Federal Register Vol. 83, No.70,

DOE is announcing its intent to negotiate proposed test procedures and amended energy conservation standards for VRF multi-split systems under the authority of sections 563 and 564 of the NRA (5 U.S.C. 561-570, Pub. L. 104-320). The regulation of VRF multi-split systems standards that DOE is proposing to develop under a negotiated rulemaking will be developed under the authority of EPCA, as amended, 42 U.S.C. 6311(1) and 42 U.S.C. 6291 et seq.

On January 10, 2018, the ASRAC met and made a recommendation to form a VRF multi-split systems subcommittee to meet, discuss, and, if possible, reach consensus on a proposed rule for the test procedures and energy efficiency standards for VRFs. For purposes of this document, the ASRAC subcommittee at issue will be referred to as the “working group.” As required by the NRA, DOE is giving notice that it is establishing a working group under ASRAC to discuss proposed amended test procedures and energy efficiency requirements for VRF multi-split systems. The working group will be established and function as a subcommittee of ASRAC in accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C., App. 2.

DOE is supporting the use of the negotiated rulemaking process to discuss and develop proposed test procedures and amended energy conservation standards for VRF multi-split systems. The primary reason for using the negotiated rulemaking process for this equipment is that stakeholders strongly support a consensual rulemaking effort. DOE believes such a regulatory negotiation process will be less adversarial and better suited to resolving complex technical issues. An important virtue of negotiated rulemaking is that it allows expert dialog that is much better than traditional techniques at getting the facts and issues right and will result in a proposed rule that will effectively reflect Congressional intent.

A regulatory negotiation will enable DOE to engage in direct and sustained dialog with informed, interested, and affected parties when drafting the regulation, rather than obtaining input during a public comment period after developing and publishing a proposed rule. A rule drafted by negotiation with informed and affected parties is expected to be potentially more pragmatic and more easily implemented than a rule arising from the traditional process. Such rulemaking improvement is likely to provide the public with the full benefits of the rule while minimizing the potential negative impact of a proposed regulation conceived or drafted without the full prior input of outside knowledgeable parties. Because a negotiating working group includes representatives from the major stakeholder groups, including consumers, affected by or interested in the rule, the number of public comments on the proposed rule may be decreased. DOE anticipates that there will be a need for fewer substantive changes to a proposed rule developed under a regulatory negotiation process prior to the publication of a final rule.

Usually, DOE develops a proposed rulemaking using Department staff and consultant resources. Congress noted in the NRA, however, that regulatory development may “discourage the affected parties from meeting and communicating with each other, and may cause parties with different interests to assume conflicting and antagonistic positions.” (5 U.S.C. 561(2)(2)) Congress also stated that “adversarial rulemaking deprives the affected parties and the public of the benefits of face-to-face negotiations and cooperation in developing and reaching agreement on a rule. It also deprives them of the benefits of shared information, knowledge, expertise, and technical abilities possessed by the affected parties.” (5 U.S.C. 561(2)(3))

Using negotiated rulemaking to develop a proposed rule differs fundamentally from the Department centered process. In negotiated rulemaking, a proposed rule is developed by an advisory committee or a working group established by the advisory committee, composed of members chosen to represent the various interests that will be significantly affected by the rule. The goal of the advisory committee or its working group is to reach consensus on the treatment of the major issues involved with the rule. The process starts with the Department's careful identification of all interests potentially affected by the rulemaking under consideration. To help with this identification, the Department publishes a notification of intent such as this one in the Federal Register, identifying a preliminary list of interested parties and requesting public comment on that list. Following receipt of comments, the Department establishes an advisory committee or advisory committee working group representing the full range of stakeholders to negotiate a consensus on the terms of a proposed rule. Representation on the advisory committee or its working group may be direct; that is, each member may represent a specific interest, or may be indirect, such as through trade associations and/or similarly-situated parties with common interests. The Department especially seeks membership from consumers or consumer groups that will be impacted by any potential negotiated energy conservation standard. The Department is a member of the advisory committee or working group and represents the Federal government's interests. The advisory committee or working group chair is assisted by a neutral mediator who facilitates the negotiation process. The role of the mediator, also called a facilitator, is to apply proven consensus-building techniques to the advisory committee or working group process.

If the advisory committee itself is undertaking the negotiation, once the committee reaches consensus on the provisions of a proposed rule and recommends such consensus to the Department, the Department, consistent with its legal obligations, may use such consensus as the basis of its proposed rule, which then is published in the Federal Register. If a working group of the advisory committee is undertaking the negotiation, once the working group reaches consensus on the provisions of a proposed rule, a recommendation is made to the advisory committee. The advisory committee may then, consistent with its legal obligations, use such consensus as the basis for making a recommendation to the Department of a proposed rule. The Department, consistent with its legal obligations, may use such consensus as the basis of its proposed rule, which then is published in the Federal Register. This publication provides the required public notice and provides for a public comment period. Other participants and other interested parties retain their rights to comment, participate in an informal hearing (if requested), and request judicial review. DOE anticipates, however, that the pre-proposal consensus recommended by the advisory committee will narrow any issues in the subsequent rulemaking.

The NRA enables DOE to establish an advisory committee or a working group under the advisory committee if it is determined that the use of the negotiated rulemaking process is in the public interest. DOE intends to develop Federal regulations that build on the depth of experience accrued in both the public and private sectors in implementing standards and programs.

DOE has determined that the regulatory negotiation process will provide for obtaining a diverse array of in-depth input, as well as an opportunity for increased collaborative discussion from both private-sector stakeholders and government officials who are familiar with energy efficiency of VRF multi-split systems.

In initiating this regulatory negotiation process to develop test procedures and amended energy conservation standards for VRF multi-split systems, DOE is making a commitment to provide adequate resources to facilitate timely and successful completion of the process. This commitment includes making the process a priority activity for all representatives, components, officials, and personnel of the Department who need to be involved in the rulemaking, from the time of initiation until such time as a final rule is issued or the process is expressly terminated. DOE will provide administrative support for the process and will take steps to ensure that the advisory committee or its working group has the dedicated resources it requires to complete its work in a timely fashion. Specifically, DOE will make available the following support services: Properly equipped space adequate for public meetings and caucuses; logistical support; word processing and distribution of background information; the service of a facilitator; and such additional research and other technical assistance as may be necessary. All meetings will provide an opportunity for all members of the working group and other interested parties to participate by webinar. While DOE strongly encourages members to participate in person, DOE realizes that travel costs may prohibit in-person attendance. Prospective members, therefore, should not allow travel costs to affect their decision to apply for membership.

To the maximum extent possible consistent with the legal obligations of the Department, DOE will use the consensus of the advisory committee as the basis for the rule the Department proposes for public notice and comment.

As discussed, the negotiated rulemaking process differs fundamentally from the usual process for developing a proposed rule. Negotiation enables interested and affected parties to discuss various approaches to issues rather than asking them only to respond to a proposal developed by the Department. The negotiation process involves a mutual education of the various parties on the practical concerns about the impact of standards. Each advisory committee or working group member participates in resolving the interests and concerns of other members, rather than leaving it up to DOE to evaluate and incorporate different points of view.

A key principle of negotiated rulemaking is that agreement is by consensus of all the interests. Thus, no one interest or group of interests is able to control the process. The NRA defines consensus as the unanimous concurrence among interests represented on a negotiated rulemaking committee or working group, unless the advisory committee or its working group itself unanimously agrees to use a different definition. 5 U.S.C. 562. In addition, experience has demonstrated that using a trained mediator to facilitate this process will assist all parties, including DOE, in identifying their real interests in the rule, and thus will enable parties to focus on and resolve the important issues.

The following issues and concerns will underlie the work of the Negotiated Rulemaking Committee on Variable Refrigerant Flow Multi-Split Systems Energy Conservation Standards:

• Test procedures for VRF multi-split systems; and

• Energy Conservation Standards for VRF multi-split systems.

To examine the underlying issues outlined above, and others not yet articulated, all parties in the negotiation will need DOE to provide data and an analytic framework complete and accurate enough to support their deliberations. DOE`s analyses must be adequate to inform a prospective negotiation. Prior to the commencement of the working group, DOE expects to publish a notice of data availability (NODA) which discusses the results of DOE's analysis of the energy savings potential of amended energy conservation standards for VRF multi-split systems. DOE also expects to publish a technical support document and analytical tools along with the NODA. Working Groups members should review the associated materials before each meeting.

A working group will be formed and operated in full compliance with the requirements of FACA and in a manner consistent with the requirements of the NRA. DOE has determined that the working group shall not exceed 25 members. The Department believes that more than 25 members would make it difficult to conduct effective negotiations. DOE is aware that there may be many more potential participants than there are membership slots on the working group. The Department does not believe, nor does the NRA contemplate, that each potentially affected group must participate directly in the negotiations; nevertheless, each affected interest can be adequately represented. To have a successful negotiation, it is important for interested parties to identify and form coalitions that adequately represent significantly affected interests. To provide adequate representation, those coalitions must agree to support, both financially and technically, a member of the working group whom they choose to represent their interests. DOE is especially interested in representation by consumers of VRF multi-split systems since any potential energy conservation standard may impact this stakeholder group. Consumers of VRFs may include, but are not limited to, commercial building owners, commercial heating, ventilation, and air-conditioning architects, or commercial building tenants that pay utility bills.

DOE recognizes that when it establishes energy efficiency standards and test procedures for residential products and commercial equipment, various segments of society may be affected in different ways, in some cases producing unique “interests” in a proposed rule based on income, gender, or other factors. The Department will pay attention to providing that any unique interests that have been identified, and that may be significantly affected by the proposed rule, are represented. Per the ASRAC charter, the Assistant Secretary for Energy Efficiency and Renewable Energy or his designee, in consultation with the ASRAC Chair, appoints ASRAC subcommittee (working group) chairs.

FACA also requires that members of the public have the opportunity to attend meetings of the full committee and speak or otherwise address the committee during the public comment period. In addition, any member of the public is permitted to file a written statement with the advisory committee. DOE plans to adhere to these requirements in the conduct of the working group.

DOE anticipates that the working group will comprise no more than 25 members who represent affected and interested stakeholder groups, at least one of whom must be a member of the ASRAC. As required by FACA, the Department will select members for the working group with particular attention to ensuring full and balanced representation of those interests that may be significantly affected by the proposed rule amending standards for VRF multi-split systems. Section 562 of the NRA defines the term “interest” as “with respect to an issue or matter, multiple parties which have a similar point of view or which are likely to be affected in a similar manner.” Listed below are parties the Department to date has identified as being “significantly affected” by a proposed rule regarding the energy efficiency of VRF multi-split systems.

One purpose of this notification of intent is to determine whether Federal regulations for VRF multi-split systems will significantly affect interests that are not listed above. DOE invites comment and suggestions on its initial list of significantly affected interests and encourages all interested parties and interests to apply for the working group.

Members may be individuals or organizations. If the effort is to be fruitful, participants on the working group should be able to fully and adequately represent the viewpoints of their respective interests. This document gives notice of DOE's process to other potential participants and affords them the opportunity to request representation in the negotiations. Those who wish to nominate members to the working group, should submit an application package to DOE, in accordance with the public participation procedures outlined in the DATES and ADDRESSES sections of this notification of intent. Qualified individuals can self-nominate or be nominated by any individual or organization. Nominators should submit an application package which includes:

• The nominee's current resume or curriculum vitae and contact information, including mailing address, email address, and telephone number;

• A letter of interest, which includes:

○ A summary of how the nominee's experience and expertise would support the working group's objectives;

○ The interest the nominee would represent in the working group; and

○ A description of other assets (such as data or modeling tools) the nominee could provide to support the working group's objectives.

