        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 170714670-8309-01]
        RIN 0648-BH05
        Fisheries of the Exclusive Economic Zone Off Alaska; Reclassifying Squid Species in the BSAI and GOA

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes regulations to implement Amendment 117 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP), Amendment 106 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP), and to update the species codes for octopus. This proposed rule would prohibit directed fishing for the squid species complex (squids) by Federally permitted groundfish fishermen and specify a squid retention limit in the GOA groundfish fisheries consistent with the existing BSAI squid retention limit, and would make minor corrections to the octopus species codes. This rule is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the groundfish FMPs, and other applicable laws.

          DATES:
          Comments must be received no later than May 11, 2018.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2017-0090 by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0090, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          Electronic copies of Amendment 117 to the BSAI FMP, Amendment 106 to the GOA FMP, and the Environmental Assessment/Regulatory Impact Review (collectively the “Analysis”) prepared for this action may be obtained from www.regulations.gov.

          Electronic copies of the Initial Regulatory Flexibility Analyses for the BSAI and GOA Groundfish Harvest Specifications for 2018-2019 may be obtained from www.regulations.gov.

          Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted by mail to NMFS at the above address; by email to OIRA_Submission@omb.eop.gov; or by fax to 202-395-5806.

          FOR FURTHER INFORMATION CONTACT:
          Megan Mackey, 907-586-7228.

        SUPPLEMENTARY INFORMATION:

        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.
        Background
        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.
        Stock Classification in FMPs and a Brief History of This Proposed Action
        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).
        Determining Which Species Require Conservation and Management
        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.
        Amendments 117/106 to the FMPs
        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.
        Proposed Rule
        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.
        Classification
        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.
        Regulatory Impact Review (RIR)

        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.
        Initial Regulatory Flexibility Analysis (IRFA)
        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.
        Number and Description of Small Entities Regulated by This Proposed Rule

        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.
        Recordkeeping, Reporting, and Other Compliance Requirements

        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.
        Duplicate, Overlapping, or Conflicting Federal Rules
        No duplication, overlap, or conflict between this proposed rule and existing Federal rules has been identified.
        Description of Significant Alternatives That Minimize Adverse Impacts on Small Entities
        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.
        Collection-of-Information Requirements
        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 OIRA_Submission@omb.eop.gov, 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.

          List of Subjects in 50 CFR Part 679
          Alaska, Fisheries, Recordkeeping and reporting requirements.

          Dated: April 6, 2018.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

          PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

        1. The authority citation for part 679 continues to read as follows:

          Authority:
           16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108-447; Pub. L. 111-281.

        2. In § 679.2, add a definition for “Squids” in alphabetical order to read as follows:

          § 679.2
           Definitions.

            Squids (see Table 2c to this part and § 679.20(i)).

        3. In § 679.5, revise paragraph (a)(3) introductory text, and paragraphs (c)(3)(vi)(F), and (c)(4)(vi)(E) to read as follows:

          § 679.5
           Recordkeeping and reporting (R&R).
          (a) * * *
          (3) Fish to be recorded and reported. The operator or manager must record and report the following information (see paragraphs (a)(3)(i) through (iv) of this section) for all groundfish (see Table 2a to this part), prohibited species (see Table 2b to this part), forage fish (see Table 2c to this part), grenadiers (see Table 2c to this part), and squids (see Table 2c to this part). The operator or manager may record and report the following information (see paragraphs (a)(3)(i) through (iv) of this section) for non-groundfish (see Table 2d to this part):

          (c) * * *
          (3) * * *
          (vi) * * *
          (F) Species codes. The operator must record and report required information for all groundfish (see Table 2a to this part), prohibited species (see Table 2b to this part), forage fish (see Table 2c to this part), grenadiers (see Table 2c to this part), and squids (see Table 2c to this part). The operator may record and report information for non-groundfish (see Table 2d to this part).

          (4) * * *
          (vi) * * *
          (E) Species codes. The operator must record and report required information for all groundfish (see Table 2a to this part), prohibited species (see Table 2b to this part), forage fish (see Table 2c to this part), grenadiers (see Table 2c to this part), and squids (see Table 2c to this part). The operator may record and report information for non-groundfish (see Table 2d to this part).

        4. In § 679.20, revise paragraph (b)(2) introductory text, paragraph (i) heading, and paragraphs (i)(3), (i)(4), and (i)(5) to read as follows:

          § 679.20
           General limitations.

          (b) * * *
          (2) GOA. Initial reserves are established for pollock, Pacific cod, flatfish, octopuses, sharks, and sculpins, which are equal to 20 percent of the TACs for these species or species groups.

          (i) Forage fish, grenadiers, and squids.

          (3) Closure to directed fishing. Directed fishing for forage fish, grenadiers, and squids is prohibited at all times in the BSAI and GOA.
          (4) Limits on sale, barter, trade, and processing. The sale, barter, trade, or processing of forage fish, grenadiers, and squids is prohibited, except as provided in paragraph (i)(5) of this section.
          (5) Allowable fishmeal production. Retained catch of forage fish, grenadiers, or squids not exceeding the maximum retainable amount may be processed into fishmeal for sale, barter, or trade.

        5. In § 679.22, revise paragraph (i) to read as follows:

          § 679.22
           Closures.

          (i) Forage fish, grenadiers, and squids closures. See § 679.20(i)(3).

        6. Revise Table 2a to part 679 to read as follows:

          Table 2a to Part 679—Species Codes: FMP Groundfish

            Species description
            Code

            Atka mackerel (greenling)
            193

            Flatfish, miscellaneous (flatfish species without separate codes)
            120

            Flounder:

            Alaska plaice
            133

            Arrowtooth
            121

            Bering
            116

            Kamchatka
            117

            Starry
            129

            Octopuses
            870

            Pacific cod
            110

            Pollock
            270

            Rockfish:

            Aurora (Sebastes aurora)
            185

            Black (BSAI) (S. melanops)
            142

            Blackgill (S. melanostomus)
            177

            Blue (BSAI) (S. mystinus)
            167

            Bocaccio (S. paucispinis)
            137

            Canary (S. pinniger)
            146

            Chilipepper (S. goodei)
            178

            China (S. nebulosus)
            149

            Copper (S. caurinus)
            138

            Darkblotched (S. crameri)
            159

            Dusky (S. variabilis)
            172

            Greenstriped (S. elongatus)
            135

            Harlequin (S. variegatus)
            176

            Northern (S. polyspinis)
            136

            Pacific Ocean Perch (S. alutus)
            141

            Pygmy (S. wilsoni)
            179

            Quillback (S. maliger)
            147

            Redbanded (S. babcocki)
            153

            Redstripe (S. proriger)
            158

            Rosethorn (S. helvomaculatus)
            150

            Rougheye (S. aleutianus)
            151

            Sharpchin (S. zacentrus)
            166

            Shortbelly (S. jordani)
            181

            Shortraker (S. borealis)
            152

            Silvergray (S. brevispinis)
            157

            Splitnose (S. diploproa)
            182

            Stripetail (S. saxicola)
            183

            Thornyhead (all Sebastolobus species)
            143

            Tiger (S. nigrocinctus)
            148

            Vermilion (S. miniatus)
            184

            Widow (S. entomelas)
            156

            Yelloweye (S. ruberrimus)
            145

            Yellowmouth (S. reedi)
            175

            Yellowtail (S. flavidus)
            155

            Sablefish (blackcod)
            710

            Sculpins
            160

            Sharks:

            Other (if salmon, spiny dogfish or Pacific sleeper shark—use specific species code)
            689

            Pacific sleeper
            692

            Salmon
            690

            Spiny dogfish
            691

            Skates:

            Alaska (Bathyraja parmifera)
            703

            Aleutian (B. aleutica)
            704

            Whiteblotched (B. maculate)
            705

            Big (Raja binoculata)
            702

            Longnose (R. rhina)
            701

            Other (if Alaska, Aleutian, whiteblotched, big, or longnose skate—use specific species code)
            700

            Sole:

            Butter
            126

            Dover
            124

            English
            128

            Flathead
            122

            Petrale
            131

            Rex
            125

            Rock
            123

            Sand
            132

            Yellowfin
            127

            Turbot, Greenland
            134

        7. Revise Table 2c to part 679 to read as follows:

          Table 2c to Part 679—Species Codes: FMP Forage Fish Species (All Species of the Following Families), Grenadier Species, and Squids

            Species Identification
            Code

            Forage Fish:

            Bristlemouths, lightfishes, and anglemouths (family Gonostomatidae)
            209

            Capelin smelt (family Osmeridae)
            516

            Deep-sea smelts (family Bathylagidae)
            773

            Eulachon smelt (family Osmeridae)
            511

            Gunnels (family Pholidae)
            207

            Krill (order Euphausiacea)
            800

            Lanternfishes (family Myctophidae)
            772

            Pacific Sand fish (family Trichodontidae)
            206

            Pacific Sand lance (family Ammodytidae)
            774

            Pricklebacks, war-bonnets, eelblennys, cockscombs and Shannys (family Stichaeidae)
            208

            Surf smelt (family Osmeridae)
            515

            Grenadiers:

            Giant Grenadiers (Albatrossia pectoralis)
            214

            Other Grenadiers
            213

            Squid:

            Squids
            875

         BILLING CODE 3510-22-P
        8. Revise Table 10 to part 679 to read as follows:

          EP11AP18.001

          EP11AP18.002

          EP11AP18.003

         BILLING CODE 3510-22-C
        9. Revise Table 11 to part 679 to read as follows:

          EP11AP18.004

      [FR Doc. 2018-07510 Filed 4-10-18; 8:45 am]
       BILLING CODE 3510-22-P


        DEPARTMENT OF DEFENSE
        Department of the Army, Corps of Engineers
        33 CFR Part 334
        Atlantic Ocean South of Entrance to Chesapeake Bay off Camp Pendleton, Virginia; Firing Range

          AGENCY:
          U.S. Army Corps of Engineers, DoD.

          ACTION:
          Notice of proposed rulemaking and request for comments.

          SUMMARY:

          The Corps of Engineers is proposing to establish a permanent danger zone in waters of the Atlantic Ocean south of Rudee Inlet in Virginia Beach, Virginia. The Camp Pendleton firing range supports a myriad of stakeholders that include all components of the Department of Defense, including: US Army, Army National Guard, Army Reserve, US Navy, Navy Reserve, US Marine Corps, US Marine Corps Reserve, US Air Force, Air Force National Guard, Air Force Reserve, US Coast Guard, and Coast Guard Reserve, as well as many non-DoD units. Camp Pendleton, VA will provide an economical, safe training environment for individual live fire exercises, and collective units to conduct the minimum requirements for weapons qualification. The proposed danger zone will increase the level of safety to the public in the vicinity of the live firing operations by providing additional notice of the hazards present.

          DATES:
          Written comments must be submitted on or before July 22, 2015.

          ADDRESSES:
          You may submit comments, identified by docket number COE-2015-0006, by any of the following methods:

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

            Email: david.b.olson@usace.army.mil. Include the docket number, COE-2015-0006, in the subject line of the message.

            Mail: U.S. Army Corps of Engineers, Attn: CECW-CO-R (David B. Olson), 441 G Street NW., Washington, DC 20314-1000.

            Hand Delivery/Courier: Due to security requirements, we cannot receive comments by hand delivery or courier.

            Instructions: Direct your comments to docket number COE-2015-0006. All comments received will be included in the public docket without change and may be made available on-line at http://www.regulations.gov, including any personal information provided, unless the commenter indicates that the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through regulations.gov or email. The regulations.gov Web site is an anonymous access system, which means we will not know your identity or contact information unless you provide it in the body of your comment. If you send an email directly to the Corps without going through regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, we recommend that you include your name and other contact information in the body of your comment and also include your contact information with any disk or CD-ROM you submit. If we cannot read your comment because of technical difficulties and cannot contact you for clarification, we may not be able to consider your comment. Electronic comments should avoid the use of any special characters, any form of encryption, and be free of any defects or viruses.

            Docket: For access to the docket to read background documents or comments received, go to www.regulations.gov . All documents in the docket are listed. Although listed in the index, some information is not publicly available, such as CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form.

          FOR FURTHER INFORMATION CONTACT:
          Mr. David Olson, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202-761-4922, or Ms. Nicole Woodward, Corps of Engineers, Norfolk District, Regulatory Branch, at 757-201-7122.

        SUPPLEMENTARY INFORMATION:
        Pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), the Corps of Engineers is proposing amendments to regulations in 33 CFR part 334 to establish a permanent danger zone in waters of the Atlantic Ocean, south of the entrance to Chesapeake Bay off Camp Pendleton, Virginia. The proposed establishment of a permanent danger zone is necessary to protect the public from hazards associated with live firing operations.
        Procedural Requirements
        a. Review under Executive Order 12866.
        This proposed rule is issued with respect to a military function of the Defense Department and the provisions of Executive Order 12866 do not apply.
        b. Review Under the Regulatory Flexibility Act

        This proposed rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354). The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities (i.e., small businesses and small governments). The danger zone is necessary to protect public safety and satisfy Department of Defense operations requirements for weapons training. Small entities can utilize other navigable waters outside of the danger zone when the danger zone is activated. After considering the economic impacts of this proposed danger zone regulation on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. We are interested in the potential impacts of the danger zone on small entities and welcome comments on issues related to such impacts.
        c. Review Under the National Environmental Policy Act
        Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps expects that this regulation, if adopted, will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments have been received and considered.
        d. Unfunded Mandates Act
        This proposed rule does not impose an enforceable duty among the private sector and, therefore, it is not a Federal private sector mandate and it is not subject to the requirements of either Section 202 or Section 205 of the Unfunded Mandates Act. We have also found under Section 203 of the Act, that small governments will not be significantly and uniquely affected by this rulemaking.

          List of Subjects in 33 CFR Part 334
          Danger zones, Marine safety, Navigation (water), Restricted areas, Waterways.

        For the reasons set out in the preamble, the Corps proposes to amend 33 CFR part 334 as follows:

          PART 334—DANGER ZONE AND RESTRICTED AREA REGULATIONS

        1. The authority citation for 33 CFR part 334 continues to read as follows:

          Authority:
           40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 U.S.C. 3).

        2. Add § 334.405 to read as follows:

          § 334.405
          South of entrance to Chesapeake Bay off Camp Pendleton, Virginia; firing range.
          (a) The danger zone. The danger zone encompasses all navigable waters of the United States as defined at 33 CFR part 329, within the area bounded by a line connecting the following coordinates: Commencing from the shoreline at latitude 36°49′00″ N., longitude 75°58′04″ W.; thence to latitude 36°49′19″ N., longitude 75°57′41″ W.; thence to latitude 36°49′21″ N., longitude 75°57′32″ W.; thence to latitude 36°49′13″ N., longitude 75°56′44″ W.; thence to latitude 36°49′22″ N., longitude 75°55′48″ W.; thence to latitude 36°49′12″ N., longitude 75°55′46″ W.; thence to latitude 36°49′02″ N., longitude 75°55′45″ W.; thence to latitude 36°48′52″ N., longitude 75°55′45″ W.; thence to latitude 36°48′54″ N., longitude 75°56′42″ W.; thence to latitude 36°48′41″ N., longitude 75°57′28″ W.; thence to latitude 36°48′41″ N., longitude 75°57′37″ W.; thence to latitude 36°48′57″ N., longitude 75°58′04″ W. The datum for these coordinates is WGS84.
          (b) The regulations. (1) Persons and vessels shall proceed through the area with caution and shall remain therein no longer than necessary for purpose of transit.
          (2) When firing is in progress during daylight hours, red flags will be displayed at conspicuous locations on the beach. No firing will be done during the hours of darkness or low visibility.
          (3) Firing on the ranges shall be suspended as long as any persons or vessels are within the danger zone.
          (4) Lookout posts shall be manned by the activity or agency operating the firing range State Military Reservation, Camp Pendleton.
          (5) There shall be no firing on the range during periods of low visibility which would prevent the recognition of a person or vessel (to a distance of 7,500 yards) which is properly displaying navigation lights, or which would preclude a vessel from observing the red range flags or lights.
          (c) Enforcement. The regulations in this section shall be enforced by the Adjutant General of Virginia, and such agencies as he or she may designate.

          Dated: June 12, 2015.
          Edward E. Belk, Jr.,
          Chief, Operations and Regulatory Division, Directorate of Civil Works.

      [FR Doc. 2015-15293 Filed 6-19-15; 8:45 am]
       BILLING CODE 3720-58-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R08-OAR-2019-0064; FRL-9995-24-Region 8]
        South Dakota; Proposed Approval of Revisions to the State Air Pollution Control Rules and to the Permitting Rules for the Prevention of Significant Deterioration

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) and Operating Permit Program revisions submitted by the State of South Dakota on October 23, 2015, related to South Dakota's Air Pollution Control Program. The October 23, 2015 submittal revises certain definitions in the Prevention of Significant Deterioration (PSD) permitting rules and general definition section related to greenhouse gases (GHGs). In this rulemaking, we are proposing action on portions of the October 23, 2015 submittal, which were not acted on in our previous final rulemaking published on October 13, 2016. The effect of this rulemaking is to ensure that certain definitions in South Dakota's PSD rules are in compliance with the federal PSD requirements. This action is being taken under the Clean Air Act (CAA).

          DATES:
          Written comments must be received on or before July 29, 2019.

          ADDRESSES:

          Submit your comments, identified by Docket ID No. EPA-R08-OAR-2019-0064 to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from www.regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

            Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air and Radiation Division, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. The EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal holidays.

          FOR FURTHER INFORMATION CONTACT:

          Kevin Leone, Air Quality Planning Branch, EPA, Region 8, Mailcode 8ARD-QP, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6227, leone.kevin@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
        I. Background
        On June 3, 2010 (75 FR 31514), the EPA published a final rule, known as the GHG Tailoring Rule, which, with respect to the CAA PSD permitting program, phased in permitting requirements for GHG emissions from stationary sources. Under its interpretation of the CAA at the time, the EPA determined it was necessary to avoid an unmanageable increase in the number of sources that would be required to obtain PSD permits under the CAA because the sources emitted or had the potential to emit GHGs at or above the applicable major source and major modification thresholds. In Step 1 of the GHG Tailoring Rule, the EPA limited application of PSD requirements to sources only if they were subject to PSD “anyway” due to the emissions of other non-GHG pollutants. These sources were referred to as “anyway” sources. In Step 2 of the GHG Tailoring Rule, the EPA applied the PSD permitting requirements under the CAA to sources that were classified as major based solely on their GHG emissions or potential to emit GHGs, and to modifications of otherwise major sources that require a PSD permit because they increased only GHG emissions above the level in the EPA regulations.

        On June 23, 2014, the United States Supreme Court addressed the application of PSD and Title V permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427 (2014). The Supreme Court held that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source (or a modification thereof) and thus required to obtain a PSD or title V permit. With respect to PSD, the Court also held that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs (anyway sources), contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT).

        In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) issued an amended judgment effectively vacating the regulations that implemented Step 2 of the EPA's GHG Tailoring Rule. Coalition for Responsible Regulation v. EPA, 606 F. App'x. 6, at 7-8 (D.C. Cir. April 10, 2015) (Amended Judgment). With respect to PSD, Step 2 applied to sources that emitted only GHGs at or above the thresholds triggering the requirement to obtain a PSD permit. The Amended Judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from Step 1 or “anyway sources.” With respect to PSD Step 2 sources, the D.C. Circuit's Amended Judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v), “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification.” The Amended Judgment further ordered that: “the regulations under review be vacated to the extent they require a stationary source to obtain a title V permit solely because the source emits or has the potential to emit greenhouse gases above the applicable major source thresholds.”
        In accordance with the D.C. Circuit's Amended Judgment, on August 19, 2015 (80 FR 50199), the EPA published a final rulemaking titled: “Prevention of Significant Deterioration and Title V Permitting for Greenhouse Gases: Removal of Vacated Elements.” In this rulemaking, the EPA removed GHG Tailoring Rule Step 2 PSD permitting requirements in 40 CFR 51.166(b)(48)(v) and 40 CFR 52.21(b)(49)(v) from the CFR.
        As mentioned, the Amended Judgment specifically ordered that certain EPA regulations under review (including 40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v)) be vacated. In the EPA's final rulemaking titled “Prevention of Significant Deterioration and Title V Permitting for Greenhouse Gases: Removal of Certain Vacated Elements,” which was published on August 19, 2015 (80 FR 50199), we state:

          This final action removes from the CFR several provisions of the PSD and title V permitting regulations that were originally promulgated as part of the Tailoring Rule and that the D.C. Circuit specifically identified as vacated in the Coalition Amended Judgment. Because the D.C. Circuit specifically identified the Tailoring Rule Step 2 PSD permitting requirements in 40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v) and the regulations that require the EPA to consider further phasing-in the GHG permitting requirements at lower GHG emission thresholds in 40 CFR 52.22, 70.12 and 71.13 as vacated, the EPA is taking the ministerial action of removing these provisions from the CFR.

        EPA further states:

          The EPA intends to further revise the PSD and title V regulations to fully implement the Coalition Amended Judgment in a separate rulemaking. This future rulemaking will include revisions to additional definitions in the PSD regulations.

        South Dakota's PSD preconstruction permitting program consists of sections 74-36-09-01 through 74-36-09-03. The State's submittal incorporated by reference as of October 23, 2015, the revisions to remove the GHG Tailoring Rule Step 2 PSD permitting requirements in 40 CFR 52.21(b)(49)(v) from their state implementation plan (SIP) in 74:36:09:02(7)-(9) (removing 40 CFR 52.21(b)(49)(v) as well as the references to 40 CFR 52.21(b)(49)(v)). These revisions were approved in 81 FR 70626 and published on October 13, 2016 (see docket).
        In this action we propose to approve two additional revisions contained in the State's 2015 submittal: South Dakota's revision to the definition of “subject to regulation” in 74:36:01:01(73) 1
           and the addition of the new provision in 74:36:09-02(10).2
           In our October 13, 2016 action, we did not act on South Dakota's revisions in 74:36:01:01(73) because it revises the definition of “regulated NSR pollutant” and 74:36:09(02)(10) revises language in § 52.21(b)(49)(iv)(b) related to “regulated NSR pollutant.” The EPA determined that it was not appropriate to act on any revisions related to definitions as a result of the court's decision at that time because, as mentioned above, the EPA's final rulemaking titled “Prevention of Significant Deterioration and Title V Permitting for Greenhouse Gases: Removal of Certain Vacated Elements” stated that a future rulemaking will include revisions to additional definitions in the PSD regulations.

            1 The State's proposed rule changes appear in the document titled “Appendix A, Proposed Amendment to ARSD 74-36—Air Pollution Control Program”, which is in the Docket. Appendix A, p. A-14, PDF p. 431.

            2 Appendix A, p. A-175, PDF p. 330.

        On October 3, 2016, the EPA proposed the additional definition revisions in “Revisions to the Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas (GHG) Permitting Regulations and Establishment of a Significant Emissions Rate (SER) for GHG Emissions Under the PSD Program.” 81 FR 68110. In the 2016 action, the EPA proposed to revise certain definitions in the PSD permitting regulations to fully implement the Amended Judgment. Specifically, we proposed the following.
        • The first revision would revise the definitions of “major stationary source” and “major modification” by repealing all parts of the definition of “subject to regulation”, except for the first paragraph, which simply serves to codify our interpretation of the term “subject to regulation.” Thus, this rulemaking simply proposed retention of the first paragraph in the definition of “subject to regulation” at 40 CFR 51.166(b)(48) and 52.21(b)(49) and proposed adding a sentence explaining that pollutants subject to regulation include, but are not limited to, greenhouse gases.

        • The second revision would establish a freestanding definition of the term “greenhouse gases” at 40 CFR 51.166(b)(31) and 52.21(b)(32). Previously, the definition of this pollutant was located within the definition of “subject to regulation” and the EPA simply proposed to move the language that defined GHGs into an independent definition for the term “greenhouse gases,” including the method to compute tons per year CO2 equivalent emissions (CO2e). We explained that this proposed change to the EPA's definition of GHG in the PSD permitting rules does not change the meaning of the term, as it will be the exact same language as in the existing regulations.3

            3 We note that EPA's proposed rulemaking covered additional revisions, which are not relevant to the State's submission. EPA has not finalized this proposal.

        Because South Dakota's revisions are consistent with the D.C. Circuit's amended judgement, the EPA's October 3, 2016, proposed rulemaking does not need to be finalized in order for us to approve South Dakota's revisions.
        II. The EPA's Evaluation
        A. Chapter 74:36:01:01—Definitions
        We are proposing approval to the changes in 74:36:01:01(73). Chapter 74:36:01:01 defines the terms used throughout Article 74:36—Air Pollution Control Program. The State updated 74:36:01:01(73) to reflect the D.C. Circuit's Amended Judgment. In particular, South Dakota modified the definition of “subject to regulation” by striking the reference to the definition of “subject to regulation” in the part 70 rules (40 CFR 70.2) and replacing it with: “Subject to regulation means, for any air pollutant, that the pollutant is subject to either a provision in the Clean Air Act, or a nationally-applicable regulation codified by the Administrator in subchapter C of this chapter, that requires actual control of the quantity of emissions of that pollutant, and that such a control requirement has taken effect and is operative to control, limit or restrict the quantity of emissions of that pollutant released from the regulated activity. Greenhouse gases are not subject to regulation unless a PSD preconstruction permit is issued regulating greenhouse gases in accordance with chapter 74:36:09.”
        The State's definition of “subject to regulation” retains the first paragraph in § 52.21(b)(49), which codifies the interpretation of the term “subject to regulation,” which has the effect of revising the definitions of “major stationary source” and “major modification.” In adopting only the first paragraph of § 52.21(b)(49), the State's definition excludes the exceptions to the definition of “subject to regulation” provisions in 40 CFR 52.21(b)(49)(i)-(iv). Those provisions are relevant for the PSD program and are found elsewhere in the State's PSD rules.4
           The State also added the following sentence to the end of the definition of “subject to regulation”: “[g]reenhouse gases are not subject to regulation unless a PSD preconstruction permit is issued regulating greenhouse gases accordance with chapter 74:36:09.” We propose to approve this additional sentence because we do not believe it would reduce the stringency of the SIP definition of “subject to regulation,” as compared to the revised definitions in our “Prevention of Significant Deterioration and Title V Permitting for Greenhouse Gases: Removal of Vacated Elements” rulemaking, and because it is consistent with the Amended Judgment.

            4 Our October 13, 2016 final action (81 FR 70626) approved the following exception to the State's adoption by reference of the PSD rules. 74:36:09:02(7)-(9), adopts by reference the term “Subject to regulation” in 40 CFR 52.21(b)(49), which includes § 52.21(b)(49)(i)-(iv) and conforming amendments, but not § 52.21(b)(49)(v). We note that our 2016 final action did not include a revision the EPA proposed in response to the Amended Judgment that adds a sentence to the end of the first paragraph of 40 CFR 52.21(b)(49) (“Pollutants subject to regulation include, but are not limited to, greenhouse gases as defined in paragraph (b)(32) of this section”). 81 FR 68143. Even if EPA were to finalize its proposal, we do not believe this additional sentence is needed in the South Dakota regulations because the definition applies to all sources, including non-PSD sources, and “Subject to regulation” for purposes of PSD is adopted by reference elsewhere in the State's rules.

        Additionally, the State's revision to 74:36:01:01(73) removed and replaced the reference in that section to the definition of “subject to regulation” in 40 CFR 70.2, which we propose to approve in light of the Amended Judgment, which, in effect, ordered the vacatur of the requirement in the part 70 regulations that a stationary source obtain a title V permit solely because it emits or has the potential to emit GHGs above the title V major source threshold. This modification is approvable because it is consistent with the Amended Judgment, which describes the CAA permitting authority regarding GHG emissions, and thus we do not believe it would reduce the stringency of the definition in the SIP compared with the federal definitions of “subject to regulation” found in § 51.166(b)(48), § 52.21(b)(49), and § 70.2.
        B. Chapter 74:36:09—Prevention of Significant Deterioration

        We are proposing approval to the addition of 74:36:09:02(10). Chapter 74:36:09 is South Dakota's PSD preconstruction program for major sources located in areas of the State that are designated attainment for the federal national ambient air quality standards (NAAQS) identified in 74:36:02, which adopts the EPA's PSD rules in 40 CFR 52.21 by reference, noting certain differences. The EPA approved the PSD preconstruction permitting program in South Dakota's SIP. South Dakota's October 23, 2015 submittal added 74:36:09:02(10) as an additional difference from the federal rules, which states that for the purposes of this section, 40 CFR 52.21(b)(49)(iv)(b), the term “also will have an emissions increase of a regulated NSR pollutant” means “also will have a major modification of a regulated NSR pollutant that is not GHGs.” This provision amends one of the exceptions to the definition of “subject to regulation” in the State's PSD rules (“Beginning January 2, 2011, the pollutant GHGs is subject to regulation if: . . . [t]he stationary source is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO2e or more”). The State's change was not included in either of the EPA's recent actions to amend the PSD applicability rules for GHG emissions (80 FR 50199 and 81 FR 68110, described above). Nevertheless, we propose to approve the change because it is consistent with the intent of our federal rules since the regulatory definition of “major modification” found at [insert either 40 CFR 52.21(b)(2)(i) or South Dakota's equivalent rule provision] is essentially equivalent in meaning to the term “emissions increase” as it is defined at 40 CFR 52.21(b)(49)(iii). This change reflects the D.C. Circuit's Amended Judgment in that 74:36:09:02(10) merely emphasizes that a source has to trigger PSD for a non-GHG pollutant before GHGs can become subject to regulation. This modification is approvable because it does not reduce the stringency of the federal definition of “subject to regulation” found in § 51.166(b)(48) and § 52.21(b)(49).
        III. Proposed Action
        For the reasons described in section II of this proposed rulemaking, the EPA is proposing to approve the revisions submitted by South Dakota on October 23, 2015, which were not acted on in 81 FR 70626. Our action is based on an evaluation of South Dakota's revisions against the requirements of CAA sections 110(a)(2)(c) and 502(b), and regulatory requirements under 40 CFR 51.160-164, 40 CFR 51.166, 40 CFR 52.21, 40 CFR part 70 and the D.C. Circuit's Amended Judgment.
        IV. Consideration of Section 110(l) of the CAA
        Under section 110(l) of the CAA, the EPA cannot approve a SIP revision if the revision would interfere with any applicable requirements concerning attainment and reasonable further progress (RFP) toward attainment of the NAAQS, or any other applicable requirement of the Act. In addition, section 110(l) requires that each revision to an implementation plan submitted by a state shall be adopted by the state after reasonable notice and public hearing.
        The South Dakota SIP revisions that the EPA proposes to approve do not interfere with any applicable requirements of the Act. The revisions to the Administrative Rules of South Dakota (ARSD) 74:36:09:02(10) and 74:36:01(73) submitted by South Dakota on October 23, 2015, ensure South Dakota's PSD program is in compliance with the federal PSD requirements. Therefore, CAA section 110(l) requirements are satisfied.
        V. Incorporation by Reference

        In this rule, the EPA proposes to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA proposes to incorporate by reference the ARSD rules promulgated in 74:36, as described in section II of this preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 8 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).
        VI. Statutory and Executive Order Reviews
        Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
        • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
        • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

        • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
        • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
        • Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
        • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
        • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
        • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
        • Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
        In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed 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).

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Greenhouse gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

          Authority:
          42 U.S.C. 7401 et seq.

          Dated:  June 21, 2019.
          Debra H. Thomas,
          Regional Administrator, Region 8.

      [FR Doc. 2019-13636 Filed 6-26-19; 8:45 am]
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        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 81
        [CA119-FFA; FRL-7800-4]
        Finding of Failure To Attain; Imperial Valley Planning Area; California; Particulate Matter of 10 Microns or Less

          AGENCY:
          Environmental Protection Agency.

          ACTION:
          Proposed rule.

          SUMMARY:
          EPA is today proposing to find under the Clean Air Act (CAA) that the Imperial Valley Planning Area (Imperial Valley) failed to attain the National Ambient Air Quality Standards (NAAQS) for particulate matter of 10 microns or less (PM-10) by the serious area statutory deadline of December 31, 2001.
          Separately in today's Federal Register, EPA is publishing its final action in response to a recent Ninth Circuit Court order compelling EPA to reclassify the Imperial Valley PM-10 nonattainment area from moderate to serious because the area failed to meet the moderate area attainment date of December 31, 1994.
          The proposed finding of failure to attain the serious area attainment date of December 31, 2001, is based on monitored air quality data for the PM-10 NAAQS from January 1999 through December 2001. If EPA takes final action finding that Imperial Valley failed to attain, the State of California must submit within one year of publication of the final action, a plan that provides for attainment of the PM-10 NAAQS and that achieves at least 5 percent annual reductions in PM-10 or PM-10 precursor emissions as required by CAA section 189(d).

          DATES:
          Comments on this proposed action must be received by September 10, 2004.

          ADDRESSES:

          Send comments to David Wampler, Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901 or e-mail to wampler.david@epa.gov, or submit comments at http://www.regulations.gov.

          You can inspect and copy the docket for this action at our Region IX office during normal business hours (see address below). Due to increased security, we suggest that you call at least 24 hours prior to visiting the Regional Office so that we can make arrangements to have someone meet you. The Federal Register notice is also available as an electronic file on EPA's Region 9 Web page at http://www.epa.gov/region09/air.

          Planning Office (AIR-2), Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105.

          FOR FURTHER INFORMATION CONTACT:

          David Wampler, U.S. Environmental Protection Agency, Region 9, Air Division, Planning Office (AIR-2), 75 Hawthorne Street, San Francisco, CA 94105; (415) 972-3975; wampler.david@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Throughout this document, the words “we,” “us,” or “our” mean U.S. EPA.
        I. Background
        Imperial County is located in the southeastern corner of California. It has borders with Mexico to the south, Arizona to the east, and San Diego County to the west. Most of Imperial County falls within the Imperial Valley Planning Area (Imperial Valley). 40 CFR part 81. The local jurisdiction that is responsible for air pollution control is the Imperial County Air Pollution Control District (ICAPCD).

        Upon enactment of the Clean Air Act Amendments of 1990, Imperial Valley was classified as a moderate PM-10 nonattainment area. The CAA requires that moderate areas attain the PM-10 NAAQS by December 31, 1994. CAA section 188(c)(1). Moderate areas failing to attain the NAAQS by the prescribed attainment date must be reclassified as serious under CAA section 188(b)(2). However, CAA section 179(B)(d) provides that any area that establishes to the satisfaction of EPA that it would have attained the PM-10 NAAQS by the applicable attainment date but for emissions emanating from outside the United States, is not subject to the provisions of CAA section 182(b)(2), i.e., reclassification to serious nonattainment.
        In July 2001, ICAPCD and the California Air Resources Board (CARB) submitted evidence that the Imperial Valley would have attained the PM-10 NAAQS by the 1994 attainment date, but for transport from Mexico. On October 19, 2001, EPA made a final finding that Imperial Valley would have attained the PM-10 NAAQS by December 1994 but for PM-10 emissions emanating from Mexico. 66 FR 53106.

        The Sierra Club petitioned for review of our October 2001 final action in the U.S. Court of Appeals for the Ninth Circuit. On October 9, 2003, the Court issued its opinion. Sierra Club v. United States Environmental Protection Agency, et al., 352 F.3d 1186. The Court rejected EPA's factual determination with respect to two days, January 19 and 25, 1993, on which PM-10 exceedances of the 24-Hour PM-10 NAAQS occurred, finding that “[b]ased on the data and the reports in the record, there simply is no possibility that Mexican transport could have caused the observed PM-10 exceedances * * * .” The effect of this conclusion is that Imperial Valley had exceedances of the PM-10 NAAQS that preclude a finding that the area would have attained the NAAQS by 1994. The Court, concluding that further administrative proceedings with respect to the 1994 exceedances would serve no useful purpose, instructed EPA to reclassify Imperial Valley as a serious PM-10 nonattainment area.

        On December 18, 2003, the Ninth Circuit denied a petition for rehearing by ICAPCD, an intervener in the case, slightly revised its October 9, 2003, opinion, and granted ICAPCD's motion to stay the mandate until March 17, 2004, to permit ICAPCD to file a petition for a writ of certiorari in the U.S. Supreme Court. Imperial County did so on March 17, 2004. On June 21, 2004, the Supreme Court declined to hear the case. Imperial County Air Pollution Control District v. Sierra Club, et al., 72 U.S.L.W. 3757. Thereafter the stay was lifted and the mandate issued.
        Accordingly, elsewhere in today's Federal Register, EPA is publishing its final action in response to the Ninth Circuit's October 9, 2003, opinion, finding that Imperial Valley failed to attain the PM-10 NAAQS by the moderate area statutory deadline of December 31, 1994, and reclassifying the area from moderate to serious. All serious PM-10 nonattainment areas were required to attain the standards by no later than December 31, 2001, unless granted a one-time extension of up to five years. CAA section 188(c)(2) and (e).

        II. Proposed Finding of Failure To Attain by December 31, 2001
        A. Clean Air Act Requirements

        EPA has the responsibility, pursuant to CAA sections 179(c) and 188(b)(2), of determining within 6 months of the applicable attainment date (i.e., by June 30, 2002) whether Imperial Valley attained the annual and 24-hour NAAQS. Because June 30, 2002, has passed, EPA must make that determination as soon as practicable. Delaney v. EPA, 898 F.2d 687 (9th Cir. 1990).
        Section 179(c)(1) of the Act provides that determinations of failure to attain are to be based upon an area's “air quality as of the attainment date,” and section 188(b)(2) is consistent with this requirement. EPA determines whether an area's air quality is meeting the PM-10 NAAQS based upon air quality data gathered at monitoring sites in the nonattainment area and entered into EPA's Air Quality System Database (AQS Database). These data are reviewed to determine the area's air quality status in accordance with EPA regulations at 40 CFR part 50, appendix K.
        Pursuant to appendix K, attainment of the annual PM-10 NAAQS is achieved when the expected annual arithmetic mean PM-10 concentration at each monitoring site in the area is less than or equal to the level of the standard (50 μg/m3). Attainment of the 24-hour PM-10 NAAQS is achieved when the expected number of exceedances of the 24-hour NAAQS (150 μg/m3) per year at each monitoring site is less than or equal to one. A total of three consecutive years of clean air quality data is generally necessary to show attainment of the annual and 24-hour standards for PM-10. A complete year of air quality data, as referred to in 40 CFR part 50, appendix K, is comprised of all four calendar quarters with each quarter containing data from at least 75 percent of the scheduled sampling days.
        B. Ambient Air Monitoring Data

        The ambient air quality network in Imperial Valley consists of PM-10 monitoring stations throughout the Valley. For a map with locations of the current monitors please see: http://www.arb.ca.gov/aqd/namslams/ss.pdf. In general, PM-10 data from these monitoring stations are collected on a regular basis and reported to our AQS Database.
        1. Annual PM-10 Standard
        According to data in the AQS database, three monitoring sites in the Imperial Valley were in violation of the annual PM-10 NAAQS for the time period leading up to the serious area attainment date—January 1, 1999, through December 31, 2001. Data for these monitors during the three-year period are listed in Table 1 below. 40 CFR part 50 states that the annual PM-10 standard is met when the annual arithmetic mean concentration is less than or equal to 50 micrograms per cubic meter (μg/m3). The expected annual arithmetic mean is determined by averaging the annual arithmetic mean PM-10 concentration for the three years preceding the attainment date (in this case 1999 through 2001). The procedure for calculating arithmetic mean is discussed in 40 CFR part 50 appendix K, section 4.0.

          Table 1.—Imperial Valley Monitoring Sites That Violate the Annual PM-10 NAAQS (1999-2001)

            Site name
            3-year annual average (μg/m3)

            Calexico, Ethel Street
            81

            Calexico, Grant Street
            85

            Westmorland
            52

        2. 24-Hour PM-10 Standard
        In addition to violations of the annual PM-10 NAAQS, data from six monitors located in Imperial Valley show violations of the 24-hour PM-10 NAAQS. According to 40 CFR part 50, the 24-hour PM-10 NAAQS is attained when the expected number of days per calendar year with a 24-hour average above 150 μg/m3 is equal to or less than one. In the simplest case, the number of expected exceedances at a site is determined by recording the number exceedances in each calendar year and then averaging them over the past three calendar years. This means that if a monitoring site has four or more observed or estimated exceedances in a three-year period then it is in violation of the 24-hour PM-10 NAAQS. Generally, if PM-10 sampling is scheduled less than every day, EPA requires the adjustment of observed exceedances to account for days for which a sample was not collected. The method for adjusting the observed exceedances to determine the estimated exceedances for a year is described in 40 CFR part 50, appendix K, section 3.1.
        The six monitoring sites in Imperial Valley that were in violation of the 24-hour PM-10 NAAQS during the calendar years 1999 through 2001 are listed below in Table 2 along with the number of estimated 24-hour exceedances at each site for each year and the average number of expected exceedance days per year during the three-year period. All of the sites listed in Table 2 operate on a one-in-six day schedule. For each of these sites, the average number of expected exceedance days per year over the three-year period 1999-2001 exceeds one.

          Table 2.—24-hour PM-10 Estimated Exceedances in the Imperial Valley Nonattainment Area (1999 Through 2001)

            Monitoring station
            Estimated exceedance days 1999
            Estimated exceedance days 2000
            Estimated exceedance days 2001
            Average number of expected exceedance days per year 1999-2001

            Calexico, Grant Street
            31.7
            37.9
            12
            27.2

            Calexico, Ethel St.
            12.9
            30
            18
            20.3

            Niland
            0
            12.9
            6.4
            6.4

            Brawley
            0
            6.9
            0
            2.3

            Westmorland
            0
            12.8
            6
            6.3

            El Centro
            0
            6
            6.4
            4.1

        III. Proposed Action
        EPA is proposing to find that Imperial Valley did not attain the annual or 24-hour PM-10 NAAQS by the December 31, 2001 attainment date as discussed in section II above.
        Pursuant to CAA section 189(d), serious PM-10 nonattainment areas that fail to attain are required to submit “plan revisions which provide for attainment of the PM-10 air quality standards 1
           and, from the date of such submission until attainment, for an annual reduction in PM-10 or PM-10 precursor emissions within the area of not less than 5 percent of the amount of such emissions as reported in the most recent inventory prepared for such area.” Among other things, the plan revision must also provide for the expeditious implementation of best available control measures (BACM) pursuant to CAA section 189(b)(1)(B). Under section 189(d) the applicable submittal deadline for the plan revision is within 12 months of the applicable attainment date. Since that date, December 31, 2002, has passed, the plan revision is due within one year of publication of a final finding of nonattainment pursuant to CAA section 179(d).

            1 Under section 179B(a), the attainment demonstration in any future PM-10 plan submitted by the State for Imperial Valley may be based on a showing of attainment but for emissions emanating from Mexico. EPA's prior action under section 179(B)(d) and the Ninth Circuit's recent decision were based on evaluation of 1992-1994 data and do not preclude the State from pursuing a future 179B(a) demonstration, if applicable.

        IV. Administrative Requirements

        Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this proposed action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action in and of itself establishes no new requirements, it merely notes that the air quality in Imperial Valley did not meet the Federal health standards for PM-10 by the CAA deadline. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this proposed rule does not in and of itself establish new requirements, EPA believes that it is questionable whether a requirement to submit a SIP revision constitutes a Federal mandate. The obligation for a State to revise its SIP arises out of sections 110(a), 179(d), and 189(d) of the CAA and is not legally enforceable by a court of law, and at most is a condition for continued receipt of highway funds. Therefore, it is possible to view an action requiring such a submittal as not creating any enforceable duty within the meaning of section 421(5)(9a)(I) of the Unfunded Mandates Reform Act (UMRA) of 1995 (2 U.S.C. 658(a)(I)). Even if it did, the duty could be viewed as falling within the exception for the condition of Federal assistance under section 421(5)(a)(i)(I) of UMRA (2 U.S.C. 658(5)(a)(i)(I)). Therefore, today's proposed action 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).

        This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This proposed action does not in and of itself create any new requirements and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. Because this proposed finding of failure to attain is a factual determination based on air quality considerations, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

          List of Subjects in 40 CFR Part 81
          Environmental protection, Air pollution control, National Parks, Wilderness areas.

          Authority:
          42 U.S.C. 7401-7671q.

          Dated: August 3, 2004.
          Wayne Nastri,
          Regional Administrator, Region IX.

      [FR Doc. 04-18379 Filed 8-10-04; 8:45 am]
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