The FAA invites you to participate in this rulemaking by submitting written comments, data, or views. The FAA also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

The FAA will file in the docket all comments received, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments received on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments received.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2018-0209, dated September 21, 2018 (EASA AD 2018-0209), to correct an unsafe condition for Airbus Helicopters (formerly Eurocopter, Eurocopter France, Aerospatiale) Model AS 332 C, AS 332 C1, AS 332 L, AS 332 L1, and AS 332 L2 helicopters, except those with modification 0726383.

EASA advises that during production of AS332 helicopters, closure of the fuel tank drains with plugs was implemented. EASA states that this closure disregards compliance with an airworthiness certification requirement and in the event of fuel leakage in flight, a closed fuel drain creates the risk of fuel accumulation and/or migration to an adjacent area. EASA advises this area may contain electrical equipment that could be susceptible to creating a source of ignition. EASA states this condition, if not corrected, could result in the ignition of fuel vapors, resulting in a fire causing damage to the helicopter or injury to the occupants.

Accordingly, EASA AD 2018-0209 requires modification of the draining system of the fuel tank compartments by removing the drain plugs from the fuel tank compartments located under the bottom structure.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that an unsafe condition is likely to exist or develop on other products of the same type designs.

The FAA reviewed Airbus Helicopter Alert Service Bulletin No. AS332-53.01.62, Revision 1, dated May 28, 2019 (ASB AS332-53.01.62, Revision 1), for Model AS332C, AS332C1, AS332L, AS332L1, and AS332L2 helicopters. This service information contains procedures for removing the drain plugs from the fuel tank compartments located under the bottom structure of the helicopter. This service information also specifies that the number of drain plugs varies depending on the version of the helicopter.

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

The FAA also reviewed Airbus Helicopters ASB No. AS332-53.01.62, Revision 0, dated June 7, 2018 (AS332-53.01.62, Revision 0). AS332-53.01.62, Revision 0, contains the same procedures as AS332-53.01.62, Revision 1. However, AS332-53.01.62, Revision 1, also addresses military versions.

This proposed AD would require removing the drain plugs from the fuel tank compartments.

The FAA estimates that this proposed AD would affect 11 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Removing the 6 drain plugs installed on Model AS332C and AS332C1 helicopters would take about 2 work-hours for an estimated cost of $170 per helicopter and $170 for the U.S. fleet size of 1 helicopter.

Removing the 7 drain plugs installed on Model AS332L, AS332L1, and AS332L2 helicopters would take about 2 work-hours for an estimated cost of $170 per helicopter and $1,700 for the U.S. fleet size of 10 helicopters.

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

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

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

For the reasons discussed, I certify this proposed regulation:

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

2. Will not affect intrastate aviation in Alaska, and

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

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

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

Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2019-0766; Product Identifier 2019-NE-23-AD” at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. The FAA will consider all comments received by the closing date and may amend this NPRM because of those comments.

The FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The FAA will also post a report summarizing each substantive verbal contact it receives about this NPRM.

The FAA was notified by the manufacturer that they found a reduction in the cyclic life of the combustion chamber assembly when updating their life analysis. As a result, the manufacturer added a scheduled maintenance check. This condition, if not addressed, could result in combustion chamber assemblies failing before reaching their published life limit.

The FAA reviewed GE CF34-8E Engine Manual Temporary Revision (TR) 05-0085, dated February 21, 2019; GE CF34-8C TR 05-0141, dated February 21, 2019; and GE CF34-8C TR 05-143, dated February 13, 2019. These TRs, differentiated by GE CF34-8 turbofan engine model, identify the combustion chamber assembly part number, life limit cycles, and new inspections.

The FAA also reviewed GE CF34-8E TR 05-0086, dated February 13, 2019, and GE CF34-8C TR 05-0142, dated February 13, 2019. These TRs, differentiated by GE CF34-8 turbofan engine model, describe new inspection threshold limits and re-inspection interval limits for the combustion chamber assembly.

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

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

This proposed AD would require revisions to the ALS of the manufacturer's ICA and the air carrier's approved CAMP to incorporate initial and repetitive FPIs of the combustion chamber assembly.

The FAA estimates that this proposed AD affects 1,216 GE CF34-8C turbofan engine models and 638 GE CF34-8E turbofan engine models installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this proposed AD:

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

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

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

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

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

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

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

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

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

Submitting CBI. Do not submit information that you consider to be CBI electronically through https://www.regulations.gov or email. Send or deliver information identified as CBI only to the following address using U.S. Postal Service: U.S. Environmental Protection Agency, EPA Docket Center, EPA-HQ-OGC-2019-2751, Mail Code 2310A, 1200 Pennsylvania Avenue NW, Washington, DC 20460. For other methods of delivery, see https://www.epa.gov/dockets/where-send-comments-epa-dockets.

Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. If you submit a CD-ROM or disk that does not contain CBI, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2.

Organization of This Document. The following outline is provided to aid in locating information in this preamble.

This proposed procedural rule would not regulate any person or entity outside EPA. This proposal would modify the process relevant to certain administrative appeals handled by the EAB under 40 CFR 124.19 and other regulations listed below. It may be of interest to persons and entities that apply for or are interested in challenging EPA permitting decisions under the National Pollutant Discharge Elimination System (NPDES) program of the Clean Water Act, the Safe Drinking Water Act's Underground Injection Control (UIC) program, and the Resources Conservation and Recovery Act (RCRA), including Remedial Action Plans, 40 CFR 270.42(f) & 270.155. It may also be of interest to persons or entities interested in challenging EPA permitting decisions under the Clean Air Act, including Outer Continental Shelf permits, 40 CFR 55.6(a)(3); Title V permits, 40 CFR 71.11(l); Acid Rain permits, 40 CFR 78.3(b)(1); Tribal Major Non-Attainment NSR permits, 40 CFR 49.172(d)(5); and Tribal Minor NSR permits, 40 CFR 49.159(d).

In addition, any person or entity interested in EPA's administrative processes may be interested in this proposal. With exception of section III.A.7 (Administrator's Legal Interpretations), nothing in this proposal affects the EAB's adjudication of enforcement appeals.

This is a rule of agency organization, procedure or practice. Although not subject to the notice and comment requirements of the Administrative Procedure Act, the Agency nonetheless voluntarily seeks comment because it believes that the information and opinions supplied by the public will inform the Agency's views. To this end, EPA solicits information and comment from the public on EPA's proposal to streamline part of EPA's permitting process.

Each proposal is identified immediately below and described in Section III.

First, EPA solicits comment on a proposal to create a new, time-limited ADR process, resulting in a fundamental change to the Agency's long-held administrative exhaustion requirements. Any interested party seeking judicial review of an EPA permit would have to participate in this new process before filing a petition in federal court. Under this new process, the parties would have the choice, by unanimous consent, to extend the ADR process or proceed to an appeal before the EAB.

Second, EPA solicits comment on a proposal to clarify the scope and standard of the EAB's review. Under the current regulations, the EAB reviews petitions for a finding of fact or conclusion of law that is clearly erroneous. 40 CFR 124.19(a)(4)(i)(A). However, the current regulations also include a provision that provides that the EAB may review of an exercise of discretion “or an important policy consideration.” 40 CFR 124.19(a)(4)(i)(B). This has led to some confusion as to whether a petitioner may ask the EAB—standing in the Administrator's shoes—to address issues that a federal court generally could not review, such as whether EPA properly exercised its discretion relative to an “important policy consideration.” In any event, to the extent 40 CFR 124.19(a)(4)(i)(B) suggests that the EAB may review EPA's compliance with discretionary policies, EPA is proposing to eliminate that provision and clarify that the EAB's scope and standard of review is limited to findings of fact and conclusions of law that are clearly erroneous.

Third, EPA solicits information and comment on a proposal to remove 40 CFR 124.19(e), which currently authorizes interested persons to participate in a permit appeal as amicus curiae. Under today's proposal, the EAB would no longer accept amicus curiae briefs.

Fourth, EPA also solicits comment on a proposal to eliminate the EAB's authority to review Regional permit decisions on its own initiative (sua sponte), even absent a private party appeal. In EPA's experience, the EAB rarely invokes this authority, and to exercise it now could impede timely permitting.

Fifth, EPA solicits comment on a proposal to establish a 60-day deadline for the EAB to issue a final decision once an appeal has been fully briefed and argued. EPA also solicits information and comment on a proposal to limit the availability of filing extensions to one request per party, with a maximum extension of 30 days. (Nothing in the proposed rule would modify the EAB's discretion to relax or suspend filing requirements for good cause.)

Sixth, EPA solicits comment on a proposal to set twelve-year terms for EAB Judges, which the Administrator may renew at the end of that twelve-year period or reassign the Judge to another position within EPA.

Seventh, EPA solicits comment on a proposal to establish a mechanism by which the Administrator, by and through the General Counsel, can issue a dispositive legal interpretation in any matter pending before the EAB or on any issue addressed by the EAB.

The new ADR process and the revised permit appeal procedures apply only to permitting decisions under:

• The National Pollutant Discharge Elimination System (NPDES) program of the Clean Water Act;

• The Safe Drinking Water Act's Underground Injection Control (UIC) program;

• The Resources Conservation and Recovery Act (RCRA), including Remedial Action Plans, 40 CFR 270.42(f) & 270.155; and

• The Clean Air Act, including Prevention of Significant Deterioration (PSD) permits, Outer Continental Shelf permits, 40 CFR 55.6(a)(3); Title V permits, 40 CFR 71.11(l); Acid Rain permits, 40 CFR 78.3(b)(1); Tribal Major Non-Attainment NSR permits, 40 CFR 49.172(d)(5); and Tribal Minor NSR permits, 40 CFR 49.159(d).

EPA's authority to issue this proposed procedural rule is contained in Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300(f) et seq.; Clean Water Act, 33 U.S.C. 1251 et seq.; and Clean Air Act, 42 U.S.C. 1857 et seq. EPA has additional authority under the Federal Housekeeping Statute, 5 U.S.C. 301, which authorizes an agency head to prescribe regulations governing his or her department and the performance of its business, among other purposes.

The EAB was created in 1992 to hear, among other things, administrative appeals of enforcement proceedings and EPA-issued permits. The purpose of its creation was to formally transfer the Administrator's authority over such appeals to the new Board in an effort to address the Agency's expanding enforcement docket and an increase in EPA-issued permits.

Over the past 27 years, the EAB's role in permit appeals has changed as more states and tribes have assumed permitting authority under EPA's statutes. For example, 47 states and one territory have assumed authority to administer NPDES permits under the Clean Water Act. In the context of RCRA, 48 states, the District of Columbia, and Guam have been authorized to implement either all or parts of state hazardous waste programs in lieu of RCRA subtitle C. Under the Clean Air Act, 43 states fully administer the PSD program, and EPA has approved Title V permit programs in all 50 states. As discussed later in this document, the EAB does not hear challenges to most state-issued permits.

As more states and tribes have assumed authority, the Agency has dramatically reduced the number of EPA-issued permits and, in turn, the number of permits appealed to the EAB. Since January 1, 2016, a total of 50 permit appeals have been filed with the EAB affecting a total of 40 permits.

In 2010, the EAB launched a voluntary ADR program to assist parties in resolving disputes before the EAB, including permit appeals. The EAB established this ADR program to promote faster resolution of issues and more creative, satisfying and enduring solutions; to foster a culture of respect and trust among EPA, its stakeholders, and its employees and to improve working relationships; to promote compliance with environmental laws and regulations; to expand stakeholder support for Agency programs; and to promote better environmental outcomes. The EAB's ADR program currently offers parties the option of participating in ADR with the assistance of an EAB Judge acting as a neutral evaluator/mediator (generally referred to as the Settlement Judge). The ADR program has been highly successful, and, to date, over 90% of the cases that have gone through the program have been resolved without litigation. See The EPA's Environmental Appeals Board at Twenty-five: An Overview of the Board's Procedures, Guiding Principles, and Record of Adjudicating Cases, p. 5 available at https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/8f612ee7fc725edd852570760071cb8e/381acd4d3ab4ca358525803c00499ab0/$FILE/The%20EAB%20at%20Twenty-Five.pdf. Since its inception, the ADR Program has helped parties achieve faster resolution of issues, enduring solutions, and broader support for outcomes. Id.

Under the current regulations, the EAB has jurisdiction over three categories of permit-related actions, and an appeal to the EAB is a prerequisite for judicial review of the permit. (Prior to 1992, appeal to the Administrator was a prerequisite for judicial review of permits issued by Regional Administrators.)

The first category consists of appeals of federal permitting decisions by Regional Administrators under the Clean Air Act (PSD, Title V, Outer Continental Shelf, and some acid rain program permits), the Safe Drinking Water Act (UIC permits), the Clean Water Act (NPDES permits) and RCRA permits. Appeals under RCRA include decisions to deny a permit for the active life of a hazardous waste management facility or unit. This category also includes appeals by of Clean Air Act permits issued by states in certain circumstances.1

In the case of PSD permits, the entire process—from the determination that an application is complete to a final decision to grant or deny a permit application—must occur within one year by statutory mandate. 42 U.S.C. 7475(c); see Avenal Power Center LLC v. EPA, 787 F.Supp.2d 1 (D.D.C. 2011). Nothing in today's proposal would affect that statutory obligation.

The second category consists of appeals of Clean Air Act NSR permits issued by EPA in Indian Country. The third category consists of terminations of NPDES, RCRA and Marine Protection, Research, and Sanctuaries Act permits. Under 40 CFR 124(l), the EAB's decision and the Regional Administrator's subsequent issuance of the permit constitutes final agency action.

These permit-related functions are listed below, accompanied by the parts of the Code of Federal Regulations where they currently appear.

Any person who participated in the permit public participation process, either by filing comments on the draft permit or by speaking at a public hearing, may petition the EAB for review. 40 CFR 124.19(a)(2). In addition, anyone may petition the EAB for review of a permit condition that reflects changes from the draft. Id. A petition for review must be filed within thirty days after service of notice of the issuance of a permit decision and must identify the contested permit condition or other challenge to the permit decision and clearly set forth the petitioner's contentions, with appropriate support, as to why the Board should review the decision. Id. at § 124.19(a)(4). A petitioner must demonstrate that each issue raised in the petition was previously raised during the public comment period, or at a public hearing. Id. In order to prevail, a petitioner must show that each challenged permit condition is based on “[a] finding of fact or conclusion of law that is clearly erroneous” or “[a]n exercise of discretion or an important policy consideration that the Environmental Appeals Board should, in its discretion, review.” Id. § 124.19(a)(4)(i). Generally, the EPA Region—or other authority acting on EPA's behalf—that issued the permitting decision must file a response to a petition for review together with a certified index of the administrative record and relevant portions of the record within 30 days after service of the petition. Id. at § 124.19(b)(2). In the case of PSD or other new source permit appeals, the Agency has 21 days to file its response. Id. at § 124.19(b)(1). A permit applicant who did not appeal a permit decision may also file a notice of appearance and respond to a petition, as may a state or tribal authority where a permitted facility is (or is proposed to be) located. Id. § 124.19(b)(3) through (4). Any other interested person may also participate in the appeal by filing an amicus brief. Id. § 124.19(e).

Once the EAB has received a petition for review of a permit, the Clerk of the Board assigns the matter to a panel of judges using a neutral case assignment system. The EAB typically hears matters before it in three-member panels, with the fourth member of the EAB available to serve as a settlement judge in the event the parties opt to participate in the EAB's ADR program. See id. § 1.25(e)(1). The panel decides each matter before it “in accordance with applicable statutes and regulations” and considers the standard of review, prior EAB precedents, Agency policy it deems relevant, and the evidence in the record. Id. at §§ 1.25, 22.30(d), 124.19(h). When appropriate, the EAB hears oral argument on any or all issues in a proceeding. Id. at 124.19(h). The regulations specify that the EAB shall decide matters by majority vote. Id. at § 1.25. The EAB issues its opinions in writing, and the Regional Administrator's subsequent issuance of the permit consistent with the opinion constitutes final agency action.

Currently, under the EAB's ADR Program, parties to an appeal are invited to participate in ADR with the assistance of an EAB Judge acting as a neutral evaluator/mediation (referred to as the “Settlement Judge”). An EAB staff attorney (referred to as “EAB Settlement Counsel”) is often assigned to assist the Settlement Judge. Each party to the appeal must agree to participate in ADR for the case to proceed under the Program, which is often referred to as an “opt-in” ADR process. If all parties agree to proceed with ADR, an EAB Judge is assigned as the Settlement Judge, and the appeal proceedings are stayed for 60 days. The Settlement Judge contacts the parties for a status conference, followed by submission of issue summaries within 10 days of the status conference and an initial ADR meeting at which the parties begin the case evaluation/mediation process.

The ADR process may be terminated and the case returned to the EAB's active docket if: (1) The Settlement Judge, at any point following his or her designation, determines, in his or her discretion, that ADR is no longer appropriate; (2) the Settlement Judge, in his or her discretion, determines that the ADR process has not made substantial progress within the stay period; or (3) any party determines that it no longer wishes to participate in ADR. If a matter is returned to the EAB's active docket, the Settlement Judge and the EAB Settlement Counsel are prohibited from participating in any way in the EAB's resolution.

If the parties reach an acceptable resolution to all or part of their dispute, the parties must create a written agreement signed by each party. Upon execution of any agreement resolving all issues, the parties then file a joint motion to dismiss the pending matter. The EAB then issues an order dismissing the appeal. If some, but not all issues are resolved, and the issues are severable, the parties must file a motion for dismissal of the resolved issues. The EAB then issues an order returning the remaining issues to the EAB's active docket for resolution.

EPA proposes to create a new, time-limited ADR process and participation in that process would be a precondition to judicial review in federal court. Under the current regulations, an interested party must file a petition for review with the EAB as a precondition to judicial review. See 40 CFR 124.19(l). Once the appeal process has begun, parties to an appeal may “opt-in” to the EAB's ADR program to resolve the dispute without litigating the issues before a panel of EAB Judges. EPA is seeking to leverage the success of the EAB's current ADR program and empower the parties to decide for themselves the best, most efficient process to resolve their disputes.

Under this proposal, the EAB's ADR program would be switched from an opt-in process to an opt-out process conducted in compliance with the confidentiality provisions of the Administrative Dispute Resolution Act of 1996, 5 U.S.C. 574. Under the proposed process, an interested person would have thirty days after service of notice of the issuance of a permit decision to file a notice of dispute with the EAB in which the interested person identifies the contested permit condition or other specific challenge to the permit decision. The notice of dispute would also need to certify that the party filed comments on the draft permit or participated in a public hearing on the draft permit or that the disputed conditions in the final permit reflect changes from the proposed draft permit. The party filing the notice would have to serve the notice on the Regional Administrator that issued the permitting decision, the permit applicant, as well as the state or tribal authority where the permitted facility is (or is proposed to be) located. The Regional Administrator would be required to file its response to a notice within 21 days after service of the notice of dispute. A permit applicant who did not dispute a permit decision may file a notice of appearance and a response, as may the relevant state or tribal authority, within the same 21-day period.

Upon receipt of the notice of dispute, the Clerk of the EAB would assign an EAB Judge to act as the Settlement Judge. The Settlement Judge would have thirty days from the deadline for filing a response to convene a meeting of all the parties. Each party would be required to file issue summaries with the Settlement Judge no later than ten days prior to the convening meeting. At the convening meeting, each party would be required to meet with the Settlement Judge in a private session in which the Settlement Judge would provide the party with a confidential, oral assessment of the strengths and weaknesses of their case. Information discussed in the private sessions would be confidential unless a party authorizes the Settlement Judge to disclose it. At the conclusion of the convening meeting, or no later than thirty days after the deadline to file a response, the parties may decide by unanimous consent to either extend the ADR process (beyond the initial thirty-day window) or proceed with an appeal before the EAB. The Regional Administrator would not be considered a party for purposes of this unanimous agreement, meaning the Regional Administrator would not have a say in how the parties decide to proceed. EPA is proposing to make any agreement of the parties issue-specific, meaning only those issues or conditions that all parties agree to resolve via further ADR or EAB review continue through the process. However, EPA solicits comment on whether the parties' agreement should apply to all issues raised in the notice of dispute. All parties would be required to attend and participate in the convening meeting as a prerequisite to seeking judicial review in federal court. If the parties do not agree to proceed with either the ADR process or an EAB appeal, the notice of dispute would be dismissed, the permit would become final and it could be challenged in federal court. Lastly, any issues that are raised in notice of dispute process but do not continue beyond the initial thirty-day period would be preserved for appeal but may not be challenged in federal court until the remaining administrative process concludes. Again, EPA solicits comment on whether all issues raised in the notice of dispute should be required to continue through the ADR process or EAB appeal rather than only those issues or conditions that all parties agree should proceed. If promulgated, the new ADR process would apply only to any permit decision issued on or after the effective date of the procedural rule. The proposal would not apply to any current permit appeals.

The current regulations establish a “clearly erroneous” standard of review and direct petitioners to demonstrate that “each challenge to the permit is based on . . . a finding of fact or conclusion of law that is clearly erroneous.” 40 CFR 124.19(a)(4)(i)(A). However, the current regulations also include a paragraph that provides that the EAB may review of an exercise of discretion “or an important policy consideration.” 40 CFR 124.19(a)(4)(i)(B). This has led to some confusion as to whether a petitioner may ask the EAB—standing in the Administrator's shoes—to address issues that a federal court generally could not review, such as whether EPA properly exercised its discretion relative to an “important policy consideration.” To the extent that 40 CFR 124.19(a)(4)(i)(B) authorizes the EAB to review EPA's compliance with discretionary policies, EPA proposes to eliminate that provision. In doing so, EPA intends to make clear that while the EAB's scope of review would no longer include exercises of discretion or important policy considerations, nothing in this proposal would alter the standard of review employed by the EAB in adjudicating permit.

EPA proposes to eliminate the provision at 40 CFR 124.19(e) that authorizes interested persons to participate in a permit appeal as amicus curiae. Under today's proposal, the EAB would no longer accept amicus curiae briefs in permit appeals.

Under the current regulations, any interested person can appeal an EPA permit to the EAB; therefore, the amicus curiae process allowed the EAB to consider additional views in support of or opposition to the Region's permit. As discussed above, EPA proposes to create a new ADR process that would be a prerequisite to seeking judicial review in federal court. EPA believes that this new process would be the proper forum for parties to resolve disputes over Agency permits and that allowing for additional input in a permit appeal, should the parties choose to proceed in such a manner, is unnecessary. Moreover, eliminating amicus curiae briefs is consistent with the proposed streamlining of the EAB permit appeal process. By eliminating amicus briefs, EPA proposes to hasten the resolution of permit appeals by 15 days, see 40 CFR 124.19(e), and to simplify the process. All members of the public are encouraged to submit comments on draft EPA permits, and the Regions consider those comments when making permit decisions. This is meaningful public engagement that has the potential to shape the permit before it is appealed to the EAB. Moreover, the public comments coupled with the Region's responses become part of the permit's administrative record. EPA believes that the availability of these comments, coupled with the vigorous briefing by the permit applicant, the Region, and other parties will ensure that the EAB becomes aware of any issues or positions that might otherwise be raised by amici. Under these circumstances, the benefits of expeditious resolution of appeals outweigh any benefits associated with amici participation.

The current regulations authorize the EAB to decide on its own initiative to review any condition of any RCRA, UIC, NPDES, or PSD permit decision for which review is otherwise available. Today's proposal would eliminate this provision. Allowing sua sponte review by the EAB would be inconsistent with the Agency's goal of empowering the parties of a permit dispute to dictate the process they believe will most effectively and efficiently resolve their dispute.

EPA proposes several additional changes to the appeal process that are intended to expedite resolution of appeals, should the parties choose to proceed with an EAB appeal. First, EPA proposes to establish a deadline of 60 days for the EAB to issue a final decision, measured from the date of oral argument or the filing of the last brief, whichever is later. This deadline demonstrates EPA's commitment to making permits final and effective expeditiously. It also should be achievable, in light of the EAB's reduced workload contemplated by this proposed rule.

Second, in light of the proposed 60-day deadline, EPA proposes to limit the length of EAB opinions by advising the Board to make them only as long as needed to address the specific issues raised in the appeal. EPA solicits comment on whether to set a numerical limit, either in words or pages.

In the third time-saving change, EPA proposes to revise the provisions in the current regulations relating to extensions of time to file briefs. The regulations at 40 CFR 124.19(g) authorize parties to seek such extensions. A review of motion practice before the EAB reveals that much of the delay in resolving appeals stems from frequent and lengthy extensions requested by the parties. Today's proposal would authorize each party to request a one-time 30-day extension that the EAB, in the exercise of its discretion, may choose to grant. Nothing in the proposed rule would eliminate the EAB's discretion to relax or suspend filing requirements for good cause. See 40 CFR 124.19(n).

The EAB is a permanent body with continuing functions established by regulation. It exercises authority expressly delegated to it from the Administrator by Title 40 of the Code of Federal Regulations. 40 CFR 1.25(e)(2). The EAB is composed of no more than four judges designated by the Administrator, 40 CFR 1.25(e)(1), but all positions need not be filled depending on the work load before the Board. By custom, EAB Judges are career employees of EPA and members of the Senior Executive Service (SES).

Over the years, the Agency has benefited from the arrival of new judges to fill vacancies created as former judges retire or move to other senior executive positions. Since 2012, eight different judges have served on the EAB, bringing with them experience from the Offices of the Regional Counsel, the Office of General Counsel, the Office of Enforcement and Compliance Assistance and other Federal agencies, including the U.S. Department of Justice. For judges joining the EAB since January 1, 2012, the average term of service is four years.

At the same time, the Agency has benefited from judges who have served on the Environmental Appeals Board for much longer terms. These judges bring deep experience in EAB jurisprudence and provide needed stability in light of frequent vacancies. Of the twelve judges who have served on the EAB since its creation in 1992, four of the first five EAB judges held their positions for nine to 21 years. One judge has served for 24 years.

In today's document, EPA proposes to set fixed twelve-year terms for EAB Judges, which the Administrator may renew at the end of that twelve-year period or reassign the Judge to another position within EPA. EPA solicits comment on whether eight-year terms are more appropriate. EPA also solicits comment on whether any other term length is more appropriate. The Administrator would apply the new twelve-year terms to the current EAB judges on a rolling basis over the next twelve years. Each seat on the EAB would be designated a number based on the seniority of the Board's current members. The seat of the longest serving judge would be designated as seat one, the second longest serving judge as seat two, the third longest serving judge as seat three, and the most recent judge as seat four. The term for the newly designated seat one would end three years after the effective date of the final rule. The process would then continue at three-year intervals, with seat two ending six years after the effective date, seat three ending nine years after the effective date, and seat four ending twelve years after the effective date. Thereafter, all terms will last for twelve years. If a judge vacates his or her position before the end of the judge's term, the Administrator would appoint a new judge to serve for the remainder of the vacated term. That new member could then be renewed at the end of the vacated term. For example, assume the term of the judge holding seat two ends in 2026, subject to renewal. Further assume that this judge retires in 2020. The new judge occupying seat two would serve for six years (until 2026) and then be eligible for a twelve-year term renewal. But assume this judge leaves after five years in 2025. The newest judge occupying seat two would serve for one year (until 2026) and then be eligible for twelve-year term renewal. There would be no limit to the number of twelve-years terms that one judge could serve. EPA also solicits comment on whether a different process for retention of EAB Judges is more appropriate.

If the Administrator chooses not to renew the appointment, the Administrator would assign that judge to another SES position within EPA for which he or she qualifies, in compliance with all applicable procedures. (As members of the SES, EAB judges are subject to reassignment to any other SES position in the Agency for which he or she qualifies, after approval from OPM and the Office of Presidential Personnel. See Guide to the Senior Executive Service, published by the Office of Personnel Management (March 2017), pages 8, 10. https://www.opm.gov/policy-data-oversight/senior-executive-service/referencematerials/guidesesservices.pdf. See also 5 U.S.C. 3131(5) (SES program shall be administered so as to enable the head of an agency to reassign senior executives to best accomplish the agency's mission).

In EPA's experience, EAB judges have left their appointments either to retire from federal service or to take another position within EPA or elsewhere. Nothing in this process would prevent a judge from leaving the EAB before the expiration of his or her twelve-year term. Similarly, nothing in this process prevents the Administrator from reassigning an EAB judge to another position prior to the expiration of his or her renewable twelve-year term.

EPA is soliciting comment on whether it should create a process to explicitly identify certain decisions of the EAB as precedential. Under such a process, only published decisions could be considered precedential. The determination of which decisions should be published would be determined by the Administrator acting through the General Counsel.

Other federal agencies that utilize adjudicatory hearings have similar processes for identifying precedential decisions. For instance, the Department of Homeland Security and the Department of Justice designate certain decisions as “precedent decisions” in various immigration proceedings. Under their process, “precedent decisions” are administrative decisions of the Administrative Appeals Office, the Board of Immigration Appeals (BIA), and the Attorney General, which are selected and designated as precedent by the Secretary of the Department of Homeland Security, the BIA, and the Attorney General, respectively. Identifying certain decision as precedential is important because federal courts give greater deference to such decisions. For that reason, EPA is soliciting comment on whether the Agency should affirmatively designate certain EAB decisions as precedential.

EPA proposes a new mechanism by which the Administrator, by and through the General Counsel, can issue a dispositive legal interpretation in any matter before the EAB or on any issue addressed by the EAB. This legal interpretation would be binding on the EAB. Under this proposal, the General Counsel may file written notice to the EAB providing the Administrator's legal interpretation of an applicable Agency regulation or governing statute in any matter before the EAB; this proposal is not limited just to permit appeals. This new mechanism is distinguished from legal briefs filed by EPA's Regions, which simply set forth the Agency's position on any relevant legal interpretations. The intent of this proposal is to allow the Administrator, in specific cases, to retain authority as it pertains to legal interpretations. Nothing in this proposal would limit the Administrator's existing authority (derived from his or her statutory authority to issue the permits in the first instance) to review or change any EAB decision.

EPA also proposes conforming changes to regulatory text to implement the objectives described above.

If promulgated as proposed, today's revisions would not apply to appeals that had been filed with the EAB before the effective date of any final rule codifying such revisions.

EPA has an almost 20-year history of promoting the expanded use of ADR to address disputes and resolve conflict. See EPA's Policy on Alternative Dispute Resolution, 65 FR 81,858 (Dec. 27, 2000). The Agency has long recognized that ADR techniques can have many benefits, including faster resolution of issues; more creative, satisfying and enduring solutions; fostering a culture of respect and trust among EPA, its stakeholders, and its employees; improving working relationships; promoting compliance with environmental laws and regulations; expanding stakeholder support for Agency programs; and promoting better environmental outcomes. Id. at 81,858-59. The EAB instituted its ADR program in 2010 in recognition of these many benefits and the success experienced by other federal agencies and by federal courts (including appellate courts) in settling contested matters through ADR. As noted above, the EAB's ADR program has been highly successful with over ninety percent of the cases that have gone through the program resolved without litigation.

EPA is seeking to build off the success of the EAB's ADR program by creating a new process that will ensure speedy resolution of disputes while providing the interested parties with options to achieve those ends. Under this proposal, the EAB's ADR program would switch to an opt-out process by requiring all parties to convene with an EAB Judge acting as a Settlement Judge. EPA believes the parties can greatly benefit from the input of the Settlement Judge's unique assessment of litigation risk, which, in the Agency's experience, carries significant weight among parties and often drives quick resolution of the issues. After receiving this valuable input from the Settlement Judge, the parties would then be empowered to decide for themselves the best, most efficient process to resolve their disputes, whether it be through further mediation, an EAB appeal or litigation in federal court.

In addition, EPA's proposals to reform the current permit appeal process go hand-in-hand with the newly proposed ADR process. By modifying and expediting the appeal process, EPA hopes to make an EAB appeal a more attractive, less time-consuming option for the parties to resolve permit disputes.

In proposing this new process, EPA recognizes that it is fundamentally changing the administrative exhaustion requirement. However, based on the changes to EAB permit reviews over time and the documented success of ADR processes, EPA ultimately believes that an ADR-focused, party-driven process will resolve disputes faster and result in better outcomes (either through ADR, streamlined Board adjudication or expedited judicial review).

Lastly, EPA is proposing several measured reforms designed to better align the Board's role with its delegated authority from the Administrator. The Administrator is given the authority to issue permits under each of the relevant statutes implicated in EPA's proposal. In creating the EAB, the Administrator delegated a portion of this authority to the Board. By providing the Administrator with tools to exercise his or her statutory authority in the first instance together with some appropriate checks and balances on how the Board exercises its delegated authority, the measures included in today's proposal are designed to better reflect how the Administrator exercises or delegates his or her permitting authority.

EPA proposes to revise the following provisions of the CFR:

• 40 CFR 1.25(e) (Environmental Appeals Board).

• 40 CFR 22.44 (appeals from the terminations of NPDES and RCRA permits).

• 40 CFR part 23 (judicial review provisions).

• 40 CFR 49.159(d) (appeals from Federal Minor New Source Review permit decisions made by Regional Administrators in Indian Country under the Clean Air Act).

• 40 CFR 49.172(d) (appeals from Federal Major Non-Attainment New Source Review permit decisions by Regional Administrators in Indian County under the Clean Air Act).

• 40 CFR 52.21(q) (appeals from PSD permit decisions made by Regional Administrators and delegated states under the Clean Air Act).

• 40 CFR 55.6(a)(3) (appeals of Outer Continental Shelf permit decisions made by Regional Administrators).

• 40 CFR 71.11(l) (appeals from Title V operating permit decisions made by Regional Administrators and delegated states under the Clean Air Act).

• 40 CFR 78.3(b)(1) (appeals from certain acid rain permitting decisions made by Regional Administrators).

• 40 CFR 124.16 & 124.19 (appeals from NPDES permit decisions made by Regional Administrators and Administrative Law Judges under the Clean Water Act; appeals from permit decisions made by Regional Administrators under RCRA; appeals from PSD permit decisions made by Regional Administrators and delegated states under the Clean Air Act; appeals of Outer Continental Shelf permit decisions made by Regional Administrators; appeals from UIC permit decisions made by Regional Administrators under the Safe Drinking Water Act).

• 40 CFR part 222 (appeals from ocean dumping permit decisions made by Regional Administrators under the Marine Protection, Research, and Sanctuaries Act).

• 40 CFR 270.42(f) & 270.155 (appeals from Remedial Action Plan decisions under RCRA).

EPA has included proposed regulatory text for 40 CFR part 124 that would effectuate the proposed ADR process for most permit appeals. The Agency has provided this regulatory text to show the public how the substance of the newly proposed ADR process would be implemented. While this proposal makes clear that the proposed ADR process would apply to each of the permit decisions listed in section I.B. of this document, EPA has not included proposed conforming regulatory text for the following sections:

• 40 CFR 49.159(d) (appeals from Federal Minor New Source Review permit decisions in Indian Country under the Clean Air Act).

• 40 CFR 49.172(d) (appeals from Federal Major Non-Attainment New Source Review permit decisions in Indian County under the Clean Air Act).

• 40 CFR 52.21(q) (appeals from PSD permit decisions made by Regional Administrators and delegated states under the Clean Air Act).

• 40 CFR 55.6(a)(3) (appeals of Outer Continental Shelf permit decisions).

• 40 CFR 71.11(l) (appeals from Title V operating permit decisions made by Regional Administrators and delegated states under the Clean Air Act).

• 40 CFR 78.3(b)(1) (appeals from certain acid rain permitting decisions).

• 40 CFR part 222 (appeals from ocean dumping permit decisions under the Marine Protection, Research, and Sanctuaries Act).

• 40 CFR 270.42(f) & 270.155 (appeals from Remedial Action Plan decisions under RCRA)

EPA seeks comment on how to conform the above-cited sections with the proposed revisions to part 124. EPA could conform those sections by cross-referencing the proposed revisions in part 124 (requiring persons to file a notice of dispute under proposed § 124.19) or by drafting separate regulatory text that would create an identical ADR exhaustion process within each of those sections.

EPA solicits comment on all aspects of the proposed regulation and the bases articulated for it above.

Except for the proposal regarding the Administrator's legal interpretations (Section III, A.8. of this document), EPA is not soliciting comment on any functions of the EAB unrelated to permit appeals. For example, EPA is not soliciting comment on enforcement appeals or any other aspect of the EAB's work not specifically proposed today. With the exception of the proposals discussed above—for which EPA solicits comment—nothing in today's proposal would change the processes for having an appeal adjudicated by the EAB (should the parties agree to proceed with an appeal before the EAB). Therefore, EPA does not solicit comment on the unchanged aspects of the permit appeal processes.

This action is exempt from review by the Office of Management and Budget (OMB) because it is limited to agency organization, management or personnel matters.

This action is not an Executive Order 13771 regulatory action because it relates to “agency organization, management or personnel.”

This action does not contain any information collection activities and therefore does not impose an information collection burden under the PRA.

This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. This rule pertains to agency management or personnel, which the EPA expressly exempts from notice and comment rulemaking requirements under 5 U.S.C. 553(a)(2).

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1536, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

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

This action does not have tribal implications as specified in Executive Order 13175.

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

This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy.

This rulemaking does not involve technical standards.

This action is not subject to Executive Order 12898 (59 Fed 7629, Feb. 16, 1994) because it does not establish an environmental health or safety standard.

For the reasons set forth in the preamble, EPA proposes to revise 40 CFR parts 1, 22, 23, 49, 52, 55, 71, 78, 124, and 222 as follows:

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

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2019-0656, at https://www.regulations.gov. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The EPA is proposing to approve revisions to the Missouri SIP submitted by the State of Missouri to the EPA on October 25, 2019. The revisions to the previously federally approved Missouri State rule 10 CSR 10-6.030 Sampling Methods for Air Pollution Sources are administrative in nature and do not affect the stringency of the SIP. If approved, the revisions will provide a more efficient way to perform emissions sampling by incorporating by reference (IBR) federally promulgated methods.

In sections (1) through subsection (5)(b) and sections (6) through (16) the State removed the title of the sampling method and added a reference to the IBR at section (22) of the revised rule. The sampling method required in each section was not changed. In subsection (5)(c) through (5)(f) the State removed the title of the sampling method and added a reference to the IBR at section (21) of the revised rule. The sampling method required in each subsection was not changed. In section (17) the State removed the title of the sampling method and added a reference to the IBR section (23) of the revised rule. The sampling method required in each section was not changed. At section (20) the State updated its IBR information and documentation identification.

In order to consolidate IBRs and for ease of updating the IBRs in the future, the State is adding sections (21), (22) and (23), of the Federal rule, effective July 1, 2018. Section (21) incorporates by reference 40 CFR part 51, appendix M “Recommended Test Methods for State Implementation Plans”. Section (22) incorporates by reference 40 CFR part 60, appendix A “Test Methods”, appendix B “Performance Specifications”, and appendix F “Quality Assurance Procedures”. Section (23) incorporates by reference 40 CFR part 61, appendix B “Test Methods”.

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on this SIP revision from May 15, 2018 to August 2, 2018 and received eight comments. Based on the comments received the State made revisions to rule text in sections (21), (22), and (23) that incorporated by reference specific appendices and subparts. The State provided a second public notice on this SIP revision from April 15, 2019 to June 6, 2019 and received no comments. In addition, as explained above, the revision meets the substantive SIP requirements of the Clean Air Act (CAA), including section 110 and implementing regulations.

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

In this document, the EPA is proposing to include regulatory text in an EPA final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the Missouri Regulation described in the proposed amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

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

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

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

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

On March 12, 2008, the EPA revised the levels of the primary and secondary 8-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436, March 27, 2008).

Primary standards are set to protect human health while secondary standards are set to protect public welfare. The 2008 ozone NAAQS are met at an ambient air quality monitoring site when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to the NAAQS, as determined in accordance with appendix P to 40 CFR part 50.1 This action is being taken in response to the promulgation of the 2008 8-hour ozone NAAQS.

The CAA requires states submit, within three years after promulgation of a new or revised standard, SIP revisions meeting the applicable “infrastructure” elements of sections 110(a)(1) and (2). One of these applicable infrastructure elements, CAA section 110(a)(2)(D)(i)(I), requires SIPs to contain provisions to prohibit certain adverse air quality effects on downwind states due to interstate transport of pollution. Specifically, section 110(a)(2)(D)(i)(I) requires that each SIP for a new or revised standard contain adequate provisions to prohibit any emissions activity within the State from emitting air pollutants that will “contribute significantly to nonattainment” (sub-element 1) or “interfere with maintenance” (sub-element 2) of the applicable air quality standard in any other state.2

Ozone is not emitted directly into the air but is created by chemical reactions between oxides of nitrogen (NOX) and volatile organic compounds (VOCs) in the presence of sunlight. Emissions from electric utilities and industrial facilities, motor vehicles, gasoline vapors, and chemical solvents are some of the major sources of NOX and VOCs. Because ground-level ozone formation increases with temperature and sunlight, ozone levels are generally higher during the summer. Increased temperature also increases emissions of VOCs and can indirectly increase NOX emissions (See 81 FR 74504, 74513, October 26, 2016).

EPA has established a four-step interstate transport framework to address the sub-element 1 and 2 requirements for ozone and fine particulate matter (PM2.5) NAAQS through the development and implementation of several previous rulemakings.3 The four steps of this framework are as follows: (1) Identify downwind air quality problems; (2) identify upwind states that impact those downwind air quality problems enough to warrant further review and analysis; (3) identify the emissions reductions, if any, necessary to prevent an identified upwind state from contributing significantly or interfering with maintenance with respect to those downwind air quality problems; and (4) adopt permanent and enforceable measures needed to achieve those emissions reductions. The EPA has applied this framework in various actions addressing sub-elements 1 and 2 for the PM2.5 and ozone NAAQS.4 In prior actions, the EPA has concluded that states with impacts on downwind nonattainment and maintenance receptors less than 1% of the 2008 ozone NAAQS do not significantly contribute to nonattainment or interfere with maintenance pursuant to CAA section 110(a)(2)(D)(i)(I). This framework will be followed in this evaluation.

To assist states with meeting section 110(a)(2)(D)(i)(I) requirements for the 2008 ozone NAAQS, the EPA has conducted interstate ozone transport modeling, provided informational memos, issued two Notices of Data Availability (NODAs), and issued regional rules that use the four-step framework to evaluate states' interstate transport obligations. The modeling data were developed to inform our analysis, in various actions, of downwind air quality problems and upwind state impacts on those problems. We published and requested public comment on interstate ozone transport modeling data for two different analytic years. For the purposes of this document, we will be referring to the data from these as the “Transport Future Year 2017 modeling” 5 and the “Transport Future Year 2023 modeling.” 6 The final version of the Transport Future Year 2017 modeling was released with the CSAPR Update and included projections of downwind nonattainment and maintenance receptors as well as calculations of the projected impacts of upwind states to these downwind receptors. The latest version of the Transport Future Year 2023 modeling relied on in this action was released in an October 27, 2017 memorandum “Supplemental Information on the Interstate Transport State Implementation Plan Submissions for the 2008 Ozone National Ambient Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I).” 7 The modeling projections of downwind nonattainment and maintenance receptors as well as calculations of the projected impacts of upwind states to these downwind receptors was released in a March 27, 2018 memorandum “Information on the Interstate Transport State Implementation Plan Submissions for the 2015 Ozone National Ambient Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I).” 8

Using the four step framework and considering the information in the memos, the underlying modeling information and NODA's discussed above, EPA conducted a Weight of Evidence (WOE) evaluation of the State of New Mexico SIP submittal (submitted by the New Mexico Environment Department), the City of Albuquerque—Bernalillo County SIP submittal (submitted by the City of Albuquerque Environmental Health Department) and the New Mexico SIP.

The New Mexico Environment Department (NMED) and City of Albuquerque Environmental Health Department (EHD) each provided submissions intended to demonstrate how the existing New Mexico SIP meets the applicable 110(a)(2)(D)(i)(I) requirements for the 2008 ozone NAAQS. The NMED submittal was received on October 10, 2018 9 while the EHD submittal was made on October 4, 2018. Because the City of Albuquerque and Bernalillo County are a separate, combined jurisdiction from the rest of New Mexico for air quality purposes, the agencies for each jurisdiction made separate submittals to EPA for the 110(a)(2)(D)(i)(I) requirement for 2008 ozone NAAQS. NMED made the submittal on behalf of the New Mexico governor for the City of Albuquerque—Bernalillo County. NMED made the submittal covering the remainder of the State. Each submittal applied a common analytical framework addressing the State as a whole.

Relevant statutes and local ordinances convey the legislative authority for these submittals. Legislative authority for New Mexico's air quality program is codified in Chapter 74 (Environmental Improvement) of the New Mexico Statutes Annotated 1978 (NMSA 1978), which gives the State Environmental Improvement Board and NMED the authority to implement the CAA in New Mexico. Legislative authority for the City of Albuquerque—Bernalillo County Air Quality Control Board and EHD is codified in NMSA 1978 section 74-2-4 and in local ordinances, Revised Ordinances of the City of Albuquerque sections 9-1-5-1 to 9-1-5-99, and Bernalillo County Ordinances sections 30-31 to 30-47.

The authority to implement air quality programs under State statutes is contained in the New Mexico Administrative Code (NMAC), specifically Title 20, Chapter 2—Air Quality (Statewide) and Title 20, Chapter 11—City of Albuquerque—Bernalillo County Air Quality Control Board. These regulations are part of the approved New Mexico SIP and cited in 40 CFR 52.1620(c).

In their submittals, NMED and EHD, both point to certain rules and the Statutes Codified at Title 74 of the NMSA (the Air Quality Control Act 74-2-1) in the infrastructure SIPs (i-SIPs) to support their authority that the New Mexico SIP meets the requirements to prohibit certain adverse air quality effects on downwind states due to interstate transport of pollution. Specifically, they assert in the submittals that the SIP contains adequate provisions to prohibit any emissions activity within the State from emitting air pollutants that will “contribute significantly to nonattainment” (sub-element 1) or “interfere with maintenance” (sub-element 2) of the applicable air quality standard in any other state.

NMED's portion of the SIP contains enforceable emission limitations and other control measures for ozone and its precursors (including NOX and VOCs) in Title 20 Chapter 2 of the New Mexico Administrative Code, Parts 3, 5, 7, 8, 10, 32-34, 72-75, 79, and 99. EHD's portion of the SIP contains enforceable emissions limitations and other control measures for any NAAQS, including ozone and its precursors in Title 20, Chapter 11 NMAC Parts 1-8, 40-41, 47, 49, 60-61, 63-67, 90, and 102. New Mexico and Bernalillo County regulations that have been approved in the New Mexico SIP can be found listed at 40 CFR 52.1620(c).

Both agencies point to the rules for New Source Performance Standards (NSPS), National Emission Standards for Hazardous Air Pollutants (NESHAPS), and Maximum Achievable Control Technology Standards for Source Categories of Hazardous Air Pollutants (MACT).

We note that the SIP approved rules for NMED at 20.2.7.200.A(3) and (6) require that a source subject to NSPS, NESHAPS, and/or MACT must obtain a New Source Review (NSR) SIP Permit. The SIP approved rule at 20.2.72.208 requires that an NSR SIP permit cannot be issued if violations of the NAAQS, NSPS, NESHAPS, MACT, PSD increment, NMED rules, and NMED statutes would occur. The EHD SIP approved rules incorporate by reference the requirement to meet New Source Performance Standards for Stationary Sources, in 20.11.63 NMAC, and Emission Standards for Hazardous Air Pollutants for Stationary Sources in 20.11.64 NMAC. We note that SIP approved rule for EHD at 20.11.41.2.B.1 NMAC requires that sources within Bernalillo County subject to NSPS and NESHAP must obtain an NSR SIP permit. The SIP approved rule at 20.11.41.16(A) requires that an NSR SIP permit cannot be issued if violations of the NAAQS, NSPS, NESHAPS, Board rule, and Air Quality Control Act would occur. The SIP approved rule at 20.11.41.18.B reiterates this.

NMED and EHD also considered the EPA's modeling when developing their SIP submittals intended to demonstrate that their SIP meets CAA section 110(a)(2)(D)(i)(I) requirements for the 2008 ozone NAAQS. They state that neither the Transport Future Year 2017 modeling nor the Transport Future Year 2023 modeling linked New Mexico to any nonattainment receptors in other states. They note that the Transport Future Year 2017 modeling linked New Mexico to one maintenance receptor, National Renewable Energy Lab (NREL), monitor 080590011, in Jefferson County, Colorado, but that the Transport Future Year 2023 modeling did not show New Mexico linked to any maintenance receptors in other states.

In their submittals, NMED and EHD conclude, using a WOE approach, that New Mexico emissions will not contribute significantly to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in other states. They based their WOE conclusion on four elements: (1) The insignificance of EPA modeled impact on nonattainment and maintenance receptors of concern in 2023; (2) Control measures scheduled to be implemented through 2023 that were incorporated into EPA's modeling; (3) An attainment demonstration approved for the Denver nonattainment area for the 2008 ozone NAAQS; And, (4) an exceptional events demonstration for wildfires, which occurred in 2017 that supported the Denver attainment demonstration.

As discussed above, it was necessary for both NMED and the EHD to make independent submittals to demonstrate how the existing New Mexico SIP meets the applicable CAA section 110(a)(2)(D)(i)(I) requirements for the 2008 ozone NAAQS because the organizations have authority for air pollution control in different areas of the State. The submittals, however, are sufficiently similar that for our evaluation we will refer to the departments jointly as “New Mexico” in this document.

EPA reviewed all elements of the WOE analysis provided in the New Mexico submittals as well as additional relevant technical information to determine whether the SIP has adequate provisions to ensure emissions from the State will not contribute significantly to nonattainment of the 2008 ozone NAAQS in a downwind state. While we reviewed all 4 elements of New Mexico's submittal we found elements 1 and 2 to be the most relevant and persuasive with consideration of the additional information provided by EPA's Transport Future Year 2017 modeling analysis. The EPA conducted this review within the established four-step interstate transport framework.

In order to determine whether a state will contribute significantly to nonattainment of the NAAQS in other states, the EPA first identifies projected nonattainment problems in a future analytic year (step 1 of the four-step framework). As mentioned above, EPA identifies nonattainment receptors as those monitoring sites that have projected average Future Design Values (FDVs) 10 exceeding the NAAQS. Both models discussed in Section I above (Transport Future Year 2017 model and Transport Future Year 2023 model) evaluated potential downwind air quality problems and projected contributions from upwind states to downwind receptors.

Both the Transport Future Year 2017 modeling and Transport Future Year 2023 modeling utilized a modeled base-case year of 2011 and monitoring data from the 2009-2013 period to establish the base period DVs. The Transport Future Year 2017 model projected downwind air quality problems and upwind state contributions using meteorological input from the base-case period (2011) with source emissions data estimated for the future year 2017 to yield model projected ozone levels in the future year analysis (2017), also called the “2017 analytic year.” The Transport Future Year 2023 model projected downwind air quality problems and upwind state contributions using meteorological input from the base-case period (2011) with source emissions data estimated for the future year 2023 to yield model projected ozone levels for the future year 2023 analysis, also called the “2023 analytic year.” The Transport Future Year 2017 model forecasted nonattainment receptors located in several areas across the continental United States for the 2008 ozone NAAQS. The Transport Future Year 2023 model forecasted nonattainment receptors only in California for the 2008 ozone NAAQS.

Consistent with previous rulemakings,11 EPA applied a threshold of 1% of the 2008 ozone NAAQS of 75 ppb (0.75 ppb) to identify linkages at step 2 between upwind states and downwind nonattainment receptors. Accordingly, if a state's impact on identified downwind receptors did not equal or exceed 0.75 ppb, the state was not considered “linked” to those receptors and was not considered to contribute significantly to nonattainment or interfere with maintenance of the standard in those downwind areas. However, if a state's impact equaled or exceeded the 0.75 ppb threshold, that state was considered “linked” to the downwind nonattainment or maintenance receptor(s) and further analysis was conducted at step 3 to determine whether the state significantly contributes to nonattainment and in what degree.

As further discussed in our Technical Support Document (TSD) for this action, neither the 2017 nor the 2023 modeling showed New Mexico linked to any nonattainment receptor. The largest impact New Mexico was forecasted by the Transport Future Year 2017 model to make on a nonattainment area (Imperial County, California) was 0.26 ppb, well under EPA's 1% threshold. Likewise, the largest impact New Mexico is forecasted by the Transport Future Year 2023 model to make on a nonattainment area (Imperial County, California) is 0.13 ppb, again, well under EPA's 1% threshold. Since New Mexico is not forecasted to be linked to nonattainment areas at step 2 of the four-step interstate transport framework, undertaking a review of and analyses for the remainder of the four-step process is not warranted. Accordingly, the EPA proposes to agree with the NMED and EHD submittals based on the conclusion that New Mexico will not contribute significantly to nonattainment in any other state and therefore proposes to approve the two SIP revisions with respect to sub-element 1 of the good neighbor provision.

As described in EPA's Sub-Element 1 Evaluation, EPA reviewed all elements of WOE analysis presented in the New Mexico submittals and additional relevant technical information to determine whether the SIP has adequate provisions to ensure emissions from the State will not interfere with maintenance of the 2008 ozone NAAQS in a downwind state.

In order to determine whether a state will interfere with maintenance of the NAAQS in downwind states, EPA first identifies projected maintenance problems in a future analytic year (i.e. step 1 of the four-step framework). EPA identifies maintenance receptors as those monitoring sites with projected maximum FDVs exceeding the NAAQS. As discussed, we have two relevant interstate ozone transport modeling analysis, the Transport Future Year 2017 model analysis and the Transport Future Year 2023 model analysis. The Transport Future Year 2017 model projected maintenance receptors located in several areas across the continental United States for the 2008 ozone NAAQS. The Transport Future Year 2023 model projected maintenance receptors only in California for the 2008 ozone NAAQS.

As above and consistent with previous rulemakings,12 EPA applied a threshold of 1% of the 2008 ozone NAAQS of 75 ppb (0.75 ppb) to identify linkages at step 2 between upwind states and downwind maintenance receptors. EPA's Transport Future Year 2017 model analysis indicated New Mexico was linked to one maintenance receptor, NREL, monitor 080590011, in Jefferson County, Colorado with a maximum modeled 2017 future DV of 0.78 ppb (above the 0.75 ppb 2008 ozone NAAQS), and the modeling-based contribution from New Mexico is 0.77 ppb (above the 0.75 ppb 1% contribution threshold by 0.02 ppb). The Transport Future Year 2023 model analysis did not show New Mexico linked to any maintenance receptors in 2023. The currently applicable ozone attainment date for the 2008 NAAQS in the Denver area is July 2021 and would apply to the NREL receptor. We, however, have not conducted any air quality modeling aligned with the 2021 attainment date, so we evaluated available modeling and emissions data to determine whether we would expect the linkage identified in the 2017 modeling to persist in a year aligned with the applicable attainment date, 2021. As discussed further below, we believe that the New Mexico contribution is currently below the 1% threshold.

EPA examined the projected decrease in New Mexico's anthropogenic NOX emissions inventories between the Transport Future Year 2017 (156,783 tons of NOX) and Transport Future Year 2023 modeling analyses (130,318 tons of NOX), see TSD for full analysis. We evaluated the change in New Mexico's anthropogenic NOX emissions since previous EPA regional modeling has indicated reductions in NOX emissions result in more ozone reductions in the context of reducing upwind state impacts on downwind receptors in other states.13 Regional modeling in Colorado and Denver also indicate that area ozone levels are more sensitive to NOX reductions. There is a projected decrease of 26,465 tons of NOX (approximately 17%) between 2017 and 2023 with most of these reductions (22,292 tons of NOX) occurring from fleet turnover in onroad, nonroad, and rail emissions. New Mexico's Electrical Generating Unit (EGU) NOX emissions are also projected to decrease by 939 tons (approximately 7% of EGU NOX emissions) between 2017 and 2023. The Transport Future Year 2017 analysis includes controls put on San Juan Generating Station Units 1 and 4 and the Transport Future Year 2023 analysis also included reductions due to the enforceable shutdowns of units 2 and 3 by December 31, 2017 as part of Regional Haze Best Available Retrofit Technology (“BART”) SIP.14

Since most of the decreases in New Mexico's anthropogenic NOX emissions are from mobile, onroad, and rail source categories that change annually due to fleet turnover, it is reasonable, in this case, to assume that the change in New Mexico's anthropogenic NOX emissions and downwind ozone impacts is approximately linear for these categories, which in turn would make the decrease in New Mexico contributions to the NREL receptor approximately linear.15

In March 2018 EPA released modeling contribution data for 2023. We used the daily contribution data from this 2023 modeling as part of the process for estimating contributions in the 2020 analytic year. This process included a linear interpolation of contributions between 2017 and 2023 to estimate the contribution from New Mexico in 2020. In order to ensure consistency in the 2020 and 2023 contributions for use in interpolating between these two analytic years, EPA calculated the average contribution from New Mexico to the NREL receptor using the underlying daily 2023 contribution data for the same days that were used to calculate the average contribution for 2017. Specifically, the 2017 contribution analysis included 5 days and we used the daily contributions from these same 5 days to calculate the Transport Future Year 2023 average contribution. Using this consistent methodology, the contribution from New Mexico in 2023 is 0.65 ppb in 2023, which is below the 1% contribution threshold.

We note that change in contribution between 2017 (0.77 ppb) and 2023 (0.65 ppb) is approximately a 16% decrease, which is very similar with the decrease of approximately 17% in New Mexico's anthropogenic NOX emissions inventories between those two years and further supports using linear interpolation in this case. A linear interpolation between the 2017 contribution of 0.77 ppb and the 2023 contribution of 0.65 ppb gives an estimate of the linear rate of decline of the contribution of New Mexico to the NREL monitor of 0.022 ppb per year (0.77−0.65)/6. An estimate of the analytic year contribution for 2020 can be calculated by the equation (0.77−3 * 0.022 ppb) = 0.71. Thus, EPA estimates that the contribution of New Mexico to the NREL maintenance monitor is and will continue to be below the 1% threshold, 0.75 ppb, for determining a linkage.

Had future year modeling been performed for an earlier year of 2020 which would align with 2021 Serious area attainment date for Denver area, our analysis indicates that New Mexico's contribution would be below 0.75 ppb to the NREL receptor, regardless of whether NREL was a maintenance receptor for the 2008 ozone NAAQS in that year, and New Mexico would not be linked to the NREL receptor. By this analysis, New Mexico is not forecasted to be linked to NREL or other maintenance receptors at step 2 of the four-step interstate transport framework, thus, completing a review of and analyses for the remainder of the four-step process is not warranted.

Based on our review of the October 10, 2018, NMED submittal and the October 4, 2018, EHD submittal and other relevant information, EPA proposes to approve the submissions based on the conclusion that New Mexico emissions will not interfere with maintenance of the 2008 ozone NAAQS in any other state and therefore propose to approve the two SIP revisions.

EPA is proposing to (1) determine that consistent with the CAA, that both, New Mexico and City of Albuquerque-Bernalillo County have met their obligation under CAA section 110(a)(2)(D)(i)(I) because New Mexico will not significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in any other state and (2) approve the October 10, 2018 New Mexico and October 4, 2018 City of Albuquerque-Bernalillo County SIP revisions for the 2008 ozone NAAQS interstate transport requirements of CAA 110(a)(2)(D)(i)(I).

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 EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the 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).

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

Section 110 of the Act requires states to develop air pollution regulations and control strategies to ensure that air quality meets the EPA's National Ambient Air Quality Standards (NAAQS). These ambient standards are established under section 109 of the Act and they currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. The state's air regulations are contained in its SIP, which is basically a clean air plan. Each state is responsible for developing SIPs to demonstrate how the NAAQS will be achieved, maintained, and enforced. The SIP must be submitted to the EPA for approval and any changes a state makes to the approved SIP also must be submitted to the EPA for approval.

Section 110(a)(2)(C) of the CAA requires states to develop and submit to the EPA for approval into the SIP, preconstruction review and permitting programs applicable to certain new and modified stationary sources of air pollutants for attainment and nonattainment areas that cover both major and minor new sources and modifications, collectively referred to as the NSR SIP. The CAA NSR SIP program is composed of three separate programs: Prevention of Significant Deterioration (PSD), Nonattainment New Source Review (NNSR), and Minor NSR. The EPA codified minimum requirements for these State permitting programs including public participation and notification requirements at 40 CFR 51.160-51.164. Requirements specific to construction of new stationary sources and major modifications in nonattainment areas are codified in 40 CFR 51.165 for the NNSR program. Requirements for permitting of new stationary sources and major modifications in attainment areas subject to PSD, including additional public participation requirements, are found at 40 CFR 51.166.

The State of Oklahoma submitted revisions to the Oklahoma SIP on May 16, 1994; July 16, 2010; January 8, 2018; May 16, 2018; and December 19, 2018 and a clarification letter dated May 16, 2018. On May 16, 1994, the Governor of Oklahoma submitted the recodification of the Oklahoma regulations as a revision to the Oklahoma SIP. The EPA addressed most of this recodification on November 3, 1999; this proposed rulemaking addresses the repeal of Regulation 3.8. See 64 FR 59629. On July 16, 2010, Mr. J.D. Strong, Secretary of Environment, submitted revisions to the Oklahoma SIP to implement NSR Reform. The submittal included revisions to Subchapters 1 and 8 in OAC 252:100 that became effective June 15, 2006. The EPA has acted on all portions of the July 16, 2010, submittal except for the adoption of OAC 252:100-8-36.1, which will be addressed in this proposed rulemaking. See 81 FR 66535. On January 8, 2018, Mr. Michael Teague, Secretary of Energy and Environment, submitted revisions to the Oklahoma SIP that included the annual SIP update for 2017, with amendments to Subchapters 1, 2, 8, and Appendix Q. On May 16, 2018, Mr. Michael Teague, Secretary of Energy and Environment, submitted revisions to the Oklahoma SIP that included updates and amendments to OAC 252:4, relevant Oklahoma statutes, and a clarification letter dated May 16, 2018, about how the Oklahoma public notice process addresses the requirements for PSD public notice. On December 19, 2018, Mr. Michael Teague, Secretary of Energy and Environment, submitted revisions to the Oklahoma SIP that included the annual SIP updates for 2018, with amendments to OAC 252:100, Subchapters 2, 8, and Appendix Q. Collectively, the submitted revisions update the incorporation by reference of Federal requirements, the general SIP provisions and New Source Review (NSR) permit programs to address public notice and modeling requirements.

The accompanying Technical Support Document (TSD) for this action includes a detailed analysis of the submitted revisions to the Oklahoma SIP. Our analysis indicates that the May 16, 1994; July 16, 2010; January 8, 2018; May 16, 2018; and December 19, 2018, SIP revisions were developed in accordance with the CAA and the State provided reasonable notice and public hearing.

• On May 16, 1994, the Governor of Oklahoma submitted a recodification of the existing Oklahoma regulations as a revision to the Oklahoma SIP; as part of this recodification the State of Oklahoma requested that we remove Regulation 3.8 from the SIP. The EPA has determined that the provisions of Regulation 3.8, approved into the Oklahoma SIP on August 15, 1983, address the control of emissions of hazardous air pollutants (HAPs) and therefore do not need to be included in the Oklahoma SIP. Control of HAP emissions is appropriately addressed through the delegation of NESHAP and MACT standards; see the EPA's recent approval at 83 FR 53183 (October 22, 2018).

• The January 8, 2018, submittal updated the general definitions applicable to the entire Oklahoma SIP at OAC 252:100-1-3 to be consistent with Federal requirements. The definition of “building, facility, or installation” was revised to be consistent with the requirements at 40 CFR 51.165(a)(1)(ii)(A) and (B) and 40 CFR 51.166(b)(6)(i) and (ii). The definition of “carbon dioxide equivalent emissions” was revised to delete the Greenhouse Gas (GHG) Biomass Deferral provisions.1 On May 23, 2016, the EPA disapproved the GHG Biomass Deferral revisions to the definition of “carbon dioxide equivalent emissions” at OAC 252:100-1-3 in the January 8, 2013, SIP submittal. See 81 FR 32239. The deletion of the provisions in the January 8, 2018, submittal is approvable as consistent with Federal requirements for permitting of GHGs and the EPA's May 23, 2016, disapproval. Additionally, removal of the GHG Biomass Deferral provisions from the definition will enable the EPA to remove the disapproval at 40 CFR 52.1922(c).

• The revisions to OAC 252:100, Subchapter 2 and Appendix Q submitted on January 8 and December 19, 2018, update the incorporation by reference dates so the Oklahoma SIP maintains consistency with Federal requirements. The State of Oklahoma is also incorporating by reference the requirements of the EPA's Guideline on Air Quality Models at 40 CFR part 51, appendix W; this updated incorporation ensures that the ODEQ will apply the current EPA models and requirements for SIP and air permit modeling needs.

• The May 16, 2018, Oklahoma SIP submittal included several revisions to existing SIP-approved requirements at OAC 252:4, Rules of Practice and Procedure, applicable to the entirety of the Oklahoma SIP. The submittal included revisions to OAC 252:4, Subchapter 1—General Provisions adopted May 6, 2005, April 25, 2013, and June 9, 2016; OAC 252:4, Subchapter 3—Meetings and Public Forums adopted March 27, 2007; and OAC 252:4, Subchapter 9—Administrative Proceedings, Part 3—Individual Proceedings adopted May 1, 2009, and April 25, 2013. The submitted revisions clarify existing SIP-approved requirements and update internal cross-references to other Oklahoma regulations.

• The May 16, 2018, Oklahoma SIP submittal included several revisions to the existing permit-related SIP requirements at OAC 252:4, Subchapter 7—Environmental Permit Process adopted on March 28, 2002; March 25, 2003, April 25, 2013, and June 13, 2017. OAC 252:4-7-5 has been expanded to clarify how the ODEQ processes permit fees and fee refunds. OAC 252:4-7-13 has been revised to include new public notice requirements. Revisions to OAC 252:4-7-13(g)(1)-(3) adopted on March 25, 2003, ensure consistency with Federal public notice requirements at 40 CFR 51.166(q)(2)(iii) by requiring public notices to be published in a newspaper of general circulation, identify the emissions changes involved in the modification, and require written notice to neighboring states where the air quality may be impacted. Revisions to OAC 252:4-7-13(g)(5) adopted on June 13, 2017, require public notices for PSD permits to specify the degree of increment consumption and that public notices for PSD permits are sent to the applicant, EPA Administrator, and officials and agencies having cognizance over the location of the proposed construction, consistent with the Federal PSD requirements at 40 CFR 51.166(q)(2)(iii) and (iv), discussed more fully in the section about PSD public notice requirements.2 Section OAC 252:4-7-18 has been expanded to clarify how the ODEQ will review and correct a permit prior to issuance. Section OAC 252:4-7-20 has been added to specify the process of ODEQ review of a final permit decision and the contents of the final permit decision administrative record. The SIP-approved portions of OAC 252:4-7-32 have been renumbered; the EPA is only addressing the renumbering in this proposal. Section OAC 252:4-7-33 has been expanded to include new 7-33(c)(3) which requires Tier II public notice for the SIP-approved plant-wide emission plan approvals at OAC 252:100, Subchapters 37 or 39.

• The new provisions at OAC 252:4-17-1—OAC 252:4-17-7 adopted on April 27, 2007, and the revisions to OAC 252:4-17-2 and OAC 252:4-17-4 adopted on June 9, 2016, submitted as a revision to the Oklahoma SIP on May 16, 2018, establish the requirements for Cross-Media Electronic Reporting Rule (CROMERR) compliant electronic reporting under 40 CFR parts 51 and 52 in the State of Oklahoma. The EPA has separately evaluated and approved the Oklahoma Electronic Document Receiving System as CROMERR compliant. See 73 FR 58587, 79 FR 55792, and 81 FR 36301. The requirements at OAC 252:4-17-1 through OAC 252:4-17-7 are approvable as revisions to the Oklahoma SIP consistent with the requirements of 40 CFR 51.286.

The EPA has determined it is appropriate to approve the general revisions to the Oklahoma SIP discussed above because these revisions maintain consistency with Federal requirements and will not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable CAA requirements.

The State of Oklahoma submitted revisions to the PSD Program on January 8, 2018, that were adopted on June 13, 2017 at OAC 252:100-8-31, Definitions; OAC 252:100-8-33, Exemptions; and OAC 252:100-8-35, Air quality impact evaluation. Additional revisions to OAC 252:100-8-35 were adopted on June 18, 2018 and submitted on December 19, 2018.

• The submitted revisions to OAC 252:100-8-31, update the definitions of: (1) “Regulated NSR Pollutant” to be consistent with the Federal requirements at 40 CFR 51.166(b)(49); (2) “Significant” to be consistent with the Federal requirements at 40 CFR 51.166(b)(23); and (3) “Subject to regulation” to remove the GHG Biomass Deferral and GHG PSD permitting requirements for non-anyway sources to be consistent with the Federal requirements at 40 CFR 51.166(b)(48). On May 23, 2016, the EPA disapproved the GHG Biomass Deferral and GHG PSD permitting requirements for non-anyway sources in the definition of “Subject to regulation” at OAC 252:100-8-31 in the January 8, 2013 SIP submittal. See 81 FR 32239. Approval of the revisions to the definition of “Subject to regulation” will allow the EPA to remove the disapproval of the Oklahoma non-anyway permitting provisions at 40 CFR 52.1922(b)(2) and the disapproval of the GHG Biomass Deferral at 40 CFR 52.1922(c).

• The revisions to OAC 252:100-8-33 update the PSD Exemptions consistent with Federal requirements. The provisions at OAC 252:100-8-33(a)(2) have been updated to reflect the Federal requirements at 40 CFR 51.166(i)(2) for nonattainment designations for revoked NAAQS. The exemptions from air quality analysis requirements at OAC 252:100-8-33(c) have been updated to remove the significant monitoring concentration exemption for PM2.5, consistent with the Federal PSD requirements at 40 CFR 51.166(i)(5)(i) and the EPA's prior disapproval on October 28, 2016. See 81 FR 74921. As a result of this change, the EPA will remove the disapproval at 40 CFR 52.1920(b)(3).

• The revisions to OAC 252:100-8-35(a) adopted June 13, 2017 and submitted January 8, 2018, remove the provisions establishing PM2.5 significant impact levels. The EPA previously disapproved the provisions at OAC 252:100-8-35(a)(2) on October 28, 2016. See 81 FR 74921. The deletion of these provisions from the State regulations is consistent with Federal PSD requirements at 40 CFR 51.166(k)(2) and addresses our disapproval. As such, the EPA will remove the disapproval at 40 CFR 52.1922(b)(4).

• The revisions to OAC 252:100-8-35(b) adopted June 18, 2018 and submitted December 19, 2018, remove the incorporation by reference date of the EPA's Guideline on Air Quality Models at 40 CFR part 51, appendix W. This revision is necessary to update the Oklahoma PSD SIP to use the current version of the EPA's Guideline on Air Quality Modeling, consistent with Federal PSD requirements at 40 CFR 51.166(l). The removal of the IBR date in OAC 252:100-8-35(b) works with the updated incorporation by reference dates submitted in OAC 252:100, Subchapter 2 and Appendix Q. As the EPA makes updates to appendix W, the ODEQ will update the Oklahoma SIP IBR dates in OAC 252:100, Subchapter 2 and Appendix Q, thereby ensuring the Oklahoma PSD program will be updated in the future.

• The revisions to OAC 252:100-8-35(c) adopted June 18, 2018 and submitted December 19, 2018, remove the incorporation by reference date of the EPA's 40 CFR part 58, appendix B. The removal of this date ensures the Oklahoma SIP can use the latest version of 40 CFR part 58, appendix B, consistent with the Federal PSD permitting requirements at 40 CFR 51.166(m)(3).

The EPA has determined it is appropriate to approve the revisions to the Oklahoma PSD program submitted January 8 and December 19, 2018, as discussed above because these revisions maintain consistency with Federal requirements and will not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable CAA requirements.

The State of Oklahoma submitted revisions to the NNSR Program on January 8, 2018 that were adopted on June 13, 2017 at OAC 252:100-8-51.1, Emissions reductions and offsets. The submitted revisions update the incorporation by reference date of 40 CFR 51.165(a)(11) to April 6, 2015, consistent with the effective date of the revisions promulgated by the EPA on March 6, 2015 to address the NNSR permitting requirements for the 2008 ozone standard. See 80 FR 12264. The March 6, 2015, final rule specifies that emission offsets for NNSR permitting must be for the same regulated pollutant; states have the discretion to allow interprecursor trading for either ozone or direct PM2.5 emissions only if this discretion is identified in the SIP. The State of Oklahoma is attainment for both ozone and PM2.5; there is no requirement for the Oklahoma SIP to include an NNSR program for either ozone or PM2.5, or to identify whether the State will exercise its discretionary authority to allow interprecursor trading to satisfy emission offset requirements. We can propose approval of the revisions to OAC 252:100-8-51.1 because the State has incorporated by reference Federal permitting requirements. However, if the State of Oklahoma is designated nonattainment for ozone or PM2.5 at any time in the future, a subsequent SIP revision would be necessary to provide for interprecursor trading for emission offsets.

On June 15, 2006, the State of Oklahoma adopted, and submitted on July 26, 2010, a new provision for PSD Public Notice at OAC 252:100-8-36.1. This section relies on the separate authorities found at OAC 252:4 and 27A Oklahoma Statutes (O.S.) 2-5-112 and 27A O.S. 2-14-101 to 2-14-304 to satisfy the Federal public notice requirements for PSD permit applications. On May 16, 2018, the State of Oklahoma submitted a revision to the Oklahoma SIP that included revisions to OAC 252:4, updated versions of the Oklahoma Statutes, and a clarification letter dated May 16, 2018 regarding PSD public notice requirements. The EPA's evaluation of how these regulations and statutes satisfy PSD public notice requirements is summarized below. The full analysis is contained in the TSD for this action.

• 40 CFR 51.166(q)(1) requires that the permitting authority will notify all applicants within a specified time period as to the completeness of the application or any deficiency in the application. The Oklahoma SIP satisfies 40 CFR 51.166(q)(1) through OAC 252:4-7-7, which requires the ODEQ to complete an administrative completeness review within 60 calendar days from receipt of the permit application. If the application is deemed incomplete, then the applicant is notified by mail of the deficiencies and supplemental information is requested. The EPA SIP-approved OAC 252:4-7-7 on May 15, 2017. See 82 FR 22281.

• 40 CFR 51.166(q)(2)(i) requires that within one year after receipt of a complete application, the reviewing authority will make a preliminary determination whether construction should be approved, approved with conditions, or disapproved. The Oklahoma SIP satisfies 40 CFR 51.166(q)(2)(i) through OAC 252:4-7-31, which requires that construction permits for PSD sources be reviewed and issued or denied within 365 days. Construction permits generally cover new PSD sources and modifications to existing PSD sources. The EPA SIP-approved OAC 252:4-7-31 on May 15, 2017. See 82 FR 22281.

• 40 CFR 51.166(q)(2)(ii) requires that within one year after receipt of a complete application, the reviewing authority will make available in at least one location in each region in which the proposed source is proposed to be constructed a copy of all materials the applicant submitted, a copy of the preliminary determination, and any other materials considered in making the preliminary determination. The Oklahoma SIP satisfies 40 CFR 51.66(q)(2)(ii) through the May 16, 2018 clarification letter, the application of 27A O.S. 2-14-302(A), 302(B), and the definition of “Record” at 51 O.S. 24A.3 and OAC 252:4-1-5. Under the definition of “Record” at 51 O.S. 24A.3, any materials provided to the ODEQ during the permit application process would be considered part of the permit record in the State of Oklahoma. Section OAC 252:4-1-5 requires the permit record to be available for public inspection and copying at the ODEQ offices. The ODEQ confirmed this through the May 16, 2018, clarification letter in which they state “All applications, including all materials, updates, modeling files, etc. that are submitted with the application or in support/clarification of the application, are considered part of the application, and, along with the Department's draft permit decision and analysis, are available for public review in the Department's main Oklahoma City office (and/or Tulsa office) (regardless of Tier).” In addition, 27A O.S. 2-14-302(B) (applicable to Tier II and Tier III applications, per 27A O.S. 2-14-302(A)) requires the applicant upon publication of notice of a draft permit, to make the draft permit and the application available for public review at a location in the county where the proposed new site or existing facility is located.

• 40 CFR 51.166(q)(2)(iii) requires that within one year of receipt of a complete application, the reviewing authority will provide public notice in a newspaper of general circulation in each region in which the proposed source would be constructed of the application, the preliminary determination, the expected degree of increment consumption and the opportunity for comment at a public hearing as well as written comments. The Oklahoma SIP satisfies 40 CFR 51.166(q)(2)(iii) through the May 16, 2018 clarification letter, the submitted revisions to OAC 252:4-7-13(g)(5) and the application of 27A O.S. 2-14-301 and 2-14-302. The Oklahoma SIP relies on newspaper notice for the consistent method of noticing under the Federal PSD requirements. 27A O.S. 2-14-301 requires that a permit applicant publish notice of filing in a local newspaper. 27A O.S. 2-14-302 requires that the public notice of the draft permit be provided by the applicant in a local newspaper; notice of a draft denial will be provided by the ODEQ in a local newspaper. The notice of the draft permit or denial will provide 30 days for public comment and the opportunity to request a public meeting. The revisions to OAC 252:4-7-13(g)(5) require that all published notices for a PSD permit application must include the expected degree of increment consumption.

• 40 CFR 51.166(q)(2)(iv) requires that within one year of receipt of a complete application, the reviewing authority will send a copy of the notice of public comment to the applicant, the EPA Administrator, and to officials and agencies having cognizance over the location where the proposed construction would occur. The Oklahoma SIP satisfies 40 CFR 51.166(q)(2)(iv) through the May 16, 2018 clarification letter, the submitted revisions to OAC 252:4-7-13(g) and the application of 27A O.S. 2-14-302. 27A O.S. 2-14-302 requires public notice of the draft permit or denial through the local newspaper. OAC 252:4-7-13(g)(1) requires that permit applicants give notice to individuals on a mailing list maintained by the ODEQ. The revisions to OAC 252:4-7-13(g)(5) specify that the mailing list for PSD permit applicants must include the applicant; the EPA Administrator; chief executives of the city and county where the source would be located; any comprehensive regional land use planning agency; and any State, Federal Land Manager or Tribal Government whose lands may be affected by emissions from the source or modifications.

• 40 CFR 51.166(q)(2)(v) requires that within one year from receipt of a complete application, the reviewing authority must provide opportunity for a public hearing for interested persons to appear and submit written or oral comments. The Oklahoma SIP satisfies 40 CFR 51.166(q)(2)(v) through the May 16, 2018 clarification letter and the application of 27A O.S. 2-14-302 and 27A O.S. 2-14-303. 27A O.S. 2-14-302 requires that a public notice include a 30-day public comment period and the opportunity to request a formal public meeting. 27A O.S. 2-14-303 provides the rules the ODEQ will follow if a formal meeting is requested.

• 40 CFR 51.166(q)(2)(vi) requires that within one year from receipt of a complete application, the reviewing authority will consider all comments, both written and oral, and make all comments available for public inspection. The Oklahoma SIP satisfies 40 CFR 51.166(q)(2)(vi) through the May 16, 2018 clarification letter, the definition of “response to comments” at 27A O.S. 2-14-103, the application of 27A O.S. 2-14-304, the definition of “Record” at 51 O.S. 24A.3, and OAC 252:4-1-5. Through the definition of “record”, any comments submitted either written or oral, would be considered part of the ODEQ's permitting record and pursuant to OAC 252:4-1-5, must be available at the ODEQ offices. The ODEQ is required to prepare a response to comments document consistent with the definition at 27A O.S. 2-14-103 and the requirements at 27A O.S. 2-14-304.

• 40 CFR 51.166(q)(2)(vii) requires that within one year from receipt of a complete application, the reviewing authority will make a final determination on the permit application. The Oklahoma SIP satisfies 40 CFR 51.166(q)(2)(vii) through OAC 252:4-7-31 which requires that construction permits for PSD sources be reviewed and issued or denied within 365 days. This would apply to a new PSD source or modification to an existing PSD source. EPA SIP-approved OAC 252:4-7-31 on May 15, 2017. See 82 FR 22281.

• 40 CFR 51.166(q)(2)(viii) requires that within one year from receipt of a complete application, the reviewing authority will notify the applicant in writing of the final determination and make the notification available for public inspection. The Oklahoma SIP satisfies 40 CFR 51.166(q)(2)(viii) through the May 16, 2018 clarification letter, the submitted revisions to OAC 252:4-7-20(c), the requirements at OAC 252:4-7-31, the application of 27A O.S. 2-14-304, 27A O.S. 2-14-304(C)(2), 27A O.S. 2-14-304(F), and the definition of “Record” at 51 O.S. 24A.3. OAC 252:4-7-31 requires that PSD construction permits will be issued or denied within one year from receipt of a complete application. The EPA SIP-approved the requirements at OAC 252:4-7-31 on November 26, 2010. See 75 FR 72695. 27A O.S. 2-14-304 requires the ODEQ to give notice of the final permit decision to the applicant. The new requirements at OAC 252:4-7-20(c) identify the elements of the permit administrative record that must be prepared by the ODEQ, including the final permit. In addition, OAC 252:4-1-5 requires the record to be available for public inspection at the ODEQ offices.

The EPA has also determined we need to approve portions of the submitted Oklahoma statutes into the Oklahoma SIP because they provide unique authorities not provided elsewhere through Oklahoma regulation. Specifically, the following statutory provisions are necessary for the Oklahoma SIP to satisfy the PSD public notice requirements:

• Definitions of “Process Meeting” and “Response to Comments” at 27A O.S. 2-14-103 added July 1, 1994, and last modified and effective November 1, 2015;

• The provisions for notification to an affected state at 27A O.S. 2-5-112(E) added May 15, 1992, and last modified and effective June 3, 2004;

• 27A O.S. 2-14-301, 2-14-302, and 2-14-303 added and in effect July 1, 1996;

• 27A O.S. 2-14-304 added July 1, 1996, and last modified and effective May 9, 2002;

• Definition of “Record” at 51 O.S. 24A.3, added November 1, 1985, and last modified and effective November 1, 2014;

• The requirement to maintain, and the description of the contents of, the rulemaking record at 75 O.S. 302(B) promulgated in 1963 and last modified and effective November 1, 1998;

• The process for adoption, amendment or revocation of a rule at 75 O.S. 303 promulgated in 1963 and last modified and affective November 1, 2013; and

• Definition of “Meeting” at 25 O.S. 304(2) added October 1, 1977, and last modified and effective in 2010.

The EPA has determined it is appropriate to approve the above identified statutory provisions and regulatory revisions into the Oklahoma SIP because these revisions maintain consistency with Federal requirements for PSD public notice and will not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable CAA requirements.

We are proposing to approve under section 110 of the CAA, revisions to the Oklahoma SIP that revise the incorporation by reference dates for Federal requirements and update the NSR PSD and NNSR permitting programs to maintain consistency with Federal requirements. We have determined that the revisions submitted on May 16, 1994; July 26, 2010; January 8, 2018; May 16, 2018; and December 19, 2018, as clarified by letter dated May 16, 2018, were developed in accordance with the CAA and EPA's regulations, policy, and guidance for SIP development and NSR permitting. The EPA proposes approval of the following as revisions to the Oklahoma SIP:

• Removal of Regulation 3.8, adopted on March 30, 1994, submitted May 16, 1994;

• New OAC 252:100-8-36.1, Public Participation, adopted on April 28, 2006, effective on June 15, 2006, submitted July 16, 2010;

• Submitted on January 8, 2018:

○ Revisions to OAC 252:100-1-3, Definitions, adopted on June 13, 2017 and effective September 15, 2017;

○ Revisions to OAC 252:100-2-3 and Appendix Q for Incorporation by Reference, adopted on June 13, 2017 and effective September 15, 2017;

○ Revisions to OAC 252:100-8-31, Definitions, adopted on June 13, 2017 and effective September 15, 2017;

○ Revisions to OAC 252:100-8-33, Exemptions, adopted on June 13, 2017 and effective September 15, 2017;

○ Revisions to OAC 252:100-8-35, Air quality impact evaluation, adopted on June 13, 2017 and effective September 15, 2017; and

○ Revisions to OAC 252:100-8-51.1, Emissions reductions and offsets, adopted on June 13, 2017 and effective September 15, 2017.

• Submitted on May 16, 2018:

○ Revisions to OAC 252:4-1-2, Definitions, adopted on June 9, 2016, effective September 15, 2016;

○ Revisions to OAC 252:4-1-3, Organization, adopted on April 25, 2013, effective July 1, 2013, and revisions adopted on June 9, 2016, effective September 15, 2016;

○ Revisions to OAC 252:4-1-5, Availability of a record, adopted on May 6, 2005, effective June 15, 2005, and revisions adopted on April 25, 2013, effective July 1, 2013;

○ Revisions to OAC 252:4-1-6, Administrative fees, adopted on May 6, 2005, effective June 15, 2005;

○ Revisions to OAC 252:4-3-1, Meetings, adopted on March 27, 2007, effective June 15, 2007;

○ Revisions to OAC 252:4-7-5, Fees and fee refunds, adopted on June 13, 2017, effective September 15, 2017;

○ Revisions to OAC 252:4-7-13, Notices, adopted on March 25, 2003, effective June 1, 2003, except for OAC 252:4-7-13(g)(4), and revisions adopted April 25, 2013, effective July 1, 2013;

○ Revisions to OAC 252:4-7-15, Permit issuance or denial, adopted on May 28, 2002, effective June 1, 2002, and revisions adopted April 25, 2013, effective July 1, 2013;

○ Revisions to OAC 252:4-7-18, Pre-issuance permit review and correction, adopted April 25, 2013, effective July 1, 2013;

○ New OAC 252:4-7-20, Agency review of final permit decision, adopted April 25, 2013, effective July 1, 2013;

○ Revisions to OAC 252:4-7-32, Air quality applications -Tier I, adopted March 25, 2003, effective June 1, 2003;

○ Revisions to OAC 252:4-7-33, Air quality applications—Tier II, adopted March 25, 2003, effective June 1, 2003, except for OAC 252:4-7-33(c)(4);

○ Revisions to OAC 252:4-9-32, Individual proceedings filed by others, as adopted on May 1, 2009, effective July 1, 2009 and revisions adopted April 25, 2013, effective July 1, 2013;

○ Revisions to OAC 252:4-9-51, In general, adopted on March 24, 2004, effective June 1, 2004;

○ Revisions to OAC 252:4-9-52, Individual proceedings, adopted on March 24, 2004, effective June 1, 2004;

○ New OAC 252:4-17, Electronic Reporting, sections OAC 252:4-17-1—OAC 252:4-17-7, adopted April 27, 2007, effective June 15, 2017;

○ Revisions to OAC 252:4-17-2, Definitions, adopted June 9, 2016, effective September 15, 2016;

○ Revisions to OAC 252:4-17-4, Electronic signature agreement, adopted June 9, 2016, effective September 15, 2016;

○ Letter to Ms. Anne Idsal, Regional Administrator, EPA Region 6, dated May 16, 2018 regarding “Clarification of PSD Public Participation Procedures under 2017 Revisions to the Oklahoma State Implementation Plan (SIP)”;

○ Definitions of “Process Meeting” and “Response to Comments” at 27A O.S. 2-14-103 added July 1, 1994, and last modified and effective November 1, 2015;

○ The provisions for notification to an affected state at 27A O.S. 2-5-112(E) added May 15, 1992, and last modified and effective June 3, 2004;

○ 27A O.S. 2-14-301, 2-14-302, and 2-14-303 added and in effect July 1, 1996;

○ 27A O.S. 2-14-304 added July 1, 1996, and last modified and effective May 9, 2002;

○ Definition of “Record” at 51 O.S. 24A.3, added November 1, 1985, and last modified and effective November 1, 2014;

○ The requirement to maintain, and the description of the contents of, the rulemaking record at 75 O.S. 302(B) promulgated in 1963 and last modified and effective November 1, 1998;

○ The process for adoption, amendment or revocation of a rule at 75 O.S. 303 promulgated in 1963 and last modified and affective November 1, 2013; and

○ Definition of “Meeting” at 25 O.S. 304(2) added October 1, 1977, and last modified and effective in 2010.

• Submitted December 19, 2018:

○ Revisions to OAC 252:100-2-3 and Appendix Q adopted on June 18, 2018 and effective September 15, 2018; and

○ Revisions to OAC 252:100-8-35, Air quality impact evaluation, adopted on June 18, 2018 and effective September 15, 2018.

The EPA is proposing that the provisions in OAC 252:4-1-1, 4-1-2, 4-1-3, 4-1-4, 4-1-5, 4-1-6, 4-1-7, 4-1-8, and 4-1-9, and OAC 252:100-5-1, 5-1.1 and 5-2.2 are applicable to the entirety of the Oklahoma SIP and the amendatory language table at 40 CFR 52.1920(c) should be modified to reflect this finding. Additionally, the EPA proposes to remove the disapprovals listed in 40 CFR 52.1922(b)(2), (3), and (4) and (c), because the State has submitted appropriate revisions to the SIP to correct the disapprovals.

In this action, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are proposing to incorporate by reference revisions to the Oklahoma regulations and statutes as described in the Proposed Action section above. We have made, and will continue to make, these documents generally available electronically through www.regulations.gov and in hard copy at the EPA Region 6 office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the 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 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).

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

The FMP and its implementing regulations require that NMFS, after consultation with the Council, specify the total allowable catch (TAC) for each target species, the sum of which must be within the optimum yield (OY) range of 116,000 to 800,000 metric tons (mt) (§ 679.20(a)(1)(i)(B)). Section 679.20(c)(1) further requires NMFS to publish and solicit public comment on proposed annual TACs and apportionments thereof, Pacific halibut prohibited species catch (PSC) limits, and seasonal allowances of pollock and Pacific cod. The proposed harvest specifications in Tables 1 through 19 of this rule satisfy these requirements. For 2020 and 2021, the sum of the proposed TAC amounts is 408,534 mt.

Under § 679.20(c)(3), NMFS will publish the final 2020 and 2021 harvest specifications after (1) considering comments received within the comment period (see DATES), (2) consulting with the Council at its December 2019 meeting, (3) considering information presented in the 2020 SIR to the Final EIS that assesses the need to prepare a Supplemental EIS (see ADDRESSES), and (4) considering information presented in the final 2019 SAFE reports prepared for the 2020 and 2021 groundfish fisheries.

In October 2019, the Council recommended that sculpins be reclassified in the FMP as an “ecosystem component” species, which is a category of non-target species that are not in need of conservation and management. Currently, NMFS annually sets an overfishing level (OFL), Acceptable Biological Catch (ABC), and TAC for sculpins in the GOA groundfish harvest specifications. Under the Council's recommended action, OFL, ABC, and TAC specifications for sculpins would no longer be required. NMFS intends to develop rulemaking to implement the Council's recommendation for sculpins. Such rulemaking would prohibit directed fishing for sculpins, maintain recordkeeping and reporting, and establish a sculpin maximum retainable amount when directed fishing for groundfish species at 20 percent to discourage retention, while allowing flexibility to prosecute groundfish fisheries. Further details (and public comment on the sculpin action) will be available on publication of the proposed rule to implement an FMP amendment that would reclassify sculpins as an ecosystem component species of the FMP. If the FMP amendment and its implementing regulations are approved by the Secretary of Commerce, the action is anticipated to be effective in 2021. Until effective, NMFS will continue to publish OFLs, ABCs, and TACs for sculpins in the GOA groundfish harvest specifications.

On February 8, 2019, NMFS published a final rule (84 FR 2723) that modified regulations for the AFA Program and CR Program participants subject to limits on the catch of specific species (sideboard limits) in the GOA. Sideboard limits are intended to prevent participants who benefit from receiving exclusive harvesting privileges in a particular fishery from shifting effort to other fisheries. Specifically, the final rule established regulations to prohibit directed fishing for most groundfish species or species groups subject to sideboard limits under the AFA Program and CR Program, rather than prohibiting directed fishing through the annual GOA harvest specifications. Since the final rule is now effective, NMFS is no longer publishing in the annual GOA harvest specifications the AFA Program and CR Program sideboard limit amounts for groundfish species or species groups subject to the final rule. Those groundfish species subject to the final rule associated with sideboard limits are now prohibited to directed fishing in regulation (§§ 679.20(d)(1)(iv)(D) and 680.22(e)(1)(i) and (iii) and Tables 54, 55, and 56 to 50 CFR part 679). NMFS will continue to publish in the annual GOA harvest specifications the AFA Program and CR Program sideboard limit amounts for groundfish species or species groups that were not subject to the final rule (see Tables 13, 14, and 15 of this action).

In June 2019, the Council recommended for Secretarial review Amendment 109 to the FMP. Amendment 109 would revise pollock seasons and Pacific cod seasonal allocations. Amendment 109 would modify the existing annual pollock TAC allocation to two equal (50 percent of TAC) seasonal allocations, rather than four equal seasons (25 percent of TAC). The pollock A and B seasons would be combined into a January 20 through May 31 A season, and the pollock C and D seasons would be combined into a September 1 through November 1 B season. Additionally, Amendment 109 would revise the Pacific cod TAC seasonal apportionments to the trawl CV sector by increasing the A season allocation and decreasing the B season allocation. Further details (and public comment on Amendment 109) will be available on publication of the proposed rule to implement Amendment 109. If Amendment 109 and its implementing regulations are approved by the Secretary of Commerce, the action is anticipated to be effective in 2021.

In October 2019, the Council's Scientific and Statistical Committee (SSC), its Advisory Panel (AP), and the Council reviewed the most recent biological and harvest information about the condition of the GOA groundfish stocks. The Council's GOA Groundfish Plan Team (Plan Team) compiled and presented this information in the final 2018 SAFE report for the GOA groundfish fisheries, dated November 2018 (see ADDRESSES). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the GOA ecosystem and the economic condition of the groundfish fisheries off Alaska. From these data and analyses, the Plan Team recommends, and the SSC sets, an OFL and ABC for each species or species group. The amounts proposed for the 2020 and 2021 OFLs and ABCs are based on the 2018 SAFE report. The AP and Council recommended that the proposed 2020 and 2021 TACs be set equal to proposed ABCs for all species and species groups, with the exception of the species and species groups further discussed below. The proposed OFLs, ABCs, and TACs could be changed in the final harvest specifications depending on the most recent scientific information contained in the final 2019 SAFE report. The stock assessments that will comprise, in part, the 2019 SAFE report are available at https://www.fisheries.noaa.gov/alaska/population-assessments/north-pacific-groundfish-stock-assessment-and-fishery-evaluation. The final 2019 SAFE report will be available from the same source.

In November 2019, the Plan Team will update the 2018 SAFE report to include new information collected during 2019, such as NMFS stock surveys, revised stock assessments, and catch data. The Plan Team will compile this information and present the draft 2019 SAFE report at the December 2019 Council meeting. At that meeting, the SSC and the Council will review the 2019 SAFE report, and the Council will approve the 2019 SAFE report. The Council will consider information in the 2019 SAFE report, recommendations from the November 2019 Plan Team meeting and December 2019 SSC and AP meetings, public testimony, and relevant written public comments in making its recommendations for the final 2020 and 2021 harvest specifications. Pursuant to § 679.20(a)(2) and (3), the Council could recommend adjusting the TACs if warranted based on the biological condition of groundfish stocks or a variety of socioeconomic considerations, or if required to cause the sum of TACs to fall within the optimum yield range.

For sablefish, at its October 2019 meeting, the SSC discussed the Plan Team's recommendation to review the apportionment and specification of the sablefish OFL and its status quo apportionments in the Bering Sea (BS), Aleutian Islands (AI), and the GOA. The sablefish stock assessment currently uses an Alaska-wide model that establishes an Alaska-wide OFL, which is then apportioned to three area specific OFLs: BS, AI, and GOA. The Alaska-wide OFL is currently the measurable and objective criteria used to monitor and assess the status of the sablefish stock to prevent overfishing and to determine whether overfishing has occurred or the stock is overfished. The 2018 sablefish SAFE report highlights that, given extremely high movement rates throughout their range, sablefish are likely one Alaska-wide stock with no sub-populations in Alaska.

At its September 2019 meeting, the Plan Team discussed that there did not appear to be a conservation concern that warranted sub-area OFLs, particularly since the six sub-area ABC apportionments are designed to spread harvest across areas and prevent any localized depletion. At its October 2019 meeting, the SSC had extensive discussion about the appropriate process for considering a combined OFL, and the SSC determined that combining the OFL is a viable option to consider for the OFL specification for 2020 and 2021. The Plan Team and SSC recommended that the sablefish stock assessment include three options for apportioning and specifying sablefish OFLs for review at the November 2019 Plan Team and December 2019 SSC meetings: (1) No change in the apportionment and specification of a BS OFL, an AI OFL, and a GOA OFL (status quo); (2) apportioning and specifying a Bering Sea and Aleutian Islands (BSAI) OFL, and a separate GOA OFL; and (3) specifying an Alaska-wide OFL.

The SSC will review these three options in the sablefish stock assessment to consider a possible change to the current sablefish OFL apportionment during the December Council meeting. Based on the recommendations of the SSC, NMFS may implement a change to the specification of sablefish OFL in the final 2020 and 2021 harvest specifications.

For Pacific cod, at its October 2019 meeting, the SSC discussed the precipitous decline of the Pacific cod stock over recent years, which may have substantial management implications. The Steller sea lion harvest control regulations at § 679.20(d)(4) state that if a biological assessment of the Pacific cod stock projects that the spawning biomass in an area will be equal to or below 20 percent of the projected unfished spawning biomass during a fishing year, then the Regional Administrator will prohibit directed fishing within that area and the directed fishery will remain closed until a subsequent biological assessment projects that the spawning biomass will exceed 20 percent of the projected unfished spawning biomass. Also, if Pacific cod spawning biomass falls below the B17.5 % level, a rebuilding plan will be required to comply with provisions of the Magnuson-Stevens Act. The SSC emphasizes that both of these scenarios are possible, given the results from the preliminary September 2019 models.

In previous years, the most significant changes (relative to the amount of assessed tonnage of fish) to the OFLs and ABCs from the proposed to the final harvest specifications have been based on the most recent NMFS stock surveys. These surveys provide updated estimates of stock biomass and spatial distribution, and inform changes to the models used for producing stock assessments. At the September 2019 Plan Team meeting, NMFS scientists presented updated and new survey results, potential changes to assessment models, and accompanying, preliminary stock estimates. At the October 2019 Council meeting, the SSC reviewed this information. The species with possible significant model changes are Pacific cod, dover sole, rex sole, flathead sole, Pacific ocean perch, and shortraker and rougheye rockfish. Model changes can result in changes to final OFLs, ABCs, and TACs.

In November 2019, the Plan Team will consider updated stock assessments for groundfish, which will be included in the draft 2019 SAFE report. If the 2019 SAFE report indicates that the stock biomass trend is increasing for a species, then the final 2020 and 2021 harvest specifications for that species may reflect an increase from the proposed harvest specifications. Conversely, if the 2019 SAFE report indicates that the stock biomass trend is decreasing for a species, then the final 2020 and 2021 harvest specifications may reflect a decrease from the proposed harvest specifications.

The proposed 2020 and 2021 OFLs, ABCs, and TACs are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. The FMP specifies the tiers to be used to compute OFLs and ABCs. The tiers applicable to a particular stock or stock complex are determined by the level of reliable information available to the fisheries scientists. This information is categorized into a successive series of six tiers to define OFL and ABC amounts, with Tier 1 representing the highest level of information quality available and Tier 6 representing the lowest level of information quality available. The Plan Team used the FMP tier structure to calculate OFLs and ABCs for each groundfish species. The SSC adopted the proposed 2020 and 2021 OFLs and ABCs recommended by the Plan Team for all groundfish species. The Council adopted the SSC's OFL and ABC recommendations and the AP's TAC recommendations.

The Council recommended proposed 2020 and 2021 TACs that are equal to proposed ABCs for all species and species groups, with the exception of pollock in the combined Western and Central Regulatory Areas and the West Yakutat (WYK) District of the Eastern Regulatory Area (the W/C/WYK Regulatory Area), Pacific cod, shallow-water flatfish in the Western Regulatory Area, arrowtooth flounder, flathead sole in the Western and Central Regulatory Areas, and Atka mackerel. The W/C/WYK Regulatory Area pollock TAC and the GOA Pacific cod TACs are set to account for the State of Alaska's (State's) guideline harvest levels (GHLs) for the State water pollock and Pacific cod fisheries so that the ABCs are not exceeded. The shallow-water flatfish, arrowtooth flounder, and flathead sole TACs are set to allow for increased harvest opportunities for these target species while conserving the halibut PSC limit for use in other fisheries. The Atka mackerel TAC is set to accommodate incidental catch amounts in other fisheries. These reductions are described below.

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

The ABC for the pollock stock in the W/C/WYK Regulatory Area accounts for the GHL established by the State for the Prince William Sound (PWS) pollock fishery. The Plan Team, SSC, AP, and Council have recommended that the sum of all State water and Federal water pollock removals from the GOA not exceed ABC recommendations. For 2020 and 2021, the Council recommended the W/C/WYK pollock ABC, including the amount to account for the State's PWS GHL. At the November 2018 Plan Team meeting, State fisheries managers recommended setting the PWS GHL at 2.5 percent of the annual W/C/WYK pollock ABC. For 2020, this yields a PWS pollock GHL of 2,722 mt, a decrease from the 2019 PWS GHL of 3,396 mt. After accounting for PWS GHL, the 2020 and 2021 pollock ABC for the combined W/C/WYK areas is then apportioned among four statistical areas (Areas 610, 620, 630, and 640) as both ABCs and TACs, as described below and detailed in Table 1. The total ABCs and TACs for the four statistical areas, plus the State GHL, do not exceed the combined W/C/WYK ABC. The proposed W/C/WYK 2020 and 2021 pollock ABC is 108,892 mt, and the proposed TAC is 106,170 mt.

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

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

The proposed 2020 and 2021 Pacific cod TACs are set to accommodate the State's GHLs for Pacific cod in State waters in the Western and Central Regulatory Areas, as well as in PWS (see Table 1). The Plan Team, SSC, AP, and Council recommended that the sum of all State water and Federal water Pacific cod removals from the GOA not exceed ABC recommendations. Accordingly, the Council set the 2020 and 2021 Pacific cod TACs in the Western, Central, and Eastern Regulatory Areas to account for State GHLs. Therefore, the proposed 2020 and 2021 Pacific cod TACs are less than the proposed ABCs by the following amounts: (1) Western GOA, 2,909 mt; (2) Central GOA, 2,435 mt; and (3) Eastern GOA, 540 mt. These amounts reflect the State's 2020 and 2021 GHLs in these areas, which are 30 percent of the Western GOA proposed ABC, and 25 percent of the Eastern and Central GOA proposed ABCs.

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

The Council's recommendation for sablefish area apportionments takes into account the prohibition on the use of trawl gear in the SEO District of the Eastern Regulatory Area (§ 679.7(b)(1)) and makes available five percent of the combined Eastern Regulatory Area TACs to vessels using trawl gear for use as incidental catch in other trawl groundfish fisheries in the WYK District (§ 679.20(a)(4)(i)). Additional detail is provided below. Tables 4 and 5 list the proposed 2020 and 2021 allocations of the sablefish TAC to fixed gear and trawl gear in the GOA.

For 2020 and 2021, the Council recommends and NMFS proposes the OFLs, ABCs, and TACs listed in Table 1. The proposed ABCs reflect harvest amounts that are less than the specified overfishing levels. These amounts are consistent with the biological condition of groundfish stocks as described in the 2018 SAFE report, and adjusted for other biological and socioeconomic considerations, including maintaining the total TAC within the required OY range. The sum of the proposed TACs for all GOA groundfish is 408,534 mt for 2020 and 2021, which is within the OY range specified by the FMP. These proposed amounts and apportionments by area, season, and sector are subject to change pending consideration of the 2019 SAFE report and the Council's recommendations for the final 2020 and 2021 harvest specifications during its December 2019 meeting.

Section 679.20(b)(2) requires NMFS to set aside 20 percent of each TAC for pollock, Pacific cod, flatfish, sculpins, sharks, and octopuses in reserve for possible apportionment at a later date during the fishing year. Section 679.20(b)(3) authorizes NMFS to reapportion all or part of these reserves. In 2019, NMFS reapportioned all of the reserves in the final harvest specifications. For 2020 and 2021, NMFS proposes reapportionment of each of the reserves for pollock, Pacific cod, flatfish, sculpins, sharks, and octopuses back into the original TAC from which the reserve was derived. NMFS expects, based on recent harvest patterns, that such reserves will not be necessary and that the entire TAC for each of these species will be caught. The TACs in Table 1 reflect this proposed reapportionment of reserve amounts to the original TAC for these species and species groups, i.e., each proposed TAC for the above-mentioned species or species groups contains the full TAC recommended by the Council.

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

Pollock TACs in the Western and Central Regulatory Areas of the GOA are apportioned among Statistical Areas 610, 620, and 630 in propostion to the distribution of pollock biomass, pursuant to § 679.20(a)(5)(iv)(A). In the A and B seasons, the apportionments previously were in proportion to the distribution of pollock based on the four most recent NMFS winter surveys. In the C and D seasons, the apportionments were in proportion to the distribution of pollock based on the four most recent NMFS summer surveys. For 2020 and 2021, the Council recommends, and NMFS proposes, following the apportionment methodology for the A season that was previously used for the 2019 and 2020 harvest specifications. This methodology averages the winter and summer distribution of pollock in the Central Regulatory Area for the A season instead of using the distribution based on only the winter surveys. The average is intended to reflect the best available information about migration patterns, distribution of pollock, and the performance of the fishery in the area during the A season for the 2019 and 2020 fishing years. For the A season, the apportionment is based on the proposed adjusted estimate of the relative distribution of pollock biomass of approximately 3 percent, 86 percent, and 11 percent in Statistical Areas 610, 620, and 630, respectively. For the B season, the apportionment is based on the relative distribution of pollock biomass of approximately 3 percent, 86 percent, and 11 percent in Statistical Areas 610, 620, and 630, respectively. For the C and D seasons, the apportionment is based on the relative distribution of pollock biomass of approximately 37 percent, 27 percent, and 37 percent in Statistical Areas 610, 620, and 630, respectively. The pollock chapter of the 2018 SAFE report (see ADDRESSES) contains a comprehensive description of the apportionment process and reasons for the minor changes from past apportionments.

Within any fishing year, the amount by which a seasonal allowance is underharvested or overharvested may be added to, or subtracted from, subsequent seasonal allowances in a manner to be determined by the Regional Administrator (§ 679.20(a)(5)(iv)(B)). The rollover amount is limited to 20 percent of the subsequent seasonal TAC apportionment for the statistical area. Any unharvested pollock above the 20-percent limit could be further distributed to the subsequent season in the other statistical areas, in proportion to the estimated biomass to the subsequent season and in an amount no more than 20 percent of the seasonal TAC apportionment in those statistical areas (§ 679.20(a)(5)(iv)(B)). The proposed 2020 and 2021 pollock TACs in the WYK District of 4,607 mt and the SEO District of 8,773 mt are not allocated by season.

Table 2 lists the proposed 2020 and 2021 seasonal biomass distribution of pollock in the Western and Central Regulatory Areas, area apportionments, and seasonal allowances. The amounts of pollock for processing by the inshore and offshore components are not shown. Section 679.20(a)(6)(i) requires allocation of 100 percent of the pollock TAC in all regulatory areas and all seasonal allowances to vessels catching pollock for processing by the inshore component after subtraction of amounts projected by the Regional Administrator to be caught by, or delivered to, the offshore component incidental to directed fishing for other groundfish species. Thus, the amount of pollock available for harvest by vessels harvesting pollock for processing by the offshore component is the amount that will be taken as incidental catch during directed fishing for groundfish species other than pollock, up to the maximum retainable amounts allowed by § 679.20(e) and (f). At this time, the incidental catch amounts of pollock are unknown and will be determined during the 2020 fishing year.

Pursuant to § 679.20(a)(12)(i), NMFS proposes allocations for the 2020 and 2021 Pacific cod TACs in the Western and Central Regulatory Areas of the GOA among gear and operational sectors. NMFS also proposes allocating the 2020 and 2021 Pacific cod TACs annually between the inshore (90 percent) and offshore (10 percent) components in the Eastern Regulatory Area of the GOA (§ 679.20(a)(6)(ii)). In the Central GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear, and then among catcher vessels (CVs) less than 50 feet in length overall using hook-and-line gear, CVs equal to or greater than 50 feet in length overall using hook-and-line gear, catcher/processors (C/Ps) using hook-and-line gear, CVs using trawl gear, C/Ps using trawl gear, and vessels using pot gear (§ 679.20(a)(12)(i)(B)). In the Western GOA, the Pacific cod TAC is apportioned seasonally first to vessels using jig gear, and then among CVs using hook-and-line gear, C/Ps using hook-and-line gear, CVs using trawl gear, C/Ps using trawl gear, and vessels using pot gear (§ 679.20(a)(12)(i)(A)). The overall seasonal apportionments in the Western and Central GOA are 60 percent of the annual TAC to the A season and 40 percent of the annual TAC to the B season.

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

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

NMFS has evaluated the historical harvest performance of the jig sector in the Western and Central GOA, and proposes 2020 and 2021 Pacific cod apportionments to this sector based on its historical harvest performance through 2018. For 2020 and 2021, NMFS proposes that the jig sector receive 2.5 percent of the annual Pacific cod TAC in the Western GOA. This includes a base allocation of 1.5 percent and an additional performance increase of 1.0 percent. NMFS also proposes that the jig sector receive 1.0 percent of the annual Pacific cod TAC in the Central GOA. This includes a base allocation of 1.0 percent and no additional performance increase. The 2014 through 2018 Pacific cod jig allocations, catch, and percent allocation changes are listed in Figure 1.

NMFS will re-evaluate the annual 2019 harvest performance of the jig sector in the Western and Central GOA when the 2019 fishing year is complete to determine whether to change the jig sector allocations proposed by this action in conjunction with the final 2020 and 2021 harvest specifications. The current catch through October 2019 by the Western GOA jig sector indicates that the Pacific cod allocation percentage to this sector would probably increase by 1 percent in 2020 (from 2.5 percent to 3.5 percent). Also, the current catch by the Central GOA jig sector indicates that this sector's Pacific cod allocation percentage would not change in 2020, and would remain at 1 percent. The jig sector allocations for the Western and Central GOA are further apportioned between the A (60 percent) and B (40 percent) seasons (§§ 679.20(a)(12)(i) and 679.23(d)(3)(iii)).

Table 3 lists the seasonal apportionments and allocations of the proposed 2020 and 2021 Pacific cod TACs.

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

In recognition of the prohibition against trawl gear in the SEO District of the Eastern Regulatory Area, the Council recommended and NMFS proposes specifying for incidental catch the allocation of 5 percent of the combined Eastern Regulatory Area sablefish TAC to trawl gear in the WYK District. The remainder of the WYK sablefish TAC is allocated to vessels using fixed gear. This proposed action allocates 100 percent of the sablefish TAC in the SEO District to vessels using fixed gear. This results in a proposed 2020 allocation of 321 mt to trawl gear and 2,112 mt to fixed gear in the WYK District, a proposed 2020 allocation of 3,993 mt to fixed gear in the SEO District, and a proposed 2021 allocation of 321 mt to trawl gear in the WYK District. Table 4 lists the allocations of the proposed 2020 sablefish TACs to fixed and trawl gear. Table 5 lists the allocations of the proposed 2021 sablefish TACs to trawl gear.

The Council recommended that the trawl sablefish TAC be established for two years so that retention of incidental catch of sablefish by trawl gear could commence in January in the second year of the groundfish harvest specifications. Tables 4 and 5 list the proposed 2020 and 2021 trawl allocations, respectively.

The Council recommended that the fixed gear sablefish TAC be established annually to ensure that the sablefish IFQ fishery is conducted concurrently with the halibut IFQ fishery and is based on the most recent survey information. Since there is an annual assessment for sablefish and since the final harvest specifications are expected to be published before the IFQ season begins (typically, in early March), the Council recommended that the fixed gear sablefish TAC be set annually, rather than for 2 years, so that the best available scientific information could be considered in establishing the sablefish ABCs and TACs. Accordingly, Table 4 lists the proposed 2020 fixed gear allocations, and the 2021 fixed gear allocations will be specified in the 2021 and 2022 harvest specifications.

With the exception of the trawl allocations that are provided to the Rockfish Program (see Table 28c to 50 CFR part 679), directed fishing for sablefish with trawl gear is closed during the fishing year. Also, fishing for groundfish with trawl gear is prohibited prior to January 20 (§ 679.23(c)). Therefore, it is not likely that the sablefish allocation to trawl gear would be reached before the effective date of the final 2021 and 2022 harvest specifications.

These proposed 2020 and 2021 harvest specifications for the GOA include the fishery cooperative allocations and sideboard limitations established by the Rockfish Program. Program participants are primarily trawl CVs and trawl C/Ps, with limited participation by vessels using longline gear. The Rockfish Program assigns quota share and cooperative quota to participants for primary species (Pacific ocean perch, northern rockfish, and dusky rockfish) and secondary species (Pacific cod, rougheye rockfish, sablefish, shortraker rockfish, and thornyhead rockfish), allows a participant holding a license limitation program (LLP) license with rockfish quota share to form a rockfish cooperative with other persons, and allows holders of C/P LLP licenses to opt out of the fishery. The Rockfish Program also has an entry level fishery for rockfish primary species for vessels using longline gear. Longline gear includes hook-and-line, jig, troll, and handline gear.

Under the Rockfish Program, rockfish primary species in the Central GOA are allocated to participants after deducting for incidental catch needs in other directed fisheries (§ 679.81(a)(2)). Participants in the Rockfish Program also receive a portion of the Central GOA TAC of specific secondary species. In addition to groundfish species, the Rockfish Program allocates a portion of the halibut PSC limit (191 mt) from the third season deep-water species fishery allowance for the GOA trawl fisheries to Rockfish Program participants (§ 679.81(d) and Table 28d to 50 CFR part 679). The Rockfish Program also establishes sideboard limits to restrict the ability of harvesters that operate under the Rockfish Program to increase their participation in other, non-Rockfish Program fisheries. These restrictions and halibut PSC limits are discussed in a subsequent section titled “Rockfish Program Groundfish Sideboard and Halibut PSC Limitations.”

Section 679.81(a)(2)(ii) and Table 28e to 50 CFR part 679 require allocations of 5 mt of Pacific ocean perch, 5 mt of northern rockfish, and 50 mt of dusky rockfish to the entry level longline fishery in 2020 and 2021. The allocation for the entry level longline fishery may increase incrementally each year if the catch exceeds 90 percent of the allocation of a species. The incremental increase in the allocation would continue each year until it reaches the maximum percentage of the TAC for that species. In 2019, the catch for all three primary species did not exceed 90 percent of any allocated rockfish species. Therefore, NMFS is not proposing any increases to the entry level longline fishery 2020 and 2021 allocations in the Central GOA. The remainder of the TACs for the rockfish primary species would be allocated to the CV and C/P cooperatives (§ 679.81(a)(2)(iii)). Table 6 lists the allocations of the proposed 2020 and 2021 TACs for each rockfish primary species to the entry level longline fishery, the potential incremental increases for future years, and the maximum percentages of the TACs for the entry level longline fishery.

Section 679.81 requires allocations of rockfish primary species among various sectors of the Rockfish Program. Table 7 lists the proposed 2020 and 2021 allocations of rockfish primary species in the Central GOA to the entry level longline fishery, and rockfish CV and C/P cooperatives in the Rockfish Program. NMFS also proposes setting aside incidental catch amounts (ICAs) for other directed fisheries in the Central GOA of 3,000 mt of Pacific ocean perch, 300 mt of northern rockfish, and 250 mt of dusky rockfish. These amounts are based on recent average incidental catches in the Central GOA by other groundfish fisheries.

Allocations among vessels belonging to CV or C/P cooperatives are not included in these proposed harvest specifications. Rockfish Program applications for CV cooperatives and C/P cooperatives are not due to NMFS until March 1 of each calendar year; therefore, NMFS cannot calculate 2020 and 2021 allocations in conjunction with these proposed harvest specifications. NMFS will post the 2020 allocations on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/alaska-fisheries-management-reports#central-goa-rockfish when they become available after March 1.

Section 679.81(c) and Table 28c to 50 CFR part 679 requires allocations of rockfish secondary species to CV and C/P cooperatives in the Central GOA. CV cooperatives receive allocations of Pacific cod, sablefish from the trawl gear allocation, and thornyhead rockfish. C/P cooperatives receive allocations of sablefish from the trawl gear allocation, rougheye and blackspotted rockfish, shortraker rockfish, and thornyhead rockfish. Table 8 lists the apportionments of the proposed 2020 and 2021 TACs of rockfish secondary species in the Central GOA to CV and C/P cooperatives.

Section 679.21(d) establishes annual halibut PSC limit apportionments to trawl and hook-and-line gear, and authorizes the establishment of apportionments for pot gear. In October 2019, the Council recommended, and NMFS now proposes, halibut PSC limits of 1,706 mt for trawl gear, 257 mt for hook-and-line gear, and 9 mt for the demersal shelf rockfish (DSR) fishery in the SEO District.

The DSR fishery in the SEO District is defined at § 679.21(d)(2)(ii)(A). This fishery is apportioned 9 mt of the halibut PSC limit in recognition of its small-scale harvests of groundfish (§ 679.21(d)(2)(i)(A)). The separate halibut PSC limit for the DSR fishery is intended to prevent that fishery from being impacted from the halibut PSC incurred by other GOA fisheries. NMFS estimates low halibut bycatch in the DSR fishery because (1) the duration of the DSR fisheries and the gear soak times are short, (2) the DSR fishery occurs in the winter when there is less overlap in the distribution of DSR and halibut, and (3) the directed commercial DSR fishery has a low DSR TAC. The Alaska Department of Fish and Game sets the commercial GHL for the DSR fishery after deducting (1) estimates of DSR incidental catch in all fisheries (including halibut and subsistence); and (2) the allocation to the DSR sport fish fishery. Of the 261 mt TAC for DSR in 2019, 25 mt were available for directed fishing by the DSR commercial fishery, of which 18 mt were harvested (through September 25, 2019).

The FMP authorizes the Council to exempt specific gear from the halibut PSC limits. NMFS, after consultation with the Council, proposes to exempt pot gear, jig gear, and the sablefish IFQ hook-and-line gear fishery categories from the non-trawl halibut PSC limit for 2020 and 2021. The Council recommended, and NMFS is proposing, these exemptions because (1) pot gear fisheries have low annual halibut bycatch mortality; (2) IFQ program regulations prohibit discard of halibut if any halibut IFQ permit holder on board a CV holds unused halibut IFQ for that vessel category and the IFQ regulatory area in which the vessel is operating (§ 679.7(f)(11)); (3) some sablefish IFQ permit holders hold halibut IFQ permits and are therefore required to retain the halibut they catch while fishing sablefish IFQ; and (4) NMFS estimates negligible halibut mortality for the jig gear fisheries given the small amount of groundfish harvested by jig gear, the selective nature of jig gear, and the high survival rates of halibut caught and released with jig gear.

The best available information on estimated halibut bycatch consists of data collected by fisheries observers during 2019. The calculated halibut bycatch mortality through October 5, 2019 is 818 mt for trawl gear and 48 mt for hook-and-line gear for a total halibut mortality of 866 mt. This halibut mortality was calculated using groundfish and halibut catch data from the NMFS Alaska Region's catch accounting system. This accounting system contains historical and recent catch information compiled from each Alaska groundfish fishery.

Section 679.21(d)(4)(i) and (ii) authorizes NMFS to seasonally apportion the halibut PSC limits after consultation with the Council. The FMP and regulations require that the Council and NMFS consider the following information in seasonally apportioning halibut PSC limits: (1) Seasonal distribution of halibut, (2) seasonal distribution of target groundfish species relative to halibut distribution, (3) expected halibut bycatch needs on a seasonal basis relative to changes in halibut biomass and expected catch of target groundfish species, (4) expected bycatch rates on a seasonal basis, (5) expected changes in directed groundfish fishing seasons, (6) expected actual start of fishing effort, and (7) economic effects of establishing seasonal halibut allocations on segments of the target groundfish industry. Based on public comment, the information presented in the 2019 SAFE report, and catch data from NMFS, the State, or the International Pacific Halibut Commission (IPHC), the Council may recommend or NMFS may make changes to the seasonal, gear-type, or fishery category apportionments of halibut PSC limits for the final 2020 and 2021 harvest specifications pursuant to § 679.21(d)(1) and (d)(4).

The final 2019 and 2020 harvest specifications (84 FR 9416, March 14, 2019) summarized the Council's and NMFS's findings for these FMP and regulatory considerations with respect to halibut PSC limits. The Council's and NMFS's proposed findings for these proposed 2020 and 2021 harvest specifications are unchanged from the final 2019 and 2020 harvest specifications. Table 9 lists the proposed 2020 and 2021 Pacific halibut PSC limits, allowances, and apportionments. The halibut PSC limits in these tables reflect the halibut PSC limits set forth at § 679.21(d)(2) and (3). Section 679.21(d)(4)(iii) and (iv) specifies that any underages or overages of a seasonal apportionment of a halibut PSC limit will be added to or deducted from the next respective seasonal apportionment within the fishing year.

Section 679.21(d)(3)(ii) authorizes further apportionment of the trawl halibut PSC limit as bycatch allowances to trawl fishery categories listed in § 679.21(d)(3)(iii). The annual apportionments are based on each category's share of the anticipated halibut bycatch mortality during a fishing year and optimization of the total amount of groundfish harvest under the halibut PSC limit. The fishery categories for the trawl halibut PSC limits are (1) a deep-water species fishery, composed of sablefish, rockfish, deep-water flatfish, rex sole, and arrowtooth flounder; and (2) a shallow-water species fishery, composed of pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, skates, and “other species” (sculpins, sharks, and octopuses) (§ 679.21(d)(3)(iii)). Halibut mortality incurred while directed fishing for skates with trawl gear accrues towards the shallow-water species fishery halibut PSC limit (69 FR 26320, May 12, 2004). Table 10 lists the proposed 2020 and 2021 seasonal apportionments of trawl halibut PSC limits between the trawl gear deep-water and the shallow-water species fisheries.

NMFS will combine available trawl halibut PSC limit apportionments in part of the second season deep-water and shallow-water species fisheries for use in either fishery from May 15 through June 30 (§ 679.21(d)(4)(iii)(D)). This is intended to maintain groundfish harvest while minimizing halibut bycatch by these sectors to the extent practicable. This provides the trawl gear deep-water and shallow-water species fisheries additional flexibility and the incentive to participate in fisheries at times of the year that may have lower halibut PSC rates relative to other times of the year.

Table 28d to 50 CFR part 679 specifies the amount of the trawl halibut PSC limit that is assigned to the CV and C/P sectors that are participating in the Central GOA Rockfish Program. This includes 117 mt of halibut PSC limit to the CV sector and 74 mt of halibut PSC limit to the C/P sector. These amounts are allocated from the trawl deep-water species fishery's halibut PSC third seasonal apportionment. After the combined CV and C/P halibut PSC limit allocation of 191 mt to the Rockfish Program, 150 mt remains for the trawl deep-water species fishery's halibut PSC third seasonal apportionment.

Section 679.21(d)(4)(iii)(B) limits the amount of the halibut PSC limit allocated to Rockfish Program participants that could be re-apportioned to the general GOA trawl fisheries to no more than 55 percent of the unused annual halibut PSC limit apportioned to Rockfish Program participants. The remainder of the unused Rockfish Program halibut PSC limit is unavailable for use by any person for the remainder of the fishing year (§ 679.21(d)(4)(iii)(C)).

Section 679.21(d)(2) requires that the “other hook-and-line fishery” halibut PSC limit apportionment to vessels using hook-and-line gear be divided between CVs and C/Ps. NMFS must calculate the halibut PSC limit apportionments for the entire GOA to hook-and-line CVs and C/Ps in accordance with § 679.21(d)(2)(iii) and in conjunction with these harvest specifications. A comprehensive description and example of the calculations necessary to apportion the “other hook-and-line fishery” halibut PSC limit between the hook-and-line CV and C/P sectors were included in the proposed rule to implement Amendment 83 to the FMP (76 FR 44700, July 26, 2011) and are not repeated here.

For 2020 and 2021, NMFS proposes annual halibut PSC limit apportionments of 120 mt and 137 mt to the hook-and-line CV and hook-and-line C/P sectors, respectively. The 2020 and 2021 annual halibut PSC limits are divided into three seasonal apportionments, using seasonal percentages of 86 percent, 2 percent, and 12 percent. Table 11 lists the proposed 2020 and 2021 annual halibut PSC limits and seasonal apportionments between the hook-and-line CV and hook-and-line C/P sectors in the GOA.

No later than November 1 each year, any halibut PSC limit allocated under § 679.21(d)(2)(ii)(B) not projected by the Regional Administrator to be used by one of the hook-and-line sectors during the remainder of the fishing year will be made available to the other sector. NMFS calculates the projected unused amount of halibut PSC limit by either the CV hook-and-line or the C/P hook-and-line sectors of the “other hook-and-line fishery” for the remainder of the year. The projected unused amount of halibut PSC limit by either of these sectors is made available to the remaining hook-and-line sector for the remainder of that fishing year if NMFS determines that an additional amount of halibut PSC limit is necessary for that sector to continue its directed fishing operations (§ 679.21(d)(2)(iii)(C)).

To monitor halibut bycatch mortality allowances and apportionments, the Regional Administrator uses observed halibut incidental catch rates, halibut discard mortality rates (DMRs), and estimates of groundfish catch to project when a fishery's halibut bycatch mortality allowance or seasonal apportionment is reached. Halibut incidental catch rates are based on observers' estimates of halibut incidental catch in the groundfish fishery. DMRs are estimates of the proportion of incidentally caught halibut that do not survive after being returned to the sea. The cumulative halibut mortality that accrues to a particular halibut PSC limit is the product of a DMR multiplied by the estimated halibut PSC. DMRs are estimated using the best scientific information available in conjunction with the annual GOA stock assessment process. The DMR methodology and findings are included as an appendix to the annual GOA groundfish SAFE report.

In 2016, the DMR estimation methodology underwent revisions per the Council's directive. An interagency halibut working group (IPHC, Council, and NMFS staff) developed improved estimation methods that have undergone review by the Plan Team, the SSC, and the Council. A summary of the revised methodology is contained in the GOA proposed 2017 and 2018 harvest specifications (81 FR 87881, December 6, 2016), and the comprehensive discussion of the working group's statistical methodology is available from the Council (see ADDRESSES). The DMR working group's revised methodology is intended to improve estimation accuracy, transparency, and transferability in the methodology used for calculating DMRs. The working group will continue to consider improvements to the methodology used to calculate halibut mortality, including potential changes to the reference period (the period of data used for calculating the DMRs). Future DMRs may change based on additional years of observer sampling, which could provide more recent and accurate data and which could improve the accuracy of estimation and progress on methodology. The methodology will continue to ensure that NMFS is using DMRs that more accurately reflect halibut mortality, which will inform the different sectors of their estimated halibut mortality and allow specific sectors to respond with methods that could reduce mortality and, eventually, the DMR for that sector.

In October 2019, the Council recommended adopting the halibut DMRs derived from the revised methodology for the proposed 2020 and 2021 DMRs. The proposed 2020 and 2021 DMRs use an updated 2-year reference period of 2017 and 2018. Comparing the proposed 2020 and 2021 DMRs to the final DMRs from the 2019 and 2020 harvest specifications, the proposed DMR for Rockfish Program CVs using non-pelagic trawl gear increased to 52 percent from 49 percent, the proposed DMR for non-Rockfish Program C/Vs using non-pelagic trawl gear increased to 68 percent from 67 percent, the proposed DMR for C/Ps and motherships using non-pelagic trawl gear decreased to 75 percent from 79 percent, the proposed DMR for CVs using hook-and-line gear decreased to 13 percent from 21 percent, and the proposed DMR for C/Ps and CVs using pot gear decreased to 0 percent from 4 percent. Table 12 lists the proposed 2020 and 2021 DMRs.

Federal regulations at 50 CFR part 679 implement the FMP and govern the groundfish fisheries in the BSAI. The Council prepared the FMP, and NMFS approved it, under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The FMP and its implementing regulations require that NMFS, after consultation with the Council, specify annually the total allowable catch (TAC) for each target species category. The sum of TACs for all groundfish species in the BSAI must be within the optimum yield (OY) range of 1.4 million to 2.0 million metric tons (mt) (see § 679.20(a)(1)(i)(A)). Section 679.20(c)(1) further requires that NMFS publish proposed harvest specifications in the Federal Register and solicit public comments on proposed annual TACs and apportionments thereof, prohibited species catch (PSC) allowances, prohibited species quota (PSQ) reserves established by § 679.21, seasonal allowances of pollock, Pacific cod, and Atka mackerel TAC, American Fisheries Act allocations, Amendment 80 allocations, Community Development Quota (CDQ) reserve amounts established by § 679.20(b)(1)(ii), and acceptable biological catch (ABC) surpluses and reserves for CDQ groups and Amendment 80 cooperatives for flathead sole, rock sole, and yellowfin sole. The proposed harvest specifications set forth in Tables 1 through 15 of this action satisfy these requirements.

Under § 679.20(c)(3), NMFS will publish the final 2020 and 2021 harvest specifications after (1) considering comments received within the comment period (see DATES), (2) consulting with the Council at its December 2019 meeting, (3) considering information presented in the 2020 SIR to the Final EIS that assesses the need to prepare a Supplemental EIS (see ADDRESSES), and (4) considering information presented in the final 2019 SAFE reports prepared for the 2020 and 2021 groundfish fisheries.

In October 2019, the Council recommended that sculpins be reclassified in the FMP as an “ecosystem component” species, which is a category of non-target species that are not in need of conservation and management. Currently, NMFS annually sets an overfishing level (OFL), ABC, and TAC for sculpins in the BSAI groundfish harvest specifications. Under the Council's recommended action, OFL, ABC, and TAC specifications for sculpins would no longer be required. NMFS intends to develop rulemaking to implement the Council's recommendation for sculpins. Such a rulemaking would prohibit directed fishing for sculpins, maintain recordkeeping and reporting requirements, and establish a sculpin maximum retainable amount when directed fishing for groundfish species at 20 percent to discourage retention, while allowing flexibility to prosecute groundfish fisheries. Further details (and public comment on the sculpin action) will be available on publication of the proposed rule to implement an FMP amendment that would reclassify sculpins as an ecosystem component species in the FMP. If the FMP amendment and its implementing regulations are approved by the Secretary of Commerce, the action is anticipated to be effective in 2021. Until effective, NMFS will continue to publish OFLs, ABCs, and TACs for sculpins in the BSAI groundfish harvest specifications.

On February 8, 2019, NMFS published a final rule (84 FR 2723) that modified regulations for the AFA Program participants subject to limits on the catch of specific species (sideboard limits) in the BSAI. Sideboard limits are intended to prevent participants who benefit from receiving exclusive harvesting privileges in a particular fishery from shifting effort to other fisheries. Specifically, the final rule established regulations to prohibit directed fishing for most groundfish species or species groups subject to sideboard limits under the AFA Program, rather than prohibiting directed fishing through the annual BSAI harvest specifications. Since the final rule is now effective, NMFS is no longer publishing in the annual BSAI harvest specifications the AFA Program sideboard limit amounts for groundfish species or species groups subject to the final rule. Those groundfish species subject to the final rule associated with sideboard limits are now prohibited from directed fishing in regulation (§ 679.20(d)(1)(iv)(D) and Tables 54, 55, and 56 to 50 CFR part 679). NMFS will continue to publish in the annual BSAI harvest specifications the AFA Program sideboard limit amounts for groundfish species or species groups that were not subject to the final rule (see Tables 13-15 of this action).

For 2020 and 2021, the Board of Fisheries (BOF) for the State of Alaska (State) established the guideline harvest level (GHL) for vessels using pot gear in State waters in the Bering Sea subarea (BS) equal to 9 percent of the Pacific cod ABC in the BS. The State's pot gear BS GHL will increase one percent annually up to 15 percent of the BS ABC, if 90 percent of the GHL is harvested by November 15 of the preceding year. If 90 percent of the 2020 BS GHL is not harvested by November 15, 2020, then the 2021 BS GHL will remain at the same percent as the 2020 BS GHL. If 90 percent of the 2020 BS GHL is harvested by November 15, 2020, then the 2021 BS GHL will increase by one percent and the 2020 BS TAC will be set to account for the increased BS GHL. Also, for 2020 and 2021, the BOF established an additional GHL for vessels using jig gear in State waters in the BS equal to 45 mt of Pacific cod in the BS. The Council and its BSAI Groundfish Plan Team (Plan Team), Scientific and Statistical Committee (SSC), and Advisory Panel (AP) recommended that the sum of all State and Federal water Pacific cod removals from the BS not exceed the ABC recommendations for Pacific cod in the BS. Accordingly, the Council recommended, and NMFS proposes, that the 2020 and 2021 Pacific cod TACs in the BS account for the State's GHLs for Pacific cod caught in State waters in the BS.

For 2020 and 2021, the BOF for the State established the GHL in State waters in the Aleutian Islands subarea (AI). The 2019 AI GHL was set at 31 percent of the 2019 AI ABC (84 FR 9000; March 13, 2019). The AI GHL will increase annually by 4 percent of the AI ABC, if 90 percent of the GHL is harvested by November 15 of the preceding year, but may not exceed 39 percent of the AI ABC or 15 million pounds (6,804 mt). In 2019, 90 percent of the GHL has been harvested by November 15, 2019, which triggers a 4 percent increase in the GHL; however, 35 percent of the proposed AI ABC is 7,210 mt, which exceeds the AI GHL limit of 6,804 mt. The Council and its Plan Team, SSC, and AP recommended that the sum of all State and Federal water Pacific cod removals from the AI not exceed the proposed ABC recommendations for Pacific cod in the AI. Accordingly, the Council recommended, and NMFS proposes, that the 2020 and 2021 Pacific cod TACs in the AI account for the State's GHL of 6,804 mt for Pacific cod caught in State waters in the AI.

In October 2019, the Council's SSC, its AP, and the Council reviewed the most recent biological and harvest information on the condition of the BSAI groundfish stocks. This information was compiled by the Plan Team and presented in the final 2018 SAFE report for the BSAI groundfish fisheries, dated November 2018 (see ADDRESSES). The final 2019 SAFE report will be available from the same source.

The proposed 2020 and 2021 harvest specifications are based on the final 2020 harvest specifications published in March 2019 (84 FR 9000; March 13, 2019), which were set after consideration of the most recent 2018 SAFE report, and are based on the initial survey data that were presented at the September 2019 Plan Team meeting. The proposed 2020 and 2021 harvest specifications in this action are subject to change in the final harvest specifications to be published by NMFS following the Council's December 2019 meeting.

In November 2019, the Plan Team will update the 2018 SAFE report to include new information collected during 2019, such as NMFS stock surveys, revised stock assessments, and catch data. The Plan Team will compile this information and present the draft 2019 SAFE report at the December 2019 Council meeting. At that meeting, the SSC and the Council will review the 2019 SAFE report, and the Council will approve the 2019 SAFE report. The Council will consider information contained in the 2019 SAFE report, recommendations from the November 2019 Plan Team meeting and December 2019 SSC and AP meetings, public testimony, and relevant written comments in making its recommendations for the final 2020 and 2021 harvest specifications.

For sablefish, at its October 2019 meeting, the SSC discussed the Plan Team's recommendation to review the apportionment and specification of the sablefish OFL and its status quo apportionments in the BS, AI, and the Gulf of Alaska (GOA). The sablefish stock assessment currently uses an Alaska-wide model that establishes an Alaska-wide OFL, which is then apportioned to three area specific OFLs: BS, AI, and GOA. The Alaska-wide OFL is currently the measurable and objective criteria used to monitor and assess the status of the sablefish stock to prevent overfishing and to determine whether overfishing has occurred or the stock is overfished. The 2018 sablefish SAFE highlights that, given extremely high movement rates throughout their range, sablefish are likely one Alaska-wide stock with no sub-populations in Alaska.

At its September 2019 meeting, the Plan Team discussed that there did not appear to be a conservation concern that warranted subarea OFLs, particularly since the six sub-area ABC apportionments are designed to spread harvest across areas and prevent any localized depletion. At its October 2019 meeting, the SSC had extensive discussion about the appropriate process for considering a combined OFL, and the SSC determined that combining the OFL is a viable option to consider for the OFL specification for 2020 and 2021. The Plan Team and SSC recommended that the sablefish stock assessment include three options for apportioning and specifying sablefish OFLs for review at the November 2019 Plan Team and December 2019 SSC meetings: (1) No change in the apportionment and specification of a BS OFL, an AI OFL, and a GOA OFL (status quo); (2) apportioning and specifying a BSAI OFL, and a separate GOA OFL; and (3) specifying an Alaska-wide OFL.

The SSC will review these three options in the sablefish stock assessment to consider a possible change to the current sablefish OFL apportionment during the December Council meeting. Based on the recommendations of the SSC, NMFS may implement a change to the specification of sablefish OFL in the final 2020 and 2021 harvest specifications.

In previous years, the most significant changes (relative to the amount of assessed tonnage of fish) to the OFLs and ABCs from the proposed to the final harvest specifications have been based on the most recent NMFS stock surveys. These surveys provide updated estimates of stock biomass and spatial distribution, and inform changes to the models or the models' results used for producing stock assessments. Any changes to models used in stock assessments will be recommended by the Plan Team in November 2019 and then included in the final 2019 SAFE report. Model changes can result in changes to final OFLs, ABCs, and TACs. The final 2019 SAFE report will include the most recent information, such as catch data.

The final harvest specification amounts for these stocks are not expected to vary greatly from these proposed harvest specification amounts. If the 2019 SAFE report indicates that the stock biomass trend is increasing for a species, then the final 2020 and 2021 harvest specifications may reflect an increase from the proposed harvest specifications. Conversely, if the 2019 SAFE report indicates that the stock biomass trend is decreasing for a species, then the final 2020 and 2021 harvest specifications may reflect a decrease from the proposed harvest specifications. In addition to changes driven by biomass trends, there may be changes in TACs due to the sum of ABCs exceeding 2 million mt. Since the regulations require TACs to be set to an OY between 1.4 and 2 million mt, the Council may be required to recommend TACs that are lower than the ABCs recommended by the Plan Team and the SSC, if setting TACs equal to ABCs would cause total TACs to exceed an OY of 2 million mt. Generally, total ABCs greatly exceed 2 million mt in years with a large pollock biomass. For both 2020 and 2021, NMFS anticipates that the sum of the final ABCs will exceed 2 million mt. NMFS expects that the final total TAC for the BSAI for both 2020 and 2021 will equal 2 million mt each year.

The proposed OFLs, ABCs, and TACs are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. The FMP specifies a series of six tiers to define OFLs and ABCs based on the level of reliable information available to fishery scientists. Tier 1 represents the highest level of information quality available, while Tier 6 represents the lowest.

In October 2019, the SSC adopted the proposed 2020 and 2021 OFLs and ABCs recommended by the Plan Team for all groundfish species. The Council adopted the SSC's OFL and ABC recommendations. These amounts are, for the most part, unchanged from the final 2020 harvest specifications published in the Federal Register on March 13, 2019 (84 FR 9000), with the exception of the removal 824 metric tons (mt) from the AI Pacific cod TAC to account for an increase in the AI GHL fishery, and a corresponding increase of 824 mt to the BS pollock TAC, so that the sum of the proposed TACs is within the OY of up to 2 million mt. For 2020 and 2021, the Council recommended, and NMFS proposes, the OFLs, ABCs, and TACs listed in Table 1. The proposed ABCs reflect harvest amounts that are less than the specified OFLs. The sum of the proposed 2020 and 2021 ABCs for all assessed groundfish is 2,967,269 mt. The sum of the proposed TACs is 2,000,000 mt.

The Council recommended proposed TACs that are equal to the proposed ABCs for 2020 and 2021 AI sablefish, BS sablefish, Central AI Atka mackerel, BS and Eastern AI Atka mackerel, BS Pacific ocean perch, Central AI Pacific ocean perch, Eastern AI Pacific ocean perch, and AI “other rockfish.” The Council recommended proposed TACs less than the respective proposed ABCs for all other species. Section 679.20(a)(5)(iii)(B)(1) requires the AI pollock TAC to be set at 19,000 mt when the AI pollock ABC equals or exceeds 19,000 mt. The Bogoslof pollock TAC is set to accommodate incidental catch amounts. TACs are set so that the sum of the overall TAC does not exceed the BSAI OY.

The proposed groundfish OFLs, ABCs, and TACs are subject to change pending the completion of the final 2019 SAFE report and the Council's recommendations for the final 2020 and 2021 harvest specifications during its December 2019 meeting. These proposed amounts are consistent with the biological condition of groundfish stocks as described in the 2018 SAFE report, and have been adjusted for other biological and socioeconomic considerations. Pursuant to Section 3.2.3.4.1 of the FMP, the Council could recommend adjusting the final TACs if “warranted on the basis of bycatch considerations, management uncertainty, or socioeconomic considerations; or if required in order to cause the sum of the TACs to fall within the OY range.” Table 1 lists the proposed 2020 and 2021 OFL, ABC, TAC, initial TAC (ITAC), and CDQ amounts for groundfish for the BSAI. The proposed apportionment of TAC amounts among fisheries and seasons is discussed below.

Section 679.20(b)(1)(i) requires NMFS to reserve 15 percent of the TAC for each target species category (except for pollock, hook-and-line and pot gear allocation of sablefish, and Amendment 80 species) in a non-specified reserve. Section 679.20(b)(1)(ii)(B) requires that NMFS allocate 20 percent of the hook-and-line or pot gear allocation of sablefish to the fixed gear sablefish CDQ reserve for each subarea. Section 679.20(b)(1)(ii)(D) requires that NMFS allocate 7.5 percent of the trawl gear allocation of sablefish and 10.7 percent of BS Greenland turbot and arrowtooth flounder TACs to the respective CDQ reserves. Section 679.20(b)(1)(ii)(C) requires that NMFS allocate 10.7 percent of the TACs for Atka mackerel, AI Pacific ocean perch, yellowfin sole, rock sole, flathead sole, and Pacific cod to the respective CDQ reserves.

Sections 679.20(a)(5)(i)(A) and 679.31(a) require allocation of 10 percent of the BS pollock TAC to the pollock CDQ directed fishing allowance (DFA). Sections 679.20(a)(5)(iii)(B)(2)(i) and 679.31(a) require 10 percent of the AI pollock TAC be allocated to the pollock CDQ DFA. The entire Bogoslof District pollock TAC is allocated as an ICA pursuant to § 679.20(a)(5)(ii) because the Bogoslof District is closed to directed fishing for pollock by regulation (§ 679.22(a)(7)(B)). With the exception of the hook-and-line or pot gear sablefish CDQ reserve, the regulations do not further apportion the CDQ reserves by gear.

Pursuant to § 679.20(a)(5)(i)(A)(1), NMFS proposes a pollock ICA of 3.9 percent or 49,871 mt of the BS pollock TAC after subtracting the 10 percent CDQ DFA. This allowance is based on NMFS's examination of the pollock incidentally retained and discarded catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2000 through 2019. During this 20-year period, the pollock incidental catch ranged from a low of 2.2 percent in 2006 to a high of 4.6 percent in 2014, with a 20-year average of 3 percent. Pursuant to §§ 679.20(a)(5)(iii)(B)(2)(i) and (ii), NMFS proposes a pollock ICA of 14 percent or 2,400 mt of the AI pollock TAC after subtracting the 10 percent CDQ DFA. This allowance is based on NMFS's examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2003 through 2019. During this 17-year period, the incidental catch of pollock ranged from a low of 5 percent in 2006 to a high of 17 percent in 2014, with a 17-year average of 9 percent.

Pursuant to §§ 679.20(a)(8) and (10), NMFS proposes ICAs of 3,000 mt of flathead sole, 6,000 mt of rock sole, 4,000 mt of yellowfin sole, 10 mt of Western Aleutian District Pacific ocean perch, 60 mt of Central Aleutian District Pacific ocean perch, 100 mt of Eastern Aleutian District Pacific ocean perch, 20 mt of Western Aleutian District Atka mackerel, 75 mt of Central Aleutian District Atka mackerel, and 800 mt of Eastern Aleutian District and BS Atka mackerel, after subtracting the 10.7 percent CDQ reserve. These ICAs are based on NMFS's examination of the average incidental catch in other target fisheries from 2003 through 2019.

The regulations do not designate the remainder of the non-specified reserve by species or species group. Any amount of the reserve may be apportioned to a target species that contributed to the non-specified reserve during the year, provided that such apportionments are consistent with § 679.20(a)(3) and do not result in overfishing (see § 679.20(b)(1)(i)).

Section 679.20(a)(5)(i)(A) requires that BS pollock TAC be apportioned as a DFA, after subtracting 10 percent for the CDQ Program and 3.9 percent for the ICA, as follows: 50 percent to the inshore sector, 40 percent to the catcher/processor (C/P) sector, and 10 percent to the mothership sector. In the BS, 45 percent of the DFA is allocated to the A season (January 20 to June 10), and 55 percent of the DFA is allocated to the B season (June 10 to November 1) (§§ 679.20(a)(5)(i)(B)(1) and 679.23(e)(2)). The AI directed pollock fishery allocation to the Aleut Corporation is the amount of pollock TAC remaining in the AI after subtracting 1,900 mt for the CDQ DFA (10 percent), and 2,400 mt for the ICA (§ 679.20(a)(5)(iii)(B)(2)). In the AI, the total A season apportionment of the pollock TAC (including the AI directed fishery allocation, the CDQ DFA, and the ICA) may equal up to 40 percent of the ABC for AI pollock, and the remainder of the pollock TAC is allocated to the B season (§ 679.20(a)(5)(iii)(B)(3)). Table 2 lists these proposed 2020 and 2021 amounts.

Section 679.20(a)(5)(iii)(B)(6) sets harvest limits for pollock in the A season (January 20 to June 10) in Areas 543, 542, and 541. In Area 543, the A season pollock harvest limit is no more than 5 percent of the AI pollock ABC. In Area 542, the A season pollock harvest limit is no more than 15 percent of the AI pollock ABC. In Area 541, the A season pollock harvest limit is no more than 30 percent of the AI pollock ABC.

Section 679.20(a)(5)(i)(A)(4) includes several specific requirements regarding BS pollock allocations. First, it requires that 8.5 percent of the pollock allocated to the C/P sector be available for harvest by AFA catcher vessels (CV) with C/P sector endorsements, unless the Regional Administrator receives a cooperative contract that allows the distribution of harvest among AFA C/Ps and AFA CVs in a manner agreed to by all members. Second, AFA C/Ps not listed in the AFA are limited to harvesting not more than 0.5 percent of the pollock allocated to the C/P sector. Table 2 lists the proposed 2020 and 2021 allocations of pollock TAC. Tables 13, 14, and 15 list the AFA C/P and CV harvesting sideboard limits. The BS inshore pollock cooperative and open access sector allocations are based on the submission of AFA inshore cooperative applications due to NMFS on December 1 of each calendar year. Because AFA inshore cooperative applications for 2020 have not been submitted to NMFS, and NMFS therefore cannot calculate 2020 allocations, NMFS has not included inshore cooperative tables in these proposed harvest specifications. NMFS will post 2020 AFA inshore pollock cooperative and open access sector allocations on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/alaska-fisheries-management-reports prior to the start of the fishing year on January 1, 2020, based on the harvest specifications effective on that date.

Table 2 also lists proposed seasonal apportionments of pollock and harvest limits within the Steller Sea Lion Conservation Area (SCA). The harvest of pollock within the SCA, as defined at § 679.22(a)(7)(vii), is limited to no more than 28 percent of the annual pollock DFA before 12:00 noon, April 1, as provided in § 679.20(a)(5)(i)(C). The A season pollock SCA harvest limit will be apportioned to each sector in proportion to each sector's allocated percentage of the DFA. Table 2 lists these proposed 2020 and 2021 amounts by sector.

Section 679.20(a)(8) allocates the Atka mackerel TACs to the Amendment 80 and BSAI trawl limited access sectors, after subtracting the CDQ reserves, ICAs for the BSAI trawl limited access sector and non-trawl gear sectors, and the jig gear allocation (Table 3). The percentage of the ITAC for Atka mackerel allocated to the Amendment 80 and BSAI trawl limited access sectors is listed in Table 33 to 50 CFR part 679 and in § 679.91. Pursuant to § 679.20(a)(8)(i), up to 2 percent of the Eastern Aleutian District and Bering Sea subarea Atka mackerel TAC may be allocated to vessels using jig gear. The percent of this allocation is recommended annually by the Council based on several criteria, including the anticipated harvest capacity of the jig gear fleet. The Council recommended, and NMFS proposes, a 0.5 percent allocation of the Atka mackerel TAC in the Eastern Aleutian District and Bering Sea subarea to jig gear in 2020 and 2021.

Section 679.20(a)(8)(ii)(A) apportions the Atka mackerel TAC into two equal seasonal allowances. Section 679.23(e)(3) sets the first seasonal allowance for directed fishing with trawl gear from January 20 through June 10 (A season), and the second seasonal allowance from June 10 through December 31 (B season). Section 679.23(e)(4)(iii) applies Atka mackerel seasons to trawl CDQ Atka mackerel fishing. The ICA and jig gear allocations are not apportioned by season.

Section 679.20(a)(8)(ii)(C)(1)(i) and (ii) limits Atka mackerel catch within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to 50 CFR part 679 and located west of 178° W longitude to no more than 60 percent of the annual TACs in Areas 542 and 543, and equally divides the annual TAC between the A and B seasons as defined at § 679.23(e)(3). Section 679.20(a)(8)(ii)(C)(2) requires that the annual TAC in Area 543 will be no more than 65 percent of the ABC in Area 543. Section 679.20(a)(8)(ii)(D) requires that any unharvested Atka mackerel A season allowance that is added to the B season be prohibited from being harvested within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to 50 CFR part 679 and located in Areas 541, 542, and 543.

Table 3 lists the proposed 2020 and 2021 Atka mackerel season allowances, area allowances, and the sector allocations. One Amendment 80 cooperative has formed for the 2020 fishing year. Because all Amendment 80 vessels are part of the cooperative, no allocation to the Amendment 80 limited access sector is required for 2020. The 2021 allocations for Atka mackerel between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2020. NMFS will post 2021 Amendment 80 cooperatives and Amendment 80 limited access sector allocations on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/sustainable-fisheries-alaska prior to the start of the fishing year on January 1, 2021, based on the harvest specifications effective on that date.

The Council separated BS and AI subarea OFLs, ABCs, and TACs for Pacific cod in 2014 (79 FR 12108; March 4, 2014). Section 679.20(b)(1)(ii)(C) allocates 10.7 percent of the BS TAC and the AI TAC to the CDQ Program. After CDQ allocations have been deducted from the respective BS and AI Pacific cod TACs, the remaining BS and AI Pacific cod TACs are combined for calculating further BSAI Pacific cod sector allocations. If the non-CDQ Pacific cod TAC is or will be reached in either the BS or the AI subareas, NMFS will prohibit directed fishing for non-CDQ Pacific cod in that subarea, as provided in § 679.20(d)(1)(iii).

Section 679.20(a)(7)(i) and (ii) allocates to the non-CDQ sectors the combined BSAI Pacific cod TAC, after subtracting 10.7 percent for the CDQ Program, as follows: 1.4 percent to vessels using jig gear, 2.0 percent to hook-and-line or pot CVs less than 60 ft (18.3 m) length overall (LOA), 0.2 percent to hook-and-line CVs greater than or equal to 60 ft (18.3 m) LOA, 48.7 percent to hook-and-line C/Ps, 8.4 percent to pot CVs greater than or equal to 60 ft (18.3 m) LOA, 1.5 percent to pot C/Ps, 2.3 percent to AFA trawl C/Ps, 13.4 percent to the Amendment 80 sector, and 22.1 percent to trawl CVs. The BSAI ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of BSAI Pacific cod TAC allocated to the hook-and-line and pot sectors. For 2020 and 2021, the Regional Administrator proposes a BSAI ICA of 400 mt, based on anticipated incidental catch by these sectors in other fisheries.

The BSAI ITAC allocation of Pacific cod to the Amendment 80 sector is established in Table 33 to 50 CFR part 679 and § 679.91. One Amendment 80 cooperative has formed for the 2020 fishing year. Because all Amendment 80 vessels are part of the cooperative, no allocation to the Amendment 80 limited access sector is required for 2020. The 2021 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2020. NMFS will post 2021 Amendment 80 cooperatives and Amendment 80 limited access allocations on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/sustainable-fisheries-alaska prior to the start of the fishing year on January 1, 2021, based on the harvest specifications effective on that date.

The sector allocations of Pacific cod are apportioned into seasonal allowances to disperse the Pacific cod fisheries over the fishing year (see §§ 679.20(a)(7)(i)(B), 679.20 (a)(7)(iv)(A), and 679.23(e)(5)). In accordance with §§ 679.20(a)(7)(iv)(B) and (C), any unused portion of a Pacific cod seasonal allowance for any sector, except the jig sector, will become available at the beginning of that sector's next seasonal allowance.

Section 679.20(a)(7)(vii) requires that the Regional Administrator establish an Area 543 Pacific cod harvest limit based on Pacific cod abundance in Area 543. Based on the 2018 stock assessment, the Regional Administrator determined for 2020 and 2021 that the estimated amount of Pacific cod abundance in Area 543 is 15.7 percent of total AI abundance. NMFS will first subtract the State GHL Pacific cod amount from the AI Pacific cod ABC. Then NMFS will determine the harvest limit in Area 543 by multiplying the percentage of Pacific cod estimated in Area 543 (15.7 percent) by the remaining ABC for AI Pacific cod. Based on these calculations, which rely on the 2018 stock assessment, the proposed Area 543 harvest limit is 2,102 mt. However, the final Area 543 harvest limit could change if the Pacific cod abundance in Area 543 changes based on the stock assessment in the final 2019 SAFE report.

On March 21, 2019, the final rule adopting Amendment 113 to the FMP (81 FR 84434; November 23, 2016) was vacated by the U.S. District Court for the District of Columbia (Groundfish Forum v. Ross, No. 16-2495 (D.D.C. March 21, 2019)), and the corresponding regulations implementing Amendment 113 are no longer in effect. Therefore, this proposed rule is not specifying amounts for the AI Pacific Cod Catcher Vessel Harvest Set-Aside Program (see § 679.20(a)(7)(viii)).

Table 4 lists the CDQ and non-CDQ seasonal allowances by gear based on the proposed 2020 and 2021 Pacific cod TACs; the sector allocation percentages of Pacific cod set forth at §§ 679.20(a)(7)(i)(B) and (a)(7)(iv)(A); and the seasons set forth at § 679.23(e)(5).

Section 679.20(a)(4)(iii) and (iv) require allocation of sablefish TAC for the BS and AI between trawl gear and hook-and-line or pot gear. Gear allocations of the sablefish TAC for the BS are 50 percent for trawl gear and 50 percent for hook-and-line or pot gear. Gear allocations of the TAC for the AI are 25 percent for trawl gear and 75 percent for hook-and-line or pot gear. Section 679.20(b)(1)(ii)(B) requires that NMFS apportion 20 percent of the hook-and-line or pot gear allocation of sablefish TAC to the CDQ reserve for each subarea. Also, § 679.20(b)(1)(ii)(D)(1) requires that 7.5 percent of the trawl gear allocation of sablefish TAC from the non-specified reserve, established under § 679.20(b)(1)(i), be apportioned to the CDQ reserve. The Council recommended that only trawl sablefish TAC be established biennially. The harvest specifications for the hook-and-line or pot gear sablefish Individual Fishing Quota (IFQ) fisheries are limited to the 2020 fishing year to ensure those fisheries are conducted concurrently with the halibut IFQ fishery. Concurrent sablefish and halibut IFQ fisheries reduce the potential for discards of halibut and sablefish in those fisheries. The sablefish IFQ fisheries remain closed at the beginning of each fishing year until the final harvest specifications for the sablefish IFQ fisheries are in effect. Table 5 lists the proposed 2020 and 2021 gear allocations of the sablefish TAC and CDQ reserve amounts.

Section 679.20(a)(10)(i) and (ii) require that NMFS allocate AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole TACs between the Amendment 80 sector and the BSAI trawl limited access sector, after subtracting 10.7 percent for the CDQ reserves and amounts for ICAs for the BSAI trawl limited access sector and vessels using non-trawl gear. The allocation of the ITAC for AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole to the Amendment 80 sector is established in Tables 33 and 34 to 50 CFR part 679 and in § 679.91.

One Amendment 80 cooperative has formed for the 2020 fishing year. Because all Amendment 80 vessels are part of the cooperative, no allocation to the Amendment 80 limited access sector is required for 2020. The 2021 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2020. NMFS will post 2021 Amendment 80 cooperatives and Amendment 80 limited access sector allocations on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/sustainable-fisheries-alaska prior to the start of the fishing year on January 1, 2021, based on the harvest specifications effective on that date. Section 679.91(i)(2) establishes each Amendment 80 cooperative ABC reserve to be the ratio of each cooperatives' quota share units and the total Amendment 80 quota share units, multiplied by the Amendment 80 ABC reserve for each respective species. Table 6 lists the proposed 2020 and 2021 allocations of the AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole TACs.

Section 679.2 defines the ABC surplus for flathead sole, rock sole, and yellowfin sole as the difference between the annual ABC and TAC for each species. Section 679.20(b)(1)(iii) establishes ABC reserves for flathead sole, rock sole, and yellowfin sole. The ABC surpluses and the ABC reserves are necessary to mitigate the operational variability, environmental conditions, and economic factors that may constrain the CDQ groups and the Amendment 80 cooperatives from achieving, on a continuing basis, the optimum yield in the BSAI groundfish fisheries. NMFS, after consultation with the Council, may set the ABC reserve at or below the ABC surplus for each species, thus maintaining the TAC below ABC limits. An amount equal to 10.7 percent of the ABC reserves will be allocated as CDQ ABC reserves for flathead sole, rock sole, and yellowfin sole. Section 679.31(b)(4) establishes the annual allocations of CDQ ABC reserves among the CDQ groups. The Amendment 80 ABC reserves are the ABC reserves minus the CDQ ABC reserves and are allocated to each Amendment 80 cooperative pursuant to § 679.91(i)(2). Table 7 lists the proposed 2020 and 2021 ABC surplus and ABC reserves for BSAI flathead sole, rock sole, and yellowfin sole.

Section 679.21(b), (e), (f), and (g) set forth the BSAI PSC limits. Pursuant to § 679.21(b)(1), the annual BSAI halibut PSC limits total 3,515 mt. Section 679.21(b)(1) allocates 315 mt of the halibut PSC limit as the PSQ reserve for use by the groundfish CDQ Program, 1,745 mt of the halibut PSC limit for the Amendment 80 sector, 745 mt of the halibut PSC limit for the BSAI trawl limited access sector, and 710 mt of the halibut PSC limit for the BSAI non-trawl sector.

Section 679.21(b)(1)(iii)(A) and (B) authorize apportionment of the BSAI non-trawl halibut PSC limit into PSC allowances among six fishery categories, and § 679.21(b)(1)(ii)(A) and (B), (e)(3)(i)(B), and (e)(3)(iv) require apportionment of the BSAI trawl limited access sector's halibut and crab PSC limits into PSC allowances among seven fishery categories. Table 10 lists the proposed fishery PSC allowances for the BSAI trawl limited access sector fisheries, and Table 11 lists the proposed fishery PSC allowances for the non-trawl fisheries.

Pursuant to Section 3.6 of the FMP, the Council recommends, and NMFS proposes, that certain specified non-trawl fisheries be exempt from the halibut PSC limit. As in past years, after consultation with the Council, NMFS proposes to exempt the pot gear fishery, the jig gear fishery, and the sablefish IFQ hook-and-line gear fishery categories from halibut bycatch restrictions for the following reasons: (1) The pot gear fisheries have low halibut bycatch mortality; (2) NMFS estimates halibut mortality for the jig gear fleet to be negligible because of the small size of the fishery and the selectivity of the gear; and (3) the sablefish and halibut IFQ fisheries have low halibut bycatch mortality because the IFQ Program requires legal-size halibut to be retained by vessels using hook-and-line gear if a halibut IFQ permit holder or a hired master is aboard and is holding unused halibut IFQ for that vessel category and the IFQ regulatory area in which the vessel is operating (§ 679.7(f)(11)).

As of November 2019, total groundfish catch for the pot gear fishery in the BSAI was 45,567 mt, with an associated halibut bycatch mortality of 3.7 mt. The 2019 jig gear fishery harvested about 190 mt of groundfish. Most vessels in the jig gear fleet are exempt from observer coverage requirements. As a result, observer data are not available on halibut bycatch in the jig gear fishery. As mentioned above, NMFS estimates a negligible amount of halibut bycatch mortality because of the selective nature of jig gear and the low mortality rate of halibut caught with jig gear and released.

Under § 679.21(f)(2), NMFS annually allocates portions of either 33,318, 45,000, 47,591, or 60,000 Chinook salmon PSC limits among the AFA sectors, depending on past bycatch performance, on whether Chinook salmon bycatch incentive plan agreements (IPAs) are formed, and on whether NMFS determines it is a low Chinook salmon abundance year. NMFS will determine that it is a low Chinook salmon abundance year when abundance of Chinook salmon in western Alaska is less than or equal to 250,000 Chinook salmon. The State provides to NMFS an estimate of Chinook salmon abundance using the 3-System Index for western Alaska, based on the Kuskokwim, Unalakleet, and Upper Yukon aggregate stock grouping.

If an AFA sector participates in an approved IPA and has not exceeded its performance standard under § 679.21(f)(6), and if it is not a low Chinook salmon abundance year, then NMFS will allocate a portion of the 60,000 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(A). If no IPA is approved, or if the sector has exceeded its performance standard under § 679.21(f)(6), and if it is not a low abundance year, then NMFS will allocate a portion of the 47,591 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(C). If an AFA sector participates in an approved IPA and has not exceeded its performance standard under § 679.21(f)(6) in a low abundance year, then NMFS will allocate a portion of the 45,000 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(B). If no IPA is approved, or if the sector has exceeded its performance standard under § 679.21(f)(6), and if in a low abundance year, then NMFS will allocate a portion of the 33,318 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(D).

As of October 1, 2019, NMFS has determined that 2019 was not a low Chinook salmon abundance year, based on the State's estimate that Chinook salmon abundance in western Alaska is greater than 250,000 Chinook salmon. Therefore, in 2020, the Chinook salmon PSC limit is 60,000 Chinook salmon, allocated to each sector as specified in § 679.21(f)(3)(iii)(A). The AFA sector Chinook salmon allocations are also seasonally apportioned with 70 percent of the allocation for the A season pollock fishery, and 30 percent of the allocation for the B season pollock fishery (§§ 679.21(f)(3)(i) and 679.23(e)(2)). In 2020, the Chinook salmon bycatch performance standard under § 679.21(f)(6) is 47,591 Chinook salmon, allocated to each sector as specified in § 679.21(f)(3)(iii)(C).

NMFS publishes the approved IPAs, allocations, and reports at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/sustainable-fisheries-alaska.

Section 679.21(g)(2)(i) specifies 700 fish as the 2020 and 2021 Chinook salmon PSC limit for the AI pollock fishery. Section 679.21(g)(2)(ii) allocates 7.5 percent, or 53 Chinook salmon, as the AI PSQ reserve for the CDQ Program, and allocates the remaining 647 Chinook salmon to the non-CDQ fisheries.

Section 679.21(f)(14)(i) specifies 42,000 fish as the 2020 and 2021 non-Chinook salmon PSC limit for vessels using trawl gear from August 15 through October 14 in the Catcher Vessel Operational Area (CVOA). Section 679.21(f)(14)(ii) allocates 10.7 percent, or 4,494 non-Chinook salmon, in the CVOA as the PSQ reserve for the CDQ Program, and allocates the remaining 37,506 non-Chinook salmon in the CVOA to the non-CDQ fisheries.

PSC limits for crab and herring are specified annually based on abundance and spawning biomass. Due to the lack of new information as of October 2019 regarding herring PSC limits and apportionments, the Council recommended, and NMFS proposes, basing the herring 2020 and 2021 PSC limits and apportionments on the 2018 survey data. The Council will reconsider these amounts in December 2019. Section 679.21(e)(3)(i)(A)(1) allocates 10.7 percent of each trawl gear PSC limit specified for crab as a PSQ reserve for use by the groundfish CDQ Program.

Based on 2019 survey data, the red king crab mature female abundance is estimated at 10.613 million red king crabs, and the effective spawning biomass is estimated at 28.009 million lbs (12,705 mt). Based on the criteria set out at § 679.21(e)(1)(i), the proposed 2020 and 2021 PSC limit of red king crab in Zone 1 for trawl gear is 97,000 animals. This limit derives from the mature female abundance estimate of more than 8.4 million red king crab and the effective spawning biomass estimate of more than 14.5 million lbs (6,577 mt) but less than 55 million lbs (24,948 mt).

Section 679.21(e)(3)(ii)(B)(2) establishes criteria under which NMFS must specify an annual red king crab bycatch limit for the Red King Crab Savings Subarea (RKCSS) if the State has established a GHL fishery for red king crab in the Bristol Bay area in the previous year. The regulations limit the bycatch in the RKCSS to up to 25 percent of the red king crab PSC allowance, based on the need to optimize the groundfish harvest relative to red king crab bycatch. NMFS proposes the Council's recommendation that the red king crab bycatch limit for 2020 and 2021 be equal to 25 percent of the red king crab PSC allowance within the RKCSS (Table 9).

Based on 2019 survey data, Tanner crab (Chionoecetes bairdi) abundance is estimated at 2,574 million animals. Pursuant to criteria set out at § 679.21(e)(1)(ii), the calculated 2020 and 2021 C. bairdi crab PSC limit for trawl gear is 980,000 animals in Zone 1, and 2,970,000 animals in Zone 2. The limit in Zone 1 is based on the abundance of C. bairdi (estimated at 2,574 million animals), which is greater than 400 million animals. The limit in Zone 2 is based on the abundance of C. bairdi (estimated at 2,574 million animals), which is greater than 400 million animals.

Pursuant to § 679.21(e)(1)(iii), the PSC limit for trawl gear for snow crab (C. opilio) is based on total abundance as indicated by the NMFS annual bottom trawl survey. The C. opilio crab PSC limit in the C. opilio bycatch limitation zone (COBLZ) is set at 0.1133 percent of the Bering Sea abundance index minus 150,000 crabs. Based on the 2019 survey estimate of 7.706 billion animals, the calculated C. opilio crab PSC limit is 8,580,898 animals, which is above the minimum PSC limit of 4.5 million and below the maximum PSC limit of 13 million animals.

Pursuant to § 679.21(e)(1)(v), the PSC limit of Pacific herring caught while conducting any trawl operation for BSAI groundfish is 1 percent of the annual eastern Bering Sea herring biomass. The best estimate of 2020 and 2021 herring biomass is 254,709 mt. This amount was developed by the Alaska Department of Fish and Game based on biomass for spawning aggregations. Therefore, the herring PSC limit proposed for 2020 and 2021 is 2,547 mt for all trawl gear as listed in Tables 8 and 9.

Section 679.21(e)(3)(i)(A) requires that PSQ reserves be subtracted from the total trawl PSC limits. The 2020 crab and halibut PSC limits assigned to the Amendment 80 and BSAI trawl limited access sectors are listed in Table 35 to 50 CFR part 679. The resulting proposed allocations of PSC limits to CDQ PSQ, the Amendment 80 sector, and the BSAI trawl limited access sector are listed in Table 8. Pursuant to §§  679.21(b)(1)(i), 679.21(e)(3)(vi), and 679.91(d) through (f), crab and halibut trawl PSC limits assigned to the Amendment 80 sector are then further allocated to Amendment 80 cooperatives as cooperative quota. Crab and halibut PSC cooperative quota assigned to Amendment 80 cooperatives is not allocated to specific fishery categories.

One Amendment 80 cooperative has formed for the 2020 fishing year. Because all Amendment 80 vessels are part of the cooperative, no PSC limit allocation to the Amendment 80 limited access sector is required for 2020. The 2021 PSC limit allocations between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2020. NMFS will post 2021 Amendment 80 cooperatives and Amendment 80 limited access allocations on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/sustainable-fisheries-alaska prior to the start of the fishing year on January 1, 2021, based on the harvest specifications effective on that date.

Section 679.21(b)(2) and (e)(5) authorize NMFS, after consulting with the Council, to establish seasonal apportionments of halibut and crab PSC amounts for the BSAI non-trawl, BSAI trawl limited access, and Amendment 80 limited access sectors to maximize the ability of the fleet to harvest the available groundfish TAC and to minimize bycatch. The factors considered are (1) seasonal distribution of prohibited species, (2) seasonal distribution of target groundfish species relative to prohibited species distribution, (3) prohibited species bycatch needs on a seasonal basis relevant to prohibited species biomass and expected catches of target groundfish species, (4) expected variations in bycatch rates throughout the year, (5) expected changes in directed groundfish fishing seasons, (6) expected start of fishing effort, and (7) economic effects of establishing seasonal prohibited species apportionments on segments of the target groundfish industry. Based on this criteria, the Council recommended, and NMFS proposes, the seasonal PSC apportionments in Tables 10 and 11 to maximize harvest among gear types, fisheries, and seasons, while minimizing bycatch of PSC.