Membership of the working group is likely to involve:

• Attendance (in person preferable) at approximately ten (10), one (1)- to two (2)-day meetings (with the potential for two (2) additional one (1)- or two (2)-day meetings);

• Travel costs to those meetings, if participating in person; and

• Preparation time for those meetings.

Members serving on the working group will not receive compensation for their services. Interested parties who are not selected for membership on the working group may make valuable contributions to this negotiated rulemaking effort in any of the following ways:

• The person may request to be placed on the working group mailing list and submit written comments as appropriate.

• The person may attend working group meetings, which are open to the public; caucus with his or her interest's member on the working group; or even address the working group during the public comment portion of the working group meeting.

• The person could assist the efforts of a workgroup that the working group might establish.

A working group may establish informal workgroups, which usually are asked to facilitate committee deliberations by assisting with various technical matters (e.g., researching or preparing summaries of the technical literature or comments on specific matters such as economic issues). Workgroups also might assist in estimating costs or drafting regulatory text on issues associated with the analysis of the costs and benefits addressed, or formulating drafts of the various provisions and their justifications as previously developed by the working group. Given their support function, workgroups usually consist of participants who have expertise or particular interest in the technical matter(s) being studied. Because it recognizes the importance of this support work for the working group, DOE will provide appropriate technical expertise for such workgroups. Such workgroups will provide their work product and/or recommendations only to the working group.

Every working group member must be willing to negotiate in good faith and have the authority, granted by his or her constituency, to do so. The first step is to ensure that each member has good communications with his or her constituencies. An intra-interest network of communication should be established to bring information from the support organization to the member at the table, and to take information from the table back to the support organization. Second, each organization or coalition therefore should designate as its representative a person having the credibility and authority to ensure that needed information is provided and decisions are made in a timely fashion. Negotiated rulemaking can require the appointed members to give a significant sustained time commitment for as long as the duration of the negotiated rulemaking. Other qualities of members that can be helpful are negotiating experience and skills, familiarity with using VRF multi-split systems as a consumer, and/or sufficient technical knowledge to participate in substantive negotiations.

Certain concepts are central to negotiating in good faith. One is the willingness to bring all issues to the bargaining table in an attempt to reach a consensus, as opposed to keeping key issues in reserve. The second is a willingness to keep the issues at the table and not take them to other forums. Finally, good faith includes a willingness to move away from some of the positions often taken in a more traditional rulemaking process, and instead explore openly with other parties all ideas that may emerge from the working group's discussions.

The facilitator will act as a neutral in the substantive development of the proposed standard. Rather, the facilitator's role generally includes:

• Impartially assisting the members of the working group in conducting discussions and negotiations; and

• Impartially assisting in performing the duties of the Designated Federal Official under FACA.

The DOE representative will be a full and active participant in the consensus building negotiations. The Department's representative will meet regularly with senior Department officials, briefing them on the negotiations and receiving their suggestions and advice so that he or she can effectively represent the Department's views regarding the issues before the working group. DOE's representative also will ensure that the entire spectrum of governmental interests affected by the standards rulemaking, including the Office of Management and Budget, the Attorney General, and other Departmental offices, are kept informed of the negotiations and encouraged to make their concerns known in a timely fashion.

After evaluating the comments submitted in response to this notification of intent and the requests for nominations, DOE will either inform the members of the working group that they have been selected or determine that conducting a negotiated rulemaking is inappropriate.

The working group is expected to make a concerted effort to negotiate its first term sheet on test procedures and its second term sheet on energy conservation standards within six (6) months of its first meeting. The working group's negotiations will take place around two discrete tasks. The test procedure term sheet, if completed, is to be approved by the working group and transmitted to ASRAC prior to commencement of negotiations regarding the energy conservation standards. At the completion of the negotiations for each discrete tasks, the term sheet, if completed, will be presented to ASRAC at an open meeting for their deliberation and decision on whether or not to approve it and submit it to DOE as a formal recommendation.

DOE will advise working group members of administrative matters related to the functions of the working group before beginning. While the negotiated rulemaking process is underway, DOE is committed to performing much of the same analysis as it would during a normal standards rulemaking process and to providing information and technical support to the working group.

The Secretary of Energy has approved publication of this notification of intent.

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0286; Product Identifier 2018-CE-008-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

The Civil Aviation Authority of New Zealand (CAA), has issued DCA/750XL/27A, dated March 1, 2018 (referred to after this as “the MCAI”), to correct an unsafe condition for Pacific Aerospace Limited Model 750XL airplanes. The MCAI states:

Pacific Aerospace Limited has issued Pacific Aerospace Service Bulletin PACSB/XL/095, Issue 1, dated December 21, 2017. The service information describes procedures for inspection of the airplane sound insulation attached to the aft face of the firewall and removal if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

We estimate that this proposed AD will affect 22 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,870, or $85 per product.

In addition, we estimate that any necessary follow-on actions would take about 8 work-hours, for a cost of $680 per product. We have no way of determining the number of products that may need these actions.

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

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

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

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

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

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

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA- 2017-1206; Product Identifier 2017-NE-42-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

We received reports of an uncommanded high thrust event that occurred during approach on January 16, 2016, and during landing on April 6, 2016, due to loosening of the MVPV end cap. These uncommanded events were associated with improper maintenance on the MVPV within certain FCUs. This proposed AD would require removal of the MVPV for certain FCUs. This condition, if not addressed, could result in failure of the FCU, loss of engine thrust control, and reduced control of the airplane.

We reviewed PW Alert Service Bulletin (ASB) PW2000 A73-172, dated October 16, 2017. The ASB describes procedures for replacement of the MVPV for certain FCUs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would require replacement of the MVPV for certain FCU serial numbers, except as discussed under “Differences Between this Proposed AD and the Service Information.”

PW ASB PW2000 A73-172, dated October 16, 2017, specifies installation of a new UTC Aerospace Systems MVPV in certain FCUs. This AD sets forth an option to repair a MVPV to be installed in certain FCUs according to the criteria listed in paragraph h(2)(ii) of this AD.

We estimate that this proposed AD affects 212 engines installed on airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

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

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

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

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

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

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

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

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would support offshore airspace areas around the Hawaiian Islands, and apply domestic air traffic control procedures.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket Number FAA-2017-1013 and Airspace Docket Number 17-AWP-12) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket Number FAA-2017-1013 and Airspace Docket Number 17-AWP-12.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see “ADDRESSES” section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 1601 Lind Ave. SW, Renton, WA 98057.

This document proposes to amend FAA Order 7400.11B, airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The existing airspace configuration is not consistent with the domestic airspace established throughout the rest of the United States and does not meet the uniform international standards and recommended practices, as promulgated by the International Civil Aviation Organization (ICAO). The area controlled by Honolulu Control Facility (HCF) is within Oakland Oceanic Control Area/Flight Information Region (CTA/FIR) Boundary. The provision of ATC services is delegated by Oakland Air Route Traffic Control Center (ZOA) to HCF to provide flight information and alerting service within this area. Currently, HCF has Domestic Class E airspace out to 100 miles around the Hawaiian Islands. Due to the incorrect airspace designations, HCF is providing domestic IFR separation services within HCF airspace 1,200 feet MSL up to FL 600, inclusive, and in international airspace without a designated offshore airspace area. The absence of Class E and Class A airspace to the boundary of HCF's delegated airspace where ATC has radar and radio navigational signal coverage is inconsistent with the CFRs and will be corrected with this proposed rule. Under a separate rulemaking action, domestic airspace will be amended out to the 12 nautical miles limit surrounding the Hawaiian Islands. Additionally, the establishment of the high and low Offshore Airspace Areas will extend beyond the 12 NM limit to the boundary of the HCF delegated airspace.

The FAA is proposing an amendment to 14 CFR part 71 to establish the Hawaiian Islands High and the Hawaiian Islands Low Offshore airspace areas. The proposed area would consist of Class A airspace, extending upward from 18,000 MSL up to and including FL 600, and Class E airspace, extending upward from 1,200 feet MSL up to and including 17,999 feet MSL within HCF's designated airspace around the Hawaiian Islands. This action would facilitate the application of domestic ATC procedures within that airspace, thereby enhancing the flow of air traffic and increasing system capacity. In addition, this action would enhance safety by providing for the positive control of all aircraft operating in the area. The proposed action would also support the development of a more efficient route system and would enable airspace classification and ATC separation procedures to be consistently applied around the Hawaiian Islands. Finally, the proposed modification would establish the same classification and operating rules that currently apply in adjacent airspace.

Class A and E Offshore airspace area designations are published in paragraph 2003 and 6007 respectively, in FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The offshore airspace area designations listed in this document will be published subsequently in the Order.

As part of this proposal relates to navigable airspace outside the United States, this notice is submitted in accordance with the ICAO International Standards and Recommended Practices. Article 12 to the Chicago Convention provides that over the high seas the rules inforce shall be those established under the convention. The application of International Standards and Recommended Practices by the FAA, Office of Airspace Services, in areas outside United States domestic airspace, is governed by Annexes 2 (Rule of the Air) and 11 (Air Traffic Services) to the Convention on International Civil Aviation, which pertain to the establishment of necessary air navigational facilities and services to promote the safe, orderly, and expeditious flow of civil air traffic. The purpose of Article 12 and Annex 11 is to ensure that civil aircraft operations on international air routes are performed under uniform conditions. The International Standards and Recommended Practices in Annex 11 apply to airspace under the jurisdiction of a contracting state, derived from ICAO. Annex 11 provisions apply when air traffic services are provided and a contracting state accepts the responsibility of providing air traffic services over high seas or in airspace of undetermined sovereignty. A contracting State accepting this responsibility may apply the International Standards and Recommended Practices that are consistent with standards and practices utilized in its domestic jurisdiction. In accordance with Article 3 of the Convention, State-owned aircraft are exempt from the Standards and Recommended Practices of Annex 11. The United States is a contracting State to the Convention. Article 3(d) of the Convention provides that participating state aircraft will be operated in international airspace with due regard for the safety of civil aircraft. Since this action involves, in part, the designation of navigable airspace outside the United States, the Administrator is consulting with the Secretary of State and the Secretary of Defense in accordance with the provisions of Executive Order 10854.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Electronic Access and Filing

You may submit or retrieve comments online through the Federal eRulemaking portal at www.regulations.gov. It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help.

An electronic copy of this document may also be downloaded by accessing the Office of the Federal Register's home page at: http://www.archives.gov and the Government Publishing Office's web page at: http://www.access.thefederalregister.org/nara.

The NN consists of Interstate System routes (except exempted routes) and those non-Interstate System routes added through the rulemaking process. See 49 U.S.C. 31111(e)-(f) and 31113(e); 23 CFR 658 Appendix A; see also 49 FR 23302 (June 5, 1984). To ensure that the NN remains substantially intact, FHWA retains the authority to rule upon all requests for additions to and deletions from the NN as well as requests for the imposition of certain restrictions. Pursuant to 23 CFR 658.11, requests for additions to the NN must be submitted in writing to the appropriate FHWA Division Office and endorsed by the Governor or the Governor's authorized representative. Proposals for addition of routes to the NN must also be accompanied by an analysis of suitability based on the criteria in 23 CFR 658.9. Once a non-Interstate System route is added to the NN, it is included in Appendix A of 23 CFR part 658—National Network—Federally Designated Routes.

