Federal Register Vol. 80, No.144,

On December 19, 2014, OMB issued an interim final rule that implemented for all Federal award-making agencies the final guidance on Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance). In that interim final rule, Federal awarding agencies, including the Department of Commerce, joined together to implement the Uniform Guidance in their respective chapters of title 2 of the CFR, and, where approved by OMB, implemented any exceptions to the Uniform Guidance by including the relevant language in their regulations. Where applicable, agencies provided additional language beyond that included in 2 CFR 200, consistent with their existing policy, to provide more detail with respect to how they intend to implement the policy, where appropriate.

In addition, the interim final rule made technical corrections to the Uniform Guidance, where needed, to ensure that particular language in the final guidance matched with the Council on Financial Assistance Reform's intent and to avoid any erroneous implementation of the guidance. The interim final rule went into effect on December 26, 2014. The public comment period for the interim final rule closed on February 17, 2015.

The Department of Commerce publishes this final rule to adopt the provisions of the interim final rule. The Department did not request any exceptions to the Uniform Guidance and did not provide any language beyond what was included in 2 CFR 200. The Department did not receive any public comments on its regulations. Accordingly, the Department makes no changes to the interim final rule.

This rule contains no collections of information subject to the requirements of the Paperwork Reduction Act (44 U.S.C. Ch. 3506). Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the Paperwork Reduction Act unless that collection displays a currently valid OMB Control Number.

Because notice and opportunity for comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis is not required and has not been prepared.

Pursuant to Executive Order 12866, OMB has determined this final rule to be not significant.

Accordingly, the interim rule amending 2 CFR part 1327, and 15 CFR parts 14 and 24, which was published at 79 FR 75867 on December 19, 2014, is adopted as a final rule without change.

Discussion

On May 1, 2015, we issued AD 2015-10-01, Amendment 39-18156 (80 FR 32449, June 9, 2015). AD 2015-10-01 applied to certain Bombardier, Inc. Model DHC-8-400 series airplanes. AD 2015-10-01 was prompted by reports of hydraulic fluid loss from the reservoir of the MLG alternate extension system. AD 2015-10-01 required inspection for correct assembly of the MLG alternate extension system reservoir lid, and corrective action if necessary. We issued AD 2015-10-01 to, in the event of a failure of the primary MLG extension system, prevent failure of the alternate MLG extension system to fully extend the MLG into a down-and-locked position, which could result in collapse of both left-hand and right-hand MLG sides during touchdown.

AD 2015-10-01, Amendment 39-18156 (80 FR 32449, June 9, 2015), corresponds to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2014-15, dated June 6, 2014. You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2463.

Since we issued AD 2015-10-01, Amendment 39-18156 (80 FR 32449, June 9, 2015), we have discovered two inadvertent errors in the identification of the affected airplane models in the applicability of AD 2015-10-01. Paragraph (c) of AD 2015-10-01 omitted Bombardier Model DHC-8-400 airplanes and erroneously referred to a model (DHC-8-403) that is not identified on the U.S. type certificate. However, the serial numbers identified in paragraph (c) of AD 2015-10-01 were correct. We have also revised the estimated number of U.S.-registered airplanes affected by this AD. The number of airplanes is less than we originally estimated.

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

We are superseding AD 2015-10-01, Amendment 39-18156 (80 FR 32449, June 9, 2015), to correct two errors in the applicability in paragraph (c) of AD 2015-10-01, which inadvertently omitted a certain airplane model affected by the unsafe condition, and included a model that is not identified on the U.S. type certificate. We have made no other changes to the requirements published in AD 2015-10-01. Also, there are currently no Bombardier Inc. Model DHC-8-400 airplanes (the omitted airplane model) on the U.S. Register. Therefore, we determined that notice and opportunity for public comment before issuing this AD are unnecessary.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-2463; Directorate Identifier 2015-NM-086-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

Bombardier has issued Service Bulletin 84-29-34, dated May 9, 2013, with the attached Parker Service Bulletin 82910012-29-431, dated October 22, 2012. The service information describes procedures to inspect the lid assembly of the MLG alternate extension system reservoir for correct assembly and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

We estimate that this AD affects 78 airplanes of U.S. registry.

The actions required by AD 2015-10-01, Amendment 39-18156 (80 FR 32449, June 9, 2015), and retained in this AD take about 4 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that were required by AD 2015-10-01 is $340 per product.

In addition, we estimate that any necessary follow-on actions will take about 2 work-hours and require parts costing $0, for a cost of $170 per product. We have no way of determining the number of aircraft that might need this action.

The new requirements of this AD add no additional economic burden.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes. The NPRM published in the Federal Register on November 28, 2014 (79 FR 70799). The NPRM was prompted by reports of skin cracks and subsequent findings of hidden corrosion found on the mating surfaces between certain skin and stringers at circumferential skin splices. The NPRM proposed to require general visual inspections of the fuselage skin at certain lower circumferential splices for the presence of existing external doublers, repetitive inspections of the fuselage skin, and related investigative and corrective actions if necessary. We are issuing this AD to detect and correct hidden corrosion due to compromised fillet seals, which can result in skin cracking and consequent loss of capability to support limit loads.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 70799, November 28, 2014) and the FAA's response to each comment.

United Airlines stated that it concurs with the proposed requirements specified in the NPRM (79 FR 70799, November 28, 2014).

Boeing requested that we clarify the unsafe condition and revise various locations of the NPRM (79 FR 70799, November 28, 2014) to indicate that corrosion was discovered only after a skin crack was reported. Boeing explained the hidden corrosion between the skin and stringer was not visibly detectable and was discovered only after a skin crack was reported.

We agree to revise the sentences that specify the unsafe condition and that specify what prompted the AD action. We have revised the SUMMARY of this final rule, as well as the Discussion and paragraph (e) of this AD, by adding the phrase “hidden corrosion due to” to the sentences that specify the unsafe condition, and by adding the phrase “skin cracks and subsequent findings of hidden” to the sentences that discuss what prompted the AD action.

Boeing requested that we revise paragraph (g) of the NPRM (79 FR 70799, November 28, 2014) to clarify the proposed requirements for surface low frequency eddy current (LFEC) inspections for areas with and without repair doublers.

We agree to revise paragraph (g) of this AD to clarify configurations of areas with and without repair doublers. We have revised paragraph (g)(1) and added new paragraph (g)(2) to this AD to specify configurations having “an external repair doubler” and where “no existing repair doubler” exists.

Boeing requested that we revise paragraphs (g)(2) and (h)(2)(i) of the NPRM (79 FR 70799, November 28, 2014) by adding HFEC inspections as a required action.

We disagree with specifying HFEC inspections as requested in this AD because this AD already requires compliance with all applicable “related investigative actions,” which include applicable HFEC inspections. The terminology for the proposed AD requirements was addressed by the NPRM (79 FR 70799, November 28, 2014). Our standard practice is to specify actions that are related to the primary action and actions that further investigate the nature of any condition found as “related investigative actions.” No change has been made to this AD in this regard.

UPS requested that the correct eddy current inspection procedure be referenced in the NPRM (79 FR 70799, November 28, 2014). UPS stated that Boeing Information Notice 747-53A2861 IN 01, dated April 24, 2014, was issued to inform operators that Paragraph 3.B, Part 2, Step 1, of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2861, dated April 1, 2014, should refer to “747 Nondestructive test (NDT) Manual Part 6, 53-30-00, Procedure 5,” instead of “747 NDT Manual Part 6, 51-00-00, Procedure 8,” as the correct inspection procedure of the fuselage skin. UPS stated that adding this information would prevent the need for requests for alternative methods of compliance (AMOCs) related to this error.

We find that clarification is needed. To clarify this information, we have added a new exception to include the correct source of service information for this inspection. New paragraph (i)(3) of this AD refers to “747 NDT Manual Part 6, 53-30-00, Procedure 5,” as the appropriate source of service information for the eddy current inspection of the fuselage skin. We have also added a reference to paragraph (i)(3) of this AD in paragraphs (g) and (h) of this AD.

UPS requested that the NPRM (79 FR 70799, November 28, 2014) be revised to exclude a certain location from the inspection requirements, or that the proposed AD provide an inspection procedure that is adequate for that location. UPS stated that Boeing Alert Service Bulletin 747-53A2861, dated April 1, 2014, specifies that external surface LFEC inspections for corrosion of the fuselage skin be done using “747 NDT Manual Part 6, 51-00-00, Procedure 5 or Procedure 12,” which are appropriate for skins with a specified thickness. UPS stated Table 2 of Appendix C of Boeing Alert Service Bulletin 747-53A2861, dated April 1, 2014, contains an error. Skin panels having part number 65B23792-XX are chem milled with a thickness that exceeds the specification listed in Table 2 of Appendix C of Boeing Alert Service Bulletin 747-53A2861, dated April 1, 2014. Therefore, the NDT procedures are not valid for those skin panels at this location. UPS stated that since action is identified as “Required for Compliance,” by Boeing Alert Service Bulletin 747-53A2861, dated April 1, 2014, no deviations are allowed without AMOC approval.

We disagree with the request. Agreeing with the request would delay the issuance of the AD and we find that delaying this action would be inappropriate in light of the identified unsafe condition. Boeing is aware of the discrepancy with the NDI instructions, and is actively working on a global AMOC for operators to correct the error by means of a validated procedure. Operators have the option of proposing their own procedure in accordance with paragraph (j) of this AD.

Since chem milling affects the ability to accomplish Boeing Alert Service Bulletin 747-53A2861, dated April 1, 2014, and the corrective action is not clear in the service information, we have added an exception to new paragraph (i)(4) of this AD to specify where Paragraph 3.B, Part 3, Step 1, of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2861, dated April 1, 2014, specifies doing external surface LFEC inspections in accordance with “747 NDT Manual Part 6, 51-00-00, Procedure 5 or Procedure 12,” and the skin panels are chem milled with a thickness that exceeds the specification listed in Table 2 of Appendix C of Boeing Alert Service Bulletin 747-53A2861, dated April 1, 2014, this AD requires using an AMOC per paragraph (j) of this AD. We have added a reference to paragraph (i)(4) of this AD in paragraphs (g) and (h) of this AD. Operators may request approval of an AMOC under the provisions of paragraph (j) of this AD, for procedures that would help them meet the NDT test requirements.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (79 FR 70799, November 28, 2014) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 70799, November 28, 2014).

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

We reviewed Boeing Alert Service Bulletin 747-53A2861, dated April 1, 2014. The service information describes procedures for inspections of the fuselage skin at certain lower circumferential splices for the presence of existing external doublers, inspections of the fuselage skin for cracking and corrosion, and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this final rule.

We estimate that this AD affects 165 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2013-14-05, Amendment 39-17510 (78 FR 43763, July 22, 2013). AD 2013-14-05 applied to certain The Boeing Company Model 747-400 and 747-400F series airplanes. The NPRM published in the Federal Register on December 15, 2014 (79 FR 74038). The NPRM was prompted by reports of cracking in the outboard flange of the longeron extension fittings, and our determination that more work is necessary on airplanes on which a permanent repair, longeron extension fitting replacement, or modification was accomplished, as required by AD 2013-14-05. The NPRM proposed to continue to require the actions specified in AD 2013-14-05, and to add new repetitive high frequency eddy current (HFEC) inspections of any modified, repaired, or replaced longeron extension fitting for cracking, and applicable related investigative and corrective actions if necessary. We are issuing this AD to detect and correct cracks in the longeron extension fittings, which can become large and adversely affect the structural integrity of the airplane.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 74038, December 15, 2014) and the FAA's response to each comment.

United Airlines expressed that the NPRM (79 FR 74038, December 15, 2014) affects 13 of its Boeing Model 747-400 series airplanes, and that it concurs with the NPRM.

Boeing expressed that it concurs with the NPRM (79 FR 74038, December 15, 2014).

Atlas Air requested that we revise the NPRM (79 FR 74038, December 15, 2014) to include a new paragraph (k)(3) to list the effective date of AD 2013-14-05, Amendment 39-17510 (78 FR 43763, July 22, 2013), or that we include the effective date of AD 2013-14-05 in paragraph (g) of the NPRM. Atlas Air pointed out that the compliance time in paragraph (g) of the NPRM references the “Compliance” section of the service information, which is based on the effective date of AD 2013-14-05, and once AD 2013-14-05 is replaced, the effective date of AD 2013-14-05 will no longer exist.

We disagree with the commenter's request to add a new paragraph (k)(3) to this AD, or to add the effective date of AD 2013-14-05, Amendment 39-17510 (78 FR 43763, July 22, 2013), to paragraph (g) of this AD. The effective date of AD 2013-14-05 (August 26, 2013) is specified in the first sentence under paragraph 1.E., “Compliance,” of the referenced service information. Therefore, no change is needed for this AD in this regard.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (79 FR 74038, December 15, 2014) for correcting the unsafe condition; and

• do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 74038, December 15, 2014).

We reviewed Boeing Alert Service Bulletin 747-53A2860, Revision 1, dated March 18, 2014. The service information describes procedures for repetitive HFEC inspections of any modified, repaired, or replaced longeron extension fitting for cracking, and applicable related investigative and corrective actions if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

We estimate that this AD affects 41 airplanes of U.S. registry

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need this replacement:

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2014-19-05, Amendment 39-17973 (79 FR 59091, October 1, 2014), (“AD 2014-19-05”). AD 2014-19-05 applied to the specified products. The NPRM published in the Federal Register on February 4, 2015 (80 FR 6017). The NPRM proposed to continue to require an initial one-time vibration check of the engine AGB on certain higher risk Arriel 1 and Arriel 2 model engines. That NPRM also proposed to continue to require repetitive vibration checks of the engine AGB for all Arriel 1 and Arriel 2 engines at every engine shop visit.

We gave the public the opportunity to participate in developing this AD. We considered the comments received.

One commenter requested that sufficient time be allowed to comply with this AD to account for the availability of the vibration test equipment and Turbomeca technical representatives. The commenter indicated that the initial one-time vibration check of the engine AGB requires use of Turbomeca-specified vibration test equipment and is performed by Turbomeca technical personnel.

We do not agree. The compliance times in the AD provide sufficient time for the operator to perform the required maintenance. Operators can also procure the required vibration test equipment to perform the test. We did not change this AD.

One commenter requested that we revise the AD to make the definition of “shop visit” consistent with EASA AD 2014-0036. The EASA AD specifies that the repetitive vibration check of the engine AGB be performed during a “qualifying shop visit,” which is when the engine is “overhauled or repaired in a qualified Repair Center.” The commenter indicated that because of the modularity of the Arriel engine, it is possible to separate a major mating flange during “Level 2” or “Level 1 maintenance.”

We do not agree. We do not find specific criteria in EASA AD 2014-0036's definition of “engine shop visit” for when the repetitive AGB vibration check should be conducted. We did not change this AD.

One commenter requested that the repetitive vibration check required by this AD be eliminated. The commenter indicated that this vibration check is already incorporated in Turbomeca Level 4 maintenance, and in subsequent test requirements, so it will always be done. Further, adding this requirement to the AD only adds to the cost and paperwork requirements for operators.

We do not agree. The repetitive vibration checks of the engine AGB are required to prevent failure of the AGB. We did not change this AD.

Turbomeca S.A. updated the service bulletins (SBs) referenced in this AD. We reviewed the updated SBs and found they adequately addressed the unsafe condition. Therefore, we revised this AD to reference the updated versions of the SBs. This AD now references Turbomeca S.A. Mandatory Service Bulletin (MSB) No. 292 72 0839, Version C, dated June 18, 2014, and Turbomeca S.A. MSB No. 292 72 2849, Version C, dated June 18, 2014. We also revised compliance paragraph (e) of this AD to refer to the corresponding paragraphs used in these updated MSBs to require the vibration checks.

We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

We reviewed Turbomeca S.A. MSB No. 292 72 0839, Version C, dated June 18, 2014; and Turbomeca S.A. MSB No. 292 72 2849, Version C, dated June 18, 2014. The service information describes procedures for vibration checks. 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 of this AD.

We estimate that this AD affects 1,268 engines installed on aircraft of U.S. registry. We also estimate that it will take about 4 hours per engine to comply with the inspection requirement in this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $431,120.

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

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

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

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

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

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

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

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Headland Municipal Airport, Headland, AL.

On April 24, 2015, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace extending upward from 700 feet above the surface at Headland Municipal Airport, Headland, AL (80 FR 22946). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Y dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 to establish Class E airspace extending upward from 700 feet above the surface at Headland Municipal Airport, Headland, AL, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures for Headland Municipal Airport. Controlled airspace extending upward from 700 feet above the surface within a 7-mile radius of the airport would be established for IFR operations.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal.

Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Taylor County Airport, Campbellsville, KY.

On April 24, 2015, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class E airspace extending upward from 700 feet above the surface at Taylor County Airport, Campbellsville, KY. (80 FR 22950). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Y dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface within a 7.7-mile radius of Taylor County Airport, Campbellsville, KY, with a segment extending from the 7.7-mile radius to 11.3 miles northeast of Taylor County Airport.

Airspace reconfiguration is necessary due to the decommissioning of the Taylor County NDB and cancellation of the NDB approach, and for continued safety and management of IFR operations at the airport.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Greenville Downtown Airport, Greenville, SC.

On April 24, 2015, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class E airspace extending upward from 700 feet above the surface at Greenville Downtown Airport, Greenville, SC. (80 FR 22952). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Y dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface within a 9.3-mile radius of Greenville Downtown Airport, Greenville, SC. Airspace reconfiguration is necessary to support new Standard Instrument Approach Procedures developed at Greenville Downtown Airport, and for continued safety and management of IFR operations at the airport. The geographic coordinates of the airport are adjusted to coincide with the FAAs aeronautical database.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Dyersburg Regional Airport, Dyersburg, TN.

On March 20, 2015, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class E airspace extending upward from 700 feet above the earth at Dyersburg Regional Airport, Dyersburg, TN (80 FR 14876). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Y dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface within a 7.1-mile radius of Dyersburg Regional Airport, Dyersburg, TN.

Airspace reconfiguration is necessary due to the decommissioning of the Dyersburg VORTAC and cancellation of the VOR approach, and for continued safety and management of IFR operations at the airport. This action also recognizes the airport's name change from Dyersburg Municipal Airport, to Dyersburg Regional Airport and updates the geographic coordinates of the airport to be in concert with the FAAs aeronautical database.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

The Entity List (Supplement No. 4 to Part 744) notifies the public about entities that have engaged in activities that could result in an increased risk of the diversion of exported, reexported or transferred (in-country) items to weapons of mass destruction (WMD) programs. Since its initial publication, grounds for inclusion on the Entity List have expanded to include activities sanctioned by the State Department and activities contrary to U.S. national security or foreign policy interests. Certain exports, reexports, and transfers (in-country) to entities identified on the Entity List require licenses from BIS and are usually subject to a policy of denial. The availability of license exceptions in such transactions is very limited. The license review policy for each entity is identified in the license review policy column on the Entity List and the availability of license exceptions is noted in the Federal Register notices adding persons to the Entity List. BIS places entities on the Entity List based on certain sections of part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The ERC, composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.

This rule implements the decision of the ERC to add ten persons to the Entity List. These ten persons are being added on the basis of § 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The ten entries added to the Entity List consist of eight entries in China and two entries in South Korea.

The ERC reviewed § 744.11(b) (Criteria for revising the Entity List) in making the determination to add these ten persons to the Entity List. Under that paragraph, persons for whom there is reasonable cause to believe, based on specific and articulable facts, have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such persons may be added to the Entity List. Paragraphs (b)(1) through (b)(5) of § 744.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States.

Pursuant to § 744.11 of the EAR, the ERC determined that the following eight persons under the destination of China and two persons under the destination of South Korea be added to the Entity List for actions contrary to the national security or foreign policy interests of the United States.

Specifically, for the eight additions under the destination of China, there is reasonable cause to believe, based on specific and articulable facts, that these eight persons have violated U.S. export laws by illicitly procuring sensitive U.S. items for unauthorized end use in China and Iran. For the two additions under the destination of South Korea, there is reasonable cause to believe, based on specific and articulable facts that these two persons have violated U.S. export laws by supporting the illicit procurement efforts of ballistic-missile related parties in Iran since at least 2011.

Pursuant to § 744.11(b)(5) of the EAR, the ERC determined that the conduct of these ten persons raises sufficient concern that prior review of exports, reexports, or transfers (in-country) of items subject to the EAR involving these persons, and the possible imposition of license conditions or license denials on shipments to the persons, will enhance BIS's ability to prevent violations of the EAR.

For the ten persons recommended for addition on the basis of § 744.11, the ERC specified a license requirement for all items subject to the EAR and a license review policy of presumption of denial. The license requirements apply to any transaction in which items are to be exported, reexported, or transferred (in-country) to any of the persons or in which such persons act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to the persons being added to the Entity List in this rule.

This final rule adds the following ten persons to the Entity List:

(1) Beijing FJR Optoelectronic Technology Company Ltd, a.k.a, the following three aliases:

(2) Beijing Opto-Electronics Technology Company, a.k.a., the following one alias:

(3) BOP Opto-Electronics Technology Company, a.k.a., the following one alias

The Coast Guard will enforce the marine event special local regulation for the annual San Diego Bayfair in 33 CFR 100.1101, Table 1, Item 12 from September 18, 2015 to September 20, 2015, from 7 a.m. to 6 p.m.

Under the provisions of 33 CFR 100.1101, persons and vessels are prohibited from entering into, transiting through, or anchoring within this regulated area of the Mission Bay unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

This document is issued under authority 33 CFR 100.1101 and 5 U.S.C. 552(a). In addition to this document in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners, Broadcast Notice to Mariners, and local advertising by the event sponsor.

If the Coast Guard determines that the regulated area need not be enforced for the full duration stated on this document, then a Broadcast Notice to Mariners or other communications coordinated with the event sponsor will grant general permission to enter the regulated area.

The Coast Guard will enforce the special local regulations and safety zones listed in 33 CFR 100.120 and 33 CFR 165.171. These regulations will be enforced for the duration of each event, on or about the dates indicated in TABLES 1 and 2.

For events where the date is different from the dates previously published for that event, new Temporary Rules will be issued to enforce limited access areas for the marine event. The Coast Guard may patrol each event area under the direction of a designated Coast Guard Patrol Commander (PATCOM). The PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM.” Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP, Sector Northern New England. For information about regulations and restrictions for waterway use during the effective periods of these events, please refer to 33 CFR 100.120 and 33 CFR 165.171.

This notice is issued under authority of 33 CFR 100.120, 33 CFR 165.171, and 5 U.S.C. 552 (a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts. If the COTP determines that the regulated area need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

In a document published in the Federal Register on July 15, 2014, VA proposed to amend its regulations concerning the incorporation by reference of the National Fire Protection Association (NFPA) codes and standards applicable to community residential care facilities, contract facilities for outpatient and residential treatment services for veterans with alcohol or drug dependence or abuse disabilities, Medical Foster Homes, and State home facilities. 79 FR 41153. We stated in the proposed rule that VA's regulations that govern these facilities require that these facilities meet certain provisions of the codes and standards published by NFPA. These codes and standards are reviewed and updated by NFPA on a 3-year cycle. We also stated that 38 CFR 17.1 is the regulation where VA incorporates by reference the NFPA codes and standards cited in §§ 17.63, 17.74, 17.81, and 17.82. The NFPA codes and standards are also referenced in §§ 51.200, 52.200, and 59.130. VA relies on the NFPA codes and standards in order to provide consistency across the country. By adopting the most current editions of these codes and standards, VA works to ensure that veterans reside and receive care in facilities that are safe while ensuring that these facilities maintain high levels of safety by following one set of codes and standards for the design, renovation, and inspection for community facilities used or approved by VA.

This rulemaking amends § 17.1 to reflect the current edition of NFPA 101, Life Safety Code, and the editions of the NFPA codes and standards that are cited in Chapter 2 of NFPA 101. This rulemaking also amends §§ 51.200, 52.200, and 59.130 to reflect the current editions of NFPA 101, Life Safety Code, and NFPA 99, Health Care Facilities Code. The NFPA codes and standards that have been updated since we published current § 17.1 are NFPA 101, Life Safety Code (2009 edition); NFPA 25, Standard for the Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems (2008 edition); NFPA 30, Flammable and Combustible Liquids Code (2008 edition); and NFPA 720, Standard for the Installation of Carbon Monoxide (CO) Detection and Warning Equipment (2009 edition). The NFPA codes and standards updated from the editions referenced in current §§ 51.200 and 59.130 are NFPA 101 (2009 edition) and NFPA 99, Standard for Health Care Facilities (2005). NFPA codes and standards updated from the edition referenced in current § 52.200 is NFPA 101, Life Safety Code (2000 edition). This final rulemaking updates the references to these NFPA codes and standards in the cited VA regulations to reflect the most recent editions cited in NFPA 101, Life Safety Code (2012 edition). We are also updating cited references within VA regulations to be consistent with the current NFPA codes and standards. In some cases, reorganization of material in the NFPA codes and standards, without change in substance, has affected the citation within VA regulations, and we are making minor amendments to reflect these changes.

We provided a 60-day comment period, which ended on September 15, 2014. We received one comment on the proposed rule. The commenter supported the proposed rule, but indicated that the 2015 Edition of NFPA 101 became available on September 11, 2014. The commenter suggested that in addition to the changes in the proposed rule, VA adopt the 2015 standards as well. We agree with the commenter, however, prior to adopting the new standards, VA will issue a proposed rulemaking and allow the public to comment on the NFPA 101 standards for 2015 before these changes can become final. VA will address the suggestion in a future rulemaking.

This final rule is reorganizing § 17.1 by placing the NFPA standards in numerical order. These edits to § 17.1 are technical only. We are not making any edits to the content of § 17.1, other than those already stated in the proposed rulemaking. We are also amending §§ 51.200 and 59.130 by removing the incorporation by reference language from the individual paragraphs where the NFPA codes are referenced and adding a new paragraph that will incorporate by reference all of the NFPA codes currently referenced in each paragraph. The new paragraph in §§ 51.200 and 59.130 adds clarity to each section but does not alter the content. This merely is a technical change.

In the proposed rulemaking, we stated that we would be adding a new paragraph (c) to § 17.1. This subparagraph was intended to permit fire and safety specialists to determine when upgrades to existing facilities are necessary on a case-by-case basis. The proposed paragraph was intended as an exception to the NFPA codes and standards for Medical Foster Homes. Upon further consideration, we are not going to adopt the new paragraph (c) in § 17.1 because this regulation merely establishes the incorporation by reference of NFPA standards and does not address the enforcement of such standards. The proposed paragraph (c) would have essentially acted as an exception to the NFPA standards, however, this exception is already present in the sections of the NFPA standards that are incorporated by reference in § 17.1. Specifically, the exception that was proposed in paragraph (c) is covered for community residential care facilities, contract facilities for certain outpatient and residential services, and State home facilities through NFPA 101 Chapter 2. The Medical Foster Homes, however, are unique in that they do not fall into any specific occupancy category within NFPA 101 and thus to ensure that the exception will also apply to Medical Foster Homes, we are incorporating the proposed language in § 17.1(c) into current § 17.74(a)(3), which specifically relates to Medical Foster Home owners. The provisions added to § 17.74(a)(3) excepts Medical Foster Home owners from the blanket requirement of having to modify existing fire protection systems to meet the updated installation standards and instead permits fire and safety specialists to determine when upgrades to existing facilities are necessary on a case-by-case basis. This exception will only apply to existing Medical Foster Homes. New homes to the program will be required to meet the updated editions of the fire protection system installation standards. We believe that the non-adoption of the proposed paragraph (c) of § 17.1 and the inclusion of the language in proposed § 17.1(c) in § 17.74(a)(3) is non-substantive and a logical outgrowth of the proposed rulemaking.

We have revised § 51.200(a) by removing the exception for the application of NFPA 101 (2009 edition) for paragraph 19.3.5.1. This exception was added to delay the enforcement of paragraph 19.3.5.1 until August 13, 2013. Since this date has passed and State homes were on notice that the exception would expire on this date, we are making a technical change to remove the outdated language.

Based on the rationale set forth in the SUPPLEMENTARY INFORMATION to the proposed rule and in this final rule, VA is adopting the proposed rule as a final rule with the changes stated in the SUPPLEMENTARY INFORMATION of this rulemaking.

This rulemaking updates the references to the NFPA codes and standards in the cited VA regulations. NFPA 101, Life Safety Code, is the primary source document that establishes the safety requirements for newly constructed and existing facilities. NFPA 101 is unique in that it provides a different set of requirements for the same type of facility based on whether the facility is to be newly constructed or already exists. The provisions of NFPA 25 and 720 used in VA's regulations are generally relied on to establish the requirements for the inspection, testing, and maintenance of already installed existing systems, and the majority of the changes in the updated editions are relatively minor with respect to inspection, testing, and maintenance. We believe that compliance with these minor revisions would not be difficult for the affected facilities. This rulemaking updates NFPA 25 to the 2011 edition and updates NFPA 720 to the 2012 edition. The 2012 edition of NFPA 99, Health Care Facilities Code, revises the fire safety standards to provide for safety standards that are based on the risk of a critical condition and remain relatively unchanged from the previous edition. The standard for NFPA 30, Flammable and Combustible Liquids Code, has not changed; however, the paragraph that contains the definition of safety can has changed in the 2012 edition. We are removing the citation to the specific paragraph and merely referencing the standard to avoid future minor reorganizational changes made by NFPA. The materials for which we are seeking incorporation by reference are available for inspection at the ANSI Incorporation by Reference (IBR) Portal, http://ibr.ansi.org. Copies may be obtained from the National Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02269. (For ordering information, call toll-free 1-800-344-3555.)

Title 38 of the Code of Federal Regulations, as revised by this final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule updates current fire safety standards and will not require more than a modest capital investment on the part of affected entities. The changes to § 17.1 will likely affect between 50 and 100 of the 1,293 community residential care facilities approved for referral of veterans under the regulations. Medical Foster Homes are small entities, providing between 1 and 3 resident beds to veterans in each Medical Foster Home. The changes to § 17.74 will likely affect fewer than 10 of the 561 Medical Foster Homes approved by VA for referral under the regulations. Any additional costs for compliance with the final rule incurred by either community residential care facilities or Medical Foster Homes will constitute an inconsequential amount of the operational costs of such facilities.

Where modification is anticipated, such as adding heat detection to unused attic space, the impact is minimal because the costs to comply with the new requirements range from $100.00 to $500.00 dollars, which includes labor costs. In many cases, the adoption of the current NFPA codes and standards provides options that are less restrictive than the prior NFPA codes and standards. The changes to §§ 17.81 and 17.82 will affect only small entities; however, most, if not all, of these entities are already in compliance with the current NFPA codes and, therefore, should not be significantly impacted by this rule. The changes to parts 51, 52, and 59 will affect State homes. The State homes that will be subject to this rulemaking are State government entities under the control of State governments. All State homes are owned, operated and managed by State governments except for a small number operated by entities under contract with State governments. These contractors are not small entities. On this basis, the Secretary certifies that the adoption of this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 U.S.C. 605(b), this rulemaking is exempt from the final regulatory flexibility analysis requirements of 5 U.S.C. 604.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB) unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for VA Regulations Published From FY 2004 Through Fiscal Year to Date.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.005, Grants to States for Construction of State Home Facilities; 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on July 20, 2015, for publication.

For the reasons set forth in the preamble, VA amends 38 CFR parts 17, 51, 52, and 59 as follows:

The purpose of the public hearings is to provide the public an opportunity to present oral comments regarding NHTSA and EPA's proposal for “Greenhouse Gas Emissions Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles—Phase 2.” These hearings also offer an opportunity for the public to provide oral comments regarding NHTSA's Draft Environmental Impact Statement, accompanying the proposed NHTSA fuel efficiency standards. The proposed rules would establish a second round of standards for the agencies' comprehensive Heavy-Duty National Program, which would further reduce greenhouse gas emissions and increase fuel efficiency for on-road heavy-duty vehicles. These new standards would phase in over time, beginning in the 2018 model year and entering into full effect in model year 2027. NHTSA's proposed fuel consumption standards and EPA's proposed carbon dioxide (CO2) emission standards are tailored to each of four regulatory categories of heavy-duty vehicles: (1) Combination Tractors; (2) Trailers used in combination with those tractors; (3) Heavy-duty Pickup Trucks and Vans; and (4) Vocational Vehicles. The proposal also includes separate fuel efficiency and greenhouse gas standards for the engines that power combination tractors and vocational vehicles.

The joint proposed rules for which EPA and NHTSA are holding the public hearings were published in the Federal Register on July 13, 2015 (80 FR 40138), and are also available at the Web sites listed above under FOR FURTHER INFORMATION CONTACT. NHTSA's Draft Environmental Impact Statement is available on the NHTSA Web site and in NHTSA's rulemaking docket, both referenced above. Once NHTSA and EPA learn how many people have registered to speak at each public hearing, we will allocate an appropriate amount of time to each participant, allowing time for necessary breaks. In addition, we will reserve a block of time for anyone else in the audience who wants to give testimony. For planning purposes, each speaker should anticipate speaking for approximately five minutes, although we may need to shorten that time if there is a large turnout. We request that you bring two copies of your statement or other material for the EPA and NHTSA panels.

NHTSA and EPA will conduct the hearings informally, and technical rules of evidence will not apply. We will arrange for a written transcript of each hearing and keep the official record for the proposed rule open for 30 days after the last public hearing to allow speakers to submit supplementary information. Panel members may ask clarifying questions during the oral statements but will not respond to the statements at that time. You may make arrangements for copies of the transcripts directly with the court reporter. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearings. The comment period for the proposed rule will be extended such that the closing date is 30 days after the last public hearing. Therefore, written comments on the proposal must be post marked no later than September 17, 2015.

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

The EPA is taking direct final action to approve the carbon monoxide (CO) LMP for Grants Pass, Oregon. The Oregon Department of Environmental Quality (ODEQ) submitted this plan as a SIP revision, on April 22, 2015. This CO LMP is designed to keep Grants Pass in attainment with the CO standard for a second 10-year period beyond re-designation, through 2025.

Under Section 107(d)(1)(c) of the CAA, each CO area designated nonattainment prior to enactment of the 1990 Amendments, such as Grants Pass, was designated nonattainment by operation of law upon enactment of the 1990 Amendments. Under section 186(a) of the CAA, each CO area designated nonattainment under section 107(d) was also classified by operation of law as either “moderate” or “serious” depending on the severity of the area's air quality problem. CO areas with design values between 9.1 and 16.4 parts per million (ppm), such as Grants Pass, were classified as moderate. These nonattainment designations and classifications were codified in 40 CFR part 81. (56 FR 56694) (November 6, 1991).

In August 2000, the EPA approved the first maintenance plan designed to maintain compliance with the CO standard in Grants Pass, OR through the year 2015 (see 65 FR 52932, August 31, 2000). While the central business district represented the maintenance area, the EPA considered the Urban Growth Boundary (UGB) to be a more representative area of influence for carbon monoxide emissions, and the 1993 emission inventory was prepared for the UGB. In addition to approving ODEQ's maintenance plan for the area, the EPA also approved ODEQ's request to redesignate the Grants Pass area to attainment of the CO standard (see 65 FR 52932, August 31, 2000). On November 5, 1999, Oregon submitted a complete rule renumbering and relabeling package to EPA for approval in the SIP. On January 22, 2003, EPA approved the recodified version of Oregon's rules to remove and replace the outdated numbering system (68 FR 2891).

Per CAA section 175A(b), Oregon's current SIP submittal provides a second 10-year CO maintenance plan for Grants Pass that will apply until 2025, and fulfill the final planning requirements under the CAA. In addition, the plan is consistent with the elements of a LMP as outlined in an EPA October 6, 1995 memorandum from Joseph Paisie, the Group Leader of the Integrated Policy and Strategies Group, titled, “Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas” (LMP Option). To qualify for the LMP Option, the CO design value for an area, based on the eight consecutive quarters (two years of data) used to demonstrate attainment, must be at or below 7.65 ppm (85 percent of the CO NAAQS). In addition, the control measures from the first CO maintenance plan must remain in place and unchanged. The primary control measure has been the emission standards for new motor vehicles under the Federal Motor Vehicle Control Program. Other control measures have been the New Source Review Program and several residential woodsmoke emission reduction efforts. The EPA has determined that the LMP Option for CO is also available to all states as part of the CAA 175A(b) update to the maintenance plans, regardless of the original nonattainment classification, or lack thereof. Thus, the EPA finds that Grants Pass qualifies for the LMP.

Section 110(a)(2) of the CAA requires that each SIP revision offer a reasonable opportunity for notice and public hearing. This must occur prior to the revision being submitted by the State to the EPA. The State provided notice and an opportunity for public comment from December 16, 2014 until January 26, 2015, with no comments received. ODEQ also held a public hearing on January 22, 2015 in Grants Pass. This SIP revision was submitted by the Governor's designee and was received by the EPA on April 22, 2015. The EPA has evaluated ODEQ's submittal and determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA.

The EPA has reviewed Oregon's SIP submittal for Grants Pass. The following is a summary of the requirements for a LMP and the EPA's evaluation of how each requirement has been met by the SIP submittal.

The maintenance plan must contain an attainment year emissions inventory to identify a level of CO emissions in the area that is sufficient to attain the CO NAAQS. The April 22, 2015 SIP submittal contains a summary of the CO emissions inventory for Grants Pass for the base year 2005. This summary is based on the Grants Pass Inventory Preparation and Quality Assurance Plan for the Grants Pass Urban Growth Boundary Limited Carbon Monoxide Maintenance Plan, adopted March 2014.

Historically, exceedances of the CO standard in Grants Pass have occurred during the winter months, when cooler temperatures contribute to incomplete combustion, and when CO emissions are trapped near the ground by atmospheric inversions. The UGB was used for the initial 1993 emissions inventory, since it was more representative of the area of influence for carbon monoxide emissions, and used again for the 2005 emission inventory in this LMP. Sources of carbon monoxide in Grants Pass include industry, motor vehicles, non-road mobile sources, (e.g., construction equipment, recreational vehicles, lawn and garden equipment, and area sources (e.g., outdoor burning, woodstoves, fireplaces, and wildfires). The CO season is defined as three consecutive months—December 1 through the end of February. As such, season day emissions in addition to annual emissions are included in the inventory. The unit of measure for annual emissions is in tons per year (tpy), while the unit of measure for season day emissions is in pounds per day (lb/day). In addition, the county-wide emissions inventory data is spatially allocated to the Grants Pass UGB, and to buffers around the UGB, depending on emissions category.

Because violations of the CO NAAQS are most likely to occur on winter weekdays, the inventory prepared is for a “typical winter day”. The table below shows the estimated tons of CO emitted per winter day by source category for the 2005 base year.

The CO NAAQS is attained when the annual second highest 8-hour average CO concentration for an area does not exceed a concentration of 9.0 ppm. The last monitored violation of the CO NAAQS in Grants Pass occurred in 1990, and CO levels have been steadily in decline.

For areas using the LMP Option, the maintenance plan demonstration requirement is considered to be satisfied when the second highest 8-hour CO concentration is at or below 7.65 ppm (85 percent of the CO NAAQS) for 8 consecutive quarters. The current 8-hour CO Design Value for Grants Pass is 4.0 ppm based on the two most recent years of data (2004-2005), which is significantly below the LMP Option requirement of 7.65 ppm. Therefore, the State has demonstrated that Grants Pass qualifies for the LMP Option.

With the LMP Option, there is no requirement to project emissions of air quality over the upcoming maintenance period. The EPA believes that if the area begins the maintenance period at, or below, 85 percent of the level of the CO 8-hour NAAQS, the applicability of prevention of significant deterioration requirements, the control measures already in the SIP, and Federal control measures already in place will provide adequate assurance of maintenance over the 10-year maintenance period.

Monitored CO levels in the Grants Pass UGB steadily declined since monitoring began in the area in 1980. CO levels have declined significantly across the nation through motor vehicle emissions controls and fleet turnover to newer, cleaner vehicle models. As CO levels dropped and stayed low, Oregon requested to remove the Grants Pass CO monitor in 2006, and the EPA approved the request on October 19, 2006. ODEQ now uses an alternate method of verifying continued attainment with the CO standard.

ODEQ calculates CO emissions every three years as part of the Statewide Emissions Inventory and submits the data to the EPA for inclusion in the National Emissions Inventory (NEI). ODEQ commits to review the NEI estimates to identify any increases over the 2005 emission levels and source categories, and report on them in the annual network plan for the applicable year. Since on-road motor vehicles are the predominant source of carbon monoxide in Grants Pass (about 70%), this source category will be the primary focus of this review. ODEQ will annually calculate CO emissions and evaluate any increase in CO emissions to confirm it is not due to a change in emission calculation methodology, an exceptional event, or other factor not representative of an actual emissions increase. Recognizing there could be a minor, insignificant emissions increase, for the purposes of triggering the Contingency Plan described below, an increase of five percent in either the total annual or season day emissions, or in the on-road mobile source category, represents a “significant” emission increase.

Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions necessary to ensure prompt correction of any violations of the standard that may occur. In its April 22, 2015 submittal, the State of Oregon included the following contingency measures for this LMP:

1. If ODEQ's three-year periodic review of CO emissions shows a significant increase in emissions, as described in Section 8 of this plan, ODEQ will then reestablish ambient CO monitoring in Grants Pass.

2. If the highest measured 8-hour CO concentration in a given year in Grants Pass exceeds the LMP eligibility level of 7.65 ppm (85 percent of the 8-hr standard), ODEQ will evaluate the cause of the CO increase. Within six months of the validated 7.65 ppm CO concentration, ODEQ will determine a schedule of selected strategies to either prevent or correct any violation of the 8-hour CO standard. The contingency strategies that will be considered include, but are not limited to:

ODEQ (and the advisory group if needed) may also conduct further evaluation, to determine if other strategies are necessary.

3. If a violation of the CO standard occurs, in addition to step two above, ODEQ will replace the Best Available Control Technology (BACT) requirement for new and modified stationary sources with the Lowest Achievable Emission Rate (LAER) technology, and reinstate the requirement to offset any new CO emissions. Additional CO emission reduction measures will be considered, as needed.

Federal transportation conformity rules (40 CFR parts 51 and 93) and general conformity rules (58 FR 63214, November 30, 1993) continue to apply under a LMP. However, as noted in the LMP Option memo, these requirements are greatly simplified. An area under a LMP can demonstrate conformity without submitting an emissions budget, and as a result, emissions do not need to be capped nor a regional emissions analysis (including modeling) conducted. Grants Pass is currently meeting the requirements of 40 CFR parts 51 and 93.

In the June 24, 2015 adequacy finding for the Grants Pass CO LMP, the EPA determined that Grants Pass has met the criteria to be exempt from regional emissions analysis for CO. However, other transportation conformity requirements such as consultation, transportation control measures, and project level conformity requirements would continue to apply to the area. With approval of the LMP, the area continues to be exempt from performing a regional emissions analysis, but must meet project-level conformity analyses as well as the transportation conformity criteria mentioned above.

In accordance with the requirements of the CAA, the EPA is approving the CO LMP for Grants Pass, Oregon submitted by the State of Oregon on April 22, 2015 as a revision to the Oregon SIP. The State has adequately demonstrated that Grants Pass will maintain the CO NAAQS and meet the requirements of a LMP through the second 10-year maintenance period through 2025.

The EPA is publishing this action without prior proposal because the EPA views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, the EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective September 28, 2015 without further notice unless the EPA receives adverse comments by August 27, 2015. If the EPA receives such comments, then the EPA will publish a timely withdrawal of the direct final rule informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this rule. Any parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 28, 2015 and no further action will be taken on the proposed rule.

Oregon Revised Statute 468.126, prohibits ODEQ from imposing a penalty for violation of an air, water or solid waste permit, unless the source has been provided five days advanced written notice of the violation, and has not come into compliance or submitted a compliance schedule within that five-day period. By its terms, the statute does not apply to Oregon's Title V program or to any program if application of the notice provision would disqualify the program from Federal delegation. Oregon has previously confirmed that, because application of the notice provision would preclude EPA approval of the Oregon SIP, no advance notice is required for violation of SIP requirements.

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

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

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

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

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

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

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

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

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 28, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review, nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of the Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that the EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

On May 21, 2012, EPA designated and classified areas for the 2008 8-hour ozone NAAQS that was promulgated on March 27, 2008, as unclassifiable/attainment or nonattainment for the new 8-hour ozone NAAQS. See 77 FR 30088. The Charlotte Area was designated as nonattainment for the 2008 8-hour ozone NAAQS with a design value of 0.079 ppm. On April 16, 2015, DAQ submitted a redesignation request and maintenance plan for the North Carolina portion of the Charlotte Area for EPA's approval. In that submittal, the State included a maintenance demonstration that estimates emissions using a 7.8 psi RVP requirement for Gaston and Mecklenburg Counties for the 2008 8-hour ozone redesignation request and maintenance plan. EPA proposed action on the aforementioned redesignation request and maintenance plan in a Federal Register document published on May 21, 2015. See 80 FR 29250. The final rule approving the State's redesignation request and maintenance plan was signed on July 17, 2015. The State, in conjunction with its request to redesignate the North Carolina portion of the Charlotte Area to attainment, is also requesting a change of the Federal RVP requirement from 7.8 psi to 9.0 psi.

On April 16, 2015, to support its request for EPA to change the Federal RVP requirement for Gaston and Mecklenburg Counties, DAQ submitted a SIP revision that contains a noninterference demonstration that included modeling assuming 9.0 psi for RVP for Gaston and Mecklenburg Counties and that updates the maintenance plan submission and associated MVEBs for the North Carolina portion of the Charlotte Area. In a notice of proposed rulemaking (NPR) published on May 21, 2015, EPA proposed to approve the State's noninterference demonstration and the updates to its maintenance plan and the associated MVEBs related to the State's redesignation request for the North Carolina portion of the Charlotte Area, contingent upon EPA approval of North Carolina's redesignation request and maintenance plan for the North Carolina portion of the Charlotte Area. See 80 FR 29230. The details of North Carolina's submittal and the rationale for EPA's actions are explained in the NPR. EPA did not receive any comments on the proposed action.

EPA is taking final action to approve the State of North Carolina's noninterference demonstration, submitted on April 16, 2015, in support of the State's request that EPA change the Federal RVP requirements for Gaston and Mecklenburg Counties from 7.8 psi to 9.0 psi. Specifically, EPA has determined that the change in the RVP requirements for Gaston and Mecklenburg Counties will not interfere with attainment or maintenance of any NAAQS or with any other applicable requirement of the CAA. North Carolina's April 16, 2015, SIP revision also updates its maintenance plan and the associated MVEBs related to the State's redesignation request for the North Carolina portion of the Charlotte Area to reflect emissions changes for the requested change to the Federal RVP requirements. EPA is approving those changes to update the maintenance plan and the MVEBs.

EPA has determined that North Carolina's April 16, 2015, RVP-related SIP revision is consistent with the applicable provisions of the CAA for the reasons provided in the NPR. EPA is not taking action today to remove the Federal 7.8 psi RVP requirement for Gaston and Mecklenburg Counties. Any such action would occur in a separate and subsequent rulemaking.

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

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

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

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

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

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

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, October 7, 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 rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000) nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 28, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

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

The State of Iowa has requested EPA approval of revisions to the local agency's rules and regulations, Linn County Air Quality Ordinance, Chapter 10, as a revision to the SIP. In order for the local program's “Air Quality Ordinance” to be incorporated into the Federally-enforceable SIP, on behalf of the local agency, the state must submit the formally adopted regulations and control strategies, which are consistent with the state and Federal requirements, to EPA for inclusion in the SIP. The regulation adoption process generally includes public notice, a public comment period and a public hearing, and formal adoption of the rule by the state authorized rulemaking body. In this case, that rulemaking body is the local agency. After the local agency formally adopts the rule, the local agency submits the rulemaking to the state, and then the state submits the rulemaking to EPA for consideration for formal action (inclusion of the rulemaking into the SIP). EPA must provide public notice and seek additional public comment regarding the proposed Federal action on the state's submission.

EPA received the request from the state to adopt revisions to the local air agency rules into the SIP on May 4, 2015. The revisions were adopted by the local agency on January 28, 2015, and became effective on January 30, 2015. EPA is approving the requested revisions to the Iowa SIP relating to the following:

• Chapter 10.1 “Purpose and Ambient Air Quality Standards”;

• Chapter 10.2 “Definitions”;

• Chapter 10.5 “Locally Required Permits”;

• Chapter 10.6 “Permit Fees”;

• Chapter 10.8 “Emissions from Fuel-Burning Equipment”;

• Chapter 10.12 “Sulfur Compounds”;

• Chapter 10.13 “Fugitive Dust,” and,

• Chapter 10.17 “Testing and Sampling of New and Existing Equipment.”

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.

We are taking direct final action to approve the amendments to the Linn County Air Quality Ordinance, Chapter 10. The local agency routinely revises its “Air Quality Ordinance” regulations to be consistent with the Federally-approved Iowa Administrative Code and are revised as follows:

Chapter 10.1, “Purpose and Ambient Air Quality Standards” is revised to cite the cross reference to state-approved rules at (455B).

Chapter 10.2, “Definitions” is revised to add “major modification,” “replacement unit,” and to revise the definitions of “regulated New Source Review (NSR) pollutant,” “significant,” and “untreated.” Punctuation and grammar corrections were made to the definitions of “Emissions Unit,” “Responsible Official,” and “Startup.”

Chapter 10.5, “Locally Required Permits,” includes revisions to 10.5(9), “Exemptions from the Authorization to Install Permit and Permit to Operate Requirements.” For the purposes of this publication, the exemptions are abbreviated but can be found in their entirety in the Technical Support Document included in the rulemaking docket: f. The equipment in laboratories, n. Asbestos demolition and renovation projects, u. Incinerators and pyrolysis cleaning furnaces, dd. Production welding, and ee. Electric hand soldering, wave soldering and electric solder paste reflow ovens. The following exemptions have been added with this rulemaking: mm. Equipment related to research and development activities at a stationary source, and, nn. A non-road diesel fueled engine as defined in 40 CFR 1068.30 and as amended through October 8, 2008.

Chapter 10.6, “Permit Fees,” is revised for administrative corrections to the fourth paragraph of item 2. “Annual Fee for Permit to Operate.”

Chapter 10.8, “Emissions from Fuel-Burning Equipment,” “d” has been removed in its entirety as it refers to the State of Iowa Compliance Sampling Manual which is now obsolete.

Chapter 10.12, “Sulfur Compounds,” item 2, “Other Processes Capable of Emitting Sulfur Dioxide” is revised to add a sentence that the paragraph shall not apply to devices which have been installed for air pollution abatement purposes where it is demonstrated by the owner of the source that the ambient air quality standards are not being exceeded.

Chapter 10.13, “Fugitive Dust” item 1, “Attainment and Unclassified Areas,” is revised to add that a person shall take reasonable precautions to prevent particulate matter from becoming airborne in quantities sufficient to cause a nuisance as defined in Iowa Code section 657.1 when the person allows, causes or permits any materials to be handled, transported or stored or a building, its appurtenances or a construction haul road to be used, constructed, altered, repaired or demolished. This does not apply to farming operations or dust generated by ordinary travel on unpaved roads. The revision further states what ordinary travel includes, and the public highway authority shall be responsible for taking corrective action in cases where said authority has received complaints.

Chapter 10.13, “Fugitive Dust” item 2, “Nonattainment Areas” is revised for administrative changes for clarification.

Chapter 10.17, “Testing and Sampling of New and Existing Equipment,” is revised for administrative, grammar, and punctuation corrections for clarification as follows: Item 1, “Continuous Monitoring of Opacity from Coal-Fired Steam Generating Units,” item 5, “Maintenance of Records of Continuous Monitors,” item 6, “Reporting of Continuous Monitoring Information,” item 7, “Tests by Owner,” item 8, “Tests by Department,” item 9, “Methods and Procedures,” and item 10, “Exemptions from Continuous Monitoring Requirements.”

Chapter 10.17, item 7, “Tests by Owner” is also revised to clarify when pretest meetings should be conducted and to clarify reporting requirements. Item 9, “Methods and Procedures,” is revised to cite the cross reference to state-approved rules as they apply to permit and compliance demonstration requirements.

As previously mentioned, additional information on the details of the Linn County Air Quality Ordinance revisions can be found in the Technical Support Document in the docket for this action.

We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Iowa Regulations for Chapter 10 Linn County Air Quality Ordinance, described in the direct final amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register.

A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 28, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

On May 21, 2012, EPA designated areas as unclassifiable/attainment or nonattainment for the 2008 8-hour ozone NAAQS that was promulgated on March 27, 2008. See 77 FR 30088. The bi-state Charlotte Area was designated as nonattainment for the 2008 8-hour ozone NAAQS and classified as a marginal nonattainment area. On April 16, 2015, NC DAQ requested that EPA redesignate the North Carolina portion of the Area to attainment for the 2008 8-hour ozone NAAQS and submitted a SIP revision containing the State's plan for maintaining attainment of the 2008 8-hour ozone standard in the Area, including the 2014 and 2026 MVEBs for NOX and VOC for the North Carolina portion of the bi-state Charlotte Area. In a notice of proposed rulemaking (NPR) published on May 21, 2015, EPA proposed to determine that the bi-state Charlotte Area is attaining the 2008 8-hour ozone NAAQS; to approve and incorporate into the North Carolina SIP the State's plan for maintaining attainment of the 2008 8-hour ozone standard in the Area, including the 2014 and 2026 MVEBs for NOX and VOC for the North Carolina potion of the bi-state Charlotte Area; and to redesignate the North Carolina portion of the Area to attainment for the 2008 8-hour ozone NAAQS. See 80 FR 29250. In that document, EPA also notified the public of the status of the Agency's adequacy determination for the subarea NOX and VOC MVEBs for the North Carolina portion of the bi-state Charlotte Area. The details of North Carolina's submittal and the rationale for EPA's actions are further explained in the NPR. See 80 FR 29250 (May 21, 2015).

EPA received two sets of comments on its May 21, 2015, proposed rulemaking actions. Specifically, EPA received adverse comments from the Sierra Club (“Commenter”) and comments supporting the proposed actions from one member of the general public.1 Full sets of these comments are provided in the docket for this final action. See Docket number EPA-R04-OAR-2015-0275. A summary of the adverse comments and EPA's responses are provided below.

Comment 1: The Commenter asserts that North Carolina experienced “abnormally cool weather” during the summers of 2013 and 2014 “that reduced the likelihood of ozone formation” and that the design values for the Area would have exceeded the 2008 8-hour ozone standard “but for the uncharacteristically cool summers in 2013 and 2014.” Therefore, the Commenter believes that EPA “should decline to issue the requested attainment determination for the Area.”

Response 1: EPA disagrees with the Commenter's position that weather should impact EPA's determination that the area has attained the NAAQS pursuant to CAA section 107(d)(3)(E)(i). That factual determination is based solely on air quality monitoring data and on the Agency's evaluation of that data's compliance with 40 CFR part 50, appendix P. Therefore, weather conditions, including any alleged resulting changes in energy demand, are irrelevant in determining whether an area is factually attaining a NAAQS.

Under EPA regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is determined by calculating the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations at an ozone monitor, also known as a monitor's design value. See 40 CFR part 50, appendix P. When the design value is less than or equal to 0.075 parts per million (ppm) at each monitor within the area, then the area is attaining the NAAQS. The data completeness requirement for evaluating monitoring data for NAAQS attainment is met at each monitor when the average percent of days with valid ambient monitoring data is greater than or equal to 90 percent and no single year has less than 75 percent data completeness as defined in appendix P of 40 CFR part 50. Monitoring data must also be collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA's Air Quality System (AQS).

EPA's analysis of monitoring data in the bi-state Charlotte Area supports its determination under section 107(d)(3)(E)(i) that the Area has attained the 2008 8-hour ozone NAAQS. The design values for each monitor in the Area for the years 2012-2014 are less than or equal to 0.075 ppm, and the data from these monitors during this time period meet the data quality and completeness requirements and are recorded in AQS. Therefore, the bi-state Charlotte Area has attained the 2008 8-hour ozone NAAQS in accordance with 40 CFR part 50, appendix P requirements.

Comment 2: The Commenter believes that EPA should disapprove North Carolina's redesignation request because “neither EPA nor DAQ has demonstrated that the recording of a design value below 75 ppb [parts per billion] for the years 2012-2014 is `due to permanent and enforceable reductions' ” as required by CAA section 107(d)(3)(E)(iii). According to the Commenter, EPA and NC DAQ cannot make this demonstration because “but for the uncharacteristically cool summers in 2013 and 2014, a design value above 75 ppb would have been recorded.” The Commenter also contends that the “uncharacteristically cool summers in 2013 and 2014” resulted in “unusually low monthly total consumption of electric power” and “starkly lower capacity factors” from Duke Energy's GG Allen and Marshall power plants during those summers and notes that “operation of these plants significantly impacts total NOX emissions and, thus, overall ozone levels.” 2 Despite the alleged decrease in the capacity factors at these two EGUs, the Commenter states that “the plants still tend to run at a significantly higher capacity factor on peak ozone days.”

Response 2: Weather effects are not controllable, and weather is just one of the parameters that allow for ozone formation. EPA does not disagree with the Commenter that ozone season temperatures and precipitation are two readily available parameters that can be used to evaluate the potential weather impacts on ozone concentrations. Ozone is more readily formed on warm, sunny days when the air is stagnant. Conversely, ozone production is generally more limited when it is cloudy, cool, rainy, or windy.3 However, although EPA agrees that the Area experienced cooler and wetter weather during some of the relevant time period, EPA disagrees with the Commenter that the improvement in air quality in the bi-state Charlotte Area was solely the result of “aberrant weather.” EPA has examined the weather data presented by the Commenter, and has determined, after conducting its own analysis of the meteorological conditions and the emission reductions occurring during the relevant time period, that the improvement in air quality in the Area was due to those emissions reductions in accordance with CAA section 107(d)(3)(E)(iii).

As noted above, Federal regulations require EPA to use a three-year average to determine attainment of the 2008 8-hour ozone NAAQS. The averaging of values over three years serves to account for some variation in meteorology from year to year. While EPA agrees that 2013 was cooler than the long-term average temperature and may have been less conducive to the formation of ozone, the Agency also notes that the weather conditions in the 2012 ozone season (a season included in the three-year average forming the basis for the attainment determination) were warmer than the long-term average and were more conducive to ozone formation. See Table 1, below.4 Furthermore, temperatures in the summer of 2014 are close to the long-term average temperatures. Given the higher than long-term average 2012 temperatures and the near normal 5 temperatures in 2014, EPA does not agree with the Commenter's conclusion that meteorological conditions during the relevant time period were so unusual or abnormal such that those conditions alone “provide sufficient justification for EPA to reject DAQ's request for the redesignation of the Area from nonattainment to attainment.” To the contrary, the certified data show that the Area attained the 2008 8-hour ozone NAAQS from 2012 to 2014, a time period with varying meteorological conditions. Preliminary monitoring data from 2015 also indicates that the bi-state Charlotte Area continues to attain the 2008 8-hour ozone NAAQS.6

Table 1 provides temperature and precipitation data for the bi-state Charlotte Area for the ozone seasons (May 1 -September 30) from 2010-2014 obtained from the National Oceanic and Atmospheric Administration's National Centers for Environmental Information (NOAA NCEI).7 Specifically, Table 1 provides overall average and average maximum ozone season temperatures and total ozone season precipitation; deviation from the 74-year average ozone season temperature and precipitation (termed the “anomaly”); and the rank of the given year on the 74-year (1940-2014) recorded history list. A rank of 74 is given to the hottest or wettest year.

The data in Table 1 show that both average temperature and precipitation varied significantly from 2010-2014. The rank and anomaly data in Table 1 show that average ozone season temperatures and precipitation were slightly above normal for the year 2012, temperatures were below normal and precipitation was above normal in 2013, and temperatures were near normal and precipitation slightly above normal in 2014. The year 2012 was one of the hottest in the recent past across the Southeast. In fact, a record-setting heat wave occurred in late June through early July 2012, which resulted in high ozone levels measured across the Southeast. Based upon the meteorology analysis, 2012 was hotter, 2013 was cooler, and 2014 was near normal when compared to the long-term average. Therefore, the 2012-2014 period does not appear to be abnormally conducive to low ozone formation and does not undermine EPA's analysis that the attainment in the bi-state Charlotte Area was due to permanent and enforceable reductions.

EPA also evaluated preliminary ozone data and meteorology for May 2015, which is the beginning of the ozone season in the Area. The Commenter provided data to show that the average maximum temperature in May 2015 is higher than the average maximum May temperature over the previous ten years. EPA agrees that the average maximum temperature in May 2015 was above average; in fact, the average maximum temperature was 84 degrees Fahrenheit, which is 4.2 degrees above average and it ranks 67 out of 75 years of recorded data in the bi-state Charlotte Area. However, even with this abnormally warm month, the May 2015 preliminary ozone data indicates that no exceedances of the 75 ppb ozone standard occurred and that the highest 8-hour average was 72 ppb. This data also indicates that although meteorological conditions were conducive to ozone formation, emissions in the Area were low enough not to support the formation of ozone above a level that would exceed the 2008 8-hour ozone NAAQS. Additionally, preliminary ozone season data available through June 28, 2015, indicate that the 4th Highest Maximum Daily 8-hour Average value for the bi-state Charlotte area monitors from March 1, 2015 through June 28, 2015 is 72 ppb.9

The Commenter's focus on meteorological conditions is inconsistent with EPA's analysis of the permanent and enforceable emission reductions that did occur in the area during the relevant time period. Consistent with EPA's longstanding practice and policy, a comparison of nonattainment period emissions with attainment period emissions is a relevant in demonstrating permanent and enforceable emissions reductions. EPA evaluated the ozone precursor emissions data in the Area and found that there were significant reductions in these emissions in multiple source categories from 2011 (a nonattainment year) to 2014 (an attainment year). The emissions data show that from 2011 to 2014, non-road NOX and VOC emissions decreased, point source NOX emissions decreased, and on-road mobile NOX and VOC emissions have decreased substantially. During this time period, mobile source NOX emissions decreased by approximately 54.5 tons per summer day (tpsd) (equating to 79 percent of the total NOX emissions reductions) and mobile source VOC emissions decreased by approximately 26.5 tpsd (equating to 100 percent of the total VOC emissions reductions). It is not necessary for every change in emissions between the nonattainment year and the attainment year to be permanent and enforceable. Rather, the CAA requires that improvement in air quality necessary for the area to attain the relevant NAAQS must be reasonably attributable to permanent and enforceable emission reductions in emissions.

The emissions reductions identified in Tables 2 and 3, above, are attributable to numerous measures implemented during this period, including the permanent and enforceable mobile source measures discussed in the NPR such as the Tier 2 vehicle and fuel standards, the large non-road diesel engines rule,10 heavy-duty gasoline and diesel highway vehicle standards,11 medium and heavy duty vehicle fuel consumption and GHG standards,12 non-road spark-ignitions and recreational standards,13 and the national program for GHG emissions and fuel economy standards. These mobile source measures have resulted in, and continue to result in, large reductions in NOX emissions over time due to fleet turnover (i.e., the replacement of older vehicles that predate the standards with newer vehicles that meet the standards). For example, implementation of the Tier 2 standards began in 2004, and as newer, cleaner cars enter the national fleet, these standards continue to significantly reduce NOX emissions. EPA expects that these standards will reduce NOX emissions from vehicles by approximately 74 percent by 2030, translating to nearly 3 million tons annually by 2030.14 Implementation of the heavy-duty gasoline and diesel highway vehicle standards rule also began in 2004. EPA projects a 2.6 million ton reduction in NOX emissions by 2030 when the heavy-duty vehicle fleet is completely replaced with newer heavy-duty vehicles that comply with these emission standards.15

The State calculated the on-road and non-road mobile source emissions contained in Tables 2 and 3 using EPA-approved models and procedures that account for the Federal mobile source measures identified above, fleet turnover, and increased population.16 17 Because the model does not include any additional mobile source measures, the large reductions in mobile source emissions quantified in the Area between 2011 and 2014 are the result of the permanent and enforceable mobile source measures listed above and discussed in the NPR.

Regarding the Commenter's discussion of capacity factors at the GG Allen and Marshall power plants and cooling degree days, the Commenter does not attempt to quantify how any decreases in these parameters translate to decreases in NOX emissions or ozone concentrations; therefore, it is unclear how the changes in capacity factors and cooling degree days support the Commenter's position that EPA cannot redesignate the bi-state Charlotte Area. The data in Table 2, above, demonstrates that the decreases in mobile source NOX emissions from 2011-2014 are much greater than the decreases in point-source NOX emissions.

In addition, EPA does not believe that the cooling degree and capacity factor data supports the conclusions reached by the Commenter. The Commenter presents data showing cooling degree days for North Carolina for the past ten years and concludes that the cooler summers in 2013 and 2014 have resulted in a lower demand for air conditioning and thus a lower demand for electric power. EPA acknowledges that the number of cooling degree days in 2013 and 2014 and the total consumption of electricity in North Carolina were lower in 2013 and 2014 than during 2010, 2011, and 2012. However, the Commenter ignores the fact that the numbers of cooling degree days in 2010, 2011, and 2012 were significantly above average. In fact, the number of cooling degree days in 2010 ranks the highest in the 120 years of data available for North Carolina and 2011 ranks the third highest out of those 120 years. In contrast, the number of cooling degree days in 2013 and 2014 were close to the 120-year average—2013 is slightly below the average, but the 2014 cooling degree days are actually above the long-term 120-year average. Also, even within the ten years of data presented by the Commenter, the number of cooling degree days in 2014 is on par with the number of cooling degree days in 2006, 2008, and 2009. EPA therefore does not agree with the Commenter that the number of cooling degree days in 2013 and 2014 undermines the Agency's conclusion about the causes of the attainment air quality in the Area.

EPA also disagrees with the Commenter's characterization of the capacity factor and electric power usage data presented in its comments. For example, the Commenter provides a figure showing total consumption of electric power in North Carolina for each ozone season for only the last five years (2010 through 2014) and concludes that the electric power consumption in 2013 and 2014 was “unusually low” using this limited time period as its reference point. However, as demonstrated by the meteorological analysis provided in Table 1 of this final action, 2010, 2011, and 2012 are warmer than long-term average years. Therefore, it is not appropriate to conclude that levels in 2013 and 2014 were “unusually low” without evaluating consumption data from a larger time period. EPA also notes that the Commenter's conclusion that ozone season capacity factors in 2012-2014 at the GG Allen and Marshall power plants are “starkly lower than preceding years” that “can be attributed, in part to the aberrantly mild summer weather and the resulting decrease in energy demand” ignores the fact that 2012 had warmer than average summer temperatures and still had capacity factors at those same units that were lower than or comparable to 2014. The Commenter's assertion is also based on the limited 2010-2014 time period that is not representative of long-term meteorological conditions. Therefore, the Commenter has not established a causal connection between differences in ozone season meteorological conditions and capacity factors for these EGUs.

For the reasons discussed above, EPA does not agree with the Commenter that the meteorological data from the relevant time period undermines its analysis and conclusion that the improvement in air quality in the bi-State Charlotte Area is reasonably attributable to the permanent and enforceable emission reductions identified by the State and EPA.

Comment 3: The Commenter states that “as EPA has acknowledged, global climate change likely will lead to significantly higher summer temperatures in the years to come and hotter summers, in turn, will lead to increased ozone formation.” The Commenter therefore believes that it is “irrational” for EPA to approve the redesignation request based on data from “two outlying uncharacteristically cool summers” that “Charlotte may not experience again.”

Response 3: EPA agrees that climate change is a serious environmental issue; however, EPA does not agree that the redesignation and maintenance plan at issue are flawed because temperatures may increase in the future. Given the potential wide-ranging impacts of climate change on air quality planning, EPA is developing climate adaptation implementation plans to assess the key vulnerabilities to our programs (including how climate change might affect attainment of national ambient air quality standards) and to identify priority actions to minimize these vulnerabilities.

With respect to climate impacts on future ozone levels, EPA's Office of Air and Radiation has identified as a priority action the need to adjust air quality modeling tools and guidance as necessary to account for climate-driven changes in meteorological conditions and meteorologically-dependent emissions. However, EPA has not yet made those changes. The broad range of potential future climate outcomes and variability of projected response to these outcomes limits EPA's ability, at this time, to translate a general expectation that average ozone levels will increase with rising temperatures to specific “actionable” SIP policies at any specific location, including the bi-state Charlotte Area. Thus, EPA believes that it is appropriate to rely upon the existing air quality modeling tools and guidance and applicable CAA provisions to ensure that ozone maintenance areas do not violate the NAAQS (as a result of climate change or any other cause).

As noted above, EPA is currently unable to fully account for the potential impact of climate change on ozone concentrations in the Area. However, there is nothing in the record to suggest that the large emissions reductions of NOX and VOC projected for the Area over the next 10 years would be outpaced by the potential increase in ozone concentrations caused by climate change over the same time period.

Comment 4: The Commenter contends that EPA should not approve the State's maintenance plan because “DAQ selected 2014 as the base year for the purpose of its maintenance demonstration, which year is not representative of air quality conditions given aberrant weather, and, thus, inappropriately skewed the analysis of future air quality toward an underestimation of future emissions.” According to the Commenter, EPA should “require DAQ to reevaluate the Area's ability to attain and maintain the ozone NAAQS using emissions data from a year (or years) in which summer weather conditions were more typical.”

Response 4: As discussed in Response 2, EPA does not agree with the Commenter's assertion that the weather in summer 2014 was “unusually cool” when the conditions from that year are viewed in comparison to a larger data set, and therefore does not agree that NC DAQ selected an inappropriate base year for a maintenance demonstration. Furthermore, it is unclear how the Commenter concludes that EPA should disapprove the maintenance plan even if the Agency accepted the Commenter's assertion that the weather in 2014 was “aberrant.” The maintenance demonstration compares base year emissions to future year emissions. If total future year emissions are above total base year emissions, maintenance is not demonstrated. For some source categories, future year emissions are projected using base year emissions; however, for other source categories, future year emissions projections are independent of base year emissions. Projected emissions for source categories that rely on base year emissions will be proportional to base year emissions in the same degree regardless of the base year emissions used. It is therefore more likely that an area will fail to demonstrate maintenance using a comparison of total emissions if the baseline is artificially low. In addition, while emissions from some source categories may vary as a result of weather conditions, the overall NOX and VOC emissions released from year to year across source categories is generally not weather-dependent; therefore, weather does not play a determinative role in the base year to future year emissions comparison.

Comment 5: The Commenter claims that EPA must disapprove the State's maintenance plan because “it fails to specify emissions reductions that are permanent and enforceable. The proposed plan identifies various state and Federal requirements that may apply to the major stationary sources of air pollution located in and in close proximity to the Charlotte Area, however, it fails to present any assurance that such requirements will result in any reduction in emissions.” In support, the Commenter references three requirements—North Carolina's Clean Smokestacks Act and EPA's Clean Air Interstate Rule (CAIR) and Cross State Air Pollution Rule (CSAPR). As to these three measures, the Commenter states its belief that they are not permanent and enforceable because they are cap and trade programs that could allow for increased NOX emissions at Duke Energy's GG Allen and Marshall power plants. The Commenter further states that “DAQ should impose enforceable limits on NOX emissions from all EGUs [electricity generating units] that are based on available and demonstrated control technology.”

Response 5: EPA disagrees with the Commenter. Consistent with EPA guidance, the State's maintenance plan identifies a number of permanent and enforceable requirements, including measures that regulate area, on-road, and off-road sources, and discusses the emissions reductions associated with each measure.18 See 80 FR 29250. In discussing the emissions reductions and status of these measures, the State has provided assurance that these requirements will result in emissions reductions.19

EPA also disagrees with the Commenter's belief that emission reductions associated with the CSA, CAIR, and CSAPR are not permanent and enforceable simply because the underlying program is an emissions trading program. Cap-and-trade programs provide economic incentives for early reductions in emissions and encourage sources to install controls earlier than required for compliance with future caps on emissions. The flexibility under a cap-and-trade system is not about whether to reduce emissions; rather, it is about how to reduce them at the lowest possible cost. Trading programs require total mass emission reductions by establishing mandatory caps on total emissions to permanently reduce the total mass emissions allowed by sources subject to the programs, validated through rigorous continuous emission monitoring and reporting regimens. The emission caps and associated controls are enforced through the associated SIP rules or federal implementation plans. Any purchase of allowances and increase in emissions by one source necessitates a corresponding sale of allowances and either reduction in emissions or use of banked allowances by another covered source.

Given the regional nature of ozone, the corresponding NOX emission and/or allowance reduction in one affected area will have an air quality benefit that will compensate, at least in part, for the impact of any emission increase in another affected area. EPA disagrees with any suggestion that only specific emission limits on units can be considered “reductions.” In fact, the information that EPA has evaluated in order to conclude that the bi-State Charlotte Area has met the criteria for redesignation shows that power plant emissions in both the Area and the surrounding region have substantially decreased as a result of cap-and-trade programs, including CAIR. The facts contradict the theoretical concerns raised by the Commenter and show that the emission trading programs, combined with other controls, have improved air quality in the Area.

Moreover, experience has demonstrated that cap and trade programs do successfully generate lasting emission reductions. For example, the NOX SIP Call and CAIR have successfully reduced transported emissions contributing to ozone nonattainment in areas across the country. Data collected from long-term national air quality monitoring networks demonstrate that these regional cap-and-trade programs have resulted in substantial achievements in air quality caused by emission reductions from power sector sources.20 In 2004, EPA designated 91 areas in the Eastern half of the United States as nonattainment for the 8-hour ozone standard adopted in 1997, using data from 2001-2003. Based on data gathered from 2009-2011, 90 of these original Eastern nonattainment areas show concentrations below the 1997 ozone standard.21

Many states have sought and continue to seek redesignation of their nonattainment areas relying in part on the reductions attributable to these cap-and-trade programs. See, e.g., 76 FR 59600, 59607 (September 27, 2011) (proposing to redesignate a portion of the Chicago area for the 1997 8-hour ozone NAAQS), finalized at 76 FR 76302 (December 7, 2011); and 74 FR 63995 (December 7, 2009) (redesignation of Great Smoky Mountain National Park for the 1997 8-hour ozone NAAQS). The Commenter's contention that EPA and North Carolina may not rely on the substantial emission reductions that have already occurred from these rules is based on a faulty and rigid interpretation of the CAA would impose a major obstacle for nonattainment areas across the country that have achieved attainment air quality because of the reductions required by the rules. This would unnecessarily undermine a reasonable, proven, and cost-effective approach to combating regional pollution problems.

Of the Federally-enforceable rules relied upon by North Carolina in its redesignation request, the Commenter singles out cap-and-trade programs as insufficiently permanent and enforceable to meet the requirements for redesignation. However, as discussed above, a number of other permanent and enforceable measures have helped contribute to the Area's attainment of the 2008 8-hour ozone standard and ensure maintenance of that standard. There is inherent flexibility in nearly all of these measures, including Federal transportation control measures and SIP emission rate limits, also known as “command-and-control” regulations. For example, the rules do not and cannot account for when and where people drive their cars, nor do they dictate that consumers in a certain area invest in newer, lower-emitting cars. Similarly, emission rate limits limit the rate of emissions per unit of fuel consumed, or parts per million of emissions in the exhaust but do not regulate throughput or hours of operation of the regulated sources. It would be unworkable for EPA to disqualify a requirement as “permanent and enforceable” for the purposes of redesignation simply because the requirement did not require the exact same pollutant emission reduction every hour of every day of every year. North Carolina relied on a suite of requirements that, while inherently allowing for some flexibility, has collectively served to bring the Area into, and to maintain, attainment of the NAAQS.

EPA's position that cap-and-trade programs are permanent and enforceable measures under section 107(d)(3)(E)(iii) was recently upheld by two Federal appellate courts. In the most recent decision, the United States Court of Appeals for the Sixth Circuit rejected Sierra Club's argument that EPA improperly relied on emissions reductions from cap-and-trade programs such as the NOX SIP Call, CAIR, and CSAPR in redesignating the Cincinnati-Hamilton nonattainment area for the 1997 PM2.5 NAAQS. Sierra Club v. EPA, 781 F.3d 299 (6th Cir. 2015). This decision is consistent with the opinion of the United States Court of Appeals for the Seventh Circuit in Sierra Club v. EPA, 774 F.3d 383 (7th Cir. 2014) that EPA could rely on the NOX SIP Call cap-and-trade program as a permanent and enforceable measure in redesignating the Milwaukee-Racine, Greater Chicago, and St. Louis (Illinois portion) nonattainment areas to attainment for the 1997 8-hour ozone NAAQS.

EPA also notes that North Carolina's maintenance plan provides for verification of continued attainment by performing future reviews of triennial emissions inventories and also for contingency measures to ensure that the NAAQS is maintained into the future if monitored increases in ambient ozone concentrations occur. See 80 FR 29250. For this and the above reasons, EPA disagrees with the Commenter's position that the State failed to identify permanent and enforceable emissions reductions in its maintenance plan.

Regarding the need for additional controls at the GG Allen and Marshall power plants, EPA has concluded that the Area has attained, and will maintain, the 2008 8-hour ozone NAAQS with the permanent and enforceable measures identified in the State's submission and in EPA's NPR. EPA also notes that the Marshall Steam Plant is not located within the bi-state Charlotte Area nonattainment boundary, and is therefore not included in the emissions comparison portion of the maintenance demonstration. Furthermore, continued nonattainment status for this Area would not require any further emissions controls for either power plant under their current configurations.

Comment 6: The Commenter believes that redesignating the bi-state Charlotte Area would “eliminate needed additional air quality planning requirements and jeopardize public health by delaying permanent attainment for the area.” According to the Commenter, the Area “consistently records higher asthma rates than the entire state. Moreover, the impacts of ozone pollution have significant environmental justice implications as African Americans carry a disproportionate asthma burden compared with whites in North Carolina.” The Commenter therefore concludes that EPA should not redesignate the Area and that “[b]efore making a final decision on whether or not to approve DAQ's redesignation request, EPA must evaluate the environmental justice implications of such action and, if it still determines that redesignation is justified, must allow for additional public comment on any proposed action.”

Response 6: As noted in EPA's May 21, 2015 NPR, Executive Order 12898 establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. These final actions do not relax control measures on existing sources and therefore will not cause emissions increases from those sources. Thus, these actions will not have an adverse human health or environmental effect on any individuals, including minority or low-income populations. As discussed above and in EPA's May 21, 2015 NPR, the Area has attained the 2008 8-hour NAAQS through permanent and enforceable measures, emissions in the Area are projected to decline following the redesignation, and the maintenance plan demonstrates that the Area will continue to meet the NAAQS for the next ten years and includes contingency measures to quickly address any NAAQS violations. While the Commenter has expressed a general concern that this action will “eliminate needed additional air quality planning requirements and jeopardize public health by delaying permanent attainment,” the Commenter has not identified any specific requirements of concern or any specific information on the potential emissions impact that would arise if those requirements were not in place. Such future emission impacts are speculative, and to the extent that emissions in fact increase in the future to levels that would impact NAAQS maintenance—which EPA does not think will happen—the Agency could take future action to address actual emissions in the Area.

Approval of North Carolina's redesignation request changes the legal designation of Mecklenburg County in its entirety and portions of Cabarrus, Gaston, Iredell, Lincoln, Rowan and Union Counties in the North Carolina portion of the bi-state Charlotte Area, found at 40 CFR 81.334, from nonattainment to attainment for the 2008 8-hour ozone NAAQS. Approval of North Carolina's associated SIP revision also incorporates a plan for maintaining the 2008 8-hour ozone NAAQS in the bi-state Charlotte Area through 2026. The maintenance plan establishes NOX and VOC MVEBs for 2014 and 2026 for the North Carolina portion of the bi-state Charlotte Area and includes contingency measures to remedy any future violations of the 2008 8-hour ozone NAAQS and procedures for evaluation of potential violations. The sub-area MVEBs for the North Carolina portion of the bi-state Charlotte Area along with the allocations from the safety margin are provided in the tables below.22

EPA is taking three separate final actions regarding the bi-state Charlotte Area's redesignation to attainment and maintenance of the 2008 8-hour ozone NAAQS. First, EPA is determining that the bi-state Charlotte Area is attaining the 2008 8-hour ozone NAAQS based on complete, quality-assured and certified monitoring data for the 2012-2014 monitoring period.

Second, EPA is approving and incorporating the maintenance plan for the bi-state Charlotte Area, including the sub-area NOX and VOC MVEBs for 2014 and 2026, into the North Carolina SIP. The maintenance plan demonstrates that the Area will continue to maintain the 2008 8-hour ozone NAAQS, and the sub-area budgets meet all of the adequacy criteria contained in 40 CFR 93.118(e)(4) and (5).

Third, EPA is determining that North Carolina has met the criteria under CAA section 107(d)(3)(E) for the North Carolina portion of the bi-state Charlotte Area for redesignation from nonattainment to attainment for the 2008 8-hour ozone NAAQS. On this basis, EPA is approving North Carolina's redesignation request for the 2008 8-hour ozone NAAQS for the North Carolina portion of the bi-state Charlotte Area. As mentioned above, approval of the redesignation request changes the official designation of Mecklenburg County in its entirety and portions of Cabarrus, Gaston, Iredell, Lincoln, Rowan and Union Counties in the North Carolina portion of the bi-state Charlotte Area for the 2008 8-hour ozone NAAQS from nonattainment to attainment, as found at 40 CFR part 81.

EPA is also notifying the public that EPA finds the newly-established sub-area NOX and VOC MVEBs for the bi-state Charlotte Area adequate for the purpose of transportation conformity. Within 24 months from this final rule, the transportation partners will need to demonstrate conformity to the new sub-area NOX and VOC MVEBs pursuant to 40 CFR 93.104(e).

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

• Are not a significant regulatory actions 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);

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

• Are 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.);

• Do 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);

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

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

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

• Are 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

• Will not have disproportionate human health or environmental effects 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 28, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR parts 52 and 81 are amended as follows:

Under the CSAPR FIPs, a portion of each state budget for each of the four CSAPR emissions trading programs is reserved as a NUSA from which allowances are allocated to eligible units through an annual one- or two-round process. In a NODA published in the Federal Register on June 1, 2015 (80 FR 30988), EPA described the allocation process and provided notice of preliminary calculations for the first-round 2015 NUSA allowance allocations. EPA also described the process for submitting any objections to the preliminary calculations.

In response to the June 1 NODA, EPA received three timely written objections, two late written objections, and several telephone inquiries. The objections and inquiries all concerned the question of whether EPA is correct to exclude emissions that occurred before a unit's monitor certification deadline from the emissions data used to calculate the NUSA allowance allocations. As explained below, under the regulations such emissions are properly excluded because they are not emissions during a “control period.”

Under the CSAPR FIPs, an eligible unit's first-round NUSA allowance allocation for a given compliance year is generally based on the unit's emissions “during the immediately preceding control period” (that is, the control period in the year before the compliance year).1 An eligible unit's second-round NUSA allowance allocation for a given compliance year is generally based on the positive difference, if any, between the unit's emissions “during such control period” (that is, the control period in the compliance year) and the unit's first-round NUSA allocation for the compliance year.2 A “control period” is defined as either a calendar year or a May-September period—for the SO2 and NOX annual programs and for the NOX ozone season program, respectively—subject in both cases to an exclusion, for any given unit, of periods before the unit's monitor certification deadline, thereby ensuring that the unit's “control periods” generally represent the periods for which the unit must hold CSAPR allowances equal to its emissions.3 The emissions data used in calculating NUSA allowance allocations under the CSAPR FIPs thus properly exclude any emissions occurring before a unit's monitor certification deadline because such emissions are not emissions “during the immediately preceding control period” or “during such control period.” 4

EPA excluded emissions before units' monitor certification deadlines from the preliminary calculations of first-round 2015 NUSA allowance allocations discussed in the June 1 NODA. In the final calculations, EPA has likewise excluded emissions before units' monitor certification deadlines and has made no other changes to the data used in the preliminary calculations. The final first-round 2015 NUSA allowance allocations are therefore unchanged from the preliminary calculations.

The final unit-by-unit data and allowance allocation calculations are set forth in Excel spreadsheets titled “CSAPR_NUSA_2015_NOx_Annual_1st_Round_Final_Data”, “CSAPR_NUSA_2015_NOx_OS_1st_Round_Final_Data”, and “CSAPR_NUSA_2015_SO2_1st_Round_Final_Data,” available on EPA's Web site at http://www.epa.gov/crossstaterule/actions.html. The three spreadsheets show EPA's final determinations of first-round 2015 NUSA allocations under the CSAPR NOX annual, NOX ozone season, and SO2 (Group 1 and Group 2) trading programs, respectively.

Pursuant to CSAPR's allowance recordation timing requirements, the allocated NUSA allowances will be recorded in sources' AMS accounts by August 1, 2015. EPA notes that an allocation or lack of allocation of allowances to a given unit does not constitute a determination that CSAPR does or does not apply to the unit. EPA also notes that NUSA allocations are subject to potential correction if a unit to which NUSA allowances have been allocated for a given compliance year is not actually an affected unit as of January 1 (or May 1 in the case of the NOX ozone season program) of the compliance year.5

Pelagic longline fishing in the western and central Pacific Ocean is managed, in part, under the Western and Central Pacific Fisheries Convention Implementation Act (Act). Regulations governing fishing by U.S. vessels in accordance with the Act appear at 50 CFR part 300, subpart O.

NMFS established a calendar year 2015 limit of 3,502 metric tons (mt) of bigeye tuna (Thunnus obesus) that may be caught and retained in the U.S. pelagic longline fishery in the area of application of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention Area) (80 FR 43634, July 23, 2015; 50 CFR 300.224). NMFS monitored the retained catches of bigeye tuna using logbook data submitted by vessel captains and other available information, and determined that the 2015 catch limit would be reached by August 5, 2015. In accordance with 50 CFR 300.224(e), this rule serves as advance notification to fishermen, the fishing industry, and the general public that the U.S. longline fishery for bigeye tuna in the Convention Area will be closed during the dates provided in the DATES heading. The fishery is scheduled to reopen on January 1, 2016. This rule does not apply to the longline fisheries of American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands, collectively “the territories,” as described below.

During the closure, a U.S. fishing vessel may not retain on board, transship, or land bigeye tuna captured by longline gear in the Convention Area, except that any bigeye tuna already on board a fishing vessel upon the effective date of the restrictions may be retained on board, transshipped, and landed, provided that they are landed within 14 days of the start of the closure, that is, by August 19, 2015. This 14-day landing requirement does not apply to a vessel that has declared to NMFS, pursuant to 50 CFR 665.803(a), that the current trip type is shallow-setting.

Longline-caught bigeye tuna may be retained on board, transshipped, and landed if the fish are caught by a vessel with a valid American Samoa longline permit, or landed in the territories. In either case, the following conditions must be met:

(1) The fish is not caught in the U.S. Exclusive Economic Zone (EEZ) around Hawaii;

(2) Other applicable laws and regulations are followed; and

(3) The vessel has a valid permit issued under 50 CFR 660.707 or 665.801.

Bigeye tuna caught by longline gear during the closure may also be retained on board, transshipped, and/or landed if they are caught by a vessel that is included in a specified fishing agreement under 50 CFR 665.819(d), in accordance with 50 CFR 300.224(f)(iv).

During the closure, a U.S. vessel is also prohibited from transshipping bigeye tuna caught in the Convention Area by longline gear to any vessel other than a U.S. fishing vessel with a valid permit issued under 50 CFR 660.707 or 665.801.

The catch limit and this closure do not apply to bigeye tuna caught by longline gear outside the Convention Area, such as in the eastern Pacific Ocean. To ensure compliance with the restrictions related to bigeye tuna caught by longline gear in the Convention Area, however, the following requirements apply during the closure period:

(1) Longline fishing both inside and outside the Convention Area is not allowed during the same fishing trip. An exception would be a fishing trip that is in progress on August 5, 2015. In that case, the catch of bigeye tuna must be landed by August 19, 2015; and

(2) If a longline vessel fishes outside the Convention Area and the vessel then enters the Convention Area during the same fishing trip, the fishing gear must be stowed and not readily available for fishing in the Convention Area. Specifically, hooks, branch lines, and floats must be stowed and the mainline hauler must be covered.

The above two additional prohibitions do not apply to the following vessels:

(1) Vessels on declared shallow-setting trips pursuant to 50 CFR 665.803(a); and

(2) Vessels operating in the longline fisheries of the territories. This includes vessels included in a specified fishing agreement under 50 CFR 665.819(d), in accordance with 50 CFR 300.224(f)(iv). This group also includes vessels with valid American Samoa longline permits and vessels landing bigeye tuna in one of the territories, as long as the bigeye tuna were not caught in the EEZ around Hawaii, the fishing was compliant with all applicable laws, and the vessel has a valid permit issued under 50 CFR 660.707 or 665.801.

There is good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment on this action, because it would be contrary to the public interest. This rule closes the U.S. longline fishery for bigeye tuna in the western and central Pacific as a result of reaching the applicable bigeye tuna catch limit. The limit is codified in Federal regulations and is based on agreed limits established by the Western and Central Pacific Fisheries Commission. NMFS forecasts that the fishery will reach the 2015 limit by August 5, 2015. Although this is much earlier than in previous years, longline fishermen have been subject to longline bigeye tuna limits in the western and central Pacific since 2009. They have received ongoing, updated information about the 2015 catch and progress of the fishery in reaching the Convention Area limit via the NMFS Web site, social media, and other means. This constitutes adequate advance notice of this fishery closure. Additionally, the publication timing of this rule provides longline fishermen with seven days' advance notice of the closure date, and allows two weeks to return to port and land their catch of bigeye tuna.

For the reasons stated above, there is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for this temporary rule. NMFS must close the fishery as soon as possible to ensure that fishery does not exceed the catch limit. According to NMFS stock-status-determination criteria, bigeye tuna in the Pacific Ocean are currently experiencing overfishing. NMFS implemented the catch limit to reduce the effects of fishing on bigeye tuna and restore the stock to levels capable of producing maximum sustainable yield on a continuing basis. Failure to close the fishery immediately would result in additional fishing pressure on this stock, in violation of Federal law and international obligations.

This action is required by 50 CFR 300.224 and is exempt from review under Executive Order 12866.

Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of North Atlantic SWO by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. North Atlantic SWO quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) into two equal semi-annual directed fishery quotas, an annual incidental catch quota for fishermen targeting other species or taking SWO recreationally, and a reserve category, per the allocations established in the 2006 Consolidated Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006), as amended, and in accordance with implementing regulations. NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota.

The 2015 adjusted North Atlantic SWO quota is 3,359.4 mt dw (see FR 80 25609, May 5, 2015). From the adjusted quota, 50 mt dw was allocated to the reserve category for inseason adjustments and research, and 300 mt dw was allocated to the incidental category, which includes recreational landings and landings by incidental SWO permit holders, per § 635.27(c)(1)(i). This resulted in an allocation of 3,009.4 mt dw for the directed fishery, which is split equally (1,504.7 mt dw) between two seasons in 2015 (January through June, and July through December).

The 2015 North Atlantic SWO fishing year, which is managed on a calendar-year basis and divided into two equal semi-annual quotas, began January 1, 2015. Landings attributable to the SWO General Commercial permit are counted against the applicable semi-annual directed fishery quota. Regional default retention limits for this permit have been established and are automatically effective from January 1 through December 31 each year, unless changed based on the inseason regional retention limit adjustment criteria at § 635.24(b)(4)(iv). The default retention limits established for the SWO General Commercial permit are: (1) Northwest Atlantic region—three SWO per vessel per trip; (2) Gulf of Mexico region—three SWO per vessel per trip; (3) U.S. Caribbean region—2 SWO per vessel per trip; and, (4) Florida SWO Management Area—zero SWO per vessel per trip. The default retention limits apply to SWO General Commercial permitted vessels and to HMS Charter/Headboat permitted vessels when fishing on non-for-hire trips. As a condition of these permits, vessels may not possess, retain, or land any more SWO than is specified for the region in which the vessel is located. The retention limits were not adjusted in 2014.

NMFS has received requests to increase the retention limits in the Northwest Atlantic region and in the Florida SWO Management Area. Under § 635.24(b)(4)(iii), NMFS may increase or decrease the SWO General Commercial permit vessel retention limit in any region within a range from zero to a maximum of six SWO per vessel per trip. Any adjustments to retention limits must be based upon consideration of the relevant criteria provided in § 635.24(b)(4)(iv), which include: The usefulness of information obtained from biological sampling and monitoring of the North Atlantic SWO stock; the estimated ability of vessels participating in the fishery to land the amount of SWO quota available before the end of the fishing year; the estimated amounts by which quotas for other categories of the fishery might be exceeded; effects of the adjustment on accomplishing the objectives of the fishery management plan and its amendments; variations in seasonal distribution, abundance, or migration patterns of SWO; effects of catch rates in one region precluding vessels in another region from having a reasonable opportunity to harvest a portion of the overall SWO quota; and, review of dealer reports, landing trends, and the availability of SWO on the fishing grounds.

NMFS has considered these criteria, as discussed below, and their applicability to the SWO General Commercial permit retention limit in all regions for the remainder of 2015. Last year, with application of the default SWO General Commercial permit retention limits, total annual directed SWO fishery landings were approximately 1,303 mt dw (39 percent of the 3,303-mt dw total annual adjusted directed fishery quota). This year, through June 30, 2015, directed SWO landings are 481.6 mt dw (36.5 percent of the 1,505 mt dw Jan. to June semi-annual adjusted directed subquota; or 16 percent of the 3,010 mt dw total annual adjusted directed quota).

Given that SWO directed landings fell well below the available 2014 quota, and that 2015 landings continue to be below the available 2015 directed SWO quota, and considering the regulatory criteria, NMFS has determined that the SWO General Commercial permit vessel retention limit in the Northwest Atlantic, Gulf of Mexico, and U.S. Caribbean regions applicable to persons issued a SWO General Commercial permit or HMS Charter/Headboat permit (when on a non-for-hire trip) should be increased from the default levels discussed above.

A principal consideration is the objective of providing opportunities to harvest the full North Atlantic directed SWO quota without exceeding it based upon the 2006 Consolidated HMS FMP goal: “Consistent with other objectives of this FMP, to manage Atlantic HMS fisheries for continuing optimum yield so as to provide the greatest overall benefit to the Nation, particularly with respect to food production, providing recreational opportunities, preserving traditional fisheries, and taking into account the protection of marine ecosystems.” At the same time, it is also important for NMFS to continue to provide protection to important SWO juvenile areas and migratory corridors.

After considering all of the relevant criteria, NMFS has determined that this year, increases from the default limits are warranted. With respect to the regulatory criteria, NMFS has examined dealer reports and landing trends, and determined that the information obtained from biological sampling and monitoring of the North Atlantic SWO stock is useful. Recently implemented electronic dealer reporting provides accurate and timely monitoring of landings. This information indicates that sufficient directed SWO quota is available that would warrant an increase in the SWO General Commercial permit retention limit. Regarding the regulatory criterion that NMFS consider “the estimated ability of vessels participating in the fishery to land the amount of SWO quota available before the end of the fishing year,” the directed SWO quota has not been harvested for several years and, based upon current landing trends, is not likely to be harvested or exceeded in 2015. Based upon recent landings rates from dealer reports, an increase in the vessel retention limit for SWO General Commercial permit holders is not likely to cause quotas for other categories of the fishery to be exceeded. Similarly, regarding the criterion that NMFS consider the estimated amounts by which quotas for other categories of the fishery might be exceeded, NMFS expects there to be sufficient SWO quota for the remainder of the year, and thus increased catch rates in one region are not expected to preclude vessels in another region from having a reasonable opportunity to harvest a portion of the overall SWO quota. Landings by vessels issued this permit (and Charter/Headboat permitted vessels on a non-for-hire trip) are counted against the adjusted directed SWO quota. As indicated above, this quota has not been exceeded for several years and, based upon current landing trends, is not likely to be exceeded in 2015. Similarly, NMFS expects that there will be sufficient SWO quota for the remainder of the year, thus increased catch rates in one region are not expected to preclude vessels in another region from having a reasonable opportunity to harvest a portion of the overall SWO quota.

With regard to SWO abundance, the 2014 report by ICCAT's Standing Committee on Research and Statistics indicated that the North Atlantic SWO stock is not overfished (B2011/Bmsy = 1.14), and overfishing is not occurring (F2011/Fmsy = 0.82). Increasing the retention limit for this U.S. handgear fishery is not expected to affect the SWO stock status determination because any additional landings would be in compliance with the ICCAT recommended U.S. North Atlantic SWO quota allocation.

Mature SWO are anticipated to migrate to the fishing grounds off the northeast U.S. coast during the summer and fall months. Based upon landings over the last several years, it is highly unlikely that the June through December directed SWO subquota will be filled with the current default retention limits of three SWO per vessel per trip (Northwest Atlantic and Gulf of Mexico), and two SWO per vessel per trip (U.S. Caribbean). For the entire 2014 fishing year, 39 percent of the total adjusted directed SWO quota was filled.

Increasing the SWO General Commercial permit retention limit to six fish per vessel per trip will increase the likelihood that directed SWO landings will approach, but not exceed, the annual SWO quota, as well as increase the opportunity for catching SWO during the June through December directed subquota period. Increasing opportunity within this subquota period is also important because of the migratory nature and seasonal distribution of SWO, one of the regulatory criteria to be considered when changing the retention limit inseason (variations in seasonal distribution, abundance, or migration patterns of SWO). In a particular geographic region, or waters accessible from a particular port, the amount of fishing opportunity for SWO may be constrained by the short amount of time the SWO are present as they migrate. Dealer reports for Swordfish General Commercial permitted vessels indicate swordfish are available from June through December in both the Northwest Atlantic and Gulf of Mexico regions and are likely to be available in the U.S. Caribbean region during December and January.

Based upon these considerations, NMFS has determined that a six-fish per vessel per trip SWO General Commercial permit retention limit is warranted in the Northwest Atlantic, Gulf of Mexico, and U.S. Caribbean regions through December 31, 2015, for SWO General Commercial permitted vessels and HMS Charter/Headboat permitted vessels when on a non-for-hire trip. It would provide a reasonable opportunity to harvest the U.S. quota of SWO without exceeding it, while maintaining an equitable distribution of fishing opportunities; help achieve optimum yield in the SWO fishery; allow for the collection of data for stock monitoring purposes; and be consistent with the objectives of the 2006 Consolidated HMS FMP, as amended. Therefore, NMFS increases the SWO General Commercial permit retention limit from the default limit to six SWO per vessel per trip in these three regions, effective from July 30, 2015 through December 31, 2015. The regional SWO retention limits will automatically revert back to the default levels on January 1, 2016.

As indicated above, NMFS has also received requests since publication of the final rule implementing Amendment 8 to the 2006 Consolidated HMS FMP (which established the SWO General Commercial permit) to increase the retention limit of SWO in the Florida SWO Management Area from the default of zero. NMFS has determined that the retention limit will remain at zero SWO per vessel per trip in the Florida SWO Management Area in 2015. As described in Amendment 8 to the 2006 Consolidated HMS FMP, the area off the southeastern coast of Florida, particularly the Florida Straits, contains oceanographic features that make the area biologically unique. It provides important juvenile SWO habitat, and is essentially a narrow migratory corridor containing high concentrations of SWO located in close proximity to high concentrations of people who may fish for them. Public comment on Amendment 8, including from the Florida Fish and Wildlife Conservation Commission, indicated concern about the resultant high potential for the improper rapid growth of a commercial fishery, increased catches of undersized SWO, the potential for larger numbers of fishermen in the area, and the potential for crowding of fishermen, which could lead to gear and user conflicts. These concerns remain valid. NMFS will continue to collect information to evaluate the appropriateness of the retention limit in the Florida SWO Management Area and other regional retention limits.

These adjustments are consistent with the 2006 Consolidated HMS FMP as amended, ATCA, and the Magnuson-Stevens Act, and are not expected to negatively impact stock health.

NMFS will continue to monitor the SWO fishery closely through mandatory landings and catch reports. Dealers are required to submit landing reports and negative reports (if no SWO were purchased) on a weekly basis.

Depending on the level of fishing effort and catch rates of SWO, NMFS may determine that additional retention limit adjustments or closures are necessary to ensure that available quota is not exceeded or to enhance fishing opportunities. Subsequent actions, if any, will be published in the Federal Register. In addition, fishermen may access http://www.nmfs.noaa.gov/sfa/hms/species/swordfish/landings/index.html for updates on quota monitoring.

The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the 2006 Consolidated HMS FMP, as amended, provide for inseason retention limit adjustments to respond to changes in SWO landings, the availability of SWO on the fishing grounds, the migratory nature of this species, and regional variations in the fishery. Based on available SWO quota, stock abundance, fishery performance in recent years, and the availability of SWO on the fishing grounds, among other considerations, adjustment to the SWO General Commercial permit retention limits from the default levels is warranted. Analysis of available data shows that adjustment to the SWO daily retention limit from the default level would result in minimal risks of exceeding the ICCAT-allocated quota. NMFS provides notification of retention limit adjustments by publishing the notice in the Federal Register, emailing individuals who have subscribed to the Atlantic HMS News electronic newsletter, and updating the information posted on the “Atlantic HMS Breaking News” Web site at http://www.nmfs.noaa.gov/sfa/hms/news/breaking_news.html. Delays in temporarily increasing these retention limits would adversely affect those SWO General Commercial permit holders and HMS Charter/Headboat permit holders that would otherwise have an opportunity to harvest more than the default retention limits of three SWO per vessel per trip in the Northwest Atlantic and Gulf of Mexico regions, and two SWO per vessel per trip in the U.S. Caribbean region. Further, any delay could exacerbate the problem of low SWO landings and subsequent quota rollovers. Limited opportunities to harvest the directed SWO quota may have negative social and economic impacts for U.S. fishermen. Adjustment of the retention limits needs to be effective as soon as possible to allow the impacted sectors to benefit from the adjustment during the relevant time period, which would have largely passed by for some fishermen if the action is delayed for notice, and to not preclude fishing opportunities for fishermen who have access to the fishery only during this time period. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

This action is being taken under § 635.24(b)(4) and is exempt from review under Executive Order 12866.

On April 21, 2015, NMFS published a proposed rule in the Federal Register (80 FR 22156) that would modify and add regulations at 50 CFR 660.721, to reduce the daily bag limits for sport-caught PBF harvested in the EEZ off the coast of California and to promulgate new at-sea fillet regulations applicable south of Point Conception, Santa Barbara County. The public comment period on the proposed rule was open until May 6, 2015, and NMFS received 976 comments, which are summarized and discussed below. This final rule is intended to reduce fishing mortality and aid in rebuilding the PBF stock, which is overfished and subject to overfishing (78 FR 41033, July 9, 2013), and to satisfy the United States' obligation to reduce catches of PBF by sportfishing vessels in accordance with conservation measures adopted by the Inter-American Tropical Tuna Commission (IATTC). This rule is implemented under the authority of the MSA as a conservation measure recommended by the Council during the 2015-2016 biennial management cycle, as established in the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP) framework provisions for changes to routine management measures.

The proposed rule contains additional background information, including the basis for the new regulations. Additional information on changes since the proposed rule is included below.

This final rule reduces the existing bag limit of 10 PBF per day to 2 PBF per day and the maximum multiday possession limit (i.e., for trips of 3 days or more) from 30 PBF to 6 PBF. For fishing trips of less than 3 days, the daily bag limit is multiplied by the number of days fishing to determine the multiday possession limit (e.g., the possession limit for a 1-day trip would be two fish and for a 2-day trip, four fish). The bag limits of this section apply on the basis of each 24-hour period at sea, regardless of the number of trips per day. The final rule does not authorize any person to take and retain more than one daily bag limit of fish during 1 calendar day. The daily bag and multiday possession limits apply to the U.S. EEZ off the coast of California and might be more or less conservative than Mexico's limits. The U.S. recreational limits would not apply to U.S. anglers while in Mexico's waters, but to facilitate enforcement and monitoring, the limits will apply to U.S. vessels in the U.S. EEZ or landing to U.S. ports, regardless of where the fish were harvested.

The regulations establish new requirements for filleting tuna at-sea (i.e., each fish must be cut into six pieces placed in an individual bag so that certain diagnostic characteristics are left intact), which will assist law enforcement personnel in accurately identifying the different tuna species. These requirements apply to tuna species caught south of the line running due west true from Point Conception, Santa Barbara County (34°27′ N. lat.). As defined in 50 CFR 660.702, tuna refers to the following species: Yellowfin, Thunnus albacares; bluefin, T. orientalis; bigeye, T. obesus; albacore, T. alalunga; and skipjack tuna, Katsuwonus pelamis.

NMFS received 976 written public comments pertaining to the proposed action.

NMFS categorized comments by whether they supported a reduced bag limit and/or establishment of new fillet requirements. Summaries of the comments received and NMFS' responses appear below. Some comments were beyond the scope of this rulemaking and are not addressed here. Nonetheless, those comments are valuable; and NMFS will consider them for future management planning.

Comment 1: Reducing the daily bag limit from 10 PBF per day to 2 PBF per day would result in an 80 percent reduction in catch, which goes beyond the 25-40 percent harvest reduction measure embodied in IATTC Resolution C-14-06.

Response: A reduction of 80 percent in the daily limit (from 10 PBF per day to 2 PBF per day) does not reflect the actual estimated reduction in catch (harvest), which is the metric for rebuilding the stock of PBF in both domestic and international conservation measures. The alternatives analyzed and presented to the Council, including the preferred alternative of 2 PBF per day, were intended to reduce retained recreational catch of PBF compared to the status quo (i.e., 10 PBF per day). The existing 10 fish per day bag limit for PBF was adopted in 2007 and became effective in 2008. California Passenger Fishing Vessel (CPFV) logbook data for the 2008 to 2013 time period, were analyzed to cover the period when the existing 10 fish bag limit has been in effect. On average, a daily bag limit change from 10 to 4 fish would result in a 5 to 10 percent catch reduction; a daily bag limit of 3 fish would equal a 15 percent reduction; a daily bag limit of 2 fish, a 30 percent reduction; and a daily bag limit of 1 fish, a 50 percent reduction.

Comment 2: In lieu of a daily bag limit, NMFS should have considered using quota management, including the use of in-season closures if needed. A catch limit (i.e., a quota) of 208 metric tons should be applied, consistent with IATTC scientific staff recommendations for sportfishing harvest reductions needed to rebuild the PBF stock.

Response: Prior to the IATTC annual meeting in 2014, IATTC scientific staff recommended keeping non-commercial catches in the eastern Pacific Ocean (EPO) below 214 mt based on the same methods, and years, that they used to recommend a commercial limit for the EPO (IATTC-87-03d). IATTC member countries expressed concerns about the appropriateness of these methods for the recreational sector. After additional work, the IATTC scientific staff recommended percentage reductions based on more recent levels of catch, and in lieu of an annual quota. This is reflected in Resolution C-14-06, which states: “Taking into account the IATTC scientific staff's conservation recommendation that a reduction of 20 percent to 45 percent in catches would be beneficial for the stock, provided that these reductions are implemented over the entire range of the stock. . . .” The implementation of a daily bag limit meets the conservation recommendation in Resolution C-14-06 while also allowing U.S. anglers to target PBF throughout the season; a catch limit could result in a retention prohibition on PBF early in the recreational fishing season. This seasonal access is valued by anglers, and also an important component for maintaining the economic viability of sportfishing businesses that depend on fishing throughout the season.

Comment 3: NOAA should have considered a slot size limit (range of allowable harvest by size) to protect younger, pre-spawning PBF and older, reproductively mature PBF.

Response: The majority of PBF harvested by U.S. anglers in the EPO are 1-3 year old juvenile fish (average weight 30 pounds) that have not yet reached sexual maturity (i.e., are reproductively inactive). PBF reach sexual maturity at approximately five years of age and roughly 125 pounds. PBF spawn in the western Central Pacific Ocean (WCPO) between central Japan and the northern Philippines, and in the Sea of Japan from April through August (2014 PBF Stock Assessment, International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean). Very few PBF of spawning size are available to U.S. anglers in the EPO therefore a slot limit constraining harvest by size would not be a demonstrably effective measure. In addition, instituting a slot limit management measure would require additional and costly monitoring and compliance resources to effectively implement. Expanded state and Federal monitoring efforts, including increased dockside surveys and at-sea sampling efforts, are being implemented to more accurately track the recreational and commercial harvest of PBF to comply with conservation measures in place.

Comment 4: Given the severely depressed status of the stock, a 1-fish daily bag limit resulting in a projected harvest impact reduction of 54 percent would be more appropriate to address the harvest reductions embodied in IATTC Resolution C-14-06.

Response: A 2-fish daily bag limit is consistent with IATTC scientific staff recommendations and Pacific Council recommendations. IATTC Resolution C-14-06 recommends a reduction of 20 percent to 45 percent in PBF catches to assist in the rebuilding of the PBF stock, provided that these reductions are implemented over the entire range of the stock. For the period 2004-2013, the impact of recreational catch of PBF in the EPO (predominantly by California-based recreational vessels) has ranged from 0.4 percent to 24 percent of the total EPO fishery impact and 0.1 percent to 4.7 percent of the stock-wide fishery impact. The implementation of a bag limit of 2 PBF per day is estimated to reduce the U.S. recreational harvest of PBF by 30 percent, as compared to the average U.S. West Coast sport fishing harvest of PBF during the 2008-2013 time frame. The estimated 30 percent reduction is consistent with IATTC scientific staff recommendations and guidance embodied in MSA Section 304(i) for reducing the relative impact of the U.S. fleet on the stock. The percentage of angler bags that would face a reduction increases steeply when considering a reduction from a 2 fish per day bag limit to a 1 fish per day limit, while the reduction in the overall U.S. recreational mortality increases by a relatively smaller amount. Estimated employment impacts also increase sharply with lower bag limits; for instance, job loss in the CPFV industry on the range from 14 to 85 full-time positions, out of an estimated 1,537 total positions, is expected with a bag reduction to one fish per day (Draft Environmental Assessment, Daily Bag Limits, Possession Limits, and At-Sea Processing for Pacific Bluefin Tuna in California Recreational Fisheries. Pacific Fishery Management Council, June 2015). The 2 fish per day bag limit is consistent with MSA National Standards, including Standard 8, which requires consideration of the importance of fishery resources to fishing communities when implementing conservation and management measures.

Comment 5: A total PBF recreational fishery closure is warranted based on the estimated 96-percent PBF population biomass decrease from the unfished biomass.

Response: There is no evidence to suggest that a unilateral closure of U.S. recreational fishing for PBF will either end overfishing or have a measurable impact on reducing overfishing because catch of PBF by the U.S.-based recreational fishery represents such a small portion of the total Pacific-wide catch. Furthermore, such a prohibition would economically harm U.S. West Coast fishing communities. Despite the fact that U.S. West Coast-based sport fishermen are not permitted to sell their catch, other positive regional economic impacts generated by recreational fishing activities, as well as the pleasure of recreational fishing, would be negatively impacted by a fishing closure. The Pacific Council considered impacts to recreational fisheries when adopting the measures contained in this rule as part of its biennial management process, and in accordance with responsibilities under MSA section 304(i) to address the relative impact of U.S. fisheries on the PBF stock. During its deliberations, the Pacific Council considered an analysis of the potential impact of recreational bag and possession limit reductions, including a 0-bag limit scenario (i.e., a moratorium on retention of catch), which is similar in nature to closing the fishery. This analysis was based on CPFV logbook data from the 2008 to 2013 fishing seasons and included results indicating that a moratorium on PBF fishing (e.g., reducing the current PBF bag limit from 10 to 0 fish) could lead to a loss of up to $13.8 million in annual trip expenditures and $25.8 million in annual gross sales within the southern California due to a decrease in the number of CPFV trips that target PBF (5,275 angler days in U.S. waters and 56,338 angler days in Mexico waters). Additionally, the 0-bag limit scenario was estimated to generate a potential employment loss in the southern California economy of up to 178 full-time equivalent jobs. In addition to the indirect economic impact of a potential no-retention measure, recreational fishermen would also be deprived of the pleasure of fishing for, and retaining, even small numbers of PBF.

Comment 6: Given the increased presence and abundance of PBF off the U.S. West Coast over the past few seasons, a bag limit reduction is unnecessary.

Response: The spawning stock biomass (SSB) of PBF is at historic lows (about 4 percent compared to the SSB if no fishing had taken place) while the amount and rate of PBF harvested each year continues to be high (2014 PBF Stock Assessment, International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean). The U.S. has a statutory obligation under both the MSA and the Tuna Conventions Act (statutory authority to implement IATTC Resolutions) to reduce harvest of PBF. All member nations to the IATTC and the Western and Central Pacific Fisheries Commission (WCPFC) that harvest PBF have committed to harvest reductions that contribute to the rebuilding of the PBF stock.

Of the tunas, PBF has the broadest geographic range, spanning large expanses of the Pacific Ocean. They spawn in the WCPO between central Japan and the northern Philippines, and in the Sea of Japan from April through August. Based on tag return data, a portion of these fish are known migrate to waters off the U.S. West Coast and Mexico. The exact proportion that migrates is unknown, but it is possible that in the last few years a larger proportion of the juveniles have migrated from the spawning grounds to the U.S. West Coast and Mexico. The migration patterns of PBF are influenced by oceanographic conditions and vary among years. Increases in the number of fish observed locally may be a result of changes in the proportion of fish migrating to the eastern Pacific, and/or conditions along the west coast that may have shifted schools further north.

Comment 7: The proposed fillet requirements are overly burdensome and unnecessary to adequately identify tuna species; specifically, NMFS should not require fishermen to cut out the collars and the belly flaps.

Response: The at-sea fillet requirements will assist law enforcement personnel in accurately differentiating among species of tuna, specifically yellowfin and PBF. Personnel from NMFS, the California Department of Fish and Wildlife (CDFW), and key sportfishing industry stakeholders worked with state and Federal law enforcement personnel to design and test the proposed at-sea fillet requirements. The final fillet specifications were derived, in part, from advice provided by regionally recognized tuna species identification specialists and based on a series of filleting demonstrations and simulated identification exercises. One of the key diagnostic characteristics for identifying these two species is the shape and length of the pectoral fin. Another diagnostic characteristic is the thickness of the belly flaps and the shape of the urogenital pore. The belly wall is thicker and the urogenital pore is rounded in PBF versus a thinner belly wall and a more oval-shaped pore in yellowfin tuna. Therefore, to facilitate enforcement, NOAA has a compelling reason for requiring fishermen to leave these characteristics intact (i.e., by keeping pectoral fins attached to the collars, and including the belly flap) when filleting at-sea.

Comment 8: The fillet requirements would create unsafe conditions at sea, given the difficulty in making the proposed cuts, specifically the collar cuts, while working on unstable and slippery vessel platforms.

Response: The fillet requirements will only apply south of a line running due west true from Point Conception, Santa Barbara County (34°27′ N. latitude) to the U.S.-Mexico border. If rough seas create a safety risk while filleting, fishermen may choose to not fillet their catch until reaching calmer waters. Individuals may also leave the fish whole or process them in another manner such that the species may be determined. This could include gilling and gutting, a process in which the fish is bled and the gills and/or internal organs are removed, but the rest of the fish remains intact. This type of processing is not considered filleting.

Comment 9: More should be done to constrain commercial harvests of PBF given the majority of the impacts on the stock have been attributed to commercial fisheries interactions. Domestic regulations are not equitable to measures being implemented internationally to rebuild the stock.

Response: While this comment was not within the scope of this rulemaking, NMFS notes that considerable effort is being undertaken to constrain commercial harvests of PBF both domestically and internationally. The United States is part of this effort and is obligated under the treaty establishing the IATTC and under the MSA to constrain harvest by U.S. commercial and recreational fleets. All members of the WCPFC and IATTC, including the United States, are obligated to make catch reductions in the interest of rebuilding the stock. Specifically, the WCPFC Conservation and Management Measure 2014-04 stipulates that:

• All members must reduce their fishing of PBF to below the average amount they fished in 2002 to 2004 in the WCPO; and

• All members must reduce their catch of PBF smaller than 30 kg (66 lbs) by 50 percent of the average amount fished in 2002 to 2004 in the WCPO.

Additionally, IATTC Resolution C-14-06 stipulates that:

• A 20- to 45-percent reduction be made to PBF catches to benefit rebuilding of the stock, provided that these reductions are implemented over the entire range of the stock; and

• U.S. commercial catches cannot exceed 600 mt in 2015 and 2016 combined; and the total commercial catches by all IATTC Members cannot exceed 6,600 mt in 2015 and 2016 combined in the EPO.

Comment 10: There is potential for high grading PBF (releasing or discarding smaller fish so that larger fish may be retained within the bag limit); unquantified catch and release mortality could negatively impact the stock.

Response: While the potential for high grading exists based on the reduced bag and the desire for anglers to retain larger fish, the impact of PBF mortalities due to catch and release is expected to be minimal on a stock-wide basis. As stated above, the U.S. recreational catch of PBF in the EPO (i.e., predominantly by California-based recreational vessels) from 2004 to 2013 has comprised 0.4 percent to 24 percent of the total EPO fishery and 0.1 percent to 4.7 percent of the stock-wide fishery. Limited monitoring of discards in the PBF sport fishery, including the level of catch and release events, will take place in 2015. If it is determined that the mortalities associated with high grading and or discards are impacting the PBF stock recovery and rebuilding schedule, NMFS and the Pacific Council could develop additional management measures, as part of the biennial management measure cycle under the HMS FMP.

Comment 11: Release all spawning size female PBF and retain only male PBF greater than 15 pounds.

Response: This management approach, also known as a slot limit, has proven effective in several federally managed fisheries, but the sex of PBF, like all other tuna species, cannot be identified by visual characteristics. Therefore, a slot limit is impractical for this fishery. In addition, the majority of PBF captured in the EPO sport fishery are juvenile, pre-spawning fish.

Comment 12: Commercial fishing for PBF should be prohibited shoreward of 60 miles to create an exclusion zone that would help to recover the stock and provide more opportunities for sport fishermen to offset the reduced bag limit.

Response: Restrictions on commercial fisheries are beyond the scope of this rulemaking. Both the U.S. commercial and recreational sectors are contributing to rebuilding of the PBF stock. The U.S. commercial harvest of PBF is limited to 600 mt for 2015 and 2016, combined, with the caveat that harvest cannot exceed 425 mt in any single year (i.e., via a separate rulemaking based on IATTC Resolution C-14-06). Additionally, if the U.S. commercial harvest in 2015 exceeds 300 mt, the harvest for 2016 will be limited to 200 mt. These commercial catch restrictions comport with the recommendation by IATTC scientific staff to reduce the catch of PBF by 20- to 45-percent. The implementation of an additional conservation measure (i.e., requiring the U.S. commercial fleet to fish seaward of 60 miles off the U.S. West Coast) would place an additional economic burden beyond what is required to rebuild the PBF stock. An additional area closure would unduly penalize U.S. commercial fishing interests and jeopardize the economic viability of this seasonal fishery.

Comment 13: The effective date for the regulations should be tied to the Mexican government reopening the PBF sport fishery in their waters in 2015.

Response: When a stock has been declared overfished or overfishing is occurring, as is the case with PBF, MSA Section 304(i) requires that the NMFS take action to address the relative impact of U.S. fishing on the stock. That requirement is not contingent on the actions of a foreign government, such as the prohibition on sport harvest of PBF within Mexico's EEZ, therefore NMFS is not tying the effective date of this final rule to the Mexican government's reopening the PBF sport fishery.

Comment 14: The at-sea fillet requirements for tunas should be contingent on PBF being present in U.S. waters.

Response: There would need to be a notification methodology designed and put in place that would accurately identify when PBF have moved into U.S. waters to make the at-sea fillet requirements contingent on the presence/absence of PBF in U.S. waters. A reliable and valid methodology is not currently in place, therefore NMFS is not making at-sea filleting requirements contingent on the presence of PBF in U.S. waters.

The Administrator, West Coast Region, NMFS, determined that the regulatory amendment under the HMS FMP is necessary for the conservation and management of the PBF fishery, and that it is consistent with the MSA and other applicable laws.

There is good cause, under 5 U.S.C. 553(d)(3) to waive the requirement for a 30-day delay in effectiveness, and to implement this rule 7 days after the date of filing with the Office of the Federal Register. NMFS is waiving the 30-day delay in effectiveness because PBF have appeared in California waters earlier than anticipated. The vast majority of U.S. recreational angling trips for PBF are from 1 to 3 days in duration. Seven days would provide enough advanced notice for recreational vessel operators and anglers to be notified of the new regulations if they are out at sea when the rule publishes. At present, there is extensive media coverage of the presence of PBF in U.S. west coast waters, which suggests that fishing effort targeting PBF will remain a focal point for anglers and could potentially intensify if favorable oceanic conditions result in additional PBF entering local waters. If this rule is delayed to allow for a 30-day delay in effectiveness, the level of harvest permitted under current regulations (10 fish per day with a daily possession limit of 30 fish per day) could compromise efforts to rebuild the PBF stock, conform with State of California regulations, and uphold the U.S. obligations to reduce catch agreed to under IATTC Resolution C-14-06.

There has been considerable and extensive public outreach and education relating to the impending imposition of reduced daily bag and possession limits for PBF that will mitigate the impacts of a shortened delay in effectiveness of this rule. As stated earlier, this rulemaking is based on a recommendation by the Council, which came after several public scoping meetings and extensive opportunities for public input and comment. The State of California and NMFS has kept the regulated public informed with frequent announcements on this action (e.g., California Department of Fish and Wildlife's Marine Management Newsletter and NOAA Fisheries West Coast Recreational Fisheries email listserve, Let's Talk Hookup radio show, San Diego Union Tribune daily newspaper, Western Outdoor News weekly newsletter coverage, and Sportsfishing Association of California (SAC) updates). There is a small fleet of larger U.S. CPFVs that fish longer range trips (3 to18 days) into Mexico's waters from home ports in San Diego. These vessels have constant radio and/or satellite communications contact with their home offices and/or personnel from SAC. When the final rule files with the Office of the Federal Register, notice will be provided to home offices and to SAC to relay to these vessels and their broader membership. Furthermore, since June of 2014, the government of Mexico has prohibited U.S. vessels from catching and landing PBF in their waters. Until that prohibition is lifted there will be no U.S. vessels fishing for PBF in Mexico's waters.

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

There are no new collection-of-information requirements associated with this action that are subject to the PRA. Existing collection-of-information requirements associated with the HMS FMP have been approved by the Office of Management and Budget (OMB) under Control Number 0648-0204. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB control number.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. One comment was received regarding this certification questioning the “not likely to adversely impact” determination contained in the Regulatory Flexibility Act (RFA) economic analysis presented for this action. The final rule implements a reduction in recreational bag and possession limits for PBF, and filleting requirements for harvested tuna. These restrictions directly affect only individual recreational anglers. Recreational anglers may not legally sell their catch, and thus are not considered to be a business. Because recreational anglers are not considered to be a small business entity under the RFA, the economic effects of this final rule to anglers are outside the scope of the RFA. Although the CPFV sector of the sport fishery is likely to experience indirect economic impacts due to the imposition of reduced daily bag and possession limits, an RFA analysis of those impacts was not included since CPFV operators are not subject to direct impacts of this final rule, other than to a limited extent if they personally participate in the recreational fishing activity. Indirect impacts on small business entities, such as a potential decline in demand for CPFV trips, are not considered under the scope of RFA analysis. As a result, a regulatory flexibility analysis was not required and none was prepared.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows: