Federal Register Vol. 83, No.37,

Need To Issue This Notice

SNAP offers nutrition assistance to millions of low-income individuals and families. SNAP is the largest federal nutrition assistance program in the United States. As a result of the Great Recession, the national unemployment rate peaked at 9.7 percent for Fiscal Year (FY) 2010. As with other recessions, there was a lag between the time that the national unemployment rate began to decrease and the time that the national poverty rate and SNAP participation began to decrease. SNAP participation peaked at an average of 47.6 million recipients per month in FY 2013. During that time period, the national average unemployment rate was 7.6 percent. In FY 2017, the program served an average of 42.1 million recipients per month, and the national average unemployment rate was 4.5 percent. As Americans get back to work, it is appropriate to review how SNAP can better promote work and self-sufficiency so that fewer Americans need assistance from the program.

The Department is soliciting public comments on potential policy, program, and regulatory changes that could advance its goal of addressing food insecurity by helping able-bodied SNAP recipients obtain and maintain employment and aligning program regulations with the President's Budget proposals related to ABAWDs. The Department will consider comments received through this Notice to help inform development of potential policy, program, or regulatory changes.

The Department seeks input on potential regulatory or other changes that might better support States in accurately identifying ABAWDs subject to the time limit and providing meaningful opportunities for them to move towards self-sufficiency. The Department is also asking whether changes should be made to the existing process by which State agencies request to waive the ABAWD time limit, the information and data States are required to provide in supporting the waiver request, and the Department's implementation and duration of the waiver approval. If so, the Department is asking for information on changes that would better support the Department's goals. Moreover, the Department seeks input on 15 percent exemptions and how they may be better used to support State efforts to serve ABAWDs. The Department is receptive to suggested changes that could be made within the current statutory authority as well as changes that may require new or revised statutory authority. The Department believes that this public comment can inform the development of any rule that may ultimately be proposed.

SNAP work-related policies are best understood as three distinct, but interrelated and mutually supportive areas: The general work requirements, SNAP Employment and Training (SNAP E&T) programs, and the ABAWD time limit and work requirement. These work-related policies, the people they affect, and the ways in which they interact are summarized below.

The general work requirements apply to people ages 16 through 59, except for those who are physically or mentally unfit for employment, care for a child under age 6 or an incapacitated person, are already employed 30 hours or more per week, are already participating in a work program, or are in school half-time or more. In order to be eligible for SNAP benefits, people who are subject to the general work requirements must register for work, report to an employer if referred by the State agency, accept a bona fide offer of a suitable job, not voluntarily quit a job or reduce their work hours below 30 hours a week, and participate in a SNAP E&T program or a workfare program if assigned by the State agency.

People subject to the general work requirements are commonly called “work registrants.” People that do not comply with the general work requirements without good cause are disqualified from receiving SNAP for a period of time. These disqualification periods can vary by State and circumstances. When a person subject to the general work requirements does not comply, the State must determine whether the person has good cause before imposing any disqualification. Examples of good cause include illness, household emergency, lack of transportation, or other circumstances beyond the person's control. In accordance with current law, if the State finds that a person has good cause, it must not disqualify them.

The ABAWD time limit and work requirement apply to people ages 18 through 49, unless they are already exempt from the general work requirements, medically certified as physically or mentally unfit for employment, responsible for a child under 18, or pregnant. ABAWDs are also work registrants and must meet the general work requirements. In addition, ABAWDs subject to the time limit must work and/or participate in a work program 80 hours per month or more, or participate in and comply with workfare in order to receive SNAP for more than 3 months in a 36-month period. Participation in SNAP E&T, which is a type of work program, is one way a person can meet the 80 hour per month ABAWD work requirement, but other work programs are acceptable as well.

State agencies can request to waive the ABAWD time limit if an area has an unemployment rate of over 10 percent or the State can meet one of the regulatory options to show it does not have a sufficient number of jobs to provide employment. If the time limit is waived, individuals are not required to meet the ABAWD work requirement in order to receive SNAP for more than 3 months in a 36-month period. However, even if the time limit is waived, ABAWDs remain subject to the general work requirements, as ABAWDs are work registrants, and the general work requirements cannot be waived. State agencies also have discretion to exempt, on a month-to-month basis, 15 percent of the individuals who would otherwise be subject to the time limit as estimated by the Department each year. Each 15 percent exemption extends eligibility to one ABAWD for one month.

The Department strongly supports the goal that individuals obtain gainful employment as a means to move to self-sufficiency. SNAP E&T programs are intended to help SNAP recipients gain skills, training, work, or experience that will increase their ability to obtain regular employment and become self-sufficient. The State agency must operate E&T programs, though it has significant flexibility in program design. The State determines who to serve through its E&T programs, what kind of activities to provide, and where to provide them. The State may provide other wrap-around services such as on-going case management, job coaching, or job retention services. The State is required to provide participant reimbursements for things that are necessary for participation in SNAP E&T such as transportation, books, safety equipment, or other items or services.

The State has the option to offer E&T on a voluntary basis to certain or all SNAP participants; or, the State can require all or certain work registrants to participate in E&T as a condition of eligibility, often referred to as “mandatory E&T”. If a work registrant is required to participate in E&T and does not comply without good cause, they are disqualified from receiving SNAP as explained above under The General Work Requirements. In deciding whether to require E&T participation the State must carefully consider its capacity to serve E&T participants and provide reimbursements for participants with access barriers such as lack of transportation or child care.

Currently, States have several options to provide ABAWDs nutrition assistance while getting experience or training that will help them get jobs and become self-sufficient. States may refer ABAWDs to other work programs such as State or local programs or programs operated through the Workforce Innovation Opportunity Act (WIOA) American Job Centers (AJCs). States may provide ABAWDs a slot in a workfare program or a SNAP E&T Program. However, all of these options may have their own limitations such as funding, capacity, or competing State priorities.

There is no current requirement that States serve any or all ABAWDs through their SNAP E&T programs. However, if the State does require ABAWDs who are subject to the time limit to participate in E&T, it must apply the time limit and disqualify ABAWDs who fail to comply with the mandatory E&T requirements through the sanction process. In addition, States are eligible for a portion of a pool of $20 million in additional E&T funds if they pledge to offer all ABAWDs who are in the last month of their 3-month time limit a slot in an E&T component that fulfills the work requirement. These 100 percent federal funds are allocated across all pledge States based on the number of ABAWDs in each participating State, as a percentage of ABAWDs in all of the participating States.

The Department is concerned that, in some cases, the State flexibilities provided under 7 CFR 273.7 and 7 CFR 273.24 have been used in ways that do not strengthen the goal of helping SNAP recipients find and keep work when jobs are sufficiently available. In particular, the ABAWD time limit waivers represent an area of concern for the Department.

The decision to request and implement an ABAWD time limit waiver rests with the States. States can request to waive some areas in the State but not others, and not all States that are eligible for ABAWD time limit waivers request one. Economic conditions in the wake of the Great Recession resulted in an increase in the use of ABAWD time limit waivers. The American Recovery and Reinvestment Act suspended the time limit across the country from April 1, 2009, through September 30, 2010, effectively waiving the time limit in all 50 States, the District of Columbia, Guam, and the Virgin Islands for the second half of FY 2009 and all of FY 2010. From October 2010 through December 2013, the vast majority of States qualified for and continued to implement statewide ABAWD time limit waivers, meaning the waivers covered the entire State or jurisdiction.

Since that time, as economic conditions improved, there has been a decline in the use of these waivers. In the fourth quarter of FY 2013, 45 states, the District of Columbia, Guam, and the Virgin Islands had waivers of the ABAWD time limit. Of those, 42 covered the entire state or jurisdiction and 6 covered only certain areas in the state or jurisdiction. In the fourth quarter of FY 2017, 33 states, the District of Columbia, Guam, and the Virgin Islands had waivers of the ABAWD time limit. Of those, 9 covered the entire state or jurisdiction, and 27 covered only certain areas in the state or jurisdiction. However, the Department is concerned that the number of areas waived has not decreased as much as would be expected during the continued decline in unemployment rates over this time period. For these reasons, the Department is seeking comments on how to ensure the waiver criteria best reflects economic conditions.

The following questions represent particular areas in which the Department is interested in receiving comments. The questions are focused on ideas for regulatory or policy changes and seek information on better ways to meet the needs of SNAP participants and State agencies. However, the Department also invites commenters to address additional issues that are not described below but are within the scope of this review, particularly as it relates to opportunities to help participants move to self-sufficiency. Other comments that are not within the scope of this Notice will not be considered; therefore please refrain from including any comments that are not responsive to this particular request.

The Department believes that this review will benefit from a broad scope of public input. However, in addressing the questions that follow, commenters are encouraged to be as specific as possible. Please be sure to include the rationale underlying any suggested changes.

1. The Department is reviewing how it could take action on limiting ABAWD waivers as proposed in the President's budget proposals. In light of the Department's interest in helping SNAP participants find and maintain meaningful employment, how could the process for requesting to waive the time limit, the information needed to support waiver approval, and the waiver eligibility parameters be changed in order to provide appropriate relief for areas of high unemployment and a clearly demonstrated lack of jobs?

(a) How could the definition of “lack of sufficient jobs” be revised to better support these goals?

(b) States currently have discretion to define the area they are requesting to waive. Should States maintain this flexibility? Should an “economic area” be limited in geographic scope, such as to a single county, metropolitan area, or labor market area?

(c) Should FNS accept data from additional sources of information that are currently not considered? If so:

1. What data sources would that be?

2. What review process should FNS use to verify the validity of the data?

(d) How recent should the data and information used in support of a waiver be in relation to the waiver implementation date?

(e) Waivers are typically approved for 1 year, although under certain criteria 2 year waivers are available. Should FNS consider waivers of different time periods? If so, what time period and under what conditions?

2. How can existing authority and resources be best used to support ABAWDs as they transition to meaningful work and self-sufficiency? How could the Department better support State efforts to assess individuals' work readiness and identify appropriate services to help participants obtain and retain employment?

(a) What challenges and barriers do States face in helping ABAWDs find and maintain employment? What do States need to build or strengthen their capacity, investment, and expertise in working with this population?

(b) What is the appropriate role of States in assessing ABAWDs for barriers to employment, job skills, and career interests in order identify appropriate opportunities for fulfilling the work requirements? At what point in the process is this most useful? During the interview? After certification?

(c) How can existing resources be leveraged by States to help ABAWDs find and maintain employment? Are there State/local/Federal or other stakeholders that can be leveraged to provide holistic services to ABAWDs?

(d) Are there evidence-based activities that States could offer through their SNAP E&T programs that would help reduce barriers to employment among ABAWDs? What kinds of support services, job-retention services and other activities would increase success of ABAWDs moving into gainful employment?

(e) Are there additional ways that States could incentivize employers to provide jobs to ABAWDs?

(f) Should ABAWDs be subject to additional reporting requirements or be limited to a specific type of reporting system (e.g., change reporting, monthly reporting, quarterly reporting, or simplified reporting)? Have States that have assigned ABAWDs to a reporting system other than simplified reporting found this to be beneficial?

(g) What approaches have States found effective in communicating with ABAWDs to educate them on the program's work requirements, tools and resources that can help them find or keep employment, and crucial administrative actions or deadlines they must adhere to?

3. The accurate determination of whether an individual is physically or mentally unfit for employment is fundamental to applying the time limit to the proper individuals, and exempting others, consistent with the Act. In addition, it allows States to focus work strategies on those individuals who are truly capable of benefiting from them.

(a) What is the appropriate scope of conditions and indicators of physical or mental unfitness for employment under current statutory authority, particularly in State determinations of whether an individual is obviously physically or mentally unfit for employment? What level of State flexibility is appropriate in this area? Why?

(b) How do current certification processes (use of technology, lack of face-to-face interaction) affect the ability to determine exceptions or exemptions to the ABAWD time limit? How can these processes be modified or enhanced to best support these determinations, while providing any needed reasonable accommodations for individuals?

(c) Who should determine whether a participant is fit to work? What technical and information resources, or other resources, would best support States to better screen for unfitness for employment and other exceptions to the ABAWD time limit? What performance and/or accountability measures would support this process?

(d) How can the Department/States better engage and serve individuals determined to be unfit for employment? How can State agencies provide these individuals with services or opportunities that may increase their fitness for work?

(e) What are best practices for the use of 15 percent exemptions in supporting the appropriate application of ABAWD requirements?

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This action has been determined to be significant and was reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866.

This Advanced Notice of Proposed Rulemaking is not a regulatory action under Executive Order 13771.

This Advance Notice of Proposed Rulemaking (ANPRM) has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Food and Nutrition Service (FNS) has assessed the impact of this ANPRM on Indian tribes and determined that this ANPRM does not, to our knowledge, have tribal implications that require tribal consultation under E.O. 13175. If a Tribe requests consultation, FNS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

The Department of Energy (DOE) published a Request for Information (RFI) on November 28, 2017 (82 FR 56181) requesting feedback on the design, value, and solutions to potential challenges of revising the U.S. Appliance and Equipment Energy Conservation Standards (ECS) program to include additional compliance flexibilities, with the goal of reducing compliance costs, enhancing consumer choice and maintaining or increasing energy savings. The comment period for the RFI was previously February 26, 2018. In a letter dated February 9, 2018, Edison Electric Institute (EEI) requested that the comment period for the RFI be extended to March 9, 2018, to allow more time for member companies to submit information to EEI. (EERE-2017-BT-STD-0059-0015) DOE also received a letter dated February 13, 2018, from the Air-Conditioning, Heating, & Refrigeration Institute (AHRI) requesting that the comment period be extended until March 26, 2018, to allow more time for their members to submit information to AHRI. (EERE-2017-BT-STD-0059-0016) DOE grants these requests and extends the comment period until March 26, 2018.

The Secretary of Energy has approved the publication of this document.

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-2018-0114; Product Identifier 2017-NM-167-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.

We have received a report of IFS forward upper fire seal failures and damage to thermal insulation blankets in the forward upper area of the TR. Investigation revealed that the root cause of the failures is a scrubbing and pinching condition at the upper end cap of the IFS forward upper fire seal during TR closing. The failure of the IFS forward upper fire seal causes the loss of seal pressurization, which then allows fan bypass air to enter the engine core compartment. Fan bypass air entering the engine core compartment could degrade the ability to detect and extinguish an engine fire, resulting in an uncontrolled fire. Furthermore, fan bypass air entering the engine core compartment could cause damage to the TR insulation blanket, resulting in thermal damage to the TR inner wall, the subsequent release of engine exhaust components, and consequent damage to the critical areas of the airplane.

We reviewed Boeing Alert Service Bulletin B787-81205-SB780033-00, Issue 001, dated November 1, 2017. This service information describes procedures for an inspection to determine the part number of the IFS forward upper fire seal and applicable on-condition actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We 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.