On November 10, 2017, FHWA received a request from the New York State Department of Transportation (NYSDOT) proposing a modification to the Interstate System. The request, available in the rulemaking docket, proposes the de-designation (removal from the Interstate System) of the Sheridan Expressway (I-895), approximately a 1.3-mile Interstate between the Bruckner Expressway (I-278) and the Cross Bronx Expressway (I-95). As part of the de-designation, the State also proposes the functional reclassification of this highway segment from an Interstate to “Urban Principal Arterial—Other” and to rename the road Sheridan Boulevard (NY-895). The physical alignment of the highway would be maintained and it would therefore continue to provide the same access for commercial vehicles as currently exists. The FHWA intends to act on this request pursuant to its regulatory authority on revisions to the Interstate System (23 CFR 470.115(a) and 23 CFR 658.11(d)) and guidance on Interstate System de-designations (https://www.fhwa.dot.gov/planning/national_highway_system/interstate_highway_system/withdrawalqa.cfm).

The NYSDOT intends to keep Sheridan Boulevard (NY-895) in the NN. Because the route would no longer be in the Interstate System, it must be added to NN as a non-Interstate System route and be listed in 23 CFR 658 Appendix A. The NYSDOT proposal included the required analysis of suitability based on the criteria in 23 CFR 658.9, which includes a crash analysis and safety study, and also documents effects on Interstate commerce, effects on alternate routes, effects on traffic operations, and consultation with local governments.

The FHWA reviewed NYSDOT's proposal and affirms that the request to add a route to the NN is consistent with 23 CFR 658.9 and 658.11 with respect to the criteria for the NN and the procedures for additions to the NN. In this Notice of Proposal Rulemaking, FHWA is proposing to approve the addition of Sheridan Boulevard (NY 895) to the NN and to revise existing regulations (23 CFR 658 Appendix A) to reflect the addition.

As the Sheridan Expressway is already part of the NN due to its Interstate designation, FHWA has determined there would be no substantive impact to the public resulting from the addition of the reconstructed facility, Sheridan Boulevard, to the NN.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). The FHWA has determined preliminarily that this action is not a significant regulatory action within the meaning of Executive Order 12866 and is not significant within the meaning of DOT regulatory policies and procedures. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. It is anticipated that the economic impact of this rulemaking would be minimal. These changes would not adversely affect, in a material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required. Finally, this proposed rule is not an E.O. 13771 regulatory action because it is not significant under E.O. 12866.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 60l-612) the FHWA has evaluated the effects of this action on small entities and has determined that the action would not have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. This action does not affect any funding distributed under any of the programs administered by FHWA. For these reasons, FHWA certifies that this action would not have a significant economic impact on a substantial number of small entities.

This rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This proposed rule would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $148.1 million or more in any one year (2 U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform Act of 1995, the agencies will evaluate any regulatory action that might be proposed in subsequent stages of the proceeding to assess the effects on State, local, and Tribal governments and the private sector.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and FHWA has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

We have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, dated May 18, 2001. We have determined that it is not a significant energy action under that order since it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.

Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501), Federal agencies must obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this rule does not contain collection of information requirements for the purposes of the PRA.

This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

The FHWA has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this action would not cause any environmental risk to health or safety that might disproportionately affect children.

The FHWA has analyzed this rule under Executive Order 12630, Governmental Actions and Interface with Constitutionally Protected Property Rights. The FHWA does not anticipate that this action would affect a taking of private property or otherwise have taking implications under Executive Order 12630.

The Agency has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has determined that this action would not have any effect on the quality of the environment.

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

In consideration of the foregoing, the FHWA proposes to amend 23 CFR part 658, as set forth below:

Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:

On August 25, 2017, EPA proposed to approve a revision to the Iowa State Implementation Plan (SIP) which amended the Administrative Consent Order (ACO) for Grain Processing Corporation (GPC), Muscatine, Iowa. The revision amended the ACO to change the date for completion of performance testing from May 31, 2017, to May 31, 2018, to allow the state more time to complete processing the remaining air construction permit applications submitted by GPC, and to specify testing requirements as appropriate in the remaining final permits. See 82 FR 40519. In conjunction with the August 25, 2017 notice of proposed rulemaking (NPR), EPA issued a direct final rule (DFR) approving the amended ACO. See 82 FR 40491. In the DFR, EPA stated that if adverse comments were submitted to EPA by September 25, 2017, the action would be withdrawn and not take effect. EPA received an adverse comment prior to the close of the comment period. EPA withdrew the DFR on October 12, 2017. See 82 FR 47396.

This proposal will also address adverse comments submitted to the docket.

This proposed revision to the Iowa State Implementation Plan (SIP) will incorporate an amendment to the Administrative Consent Order (ACO) with Grain Processing Corporation (GPC), Muscatine, Iowa. The revision changes the date for completion of performance testing from May 31, 2017, to May 31, 2018, to allow the state more time to complete processing the remaining air construction permit applications submitted by GPC, and to specify testing requirements as appropriate in the remaining final permits. This amendment will not impact the schedule for installation and operation of control equipment, will not alter any other compliance dates, and will not adversely affect air quality in the Muscatine, Iowa, area as explained in the Technical Support Document that is part of this docket.

This proposal will also address adverse comments submitted to the docket.

The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The state instituted a 30-day comment period; no comments were received. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the revised Technical Support Document which is part of this docket, the revision meets the substantive SIP requirements of the Clean Air Act (CAA), including section 110 and implementing regulations.

The public comment period for EPA's proposed rule opened August 25, 2017, the date of its publication in the Federal Register, and closed on September 25, 2017. During this period, EPA received an adverse comment. The adverse comment and EPA's response is as follows:

Comment 1: The commenter first stated that the TSD was not available in the docket. The TSD was not available in the docket when the proposal and direct final notices were published on Friday, August 25, 2017.

Response 1: The TSD was made publicly available on Monday, August 28, 2017 which was one business day. EPA did not grant an extended comment period as suggested by the commenter. When the TSD was available in the docket, no additional comments were received through the end of the comment period (September 25, 2017). However, because the TSD was not publicly available on the date the notice was published, this proposal allows for additional comment.

Comment 2: The commenter stated that granting an extension for GPC to perform testing may cause a violation of emission limits, which could cause a delay in issuing permits, and therefore cause additional air pollution that would have an adverse impact on air quality in Muscatine, Iowa.

Response 2: The amendment to the ACO which provides a one-year extension on performance tests, only affects two of the total of 107 required permits. The remaining 105 permits have already been issued by the State. This ACO revision does not delay or allow an extension of the requirements for implementation of the control measures required by the ACO. GPC is still required to conduct the performance testing; the deadline is merely adjusted for the two outstanding permits. The permits that have been finalized, including the permit that allowed the facility to convert from burning coal to natural gas, have resulted in improved air quality in Muscatine, Iowa. There have been no exceedances of the 2006 24-hour NAAQS for fine particulate matter with a diameter of PM2.5 since July 2015, before the natural gas conversion.

The complete and quality assured ambient air quality monitoring data for the area shows that the area has, and continues to attain the NAAQS. Background information with regard to air quality in Muscatine, Iowa, as well as design values of air monitors are included in the revised TSD, included in this docket.

EPA is proposing to approve a SIP revision submitted by the State of Iowa to incorporate an amendment to the Administrative Consent Order (ACO) with Grain Processing Corporation (GPC), Muscatine, Iowa. EPA is also responding to comments received in the docket, and by responding to comments provides additional information with regard to the remaining permits to be finalized by the State of Iowa. A revised TSD is included as part of this docket to support the revision to the ACO.

We are processing this as a proposed action because we are soliciting comments. Final rulemaking will occur after consideration of any comments.

In this action, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Iowa's EPA-approved State source-specific permits described in the direct final amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

Therefore, these materials have been approved by EPA for inclusion in the State Implementation Plan, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 11, 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)).

For the reasons stated in the preamble, EPA proposes to amend 40 CFR part 52 as set forth below:

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).

If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT for the division listed at the end of the pesticide petition summary of interest.

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available at http://www.regulations.gov.

As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petitions so that the public has an opportunity to comment on these requests for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petitions may be obtained through the petition summaries referenced in this unit.

1. PP IN-11074. (EPA-HQ-OPP-2018-0032). Spring Trading Company, 203 Dogwood Trail, Magnolia, TX 77354, on behalf of Clariant Corporation, Clariant Plastics & Coatings, (Deutschland) GmbH, Bruningstrasse 50, 65929 Frankfurt am Main, Germany, requests to establish an exemption from the requirement of a tolerance for residues of rice bran wax (CAS Reg. No. 1883583-80-9) when used as an inert ingredient in pesticide formulations under 40 CFR 180.910, 180.930, and 180.940(a). The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

2. PP IN-11075. (EPA-HQ-OPP-2018-0091). ADAMA Agan, Ltd., c/o Makhteshim Agan of North America, Inc., 3120 Highwoods Blvd., Suite 100, Raleigh NC, requests to establish an exemption from the requirement of a tolerance for residues of calcium formate; (CAS Reg. No. 544-17-2) when used as an inert ingredient (carrier) in pesticide formulations applied to growing crops under 40 CFR 180.920. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

3. PP IN-11083. (EPA-HQ-OPP-2018-0089). Morse Enterprises Limited, Inc., d/b/a KeyPlex, P.O. Box 2515, Winter Park, FL 32790, requests to establish an exemption from the requirement of a tolerance for residues of α-terpineol (CAS Reg. No. 98-55-5) when used as an inert ingredient (solvent) in pesticide formulations applied to growing crops under 40 CFR 180.920. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

4. PP IN-11093. (EPA-HQ-OPP-2018-0090). Morse Enterprises Limited Inc. d/b/a KeyPlex, P.O. Box 2515, Winter Park, FL 32790, requests to establish an exemption from the requirement of a tolerance for residues of trans-anethole (CAS Reg. No. 4180-23-8) when used as an inert ingredient (fragrance) in pesticide formulations applied to growing crops under 40 CFR 180.920. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

5. PP IN-11112. (EPA-HQ-OPP-2018-0071). SciReg, Inc., 12733 Director's Loop, Woodbridge, VA 22192, on behalf of Solvay USA Inc., 504 Carnegie Center Princeton, NJ 08540, requests to establish an exemption from the requirement of a tolerance for residues for oxirane, 2-methyl-, polymer with oxirane, mono[2-[2-(2-methoxymethylethoxy)methylethoxy]methylether] ether (CAS Reg. No. 2112825-11-1) with a minimum number average molecular weight (in amu) of 10,000 Daltons, when used as an inert ingredient in pesticide formulations under 40 CFR 180.960. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

1. PP 7F8626. (EPA-HQ-OPP-2018-0070). Ecolab, Inc., 1 Ecolab Place, St. Paul, MN 55102, requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the antimicrobial pesticide C10-C16 Alkylbenzene Sulfonates in or on food contact surfaces in public eating places, dairy processing equipment, and food processing equipment and utensils up to a maximum of 700 ppm when ready for use, in the end-use concentration. The petitioner believes no analytical method is needed because an exemption from the requirement of a tolerance is being proposed. Contact: AD.

2. PP 7F8655. (EPA-HQ-OPP-2018-0092). Clarke Mosquito Control Products, Inc., 675 Sidwell Ct., St. Charles, IL 60174, requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the insecticide l-carvone in or on all raw agricultural commodities. The petitioner believes no analytical method is needed because residues of this chemical are not expected on food commodities due to the ultra-low application rates and the volatile nature of the chemical, which has a vapor pressure of 24.37 Pascals at 25°C and falls into the category of “intermediate to high volatility under field conditions.” Contact: BPPD.

1. PP 7E8636. (EPA-HQ-OPP-2018-0037). Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419, requests to establish a tolerance in 40 CFR part 180 for residues of the insecticide avermectin B1 (a mixture of avermectins containing greater than or equal to 80% avermectin B1a (5-O-demethyl avermectin A1) and less than or equal to 20% avermectin B1b (5-O-demethyl-25-de(1-methylpropyl)-25-(1-methylethyl) avermectin A1)) in or on the raw agricultural commodity tea at 1 parts per million (ppm). The analytical methods involve homogenization, filtration, partition, and cleanup with analysis by high performance liquid chromatography (HPLC)-fluorescence detection. Contact: RD.

2. PP 7E8637. (EPA-HQ-OPP-2018-0037). Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419, requests to establish a tolerance in 40 CFR part 180 for residues of the insecticide avermectin B1 (a mixture of avermectins containing greater than or equal to 80% avermectin B1a (5-O-demethyl avermectin A1) and less than or equal to 20% avermectin B1b (5-O-demethyl-25-de(1-methylpropyl)-25-(1-methylethyl) avermectin A1)) in or on the raw agricultural commodity banana at 0.002 parts per million (ppm). The analytical methods involve homogenization, filtration, partition, and cleanup with analysis by high performance liquid chromatography (HPLC)-fluorescence detection. Contact: RD.

3. PP 7E8656. (EPA-HQ-OPP-2018-0047). Bayer CropScience, 2 T.W. Alexander Drive, Research Triangle Park, NC 27709, requests to establish a tolerance in 40 CFR part 180 for residues of the fungicide isotianil, 3,4-dichloro-2′-cyano-1,2-thiazole-5-carboxanilide in or on banana, fruit at 0.01 parts per million (ppm). The analytical method involves solvent extraction, purification through a Chromabond XTR cartridge (diatomaceous earth) column, and addition of a mixture of stable, isotopically labelled internal standards. Quantitation is by high performance liquid chromatography-electrospray ionization/tandem mass spectrometry (HPLC/MS/MS). Contact: RD.

4. PP 7F8572. (EPA-HQ-OPP-2017-0510). FMC Corporation, 2929 Walnut Street, Philadelphia, PA 19104, requests to establish a tolerance in 40 CFR part 180 for residues of the herbicide pethoxamid in or on corn, field, forage at 0.015 parts per million (ppm); corn, field, stover at 0.02 ppm; corn, field, grain at 0.01 ppm; popcorn, stover at 0.01 ppm; popcorn, grain at 0.01 ppm; corn, sweet, forage at 0.50 ppm; corn, sweet, stover at 0.60 ppm; corn, sweet, kernel plus cobb with husk removed at 0.01 ppm; cotton, undelinted seed at 0.01 ppm; cotton, gin byproducts at 0.09 ppm; soybean, forage at 3.0 ppm; soybean, hay at 4.5 ppm; and soybean, seed at 0.01 ppm. An LC-MS/MS method is used to measure and evaluate the chemical pethoxamid. Contact: RD.

5. PP 7F8622. (EPA-HQ-OPP-2017-0694). DuPont Crop Protection, Stine-Haskell Research Center, P.O. Box 30, Newark, DE 19714-0030, requests to establish a tolerance in 40 CFR part 180 for residues of the insecticide, cyantraniliprole, in or on rice, hulls at 0.05 parts per million (ppm), rice, straw at 0.015 ppm, soybean, forage at 15 ppm, soybean, hay at 50 ppm, soybean, seed at 0.4 ppm, soybean, hulls at 1 ppm, and aspirated grain fractions at 200 ppm. Upon approval of the proposed tolerances in soybean forage and hay, it is proposed that the existing tolerances for indirect or inadvertent residues in soybean forage and hay be cancelled. In addition, DuPont Crop Protection requests to amend the tolerance(s) in 40 CFR.672, in or on rice, grain at 0.02 ppm by replacing an existing tolerance at the same level that is only for imported grain with a tolerance supporting both domestic production and imported grain. The high-pressure liquid chromatography with ESI- MS/MS detection is used to measure and evaluate the chemical. Contact: RD.

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), FCC 18-34, in MB Docket Nos. 18-63, 17-105, adopted on March 22, 2018, and released on March 23, 2018. The complete text of this document is available electronically via the search function on the FCC's Electronic Document Management System (EDOCS) web page at https://apps.fcc.gov/edocs_public/. The document is also available for public inspection and copying during regular business hours in the FCC Reference Information Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. Introduction: In this NPRM, the Commission proposes to streamline the process for reauthorizing television satellite stations when they are assigned or transferred in combination with their previously approved parent station. In accordance with Note 5 of section 73.3555 of the Commission's rules, authorized television satellite stations, which generally retransmit some or all of the programming of their parent station, are excepted from media ownership limits. In order for the exception to apply, a television station must obtain authorization as a satellite from the Commission, and it must be reauthorized as a satellite at the time of assignment or transfer of control. In response to the Public Notice launching the Commission's Modernization of Media Regulation Initiative, commenters assert that the reauthorization of the satellite exception can be costly and burdensome for both the station owner and the Commission. The Commission proposes to streamline the reauthorization process in order to eliminate potentially needless regulatory expense and delay. With this proceeding, the Commission continues its efforts to modernize its regulations and reduce unnecessary requirements that can impede competition and innovation in the media marketplace.

2. Background: Regulatory Treatment of Television Satellite Stations. Television satellite stations are full-power terrestrial broadcast stations authorized under part 73 of the Commission's rules that generally retransmit some or all of the programming of another television station, known as the parent station, which typically is commonly owned or operated with the satellite station. The Commission initially authorized television satellite stations in sparsely populated areas with insufficient economic bases to support full-service stations and more recently in larger markets when the proposed satellite could not operate as a full-service station. Television satellite stations are excepted from the local and national television multiple ownership limits, but from a practical perspective, the ownership exception is significant only for purposes of the Local Television Ownership Rule, which prohibits an entity from owning or controlling more than two television stations in the same local market.

3. In 1991, the Commission revised the standards for television stations seeking satellite status and the corresponding ownership exception. The Commission adopted a rebuttable presumption that stations would qualify for satellite status if: (1) There was no City Grade overlap between the parent and the satellite station; (2) the satellite station served an underserved area; and (3) no alternative operator was ready and able to construct or to purchase and operate the satellite station as a full-service station. The Commission established detailed evidentiary standards for meeting the second and third criteria. If an applicant could not qualify for the presumption, the Commission would evaluate the proposal on an ad hoc basis and grant the application if there were compelling circumstances warranting approval.

4. To help encourage satellite stations to air more of their own programming, the Commission eliminated the previous requirement that no more than five percent of a station's programming could be locally originated in order for the station to maintain its satellite status. The Commission stated that allowing satellite stations to exceed that limit would promote its diversity and localism goals. It recognized, however, that its action had potential ramifications for subsequent transfers or assignments of such stations because a satellite station could become more like a full-service station based on its origination of local programming. Accordingly, it required applicants seeking to transfer or assign a parent/satellite combination that otherwise would violate the Local Television Ownership Rule to demonstrate that the conditions that had warranted satellite status continued to exist at the time of any subsequent transfer or assignment.

5. The transition to digital television service in 2009 complicated the assessment of the first prong of the Commission's presumptive standard in that there is no digital counterpart to a station's analog City Grade contour. Accordingly, in the 2010/2014 Quadrennial Review proceeding, the Commission clarified that, consistent with case law developed after the transition, it will evaluate requests for new and continued satellite status on an ad hoc basis, while, as a practical matter, the second and third prongs of the Commission's presumptive standard still serve as guidelines under the ad hoc review. This shift in approach did not change the burden of proof for initial satellite station authorizations or requests for continued satellite status in the transfer or assignment context.

6. Modernization of Media Regulation Initiative. In May 2017, the Commission issued a Public Notice launching a review of its media regulations to eliminate or modify rules that are outdated, unnecessary, or unduly burdensome. In response to that Public Notice, commenters urge the Commission to streamline the process for demonstrating that a television satellite station remains eligible for satellite status in connection with an assignment or transfer of the station. They argue that the current process for reauthorizing a satellite exception is lengthy, costly, unnecessary, and serves no rational purpose.

7. Discussion: We tentatively conclude that the process for reauthorizing satellite status when a television satellite station is assigned or transferred in combination with its previously approved parent station should be streamlined. We believe that the existing process imposes an unnecessary burden on station owners by requiring them to expend time and resources in demonstrating that a satellite exception is warranted for a previously approved parent/satellite station combination where the underlying circumstances have not materially changed. Further, the time and expense involved in obtaining a reauthorization may create an artificial disincentive for potential purchasers of satellite stations, which typically are in rural and economically depressed areas and often in need of investment. In addition, the sale of a satellite station does not necessarily indicate that the underlying conditions warranting the satellite authorization have changed, as evidenced by the fact that the Commission has never rejected a request for a continued satellite exception despite the numerous reauthorization requests it has processed. This approval record raises questions as to the benefit gained by spending Commission resources on time-consuming reviews of detailed reauthorization requests.

8. We seek comment on ways to streamline the reauthorization process while also ensuring that the process affords the Commission and the public adequate information to determine whether reauthorization serves the public interest. We tentatively conclude that the public interest will be served by permitting a previously approved parent/satellite station combination to be assigned or transferred without the reauthorization request that currently is required and without a written Commission decision granting reauthorization if the following two conditions are met. First, we propose that the assignment or transfer application must include a certification by both parties to the transaction that the underlying circumstances that the Commission relied upon in granting the current satellite authorization have not changed materially since the issuance of the most recent authorization. Second, we propose that the assignment or transfer application must include a complete copy of the most recent written Commission decision (e.g., Letter Order) granting the satellite exception for the current parent/satellite combination. The existing petition to deny/informal comment process applicable to the assignment or transfer of licenses would provide interested parties that disagree with the applicants' certification an opportunity to present their objections. The applicants could respond within the normal pleading cycle, and the Commission then would have a record upon which to make a determination. We believe that this process will provide the Commission and the public with a sufficient opportunity to review the transaction to ensure that continued satellite status is warranted. If any objections to the satellite station's reauthorization are raised, any decision on the application would require a written decision that would include an explanation for the reauthorization decision. Absent such objections, however, the application could be granted without a written decision (provided that there are no other issues that require designation of the application for hearing or otherwise warrant a written decision).

9. We seek comment on all aspects of this proposal. For example, what impact, if any, would the proposal have on small entities? In addition, what showing should the Commission require in the event that the Commission's most recent decision granting satellite status, which may never have been published or put in the public record, is unavailable or does not specify the facts and circumstances surrounding the grant? We also seek comment on how the Commission should memorialize its reauthorization approval when the approval of an assignment or transfer application is not a written decision explaining the scope and basis of the Commission's decision but instead is recorded only on the FCC Form 732. In such circumstances, what information should the Commission include in the FCC Form 732 authorization regarding the satellite station? In addition, to obtain reauthorization approval, is it sufficient for applicants to certify generally that there has been no material change in the circumstances that warranted the station's most recently authorized satellite status? What types of changes would be considered material? For example, would a change in contour be material if the lack of contour overlap was part of the basis upon which the underlying satellite status was granted? If the current authorization is not based on a finding that the service area was underserved or on a finding that the licensee undertook a diligent but unsuccessful search for a buyer, but instead on alternative showings, what would constitute a material change in circumstances? Alternatively, should the Commission require the applicants to attest to a set of more specific facts relevant to the Commission's usual considerations in determining satellite status? For example, where relevant, should the applicants specifically certify that the service area remains underserved as the Commission has defined that term? What other specific certifications, if any, would be useful to require without defeating the purpose of streamlining the reauthorization process?

10. We also seek comment on whether any streamlined reauthorization procedures we adopt should be restricted to transactions that involve the assignment or transfer of a television satellite station in combination with its previously approved parent station. A commenter argued that satellite status should not be limited to a particular parent/satellite combination. The suggestion was that licensees should have the flexibility to change a satellite station's parent without needing to repeat the full showing required for an initial satellite exception. On the other hand, satellite station determinations are fact specific inquiries that rely in part on the identity of the specific stations involved. Unlike renewals of previously approved parent/satellite combinations, the Commission and the public have never had an opportunity to review the particular circumstances of the new combination. Given that there may be public interest benefits associated with a change in parent station and the fact that the public has the opportunity to raise any concerns regarding a reauthorization request, we seek comment on whether we should or should not apply any streamlined process we may adopt to transactions involving a change in a satellite station's parent.

11. Ultimately, we believe that this proposal to streamline the reauthorization process for television satellite stations is consistent with our efforts to modernize our regulations and will encourage investment in such stations by removing unnecessary constraints on their transferability. We seek comment on the costs and benefits associated with our proposals. For example, how much time, effort, and expense do reauthorization requests usually require now, and what cost savings could be achieved by allowing licensees to certify that there have been no material changes, given that a licensee must exercise due diligence in ascertaining the facts needed to support any such certification? Are there any benefits other than cost savings that are likely to occur from streamlining, and if so, how likely are such benefits to arise from the streamlining proposal we offer for comment? Based on the Commission's experience processing transactions that include satellite station reauthorizations, we do not believe that the proposals herein will impair our, or interested parties', ability to meaningfully review such transactions. We seek comment, however, on any negative consequences of streamlining, including whether this proposal will require applicants or other stakeholders to incur any additional costs beyond what they currently incur. We also seek comment on any alternative approaches. Any party advocating for an alternative approach should be as detailed as possible and should explain the costs and benefits of any recommended approach.

12. Initial Regulatory Flexibility Act Certification: The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an initial regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

13. In this NPRM, the Commission seeks comment on how to streamline the process for reauthorizing television satellite stations when they are assigned or transferred in combination with their previously approved parent station. The potential rule changes discussed in the NPRM stem from a Public Notice issued by the Commission in May 2017 launching an initiative to modernize the Commission's media regulations. Commenters in the proceeding argued that the Commission should streamline the process for demonstrating that a television satellite station remains eligible for satellite status in connection with an assignment or transfer of the station because, they contend, the current process is lengthy, costly, unnecessary, and serves no rational purpose. The proposals upon which the NPRM seeks comment are intended to reduce unnecessary regulation and regulatory burdens that can impede competition and innovation in the media marketplace.

14. The Commission estimates that the rule changes proposed in this NPRM, if adopted, would reduce the time and expense associated with reauthorizing television satellite stations when they are assigned or transferred in combination with their previously approved parent station. For example, the NPRM proposes that, instead of needing to make the same type of showing that was required for the station's initial satellite authorization, the parties to the proposed transaction could certify that there has been no material change in the underlying circumstances since the current satellite authorization was granted by the Commission. In addition, a complete copy of the written Commission decision granting the current satellite exception would need to be provided with the assignment or transfer application. The NPRM seeks comment on various aspects of the streamlining proposal and on any alternative approaches.

15. The Commission believes that the proposals on which it seeks comment in this NPRM would reduce costs and burdens currently associated with transactions involving television satellite stations, including those that are small entities. As transactions involving television satellite stations usually comprise a very small percentage of the total number of television transactions processed by the Commission and originate from a similarly small segment of the overall industry, the number of small entities impacted would not be substantial for RFA purposes. Therefore, the Commission certifies that the proposals in this NPRM, if adopted, will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the NPRM, including a copy of this Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA. This initial certification will also be published in the Federal Register.

16. Initial Paperwork Reduction Act Analysis: The document contains proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in the document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

17. Ex Parte Rules: This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

18. Comments and Replies: Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated above. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

19. Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.

20. Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

21. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

22. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

23. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

24. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

25. Availability of Documents: Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, CY-A257, Washington, DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.

26. People With Disabilities: To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

27. Additional Information: For additional information on this proceeding, contact Julie Salovaara of the Industry Analysis Division, Media Bureau, at [email protected] or (202) 418-2330.

28. Ordering Clauses: Accordingly, it is ordered that, pursuant to the authority found in sections 1, 4(i), 4(j), 303(r), 309, and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), 309, and 310, this Notice of Proposed Rulemaking is adopted.

29. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Act Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

In this rule, NMFS proposes management measures for the 2018 summer flounder, scup, and black sea bass recreational fisheries consistent with the recommendations of the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission). NMFS is proposing measures that would apply in the Federal waters of the exclusive economic zone (EEZ). These measures apply to all Federally permitted party/charter vessels with applicable summer flounder, scup, and black sea bass permits, regardless of where they fish, unless the state in which they land implements measures that are more restrictive. These measures are intended to achieve, but not exceed, the previously established 2018 recreational harvest limits established in a final rule published on December 22, 2017 (82 FR 60682).

For summer flounder, we are proposing to continue the use of conservation equivalency measures for all the states, through the Commission, to determine the most appropriate measures to constrain landings to the 2018 recreational harvest limit. For scup, we are proposing to maintain the measures currently in place for 2017. For black sea bass, we propose to maintain the current minimum size and possession limits, but we propose to remove the current September 22-October 22 closure, which would result in an open season from May 15-December 31. The black sea bass measures are contingent upon the Commission constraining catch to the 2018 recreational harvest limit.

The summer flounder, scup, and black sea bass fisheries are managed cooperatively under the provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) developed by the Council and the Commission, in consultation with the New England and South Atlantic Fishery Management Councils. The management units specified in the FMP include summer flounder (Paralichthys dentatus) in U.S. waters of the Atlantic Ocean from the southern border of North Carolina northward to the U.S./Canada border, and scup (Stenotomus chrysops) and black sea bass (Centropristis striata) in U.S. waters of the Atlantic Ocean from 35° 13.3′ N. lat. (the approximate latitude of Cape Hatteras, North Carolina). States manage these three species within 3 nautical miles (4.83 km) of their coasts, under the Commission's plan for summer flounder, scup, and black sea bass. The applicable species-specific Federal regulations govern vessels and individual fishermen fishing in Federal waters of the EEZ, as well as vessels possessing a summer flounder, scup, or black sea bass Federal charter/party vessel permit, regardless of where they fish.

The Council process for recommending recreational management measures to NMFS for rulemaking is generically described below. All meetings are open to the public, and the materials utilized during such meetings, as well as any documents created to summarize the meeting results, are public information and posted on the Council's website (www.mafmc.org) or are available from the Council by request. Therefore, extensive background on the 2018 recreational management measures recommendation process is not repeated in this preamble.

The FMP established monitoring committees for the three fisheries, consisting of representatives from the Commission, the Council, state marine fishery agency representatives from Massachusetts to North Carolina, and NMFS. The FMP's implementing regulations require the monitoring committees to review scientific and other relevant information annually. The objective of this review is to recommend management measures to the Council that will constrain landings within the recreational harvest limits established for the three fisheries for the upcoming fishing year. The FMP limits the choices for the types of measures to minimum fish size, per angler possession limit, and fishing season.

The Council's Demersal Species Committee and the Commission's Summer Flounder, Scup, and Black Sea Bass Management Board then consider the monitoring committees' recommendations and any public comment in making their recommendations to the Council and the Commission. The Council reviews the recommendations of the Demersal Species Committee, makes its own recommendations, and forwards them to NMFS for review. The Commission similarly adopts recommendations for the states. NMFS is required to review the Council's recommendations to ensure that they are consistent with the targets specified for each species in the FMP and all applicable laws and Executive Orders before ultimately implementing measures for Federal waters. Commission measures are final at the time they are adopted.

Conservation equivalency, as established by Framework Adjustment 2 (July 29, 2001; 66 FR 36208), allows each state to establish its own recreational management measures (possession limits, minimum fish size, and fishing seasons) to achieve its state management target partitioned by the Commission from the coastwide recreational harvest limit, as long as the combined effect of all of the states' management measures achieves the same level of conservation as would Federal coastwide measures. Framework Adjustment 6 (July 26, 2006; 71 FR 42315) allowed states to form regions for conservation equivalency in order to minimize differences in regulations for anglers fishing in adjacent waters.

The Council and Board annually recommend that either state- or region-specific recreational measures be developed (conservation equivalency) or that coastwide management measures be implemented to ensure that the recreational harvest limit will not be exceeded. Even when the Council and Board recommend conservation equivalency, the Council must specify a set of coastwide measures that would apply if conservation equivalency is not approved for use in Federal waters.

When conservation equivalency is recommended, and following confirmation that the proposed state or regional measures developed through the Commission's technical and policy review processes achieve conservation equivalency, NMFS may waive the permit condition found at 50 CFR 648.4(b), which requires Federal permit holders to comply with the more restrictive management measures when state and Federal measures differ. In such a situation, Federally permitted summer flounder charter/party permit holders and individuals fishing for summer flounder in the EEZ would then be subject to the recreational fishing measures implemented by the state in which they land summer flounder, rather than the coastwide measures.

In addition, the Council and the Board must recommend precautionary default measures when recommending conservation equivalency. The Commission would require adoption of the precautionary default measures by any state that either does not submit a summer flounder management proposal to the Commission's Summer Flounder Technical Committee, or that submits measures that would exceed the Commission-specified harvest limit for that state.

Much of the conservation equivalency measures development process happens at both the Commission and the individual state level. The selection of appropriate data and analytical techniques for technical review of potential state conservation equivalent measures and the process by which the Commission evaluates and recommends proposed conservation equivalent measures are wholly a function of the Commission and its individual member states. Individuals seeking information regarding the process to develop specific state measures or the Commission process for technical evaluation of proposed measures should contact the marine fisheries agency in the state of interest, the Commission, or both.

Once the states and regions select their final 2018 summer flounder management measures through their respective development, analytical, and review processes and submit them to the Commission, the Commission will conduct further review and evaluation of the submitted proposals, ultimately notifying NMFS as to which proposals have been approved or disapproved. NMFS has no overarching authority in the development of state or Commission management measures but is an equal participant along with all the member states in the review process. NMFS neither approves nor implements individual states' measures but retains the final authority either to approve or to disapprove the use of conservation equivalency in place of the coastwide measures in Federal waters. Additionally, we will publish our determination as a final rule in the Federal Register to establish the 2018 recreational measures for these fisheries.

NMFS proposes to implement the Council's and Commission's recommendation to manage the 2018 summer flounder recreational fishery using conservation equivalency. The 2018 summer flounder recreational harvest limit is 4.42 million lb (2,004 mt), an increase from the 2017 harvest limit of 3.77 million lb (1,711 mt). Preliminary estimates indicate that the 2017 recreational landings are 3.10 million lb (1,406 mt). These 2017 projected landings are based on preliminary Marine Recreational Information Program (MRIP) estimates through Wave 6 (November and December 2017).

The Council and Commission approved conservation equivalency at their joint meeting, held in December 2017. At this meeting, the Board voted to maintain the provisions of Addendum XXVIII to its FMP, which continues regional conservation equivalency for fishing year 2018. The Commission maintained regions that are consistent with those in place since 2016: (1) Massachusetts; (2) Rhode Island; (3) Connecticut and New York; (4) New Jersey; (4) Delaware, Maryland, and Virginia; and (5) North Carolina. Rather than liberalize measures up to the 2018 harvest limit, the Board specified that any adjustments to state measures in 2018 should result in no more than a 17-percent liberalization in coastwide harvest relative to the projected 2017 harvest of 3.23 million lb (1,465 mt), the harvest estimate available at the December 2017 meeting. The Board specified this maximum liberalization due to concerns about the status of the summer flounder stock, as well as concerns that harvest estimates for 2017 appeared to be anomalously low in terms of effort and landings, raising concerns that overages in 2018 may occur under larger liberalization if catch and effort rates increase in 2018.

NMFS proposes a suite of non-preferred coastwide measures, consistent with those adopted by the the Council and Board for implementation in 2018. Under conservation equivalency, the cumulative impact of the regional recreational measures should achieve the same constraints on harvest as the non-preferred coastwide measures. For 2018, non-preferred coastwide measures approved by the Council and Board are a 19-inch (48.3-cm) minimum fish size, a 4-fish per person possession limit, and an open season from May 15-September 15. These measures are expected to constrain the overall recreational landings to the 2018 recreational harvest limit. If a jurisdiction's measures do not achieve the level of conservation required by the Commission, that state or region must implement the precautionary default measures. The 2018 precautionary default measures recommended by the Council and Board are identical to those in place for 2017: A 20.0-inch (50.8-cm) minimum fish size; a 2-fish per person possession limit; and an open season of July 1-August 31, 2018.

The Board reviewed and approved state and region proposals for modifying management at the Commission's February 8, 2018, meeting. With the exception of North Carolina, which intends to maintain status quo measures, all other regions have developed proposals for different 2018 recreational management that would achieve, but not exceed, a 17-percent liberalization of their 2017 harvest.

The 2018 scup recreational harvest limit is 7.37 million lb (3,342 mt) and 2017 recreational landings are currently estimated at 4.68 million lb (2,123 mt). The status quo management measures are a 9-inch (22.9-cm) minimum fish size, 50-fish per person possession limit, and year-round season. The Council recommends maintaining the existing management measures, as no changes are needed to ensure the 2018 recreational harvest limit is not exceeded. As a result, we are proposing to maintain the current scup recreational management measures for 2018.

The 2018 black sea bass recreational harvest limit is 3.66 million lb (1,661 mt), a decrease of nearly 15 percent from the 2017 harvest limit of 4.29 million lb (1,945 mt). The stock biomass remains well above the biomass target and overfishing is not occurring but the overall biomass is expected to decline as the large 2011 year class moves out of the population due to natural and fishing mortality. The Council's Monitoring Committtee and Commission's Technical Committee applied a smoothing technique to preliminary MRIP 2017 recreational landings through Wave 6 (November and December) to account for any anomalous estimates, which results in a 2017 harvest estimate of 3.55 million lb (1,610 mt). This estimated harvest is 17 percent below the 2017 harvest limit and 3 percent below the 2018 harvest limit.

The Council recommends extending the current black sea bass recreational season by removing a closure that occurs from September 22-October 21 and maintaining the current possession limit and minimum size. The following measures would apply to 2018: A 15-fish possession limit, a 12.5-inch (31.75-cm) minimum size, and a season from May 15-December 31.

At its February 2018 meeting, the Commission took final action on Addendum XXX, which establishes state recreational management measures designed to constrain catch to the 2018 recreational harvest limit and regionally allocates black sea bass using a combination of exploitable biomass information from the latest stock assessment and historical harvest. Ultimately, Massachusetts through New York will be allocated 61.35 percent of the harvest limit, New Jersey will receive 30.24 percent, and Delaware through North Carolina will receive 8.41 percent. To increase regional consistency in measures, each region will establish a standard set of measures, with each state in the region afforded the flexibility to adjust its minimum size by up to 1 inch (2.54 cm) and possession limit up to three fish.

If the states do not implement measures to constrain catch to the 2018 recreational harvest limit, the Council recommends a 14-inch (35.56-cm) minimum fish size and a five-fish possession limit with an open season of May 15-September 15. The Council and NMFS expect, based on February 2018 action by the Commission's Black Sea Bass Board, that these default measures will not be necessary. States presented regional proposals to the Technical Committee and Board in March 2018. These measures should constrain catch to the 2018 harvest limit.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Council conducted an evaluation of the potential socioeconomic impacts of the proposed measures in conjunction with an EA. According to the commercial ownership database, 359 for-hire affiliate firms generated revenues from recreational fishing for various species during the 2014-2016 period. All of those business affiliates are categorized as small businesses. It is not possible to derive what proportion of the overall revenues for these for-hire firms came from fishing activities for an individual species. Nevertheless, given the popularity of summer flounder and black sea bass as recreational species in the Mid-Atlantic and New England, revenues generated from these species are likely very important for many of these firms at certain times of the year. The 3 year average (2014-2016) combined gross receipts (all for-hire fishing activity combined) for these small entities was $53,454,121, ranging from less than $10,000 for 92 entities (lowest value $238) to over $1,000,000 for 11 entities (highest value $2.8 million).

The economic impacts of the proposed measures in this action will be affected in part by the specific set of measures implemented at the state level for summer flounder conservation equivalency, and for black sea bass regional management. These impacts are likely to vary by species and by state, and in the case of black sea bass, some states will need to restrict measures or maintain status quo measures, while liberalizations in measures may be allowed for other states.

For summer flounder, this action would waive Federal measures in lieu of state measures designed to reach the 2018 harvest limit. Moderate liberalizations (17 percent relative to 2017 harvest) are expected to be implemented in most states for 2018. Thus, market demand may see a slight to moderate increase in 2018, although this is likely to vary by state depending on each state's current measures and how they choose to modify them in 2018. Under more liberal management measures in 2018, some anglers may transfer effort to summer flounder from other species (e.g., weakfish, striped bass, tautog, pelagics, etc.) resulting in very little change in overall fishing effort.

In general, for black sea bass, this action proposes to liberalize measures in Federal waters by removing a 30-day mid-season closure, so long as the states implement measures to constrain catch to the 2018 recreational harvest limit. The current possession limit and minimum size requirement would remain the same as in 2017. Removal of this mid-season closure reduces conflicts between Federal/state waters regulations and allows states more flexibility in setting their measures. Because the 2018 harvest limit has decreased by about 15 percent compared to 2017, liberalizations to state waters measures are not expected to be implemented, and in fact some states may need to slightly restrict or retain their existing measures compared to 2017 when evaluating the 2017 harvest and the lower 2018 harvest limit. Measures in state waters are expected to be adjusted to be slightly more conservative for New York and states to the north. The states of Delaware through North Carolina will likely adopt the proposed Federal water measures, which may result in a slight increase in market demand in those states. However, these states account for only 7 percent of all the directed black sea bass trips taken coastwide. The Board will consider approval of final black sea bass state recreational measures in March 2018. Should the states ultimately not adopt measures that would constrain catch to the 2018 recreational harvest limit, the Council is also proposing more restrictive Federal measures that would appropriately constrain catch to meet that objective, but this would result in similar impacts as if the states implemented these measures themselves. The overall combination of management measures may be slightly more restrictive in 2018 compared to 2017, but not to a degree that is expected to substantially influence market demand for party/charter trips. Currently, the market demand for this sector is relatively stable. Because this rule will not have a significant economic impact on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared. There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action.

For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

Authority for Action

NMFS manages the groundfish fisheries in the exclusive economic zone of the BSAI and GOA under the BSAI FMP and GOA FMP (collectively the FMPs). The North Pacific Fishery Management Council (Council) prepared these FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations implementing these FMPs appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

This proposed rule would implement Amendments 117/106 and update the species code for octopus in several tables to 50 CFR part 679. The Council submitted Amendments 117/106 for review by the Secretary of Commerce (Secretary), and the Notice of Availability (NOA) of these amendments was published in the Federal Register on March 27, 2018, with comments invited through May 29, 2018 (83 FR 13117). Comments may address Amendments 117/106 or this proposed rule, but must be received by May 29, 2018 to be considered in the Secretary's decision to approve, disapprove, or partially approve these amendments.

In June 2017, the Council voted unanimously to recommend Amendments 117/106 to the FMPs to reclassify squids as non-target ecosystem component species, not in need of conservation and management. Squids are currently classified as target species in the FMPs, though as discussed below, squids are currently only caught incidental to other target fisheries. To implement Amendments 117/106, NMFS proposes regulations to prohibit directed fishing for squids by Federally permitted groundfish fishermen and to specify a squid retention limit in the GOA groundfish fisheries consistent with the existing BSAI squid retention limit. The following sections of this preamble provide (1) groundfish stock classification in FMPs and a brief history of this proposed action; (2) the National Standards (NS) guidance for determining which species require conservation and management; (3) a description of Amendments 117/106 to the groundfish FMPs; and (4) the regulatory changes made by this proposed rule.

Among other requirements, FMPs must comply with the Magnuson-Stevens Act NS (16 U.S.C. 1851). NMFS has implemented regulations to provide guidance on the interpretation and application of these NS. Relevant to this proposed rule, the NS guidelines at 50 CFR 600.305(d)(11), (12) and (13) define three classifications for stocks in an FMP: (1) Target stocks in need of conservation and management that fishers seek to catch; (2) non-target stocks in need of conservation and management that are caught incidentally during the pursuit of target stocks; and (3) ecosystem component (EC) species that do not require conservation and management, but may be listed in an FMP in order to achieve ecosystem management objectives.

Under the groundfish FMPs, and harvest limit regulations at § 679.20, NMFS must establish an overfishing level (OFL), an acceptable biological catch (ABC) and a total allowable catch (TAC) for each stock or stock complex (i.e., species or species group) that are assigned a target or a non-target species category classification. Overfishing occurs when the amount of catch of a stock or stock complex jeopardizes the capacity of the stock or stock complex to produce the maximum sustainable yield on a continuing basis. NMFS manages fisheries in an effort to ensure that no overfishing limits (OFLs) are exceeded in any year. Regulations at §§  679.20(d)(1), (d)(2), and (d)(3) define the process NMFS uses to limit or prohibit fishing to prevent overfishing and maintain total catch at or below the OFL. The FMPs define the ABC as the level of a species or species group's annual catch that accounts for the scientific uncertainty in the estimate of OFL and any other scientific uncertainty. The ABC cannot exceed the OFL. Regulations at §§  679.20(d)(1) and (d)(2) describe the range of management measures that NMFS uses to maintain total catch at or below the ABC. The FMPs define the TAC as the annual catch target for a species or species group, derived from the ABC by considering social and economic factors and management uncertainty. The TAC must be set lower than or equal to the ABC. Regulations at §§  679.20(d)(1) and (d)(2) describe the range of management measures that NMFS uses to maintain total catch at or below the TAC.

NMFS establishes the OFL, ABC, and TAC for each species or species group through the annual harvest specification process. For the most recent example of the annual harvest specifications, please see the final 2017/2018 annual harvest specifications (82 FR 11826, February 27, 2017 and 82 FR 12032, February 27, 2017).

In 2010, Amendments 96/87 to the BSAI and GOA FMPs, respectively, established the EC category and designated prohibited species (salmon, steelhead trout, crab, halibut, and herring) and forage fish species (as defined in Table 2c to 50 CFR part 679 and § 679.20(i)) as EC species in the groundfish FMPs (75 FR 61639, October 6, 2010). Under the FMPs, EC species are defined as non-target species for which catch specifications (i.e., an OFL, ABC, or TAC) are not required. For these EC species, NMFS maintained regulations that (1) banned the retention of prohibited species, (2) prohibited directed fishing for forage fish, and (3) established a limit, known as the maximum retainable amount (MRA), on the amount of incidental harvest of forage fish while directed fishing for other groundfish species. Regulations at 50 CFR 679.2 define the term “directed fishing.” Regulations at § 679.20(e) describe the application and calculation of MRAs.

In 2015, NMFS implemented Amendments 100/91 to the BSAI and GOA FMPs, respectively, to add grenadiers (family Macrouridae) to the EC category (80 FR 11897, March 5, 2015). The Council and NMFS added grenadiers to the FMPs in the EC category because grenadiers did not require conservation and management, but acknowledged their role in the ecosystem and limited the groundfish fisheries' potential impact on grenadiers. Adding grenadiers to the EC category allowed for improved data collection and catch monitoring appropriate for grenadiers given their abundance, distribution, and catch. Additional detail is provided in the final rule implementing Amendments 100/91, and is not repeated here (80 FR 11897, March 5, 2015).

Squids are currently classified as target species in the groundfish FMPs and directed fishing for squids is allowed. However, TAC levels established annually for squids are too low to support a directed fishery in either the BSAI or GOA. Directed fishing for squids has been closed in the BSAI and GOA since 2011 (76 FR 11139, March 1, 2011). NMFS places squids on bycatch-only status at the beginning of each year through the annual harvest specifications.

Since 2010, the Council's non-target committee, Plan Teams, and Scientific and Statistical Committee have recommended that the Council explore reclassifying squids as EC category species because they do not meet the target species category classification; there is no demand for squid and squid have not been targeted or open to directed fishing in either the BSAI or GOA for many years (see Analysis section 1.2). Further, there is no conservation concern for squids because they are extremely short-lived and highly productive, the current fishing mortality is considered insignificant at a population level, and they are unlikely to be overfished in the absence of a directed fishery (see Analysis section 3.2.5).

Current OFLs and ABCs for squids are based on average catch calculations. While these limits are based on the best available scientific information, they are poorly linked to abundance. Most squids in the BSAI and GOA are associated with the pelagic environment, occurring in the water column. As described in section 3.2 of the Analysis, only three of the fifteen species of squids in the BSAI and GOA are found close to the ocean floor, and most of the available information on the distribution and abundance of squids derives from NMFS's bottom trawl surveys. Even demersal squids reside off the bottom and bottom trawl surveys do not sample squids well, though they better reflect the distribution and abundance of the three species of squids found in association with the bottom than the species in the water column. The bottom trawl survey likely underestimates biomass of squids.

While biomass estimates for squid are limited, ecosystem models can be used to estimate squid densities based upon the food habits and consumption rates of predators of squids. As described below, based on information derived from ecosystem models in the BSAI and GOA, the Council and NMFS believe that catch-based estimates of OFLs and ABCs for squids are highly underestimated (see section 3.2.2 of the Analysis). If surveys were more aligned with squid distribution, NMFS expects that squid biomass estimates, and subsequently squid OFLs and ABCs would be substantially higher (see section 3.2.3 of the Analysis).

Under the current stock classification for squids as a target species, if the total TACs of squids are caught in the BSAI or GOA, retention of squids is prohibited in that management area for the remainder of year. If NMFS projects that incidental catch of squids in directed fisheries for groundfish species will exceed the squids OFL, NMFS may close directed fishing for those groundfish species in a management area to prevent exceeding the squids OFL (see regulations at § 679.20(d)(3)). The GOA squids TAC has not been exceeded, however the BSAI squids TAC was exceeded in 2012, 2014, and 2015. In 2015, for the first time, the BSAI squids catch exceeded the ABC and total catch was approaching the OFL (see Analysis section 3.2.3).

Section 3.2.3 of the Analysis provides a detailed description of incidental catch of squids in the BSAI and GOA groundfish fisheries. Historically, the Bering Sea pollock fishery has taken the largest amount of squids relative to the TAC, ABC, and OFL for BSAI squids. Although NMFS has not needed to close the Bering Sea pollock fishery, or other groundfish fisheries in the BSAI or GOA, to directed fishing to prevent exceeding the squids OFL, the Bering Sea pollock fishery has undertaken measures to avoid the incidental harvest of squids and exceeding the BSAI squids OFL.

As described in section 3.2.4 of the Analysis, the Bering Sea pollock fleet has coordinated with NMFS and identified areas of relatively high squids catch. The Bering Sea pollock fleet has voluntarily established specific areas where squids catch is elevated and has moved fishing operations out of these areas they term “squid boxes” prior to NMFS taking action. In the process of moving away from areas of high bycatch of squids, the Bering Sea pollock fleet may inadvertently encounter areas of increased bycatch of other species such as chum salmon, Chinook salmon, and herring for which there is greater conservation concern (see Analysis section 3.3).

Section 302(h)(1) of the Magnuson-Stevens Act requires a council to prepare an FMP for each fishery under its authority that is in need of conservation and management. “Conservation and management” is defined in section 3(5) of the Magnuson-Stevens Act. The NS guidelines at § 600.305(c) (revised on October 18, 2016, 81 FR 718585), provide direction for determining which stocks will require conservation and management and provide direction to regional councils and NMFS for how to consider these factors in making this determination. Specifically, the guidelines direct regional councils and NMFS to consider a non-exhaustive list of ten factors when deciding whether stocks require conservation and management.

Section 2.2.1 in the Analysis considers each of the ten factors' relevance to squids. The analysis showed that squids are an important component of the marine environment, particularly due to their importance as prey for marine mammals, fish and other squids. However, despite being classified as a target species, there are currently no directed fisheries for squids. Squids are not important to commercial, recreational or subsistence users and the fisheries for BSAI and GOA squids are not important to the National or regional economy. There are no developing fisheries for squids in the EEZ off Alaska nor in waters of the State of Alaska (State). Currently, the State adopts the MRAs established in the Federal fisheries for fisheries in State waters. In the absence of a directed fishery, squids are unlikely to become overfished because they are short-lived, highly productive, and current surveys are considered substantial underestimates of true squids biomass in both the BSAI and GOA. Therefore, maintaining squids in the FMPs for conservation and management is not likely to improve or maintain the condition of the stocks.

In June of 2017, the Council recommended, and NMFS now proposes, Amendments 117/106 to the BSAI and GOA FMPs, respectively, to reclassify squids as EC category species in the FMPs. Based on a review of the scientific information, and after considering the revised NS guidelines, the Council and NMFS determined that squids are not in need of conservation and management, and that classifying squids in the EC category is an appropriate action.

While the Council determined that squids are not in need of conservation and management as defined by the Magnuson-Stevens Act, and after considering the revised NS guidelines, the Council and NMFS determined that there are benefits to retaining squids as an EC species complex in the FMPs, especially given their ecological importance in the BSAI and GOA.

In contrast to the BSAI where the squid TAC has been exceeded in the past and constrained fishing, the annual catch of squids has not exceeded the GOA TAC, ABC or approached the OFL, and management measures have not constrained GOA groundfish species (see section 3.2.4 of the Analysis). However, due to the lack of directed fisheries for squids in the GOA and the determination that squids are not in need of conservation and management in the GOA, the Council recommended and NMFS proposes Amendment 106 to the GOA FMP to accurately classify the squid complex in the FMP based on the best available information and for consistency with squid management in the BSAI proposed under Amendment 117.

Amendments 117/106 would establish the squids EC species complex in the FMPs to clarify that they are non-target species and would require monitoring the effects of incidental catch of squids in the groundfish fisheries on squid populations. Amendments 117/106 would allow NMFS to prohibit directed fisheries for squids and limit the retention and commercial sale of squids. By virtue of being classified as EC species, catch specifications for squids (i.e., OFLs, ABCs, and TACs) would no longer be required.

Though the Council determined, and NMFS concurs, that squids are not in need of conservation and management, squid population status and bycatch should be monitored to continually assess vulnerability of squids to the fishery given their importance in the ecosystem. Therefore, the proposed rule retains record keeping and reporting requirements for squid bycatch. The proposed rule would prohibit directed fishing for squids to meet the intent of Amendments 117/106 that squids are not a target species complex. Because the definition of directed fishing at § 679.2 is based on an MRA, the proposed rule would specify a retention limit for squids so that NMFS could implement the prohibition on directed fishing to meet the intent of Amendments 117/106.

In addition to classifying squids as an EC species in the FMPs under Amendments 117/106, the Council recommended and NMFS proposes regulations to limit and monitor the incidental catch of squids. This proposed rule would—

• Prohibit directed fishing for squids in the BSAI and GOA groundfish fisheries;

• maintain recordkeeping and reporting of squids in the BSAI and GOA groundfish fisheries, but modify the regulations for clarity;

• specify a squids retention limit, or MRA, in the GOA Federal groundfish fisheries consistent with the existing BSAI squids MRA of 20 percent; and

• revise the species code tables in the regulations to indicate octopus is a multi-species category by using the plural, octopuses.

To prohibit directed fishing, this proposed rule would revise §§ 679.20(i) and 679.22(i) to prohibit directed fishing for squids at all times in the BSAI and GOA groundfish fisheries. This prohibition is consistent with the regulations and management approach for other EC species. With respect to EC species, NMFS prohibits directed fishing for forage fish and grenadiers,

To clarify definitions and recordkeeping and reporting requirements, this proposed rule would add a definition for squids at § 679.2. Recordkeeping and reporting regulations at § 679.5 would not be modified by this proposed rule, but would continue to require a vessel operator or manager in a BSAI or GOA groundfish fishery to record and report retained and discarded squids in logbooks, landing reports, and production reports. This proposed rule would add an instruction to § 679.5 to use the squids species code in Table 2c to 50 CFR part 679 (Table 2c) to record and report squid catch. Table 2c lists the species reporting codes for non-target groundfish FMP species. NMFS would modify Table 2c to add one squid species code and remove the existing squid species code from Table 2a to 50 CFR part 679 (species reporting codes for target groundfish FMP species) because squids would be removed as a target species in the groundfish FMPs. These revisions would maintain NMFS' ability to monitor the catch, retention, and discard of squids.

Section 679.20 provides the general limitations for the BSAI and GOA groundfish fisheries. Because a TAC would no longer be specified for squids, this proposed rule would remove squids from § 679.20(b)(2), which specifies the amount of the TAC that is reserved for inseason management flexibility.

The MRA is the proportion or percentage of retained catch of a species closed for directed fishing (incidental catch species) to the retained catch of a species open for directed fishing (basis species). This proposed rule would move squids out of the basis species category and into the incidental catch species category consistent with the prohibition on directed fishing for squids under this proposed rule. In the GOA, squids are included in the “other species” category (along with sculpins, octopus, and sharks) for MRA purposes under the existing regulations. To specify a separate MRA for squids in the GOA, this proposed rule would remove squids from footnote 6, “other species” in Table 10 to 50 CFR part 679 and add squids as an incidental catch species with an MRA of 20 percent. This proposed rule would similarly revise Table 11 to 50 CFR part 679 to remove squids as a basis species in the BSAI and add squids and grenadiers footnote 7 to indicate that forage fish, grenadiers, and squids are all defined in Table 2c. This proposed change would render obsolete, footnote 9 to Table 11 at 50 CFR part 679, and it would be removed.

In developing this proposed rule, the Council and NMFS considered a range of squids MRA percentages: 2 percent, 10 percent, and the current MRA of 20 percent. The Analysis (Table 3-20) provides the percentage range of squids taken incidental to the directed pollock fisheries, by haul, in the GOA and BSAI from 2013 through 2016. The majority of the hauls contained less than two percent squids. Many hauls contained greater than two percent squids, thus an MRA of two percent has the potential to be highly constraining. Likewise, while hauls with greater than 10 percent of squids were infrequent, an MRA of 10 percent also has the potential to constrain the directed fisheries. Section 4.6.2 of the Analysis discusses that a more constraining MRA is more likely to increase discards of dead squids rather than discourage targeting. There are no conservation concerns for squids. Therefore, the Council recommended and NMFS proposes specifying an MRA for squids of 20 percent in the GOA groundfish fisheries consistent with the existing MRA for squids in the BSAI groundfish fisheries.

This proposed rule would also correct a minor technical inaccuracy in the species code for octopus. The species code for octopus in the existing regulations does not reflect the diversity of octopus species in the BSAI and GOA and refers to only one species—North Pacific octopus. Several species of octopuses occur in the BSAI and GOA. To accurately reflect the diversity of octopuses taken in the groundfish fisheries, this proposed rule would revise species code 870 in Table 2a to 50 CFR part 679 to indicate multiple species by using the plural “octopuses.” This proposed rule would also revise Table 10 to 50 CFR part 679 to update octopus in footnote 6 to the plural “octopuses.” In addition, footnote 4 in Table 11 to part 50 CFR 679 would be revised to include the plural for octopus. This proposed correction would not affect existing reporting requirements.

Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 117 to the BSAI FMP, Amendment 106 to the GOA FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

An RIR was prepared to assess the costs and benefits of available regulatory alternatives. A copy of this analysis is available from NMFS (see ADDRESSES). The Council recommended Amendments 117/106 based on those measures that maximized net benefits to the Nation. Specific aspects of the economic analysis related to the impact of this proposed rule on small entities are discussed below in the Initial Regulatory Flexibility Analysis section.

This IRFA was prepared for this proposed rule, as required by section 603 of the Regulatory Flexibility Act (RFA), to describe the economic impact this proposed rule, if adopted, would have on small entities. An IRFA describes why this action is being proposed; the objectives and legal basis for the proposed rule; the number of small entities to which the proposed rule would apply; any projected reporting, recordkeeping, or other compliance requirements of the proposed rule; any overlapping, duplicative, or conflicting Federal rules; and any significant alternatives to the proposed rule that would accomplish the stated objectives, consistent with applicable statutes, and that would minimize any significant adverse economic impacts of the proposed rule on small entities. Descriptions of this proposed rule, its purpose, and the legal basis are contained earlier in this preamble and are not repeated here.

This proposed rule would directly regulate any vessel operator harvesting squids in the Federally managed groundfish fisheries in the BSAI and GOA. The thresholds applied to determine if an entity or group of entities are “small” under the RFA depend on the industry classification for the entity or entities. Businesses classified as primarily engaged in commercial fishing are considered small entities if they have combined annual gross receipts not in excess of $11.0 million for all affiliated operations worldwide (81 FR 4469; January 26, 2016). The most recent estimates of the number of fishing vessels participating in the BSAI and GOA groundfish fisheries that are small entities are provided in Table 2 in the Initial Regulatory Flexibility Analyses for the BSAI and GOA Harvest Specifications for 2018-2019 (see ADDRESSES). In 2016, there were 119 catcher vessels and 5 catcher/processors in the BSAI, and 920 catcher vessels and 3 catcher/processors in the GOA. These estimates likely overstate the number of small entities in the groundfish fisheries off Alaska because some of these vessels are affiliated through common ownership or membership in a cooperative and the affiliated vessels together would exceed the $11.0 million annual gross receipts threshold for small entities.

The only potential adverse economic impact that has been identified for this proposed rule is that vessel owners or operators who may wish to conduct directed fishing for squids in the future, and who would wish to retain more squids than they would be allowed to retain under the 20 percent MRA, would not be able to do so. This potential adverse impact would not affect any current participants relative to opportunities available to them in recent years, because directed fishing for squid has been closed in the BSAI and GOA since 2011. Therefore, no current participants would lose an economic opportunity that is available to them today or has been available to them in recent years.

The degree to which this proposed rule could limit current fishery permit holders' future economic activity in the BSAI or GOA could be viewed as an adverse impact of this proposed rule. This adverse economic impact could affect any future participant in these groundfish fisheries. Therefore, all fishing vessels currently participating in the BSAI and GOA groundfish fisheries that are small entities could be adversely impacted by this proposed rule in the future. However, based on the very limited number of vessel operators who have expressed interest in conducting directed fishing for squids in the past, the actual number of small entities that would be adversely impacted by this proposed rule is likely zero or very few. Vessel operators may continue to catch and retain squids in the BSAI and GOA groundfish fisheries as long as they maintain their catch within the 20 percent MRA.

For operators of vessels currently participating in these fisheries, the economic impacts of this proposed rule are primarily beneficial or neutral. Removing squids from the BSAI target species category would remove the squids TAC from inclusion in the 2 million mt optimum yield (OY) cap in the BSAI. The amount of the OY cap that has been reserved for squids would be available to increase the TAC limit or limits for other BSAI target species. This effect would benefit participants in the BSAI fisheries that experience TAC increases relative to what the TACs would have been without this proposed rule. Some of the entities that experience benefits from increased TACs in the future may be small entities. The effects on target species TACs would be neutral for the GOA fisheries, as the OY has not constrained TACs in the GOA to date. Therefore, removing the squids TAC in the GOA will not allow for an increase in the TAC for another target species.

For participants in the Bering Sea pollock fishery, moving squids from the target species category to the EC category will remove the squid OFL as a potential constraint for the Bering Sea pollock fishery, thereby increasing the flexibility of the Bering Sea pollock fishery participants to focus on minimizing the bycatch of salmon and other PSC in the pollock fisheries. Removing this constraint would reduce the costs associated with trying to simultaneously minimize the incidental catch of squid and the incidental catch of salmon and other PSC. However, none of the directly regulated entities in the Bering Sea pollock fishery are considered small entities because all of them are affiliated through either ownership or membership in a cooperative and, when considered together, have annual gross receipts that exceed $11.0 million annually.

Under this proposed rule, requirements for recording and reporting the catch, discard, and production of squid in logbooks or on catch or production reports will be maintained as they are in existing regulations. The proposed rule would make only minor modifications to clarify the recordkeeping and reporting requirements in § 679.5, Table 2a to 50 CFR part 679, and Table 2c to 50 CFR part 679. Therefore, moving squids from the target species category to the EC category will not change recordkeeping and reporting costs for fishery participants or impose any additional or new costs on participants.

No duplication, overlap, or conflict between this proposed rule and existing Federal rules has been identified.

The Council and NMFS considered three alternatives. Among the three alternatives, Alternative 2 Option 3 (the preferred alternative) provides the most economic benefits to current participants in the BSAI and GOA groundfish fisheries. The primary economic benefit of this proposed rule is to reduce the potential constraints imposed by the OFLs, ABCs, and TACs for squids on BSAI and GOA groundfish fisheries. Among the three options considered for the squids MRA (20 percent, 10 percent, and 2 percent), the 20 percent MRA that was selected minimizes the economic impact on any fishing vessel that is a small entity because it provides the greatest opportunity to retain squid as incidental catch in other groundfish fisheries.

Alternative 1 is the no action alternative and would continue to classify squids as target species in the groundfish FMPs. OFLs, ABCs, and TACs would continue to be set for squids as a species group in both the BSAI and GOA. Relative to Alternative 2, Alternative 1 could be considered less beneficial to small entities because all catch specifications would need to be maintained, and current constraints on the BSAI and GOA groundfish fisheries would continue. However, Alternative 2 (the proposed rule) also could be considered more restrictive to small entities than Alternative 1 if the prohibition on directed fishing for squids under the proposed rule limits future participants' ability to conduct directed fishing for squids more so than would occur under the status quo. Alternative 1 allows NMFS to determine annually whether to open a directed fishery for squids.

Alternative 2 would classify squids in the BSAI and GOA in the EC category and implement a regulation prohibiting directed fishing for squids that could only be revised through subsequent rulemaking. However, the Council recommended and NMFS proposes that the benefits of the proposed rule to current fishery participants, including small entities, outweigh the potential future adverse impacts of the prohibition against directed fishing for squids. In addition, this provision can be re-evaluated by the Council and NMFS in the future if fishery participants want to develop directed fisheries for squids.

Alternative 3 would classify squids in the groundfish FMPs as “non-target” species, in which case OFLs and ABCs would still be established but TAC would no longer be specified. Relative to Alternative 2, Alternative 3 is less beneficial to small entities because certain catch specifications and their associated fishery constraints would still need to be maintained. When comparing Alternatives 1 and 3, Alternative 3 would remove the requirement for setting TACs; however, the current potential constraints on other groundfish fisheries if an OFL or ABC for squids were achieved would continue, and therefore Alternative 3 is only slightly more beneficial than Alternative 1 to small entities.

This proposed rule refers to collection-of-information (“recordkeeping and reporting”) requirements approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). The relevant information collections are approved under OMB control number 0648-0213 (Alaska Region Logbook Family of Forms) and OMB control number 0648-0515 (Alaska Interagency Electronic Reporting System). The proposed rule would make minor revisions to these information collection requirements to clarify the location of the species code for squids in the tables to 50 CFR part 679. These revisions do not change the public reporting burden of the approved information collections or require revisions to the currently approved supporting statements for these collections.

Send comments on these or any other aspects of the collection of information to NMFS Alaska Region at the ADDRESSES above, by email to [email protected], or by fax to (202) 395-5806.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at http://www.cio.noaa.gov/services_programs/prasubs.html.

For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows: