total A season apportionment of the pollock TAC (including the AI directed fishery allocation, the CDQ allowance, and the ICA) may equal up to 40 percent of the ABC for AI pollock, and the remainder of the pollock TAC is allocated to the B season (§ 679.20(a)(5)(iii)(B)(3)). Table 2 lists these proposed 2019 and 2020 amounts.

    Section 679.20(a)(5)(iii)(B)(6) sets harvest limits for pollock in the A season (January 20 to June 10) in Areas 543, 542, and 541. In Area 543, the A season pollock harvest limit is no more than 5 percent of the Aleutian Islands pollock ABC. In Area 542, the A season pollock harvest limit is no more than 15 percent of the Aleutian Islands pollock ABC. In Area 541, the A season pollock harvest limit is no more than 30 percent of the Aleutian Islands pollock ABC.

    Section 679.20(a)(5)(i)(A)(4) includes several specific requirements regarding BS pollock allocations. First, it requires that 8.5 percent of the pollock allocated to the catcher/processor sector be available for harvest by AFA catcher vessels with catcher/processor sector endorsements, unless the Regional Administrator receives a cooperative contract that allows the distribution of harvest among AFA catcher/processors and AFA catcher vessels in a manner agreed to by all members. Second, AFA catcher/processors not listed in the AFA are limited to harvesting not more than 0.5 percent of the pollock allocated to the catcher/processor sector. Table 2 lists the proposed 2019 and 2020 allocations of pollock TAC. Tables 13 through 16 list the AFA catcher/processor and catcher vessel harvesting sideboard limits. The BS inshore pollock cooperative and open access sector allocations are based on the submission of AFA inshore cooperative applications due to NMFS on December 1 of each calendar year. Because AFA inshore cooperative applications for 2019 have not been submitted to NMFS, and NMFS therefore cannot calculate 2019 allocations, NMFS has not included inshore cooperative tables in these proposed harvest specifications. NMFS will post 2019 AFA inshore pollock cooperative and open access sector allocations on the Alaska Region website at https://alaskafisheries.noaa.gov prior to the start of the fishing year on January 1, 2019, based on the harvest specifications effective on that date.

    Table 2 also lists proposed seasonal apportionments of pollock and harvest limits within the Steller Sea Lion Conservation Area (SCA). The harvest of pollock within the SCA, as defined at § 679.22(a)(7)(vii), is limited to no more than 28 percent of the DFA before 12:00 noon, April 1, as provided in § 679.20(a)(5)(i)(C). The A season pollock SCA harvest limit will be apportioned to each sector in proportion to each sector's allocated percentage of the DFA. Table 2 lists these proposed 2019 and 2020 amounts by sector.

    Table 2—Proposed 2019 and 2020 Allocations of Pollock TACS to the Directed Pollock Fisheries and to the CDQ Directed Fishing Allowances (DFA) 1 [Amounts are in metric tons] Area and sector 2019 and 2020
  • allocations
  • A season1 A season DFA SCA harvest
  • limit 2
  • B season 1 B season DFA
    Bering Sea subarea TAC 1,384,200 n/a n/a n/a CDQ DFA 138,420 62,289 38,758 76,131 ICA 1 48,585 n/a n/a n/a AFA Inshore 598,597 269,369 167,607 329,229 AFA Catcher/Processors 3 478,878 215,495 134,086 263,383 Catch by C/Ps 438,173 197,178 n/a 240,995 Catch by C/Vs 3 40,705 18,317 n/a 22,388 Unlisted C/P Limit 4 2,394 1,077 n/a 1,317 AFA Motherships 119,719 53,874 33,521 65,846 Excessive Harvesting Limit 5 209,509 n/a n/a n/a Excessive Processing Limit 6 359,158 n/a n/a n/a Total Bering Sea DFA (non-CDQ) 1,197,195 538,738 335,214 658,457 Aleutian Islands subarea ABC 30,803 n/a n/a n/a Aleutian Islands subarea TAC 19,000 n/a n/a n/a CDQ DFA 1,900 760 n/a 1,140 ICA 2,400 1,200 n/a 1,200 Aleut Corporation 14,700 7,361 n/a 4,339 Area harvest limit 7 n/a n/a n/a n/a Area 541 harvest limit 7 9,241 n/a n/a n/a Area 542 harvest limit 7 4,620 n/a n/a n/a Area 543 harvest limit 7 1,540 n/a n/a n/a Bogoslof District ICA 8 500 n/a n/a n/a 1 Pursuant to § 679.20(a)(5)(i)(A), the annual Bering Sea subarea pollock TAC, after subtracting the CDQ DFA (10 percent) and the ICA (3.9 percent), is allocated as a DFA as follows: Inshore sector—50 percent, catcher/processor sector (C/Ps)—40 percent, and mothership sector—10 percent. In the Bering Sea subarea, 45 percent of the DFA is allocated to the A season (January 20-June 10) and 55 percent of the DFA is allocated to the B season (June 10-November 1). Pursuant to § 679.20(a)(5)(iii)(B)(2)(i) through (iii), the annual AI pollock TAC, after subtracting first for the CDQ DFA (10 percent) and second for the ICA (2,400 mt), is allocated to the Aleut Corporation for a directed pollock fishery. In the AI subarea, the A season is allocated up to 40 percent of the ABC, and the B season is allocated the remainder of the directed pollock fishery. 2 In the Bering Sea subarea, pursuant to § 679.20(a)(5)(i)(c), no more than 28 percent of each sector's annual DFA may be taken from the SCA before noon, April 1. 3 Pursuant to § 679.20(a)(5)(i)(A)(4), 8.5 percent of the DFA allocated to listed C/Ps shall be available for harvest only by AFA catcher vessels (CVs) with CP endorsements delivering to listed CPs, unless there is a C/P sector cooperative for the year. 4 Pursuant to § 679.20(a)(5)(i)(A)(4)(iii), the AFA unlisted C/Ps are limited to harvesting not more than 0.5 percent of the C/Ps sector's allocation of pollock. 5 Pursuant to § 679.20(a)(5)(i)(A)(6), NMFS establishes an excessive harvesting share limit equal to 17.5 percent of the sum of the non-CDQ pollock DFAs. 6 Pursuant to § 679.20(a)(5)(i)(A)(7), NMFS establishes an excessive processing share limit equal to 30.0 percent of the sum of the non-CDQ pollock DFAs. 7 Pursuant to § 679.20(a)(5)(iii)(B)(6), NMFS establishes harvest limits for pollock in the A season in Area 541 no more than 30 percent, in Area 542 no more than 15 percent, and in Area 543 no more than 5 percent of the Aleutian Islands pollock ABC. 8 Pursuant to § 679.22(a)(7)(i)(B), the Bogoslof District is closed to directed fishing for pollock. The amounts specified are for incidental catch only and are not apportioned by season or sector.
    Allocation of the Atka Mackerel TACs

    Section 679.20(a)(8) allocates the Atka mackerel TACs to the Amendment 80 and BSAI trawl limited access sectors, after subtracting the CDQ reserves, ICAs for the BSAI trawl limited access sector and non-trawl gear sectors, and the jig gear allocation (Table 3). The percentage of the ITAC for Atka mackerel allocated to the Amendment 80 and BSAI trawl limited access sectors is listed in Table 33 to 50 CFR part 679 and in § 679.91. Pursuant to § 679.20(a)(8)(i), up to 2 percent of the Eastern Aleutian District and Bering Sea subarea Atka mackerel TAC may be allocated to vessels using jig gear. The percent of this allocation is recommended annually by the Council based on several criteria, including the anticipated harvest capacity of the jig gear fleet. The Council recommended, and NMFS proposes, a 0.5 percent allocation of the Atka mackerel TAC in the Eastern Aleutian District and Bering Sea subarea to jig gear in 2019 and 2020. This percentage is applied to the TAC after subtracting the CDQ reserve.

    Section 679.20(a)(8)(ii)(A) apportions the Atka mackerel TAC into two equal seasonal allowances. Section 679.23(e)(3) sets the first seasonal allowance for directed fishing with trawl gear from January 20 through June 10 (A season), and the second seasonal allowance from June 10 through December 31 (B season). Section 679.23(e)(4)(iii) applies Atka mackerel seasons to trawl CDQ Atka mackerel fishing. The ICA and jig gear allocations are not apportioned by season.

    Section 679.20(a)(8)(ii)(C)(1)(i) and (ii) limits Atka mackerel catch within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to 50 CFR part 679 and located west of 178° W longitude to no more than 60 percent of the annual TACs in Areas 542 and 543, and equally divides the annual TAC between the A and B seasons as defined at § 679.23(e)(3). Section 679.20(a)(8)(ii)(C)(2) requires that the annual TAC in Area 543 will be no more than 65 percent of the ABC in Area 543. Section 679.20(a)(8)(ii)(D) requires that any unharvested Atka mackerel A season allowance that is added to the B season be prohibited from being harvested within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to 50 CFR part 679 and located in Areas 541, 542, and 543.

    Table 3 lists the proposed 2019 and 2020 Atka mackerel season allowances, area allowances, and the sector allocations. One Amendment 80 cooperative has formed for the 2019 fishing year. Because all Amendment 80 vessels are part of the cooperative, no allocation to the Amendment 80 limited access sector is required. The 2020 allocations for Atka mackerel between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2019. NMFS will post 2020 Amendment 80 cooperatives and Amendment 80 limited access sector allocations on the Alaska Region website at https://alaskafisheries.noaa.gov prior to the start of the fishing year on January 1, 2020, based on the harvest specifications effective on that date.

    Table 3—Proposed 2019 and 2020 Seasonal and Spatial Allowances, Gear Shares, CDQ Reserve, Incidental Catch Allowance, and Amendment 80 Allocations of the BSAI Atka Mackerel TAC [Amounts are in metric tons] Sector 1 Season 234 2019 and 2020 allocation by area Eastern Aleutian District/Bering Sea Central Aleutian District 5 Western Aleutian District 5 TAC n/a 33,780 24,895 13,825 CDQ reserve Total 3,614 2,664 1,479 A 1,807 1,332 740 Critical habitat 5 n/a 799 444 B 1,807 1,332 740 Critical habitat 5 n/a 799 444 non-CDQ TAC n/a 30,166 22,231 12,346 Jig 6 Total 151 ICA Total 800 75 20 BSAI trawl limited access Total 2,921 2,216 A 1,461 1,108 Critical habitat 5 n/a 665 B 1,461 1,108 Critical habitat 5 n/a 665 Amendment 80 Total 26,293 19,941 12,326 A 13,147 9,970 6,163 Critical habitat 5 n/a 5,982 3,698 B 13,147 9,970 6,163 Critical habitat 5 n/a 5,982 3,698 1 Section 679.20(a)(8)(ii) allocates the Atka mackerel TACs, after subtracting the CDQ reserves, ICAs, and the jig gear allocation, to the Amendment 80 and BSAI trawl limited access sectors. The allocation of the ITAC for Atka mackerel to the Amendment 80 and BSAI trawl limited access sectors is established in Table 33 to 50 CFR part 679 and § 679.91. The CDQ reserve is 10.7 percent of the TAC for use by CDQ participants (see §§ 679.20(b)(1)(ii)(C) and 679.31). 2 Sections 679.20(a)(8)(ii)(A) and 679.22(a) establish temporal and spatial limitations for the Atka mackerel fishery. 3 The seasonal allowances of Atka mackerel are 50 percent in the A season and 50 percent in the B season. 4 Section 679.23(e)(3) authorizes directed fishing for Atka mackerel with trawl gear during the A season from January 20 to June 7, and the B season from June 10 to December 31. 5 Section 679.20(a)(8)(ii)(C)(1)(i) limits no more than 60 percent of the annual TACs in Areas 542 and 543 to be caught inside of Steller sea lion critical habitat; § 679.20(a)(8)(ii)(C)(1)(ii) equally divides the annual TACs between the A and B seasons as defined at § 679.23(e)(3); and § 679.20(a)(8)(ii)(C)(2) requires the TAC in Area 543 shall be no more than 65 percent of ABC in Area 543. 6 Section 679.20(a)(8)(i) requires that up to 2 percent of the Eastern Aleutian District and Bering Sea subarea TAC be allocated to jig gear after subtraction of the CDQ reserve. The amount of this allocation for 2019 and 2020 is proposed at 0.5 percent. The jig gear allocation is not apportioned by season. Allocation of the Pacific Cod TAC

    The Council sepa