This proposed AD would require accomplishment of the actions identified as “RC” (required for compliance) in the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB780033-00, Issue 001, dated November 1, 2017, described previously, except as discussed under “Differences Between this Proposed AD and the Service Information,” and 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-2018-0114.

Boeing Alert Service Bulletin B787-81205-SB780033-00, Issue 001, dated November 1, 2017, addresses only Model 787-8 and 787-9 airplanes powered by Rolls Royce Trent 1000 engines (excluding the Rolls Royce Trent 1000-TEN engine, which was recently certified). IFS forward upper fire seals having part number (P/N) 725Z3171-127 or P/N 725Z3171-128 can be installed on all Rolls Royce Trent 1000 engines, including the recently certified Rolls Royce Trent 1000-TEN engine. To prevent the installation of a TR with an unsafe fire seal on a Model 787 airplane, this proposed AD would apply to all Model 787 series airplanes (including future Model 787-10) powered by Rolls Royce Trent 1000 engines (including the Rolls Royce Trent 1000-TEN engine).

We estimate that this proposed AD affects 13 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

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:

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.

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.

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

1. In this Notice of Proposed Rulemaking (NOPR), the Commission proposes to clarify the title and text of Rule 216 of the Commission's Rules of Practice and Procedure, 18 CFR 385.216. The Commission proposes to adopt a more accurate title of “Withdrawal of pleadings (Rule 216).” The Commission also proposes to clarify the text of the Rule.

2. The Commission proposes two changes to Rule 216. First, the current title may confuse some readers by implying that Rule 216 governs the withdrawal of tariff or rate filings, which are instead governed by separate regulations.1 Thus, the Commission proposes changing the title from “Withdrawal of pleadings and tariff or rate filings (Rule 216)” to “Withdrawal of pleadings (Rule 216).”

3. Second, the Commission proposes changing the first sentence of Rule 216(a) to read, “Any person may seek to withdraw its pleading by filing a notice of withdrawal.” This change clarifies that it is the person who has submitted a pleading that may withdraw that pleading. The Commission also proposes a conforming change, to refer to “person” rather than “party,” in Rule 216(c).

4. Review by the Office of Management and Budget, pursuant to section 3507(d) of the Paperwork Reduction Act of 1995, is not required since this NOPR does not contain new or modified information collection or recordkeeping requirements.

5. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.2 Section 380.4(a)(1) of the Commission's regulations exempts certain actions from the requirement that an Environmental Analysis or Environmental Impact Statement be prepared.3 Included is an exemption for procedural actions. As this NOPR falls within that exemption, issuance of the NOPR does not represent a major federal action having a significant adverse effect on the human environment under the Commission's regulations implementing the National Environmental Policy Act, and, thus, does not require an Environmental Analysis or Environmental Impact Statement.

6. The Regulatory Flexibility Act of 1980 (RFA) 4 generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities. This NOPR concerns clarifications to agency procedure. The Commission certifies that the proposed clarifications will not have an economic impact upon participants in Commission proceedings and, therefore, an analysis under the RFA is not required.

7. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due March 26, 2018. Comments must refer to Docket No. RM18-7-000, and must include the commenter's name, the organization they represent, if applicable, and their address in their comments.

8. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

9. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426.

10. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

11. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A, Washington, DC 20426.

12. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

13. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected].

In consideration of the foregoing, the Commission proposes to amend Part 385, Chapter I, Title 18, Code of Federal Regulations, as follows.

(a) Filing. Any person may seek to withdraw its pleading by filing a notice of withdrawal. The procedures provided in this section do not apply to withdrawals of tariff or rate filings, which may be withdrawn only as provided in the regulations under this chapter.

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

On January 22, 2010, the EPA established a primary NO2 NAAQS at 100 parts per billion (ppb), averaged over one hour, supplementing the existing annual standard (75 FR 6474). Later that year, on June 2, 2010, the EPA promulgated a revised primary SO2 NAAQS at 75 ppb, based on a three-year average of the annual 99th percentile of one-hour daily maximum concentrations (75 FR 35520). More recently, on December 14, 2012, the EPA lowered the level of the primary annual PM2.5 NAAQS to 12 μg/m3 and retained the remaining particulate matter standards (January 15 2013, 78 FR 3086). Whenever a new or revised standard is promulgated, the CAA requires states to submit a plan for the implementation, maintenance, and enforcement of the standard, commonly referred to as infrastructure requirements. On September 13, 2013, the EPA issued guidance to help states address these infrastructure requirements (2013 Guidance).1 As noted in the 2013 Guidance, to the extent an existing SIP already meets the CAA section 110(a)(2) requirements, states may certify that fact in their submission to the EPA.

On December 27, 2013, Oregon made an infrastructure SIP submission for the 2010 NO2 and 2010 SO2 NAAQS.2 Later, on October 20, 2015, Oregon made an infrastructure SIP submission for the 2012 PM2.5 NAAQS.3 Included in these submissions were specific rule revisions made to implement the revised standards in Oregon. For a detailed discussion of the submitted rule changes, please see Section V. below.

As part of this action we are also addressing a SIP revision submitted by Oregon on July 18, 2017. The July 18, 2017, submission updated an Oregon rule to account for a change to the federal ozone standard. We note that this update to the ozone standard in the Oregon SIP is not relevant to our infrastructure action on the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS, and is only being included in this action for efficiency. For a detailed discussion of this rule change, please see Section V. below.

CAA section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. CAA section 110(a)(2) lists specific elements that states must meet for infrastructure SIP requirements related to a newly established or revised NAAQS. The requirements, with corresponding CAA subsections, are listed below:

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C): Program for enforcement of control measures.

• 110(a)(2)(D): Interstate transport.

• 110(a)(2)(E): Adequate resources.

• 110(a)(2)(F): Stationary source monitoring system.

• 110(a)(2)(G): Emergency power.

• 110(a)(2)(H): Future SIP revisions.

• 110(a)(2)(I): Areas designated nonattainment and meet the applicable requirements of part D.

• 110(a)(2)(J): Consultation with government officials; public notification; and Prevention of Significant Deterioration (PSD) and visibility protection.

• 110(a)(2)(K): Air quality modeling/data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

The EPA's 2013 Guidance restated our interpretation that two elements are not governed by the three-year submission deadline in CAA section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are due on separate schedules, pursuant to CAA section 172 and the various pollutant-specific subparts 2 through 5 of part D. These are submissions required by: (i) CAA section 110(a)(2)(C), to the extent that subsection refers to a permit program as required in part D, title I of the CAA, and (ii) CAA section 110(a)(2)(I). As a result, this action does not address CAA section 110(a)(2)(C) with respect to nonattainment new source review (NSR) or CAA section 110(a)(2)(I). The EPA has also determined that the CAA section 110(a)(2)(J) provision on visibility is not triggered by a new NAAQS because the visibility requirements in part C, title I of the CAA are not changed by a new NAAQS.

We are proposing to approve Oregon's December 23, 2013, and October 20, 2015, submissions for certain infrastructure requirements. Our most recent action on an Oregon infrastructure submission was published on June 24, 2014 (79 FR 35693). In the preamble of the proposal for that action, we published a discussion of the EPA's overall approach to review of these types of submissions. Please see our April 17, 2014, proposed rule for this discussion (79 FR 21679, at page 21680).

CAA section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA.

State submissions: Oregon's submissions cite multiple Oregon air quality laws and SIP-approved regulations to address this element for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. Oregon Revised Statutes (ORS) 468A.035 General Comprehensive Plan provides authority to the Oregon Department of Environmental Quality (ODEQ) to develop a general comprehensive plan for the control or abatement of air pollution. ORS 468.020 Rules and Standards gives the Oregon Environmental Quality Commission (EQC) authority to adopt rules and standards to perform functions vested by law. ORS 468A.025 Air Purity Standards provides the EQC with authority to set air quality standards, emission standards, and emission treatment and control provisions. ORS 468A.040 Permits; Rules provides that the EQC may require permits for specific sources, type of air contaminant or specific areas of the state. The Oregon submissions also cite these other laws and regulations:

EPA analysis: Oregon regulates emissions of NO2, SO2, and PM2.5 (and nitrogen oxides (NOX) and sulfur dioxide (SO2) as precursors to PM2.5) through its SIP-approved new source review (NSR) permitting program, in addition to provisions described below. We recently approved updates to the Oregon ambient air quality standards in Division 202 to account for the 2010 NO2 and 2010 SO2 NAAQS (82 FR 47122, October 10, 2017). In this action, we are proposing to approve further updates to Division 202 for the 2012 PM2.5 NAAQS, at OAR 340-202-0060. For a detailed discussion of the update to Division 202, see Section V. below.

Oregon has no areas designated nonattainment for the 2010 NO2 and 2012 PM2.5 NAAQS, and the EPA is still in the process of completing designations for the 2010 SO2 NAAQS. We note, however, that the EPA does not consider SIP requirements triggered by the nonattainment area mandates in part D, title I of the CAA to be governed by the submission deadline of CAA section 110(a)(1). Regulations and other control measures for purposes of attainment planning under part D, title I of the CAA are due on a different schedule than infrastructure SIPs.

Oregon's SIP-approved NSR program is administered through Division 216 Air Contaminant Discharge Permits. The EPA most recently approved revisions to Oregon's NSR program as meeting federal requirements on October 10, 2017 (82 FR 47122). The program regulates new and modified stationary sources of NO2, SO2, direct PM2.5, and nitrogen oxides (NOX) and sulfur dioxide (SO2) as precursors to PM2.5.

In addition to permitting provisions, Oregon's SIP contains numerous rules that limit NOX, SO2, and particulate matter emissions. These rules (listed above) include visible emissions standards, particulate emissions standards, requirements for fuel burning equipment and fuel sulfur content, grain loading standards, refuse burning limitations, emission limits for wood products industries and other industries, residential wood heating restrictions, field burning rules, and motor vehicle pollution controls. As a result, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(A) for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to the EPA upon request.

State submissions: The Oregon submissions reference ORS 468.035(a-e, m) Functions of the Department which provides authority to conduct and supervise inquiries and programs to assess and communicate air conditions and to obtain necessary resources (assistance, materials, supplies, etc.) to meet these responsibilities. The submissions also reference Division 212 Stationary Source Testing and Monitoring regulations.

EPA analysis: A comprehensive air quality monitoring plan, intended to meet federal requirements, was originally submitted by Oregon on December 27, 1979 (40 CFR 52.1970) and approved by the EPA on March 4, 1981 (46 FR 15136). The plan includes statutory and regulatory authority to establish and operate an air quality monitoring network, including NO2, SO2, and PM2.5 monitoring. Oregon's SIP-approved regulations at Division 212 govern stationary source testing and monitoring in accordance with federal reference methods. Every five years, Oregon assesses the adequacy of the state monitoring network and submits that assessment to the EPA for review. In practice, Oregon operates a comprehensive monitoring network, including NO2, SO2, and PM2.5 monitoring, compiles and analyzes collected data, and submits the data to the EPA's Air Quality System on a quarterly basis. Therefore, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(B) for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(C) requires states to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources, including a program to meet PSD and nonattainment NSR requirements.

State submissions: The Oregon submissions refer to ORS 468.090-140 Enforcement which provides the ODEQ with authority to investigate complaints, investigate and inspect sources for compliance, access records, commence enforcement procedures, and impose civil penalties. In addition, ORS 468.035 Functions of the Department, paragraphs (j) and (k), provide the ODEQ with authority to enforce Oregon air pollution laws and compel compliance with any rule, standard, order, permit or condition. The submissions also cite:

EPA analysis: The EPA is proposing to find that Oregon code provisions provide the ODEQ with authority applicable to the 2010 NO2, 2010 SO2, and 2012 PM2.5 standards to enforce the air quality laws, regulations, permits, and orders promulgated pursuant to ORS Chapters 468 and 468A. The ODEQ staffs and maintains an enforcement program to ensure compliance with SIP requirements. The ODEQ Director, at the direction of the Governor, may enter a cease and desist order for polluting activities that present an imminent and substantial danger to public health (ORS 468.115). Enforcement cases may be referred to the state Attorney General's office for civil or criminal enforcement.

To generally meet the requirements of CAA section 110(a)(2)(C) for regulation of construction of new or modified stationary sources, a state is required to have PSD, nonattainment NSR, and minor NSR permitting programs adequate to implement the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. As explained above, we are not in this action evaluating nonattainment-related provisions, including the nonattainment NSR program required by part D, title I of the CAA.

Oregon's federally enforceable state operating permit program, at Division 216 Air Contaminant Discharge Permits, is also the administrative permit mechanism used to implement the SIP-approved NSR program. We most recently approved revisions to the NSR program (Divisions 200, 202, 209, 212, 216, 222, 224, 225, and 268) as meeting federal requirements at 40 CFR 51.160 through 164 (minor NSR) and 40 CFR 51.166 (PSD) on October 10, 2017 (82 FR 47122). The Oregon minor NSR and PSD rules meet current requirements for all regulated NSR pollutants. Therefore, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(C) for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(D)(i) addresses four separate elements, or “prongs.” CAA section 110(a)(2)(D)(i)(I) requires state SIPs to contain adequate provisions prohibiting emissions which will contribute significantly to nonattainment of the NAAQS in any other state (prong 1), and adequate provisions prohibiting emissions which will interfere with maintenance of the NAAQS by any other state (prong 2). CAA section 110(a)(2)(D)(i)(II) requires state SIPs to contain adequate provisions prohibiting emissions which will interfere with any other state's required measures to prevent significant deterioration (PSD) of its air quality (prong 3), and adequate provisions prohibiting emissions which will interfere with any other state's required measures to protect visibility (prong 4).

CAA section 110(a)(2)(D)(ii) states SIPs must include provisions ensuring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement). CAA section 126 requires notification to neighboring states of potential impacts from a new or modified major stationary source, and specifies how a state may petition the EPA when a major source or group of stationary sources in a state is thought to contribute to certain pollution problems in another state. CAA section 115 governs the process for addressing air pollutants emitted in the United States that cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare in a foreign country.

State submissions: The Oregon submissions address all interstate transport requirements of the CAA, however, we intend to address certain of these requirements in a separate, future action, specifically, CAA section 110(a)(2)(D)(i)(I) prongs 1 and 2. This proposed action addresses the remainder: 110(a)(2)(D)(i)(II) prongs 3 and 4, and 110(a)(2)(D)(ii). To meet these provisions, the Oregon submissions reference the state's SIP-approved NSR program and the state's SIP-approved regional haze plan. The Oregon submissions also reference Division 209 Public Participation, approved as part of the Oregon NSR program, and assert that Oregon regulations are consistent with federal requirements in Appendix N of 40 CFR part 50 pertaining to the notification of interstate pollution abatement.

EPA analysis: The EPA believes that the PSD sub-element of CAA section 110(a)(2)(D)(i)(II) (prong 3) is satisfied where major new and modified stationary sources in attainment and unclassifiable areas are subject to a SIP-approved PSD program. The EPA most recently approved revisions to Oregon's NSR program as meeting federal PSD requirements on October 11, 2017 (82 FR 47122). Therefore, we are proposing to approve the Oregon SIP as meeting CAA section 110(a)(2)(D)(i)(II) prong 3 with respect to PSD for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

The EPA believes, as noted in the 2013 Guidance, where a state's regional haze plan has been approved as meeting all current obligations, a state may rely upon those provisions in support of its demonstration that it satisfies CAA section 110(a)(2)(D)(i)(II) as it relates to visibility (prong 4). On July 5, 2011, the EPA approved portions of the Oregon regional haze plan, including the requirements for best available retrofit technology (76 FR 38997). We approved the remaining elements of the Oregon regional haze plan on August 22, 2012 (77 FR 50611). Because we approved the Oregon plan as meeting regional haze requirements, we are proposing to approve the Oregon SIP as meeting CAA section 110(a)(2)(D)(i)(II) prong 4 visibility requirements with respect to the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

The Division 209 public notice provisions in Oregon's SIP-approved NSR program require that for major NSR permit actions, Oregon must provide notice to neighboring states, among other officials and agencies. This notice requirement is consistent with CAA section 126(a). In addition, Oregon has no pending obligations under section 115 or 126(b) of the CAA. Therefore, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(D)(ii) for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(E) requires states to provide (i) necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out the SIP (and is not prohibited by any provision of federal or state law from carrying out the SIP or portion thereof), (ii) requirements that the state comply with the state board provisions under CAA section 128 and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, the state has responsibility for ensuring adequate implementation of such SIP provision.

State submissions: With respect to sub-element (E)(i), the Oregon submissions cite ORS 468.035 Functions of Department which provides the ODEQ authority to employ personnel, purchase supplies, enter into contracts, and to receive, appropriate, and expend federal and other funds for purposes of air pollution research and control. In addition, ORS 468.045 Functions of Director; Delegation provides the ODEQ Director with authority to hire, assign, reassign, and coordinate personnel of the department and to administer and enforce the laws of the state concerning environmental quality. In addition, the submission cites the CAA section 105 grants received from the EPA and matched through the Oregon General Fund.

Turning to sub-element (E)(ii), the submissions cite OAR 340-200-0100 Purpose, OAR 340-200-0110 Public Interest Representation, and OAR 340-200-0120 Disclosure of Potential Conflicts of Interest. The submissions state that the EPA approved the listed regulatory provisions as meeting the requirements of CAA section 128 on January 22, 2003 (68 FR 2891).

With respect to sub-element (E)(iii), the submissions cite ORS 468.020 Rules and Standards which requires a public hearing on any proposed rule or standard prior to adoption. ORS 468.035(c) Functions of Department provides the ODEQ authority to advise, consult, and cooperate with other states, state and federal agencies, or political subdivisions on all air quality control matters. ORS 468A.010 Policy calls for a coordinated statewide program of air quality control with responsibility allocated between the state and the units of local government. ORS 468A.100-180 Regional Air Quality Control Authorities describes the establishment, role and function of regional air quality control authorities. State regulations Division 200 specify LRAPA has authority in Lane County and defines the term Regional Agency. Division 204 includes designation of control areas within Lane County. Division 216 Air Contaminant Discharge Permits includes permitting authority for LRAPA.

EPA analysis: We are proposing to find that the above-referenced provisions provide Oregon with adequate authority to carry out SIP obligations with respect to the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS as required by CAA section 110(a)(2)(E)(i). We are also proposing to approve the Oregon SIP as meeting CAA section 110(a)(2)(E)(ii) because we previously approved the SIP for purposes of CAA section 128. On January 22, 2003, we approved OAR 340-200-0100 through OAR 340-200-0120 as meeting CAA section 128 (68 FR 2891). In addition, we previously approved LRAPA Title 12, Section 025 (recodified at LRAPA Title 13, section 025) as meeting CAA section 128 on March 1, 1989 (54 FR 8538).

We are proposing to find that Oregon has provided necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, the state has responsibility for ensuring adequate implementation of the SIP as required by CAA section 110(a)(2)(E)(iii). Therefore, we are proposing to approve the Oregon SIP as meeting the requirements of CAA sections 110(a)(2)(E) for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(F) requires (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to the CAA, which reports shall be available at reasonable times for public inspection.

State submissions: The Oregon submissions refer to the following statutory and regulatory provisions for source emissions monitoring, reporting, and correlation with emission limits or standards:

EPA analysis: The Oregon statutory provisions listed above provide authority to establish a program for measurement and testing of sources, including requirements for sampling and testing with respect to the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. The Oregon regulations cited above require facilities to monitor and report emissions, including requirements for monitoring methods and design, and monitoring and quality improvement plans. Oregon's stationary source reporting requirements include maintaining written records to demonstrate compliance with emission rules, limitations, or control measures, and requirements for reporting and recordkeeping. Information is made available to the public through public processes outlined at OAR 340-209 Public Participation.

Oregon submits emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. Oregon submits a comprehensive emissions inventory every three years and reports emissions for certain larger sources annually through the EPA's online Emissions Inventory System. Oregon reports emissions data for the six criteria pollutants and also voluntarily reports emissions of hazardous air pollutants. The EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the website https://www.epa.gov/air-emissions-inventories.

Based on the analysis above, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including adequate contingency plans to implement the emergency episode provisions in their SIPs.

State submissions: The Oregon submissions cite ORS 468-115 Enforcement in Cases of Emergency which authorizes the ODEQ Director, at the direction of the Governor, to enter a cease and desist order for polluting activities that present an imminent and substantial danger to public health. In addition, OAR 340-206 Air Pollution Emergencies authorizes the ODEQ Director to declare an air pollution alert or warning, or to issue an advisory to notify the public. OAR 340-214 Stationary Source Reporting Requirements governs reporting of emergencies and excess emissions and reporting requirements.

EPA analysis: Section 303 of the CAA provides authority to the EPA Administrator to restrain any source from causing or contribution to emissions which present an “imminent and substantial endangerment to public health or welfare, or the environment.” We find that ORS 468-115 Enforcement in Cases of Emergency provides emergency order authority comparable to CAA section 303.

We recently approved revisions to the Oregon air pollution emergency rules at OAR 340-206 Air Pollution Emergencies on October 11, 2017 (82 FR 47122). Oregon's rules are consistent with federal emergency episode requirements for NO2, SO2, and PM2.5 (prevention of air pollution emergency episodes, 40 CFR part 51 subpart H; sections 51.150 through 51.153). Accordingly, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(H) requires that SIPs provide for revision of a state plan (i) from time to time as may be necessary to take account of revisions of a national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining the standard, and (ii), except as provided in paragraph 110(a)(3)(C), whenever the Administrator finds that the SIP is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements under the CAA.

State submissions: The Oregon submissions refer to ORS 468.020 Rules and Standards which requires public notice on any proposed rule or standard prior to adoption, and ORS 468A.035 “General Comprehensive Plan” which requires the ODEQ to develop a general comprehensive plan for the control or abatement of air pollution. The submissions also refer to OAR 340-200-0040 State of Oregon Clean Air Act Implementation Plan which provides for revisions to the Oregon SIP and submission of revisions to the EPA, including standards submitted by a regional authority and adopted verbatim into state rules.

EPA analysis: As cited above, the Oregon SIP provides for revisions, and in practice, Oregon regularly submits SIP revisions to the EPA. On October 11, 2017, the EPA approved a large number of revisions to the Oregon SIP (82 FR 47122). Other recent EPA actions on revisions to the Oregon SIP include but are not limited to: April 13, 2016 (81 FR 21814), October 23, 2015 (80 FR 64346), April 25, 2013 (78 FR 24347), October 4, 2012 (77 FR 60627), and November 27, 2011 (76 FR 80747). Accordingly, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(H) for the 2010 NO2, 2010 SO2, 2012 PM2.5 NAAQS.

There are two elements identified in CAA section 110(a)(2) not governed by the three-year submission deadline of CAA section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are due on nonattainment area plan schedules pursuant to section 172 and the various pollutant-specific subparts 2 through 5 of part D. These are submissions required by: (i) CAA section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, title I of the CAA, and (ii) section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. As a result, this action does not address CAA section 110(a)(2)(C) with respect to nonattainment NSR or CAA section 110(a)(2)(I).

CAA section 110(a)(2)(J) requires states to provide a process for consultation with local governments and federal land managers carrying out NAAQS implementation requirements pursuant to CAA section 121. CAA section 110(a)(2)(J) further requires states to notify the public if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. Lastly, CAA section 110(a)(2)(J) requires states to meet applicable requirements of part C, title I of the CAA related to prevention of significant deterioration and visibility protection.

State submissions: The Oregon submissions reference specific laws and regulations relating to consultation, public notification, and PSD:

EPA analysis: The Oregon SIP includes specific provisions for consulting with local governments and federal land managers as specified in CAA section 121, including the Oregon rules for PSD permitting. The EPA most recently approved revisions to the Oregon NSR program, which provides opportunity and procedures for public comment and notice to appropriate federal, state and local agencies, on October 11, 2017 (82 FR 47122). In addition, we approved the Oregon rules that define transportation conformity consultation on October 4, 2012 (77 FR 60627) and regional haze interagency planning on July 5, 2011 (76 FR 38997).

In practice, the ODEQ routinely coordinates with local governments, states, federal land managers and other stakeholders on air quality issues including transportation conformity and regional haze, and provides notice to appropriate agencies related to permitting actions. Oregon participates in regional planning processes including the Western Regional Air Partnership, which is a voluntary partnership of states, tribes, federal land managers, local air agencies and the EPA, whose purpose is to understand current and evolving regional air quality issues in the West. Based on the provisions above, we are proposing to find that the Oregon SIP meets the requirements of CAA section 110(a)(2)(J) for consultation with government officials for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

Section 110(a)(2)(J) also requires states to notify the public if ambient air quality standards are exceeded in an area. States must advise the public of the health hazards associated with air pollution and what can be done to prevent exceedances. The EPA calculates an air quality index for five major air pollutants regulated by the CAA: Ground-level ozone, particulate matter, carbon monoxide, sulfur dioxide, and nitrogen dioxide. This air quality index (AQI) provides daily information to the public on air quality. Oregon actively participates and submits information to the EPA's AIRNOW and Enviroflash Air Quality Alert programs which provide information to the public on local air quality. Oregon also provides the AQI to the public at http://www.deq.state.or.us/aqi/. Therefore, we are proposing to find that the Oregon SIP meets the requirements of CAA section 110(a)(2)(J) for public notification for the 2010 NO2, 2010 SO2, 2012 PM2.5 NAAQS.

Turning to the requirement in CAA section 110(a)(2)(J) that the SIP meet the applicable requirements of part C, title I of the CAA, we have evaluated this requirement in the context of CAA section 110(a)(2)(C) and permitting. The EPA most recently approved revisions to Oregon's PSD program on October 11, 2017 (82 FR 47122), updating the program for current federal requirements. Therefore, we are proposing to approve the Oregon SIP as meeting the requirements of CAA 110(a)(2)(J) with respect to PSD for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

With respect to visibility protection under element (J), the EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the CAA. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus we find that there is no new applicable requirement relating to visibility triggered under CAA section 110(a)(2)(J) when a new NAAQS becomes effective.

Based on the above analysis, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(K) requires that SIPs provide for (i) the performance of air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a NAAQS, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator.

State submissions: The Oregon submissions refer to ORS 468-020 Rules and Standards which requires public hearing on any proposed rule or standard prior to adoption, and ORS 468.035 Functions of Department which provides the ODEQ authority to conduct studies and investigations to determine air quality. The submissions also reference OAR 340-225 Air Quality Analysis Requirements which includes modeling requirements for analysis and demonstration of compliance with standards and increments in specified areas.

EPA analysis: The EPA previously approved OAR 340-225 Air Quality Analysis Requirements on October 11, 2017 (82 FR 47122) and these rules specify that modeled estimates of ambient concentrations be based on 40 CFR part 51, Appendix W (Guidelines on Air Quality Models). Any change or substitution from models specified in 40 CFR part 51, Appendix W is subject to notice and opportunity for public comment and must receive prior written approval from the ODEQ and the EPA. In addition, as an example of the state's modeling capacity, we cite to a recent Oregon SIP revision, the Klamath Falls PM2.5 attainment plan, that was supported by modeling. The EPA approved the SIP revision on June 6, 2016 (81 FR 36176). Based on the above analysis, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(K) for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(L) directs SIPs to require each major stationary source to pay permitting fees to cover the cost of reviewing, approving, implementing and enforcing a permit.

State submissions: The Oregon submissions refer to ORS 468.065 Issuance of Permits: Content; Fees; Use which provides the EQC authority to establish a schedule of fees for permits based on the costs of filing and investigating applications, issuing or denying permits, carrying out title V requirements and determining compliance. ORS 468A.040 Permits; Rules provides that the EQC may require permits for air contamination sources, type of air contaminant, or specific areas of the state. The submission also references OAR 340-216 Air Contaminant Discharge Permits which requires payment of permit fees based on a specified table of sources and fee schedule.

EPA analysis: On September 28, 1995, the EPA fully-approved Oregon's title V operating permit program (60 FR 50106). While Oregon's title V program is not formally approved into the SIP, it is a mechanism the state can use to ensure that the ODEQ has sufficient resources to support the air program, consistent with the requirements of the SIP. Before the EPA can grant full approval, a state must demonstrate the ability to collect adequate fees. The Oregon title V program included a demonstration that fees would be adequate, and that the state would collect fees from title V sources above the presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i). In addition, we note that Oregon SIP-approved regulations require fees for purposes of major and minor NSR permitting, as specified in OAR 340-216-0090 Sources Subject to ADCP and Fees, OAR 340-216-8010 Table 1—Activities and Sources, and OAR 340-216-8020 Table 2—Air Contaminant Discharge Permits (fee schedule). Therefore, we are proposing to conclude that Oregon has satisfied the requirements of CAA section 110(a)(2)(L) for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

CAA section 110(a)(2)(M) requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

State submissions: The Oregon submissions refer to the following laws and regulations:

EPA analysis: The regulations cited by Oregon were previously approved on December 27, 2011 (76 FR 80747), and provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. We are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(M) for the 2010 NO2, 2010 SO2, and the 2012 PM2.5 NAAQS.

Oregon submitted several rule revisions in the December 27, 2013, and October 20, 2015, SIP submissions. However, most of these rule revisions were superseded by rule changes submitted on April 22, 2015 and approved on October 11, 2017 (82 FR 47122).4 There are two rule changes that are relevant to our proposed infrastructure action and that were not superseded by the April 22, 2015, submission. Specifically, Oregon revised OAR 340-202-0060 Suspended Particulate Matter to lower the level of the primary annual fine particulate matter standard from 15 μg/m3 to 12 μg/m3, consistent with the federal PM2.5 NAAQS promulgated on December 14, 2012 at 40 CFR 50.18 (January 15, 2013, 78 FR 3086). Oregon also revised OAR 340-200-0030(22) NAAQS to include PM2.5 in the definition of NAAQS pollutants. We propose to approve these rule changes related to PM2.5 because they are consistent with the federal PM2.5 NAAQS.

As part of this action we are also proposing to approve a SIP revision submitted by Oregon on July 18, 2017. The July 18, 2017, submission updated Oregon rules to account for changes to the federal ozone standard. Specifically, Oregon revised OAR 340-202-0090 Ozone to lower the level of the 8-hour ozone standard from 0.075 ppm to 0.070 ppm, consistent with the federal ozone NAAQS promulgated on October 1, 2015 at 40 CFR 50.19 (October 26, 2015; 80 FR 65292). We note that this update to the ozone standard in the Oregon SIP is not relevant to our infrastructure action on the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS, and is only being included in this action for efficiency. We propose to approve this rule update for the revised ozone standard because it is consistent with the federal ozone standard.

With respect to each of the submissions, we are taking no action on OAR 340-200-0040 State of Oregon Clean Air Act Implementation Plan because we have determined it is inappropriate to take action on a provision addressing state SIP adoption procedures, and because the relevant SIP provisions adopted into this rule at OAR 340-200-0040 have been separately submitted for approval, namely, the 2010 NO2, 2010 SO2, and 2012 PM2.5 infrastructure submissions and the specific rule revisions described above.

The EPA is proposing to approve Oregon's December 27, 2013 and October 20, 2015, SIP submissions as meeting specific infrastructure requirements of the CAA. We propose to find that the Oregon SIP meets the following CAA section 110(a)(2) infrastructure elements for the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS: (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M).

We are proposing to approve, and incorporate by reference at 40 CFR part 52, subpart MM, the following rule sections submitted October 20, 2015 (state effective October 16, 2015): OAR 340-202-0060 Suspended Particulate Matter; and OAR 340-250-0030(22) NAAQS. We are also proposing to approve, and incorporate by reference at 40 CFR part 52, subpart MM, the following rule section submitted July 18, 2017 (state effective July 13, 2017): OAR 340-202-0090 Ozone. We note that this update to OAR 340-202-0090 is not related to, nor is it necessary for our infrastructure action. We are including it in this action for efficiency.

In this rule, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are proposing to incorporate by reference the provisions described above in Section VI. Proposed Action. The EPA has made, and will continue to make, these documents generally available electronically through https://www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed 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 (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 it does not involve technical standards; and

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

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

Authority for Action

The International Pacific Halibut Commission (IPHC) and NMFS manage fishing for Pacific halibut through regulations established under the authority of the Northern Pacific Halibut Act of 1982 (Halibut Act). The IPHC promulgates regulations governing the halibut fishery under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (Convention). The IPHC's regulations are subject to approval by the Secretary of State with the concurrence of the Secretary of Commerce (Secretary). NMFS publishes the IPHC's regulations as annual management measures pursuant to 50 CFR 300.62.

The Halibut Act, at sections 773c(a) and (b), provides the Secretary with general responsibility to carry out the Convention and the Halibut Act. The Halibut Act, at section 773c(c), also provides the North Pacific Fishery Management Council (Council) with authority to develop regulations, including limited access regulations, that are in addition to, and not in conflict with, approved IPHC regulations. Regulations developed by the Council may be implemented by NMFS only after approval by the Secretary.

The Council developed the Individual Fishing Quota Program (IFQ Program) for the commercial halibut and sablefish fisheries. The IFQ Program for the halibut fishery is implemented by Federal regulations at 50 CFR part 679 under the authority of the section 773 of the Halibut Act. The IFQ Program for the sablefish fishery is implemented by the Bering Sea and Aleutian Islands (BSAI) Fishery Management Plan (FMP) and Federal regulations at 50 CFR part 679 under the authority of section 303(b) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

The IFQ Program for the management of the fixed gear (hook-and-line and pot gear) halibut and sablefish fisheries off Alaska was implemented by NMFS in 1995 (58 FR 59375; November 9, 1993). The Council and NMFS designed the IFQ Program to allocate harvest privileges among participants in the commercial halibut and sablefish fisheries to reduce fishing capacity that had led to an unsafe “race for fish” as vessels raced to harvest their annual catch limits as quickly as possible before the annual limit was reached. A central objective of the IFQ Program is to support the social and economic character of the fisheries and the coastal fishing communities where many of these fisheries are based.

Under the IFQ Program, access to the fixed gear sablefish and halibut fisheries is limited to those persons holding quota share (QS). NMFS issued separate QS for sablefish and halibut to qualified applicants based on their historical participation during a set of qualifying years in the sablefish and halibut fisheries. QS is an exclusive, revocable privilege that allows the holder to harvest a specific percentage of either the total allowable catch (TAC) in the sablefish fishery or the annual commercial catch limit in the halibut fishery. In addition to being specific to sablefish or halibut, QS is designated for specific geographic areas of harvest, a specific vessel operation type (catcher vessel or catcher/processor), and for a specific range of vessel sizes that may be used to harvest the sablefish or halibut (vessel category). There are four vessel categories of halibut QS: Category A shares are designated for catcher/processors, vessels that process their catch at sea (i.e., freezer longline vessels), and do not have a vessel length restriction; Category B shares are designated to be fished on catcher vessels greater than 60 feet length overall (LOA); Category C shares are designated to be fished on catcher vessels greater than 35 feet but less than or equal to 60 feet LOA; and Category D shares are designated to be fished on catcher vessels less than or equal to 35 feet LOA.

NMFS annually issues IFQ permits to each QS holder. An annual IFQ permit authorizes the permit holder to harvest a specified amount of the IFQ species in a regulatory area from a specific operation type and vessel category. IFQ is expressed in pounds and is based on the amount of QS held in relation to the total QS pool for each regulatory area with an assigned catch limit.

In addition to ending the race for fish, other goals of the IFQ Program are to prevent absentee ownership of QS and promote an owner-operator fleet. To meet these goals, the IFQ Program includes restrictions on the ability of QS holders to transfer their annual IFQ. The Council and NMFS recognized that at the time the IFQ Program was implemented, some QS holders had long-standing business arrangements with hired masters who harvested IFQ on behalf of the QS holder. Therefore, the IFQ Program authorizes the use of hired masters in certain instances. Since the implementation of the IFQ Program, the Council has recommended and NMFS has approved further regulatory amendments to limit the ability of QS holders to designate a hired master to discourage absentee ownership and move towards an owner-operated program (see Section 3.8.3.1 of the Analysis).

The IFQ Program allows limited transfers of IFQ under specific conditions, including temporary medical transfers, survivorship transfer privileges, temporary military transfers, transfers through the Community Quota Entity Program, and transfers to the guided angler fish program. When these specific conditions are met, regulations allow a QS holder to designate a hired master to land the resulting IFQ derived from that holder's QS (see 50 CFR 679.41).

The Council and the public frequently use the terms “IFQ lease” or “lease” to refer to the transfer of IFQ without a transfer of the underlying QS. However, NMFS does not generally use the term “lease” in its IFQ Program regulations governing the transfer of IFQ. For consistency with the terminology used in the existing regulations and for clarity, this proposed rule uses the term “transfer of IFQ”.

As described above, the halibut fishery is managed in separate geographic areas of harvest, as determined by the IPHC. Accordingly, NMFS issues halibut IFQ consistent with the IPHC's regulatory areas. NMFS's IFQ regulatory areas are described in Figure 15 to part 679. This proposed rule uses the term “Area” to refer to a specific IFQ regulatory area (e.g., Area 4B). The first action in this proposed rule only pertains to Areas 4B, 4C, 4D, and 4E. Area 4B includes waters in the Central and Western Aleutian Islands. Areas 4C, 4D, and 4E include waters north of the Aleutian Islands, in the Bering Sea, and around the Pribilof Islands (see Section 1.3 of the Analysis). The IPHC considers the halibut in Areas 4C, 4D, and 4E to be a single stock unit for stock assessment and management purposes, and often refers to them combined as Areas 4CDE.

The commercial catch limits for Areas 4B, 4C, and 4D are allocated between two distinct management programs, the CDQ Program and the IFQ Program. Throughout the duration of the IFQ Program, the Area 4E commercial catch limit has been exclusively allocated to the CDQ Program; therefore, no Area 4E QS or IFQ is allocated.

Overall, the halibut IFQ commercial catch limits in Areas 4B and 4CDE have trended downward over the past 15 years (see Section 3.6.1 of the Analysis). The Area 4B commercial catch limit has dropped substantially from 2001 to 2007 (about 3.9 million pounds in 2001 to about 1.1 million pounds in 2007). Although there was a slight increasing trend between 2008 and 2011, the commercial catch limit for IFQ trended downward again from 2012 to 2015. In 2015, the Area 4B commercial catch limit for IFQ (about 0.9 million pounds) was less than a quarter of what it was in 2001. The combined commercial catch limit for IFQ in Areas 4C and 4D has seen more fluctuation during this period, but has still experienced an overall downward trend since 2007. In 2007, the combined commercial catch limit for IFQ in Areas 4C and 4D was about 2.2 million pounds; in 2015, it was about 0.7 million pounds.

The CDQ Program was implemented in 1992, and in 1996, the Magnuson-Stevens Act was amended to include provisions specific to the CDQ Program. The purpose of the CDQ Program is: (1) To provide eligible western Alaska villages with the opportunity to participate and invest in fisheries in the Bering Sea and Aleutian Islands management area (BSAI); (2) to support economic development in western Alaska; (3) to alleviate poverty and provide economic and social benefits for residents of western Alaska; and (4) to achieve sustainable and diversified local economies in western Alaska (16 U.S.C. 1855(i)(1)(A)).

The CDQ Program consists of six different non-profit managing organizations (CDQ groups) representing different geographical regions in Alaska: Aleutian Pribilof Island Community Development Association (APICDA), Bristol Bay Economic Development Corporation (BBEDC), Central Bering Sea Fishermen's Association (CBSFA), Coastal Villages Region Fund (CVRF), Norton Sound Economic Development Corporation (NSEDC), and Yukon Delta Fisheries Development Association (YDFDA). The CDQ Program receives annual allocations of TAC for a variety of commercially valuable species in the BSAI groundfish, crab, and halibut fisheries, which are in turn allocated among the CDQ groups. CDQ groups use their allocations of halibut to provide opportunities for small vessel fishing by residents of their member communities.

Among the species CDQ groups are allocated for commercial fishing, Pacific halibut is an important species for community resident employment and income. NMFS allocates halibut to CDQ groups for commercial fisheries in four Areas: 4B, 4C, 4D, and 4E (see Section 3.5.1 of the Analysis). Allocations of halibut CDQ are correlated with the geographic area in which a CDQ group's member communities are located. For example, 30 percent of the halibut commercial catch limit in Area 4B is allocated to the CDQ Program. The entire allocation to the CDQ Program in Area 4B is provided to APICDA, which represents all of the CDQ communities located within the geographic range of Area 4B. Area 4C surrounds the Pribilof Islands, and the portion of the halibut commercial catch limit allocated to the CDQ program is split between CBSFA (which represents the CDQ community of St. Paul) and APICDA (which represents the CDQ community of St. George). The CDQ allocation in Area 4D is split among BBEDC, NSEDC, and YDFDA. The CDQ allocation in Area 4E is split between BBEDC and CVRF. A CDQ group may transfer its halibut CDQ to another CDQ group that has halibut CDQ allocation in the same regulatory area (50 CFR 679.31(c)).

The Council recommended and NMFS approved amendments to the IFQ Program to allow CDQ Program participants to harvest allocations of Area 4D halibut CDQ in Area 4E. This provision allows residents in CDQ communities along the Western Alaska coast to have more near-shore opportunities to harvest their group's halibut CDQ (68 FR 9902, March 3, 2003). Additionally, the Council recommended and NMFS approved amendments to the IFQ Program to allow for the harvest of Area 4C halibut IFQ and CDQ in Area 4D in response to reports of localized depletion, decreasing catch per unit effort, and resultant limitations on the optimal utilization of Area 4C halibut IFQ and CDQ (70 FR 43328, July 27, 2005). See Section 3.5.2 of the Analysis for additional detail on the history of the halibut CDQ fishery.

The resident halibut CDQ fleets and criteria for participation in CDQ fisheries vary among the CDQ groups. Resource use is impacted by factors such as the number of interested and qualified residents, the location of the halibut resource relative to nearshore fishing grounds, other fishing opportunities (such as salmon and crab), other employment opportunities, and the availability of processing operations. Also, the resident halibut CDQ fleet is impacted by internal economic decisions made by the CDQ groups and in the ways the CDQ groups choose to promote economic development in their communities. In general, many of the small boat fishermen in CDQ communities are dependent on the halibut fishery (Section 3.5.3 of the Analysis).

The downward trend of halibut commercial catch limits in Areas 4B and 4CDE over the past 15 years has been dramatic, with current limits significantly lower than in the recent past years. The recent years of low halibut abundance and the resulting low commercial catch limits in Areas 4B and 4CDE have made it increasingly difficult for most CDQ groups to create a viable commercial halibut fishing opportunity for their community residents. The halibut resource is economically significant for small vessel fishing operations as well as culturally and socially important for residents of Western Alaska CDQ communities. Correspondingly, low halibut abundance and the resulting low commercial catch limits in Areas 4B, 4C, and 4D have made it increasingly difficult for IFQ holders to have an economically viable fishery.

Under current regulations, CDQ groups cannot receive by transfer any IFQ derived from catcher vessel QS. Current regulations also prohibit halibut QS holders from transferring their IFQ separate from the underlying QS except in very narrow, specific situations, such as temporary military transfers (see Section 3.7 of the Analysis for more information). These restrictions limit the options for CDQ groups to temporarily expand opportunities for halibut fishing by community residents in times of low halibut abundance (see Section 3.7 of the Analysis).

To address these problems, this proposed rule would create a voluntary option for an IFQ holder in Areas 4B, 4C and 4D to temporarily transfer his or her halibut IFQ to a CDQ group in years of extremely low halibut abundance. This proposed flexibility would allow CDQ groups to expand the fishing opportunities for the small boat fleets operating out of the CDQ group's communities and provide IFQ holders with the opportunity to receive value for their IFQ when extremely low halibut commercial catch limits may not be large enough to provide for an economically viable fishery for IFQ holders.

This proposed rule includes three actions. The primary action, Action 1, would create a voluntary option for an IFQ holder to temporarily transfer his or her halibut IFQ to a CDQ group in years of extremely low halibut abundance. Actions 2 and 3 would make minor regulatory adjustments to remove an obsolete reference in the IFQ Program regulations and to clarify IFQ vessel use cap regulations, respectively. The following paragraphs provide additional detail on the proposed actions.

This proposed rule would: (1) Define the halibut commercial catch limits under which CDQ groups could receive IFQ by transfer; (2) establish limits on the types and amounts of IFQ that can be transferred; and (3) establish reporting requirements for CDQ groups receiving IFQ by transfer. This proposed rule would not convert transferred IFQ to CDQ. Allocations of halibut CDQ would not change under this proposed rule.

Under this proposed rule, CDQ groups would be able to receive transfers of halibut catcher vessel IFQ (Categories B, C, and D IFQ) in Areas 4C and 4D when the IPHC approves a halibut commercial catch limit that is less than 1.5 million pounds in Areas 4CDE. CDQ groups would be able to receive transfers of halibut catcher vessel IFQ (Categories B, C, and D IFQ) in Area 4B when the IPHC approves a halibut commercial catch limit that is less than 1 million pounds in Area 4B. IFQ holders would be able to transfer both blocked and unblocked IFQ to CDQ groups. This proposed rule would not revise current regulations that authorize an IFQ holder in Areas 4B, 4C and 4D to transfer his or her Category A halibut IFQ to any qualified person, including a CDQ group. This proposed rule would provide additional harvesting flexibility for Category A halibut IFQ transferred to a CDQ group in years of extremely low halibut abundance, as described in more detail below.

The Council recommended these thresholds based on an analysis of commercial catch limits between 2008 and 2017, a period of time representing a range of different halibut commercial catch limits and decreasing opportunities for CDQ community fishermen. The Council considered a range of different commercial catch limit thresholds for both Area 4B and Areas 4CDE, before selecting these thresholds. Section 3.8.5 of the Analysis shows that from 2008 to 2016, the halibut commercial catch limit in Area 4B was never below the proposed threshold of 1 million pounds. However, in Areas 4CDE, the halibut commercial catch limit was below the proposed threshold of 1.5 million pounds in 2 years, 2014 and 2015. Therefore, under halibut abundance conditions over the last 8 years, had this proposed rule been in effect it would have allowed IFQ transfers to CDQ groups to occur in only 2 years, and only in Areas 4CDE.

In selecting these thresholds, the Council sought to balance the goal of providing additional halibut fishing opportunities for CDQ residents when the halibut CDQ allocation alone may not be large enough to sustain small vessel resident fisheries, with the need to avoid potential adverse distributional impacts on other halibut IFQ users that could result if IFQ transfers were permitted. The Council also indicated that the flexibility to transfer halibut IFQ in Areas 4B, 4C, and 4D was to be available only during worst case scenarios for halibut commercial catch limits in these Areas (Section 2.3 of the Analysis). For Areas 4CDE, the Council determined and NMFS agrees that a halibut commercial catch limit below 1.5 million pounds, as was experienced in 2014 and 2015, reflects a worst case scenario for Areas 4CDE as it represents an extremely low commercial catch limit for these Areas. For Area 4B, the Council determined and NMFS agrees that a halibut commercial catch limit below 1 million pounds, which has not been experienced during the last 10 years, reflects a worst case scenario for Area 4B as it represents an extremely low commercial catch limit for this Area. The Council selected a lower threshold for Area 4B due to concerns expressed by the public about potentially adverse distributional impacts on the community of Adak with a threshold that was higher than 1 million pounds.

This proposed rule would establish several limits on the catcher vessel IFQ that can be transferred as well as some flexibility with transferred catcher vessel and catcher/processor IFQ. This proposed rule includes five limits: (1) A CDQ group would only be able to receive catcher vessel IFQ by transfer for an Area in which it also holds halibut CDQ; (2) no vessel greater than 51 feet in length overall (LOA) could be used to harvest catcher vessel IFQ transferred to a CDQ group; (3) catcher vessel IFQ resulting from QS acquired after December 14, 2015 could not be transferred to a CDQ group until 3 years after the QS was acquired (i.e., a cooling off period); (4) an IFQ holder would not be allowed to transfer catcher vessel halibut IFQ to a CDQ group for more than 2 consecutive years; and (5) in Area 4B, only those QS holders who hold less than 76,355 QS units specified for Area 4B would be allowed to transfer their catcher vessel IFQ to CDQ groups.

The first limit would prevent a CDQ group from receiving catcher vessel halibut IFQ by transfer for an Area in which that CDQ group does not hold halibut CDQ. The Council recommended this provision so that any catcher vessel IFQ transferred to a CDQ group would be available for use in conjunction with halibut CDQ that is issued to a CDQ group. The Council determined, and NMFS agrees, that coupling catcher vessel IFQ received by transfer to areas in which a CDQ group hold halibut CDQ would ensure that the benefits of the IFQ transfer manifest with the intended recipients—the resident halibut fleet in the CDQ group's communities adjacent to the Area. For example, if a CDQ group is issued halibut CDQ in Areas 4B and 4C, that CDQ group could only receive catcher vessel Area 4B and Area 4C IFQ by transfer. Additionally, under this proposed rule at § 679.42(a)(iii) and (iv), CDQ groups that are eligible to receive a transfer of Area 4D catcher vessel IFQ would be able to harvest that IFQ, and any Category A IFQ it holds, in Area 4E (Section 3.5.2 of the Analysis). The Council determined, and NMFS agrees, that this additional flexibility would improve the effectiveness of the proposed action by enabling transferred IFQ to be fished closer to shore so that smaller vessels typically used by residents in CDQ communities can more easily participate in halibut fisheries. This proposed flexibility also would be consistent with section 11(8) of the IPHC annual management measures, which allows Area 4D halibut CDQ to be harvested in Area 4E. However, the IPHC would need to revise its annual management measures to extend this harvesting flexibility to catcher vessel and catcher/processor IFQ held by a CDQ group before NMFS can approve it (see section 3.8.6 of the Analysis). The IPHC is scheduled to consider this revision to the annual management measures at its January 2018 annual meeting. NMFS will take into account the IPHC's decision when developing the final rule for this action.

The second limit would prohibit the use of vessels greater than 51 feet LOA to harvest catcher vessel IFQ that is transferred to a CDQ group. The Council recommended this vessel size limit because this is the largest size vessel owned by CDQ community residents that has landed halibut CDQ during the past 10 years, 2008 through 2017 (Section 3.5.3 of the Analysis). Because this proposed rule is intended to provide additional harvest opportunities to CDQ community residents, the Council determined and NMFS agrees that allowing larger than 51 feel LOA to harvest transferred catcher vessel IFQ would be inconsistent with this objective. Current regulations provide sufficient flexibility to allow IFQ that could be transferred to a CDQ group under this proposed rule to be fished on a vessel of any length up to 51 feet LOA (see Section 2.4 of the Analysis).

This proposed rule would also clarify that any Area 4D Category A IFQ that is held by a CDQ group or transferred to a CDQ group may be fished in Area 4E by vessels less than or equal to 51 feet LOA when the commercial catch limit threshold in Area 4CDE is triggered. The Council determined and NMFS agrees that this provision would provide additional harvest opportunities for CDQ residents. The 51-foot LOA restriction would help ensure additional harvest opportunities would be provided on the size class of vessels used by CDQ community residents (see Section 3.8.6 in the Analysis for additional detail). This proposed rule would not revise current regulations that authorize Category A IFQ for Areas 4B, 4C, or 4D to be fished in the corresponding Area on a vessel of any length.

Under the third limit, IFQ resulting from QS acquired after December 14, 2015 could not be transferred to a CDQ group until 3 years after the QS was acquired. This provision would effectively create a “cooling off” period. For example, if a person acquired Area 4C halibut QS on March 15, 2016, that holder would not be eligible to transfer the IFQ from that QS to a CDQ group until March 14, 2019. The Council determined and NMFS agrees that the proposed cooling off period is necessary to reduce the incentive to QS holders to acquire QS with the intention of transferring the resulting IFQ to CDQ groups rather than fishing the IFQ. Section 3.8.7 of the Analysis notes that the Council considered a range of cooling off periods from 3 to 5 years. In selecting the proposed cooling off period, the Council determined and NMFS agrees that a 3-year period would balance the objectives of reducing the incentives for QS holders to acquire QS with the intention of transferring it to CDQ groups with the need to provide an adequate market for CDQ groups to receive IFQ by transfer. The Council also recommended that QS acquired after December 14, 2015, be subject to the cooling off period. The Council selected the December 14, 2015, date because that is the date when the Council first added the option of a cooling off period to the suite of alternatives and options under consideration for the proposed action. NMFS agrees that this proposed date is reasonable as it would deter speculative investment in anticipation of this proposed rule, and selection of this proposed date, versus the effective date of this action if approved, accelerates the time when QS acquired after December 14, 2015, would be eligible for transfer.

The fourth limit would prohibit an IFQ holder from transferring catcher vessel halibut IFQ for a specific IFQ regulatory area to a CDQ group for more than 2 consecutive years. This 2-year limit would apply to calendar years and would not apply only to years in which the commercial catch limit is below the threshold. Additionally, this limit would apply to the transfer of any halibut IFQ for a specific Area. If an IFQ holder chooses to transfer some but not all of his or her IFQ for a particular Area during a year when the annual commercial catch limit for that Area set below the proposed threshold that transfer would count towards the 2-year limit. Transfers of IFQ for one Area would not affect the ability to transfer IFQ for another Area. The Council determined and NMFS agrees that limitations on how many consecutive years an IFQ holder could transfer IFQ to a CDQ group would limit the potential for a specific IFQ holder to continuously transfer IFQ to CDQ groups rather than fishing that IFQ or transferring the underlying QS to other new entrants in the fishery. Section 3.8.8 of the Analysis explains that the Council considered a range of limitations on the number of years that IFQ could be transferred (i.e., from 2 to 4 years), and that a less restrictive limitation of 2 years may be appropriate given the relatively low likelihood that the thresholds to allow leasing in Area 4B or Areas 4C and 4D will be met.

Under the fifth limit, only catcher vessel QS holders that hold less than 76,355 QS units specified for Area 4B would be allowed to transfer their catcher vessel IFQ to CDQ groups. NMFS would consider all categories of Area 4B QS holdings regardless of blocked or unblocked status. This amount of QS units yielded approximately 7,500 pounds of halibut IFQ in 2016. The Council recommended and NMFS proposes this limitation to ensure that persons holding larger amounts of QS units continue to be active fishermen in the Area 4B halibut fishery while providing an opportunity for persons holding smaller amounts of QS units to transfer catcher vessel IFQ to CDQ groups if the 1 million pound commercial catch limit threshold to allow IFQ transfers is met. The Council recommended and NMFS is proposing this limitation only for Area 4B to accommodate the specific nature of IFQ operations in the remote Aleutian Island communities in Area 4B, and after considering a range of different limits (from 2,000 to 7,500 pounds of halibut IFQ, with the preferred option to convert 7,500 pounds to 2016 QS units) that are described in Section 3.8.9 of the Analysis.

The Council received public testimony indicating that Aleutian Islands communities in Area 4B receive substantial benefits from fishery participation by persons holding relatively large amounts of halibut QS and IFQ in that area. The testifiers expressed concern that allowing these QS holders to transfer IFQ to a CDQ group could substantially reduce these benefits to the communities in years of extremely low commercial catch limits. In addition, persons holding less than 76,355 QS units would be allocated relatively small amounts of IFQ that may not be economically feasible to harvest in years of extremely low commercial halibut catch limits. The Council determined and NMFS agrees that limiting eligibility to transfer IFQ to holders of less than 76,355 QS units in Area 4B would allow the holders of these relatively small amounts of QS to lease the resulting IFQ in years of extremely low commercial halibut catch limits while maintaining the benefits of the fishery to the Aleutian Island communities from harvests of the larger holdings of IFQ.

This proposed rule also establishes a reporting requirement for CDQ groups that receive IFQ by transfer. The proposed report would be required only for those years in which CDQ groups received IFQ by transfer. CDQ groups that receive IFQ by transfer would be required to report the annual amount and vessel category of Area 4 halibut IFQ transferred to the CDQ group, the criteria used to select IFQ holders to transfer Area 4 halibut IFQ to the CDQ group, and the criteria used to determine the person(s) eligible to fish Area 4 halibut IFQ received by transfer.

In recommending this proposed rule, the Council stated its intent for catcher vessel IFQ transferred to a CDQ group to be fished by residents of that CDQ community but did not recommend that NMFS establish this requirement in regulation. Section 2.3 of the Analysis describes that CDQ groups have different methods of defining residents in their communities and different techniques for determining who will harvest their halibut CDQ. After considering this information, the Council specified that it did not intend for NMFS to establish a regulatory definition for CDQ community resident, nor did it intend for NMFS to verify that CDQ community residents were receiving the benefits of transferred IFQ under this proposed rule. The Council recommended that NMFS implement the requirement for CDQ groups to report the persons who harvest the IFQ received by transfer. This would allow the Council and the public to monitor the use of IFQ transferred to CDQ groups and provide the Council with information to determine whether the use of transferred IFQ is consistent with its intent for the action.

The Council recommended and NMFS proposes a reporting requirement to understand the criteria that a CDQ group uses to receive transfers of IFQ and provide harvest opportunities. This information could be used to evaluate the effectiveness of this proposed rule to provide benefits to members of CDQ communities. This proposed rule would require the report to be submitted to NMFS no later than January 31 of the year after the IFQ was transferred to the CDQ group. NMFS proposes this deadline to be consistent with other reports required under the IFQ Program, and to ensure that NMFS has received the report prior to the issuance of IFQ that typically occurs in mid-February. If a CDQ group is required to submit a report and does not do so by the deadline, the CDQ group would be ineligible to receive transfers of catcher vessel IFQ until the report is submitted.

Under this proposed rule, a CDQ group that wished to receive halibut IFQ by transfer would make an arrangement with an IFQ holder to transfer his or her IFQ. The CDQ group would need to complete an Application for Temporary Transfer of Halibut and Sablefish IFQ and submit the application to NMFS for approval. Once approved, NMFS would issue the CDQ group an IFQ permit with the pounds of halibut IFQ that would be available to be fished. After determining who would fish the halibut IFQ, the CDQ group with the IFQ permit would then need to apply for a hired master permit for the vessel operator designated to fish the halibut IFQ. Current regulations authorize a vessel operator to harvest halibut IFQ and CDQ on the same fishing trip and a vessel operator harvesting both halibut CDQ and IFQ transferred to a CDQ group would need to carry (1) a halibut CDQ permit, (2) a CDQ hired master permit, (3) a copy of the IFQ permit of the CDQ group, and (4) an IFQ hired master permit. Additionally, any vessels fishing halibut IFQ transferred to a CDQ group would be subject to the current IFQ vessel use caps under § 679.42(h)(1). If a vessel harvested both halibut IFQ and CDQ, only the halibut IFQ would accrue towards and be subject to the vessel use cap.

Halibut that is landed by a vessel operator harvesting CDQ and IFQ would be debited off two separate catch limits. Therefore, for purposes of catch accounting, participants would need to track what amount of halibut harvest is associated with the group's CDQ and what amount is associated with the IFQ permit held by the CDQ group. This distinction would be recorded on the fish ticket (Section 3.8.11.3 of the Analysis). If this proposed rule is approved, NMFS would need to make changes to the database that monitors transfers of IFQ between permit holders and that is used to issue hired master permits to allow for this new type of transfer (see Section 3.8.11.4 of the Analysis).

Under this proposed rule, CDQ groups would be responsible for cost recovery fees based on the IFQ pounds held on the IFQ permit. Section 304(d)(2)(A) of the Magnuson-Stevens Act obligates NMFS to recover the actual costs of management, data collection, and enforcement (direct program cost) of the IFQ fisheries. Therefore, NMFS implemented a cost recovery fee program for the IFQ fisheries in 2000 (65 FR 14919, March 20, 2000). While costs specific to the CDQ Program for halibut are recoverable through a separate cost recovery program (81 FR 150, January 5, 2016), this proposed rule would require regulatory changes to the IFQ transfer and hired master use provisions and therefore constitute changes in management of the IFQ Program. CDQ group participants receiving IFQ transfers would be required to pay an IFQ cost recovery fee as a portion of the ex-vessel value of their landed halibut.

Section 7(2) of the IPHC annual management measures (82 FR 12730, March 7, 2017) authorizes a vessel operator harvesting halibut CDQ in Areas 4D or 4E to retain halibut that are smaller than the size limit established by the IPHC for personal use. Under the status quo, a vessel operator harvesting halibut IFQ held by a CDQ group along with halibut CDQ may retain halibut less than legal size for personal use. Therefore, if this proposed action is approved, vessel operators harvesting both halibut CDQ and halibut IFQ transferred to a CDQ group in Areas 4D or 4E would be authorized to retain halibut smaller than the size limit established by the IPHC in length for personal use as specified in section 7 of the IPHC annual management measures. The personal use allotment would apply to all halibut IFQ transferred to a CDQ group under this exemption. Section 7(3) of the IPHC annual management measures requires a CDQ group to report on all retained halibut for personal use that are less than legal size and harvested on behalf of a CDQ group.

This proposed rule would modify the definition of “annual commercial catch limit” at 50 CFR 300.61 to include definitions for Areas 3B and 4A, and for Areas 4B, 4C, 4D, and 4E.

This proposed rule would modify § 679.41 to allow transfer of halibut IFQ in Areas 4B, 4C, and 4D in years of low halibut catch limits in Areas 4B and 4CDE to CDQ groups along with the specific conditions under which this transfer activity could occur.

Additionally, a reporting requirement would be added at § 679.5(l)(10) to require a CDQ group to submit a report on the criteria it used to select IFQ holders from whom IFQ transfers would be received, the criteria it used to determine the persons who can harvest transferred IFQ, and the amount and type of IFQ transferred.

This proposed rule also includes a provision which would be added under § 679.42 to allow Area 4D IFQ that is transferred to a CDQ group to be harvested in Area 4E.

Finally, NMFS is proposing to add and reserve several paragraphs in this proposed rule to account for another rulemaking that proposes to modify the same sections of Part 679 that would be modified by this proposed rule.

The effects of Action 1 would depend on first the halibut resource falling below the threshold of 1 million pounds in Area 4B and 1.5 million pounds in Area 4CDE and then IFQ holders choosing to transfer their halibut IFQ to a CDQ group. If, in the future these conditions are met, then this proposed rule would be expected to provide benefits most directly to CDQ community residents who have traditionally been involved in the halibut CDQ fishery by allowing for continued employment and income in years where commercial halibut catch limits are at extremely low levels. This opportunity may have a particularly meaningful impact on these residents, as there tends to be limited regional economic diversity in these communities, resulting in few substitute employment options for residents (Section 3.8.1 of the Analysis). This proposed rule would provide IFQ holders and CDQ groups with an opportunity to alleviate the adverse economic, social, and cultural impacts of extremely low levels of commercial halibut catch limits on Western Alaskan communities.

The benefits that could be derived from this proposed rule are different among CDQ groups and would likely even be distributional within a group. Overall, this action would not necessarily be expected to result in a financial gain for a CDQ group that chooses to receive halibut IFQ by transfer. It is likely that some, or all, of the fee an IFQ holder would incur to transfer his or her IFQ would be paid by the CDQ group. This proposed rule could also provide distributional benefits to some processing plants, secondary service providers, and communities as a whole (see Section 3.8 of the Analysis).

Allowing CDQ groups the flexibility to harvest any IFQ received by transfer for Area 4D in Area 4E would add to the existing flexibility CDQ groups have to move their halibut CDQ between IFQ regulatory areas. The Council determined and NMFS agrees that this potential for change in locational fishing intensity from this proposed action would not be a threat to overall stock conservation as long as the Area 4CDE total catch limit is not exceeded, while noting that there is a possibility of localized impacts on fishing opportunities if fishing effort patterns were to change substantially.

Halibut QS holders in Areas 4B, 4C, and 4D may also benefit from this proposed rule. These QS holders may feel constrained as their QS is associated with diminishing pounds of IFQ under the relatively low commercial halibut catch limits in recent years. In years of extremely low halibut abundance, it may not be economically viable for some QS holders to harvest their small amounts of IFQ, particularly in remote areas covered by this proposed rule where operating costs are higher relative to other IFQ regulatory areas. Depending on operating costs and catch limits, QS holders that transfer their IFQ to CDQ groups may be able to earn more revenue from transferring their IFQ than from harvesting it themselves or hiring a master to harvest the IFQ (if the QS holder is eligible). As the IFQ Program strictly limits leasing (transfers), this proposed rule would be the only opportunity for many QS holders to transfer their Area 4B, 4C, and 4D halibut IFQ (see Section 3.8.1) in years of extremely low commercial catch limits.

This proposed rule may have adverse indirect effects on some stakeholders of the halibut IFQ fishery (see Section 3.8.2 of the Analysis). This action could prompt some amount of temporary IFQ consolidation, impacting the number of trips taken or resulting in some vessels not being used in the halibut fishery at all in a season. This reduction in participation could result in reduced fishery revenues for affected participants. Consolidation could also result in a displacement of some captain and crew jobs for the duration of time that the halibut catch limits are low enough to allow IFQ transfers. To the extent that they are not the QS holder making the decision to transfer their IFQ to CDQ groups, this proposed rule may also disadvantage vessel owners that use their vessel to harvest halibut IFQ if QS holders who historically fished their IFQ on that vessel choose to lease the IFQ and the vessel owner has reduced revenues from the fishery. Section 3.8.2 of the Analysis notes that it is uncertain how much IFQ may be transferred, from whom, and how this would impact current operations.

As discussed in Section 3.8.1 of the Analysis, transferred IFQ received by a CDQ group and harvested by its community resident fleets would be expected to follow landing patterns similar to the current halibut CDQ operations. However, if the locations of port of origin and landings changes with IFQ received by this transfer provision, there is a potential some communities may not receive revenues from raw fish tax, business landing tax, and other economic activity associated with fishing, such as purchase of food and fuel. These are distributional impacts; therefore, they could represent losses to some communities, while communities with traditional halibut CDQ participation may benefit due to the increased activity from halibut IFQ.

Additionally, this proposed rule may motivate some QS holders who may otherwise consider selling, to hold onto their Areas 4B, 4C, or 4D halibut QS. For those individuals seeking entry into the halibut QS market, the lack of QS movement may not be a positive result. However, to prevent speculative purchases of QS with the intent of using the transfer provision allowed under this proposed rule, this proposed rule includes a cooling off period that limits the transfer of IFQ until 3 years after the QS is acquired. Areas 4B, 4C, and 4D already tend to have the lowest level of QS transactions of any regulatory area (although, this may also be because a portion of the catch limit is designated as CDQ, thus the QS pool is much smaller) and the QS prices, similar to other regulatory areas, appear to be increasing (Section 3.8.4 of the Analysis).

Additionally, this proposed rule would support one of the other goals of the IFQ Program, which is to increase the ability of the rural coastal communities adjacent to the BSAI to share in the wealth generated by the IFQ Program by providing community residents with the opportunity to benefit from fishing for additional halibut IFQ in years of extremely low commercial catch limits (see Section 3.8.3.1 of the Analysis).

This proposed rule would remove an obsolete reference in the regulations at § 679.42(a)(2)(i). Currently, this regulation provides an exception in the wording. However, the paragraph (k) referred to in § 679.42(a)(2)(i) was modified by the final rule to revise regulations governing the use of commercial halibut QS and the processing of non-IFQ species when processed halibut is onboard a vessel (73 FR 8822; February 15, 2008). That final rule removed paragraph (k) and re-designated paragraph (l) as paragraph (k). NMFS inadvertently neglected to remove the cross-reference to paragraph (k) in § 679.42(a)(2)(i). Therefore, with this proposed rule, NMFS proposes removing the cross-reference to paragraph (k) to clarify that persons possessing unused Category B, C, or D halibut QS may be on board a catcher/processor vessel when that vessel is harvesting and processing Category A halibut or sablefish IFQ or is harvesting and processing non-IFQ species. The effects of this action are expected to be minor and beneficial by improving the clarity of the regulations.

This proposed rule would clarify existing regulations pertaining to the IFQ vessel limitations, also referred to as the vessel use caps. NMFS proposes to add language to §  679.42(h)(1) and (h)(2) to clarify that the vessel use caps only apply to halibut and sablefish IFQ and not to halibut and sablefish CDQ. This action would improve the clarity of the regulations and help IFQ and CDQ participants understand what regulations to which they are subject. The effects of this action are expected to be minor and beneficial by improving the clarity of the regulations.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the BSAI FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

Regulations governing the U.S. fisheries for Pacific halibut are developed by the International Pacific Halibut Commission (IPHC), the Pacific Fishery Management Council, the North Pacific Fishery Management Council (Council), and the Secretary of Commerce. Section 5 of the Northern Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c) allows the Regional Council having authority for a particular geographical area to develop regulations governing the allocation and catch of halibut in U.S. Convention waters which are in addition to, and not in conflict with, IPHC regulations. This proposed rule is consistent with the Council's authority to allocate halibut catches among fishery participants in the waters in and off Alaska. The Halibut Act, at sections 773c(a) and (b), provides the Secretary of Commerce with the general responsibility to carry out the Convention with the authority to, in consultation with the Secretary of the department in which the U.S. Coast Guard is operating, adopt such regulations as may be necessary to carry out the purposes and objectives of the Convention and the Halibut Act. This proposed rule is consistent with the Halibut Act and other applicable laws.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.

This proposed rule would revise IFQ Program regulations to authorize CDQ groups to receive halibut IFQ transfers in certain areas when catch limits are below the established thresholds, subject to specific limitations. The directly regulated entities (118 small entities in 2015) are persons that hold Areas 4B, 4C, or 4D halibut QS, CDQ groups, and harvesters, including CDQ community residents, who have traditionally harvested halibut CDQ and may have an opportunity to harvest halibut IFQ received by transfer. Almost all of the directly regulated entities are considered small entities. As described in the Analysis, the 118 directly regulated entities would only be impacted to the extent that they choose to (and are able to) participate in receiving halibut IFQ transfers as a result of the proposed regulatory changes.

Direct impacts would be expected to be positive for both CDQ community resident halibut fishery participants and QS holders that choose to utilize the IFQ transfer provision because the opportunity for this additional flexibility in years of low halibut abundance would be voluntary for both user groups and would only be undertaken if it would benefit the parties to the transfer. Direct impacts would be expected to be positive for CDQ community resident harvesters who have traditionally harvested halibut CDQ and may have an opportunity to harvest additional transfers of halibut IFQ under this proposed rule because it would provide an opportunity to continue to receive economic benefits from fishery participation in times of low abundance. This proposed rule therefore is not expected to have a significant economic impact on a substantial number of small entities regulated by this proposed rule.

As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). NMFS has submitted these requirements to OMB for approval under Control Number 0648-0272 and Control Number 0648-0711. Public reporting burden is estimated to average per response: 2 hours for Application for Temporary Transfer of Halibut and Sablefish IFQ, 40 hours for the report, and 1 minute for electronic submission of cost recovery fees or 30 minutes for non-electronic fee submission. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information.

Public comment is sought regarding whether these proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collections of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collections of information to NMFS (see ADDRESSES), and by email to [email protected] or fax to 202-395-5806.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to penalty for failure to comply with, a collection of information subject to the requirement 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.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR parts 300 and 679 as follows:

Atlantic sharks are directly managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). NMFS published in the Federal Register (71 FR 59058, October 2, 2006) final regulations, effective November 1, 2006, implementing the 2006 Consolidated HMS FMP, which details management measures for Atlantic HMS fisheries. The implementing regulations for the 2006 Consolidated HMS FMP and its amendments are at 50 CFR part 635. This proposed rule considers modifying the current regulations related to closures for commercial shark fisheries.

A brief summary of the background of this proposed action is provided below. Additional information regarding Atlantic HMS management, specifically the commercial fisheries season structure, can be found in the Draft EA for this proposed action and the 2006 Consolidated HMS FMP and its amendments, found online at http://www.nmfs.noaa.gov/sfa/hms/.

NMFS initially required Federally-permitted dealers to report to NMFS every two weeks to effectively monitor quotas and close the shark fisheries when necessary to avoid exceeding the quotas. Because these reports were paper-based and had to be mailed, the data NMFS used to monitor the fisheries were often a month or more out of date.

As established in Amendment 2 to the 2006 Consolidated HMS FMP (Amendment 2), the Atlantic shark commercial fisheries season structure is managed with one fishing “season” that lasts the entire calendar year, beginning January 1 and closing on December 31, unless otherwise provided in an inseason action or other rule. NMFS closes a shark fishery when it calculates that the applicable overall, regional, and/or sub-regional landings for the species or management group has reached or is projected to reach 80 percent of the available applicable quota. Once closed, current regulations do not provide for re-opening the fishery.

When the 80-percent landings threshold was established in Amendment 2, all Federal shark dealers reported on a biweekly basis on paper reports. This 80-percent threshold was meant to account for the delay in data entry from the paper reports, landings that occurred during the five-day notice period, state water landings continuing to occur after a Federal closure, delayed landing reports from state only dealers, and the potential for late dealer reporting. However, since January 1, 2013 (77 FR 47303; August 8, 2012), all Atlantic HMS Federal dealers have been required to report commercial harvests of sharks, swordfish, and bigeye, albacore, yellowfin, and skipjack (BAYS) tunas on a weekly basis through a NMFS-approved electronic dealer reporting system (eDealer). Most states also require all state-registered dealers to report electronically; however, there are some states that still allow for paper reports, and some states require reporting once a month rather than weekly. Overall, electronic dealer reporting has resulted in more timely data on landings.

Current regulations provide that any shark fishery closure is effective no less than five days from notice of filing with the Office of the Federal Register. This minimum notice period was established to allow fishermen to complete their trip and land a portion of the remaining quota. As a result of changes in Amendment 2, however, most shark fishermen now take one or two day trips and may not need the full five-day notice.

Since 2010, NMFS has received numerous comments at several HMS Advisory Panel (AP) meetings and during various rulemakings on commercial shark management requesting that NMFS modify the current 80-percent threshold.

At the September 2017 HMS Advisory Panel Meeting, some Panel members suggested that NMFS consider maintaining the existing 80-percent closure threshold as a precautionary approach; raising the threshold to 90 percent only in the Atlantic region and maintaining the 80-percent threshold in the Gulf of Mexico region; and determining closure thresholds for each region and/or management group based on the stock status and characteristics of the fishery. Additionally, some Panel members commented that immediate closure at any quota threshold is infeasible given that some state regulations provide more than 24 hours of notice before closing a fishery. Therefore, requesting immediate closure can cause confusion in fisheries that occur in both state and Federal waters. Other Panel members suggested examining closure notice periods that are longer than five days.

As described above, both the 80-percent threshold and five-day notice requirement for commercial shark fisheries went into effect before electronic dealer reporting and before the impacts of Amendment 2 on fishing behavior, including trip lengths, were fully understood. This proposed rule considers modifying the five-day notice and 80-percent threshold with the goal of more fully utilizing available quota while also avoiding overharvests in these fisheries.

NMFS prepared a draft EA, RIR, and an IRFA, which present and analyze the anticipated environmental, social, and economic impacts of each alternative considered for this proposed rule. The complete list of alternatives and related analyses are provided in the draft EA/RIR/IRFA and are not repeated here in its entirety. A copy of the draft EA/RIR/IRFA prepared for this proposed rulemaking is available from NMFS (see ADDRESSES).

NMFS considered six alternatives for the shark fishery-closure threshold and three alternatives for the shark fishery-closure notice period.

Alternative 1a, the No Action alternative, would maintain the 80-percent threshold for shark fishery closures. Alternative 1b would change the shark fishery-closure threshold to 90 percent of the available applicable overall, regional, and/or sub-regional quota. Alternative 1c would change the shark fishery-closure threshold to 70 percent of the available applicable overall, regional, and/or sub-regional quota. Alternative 1d would increase the shark fishery-closure threshold to 90 percent in the Atlantic Region, while maintaining the Gulf of Mexico closure threshold and overall non-regional threshold at 80 percent. Alternative 1e would establish objective criteria to evaluate whether a shark species and/or management group should be closed when the relevant landings reach, or are projected to reach, 80 percent of the available applicable overall, regional, and/or sub-regional quota, or allowed to remain open until 90 percent of the available applicable overall, regional, and/or sub-regional quota is reached. These criteria include: (A) The stock status of the relevant species or management group and any linked species and/or management groups; (B) The patterns of over- and underharvest in the fishery over the previous five years; (C) The likelihood of continued landings after the Federal closure of the fishery; (D) The effects of the closure on accomplishing the objectives of the 2006 Consolidated HMS FMP and its amendments; (E) The likelihood of landings exceeding the quota by December 31 of each year; and (F) The impacts of the closure on the catch rates of other shark management groups, including likelihood of an increase in dead discards. Under Alternative 1f, the preferred alternative, when NMFS calculates that landings have reached, or are projected to reach, 80 percent of the available applicable overall, regional, and/or sub-regional quota, NMFS will determine whether landings are projected to reach 100 percent of the relevant quota before the end of the fishing season (December 31). If so, NMFS will close the fishery through publication in the Federal Register with the appropriate notice. If not, the fishery will continue to remain open, and NMFS will update the public about the landings levels in its next monthly shark landings update listserv notice.

Alternative 2a, the No Action alternative, would maintain the five-day period between filing of the closure notice with the Office of the Federal Register and the closure going into effect. Alternative 2b, the preferred alternative, would change the minimum notice time between filing of the closure notice with the Office of the Federal Register and the closure going into effect to three days. Alternative 2c would allow immediate closure of a shark fishery upon filing of the closure notice with the Office of the Federal Register.

Alternative 1f, the preferred alternative, would provide additional flexibility to achieve full quota utilization while still preventing overharvest of the quota. This alternative would also provide the flexibility to account for differences in regional reporting when monitoring quotas and the ability to close in time to ensure the quota is not exceeded. For instance, regions that are more timely in their reporting and have few landings after Federal closures (i.e., Atlantic region) could remain open for the remainder of the season while other regions (i.e., Gulf of Mexico) that have landings after a Federal closure and/or delays in reported landings from state-water vessels may need to be closed. This alternative would likely have both neutral direct and indirect short- and long-term ecological impacts on the shark fishery because it would not be expected to have any impacts on the allowable level of fishing pressure, catch rates, or distribution of fishing effort otherwise authorized under actions that had assumed full utilization of the quota when analyzed. This alternative would allow increased quota utilization by keeping the fishery open as long as available quotas are not projected to be exceeded before the end of the season. This alternative could, therefore, lead to neutral socioeconomic impacts, similar to Alternative 1a, the status quo alternative, if the fishery is projected to reach 100 percent before the end of the fishing season. If NMFS determined that a quota was not projected to reach 100 percent before the end of the fishing season, then the fishery would remain open under this alternative. Thus, in some scenarios, this alternative could lead to minor beneficial direct socioeconomic impacts since the quota could be fully utilized.

In combination with any of the notification alternatives (five-day notice, three-day notice, or immediate closure) NMFS expects Alternative 1f would have neutral direct and indirect short- and long-term ecological impacts to the shark fishery as shark quotas would remain unchanged, leaving the fishery to operate under the current conditions. This alternative would support full quota utilization while preventing overharvest of the quota. Given the flexibility and responsiveness this alternative would provide, combined with neutral ecological impacts to the fishery stocks, NMFS prefers this alternative at this time.

Under Alternative 2b, the preferred alternative, NMFS would change the minimum notice period to three days instead of the current five-day notice once landings reach a threshold necessitating a closure. According to the data presented in Amendment 2, historically, shark-fishing trips were up to nine days in length. In the directed shark fishery, recent observer reports show that most shark fishermen take trips of one or two days, and likely do not need the full five-day notice in order to land all sharks before the closure date is effective. As such, this alternative should not interfere with directed shark trips already underway at the time of closure, but may have impacts on pelagic longline trips that may last several weeks. This alternative would allow more timely action in closing shark fisheries, helping to prevent overharvests.

Specifically, in combination with Alternative 1f, Alternative 2b would reduce the risk of exceeding the quota, especially if landings rates are high before the closure date is effective. This alternative would likely have both neutral direct and indirect short- and long-term ecological impacts to shark stocks because the allowable level of fishing pressure, catch rates, distribution of fishing effort, and commercial quotas would remain the same as otherwise authorized under actions that had assumed full utilization of the quota when analyzed. This alternative could potentially result in interrupted fishing activities for longer fishing trips, potentially resulting in regulatory discards and minor adverse socioeconomic impacts if trips were underway at the time of the notice of the closure. For instance, pelagic longline fishing vessels, which can take trips that last several weeks, may need to discard any dead sharks onboard and in their hold if the vessel is unable to land the sharks before the closure is effective. However, NMFS expects few dead discards and potential lost revenue as a result of closure notice timing as most pelagic longline fishermen do not target sharks and are unlikely to land many sharks given recent management measures to reduce shark mortality on pelagic longline vessels. Because this alternative would increase flexibility to close the fishery as needed while still preventing overharvest of the quota and allowing sufficient time for most fishermen to complete trips underway at the time of the notice of the closure, NMFS prefers this alternative at this time.

As described above, NMFS also considered five other alternatives regarding the threshold for closure (Alternatives 1a, 1b, 1c, 1d, and 1e) and two other alternatives regarding the timing for a closure notice (Alternatives 2a and 2c). At this time, NMFS does not prefer any of those alternatives. NMFS does not prefer Alternative 1a (No Action Alternative) because this alternative could continue to leave some of the shark quotas underutilized. NMFS does not prefer Alternative 1b or 1d because increasing the closure threshold to 90 percent in either all (1b) or part (1d) of the region would increase the potential for overharvest. NMFS does not prefer Alternative 1c because of the potential for underharvest in the shark fisheries. NMFS does not prefer Alternative 1e because the additional inseason action required to assess these criteria and carry out this alternative would unnecessarily complicate the closure procedures and possibly confuse the regulated community given past, relatively simple protocols for shark fishery closures. NMFS does not prefer Alternative 2a (No Action Alternative) because this alternative does not increase flexibility in NMFS' ability to manage the shark fisheries in a timely manner. NMFS does not prefer Alternative 2c (change the timing of shark fishery species and or management groups closures to allow for immediate closure upon filing of the closure notice with the Federal Register) as this alternative could result in interrupted fishing activities with little or no warning, potentially increasing regulatory discards if trips were underway at the time of the notice of the closure. Regarding Alternative 2c, at the HMS AP meeting in September 2017, NMFS received comments from the Panel members who indicated that immediate closure (Alternative 2c) is infeasible given that most states provide more than 24 hours of notice before closing a fishery.

Comments on this proposed rule may be submitted via http://www.regulations.gov, mail, or fax and comments may also be submitted at a public hearing. NMFS solicits comments on this proposed rule through March 26, 2018. During the comment period, NMFS will hold one conference call for this proposed rule. The hearing locations will be physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gray Redding at 301-427-8503, at least 7 days prior to the meeting.

The public is reminded that NMFS expects participants at the public hearings to conduct themselves appropriately. At the beginning of the conference call, the moderator will explain how the conference call will be conducted and how and when attendees can provide comments. The NMFS representative will attempt to structure the meeting so that all the attending members of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject(s). Attendees are expected to respect the ground rules, and, if they do not they may be asked to leave the hearing or may not be allowed to speak during the conference call.

Pursuant to the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that the proposed rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

This proposed rule is expected to be an Executive Order 13771 deregulatory action.

An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule would have on small entities if adopted. A description of the action, why it is being considered, and the legal basis for this action are contained below. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).

Section 603(b)(1) requires Agencies to describe reasons why the action is being considered. The purpose of this proposed action is to consider modifications to the percent landings threshold to a level that allows fishermen to utilize the full quota while avoiding under- and overharvest, and to determine a length of time between public notice and the effective date of a given fishery closure while avoiding under- and overharvest.

Section 603(b)(2) requires Agencies to describe the objectives of the proposed rule. NMFS has identified the following objectives, which are consistent with existing statutes such as the Magnuson-Stevens Act and its objectives, with regard to this proposed action:

• Maintaining optimum yield for all shark fishery species and/or management groups; and

• Establishing an appropriate length of public notice for a fishery closure.

Section 603(b)(3) of the Regulatory Flexibility Act requires Agencies to provide an estimate of the number of small entities to which the rule would apply. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the United States, including fish harvesters. Provision is made under the SBA's regulations for an agency to develop its own industry-specific size standards after consultation with Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)). Under this provision, NMFS may establish size standards that differ from those established by the SBA Office of Size Standards, but only for use by NMFS and only for the purpose of conducting an analysis of economic effects in fulfillment of the agency's obligations under the RFA. To utilize this provision, NMFS must publish such size standards in the Federal Register (FR), which NMFS did on December 29, 2015 (80 FR 81194). In this final rule effective on July 1, 2016, NMFS established a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411) for RFA compliance purposes. NMFS considers all HMS permit holders to be small entities because they all had average annual receipts of less than $11 million for commercial fishing.

The proposed rule would apply to the approximately 496 commercial limited access permit holders in the Atlantic shark fishery (223 directed and 271 incidental permits) and 142 open access smoothhound shark permit holders, based on an analysis of permit holders as of October 2016. Not all permit holders are active in the shark fishery in any given year. Active directed permit holders are defined as those with valid permits that landed one shark, based on HMS electronic dealer reports. Of those 223 commercial directed limited access permit holders, 29, or 13 percent of permit holders, landed large coastal sharks (LCS) and 22, or 10 percent of permit holders, landed small coastal sharks (SCS) in the Atlantic. In the Gulf of Mexico region, 13, or 6 percent of permit holders, landed LCS in the western sub-region; 8, or 4 percent of the permit holders, landed LCS in the eastern sub-region; and 5, or 2 percent of permit holders, landed SCS throughout the region. Of directed limited access permit holders, 45, or 20 percent, landed pelagic sharks. Of the 142 open-access smoothhound shark permit holders, 75, or 53 percent of permit holders, landed sharks in the Atlantic region. NMFS has determined that the proposed rule would not likely affect any small governmental jurisdictions.

Section 603(b)(4) of the RFA requires Agencies to describe any new reporting, record-keeping and other compliance requirements. The action does not contain any new collection of information, reporting, or record-keeping requirements. The alternatives considered would review and modify the percent landings threshold that prompts a shark fishery closure, and the length of time between public notice and the effective date of a given fishery closure with the goal of avoiding under- and overharvests in these fisheries.

Under section 603(b)(5) of the RFA, agencies must identify, to the extent practicable, relevant Federal rules which duplicate, overlap, or conflict with the proposed rule. Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements, domestic laws, and fishery management measures. These include the Magnuson-Stevens Act, the Atlantic Tunas Convention Act (ATCA), the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act (ESA), the National Environmental Policy Act, the Paperwork Reduction Act, and the Coastal Zone Management Act. This proposed rule has been determined not to duplicate, overlap, or conflict with any Federal rules.

One of the requirements of an IRFA is to describe any alternatives to the proposed rule which accomplish the stated objectives and which minimize any significant economic impacts. These impacts are discussed below. Additionally, the RFA (5 U.S.C. 603 (c)(1)-(4)) lists four general categories of “significant” alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage of the rule, or any part thereof, for small entities.

NMFS examined each of these categories of alternatives. Regarding the first, second, and fourth categories, NMFS cannot establish differing compliance requirements for small entities or exempt small entities from coverage of the rule or parts of it because all of the businesses impacted by this rule are considered small entities and thus the requirements are already designed for small entities. NMFS does not know of any performance or design standards that would satisfy the objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act. As described below, NMFS analyzed several different alternatives in this proposed rulemaking and provides rationales for identifying the preferred alternatives to achieve the desired objectives.

The alternatives considered and analyzed are described below. The IRFA assumes that each vessel will have similar catch and gross revenues to show the relative impact of the proposed action on vessels.

Alternative 1a, the No Action alternative, would maintain the existing 80-percent threshold to close the shark fishery and maintain current shark quotas. Based on the 2016 ex-vessel prices, the potential annual gross revenues for the 13 active directed permit holders from blacktip, aggregated LCS, and hammerhead shark meat in the western Gulf of Mexico sub-region would be $433,308, while revenue from shark fins would be $229,723. Thus, potential total average annual gross revenues by each active directed permit holder for blacktip, aggregated LCS, and hammerhead shark landings in the western Gulf of Mexico sub-region would be $51,002 ($33,331 + $17,671). The potential annual gross revenues for the 8 active directed permit holders from blacktip, aggregated LCS, and hammerhead shark meat in the eastern Gulf of Mexico sub-region would be $169,206, while revenue from shark fins would be $88,058. Thus, potential total average annual gross revenues by each active directed permit holder for blacktip, aggregated LCS, and hammerhead shark landings in the Gulf of Mexico region would be $32,158 ($21,151 + $11,007). The potential annual gross revenues for the 5 active directed permit holders for non-blacknose SCS and smoothhound in the Gulf of Mexico would be $89,909, while revenue from shark fins would be $55,450. Thus, potential total average annual gross revenues by each active directed permit holder for non-blacknose SCS in the Gulf of Mexico would be $29,072 ($17,982 + $11,090). Since there have been no landings of smoothhound sharks in the Gulf of Mexico, the annual gross revenue for the active directed permit holders would be zero. The potential annual gross revenues for the 29 active directed permit holders from aggregated LCS and hammerhead shark meat in the Atlantic would be $317,016, while revenue from shark fins would be $64,968. Thus, potential total average annual gross revenues by each active directed permit holder for aggregated LCS and hammerhead shark in the Atlantic would be $13,172 ($10,932 + $2,240). The potential annual gross revenues for the 22 active directed permit holders from non-blacknose SCS and blacknose shark meat in the Atlantic would be $317,016, while revenue from shark fins would be $64,968. Thus, potential total average annual gross revenues by each active directed permit holder for non-blacknose SCS and blacknose shark in the Atlantic would be $22,548 ($20,337 + $2,211). The potential annual gross revenues for the 75 active directed permit holders from smoothhound shark meat in the Atlantic would be $1,985,794, while revenue from shark fins would be $182,058. Thus, potential total average annual gross revenues by each active directed permit holder for smoothhound shark in the Atlantic would be $28,905 ($26,477 + $2,427). The potential annual gross revenues for the 45 active directed permit holders from pelagic sharks (blue, porbeagle, shortfin mako and thresher sharks) meat would be $2,113,982, while revenue from shark fins would be $162,530. Thus, potential total average annual gross revenues by each active directed permit holder for pelagic sharks would be $50,589 ($46,977 + $3,612). Alternative 1a would likely result in neutral direct short- and long-term socioeconomic impacts because shark fishermen would continue to operate under current conditions, with shark fishermen continuing to fish at similar rates. The No Action alternative could also have neutral indirect impacts to those supporting the commercial shark fisheries, since the retention limits, and thus current fishing efforts, would not change under this alternative.

Under Alternative 1b, NMFS would change the shark fishery-closure threshold to 90 percent of the available overall, regional, and/or sub-regional quota. This alternative is likely to have neutral direct and indirect short- and long-term socioeconomic impacts because the base quotas would not change for any of the management groups and fishermen would still be limited in the total amount of sharks that could be harvested. This alternative could potentially lead to minor beneficial direct economic impacts if fishermen can land available quota that may have remained unharvested under the current 80-percent threshold. For example, in 2016, the quota for the aggregate LCS and blacktip management groups from the western Gulf of Mexico sub-region was underutilized by 241,579 lbs dw or 32 percent of the adjusted annual base quota, valued at $201,087 in potential ex-vessel revenue. Assuming all of this unharvested quota were caught, based on the 13 vessels that landed LCS in the western Gulf of Mexico sub-region, the individual vessel impact would be an approximate gain of $15,468 per year. This does not include incidental permit holders, who would receive a smaller amount per year. In the Atlantic, the blacknose shark management group was underutilized by 8,022 lbs dw or 23 percent of the quota, valued at $8,270 in potential ex-vessel revenue. Based on the 22 vessels that landed blacknose and non-blacknose SCS in the Atlantic region, the individual vessel impact would be an approximate gain of $276 per year. This does not include incidental permit holders, which would receive a smaller amount per year. Alternative 1b could also lead to minor adverse socioeconomic impacts in the short-term if the quotas are overharvested, which would lead to lower quotas the following year. In addition, this alternative could potentially lead to minor adverse socioeconomic impacts if there is a large increase of landings combined with late dealer reporting, after the fishery is closed, that resulted in overharvest. For instance, the current 80-percent threshold has not been effective at closing in time to prevent overharvest of shark species that have small quotas, such as porbeagle sharks. As such, changing the percent closure threshold to 90 percent might be detrimental to the porbeagle shark fishery, as it may not provide sufficient buffer to prevent overharvest and fishery closures that occurred in 2013 and 2015. However, this negative impact would be only in the short-term as NMFS has the ability to monitor quotas on a weekly basis and promptly close the shark fishery.

Under Alternative 1c, NMFS would change the shark fishery-closure threshold to 70 percent of the available overall, regional, and/or sub-regional quota. This change would potentially leave a larger buffer for fishermen to complete trips and receive delayed dealer reports. It is likely the change in threshold to 70 percent would have neutral direct and indirect short- and long-term socioeconomic impacts since none of the commercial quotas are being changed and NMFS is not expecting an increase in effort or fishing. This alternative could potentially have minor adverse direct socioeconomic impacts if there is a large amount of underharvest remaining every year, after accounting for late dealer reports, that fishermen would no longer be able to harvest as compared to the No Action alternative. For instance, a 10-percent decrease in realized revenue for the western Gulf of Mexico blacktip, aggregated LCS, and hammerhead shark fisheries would equate to an approximate $66,303 (10 percent of $433,308 + $229,273) loss in ex-vessel revenue. Based on the 13 vessels that landed LCS in the western Gulf of Mexico sub-region, the individual vessel impact would be an approximate loss of $5,100 per year. This does not include incidental permit holders, which would receive a smaller amount per year. However, these would only be short-term losses because NMFS has achieved close to full quota utilization in recent years for some shark quotas.

Under Alternative 1d, NMFS would change the shark fishery-closure threshold to 90 percent in the Atlantic Region, while maintaining the Gulf of Mexico closure threshold and overall non-regional threshold at 80 percent. Alternative 1d provides some flexibility in assigning different closure thresholds between the Atlantic and Gulf of Mexico regions. In the Atlantic region, this alternative could potentially lead to minor beneficial direct economic impacts if fishermen can land available quota that may have remained unharvested under the current 80-percent threshold. For instance, a 10-percent increase in realized revenue for the Atlantic aggregated LCS and hammerhead shark fisheries would equate to an approximate $38,198 (10 percent of $317,016 + $64,968) gain in ex-vessel revenue. Based on the 29 vessels that landed LCS in the Atlantic region, the individual vessel impact would be an approximate increase of $1,317 per year. This does not include incidental permit holders, which would receive a smaller amount per year. In the Gulf of Mexico region and for fisheries with no region, this alternative could likely result in neutral direct and indirect, short- and long-term socioeconomic impacts because shark fishermen would continue to operate under current conditions, with shark fishermen continuing to fish at similar rates. Impacts in the Gulf of Mexico would therefore be the same as those described in Alternative 1a.

Under Alternative 1e, when any shark fishery species and/or management group landings reach or are projected to reach 80 percent of the available overall, regional, and/or sub-regional quota, NMFS would evaluate the criteria before determining if a closure is needed at the 80-percent threshold. This alternative would add additional flexibility to close a fishery depending on a set of criteria, helping to maximize management efficacy while preventing overharvest. If this increased flexibility in determining when to close a fishery leads to full quota utilization of management groups, while still preventing overharvest of shark fisheries, then fishermen could potentially see additional revenue from being able to land sharks that would otherwise have remained unharvested under the existing 80-percent threshold. For instance, a 20-percent increase in realized revenue for the Atlantic aggregated LCS and hammerhead shark fisheries would equate to an approximate $76,397 (20 percent of $317,016 + $64,968) gain in ex-vessel revenue. Based on the 29 vessels that landed LCS in the Atlantic region, the individual vessel impact would be an approximate increase of $2,634 per year. This does not include incidental permit holders, who would receive a smaller amount per year. Based upon these criteria, the fishery could still operate similarly to the status quo 80-percent closure threshold, which would result in neutral socioeconomic impacts as described for Alternative 1a, the status quo alternative. As examples, if a shark species/management group quota reaches 80 percent by September 1, then NMFS would evaluate the criteria in Alternative 1e before determining if a closure is needed at the 80-percent threshold in the Gulf of Mexico and Atlantic regions. Based on criteria A (stock status of the relevant species or management group and any linked species and/or management groups) and C (continued landings after the Federal closure), NMFS would likely close the shark species/management group quota in the Gulf of Mexico. In the Atlantic region, NMFS would likely also close the shark species/management group quota based on criteria A since all of the shark species/management groups in the region have an overfished or unknown stock status. This would lead to neutral socioeconomic impacts in both regions since there would be no change from current regulations. If a shark species/management group quota reaches 80 percent by December 1, then NMFS would need to evaluate all of the criteria closely before implementing a closure in either the Gulf of Mexico or Atlantic region. A key criterion to evaluate is the likelihood of landings exceeding the quota by December 31 of each year (Criteria E). In the Gulf of Mexico region, NMFS would also consider Criteria C (continued landings after the Federal closure) and how this would impact the fishery. In the Atlantic region, NMFS would likely keep the fishery open as long as landings are not projected to exceed the quota by the end of the year.

Under Alternative 1f, the preferred alternative, NMFS would maintain the 80-percent closure threshold but allow a shark fishery to remain open after the fishery's landings have reached or are projected to reach 80 percent as long as landings are not projected to reach 100 percent before the end of the fishing season. This alternative, similar to Alternatives 1d and 1e, would provide the flexibility of achieving full quota utilization while still preventing overharvest. This alternative could therefore lead to neutral socioeconomic impacts, similar to Alternative 1a, the status quo alternative, if the landings are projected to reach 100 percent before the end of the fishing season. As examples, if a shark species/management group landings reach 80 percent by September 1, then NMFS would likely have to close the fishery if it was in either the Gulf of Mexico or Atlantic regions because the landings would likely reach 100 percent before the end of the fishing season. This would cause neutral socioeconomic impacts since it would be the status quo for the fishery. If a shark species/management group landings reach 80 percent by December 1, then NMFS would project whether the landings in the Gulf of Mexico and Atlantic regions would reach 100 percent before the end of the fishing season. If the landings would not reach 100 percent before the end of the fishing season, then NMFS would keep the fishery open. Thus, this could lead to minor beneficial socioeconomic impacts because the quota could be fully utilized.

Under Alternative 2a, NMFS would maintain the status quo and would not change the notice period of five days for the closure of a management group. This alternative would have no impact on the allowable level of fishing pressure, catch rates, or distribution of fishing effort. As such, it is likely that the No Action Alternative as well as this alternative in combination with any of the Alternatives 1b, 1c, 1d, 1e, or 1f would have both neutral direct and indirect, short- and long-term socioeconomic impacts. If there is a large amount of landings made during the five-day notice and a later closure under Alternatives 1b, 1c, or 1d, then there could be the potential for minor beneficial socioeconomic impacts for those fisheries who have underutilized the quota in recent years. The majority of fishing trips for sharks are currently one day in length, so a five-day closure notice should not result in regulatory discards for these trips. However, this alternative could potentially result in interrupted fishing activities, potentially resulting in regulatory discards if trips were underway at the time of the notice of the closure. For instance, pelagic longline fishing vessels, which can take trips that last several weeks, may need to discard any dead sharks onboard and in their hold if the vessel is unable to land the sharks before the closure is effective. However, NMFS expects few dead discards as a result of closure notices given that NMFS has implemented several management measures that prohibit retention of some sharks (i.e., silky, oceanic whitetip, hammerhead sharks) on vessels with pelagic longline gear onboard. These management changes have made pelagic longline fishermen unlikely to land many sharks in recent years. In combination with all other alternatives (i.e., 1a, 1c, 1d, 1e, and 1f), except Alternative 1b, this alternative would allow fishermen to complete their fishing trips while still preventing overharvest. In combination with Alternative 1b (e.g., 90-percent closure threshold), there is a risk of overharvest if the landings rate was high before the closure date is effective and potential reduced quotas the following season.

Under Alternative 2b, the preferred alternative, NMFS would change the minimum notice period to three days instead of the current five-day notice once the fisheries reached a landings threshold necessitating a closure. This change would allow more timely action in closing shark fisheries, helping to prevent overharvest. In combination with all other Alternatives (1a, 1b, 1d, 1e, and 1f), except Alternative 1c, this alternative would reduce the risk of exceeding the quota, especially if the landings rate was high before the closure date is effective. In combination with Alternative 1c (e.g., 70-percent closure threshold), this alternative would increase the risk of a significant underharvest and would cause minor adverse socioeconomic impacts. This alternative would have no impact on the allowable level of fishing pressure, catch rates, or distribution of fishing effort, as the commercial quotas would remain the same. Therefore, it is likely that this alternative would have both neutral direct and indirect, short- and long-term socioeconomic impacts. Because this alternative increases flexibility to close the fishery as needed while still preventing overharvest and allowing sufficient time for fishermen to complete trips underway at the time of the notice of the closure, NMFS prefers this alternative at this time. This alternative could potentially result in interrupted fishing activities for pelagic longline vessels, which generally take trips longer than nine days, potentially resulting in regulatory discards if trips were underway at the time of the closure. However, NMFS expects few dead discards as a result of the closure notice timing as most pelagic longline fishermen do not target sharks and are unlikely to land many sharks given recent management measures to reduce shark mortality on pelagic longline vessels. In addition, the preferred time before the closure is effective is well within the range of the current directed shark trip lengths (i.e., 1-2 days).

Under Alternative 2c, NMFS would change the timing of shark fishery species and/or management group closures to allow immediate closure upon filing of the closure notice with the Federal Register. This action would allow timely action in closing shark fisheries, helping to prevent overharvest. In combination with all other alternatives, this alternative would either reduce the risk of exceeding the quota (i.e., Alternatives 1a, 1b, 1d, 1e, and 1f) or increase the risk of a significant underharvest (i.e., Alternative 1c). Therefore, it is likely that this alternative would have both neutral direct and indirect, short- and long-term economic impacts. However, as described above, this alternative could potentially result in interrupted fishing activities with little or no warning to the regulated community, potentially resulting in regulatory discards, if trips were underway at the time of the notice of the closure, with associated loss of revenue. Additionally, HMS AP members from several states indicated that some states would have difficulty closing state water fisheries immediately.

For the reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows: