Federal Register Vol. 83, No.41,

On March 3, 2017, at 82 FR 12424, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Model AS332C, AS332C1, AS332L, AS332L1, and AS332L2 helicopters with a date of manufacture on or before July 14, 2014, and with a sliding door with Airbus Helicopters modification AL25612 or 0725870 installed; and Model EC225LP helicopters with a date of manufacture on or before July 14, 2014.

The NPRM proposed to require visually inspecting for and removing any sealing compound from the sliding doors and any corrosion from all visible bracket surfaces, measuring corrosion depth and performing a jettisoning test if there is corrosion, and measuring the clearance between the bracket and stainless steel pipe to ensure a minimum clearance. For Model EC225LP helicopters and Model AS332-series helicopters with modification AL25612, the NPRM also proposed inspecting for drain obstruction. The proposed requirements were intended to prevent corrosion damage, which can hinder jettisoning the door during an emergency, jeopardizing the safe evacuation of occupants.

The NPRM was prompted by AD No. 2015-0156, dated July 29, 2015, and corrected July 30, 2015, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for the Airbus Helicopters Model AS332C, AS332C1, AS332L, AS332L1, and AS332L2 helicopters manufactured before July 14, 2014, and equipped with sliding doors modified in accordance with Airbus Helicopters modification (MOD) AL25612 or 0725870. EASA AD No. 2015-0156 also applies to Airbus Helicopters Model EC225LP helicopters manufactured before July 14, 2014, and equipped with sliding doors.

EASA advises that the sliding door's emergency jettisoning mechanism failed during a scheduled inspection because of significant corrosion damage caused by water accumulation from a plastic-rubber compound that obstructed the water drain of the jettison mechanism system. According to EASA, this condition, if not detected and corrected, could lead to jamming of the jettisoning mechanism, possibly preventing the jettisoning of the door during an emergency and jeopardizing the safe evacuation of occupants. To address this unsafe condition, EASA AD No. 2015-0156 requires a one-time inspection of the left hand and right hand sliding doors for corrosion.

Since the NPRM was issued, the FAA's Aircraft Certification Service has changed its organization structure. The new structure replaces product directorates with functional divisions. We have revised some of the office titles and nomenclature throughout this Final rule to reflect the new organizational changes. Additional information about the new structure can be found in the Notice published on July 25, 2017 (82 FR 34564).

After our NPRM was published, we received comments from two commenters.

Both commenters requested that we require replacement of the entire door jettisoning system. In support of this request, the commenters stated that only replacing corroded parts and not the entire system does not eliminate the danger of the parts corroding again.

We disagree. The AD does not only require the replacement of corroded parts. It also requires removing any sealing compound, measuring any corrosion and testing the door jettisoning mechanism, ensuring the clearance between the bracket and stainless steel pipe, and ensuring there is no obstruction of the drain on the roller well bracket. We determined that the combination of these actions reduces the risk of the corrosion recurring to an acceptable level and is therefore sufficient to correct the unsafe condition.

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA, reviewed the relevant information, considered the comments received, and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

The EASA AD requires compliance within various times, depending on the helicopter model and modifications. This AD requires compliance within 30 days.

We reviewed Airbus Helicopters Alert Service Bulletin No. AS332-53.01.86, Revision 1, dated June 29, 2015 (ASB AS332-53.01.86), for Model AS332C, AS332C1, AS332L, AS332L1, and AS332L2 helicopters and military model AS332B, B1, F1, M, and M1 helicopters; and Alert Service Bulletin No. EC225-53A048, Revision 0, dated August 18, 2014 (ASB EC225-53A048), for Model EC225LP helicopters. ASB AS332-53.01.86 and ASB EC225-53A048 specify checking areas of the emergency jettisoning system of the sliding doors for the absence of sealing compound, for corrosion on the visible surfaces of the bracket, for the absence of interference between the stainless steel pipe and the aluminum bracket, and for non-obstruction of the drain.

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

We estimate that this AD affects 24 helicopters of U.S. Registry and that labor costs average $85 per work-hour. Based on these estimates, we expect that visually inspecting for corrosion requires 1 work-hour and no parts for a total cost of $85 per helicopter, and $2,040 for the U.S. fleet. Replacing corroded parts requires 8 work-hours and parts cost $500 for a total cost of $1,180 per helicopter. Replacing the door jettisoning system requires 16 work-hours and parts cost $4,500 for a total cost of $5,860 per helicopter.

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 helicopters identified in this rulemaking action.

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; 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.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

On September 22, 2017, at 82 FR 44363, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Agusta S.p.A. Model AB139 and Model AW139 helicopters. The NPRM proposed to require inspecting the thickness of the TGB housing and replacing the TGB before further flight if the thickness is less than 2.65 mm (0.104 inch). The proposed requirements were intended to prevent a crack in the TGB central housing, which could result in the failure of the tail gear rotor transmission and loss of helicopter control.

The NPRM was prompted by AD No. 2016-0246, dated December 13, 2016, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Leonardo S.p.A. (formerly Finmeccanica S.p.A. and Agusta S.p.A.) Model AB139 and Model AW139 helicopters.

EASA advises that the thickness of some sections of the housing do not conform to the type design and could lead to premature cracks in the housing, resulting in failure of the tail gear rotor transmission and reduced control of the helicopter. The EASA AD consequently requires a one-time inspection to determine the thickness of the housing wall, and depending on the findings, replacing the housing or TGB assembly with an airworthy part.

The FAA is in the process of updating Agusta S.p.A.'s name change to Leonardo S.p.A. on its FAA type certificate. Because this name change is not yet effective, this AD specifies Agusta S.p.A. as the type certificate holder.

We gave the public the opportunity to participate in developing this AD, but we received no comments on the NPRM.

These helicopters have been approved by the aviation authority of Italy and are approved for operation in the United States. Pursuant to our bilateral agreement with Italy, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

If a housing has fewer than 7,500 hours TIS, the EASA AD requires a dimensional inspection of the housing wall at a helicopter's first return to a shop or service station for a TGB overhaul or repair after the EASA AD's effective date but no later than 7,500 hours TIS. This AD requires such an inspection only before reaching 7,500 hours TIS.

We reviewed Leonardo Helicopters Bollettino Tecnico No. 139-274, dated September 14, 2016 (BT 139-274), which specifies procedures for a dimensional check of the housing or TGB to determine the thickness of the housing wall. For housings with fewer than 7,500 flight hours, BT 139-274 specifies compliance with the dimensional check by measurement during the next repair or overhaul, and replacing the housing if it does not meet its thickness requirement. For housings with 7,500 or more flight hours, BT 139-274 specifies compliance with the dimensional check by ultrasonic inspection within 300 flight hours, and replacing the TGB if it does not meet its thickness requirement. BT 139-274 excludes certain serial-numbered housings from the applicability because they were inspected before delivery to customers.

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

We estimate that this AD affects 103 helicopters of U.S. Registry and that labor costs average $85 per work-hour. Based on these estimates, we expect the following costs:

• Measuring the thickness of the housing requires .5 work-hour, and no parts are needed for a total cost of $43 per helicopter.

• Ultrasonic inspecting the thickness of the housing requires 2 work-hours, and no parts are needed for a total cost of $170 per helicopter.

• Replacing the TGB housing requires 5 work-hours, and parts cost $11,185 for a total cost of $11,610 per helicopter.

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 helicopters identified in this rulemaking action.

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; 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.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

The California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, over Sacramento River, at Sacramento, CA. The drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw operates as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.

The drawspan will be secured in the closed-to-navigation position from 8 a.m. to 10:30 a.m. on March 10, 2018, and from 7:30 a.m. to 1 p.m. on March 11, 2018, to allow the community to participate in the Shamrock 5K footrace and the Shamrock Half Marathon, respectively. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The New Jersey Department of Transportation, who owns and operates the Bridge Avenue Bridge (Route 13) across the Point Pleasant Canal, mile 3.9, Point Pleasant, NJ, has requested a temporary deviation from the current operating regulation. This temporary deviation is necessary to facilitate electrical transformer, and back-up diesel motor repairs. The bridge is a lift bridge, and has a vertical clearance in the closed-to-navigation position of 30 feet above mean high water.

The current operating schedule is set out in 33 CFR 117.5. Under this temporary deviation, the bridge will remain in the closed-to-navigation position from 7 a.m. on February 26, 2018, to 3:30 p.m. on March 2, 2018. Point Pleasant Canal is used by a variety of vessels including recreational vessels, and small commercial vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.

The bridge will not be able to open during the maintenance period. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Ohio Valley DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Captain of the Port Ohio Valley is establishing a safety zone for all navigable waters of the Tennessee River, from mile 446.0 to 454.5 during periods of high water flow. This safety zone is necessary to provide safety for mariners transiting on the Tennessee River during periods of high water flow. There have been temporary final rules issued in the past establishing a safety zone on the Tennessee River beginning at mile marker 446.0 and ending at mile marker 454.5 when flow rates reached or exceeded 100,000 cubic feet per second at Chickamauga lock and dam. Examples of these previous temporary final rules were published under docket numbers USCG-2013-0025 and USCG-2011-1148. This rulemaking is also necessary to more efficiently effect necessary safety measures during emergent high water events in the future by reducing administrative burden and the amount of paperwork required for multiple individual rulemakings. The Tennessee River beginning at mile marker 446.0 and ending at 454.5 poses a navigational hazard during periods of high water flow. A high water flow determination for this area is established when flow rates reach or exceed 100,000 cubic feet per second at Chickamauga lock and dam on the Tennessee River at mile marker 471.0. The Captain of the Port Sector Ohio Valley (COTP) has determined that additional safety measures are necessary to protect all mariners during periods of high water flow. On January 13, 2017, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety zone; Tennessee River, Mile 446.0 to 454.5 (82 FR 4229). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related high water flow. During the comment period that ended January 30, 2017, we received no comments.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that potential hazards are associated with the Tennessee River beginning at mile marker 446.0 and ending at 454.5 posing a navigational hazard during periods of high water flow.

As noted above, we received no comments on our NPRM published January 13, 2017. The regulatory text of this rule was changed from the proposed rule in the NPRM to provide a certain effective date.

The COTP is establishing a safety zone for all navigable waters of the Tennessee River beginning at mile marker 446.0 and ending at mile marker 454.5. Vessels or persons will not be able to enter into, depart from, or move within this area without permission from the COTP or designated representative. Persons or vessels requiring entry into or passage through the safety zone will be required to request permission from the COTP, or designated representative. They can be contacted on VHF-FM Channel 13, 16, or through Coast Guard Sector Ohio Valley at 1-800-253-7465. This rule is effective during periods of high water flow when flow rates reach or exceed 100,000 cubic feet per second at Chickamauga lock and dam. The COTP will inform the public through broadcast notices to mariners during periods of high water flow when the safety zone is established as well as when flow rates fall below 100,000 cubic feet per second and the safety zone is no longer in effect.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will only be impacted during times of high water which pose dangerous navigational hazards when flow rates exceed 100,000 cubic feet per second at Chickamauga lock and dam. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit entry within the regulated area. It is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES.

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

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

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

On August 1, 2016 (81 FR 50339), the EPA issued a final limited approval and limited disapproval for revisions to the BAAQMD portion of the California State Implementation Plan (SIP) that had been submitted by CARB to the EPA for approval (the 2016 NSR action). The 2016 NSR action addressed the BAAQMD's permitting program for the issuance of New Source Review (NSR) permits for stationary sources, including review and permitting of major and minor sources under the Act. In our 2016 NSR action, we determined that while BAAQMD's SIP revision submittal strengthened the SIP, the submittal did not fully meet the requirements for NSR permitting programs under the CAA. Our 2016 NSR action included a final limited disapproval action under title I, part D of the Act, relating to requirements for nonattainment areas. Pursuant to section 179 of the CAA and our regulations at 40 CFR 52.31, this limited disapproval action under title I, part D started a sanctions clock for imposition of offset sanctions 18 months after the action's effective date of August 31, 2016, and highway sanctions 6 months later.

On December 6, 2017, BAAQMD revised its NSR permit program rules and on December 14, 2017, CARB submitted the revised NSR permit program rules to the EPA for approval into the California SIP (December 2017 NSR submittal). These revised rules are intended to address the limited disapproval issues under title I, part D that we identified in our 2016 NSR action. In the Proposed Rules section of this Federal Register, we have proposed approval of BAAQMD's December 2017 NSR submittal. Based on this proposed approval action, we are also taking this interim final determination, effective on publication, to defer imposition of the offset sanctions and highway sanctions that were triggered by our 2016 NSR action's limited disapproval of BAAQMD's NSR permitting program, because we believe that the December 2017 NSR submittal corrects the deficiencies that triggered such sanctions.

The EPA is providing the public with an opportunity to comment on this deferral of sanctions. If comments are submitted that change our assessment described in this interim final determination and the proposed full approval of BAAQMD's December 2017 NSR submittal with respect to the title I, part D deficiencies identified in our 2016 NSR action, we would take final action to lift this deferral of sanctions under 40 CFR 52.31. If no comments are submitted that change our assessment, then all sanctions and any sanction clocks triggered by our 2016 NSR action would be permanently terminated on the effective date of our final approval of BAAQMD's December 2017 NSR submittal.

We are making an interim final determination to defer CAA section 179 sanctions associated with our limited disapproval action on August 1, 2016 of BAAQMD's NSR permitting program with respect to the requirements of part D of title I of the CAA. This determination is based on our concurrent proposal to fully approve BAAQMD's December 2017 NSR submittal, which resolves the deficiencies that triggered sanctions under section 179 of the CAA.

Because the EPA has preliminarily determined that BAAQMD's December 2017 NSR submittal addresses the deficiencies under part D of title I of the CAA identified in our 2016 NSR action and is fully approvable, relief from sanctions should be provided as quickly as possible. Therefore, the EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity for comment before this action takes effect (5 U.S.C. 553(b)(3)). However, by this action, the EPA is providing the public with a chance to comment on the EPA's determination after the effective date, and the EPA will consider any comments received in determining whether to reverse such action.

The EPA believes that notice-and-comment rulemaking before the effective date of this action is impracticable and contrary to the public interest. The EPA has reviewed the State's submittal and, through its proposed action, is indicating that it is more likely than not that the State has submitted a revision to the SIP that corrects deficiencies under part D of the Act that were the basis for the action that started the sanctions clocks. Therefore, it is not in the public interest to impose sanctions. The EPA believes that it is necessary to use the interim final rulemaking process to defer sanctions while the EPA completes its rulemaking process on the approvability of the State's submittal. Moreover, with respect to the effective date of this action, the EPA is invoking the good cause exception to the 30-day notice requirement of the APA because the purpose of this notice is to relieve a restriction (5 U.S.C. 553(d)(1)).

This action defers sanctions and imposes no additional requirements.

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

This action does not impose an information collection burden under the PRA. This action defers sanctions and imposes no new requirements.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action defers sanctions and imposes no new requirements.

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

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175. This action defers sanctions and imposes no new requirements. In addition, this action does not 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. Thus, Executive Order 13175 does not apply to this action.

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

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

This rulemaking does not involve technical standards.

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action defers sanctions in accordance with CAA regulatory provisions and imposes no additional requirements.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule as discussed in section II of this preamble, including the basis for that finding.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 30, 2018. Filing a petition for reconsideration by the EPA Administrator of this final rule does not affect the finality of this rule for the purpose of judicial review nor does it extend the time within which petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see CAA section 307(b)(2)).

I. Background

Ground level ozone is formed when NOX and VOC react in the presence of sunlight. NOX and VOC are referred to as ozone precursors and are emitted by many types of pollution sources, including motor vehicles, power plants, industrial facilities, and area wide sources, such as consumer products and lawn and garden equipment. Scientific evidence indicates that adverse public health effects occur following exposure to ozone. These effects are more pronounced in children and adults with lung disease. Breathing air containing ozone can reduce lung function and inflame airways, which can increase respiratory symptoms and aggravate asthma or other lung diseases. In response to this scientific evidence, EPA promulgated the first ozone NAAQS in 1979, the 0.12 part per million (ppm) 1-hour ozone NAAQS. See 44 FR 8202 (February 8, 1979). EPA had previously promulgated a NAAQS for total photochemical oxidants.

On July 18, 1997, EPA promulgated a revised ozone NAAQS of 0.08 ppm, averaged over eight hours. 62 FR 38855. This 8-hour ozone NAAQS was determined to be more protective of public health than the previous 1979 1-hour ozone NAAQS. In 2008, EPA revised the 8-hour ozone NAAQS from 0.08 to 0.075 ppm. See 73 FR 16436 (March 27, 2008).

On May 21, 2012, the Philadelphia-Wilmington-Atlantic City area was designated as marginal nonattainment for the 2008 8-hour ozone NAAQS. 77 FR 30088. The designation of the Philadelphia-Wilmington-Atlantic City area as marginal nonattainment was effective July 20, 2012. The Philadelphia-Wilmington-Atlantic City nonattainment area is comprised of Cecil County in Maryland, as well as counties in Delaware, New Jersey, and Pennsylvania.

Under sections 172(c)(3) and 182(a)(1) of the CAA, Maryland is required to submit a comprehensive, accurate, and current inventory of actual emissions from all sources of the relevant pollutants, i.e. the ozone precursors NOX and VOC, for the marginal nonattainment area, i.e., the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area. In order to satisfy the requirements of CAA sections 172(c)(3) and 182(a)(1), on January 19, 2017, Maryland formally submitted the 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8-hour ozone NAAQS as a SIP revision (SIP # 16-15).

On September 25, 2017, EPA simultaneously published a notice of proposed rulemaking (NPR) (82 FR 44544) and a direct final rule (DFR) (82 FR 44522) approving Maryland's 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8-hour ozone NAAQS as a SIP revision. The DFR included an amendment to 40 CFR 52.1070 (identification of Maryland's SIP) and an amendment to 40 CFR 52.1075 (explanation of Maryland's base year emissions inventories). EPA received an adverse comment on the rulemaking and withdrew the DFR prior to the effective date of November 24, 2017. See 82 FR 54298 (November 17, 2017). However, in the withdrawal, EPA only withdrew the amendment to 40 CFR 52.1070, which would have added an entry for the “2011 Base Year Inventory for the 2008 8-Hour Ozone National Ambient Air Quality Standard” to the table under 40 CFR 52.1075(e) (EPA-approved nonregulatory and quasi-regulatory material). EPA inadvertently did not withdraw the amendment to 40 CFR 52.1075, which became effective on November 24, 2017. This provision revised Maryland's SIP to include paragraph (q) under 40 CFR 52.1075, which described EPA's “approval” of Maryland's 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8-hour ozone NAAQS. Because the addition of 40 CFR 52.1075(q) did not contain an effective date and this final action approving Maryland's 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8-hour ozone NAAQS will correctly add 40 CFR 52.1075(q), the earlier effective date which added 40 CFR 52.1075(q) is harmless. Therefore, no correction is needed for this harmless early addition. In the NPR, EPA had proposed to approve the SIP revision, which included Maryland's 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8-hour ozone NAAQS. In this final rulemaking, EPA is responding to the comments submitted on the proposed revision to the Maryland SIP and is approving Maryland's 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8-hour ozone NAAQS as a SIP revision. Because 40 CFR 52.1075(q) was prematurely added by EPA's inadvertent failure to withdraw the amendment to 40 CFR 52.1075 when we withdrew the DFR in the November 17, 2017 withdrawal Federal Register notice, no further amendment to 40 CFR 52.1075 is necessary.

Under CAA section 172(c)(3), states are required to submit a comprehensive, accurate, and current inventory of actual emissions from all sources (point, nonpoint, nonroad, and onroad) of the relevant pollutant or pollutants in the nonattainment area. CAA section 182(a)(1) requires that areas designated as nonattainment and classified as marginal submit an inventory of all sources of ozone precursors no later than 2 years after the effective date of designation. EPA's guidance for emissions inventory development calls for actual emissions to be used in the base year inventory. The state must report annual emissions as well as “summer day emissions.” As defined in 40 CFR 51.900(v), “summer day emissions” means, “an average day's emissions for a typical summer work weekday. The state will select the particular month(s) in summer and the day(s) in the work week to be represented.”

On January 19, 2017, MDE submitted a formal revision (SIP #16-15) to its SIP. The SIP revision consists of the 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8-hour ozone NAAQS. MDE selected 2011 as its base year for SIP planning purposes, as recommended in EPA's final rule, “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements.” See 80 FR 12263 (March 6, 2015). MDE's 2011 base year inventory includes emissions estimates covering the general source categories of stationary point, area (nonpoint), nonroad mobile, onroad mobile, and Marine-Air-Rail (M-A-R). In its 2011 base year inventory, MDE reported actual annual emissions and typical summer day emissions for the months of May through September for NOX, VOC, and carbon monoxide. MDE also reported annual emissions for fine particulate matter (PM2.5), sulfur dioxide (SO2), and ammonia (NH3) In this approval of the 2011 base year emissions inventory for the 2008 ozone NAAQS, EPA is approving only the portions of the inventory that relate to the relevant ozone precursors, which are VOC and NOX.1

Table 1 summarizes the 2011 VOC and NOX emission inventory by source sector for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area. Annual emissions are given in tons per year (tpy) and summer weekday emissions are given by tons per day (tpd).

Point sources are large, stationary, and identifiable sources of emissions that release pollutants into the atmosphere. Maryland obtained its point source data from the MDE Air and Radiation Management Administration (ARMA) point source emissions inventory. ARMA identifies and inventories stationary sources for the point source emissions inventory through inspections, investigations, permitting, and equipment registrations.

Area sources, also known as nonpoint sources, are sources of pollution that are small and numerous and have not been inventoried as specific point or mobile sources. To inventory these sources, they are grouped so that emissions can be estimated collectively using one methodology. Examples of nonpoint sources include residential heating emissions and emissions from consumer solvents. MDE calculated nonpoint emissions for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area by multiplying emissions factors specific for each source category with some known indicator of collective activity for each source category, such as population or employment data.

Nonroad sources are mobile sources other than onroad vehicles. In its 2011 base year inventory, MDE separated nonroad sources into two categories: “Nonroad Model NMIM” and M-A-R. Nonroad Model NMIM sources include lawn and garden equipment, airport service equipment, recreational land vehicles or equipment, recreational marine equipment, light commercial equipment, industrial equipment, construction equipment, agricultural or farm equipment, and logging equipment. MDE relied on EPA's nonroad emissions calculations from the National Mobile Inventory Model (NMIM- April 5, 2009) to calculate emissions from sources in the “Nonroad Model NMIM” category. M-A-R sources include railroads, commercial aviation, air taxis, general aviation, military aviation, and commercial marine vessels. MDE estimated M-A-R emissions using data from surveyed sources or state and federal reporting agencies. Onroad or highway sources are vehicles, such as cars, trucks, and buses, which are operated on public roadways. MDE estimated onroad emissions for these sources using EPA's Motor Vehicle Emission Simulator (MOVES) model, version 2010a, and appropriate activity levels, such as vehicle miles traveled (VMT) estimates developed from vehicle count data maintained by the State Highway Administration (SHA) of the Maryland Department of Transportation (MDOT).

EPA reviewed Maryland's 2011 base year emission inventory's results, procedures, and methodologies for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area and found them to be acceptable and approvable under CAA sections 110, 172(c)(3) and 182(a)(1) of the CAA. EPA's review and analysis is detailed in a Technical Support Document (TSD) prepared for this rulemaking. The TSD is available online at http://www.regulations.gov, Docket ID No. EPA-R03-OAR-2017-0149. The public comments received on the NPR are discussed in Section III of this rulemaking action.

EPA received two public comments on our September 25, 2017 proposal to approve Maryland's 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8-hour ozone NAAQS. The comment submitted on October 25, 2017, was not related to this action and will not be addressed here.

Comment: The commenter stated that for a multistate nonattainment area, EPA cannot approve a single state's emission inventory. Rather, the commenter believes that EPA must approve a single emission inventory for the entire nonattainment area instead of taking a piecemeal approach to act on each individual emissions inventory submitted by each state for that state's portion of the nonattainment area. The commenter expressed concern that by approving separate emission inventories for each state, EPA will not know if all of the other states are “within the right limits.”

Response: For ozone nonattainment areas, CAA section 182(a) specifically provides that “Each State in which all or part of a Marginal Area is located shall, with respect to the Marginal Area (or portion thereof . . .), submit to the Administrator the State implementation plan revisions . . . described under this subsection.” CAA section 182(a)(1) requires that “the State shall submit a comprehensive, accurate, current inventory of actual emissions from all sources.” EPA notes that this requirement to submit a SIP revision providing for a comprehensive inventory applies to each individual state, including a state in which only part of a nonattainment area is located. Each other state that is part of the nonattainment area would also bear the same requirement and, therefore, the CAA provides for a comprehensive emission inventory for the entire nonattainment area.

CAA section 110(k) requires the EPA to act on a SIP revision within a set amount of time of when that SIP revision is submitted. The requirement is to act on each individual SIP submission. Nothing in the CAA requires EPA to act on groups of submittals, and likewise, there is no CAA requirement to act in a single action for SIPs submitted across an entire nonattainment area. Thus, EPA is appropriately acting to approve only Maryland's inventory submission for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8-hour ozone NAAQS.

EPA is approving the Maryland SIP revision submitted on January 19, 2017, which is Maryland's 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8-hour ozone NAAQS, as a revision to the Maryland SIP. This rule, which responds to the adverse comment received, finalizes our proposed approval of Maryland's 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8-hour ozone NAAQS.

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

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

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

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 30, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action approving Maryland's 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8-hour ozone NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

This rule takes action on the submission from IEPA, dated May 8, 2017, requesting redesignation of the Metro-East area to attainment for the 2008 ozone standard. The background for this action is discussed in detail in EPA's proposal, dated December 8, 2017 (82 FR 57892). In that rulemaking, we noted that, under EPA regulations at 40 CFR part 50, the 2008 ozone NAAQS is attained in an area when the 3-year average of the annual fourth highest daily maximum 8-hour average concentration is equal to or less than 0.075 parts per million, when truncated after the thousandth decimal place, at all of the ozone monitoring sites in the area. (See 40 CFR 50.15 and appendix P to 40 CFR part 50.) Under the CAA, EPA may redesignate nonattainment areas to attainment if sufficient complete, quality-assured data are available to determine that the area has attained the standard and if it meets the other CAA redesignation requirements in section 107(d)(3)(E). The proposed rule provides a detailed discussion of how Illinois has met these CAA requirements.

As discussed in the December 8, 2017, proposal, quality-assured and certified monitoring data for 2014-2016 and preliminary data for 2017 show that the St. Louis area has attained and continues to attain the 2008 ozone standard. In the maintenance plan submitted for the area, Illinois has demonstrated that the ozone standard will be maintained in the area through 2030. Finally, Illinois adopted 2030 VOC and NOX MVEBs for the Metro East portion of the St. Louis area that are adequate and supported by IEPA's maintenance demonstration.

EPA provided a 30-day review and comment period for the December 8, 2017, proposed rule. The comment period ended on January 8, 2018. We received two comments, which were related to general concerns about wildfires and the EPA Administrator. These comments are not specific to this action and thus are not addressed here.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, EPA is determining that the St. Louis nonattainment area is attaining the 2008 ozone standard, based on quality-assured and certified monitoring data for 2014-2016, and that the Metro-East portion of this area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus approving IEPA's request to change the legal designation of the Metro-East portion of the St. Louis area from nonattainment to attainment for the 2008 ozone standard. EPA is also approving, as a revision to the Illinois SIP, the state's maintenance plan for the area. The maintenance plan is designed to keep the St. Louis area in attainment of the 2008 ozone NAAQS through 2030. Finally, EPA finds adequate and is approving, as a SIP revision, the newly-established 2030 MVEBs for the Metro-East area.

In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for these actions to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this rule relieves the state of planning requirements for this ozone nonattainment area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(1) and (3) for these actions to become effective on the date of publication of these actions.

Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 30, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR parts 52 and 81 are amended as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0447 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 30, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0447, by one of the following methods:

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

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

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

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

EPA, on its own initiative, in accordance with FFDCA sections 408(e) and 408(l)(6) of, 21 U.S.C. 346a(e) and 346a(1)(6), is establishing time-limited tolerances for residues of methyl bromide, in or on the following agricultural commodities: Avocado at 5.0 parts per million (ppm); Banana at 5.0 ppm; Cactus at 3.0 ppm; Coconut, copra at 8.0 ppm; Coffee, green bean at 150 ppm; Cola at 150 ppm; Cucurbit, seed at 150 ppm; Fig at 10 ppm; Fruit, berry and small fruit, group 13-07 at 5.0 ppm; Fruit, stone, group 12-12 at 5.0 ppm; Herbs and spices, group 19 at 35 ppm; Hibiscus, seed at 150 ppm; Ivy gourd at 5.0 ppm; Kaffir lime, leaves at 0.50 ppm; Kenaf, seed at 150 ppm; Longan at 5.0 ppm; Lychee at 5.0 ppm; Oilseed group 20 at 150 ppm; Peppermint, tops at 35 ppm; Pointed gourd at 5.0 ppm; Pomegranate at 5.0 ppm; Rambutan at 5.0 ppm; Spanish Lime 5.0 ppm; Spearmint, tops at 35 ppm; Stalk, stem and leaf petiole vegetable group 22 at 0.50 ppm; Tropical and subtropical fruits, edible peel, group 23 at 10.0 ppm; Tropical and subtropical fruits, inedible peel, group 24 at 5.0 ppm; Vegetable, Head and Stem Brassica, group 5-16 at 1.0 ppm; Vegetable, bulb, group 3-07 at 2.0 ppm; Vegetable, cucurbit, group 9 at 5.0 ppm; Vegetable, foliage of legume, group 7 at 0.50 ppm; Vegetable fruiting, group 8-10 at 7.0 ppm; Vegetable, leafy, group 4-16 at 0.50 ppm; Vegetable leaves of root and tuber, group 2 at 0.50 ppm; Vegetable, legume, group 6 at 3.0 ppm; Vegetable, root and tuber, group 1 at 3.0 ppm. These time-limited tolerances expire on December 31, 2020.

Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on FIFRA section 18 related time-limited tolerances to set binding precedents for the application of FFDCA section 408 and the safety standard to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

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

Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

Quarantine exemptions were issued to the Plant Protection and Quarantine (PPQ) division of the United States Department of Agriculture, Animal and Plant Health Inspection Service (USDA/APHIS), for the post-harvest use of the fumigant methyl bromide on imported and domestic commodities to target invasive, non-indigenous quarantine plant pests and to prevent the introduction and/or spread of any new or recently introduced foreign pest(s) to any U.S. geographical location.

After having reviewed the submissions, EPA determined that emergency conditions existed for the PPQ division of the USDA/APHIS, and that the criteria for approval of these quarantine exemptions were met. EPA authorized quarantine exemptions under FIFRA section 18 for the post-harvest use of methyl bromide in or on specified imported and domestic agricultural commodities to eliminate the threat of invasive plant pests.

As part of its evaluation of the proposed quarantine emergency uses, EPA assessed the potential risks presented by residues of methyl bromide in or on specified imported and domestic agricultural commodities. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary time-limited tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the quarantine exemption actions in order to address urgent non-routine situations and to ensure that the resulting food is safe and lawful, EPA issued these time-limited tolerances without notice and opportunity for public comment as provided in FFDCA section 408(l)(6). Although these time-limited tolerances expire on December 31, 2020, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on the specified agricultural commodities after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed levels that were authorized by these time-limited tolerances at the time of the applications. EPA will take action to revoke these time-limited tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because these time-limited tolerances are being approved under emergency conditions, EPA has not made any decisions about whether methyl bromide meets FIFRA's registration requirements for use on the specified agricultural commodities or whether permanent tolerances for these uses would be appropriate. Under these circumstances, EPA does not believe that these time-limited tolerance decisions serve as a basis for registration of methyl bromide by a State for special local needs under FIFRA section 24(c). Nor do these tolerances by themselves serve as the authority for persons other than certified fumigators to use this pesticide on the applicable crops under FIFRA section 18 absent the authorization of the quarantine exemption issued to the Plant Protection and Quarantine division of the United States Department of Agriculture, Animal and Plant Health Inspection Service. For additional information regarding the quarantine exemptions for methyl bromide, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT.

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

Consistent with the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure expected as a result of these quarantine exemption requests and the time-limited tolerances for residues of methyl bromide on the specified agricultural commodities. EPA's assessment of exposures and risks associated with establishing these time-limited tolerances follows.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides. Further, the Agency's exposure and risk assessment for the emergency use of methyl bromide on various agricultural commodities is discussed in greater detail in the following documents: Methyl Bromide. Section 18 Emergency Quarantine Exemption Use on commodities Requested by the U.S. Department of Agriculture/Animal and Plant Health Inspection Service/Plant Protection and Quarantine (USDA/APHIS/PPQ) Division, May 02, 2017 and Methyl Bromide: Human Health Risk Assessment for the Section 18 Emergency Exemption Use on USDA APHIS PPQ Commodities, September 13, 2013 are available in the docket at the address provided under ADDRESSES. A summary of the toxicological endpoints for methyl bromide used for human risk assessment is shown below in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to methyl bromide, EPA considered exposure under the time-limited tolerances established by this action as well as all existing methyl bromide tolerances in 40 CFR 180.124.

EPA assessed dietary exposures from methyl bromide in food as follows:

i. Acute exposure. Acute effects were identified for methyl bromide. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). For purposes of this acute exposure assessment, EPA calculated residue levels based on dissipation and time-to-market data, assumed 100 percent crop treated (PCT) and assumed that no residues were present in any processed commodity where heating was involved.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 2003-2008 NHANES/WWEIA. To estimate chronic exposure from residues in food, EPA calculated residue levels based on dissipation and time-to-market data, assumed 100% crop treated, and assumed that no residues were present in any processed commodity where heating was involved. For the chronic exposure assessment, consumption data were averaged for the entire U.S. population and within population subgroups.

iii. Cancer. Based on the data summarized in Unit IV.A., Table 1, EPA has concluded that methyl bromide does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk in unnecessary.

EPA reviewed numerous residue trials submitted by industry (controlled fumigation trials) in support of the reregistration of methyl bromide. Residue levels were calculated using residue decline curves for each commodity assuming first order kinetics and taking into account minimum predicted time intervals between fumigation and market availability. USDA APHIS requested uses on additional crops, providing detailed use pattern data. For these crops, residue levels were translated from similar commodities having residue trial data, considering use patterns and taking into account time intervals between fumigation and market availability.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for methyl bromide in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of methyl bromide. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

The methyl bromide Estimated Drinking Water Concentration was derived from groundwater estimates. Based on data from the database of pesticides in groundwater (U.S. EPA, 1992), two wells in California (out of 20,429 wells monitored in Florida, California, and Hawaii) had methyl bromide levels of 2.5 and 6.4 microgram/Liter (μg/L). The highest groundwater monitoring value of 6.4 parts per billion (ppb) was used for both the acute and chronic (non-cancer) assessments. Concentrations of methyl bromide in surface water are considered negligible due to the rapid dissipation of methyl bromide from water to the air (half-life of 73 minutes).

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Methyl bromide is a restricted use pesticide and is not registered for any specific residential use patterns; however, there is potential for residential bystander inhalation exposure in and around port areas where post-harvest commodity fumigation treatments takes place. Buffers have been implemented on all methyl bromide labels, which reduce bystander exposures to levels that do not exceed the Agency's level of concern.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at: http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found methyl bromide to share a common mechanism of toxicity with any other substances, and methyl bromide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that methyl bromide does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative.

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

2. Prenatal and postnatal sensitivity. No evidence of increased quantitative or qualitative susceptibility was observed in developmental toxicity studies in rats or rabbits. The rabbit inhalation developmental study also did not indicate susceptibility to the young as the dams and the offspring had identical NOAEL and LOAEL values.

Therefore, toxicity studies on adults will not underestimate the risks methyl bromide poses to children.

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

i. The toxicity database for methyl bromide is complete.

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

iii. There is no evidence that methyl bromide results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies. In the rat developmental inhalation study there was no indication of susceptibility to the young, at doses up to 70 ppm. The rabbit inhalation developmental study also did not indicate susceptibility to the young, as the dams and the offspring had identical NOAEL and LOAEL values.

iv. There are no residual uncertainties identified in the exposure databases. The use of inhalation studies to assess dietary risks is a conservative (protective) approach since inhalation exposure is expected to lead to a higher internal dose than dietary exposure since chemicals will enter the circulatory system before many of the detoxification processes associated with oral exposure (e.g. first pass effect) occur. Therefore, these assessments will not underestimate the exposure and risks posed by methyl bromide.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD) presented in Unit IV.A. Table 1. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs in Table 1 to ensure that an adequate MOE exists.

1. Acute risk. Using the exposure assumptions discussed in Unit IV.B. for acute exposure, the acute dietary exposure from food and water to methyl bromide will occupy 3.5% of the aPAD for children 1-2 years old, the population group receiving the greatest exposure. The Agency has determined that dietary risk estimates for aggregate acute exposure through food and water to methyl bromide are below the Agency's level of concern for the U.S. population and all population subgroups. There is also potential for inhalation exposure to residential bystanders. However, since the dietary contribution to acute aggregate risk is negligible, EPA has determined that the mitigation measures EPA required in the 2006 Tolerance Reassessment and Risk Management Decision (TRED) for Methyl Bromide, and Reregistration Eligibility Decision (RED) for Methyl Bromide's Commodity Uses to protect residential bystanders will ensure that acute aggregate risks do not exceed EPA's level of concern.

2. Chronic risk. Using the exposure assumptions described in Unit IV.B. for chronic exposure, EPA has concluded that chronic exposure to methyl bromide from food and water will utilize 43% of the cPAD for (children 1-2 years old) the population group receiving the greatest exposure. Based on the explanation in the unit regarding residential use patterns, chronic residential exposure to residues of methyl bromide is not expected. Although there is potential for inhalation exposure to residential bystanders, EPA did not aggregate short-, intermediate-term, or chronic dietary and inhalation exposures to methyl bromide because endpoints for dietary and inhalation exposures for these durations are not based on common toxicological effects. Methyl bromide is not registered for use in residential settings; therefore, residential exposures from the direct use of methyl bromide in residential areas is not expected.

3. Short-term risk. Short-term risk is assessed based on short-term residential exposure plus chronic dietary exposure. Methyl bromide is not registered for use in residential settings; therefore, residential handler exposures from the direct use of methyl bromide in residential areas is not expected. EPA did not aggregate short-, intermediate-term, or chronic dietary and inhalation exposures to methyl bromide because endpoints for dietary and inhalation exposures for these durations are not based on common toxicological effects.

4. Intermediate-term risk. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Methyl bromide is not registered for use in residential settings; therefore, residential handler exposures from the direct use of methyl bromide in residential areas is not expected. EPA did not aggregate short-, intermediate-term, or chronic dietary and inhalation exposures to methyl bromide because endpoints for dietary and inhalation exposures for these durations are not based on common toxicological effects.

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

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

An adequate enforcement methodology (King headspace method, J. Agricultural Food Chemistry, Vol 29, No. 5, pp 1003-1005) is available to enforce the tolerance expression. This method is a gas chromatography/electron capture (GC/EC) method that was validated in 1987 in the EPA Environmental Chemistry Laboratory (D168869, L. Cheng, 27-OCT-1992). The headspace procedure for determining methyl bromide has been forwarded to FDA for inclusion in PAM Vol. II. This method is adequate for data collection and for tolerance enforcement on plant and processed food commodities.

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

Methyl bromide Codex MRLs have been established for several commodities; however, there are no Codex MRLs for any of the commodities that are the subject of this quarantine action. Therefore, at this time, there are no harmonization issues.

Therefore, time-limited tolerances are established for residues of the fumigant methyl bromide, including its metabolites and degradates, in or on specified agricultural imported/domestic commodities. These tolerances expire on December 31, 2020.

This action establishes tolerances under FFDCA sections 408(e) and 408(l)(6). The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not apply.

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

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

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

The regulations implementing the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan (FMP) require the Mid-Atlantic Council's Atlantic Mackerel, Squid, and Butterfish Monitoring Committee to develop specification recommendations for each species based upon the ABC advice of the Council's SSC. The FMP regulations also require the specification of annual catch limits (ACLs) and accountability measure (AM) provisions for butterfish. Both squid species are exempt from the ACL/AM requirements because they have a life cycle of less than one year. In addition, the regulations require the specification of domestic annual harvest (DAH), domestic annual processing (DAP), total allowable level of foreign fishing (TALFF), joint venture processing (JVP), commercial and recreational annual catch targets (ACT), the butterfish mortality cap in the longfin squid fishery, and initial optimum yield (IOY) for both squid species.

On December 13, 2017, NMFS published a proposed rule (82 FR 58583) for the 2018-2020 squid and butterfish specifications recommended by the Council. The proposed rule for this action included additional background on specifications and the details of how the Council derived its recommended specifications for longfin and Illex squid and butterfish. Those details are not repeated here. For additional information, please refer to the proposed rule for this action. Because we implemented Atlantic mackerel specifications for fishing years 2016-2018 on April 26, 2016 (81 FR 24504), this action does not consider revisions to existing Atlantic mackerel specifications.

This action maintains the existing Illex squid ABC of 24,000 mt for 2018 and projects continuing that ABC for 2019 and 2020. The IOY, DAH, and DAP are calculated by deducting an estimated discard rate (4.52 percent) from the ABC. This results in a IOY, DAH, and DAP of 22,915 mt for 2018 that would be maintained for the 2019 and 2020 fishing years. These are the same specifications for the Illex squid fishery since 2012. The Council will review these specifications during its annual specifications process following annual data updates each spring, and may change its recommendations for 2019 or 2020 if new information is available.

This action maintains the existing longfin squid ABC of 23,400 mt for 2018 and projects continuing that ABC for 2019 and 2020. The IOY, DAH, and DAP are calculated by deducting an estimated discard rate (updated from 4.08 to 2.0 percent) from the ABC. This results in a IOY, DAH, and DAP of 22,932 mt for 2018 that would be maintained for the 2019 and 2020 fishing years. This action also maintains the existing allocation of longfin squid DAH among trimesters according to percentages specified in the FMP (see Table 3). The Council will review these specifications during its annual specifications process following annual data updates each spring, and may change its recommendations for 2019 or 2020 if new information is available.

This action implements a butterfish ABC of 17,801 mt in 2018, and projected ABCs of 27,108 mt in 2019, and 32,063 mt in 2020. For butterfish, the ACL is set equal to the ABC. Deducting an estimate of management uncertainty from each year's ABC/ACL (5 percent in 2018, 7.5 percent in 2019, and 10 percent in 2020) results in commercial ACTs of 16,911 mt in 2018, and projected ACTs of 25,075 mt in 2019, and 28,857 mt in 2020. This action maintains the butterfish cap for the longfin squid fishery at the 2014 level of 3,884 mt for 2018 and projects maintaining that level for 2019 and 2020. Subtracting the existing butterfish mortality cap in the longfin squid fishery (3,884 mt), catch in other fisheries (637 mt), and an estimate of discards in the directed butterfish fishery (2.4 percent) results in a DAH of 12,093 mt in 2018, and projected DAHs of 20,061 mt in 2019 and 23,752 mt in 2020. This action also maintains the existing allocation of the butterfish mortality cap among longfin squid trimesters according to percentages specified in the FMP (see Table 5). Finally, this action maintains the existing 1,000-mt set aside in each year to account for incidental landings of butterfish after a closure of the directed fishery. We will close the directed butterfish fishery once 11,093 mt is caught in 2018. The Council will review these specifications during its annual specifications process following annual data updates each spring, and may change its recommendations for 2019 or 2020 if new information is available.

NMFS received 10 comments in response to the proposed rule for this action. Two comments were from industry groups, the Garden State Seafood Association (GSSA) and Seafreeze, Ltd., Eight comments were from individuals. Five comments received were not relevant to the proposed action and are not included in this final rule.

Comment 1: One individual requested that NMFS post weekly butterfish landings, including butterfish landings against the butterfish mortality cap in the longfin squid fishery, on the Greater Atlantic Regional Fisheries Office (GARFO) quota monitoring website so that the fishing industry has a better understanding of fishery operations during the year.

Response: We post weekly landings of all species on the GARFO quota monitoring website unless doing so violates Magnuson-Stevens Act requirements to protect the confidentiality of submitted data. We currently post butterfish landings against the mortality cap in the longfin squid fishery on the GARFO website. While we had previously posted landings from the directed butterfish fishery, a recent review of landings data indicated that doing so is no longer consistent with the Magnuson-Stevens Act confidentiality requirements, as posting landings may inadvertently reveal landings or dealer purchases by an individual entity. Current regulations require us to reduce butterfish possession limits when landings reach the butterfish closure threshold and the DAH. Moving forward, we will post butterfish landings once catch has reached 75 percent of the closure threshold. This will inform the public of cumulative butterfish landings and allow fishery participants to plan operations sufficiently in advance of any required adjustments to possession limits without compromising efforts to protect the confidentiality of any entity's butterfish landings or purchases.

Comment 2: One individual stated generally that too many fish are being caught, resulting in overfishing and the possibility of resource decline into extinction and negative impacts to predators, recommending that quotas for all species should be reduced by 50 percent.

Response: Longfin squid is not overfished and is considered to be lightly exploited. Illex squid abundance in 2016 was near the long-term median, with the SSC suggesting that annual landings of up to 26,000 mt do not appear to have harmed the stock. Therefore, there is no scientific evidence to suggest that either of these species are subject to overfishing or that quota reductions for these species are warranted at this time. For butterfish, the latest stock assessment update indicated that the fishing mortality rate is well below the overfishing limit and that biomass is well above the target level in 2016. The SSC recommended, and this final rule implements, a 42-percent reduction in the 2018 butterfish ABC based on concerns regarding declining trends in both biomass and recruitment in recent years. The 2018-2020 specifications for these species should ensure sufficient forage for predators. Extinction is not a concern with these species.

Comment 3: One individual expressed concern with the substantial increase in butterfish ABCs in 2019 and 2020, stating that these increases are based on an expectation that a higher historic recruitment rate will return in those years despite reductions in observed recruitment in recent years. The individual suggested that there is no scientific evidence that historic recruitment will occur in 2019 or 2020 based on the declining trend in recruitment in recent years.

Response: We disagree. We recognize the recent declining trend in butterfish recruitment and its effects on spawning stock biomass and projected ABCs. We support the use of the low 2016 recruitment estimate to inform SSC recommendations for the 2018 butterfish ABC as it represents the best scientific information available. As documented in the 2017 butterfish assessment update, we know that terminal year recruitment estimates are highly uncertain. In 2014, the 58th Stock Assessment Workshop (SAW 58) (see ADDRESSES) concluded that the 2012 recruitment estimate (terminal year for that assessment update) was the lowest in the time series. Updated data have substantially raised the 2012 recruitment estimate, and 2013-2015 recruitment was estimated to be much higher than the 2012 estimate. The SSC recognized that predicting future recruitment is very difficult, as the butterfish stock has experienced years of low recruitment followed by substantially higher recruitment (see 2017 butterfish assessment update). They preferred to use yearly recruitment estimates taken from the entire time series (1989-2016) to project 2019 and 2020 butterfish ABCs because the entire time series includes recruitment estimates from both high and low years. This is a practice used in other stock assessments, and was reviewed as part of the 2017 butterfish assessment update and SSC deliberations. Therefore, the use of time series recruitment to project 2018 and 2019 butterfish ABCs is consistent with the best scientific information available. Further, the Council expects to review future butterfish ABCs as additional information on butterfish recruitment becomes available. The Council could adjust 2019 and 2020 projected specifications if new information indicated recruitment conclusions for this action need to be updated.

Comment 4: One individual indicated that the butterfish ABC reduction is unnecessary due to the short lifespan of the species and recent mechanical problems and inefficiencies with the Northeast Fisheries Science Center's survey vessel. The GSSA and Seafreeze, Ltd., also opposed the proposed butterfish specifications. Instead, they supported an alternative that would specify a constant ABC of 24,500 mt for 2018-2020. They highlight that butterfish is neither overfished, nor subject to overfishing, and assert that it is unlikely that butterfish biomass will be reduced in half because of poor recent recruitment. Similar to other short-lived species, they suggest that butterfish may lack a strong stock-recruit relationship, noting that butterfish recruitment has been highly variable and unpredictable, with terminal year recruitment estimates previously underestimated. They contend that basing ABC decisions on recruitment alone in this action is not scientifically sound. Further, they state that without the fall 2017 NMFS survey to update recruitment estimates, the Council cannot verify the low 2016 recruitment estimate or adjust the 2019 ABC based on updated data. Similar to past SSC decisions to phase in summer flounder quota reductions, they argue that such an alternative would avoid substantially reducing commercial butterfish quotas unnecessarily and provide for a more stable fishery.

Response: We agree that butterfish is neither overfished, nor subject to overfishing and that recruitment is highly variable. According to SAW 58, because butterfish are a short-lived species that are typically dominated by one or two yearclasses of fish, recruitment has a strong influence over biomass. As a result, declining recruitment translates into declining biomass. The most recent stock assessment update showed continuing declines in both recruitment and biomass since the late 1990s. Catches of age zero butterfish were nearly absent in the fishery during 2016, have declined in the NMFS surveys since peaking in the mid 1990s, and were the lowest in the fall Northeast Area Monitoring and Assessment Program (NEAMAP) time series in 2016. Although recent NEAMAP survey indices have been more variable than NMFS surveys, a similar downward trend in both the fall NEAMAP and NMFS survey indices for butterfish have been observed since 2007 and 1989, respectively. These declining trends in both recruitment and spawning stock biomass, as documented in the best scientific information available, formed the basis for the SSC's recommended 2018 butterfish ABC of 17,801 mt.

As noted above in the response to Comment 3, terminal year recruitment estimates have been previously underestimated and revised upward based on additional data. We will not know whether the 2016 recruitment estimate was similarly underestimated until additional data are available. We agree that mechanical problems with the RSV Henry B. Bigelow will prevent us from updating recruitment estimates from the fall NMFS survey and may limit the information available to the Council to adjust the 2019 or 2020 ABCs, as appropriate. However, these problems occurred after the completion of the butterfish assessment update and do not affect the 2018-2020 butterfish ABCs recommended by the Council. Further, an updated estimate of 2016 recruitment is unlikely to substantially affect the declining trend observed in recent years. The Council can revise future butterfish ABCs based on any available information, including NEAMAP data, during the required annual review of these specifications.

The SSC considered the constant ABC alternative advocated by the GSSA and Seafreeze, Ltd., but did not recommend it based on declining trends in biomass and recruitment. The SSC recognized that a stable ABC approach has been used in other fisheries, but noted that there are different needs for different species and that a stable ABC approach was not appropriate for butterfish for biological reasons. At the May 2017 meeting, the SSC also admitted that they lacked the social science expertise and Council guidance necessary for evaluating economic tradeoffs between the different alternatives and the associated impacts to fishing communities. The Council considered the SSC's input during their June 2017 meeting, and chose to follow the recommendations of the SSC instead of adopting a different suite of butterfish ABCs. We did not receive sufficient information through public comment to challenge recommendations by either the SSC or the Council, and have, therefore, implemented the proposed butterfish ABCs through this final rule.

Comment 5: The GSSA and Seafreeze, Ltd., highlighted seemingly conflicting estimates of the probability of overfishing butterfish between the SSC report, the proposed rule, and supporting materials for the Council's June 2017 meeting. Specifically, they note that the SSC report and the proposed rule state that the probability of overfishing (the P* metric) is estimated at 0.08, but the Council meeting supporting materials indicated P* = 0.34. They sought clarification as to the correct probability of overfishing butterfish.

Response: The correct P* value is 0.34. In other words, there is an average 34 percent probability that the proposed butterfish ABCs would result in overfishing during 2018-2020 based on the SSC's judgement of true underlying assessment uncertainty. The 0.08 probability of overfishing is the average probability of overfishing that the projection model calculates when the proposed ABCs are entered. The 0.08 probability assumes that the model fully captures all elements of uncertainty. However, the SSC believes there is additional uncertainty that is not fully captured in the model. Therefore, the model is rerun using a 100 percent coefficient of variation (a measure of uncertainty—the higher the number, the higher the uncertainty) to estimate the probability of overfishing. This generated an average P* of 0.34 for the proposed 2018-2020 butterfish ABCs, which is consistent with the Council's policies for setting ABCs.

Comment 6: The GSSA and Seafreeze, Ltd., asked why the proposed butterfish ABCs have a P* value less than 0.4, when the Council's risk policy indicates that stocks with a typical life history should have a 40-percent chance of overfishing (P* = 0.4) when the stock is above the biomass target. They note that in 2016, butterfish was at 141 percent of the target biomass and that the Council should have used a P* = 0.4 to calculate butterfish ABCs.

Response: As noted in the response to Comment 4 above, while the 2016 spawning stock biomass estimate was above the target level, the 2017 butterfish assessment update projected that butterfish spawning stock biomass would decline to below the target level (45,616 mt) until 2020. The P* values for 2018 and 2019 ABCs are 0.28 and 0.35, respectively, because the biomass is projected to be less than the biomass target in those years. In 2020, P* = 0.4 because biomass was estimated to be above target levels. This is consistent with the Council's risk policy. The average of these values is 0.34, below 0.4, due to the lower biomass estimates in 2018 and 2019.

Comment 7: Noting that the fall 2017 NMFS survey was not conducted, the GSSA and Seafreeze, Ltd., asked for data from the recruitment indices from fall 2017 NEAMAP. They asked if integrating the NEAMAP and state survey recruitment and biomass indices would change the butterfish ABC projections.

Response: The fall 2016 NEAMAP indices were included in the 2017 butterfish assessment update model runs and presented to the SSC when they considered butterfish ABCs proposed in this action. As noted above in the response to Comment 4, the fall 2016 NEAMAP recruitment indices were the lowest in the time series. Fall 2017 NEAMAP indices are not available at this time but will be considered in the next assessment or update. State survey data were previously considered in the last assessment but were not used because they were not representative of the entire stock area. During the June 2017 Council meeting, the Council asked if state survey data could be considered, but they were informed that a benchmark assessment would be needed to reconsider state survey data in a future assessment.

Comment 8: The GSSA and Seafreeze, Ltd., objected to the fact that the projections used to calculate butterfish ABCs in the 2017 assessment update assumed that the fishery would fully harvest the DAH of 20,652 mt during 2018-2020. They indicated that this assumption is completely erroneous and assumes that the fishing mortality rate would exceed the known rate by several orders of magnitude. They asked about the impact that this assumption has on the outcome of the specifications process.

Response: The 2017 fishing year was still ongoing when the SSC and Council recommended butterfish ABCs. Projections for 2018-2020 ABCs require some estimate of butterfish landings during each year. As a conservative approach, the projections assumed that 2017 landings would be equal to the DAH for 2017—the bridge year between the assessment update and when proposed ABCs would be implemented—and that landings would equal the ABC in 2019 and 2020. These assumptions are consistent with standard practice. We agree that it is unlikely that the fishery would have caught 20,652 mt during 2017. Preliminary estimates indicate that only about 3,700 mt were landed during 2017, although discards are still unknown at this time. However, the projections were also run using several other estimates of butterfish landings, including 3,139 mt (the fishery landings when the projections were run), 6,278 mt (double the landings when projections were run), and 9,100 mt (2014 DAH). All of these sensitivity runs resulted in negligible changes on the resulting spawning stock biomass estimates used to calculate ABCs. Therefore, it is unlikely that an updated catch estimate would have substantially changed the projected butterfish ABCs.

Comment 9: One individual indicated that NMFS is not recognizing shifts in economic, governmental, and ecological trends in setting future catch levels. The individual suggested that changes in tax law, economic booms, the impacts of offshore drilling, relative profitability between small and large operations, technological innovation, and demand may all affect future estimates of fish stocks and the appropriate levels of catch in future years.

Response: Each year, Council staff develop a fishery information document summarizing trends in fishery landings, revenues, and participation. In addition, the Council's Atlantic Mackerel, Squid, and Butterfish Advisory Panel meets to develop and discuss a fishery performance report. This report describes the factors that influence fishing effort and landings, including markets, environmental/ecological issues (weather, temperature, availability), management measures, or other issues relevant to the fishery's operations (see ADDRESSES). This input is used to provide context to fishery operations and help the Council and its SSC understand catch patterns when setting ABCs in each fishery. Therefore, we are considering many of the factors identified by the commenter when setting catch levels. Further, the profitability of affected entities, including both large and small operations, are explicitly considered in the National Environmental Policy Act and associated economic analyses conducted in support of this action and included in the EA prepared by Council staff (see ADDRESSES).

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Atlantic Mackerel, Squid, and Butterfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

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

This final rule is not an Executive Order 13771 regulatory action because it is not significant under 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 during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification and no other information has been obtained that suggests any other conclusion. As a result, a regulatory flexibility analysis was not required and none was prepared.

NMFS manages the GOA groundfish fisheries in the exclusive economic zone of the GOA under the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). The Council prepared the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600, 679, and 680.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify the total allowable catch (TAC) for each target species, the sum of which must be within the optimum yield (OY) range of 116,000 to 800,000 metric tons (mt) (50 CFR 679.20(a)(1)(i)(B)). Section 679.20(c)(1) further requires NMFS to publish and solicit public comment on proposed annual TACs and apportionments thereof, Pacific halibut prohibited species catch (PSC) limits, and seasonal allowances of pollock and Pacific cod. Upon consideration of public comment received under § 679.20(c)(1), NMFS must publish notice of final harvest specifications for up to two fishing years as annual TACs and apportionments, Pacific halibut PSC limits, and seasonal allowances of pollock and Pacific cod, per § 679.20(c)(3)(ii). The final harvest specifications set forth in Tables 1 through 30 of this rule reflect the outcome of this process, as required at § 679.20(c).

The proposed 2018 and 2019 harvest specifications for groundfish of the GOA and Pacific halibut PSC limits were published in the Federal Register on December 8, 2017 (82 FR 57924). Comments were invited and accepted through January 8, 2018. NMFS received two letters of comment on the proposed harvest specifications; the comments are summarized and responded to in the “Response to Comments” section of this rule. In December 2017, NMFS consulted with the Council regarding the 2018 and 2019 harvest specifications. After considering public testimony, as well as biological and socioeconomic data that were available at the Council's December 2017 meeting, NMFS is implementing the final 2018 and 2019 harvest specifications, as recommended by the Council. For 2018, the sum of the TAC amounts is 427,512 mt. For 2019, the sum of the TAC amounts is 376,417 mt.

In June 2017, the Council recommended for Secretarial review Amendment 106 to the FMP. Amendment 106 would reclassify squid in the FMP as an “Ecosystem Component Species,” which is a category of non-target species that are not in need of conservation and management. Currently, NMFS annually sets an Overfishing Level (OFL), Acceptable Biological Catch (ABC), and TAC for squid in the GOA groundfish harvest specifications. Under Amendment 106, OFL, ABC, and TAC specifications would no longer be required. Proposed regulations to implement Amendment 106 would prohibit directed fishing for squid, require recordkeeping and reporting to monitor and report catch of squid species annually, and establish a squid maximum retainable amount when directed fishing for groundfish species at 20 percent to discourage retention, while allowing flexibility to prosecute groundfish fisheries. Further details will be available on publication of the proposed rule for Amendment 106. If Amendment 106 and its implementing regulations are approved by the Secretary of Commerce, Amendment 106 and its implementing regulations are anticipated to be effective by 2019. Until Amendment 106 is effective, NMFS will continue to publish OFLs, ABCs, and TACs for squid in the GOA groundfish harvest specifications.

In December 2017, the Council, its Advisory Panel (AP), and its Scientific and Statistical Committee (SSC) reviewed the most recent biological and harvest information about the condition of groundfish stocks in the GOA. This information was compiled by the Council's GOA Groundfish Plan Team and was presented in the draft 2017 SAFE report for the GOA groundfish fisheries, dated November 2017 (see ADDRESSES). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the GOA ecosystem and the economic condition of the groundfish fisheries off Alaska. From these data and analyses, the Plan Team recommends an OFL and ABC for each species or species group. The 2017 SAFE report was made available for public review during the public comment period for the proposed harvest specifications.

In previous years, the greatest changes from the proposed to the final harvest specifications have been based on recent NMFS stock surveys, which provide updated estimates of stock biomass and spatial distribution, and changes to the models used for producing stock assessments. At the November 2017 Plan Team meeting, NMFS scientists presented updated and new survey results, changes to stock assessment models, and accompanying stock assessment estimates for groundfish species and species groups that are included in the final 2017 SAFE report per the stock assessment schedule found in the 2017 SAFE report introduction. The SSC reviewed this information at the December 2017 Council meeting. Changes from the proposed to the final 2018 and 2019 harvest specifications are discussed below.

The final 2018 and 2019 OFLs, ABCs, and TACs are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised methods used to calculate stock biomass. The FMP specifies the formulas, or tiers, to be used to compute OFLs and ABCs. The formulas applicable to a particular stock or stock complex are determined by the level of reliable information available to fisheries scientists. This information is categorized into a successive series of six tiers to define OFL and ABC amounts, with Tier 1 representing the highest level of information quality available and Tier 6 representing the lowest level of information quality available. The Plan Team used the FMP tier structure to calculate OFL and ABC amounts for each groundfish species. The SSC adopted the final 2018 and 2019 OFLs and ABCs recommended by the Plan Team for all groundfish species. The Council adopted the SSC's OFL and ABC recommendations and the AP's TAC recommendations, with one exception for the arrowtooth flounder TAC, discussed below. The final TAC recommendations were based on the ABCs as adjusted for other biological and socioeconomic considerations, including maintaining the sum of all TACs within the required OY range of 116,000 to 800,000 mt.

The Council recommended 2018 and 2019 TACs that are equal to ABCs for pollock in the Southeast Outside (SEO) District, sablefish, shallow-water flatfish in the Central GOA and the West Yakutat and SEO Districts, deep-water flatfish, rex sole, flathead sole in the West Yakutat and SEO Districts, Pacific ocean perch, northern rockfish, shortraker rockfish, dusky rockfish, rougheye and blackspotted rockfish, demersal shelf rockfish, thornyhead rockfish, “other rockfish” in the Western and Central GOA and the West Yakutat District, big skate, longnose skate, other skates, sculpins, sharks, squids, and octopuses in the GOA. The Council recommended TACs for 2018 and 2019 that are less than the ABCs for pollock in the Western and Central GOA and the West Yakutat District, Pacific cod, shallow-water flatfish in the Western GOA, arrowtooth flounder, flathead sole in the Western and Central GOA, “other rockfish” in the SEO District, and Atka mackerel. The combined Western, Central, and West Yakutat pollock TACs and the GOA Pacific cod TACs are set to accommodate the State of Alaska's (State's) guideline harvest levels (GHLs) for Pacific cod so that the ABCs are not exceeded. The shallow-water flatfish, arrowtooth flounder, and flathead sole TACs are set to allow for increased harvest opportunities for these target species while conserving the halibut PSC limit for use in other, more fully utilized fisheries. The “other rockfish” TAC in the SEO District is set to reduce the amount of discards of the species in that complex. The Atka mackerel TAC is set to accommodate incidental catch amounts in other fisheries.

As noted in the proposed 2018 and 2019 harvest specifications for the GOA, the 2018 and 2019 Pacific cod OFL, ABC, and TAC is significantly lower than the 2018 Pacific cod OFL, ABC, and TAC published in the final 2017 and 2018 harvest specifications (82 FR 12032, February 27, 2017). Based on the final 2017 Pacific cod stock assessment, the 2018 and 2019 Pacific cod OFL and ABC is much lower than previously estimated. The final 2018 Pacific cod ABC and TAC is 18,000 mt and 13,096 mt, respectively, and the final 2019 Pacific cod ABC and TAC is 17,000 mt and 12,368 mt, respectively. The TACs are the basis for numerous seasonal and sector apportionments of Pacific cod, and such apportionments are significantly decreased as well. The final seasonal and sector apportionments of Pacific cod TACs are provided in Tables 5 and 6 in this rule.

The final 2018 and 2019 harvest specifications approved by the Secretary are unchanged from those recommended by the Council and are consistent with the preferred harvest strategy alternative in the EIS (see ADDRESSES). NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the biological condition of the groundfish stocks as described in the final 2017 SAFE report. NMFS also finds that the Council's recommendations for OFLs, ABCs, and TACs are consistent with the biological condition of groundfish stocks as adjusted for other biological and socioeconomic considerations, including maintaining the total TAC within the OY range. NMFS reviewed the Council's recommended TAC specifications and apportionments, and NMFS approves these harvest specifications under 50 CFR 679.20(c)(3)(ii). The apportionment of TAC amounts among gear types and sectors, processing sectors, and seasons is discussed below.

Tables 1 and 2 list the final 2018 and 2019 OFLs, ABCs, TACs, and area apportionments of groundfish in the GOA. The sums of the 2018 and 2019 ABCs are 536,921 mt and 480,187 mt, respectively, which are lower than the 2017 ABC sum of 667,877 mt (82 FR 12032, February 27, 2017). The 2018 harvest specifications set in this final action will supersede the 2018 harvest specifications previously set in the final 2017 and 2018 harvest specifications (82 FR 12032, February 27, 2017). The 2019 harvest specifications will be superseded in early 2019 when the final 2019 and 2020 harvest specifications are published. Pursuant to this final action, the 2018 harvest specifications therefore will apply for the remainder of the current year (2018), while the 2019 harvest specifications are projected only for the following year (2019) and will be superseded in early 2019 by the final 2019 and 2020 harvest specifications. Because this final action (published in early 2018) will be superseded in early 2019 by the publication of the final 2019 and 2020 harvest specifications, it is projected that this final action will implement the harvest specifications for the Gulf of Alaska for approximately one year.

NMFS' apportionment of groundfish species is based on the distribution of biomass among the regulatory areas over which NMFS manages the species. Additional regulations govern the apportionment of pollock, Pacific cod, and sablefish. Additional detail on the apportionment of pollock, Pacific cod, and sablefish are described below.

The ABC for the pollock stock in the combined Western, Central, and West Yakutat Regulatory Areas (W/C/WYK) includes the amount for the GHL established by the State for the Prince William Sound (PWS) pollock fishery. The Plan Team, SSC, AP, and Council have recommended that the sum of all State and Federal water pollock removals from the GOA not exceed ABC recommendations. For 2018 and 2019, the SSC recommended and the Council approved the W/C/WYK pollock ABC, including the amount to account for the State's PWS GHL. At the November 2017 Plan Team meeting, State fisheries managers recommended setting the PWS GHL at 2.5 percent of the annual W/C/WYK pollock ABC. For 2018, this yields a PWS pollock GHL of 4,037 mt, a decrease of 1,057 mt from the 2017 PWS GHL of 5,094 mt. For 2019, the PWS pollock GHL is 2,664 mt, a decrease of 2,430 mt from the 2017 PWS pollock GHL of 5,094 mt. After the GHL reductions, the 2018 and 2019 pollock ABC for the combined W/C/WYK areas is then apportioned between four statistical areas (Areas 610, 620, 630, and 640) as both ABCs and TACs, as described below and detailed in Tables 1 and 2. The total ABCs and TACs for the four statistical areas, plus the State GHL, do not exceed the combined W/C/WYK ABC.

Apportionments of pollock to the W/C/WYK management areas are considered to be “apportionments of annual catch limits (ACLs)” rather than “ABCs.” This more accurately reflects that such apportionments address management, rather than biological or conservation, concerns. In addition, apportionments of the ACL in this manner allow NMFS to balance any transfer of TAC among Areas 610, 620, and 630 pursuant to § 679.20(a)(5)(iv)(B) to ensure that the area-wide ACL and ABC are not exceeded.

NMFS establishes pollock TACs in the Western (Area 610) and Central (Areas 620 and 630) GOA and the West Yakutat (Area 640) and the SEO (Area 650) Districts of the GOA (see Tables 1 and 2). NMFS also establishes seasonal apportionments of the annual pollock TAC in the Western and Central Regulatory Areas of the GOA among Statistical Areas 610, 620, and 630. These apportionments are divided equally among each of the following four seasons: The A season (January 20 through March 10), the B season (March 10 through May 31), the C season (August 25 through October 1), and the D season (October 1 through November 1) (§§ 679.23(d)(2)(i) through (iv), and 679.20(a)(5)(iv)(A) and (B)). Additional detail is provided in this rule; Tables 3 and 4 list these amounts.

The 2018 and 2019 Pacific cod TACs are set to accommodate the State's GHL for Pacific cod in State waters in the Western and Central Regulatory Areas, as well as in PWS. The Plan Team, SSC, AP, and Council recommended that the sum of all State and Federal water Pacific cod removals from the GOA not exceed ABC recommendations. Accordingly, the Council set the 2018 and 2019 Pacific cod TACs in the Western, Central, and Eastern Regulatory Areas to account for State GHLs. Therefore, the 2018 Pacific cod TACs are less than the ABCs by the following amounts: (1) Western GOA, 2,425 mt; (2) Central GOA, 2,030 mt; and (3) Eastern GOA, 450 mt. The 2019 Pacific cod TACs are less than the ABCs by the following amounts: (1) Western GOA, 2,290 mt; (2) Central GOA, 1,917 mt; and (3) Eastern GOA, 425 mt. These amounts reflect the State's 2018 and 2019 GHLs in these areas, which are 30 percent of the Western GOA ABC and 25 percent of the Eastern and Central GOA ABCs.

NMFS establishes seasonal apportionments of the annual Pacific cod TAC in the Western and Central Regulatory Areas. Sixty percent of the annual TAC is apportioned to the A season for hook-and-line, pot, and jig gear from January 1 through June 10, and for trawl gear from January 20 through June 10. Forty percent of the annual TAC is apportioned to the B season for jig gear from June 10 through December 31, for hook-and-line and pot gear from September 1 through December 31, and for trawl gear from September 1 through November 1 (§§ 679.23(d)(3) and 679.20(a)(12)). The Western and Central GOA Pacific cod TACs are allocated among various gear and operational sectors. The Pacific cod sector apportionments are discussed in detail in a subsequent section and in Tables 5 and 6 of this rule.

The Council's recommendation for sablefish area apportionments takes into account the prohibition on the use of trawl gear in the SEO District of the Eastern Regulatory Area (§ 679.7(b)(1)) and makes available five percent of the combined Eastern Regulatory Area TACs to vessels using trawl gear for use as incidental catch in other groundfish fisheries in the WYK District (§ 679.20(a)(4)(i)). Tables 7 and 8 list the final 2018 and 2019 allocations of sablefish TAC to fixed gear and trawl gear in the GOA.

In October 2017, the Council's recommendations for the proposed 2018 and 2019 harvest specifications (82 FR 57924, December 8, 2017) were based largely on information contained in the final 2016 SAFE report for the GOA groundfish fisheries, dated November 2016. The final 2016 SAFE report for the GOA is available from the Council (see ADDRESSES). The Council proposed that the final OFLs, ABCs, and TACs established for the 2018 groundfish fisheries (82 FR 12032, February 27, 2017) be used for the proposed 2018 and 2019 harvest specifications (82 FR 57924, December 8, 2017), pending completion and review of the final 2017 SAFE report at its December 2017 meeting.

As described previously, the SSC adopted the final 2018 and 2019 OFLs and ABCs recommended by the Plan Team. The Council adopted the SSC's OFL and ABC recommendations and the AP's TAC recommendations for 2018 and 2019, with one exception for the Central GOA arrowtooth flounder TAC. The AP recommended 2018 and 2019 arrowtooth flounder TACs of 73,480 mt and 70,700 mt, respectively. The Council revised this TAC recommendation to 48,000 mt for both 2018 and 2019. The Council's rationale included a concern that a higher arrowtooth flounder TAC would result in bycatch concerns, and that lower arrowtooth flounder TACs than those recommended by the AP are appropriate because catch rarely, if ever, approach the proposed ABCs or TACs. Also, the Council set this TAC to allow for increased harvest opportunities while conserving the halibut PSC limit for use in other, more fully utilized fisheries.

The final 2018 ABCs are higher than the proposed 2018 ABCs published in the proposed 2018 and 2019 harvest specifications (82 FR 57924, December 8, 2017) for pollock, sablefish, shallow-water flatfish, deep-water flatfish, rex sole, Pacific ocean perch, northern rockfish, dusky rockfish, rougheye and blackspotted rockfish, demersal shelf rockfish, thornyhead rockfish, and longnose skate. The final 2018 ABCs are lower than the proposed 2018 ABCs for Pacific cod, arrowtooth flounder, flathead sole, shortraker rockfish, other rockfish, big skate, other skates, sculpins, squids, and octopuses.

The final 2019 ABCs are higher than the proposed ABCs for sablefish, shallow-water flatfish, deep-water flatfish, rex sole, flathead sole, Pacific ocean perch, rougheye and blackspotted rockfish, demersal shelf rockfish, thornyhead rockfish, and longnose skate. The final 2019 ABCs are lower than the proposed 2019 ABCs for pollock, Pacific cod, arrowtooth flounder, northern rockfish, shortraker rockfish, dusky rockfish, other rockfish, big skates, other skates, sculpins, squids, and octopuses. For the remaining target species (Atka mackerel and sharks), the Council recommended the final 2018 and 2019 ABCs that are the same as the proposed 2018 and 2019 ABCs.

Additional information explaining the changes between the proposed and final ABCs is included in the final 2017 SAFE report, which was not available when the Council made its proposed ABC and TAC recommendations in October 2017. At that time, the most recent stock assessment information was contained in the final 2016 SAFE report. The final 2017 SAFE report contains the best and most recent scientific information on the condition of the groundfish stocks, as previously discussed in this preamble, and is available for review (see ADDRESSES). The Council considered the final 2017 SAFE report in December 2017 when it made recommendations for the final 2018 and 2019 harvest specifications. In the GOA, the total final 2018 TAC amount is 427,512 mt, a decrease of 8 percent from the total proposed 2018 TAC amount of 465,832 mt. The total final 2019 TAC amount is 376,417 mt, a decrease of 19 percent from the total proposed 2019 TAC amount of 465,832 mt. Table 1a summarizes the difference between the proposed and final TACs.

Annual stock assessments incorporate a variety of new or revised inputs, such as survey data or catch information, as well as changes to the statistical models used to estimate a species' biomass and population trend. The biennial GOA trawl survey was conducted in 2017. Thus, changes to biomass and ABC estimates are based on survey biomass information, as well as fishery catch updates to species' assessment models. Some species, such as pollock and sablefish, have additional surveys conducted on an annual basis, which result in additional data being available for the assessments for these stocks.

The changes from the proposed 2018 TACs to the final 2018 TACs are within a range of plus 83 percent or minus 80 percent, and the changes from the proposed 2019 TACs to the final 2019 TACs are within a range of plus 73 percent or minus 80 percent. Based on changes in the estimates of overall biomass made by stock assessment scientists for 2018 and 2019, as compared to the estimates previously made for 2017 and 2018, the species or species group with the greatest TAC percentage increases are sablefish, shallow-water flatfish, rex sole, Pacific ocean perch, rougheye and blackspotted rockfish, demersal shelf rockfish, and longnose skates. Based on changes in the estimates of biomass, the species or species group with the greatest decreases in TACs are Pacific cod, arrowtooth flounder, shortraker rockfish, big skate, other skates, and octopuses. For all other species and species groups, changes from the proposed 2018 TACs to the final 2018 TACs and changes from the proposed 2019 TACs to the final 2019 TACs are less than a 10 percent change (either increase or decrease). These TAC changes correspond to associated changes in the ABCs and TACs, as recommended by the SSC, AP, and Council.

Detailed information providing the basis for the changes described above is contained in the final 2017 SAFE report. The final TACs are based on the best scientific information available. These TACs are specified in compliance with the harvest strategy described in the proposed and final rules for the 2018 and 2019 harvest specifications. The changes in TACs between the proposed rule and this final rule are compared in Table 1a.

The final 2018 and 2019 TAC recommendations for the GOA are within the OY range established for the GOA and do not exceed the ABC for any species or species group. Tables 1 and 2 list the final OFL, ABC, and TAC amounts for GOA groundfish for 2018 and 2019, respectively.

Section 679.20(b)(2) requires NMFS to set aside 20 percent of each TAC for pollock, Pacific cod, flatfish, sculpins, sharks, squids, and octopuses in reserve for possible apportionment at a later date during the fishing year. For 2018 and 2019, NMFS proposed reapportionment of all the reserves in the proposed 2018 and 2019 harvest specifications published in the Federal Register on December 8, 2017 (82 FR 57924). NMFS did not receive any public comments on the proposed reapportionments. For the final 2018 and 2019 harvest specifications, NMFS reapportioned, as proposed, all the reserves for pollock, Pacific cod, flatfish, sculpins, sharks, squids, and octopuses back into the original TAC limit from which the reserve was derived. This was done because NMFS expects, based on recent harvest patterns, that such reserves are not necessary and the entire TAC for each of these species will be caught. The TACs listed in Tables 1 and 2 reflect reapportionments of reserve amounts to the original TAC limit for these species and species groups; i.e., each proposed TAC for the above mentioned species or species groups contains the full TAC recommended by the Council.

In the GOA, pollock is apportioned by season and area, and is further allocated for processing by inshore and offshore components. Pursuant to § 679.20(a)(5)(iv)(B), the annual pollock TAC specified for the Western and Central Regulatory Areas of the GOA is apportioned into four equal seasonal allowances of 25 percent. As established by § 679.23(d)(2)(i) through (iv), the A, B, C, and D season allowances are available from January 20 to March 10, March 10 to May 31, August 25 to October 1, and October 1 to November 1, respectively.

Pollock TACs in the Western and Central Regulatory Areas of the GOA are apportioned among Statistical Areas 610, 620, and 630 in proportion to the distribution of the pollock biomass, pursuant to § 679.20(a)(5)(iv)(A). In the A and B seasons, the apportionments previously were in proportion to the distribution of pollock biomass based on the four most recent NMFS winter surveys. In the C and D seasons, the apportionments were in proportion to the distribution of pollock biomass based on the four most recent NMFS summer surveys. For 2018 and 2019, the Council recommended, and NMFS approved, following the apportionment methodology that was used previously for the 2017 and 2018 harvest specifications. This methodology averages the winter and summer distribution of pollock in the Central Regulatory Area for the A season instead of using the distribution based on only the winter surveys. The average is intended to reflect the best available information about migration patterns, distribution of pollock, and the performance of the fishery in the area during the A season for the 2018 and 2019 fishing years. For the A season, the apportionment is based on an adjusted estimate of the relative distribution of pollock biomass of approximately 3 percent, 73 percent, and 24 percent in Statistical Areas 610, 620, and 630, respectively. For the B season, the apportionment is based on the relative distribution of pollock biomass at 4 percent, 85 percent, and 11 percent in Statistical Areas 610, 620, and 630, respectively. For the C and D seasons, the apportionment is based on the relative distribution of pollock biomass at 37 percent, 27 percent, and 37 percent in Statistical Areas 610, 620, and 630, respectively. The pollock chapter of the 2017 SAFE report (see ADDRESSES) contains a comprehensive description of the apportionment process and reasons for the minor changes from past apportionments.

Within any fishing year, the amount by which a seasonal allowance is underharvested or overharvested may be added to, or subtracted from, subsequent seasonal allowances for the Western and Central Regulatory Areas in a manner to be determined by the Regional Administrator (§ 679.20(a)(5)(iv)(B)). The rollover amount is limited to 20 percent of the subsequent seasonal TAC apportionment for the statistical area. Any unharvested pollock above the 20-percent limit could be further distributed to the other statistical areas, in proportion to the estimated biomass in the subsequent season in those statistical areas and in an amount no more than 20 percent of the seasonal TAC apportionment in those statistical areas (§ 679.20(a)(5)(iv)(B)). The pollock TACs in the WYK and the SEO Districts of 6,833 mt and 8,773 mt, respectively, in 2018, and 4,509 mt and 8,773 mt, respectively, in 2019, are not allocated by season.

Section 679.20(a)(6)(i) requires the allocation of 100 percent of the pollock TAC in all GOA regulatory areas and all seasonal allowances to vessels harvesting pollock for processing by the inshore component after subtraction of amounts projected by the Regional Administrator to be caught by, or delivered to, the offshore component incidental to directed fishing for other groundfish species. Thus, the amount of pollock available to vessels harvesting pollock for processing by the offshore component is that amount that will be taken as incidental catch during directed fishing for groundfish species other than pollock, up to the maximum retainable amounts allowed by § 679.20(e) and (f). At this time, these incidental catch amounts of pollock are unknown and will be determined during the fishing year during the course of fishing activities by the offshore component. Therefore, amounts of pollock for processing by the inshore and offshore components are not shown in Tables 3 and 4. Tables 3 and 4 list the final 2018 and 2019 seasonal biomass distribution of pollock in the Western and Central Regulatory Areas, area apportionments, and seasonal allowances.

Pursuant to § 679.20(a)(12)(i), NMFS seasonally allocates the Pacific cod TACs in the Western and Central Regulatory Areas of the GOA among gear and operational sectors. NMFS also allocates the Pacific cod TACs annually between the inshore (90 percent) and offshore (10 percent) components in the Eastern Regulatory Area of the GOA (§ 679.20(a)(6)(ii)). In the Central GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear, and then among catcher vessels (CVs) less than 50 feet in length overall using hook-and-line gear, CVs equal to or greater than 50 feet in length overall using hook-and-line gear, catcher/processors (C/Ps) using hook-and-line gear, CVs using trawl gear, C/Ps using trawl gear, and vessels using pot gear (§ 679.20(a)(12)(i)(B)). In the Western GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear, and then among CVs using hook-and-line gear, C/Ps using hook-and-line gear, CVs using trawl gear, C/Ps using trawl gear, and vessels using pot gear (§ 679.20(a)(12)(i)(A)). The overall seasonal apportionments in the Western and Central GOA are 60 percent of the annual TAC to the A season and 40 percent of the annual TAC to the B season.

Under § 679.20(a)(12)(ii), any overage or underage of the Pacific cod harvest by each sector from the A season will be subtracted from, or added to, the subsequent B season allowance. In addition, any portion of the hook-and-line, trawl, pot, or jig sector allocations that NMFS determines is likely to go unharvested by a sector may be reallocated to other sectors for harvest during the remainder of the fishery year.

Pursuant to § 679.20(a)(12)(i)(A) and (B), a portion of the annual Pacific cod TACs in the Western and Central GOA will be allocated to vessels with a Federal Fisheries Permit (FFP) that use jig gear before the remaining Western and Central GOA Pacific cod TACs are apportioned among other non-jig sectors. In accordance with the FMP, the annual jig sector allocations may increase to up to 6 percent of the annual Western and Central GOA Pacific cod TACs, depending on the annual performance of the jig sector (see Table 1 of Amendment 83 to the FMP for a detailed discussion of the jig sector allocation process (76 FR 74670, December 1, 2011)). Jig sector allocation increases are established for a minimum of two years. NMFS has evaluated the 2017 harvest performance of the jig sector in the Western and Central GOA, and is establishing the 2018 and 2019 Pacific cod apportionments to this sector as follows.

NMFS allocates the jig sector 1.5 percent of the annual Pacific cod TAC in the Western GOA. This is a decrease from the 2017 jig sector allocation of 2.5 percent because in 2016 and 2017 this sector harvested less than 90 percent of its initial annual allocation, thus triggering the deduction of the 1.0 percent performance increase that the Western GOA jig sector received in 2017. The 2018 and 2019 allocations consist of a base allocation of 1.5 percent of the Western GOA Pacific cod TAC, and no additional performance increase in the Western GOA.

NMFS allocates the jig sector 1.0 percent of the annual Pacific cod TAC in the Central GOA. This is the same percent as the 2017 jig sector allocation because in 2017 this sector harvested less than 90 percent of its initial annual allocation. The 2018 and 2019 allocations consist of a base allocation of 1.0 percent of the Central GOA Pacific cod TAC, and no additional performance increase in the Central GOA.

Tables 5 and 6 list the seasonal apportionments and allocations of the 2018 and 2019 Pacific cod TACs.

Section 679.20(a)(4)(i) and (ii) require allocations of sablefish TACs for each of the regulatory areas and districts to fixed and trawl gear. In the Western and Central Regulatory Areas, 80 percent of each TAC is allocated to fixed gear, and 20 percent of each TAC is allocated to trawl gear. In the Eastern Regulatory Area, which is comprised of the WYK and SEO Districts, 95 percent of the TAC is allocated to fixed gear, and 5 percent is allocated to trawl gear. The trawl gear allocation in the Eastern Regulatory Area may only be used to support incidental catch of sablefish in directed trawl fisheries for other target species (§ 679.20(a)(4)(i)).

In recognition of the prohibition against trawl gear in the SEO District of the Eastern Regulatory Area, the Council recommended and NMFS approves the allocation of 5 percent of the Eastern Regulatory Area sablefish TAC to trawl gear in the WYK District, making the remainder of the WYK sablefish TAC available to vessels using fixed gear. NMFS allocates 100 percent of the sablefish TAC in the SEO District to vessels using fixed gear. This action results in a 2018 allocation of 240 mt to trawl gear and 1,589 mt to fixed gear in the WYK District, a 2018 allocation of 2,974 mt to fixed gear in the SEO District, and a 2019 allocation of 338 mt to trawl gear in the WYK District. Table 7 lists the allocations of the 2018 sablefish TACs to fixed and trawl gear. Table 8 lists the allocations of the 2019 sablefish TACs to trawl gear.

The Council recommended that a trawl sablefish TAC be established for two years so that retention of incidental catch of sablefish by trawl gear could commence in January in the second year of the groundfish harvest specifications. Both the 2018 and 2019 trawl allocations are specified in these final harvest specifications, in Tables 7 and 8, respectively.

The Council also recommended that the fixed gear sablefish TAC be established annually to ensure that this IFQ fishery is conducted concurrently with the halibut IFQ fishery and is based on the most recent sablefish survey information. Since there is an annual assessment for sablefish and since the final harvest specifications are expected to be published before the IFQ season begins on March 24, 2018, the Council recommended that the fixed gear sablefish TAC be set on an annual basis, rather than for two years, so that the best scientific information available could be considered in establishing the sablefish ABCs and TACs. Accordingly, while the 2018 fixed gear allocations are specified in Table 7, the 2019 fixed gear allocations are not specified in Table 8 and will be specified in the 2019 and 2020 harvest specifications.

With the exception of the trawl allocations that were provided to the Central GOA Rockfish Program (Rockfish Program) cooperatives (see Table 28c to 50 CFR part 679), directed fishing for sablefish with trawl gear in the GOA is closed during the fishing year. Also, fishing for groundfish with trawl gear is prohibited prior to January 20 (§ 679.23(c)). Therefore, it is not likely that the sablefish allocation to trawl gear would be reached before the effective date of the final 2018 and 2019 harvest specifications.