Federal Register Vol. 80, No.153,

I. Background

In Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 12 4 Stat. 1376, 1841-49 (2010), Congress amended the Exchange Act to add Section 21F, 15 U.S.C. 78u-6(h)(1), entitled “Securities Whistleblower Incentives and Protection.” Section 21F established a series of new incentives and protections for individuals to report possible violations of the federal securities laws. Generally speaking, these incentives and protections take three forms—monetary awards for providing information, heightened confidentiality assurances, and enhanced employment retaliation protections.

In May 2011, the Commission issued legislative rules (“whistleblower rules”) after notice-and-comment rulemaking to implement the provisions of Section 21F. The Commission is now issuing this interpretive rule to clarify the meaning and application of certain of those rules. As explained below, an individual may qualify as a whistleblower for purposes of Section 21F's employment retaliation protections irrespective of whether he or she has adhered to the reporting procedures specified in Rule 21F-9(a). Rule 21F-2(b)(1) alone governs the procedures that an individual must follow to qualify as a whistleblower eligible for Section 21F's employment retaliation protections.

When we promulgated our legislative rules to implement the whistleblower program, we recognized that Section 21F is ambiguous on the issue of the scope of the employment retaliation protections afforded thereunder. On the one hand, Section 21F(h)(1)(A) includes a broad catchall provision that prohibits an employer from, among other things, retaliating against a whistleblower for “making disclosures that are required or protected under” the Sarbanes-Oxley Act of 2002, the Exchange Act, 18 U.S.C. 1513(e), “and any other law, rule, or regulation subject to the jurisdiction of the Commission.” 1 As the Commission explained in the adopting release that accompanied the whistleblower rules, the reporting covered by this provision includes “report[s] to persons or governmental authorities other than the Commission.” 2 But on the other hand, the employment retaliation protections afforded to whistleblowers under Section 21F could be read as limited to only those individuals who provide the Commission with information; this is because under Section 21F(a)(6) the “term `whistleblower' means any individual who provides . . . information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.” (Emphasis added).

To resolve this ambiguity, the Commission in Rule 21F-2 promulgated two separate definitions of “whistleblower.” These two definitions apply in different circumstances and each involves its own specified reporting procedures that must be satisfied in order for an individual to qualify under the particular definition. The first definition, which is set forth in Rule 21F-2(a), mirrors the statutory definition of whistleblower. It provides in pertinent part that an individual is “a whistleblower if, alone or jointly with others, [the individual] provide[s] the Commission with information pursuant to the procedures set forth in [Rule] 21F-9(a).” This definition of whistleblower applies only to the award and confidentiality provisions of Section 21F.

The second whistleblower definition, which is set forth in Rule 21F-2(b)(1), provides in pertinent part that, “[f]or purposes of the anti-retaliation protections afforded by Section 21F(h)(1) of the Exchange Act . . . , [an individual is] a whistleblower if . . . [the individual] provide[d] that information in a manner described in Section 21F(h)(1)(A) of the Exchange Act[.]” Rule 21F-2(b)(1)(ii). This definition—unlike the whistleblower definition in Rule 21F-2(a) that applies to the award and confidentiality provisions—does not require reporting in accordance with Rule 21F-9(a)'s procedures.

We also adopted Rule 21F-9(a) to specify the reporting procedures that must be followed by an individual who seeks to qualify as a whistleblower under Rule 21F-2(a) and thus to be eligible for an award and the heightened confidentiality protections. Rule 21F-9(a) provides in pertinent part that, “[t]o be considered a whistleblower under Section 21F . . . , [an individual] must submit [his or her] information . . . by either of these methods: (1) Online, through the Commission's Web site . . . ; or (2) By mailing or faxing a Form TCR . . . to the SEC Office of the Whistleblower . . . .”

Since our adoption of the whistleblower rules, we have consistently understood Rule 21F-9(a) as a procedural rule that applies only to help determine an individual's status as a whistleblower for purposes of Section 21F's award and confidentiality provisions.3 Similarly, it has been our consistent view that Rule 21F-2(b)(1) alone controls the reporting methods that will qualify an individual as a whistleblower for the retaliation protections.

Notwithstanding our view that Rule 21F-2(b)(1) alone controls in the context of determining the relevant reporting procedures for an individual to qualify as a whistleblower eligible for Section 21F's employment retaliation protections, the Court of Appeals for the Fifth Circuit expressed some uncertainty about this reading in a recent decision.4 Although we appreciate that if read in isolation Rule 21F-9(a) could be construed to require that an individual must report to the Commission before he or she will qualify as a whistleblower eligible for the employment retaliation protections provided by Section 21F, that construction is not consistent with Rule 21F-2 and would undermine our overall goals in implementing the whistleblower program. We reach this conclusion for several reasons.

First, as the text of Rule 21F-2(b)(1) states, “for purposes of Section 21F's employment retaliation protections,” an individual qualifies as a whistleblower entitled to the employment retaliation protection whenever he or she makes any of the broader array of disclosures specified in Section 21F(h)(1)(A).5 The fact that Rule 21F-2(b)(1) expressly and specifically applies in the employment retaliation context demonstrates that it should control over Rule 21F-9(a).6

Second, Rule 21F-2(b)(1)(iii) expressly provides that “[t]he anti-retaliation protections apply whether or not [an individual] satisf[ies] the requirements, procedures and conditions to qualify for an award.” As Rule 21F-2(a)(2) makes plain, the reporting procedures specified in Rule 21F-9(a) are among the procedures that an individual must follow to recover an award. The contrast between these provisions further supports our interpretation that the availability of employment retaliation protection is not conditioned on an individual's adherence to the Rule 21F-9(a) procedures.7

Finally, our interpretation best comports with our overall goals in implementing the whistleblower program. Specifically, by providing employment retaliation protections for individuals who report internally first to a supervisor, compliance official, or other person working for the company that has authority to investigate, discover, or terminate misconduct, our interpretive rule avoids a two-tiered structure of employment retaliation protection that might discourage some individuals from first reporting internally in appropriate circumstances and, thus, jeopardize the investor-protection and law-enforcement benefits that can result from internal reporting.8 Under our interpretation, an individual who reports internally and suffers employment retaliation will be no less protected than an individual who comes immediately to the Commission. Providing equivalent employment retaliation protection for both situations removes a potentially serious disincentive to internal reporting by employees in appropriate circumstances. A contrary interpretation would undermine the other incentives that were put in place through the Commission's whistleblower rules in order to encourage internal reporting.9

For the foregoing reasons, we are issuing this interpretation to clarify that, for purposes of Section 21F's employment retaliation protections, an individual's status as a whistleblower does not depend on adherence to the reporting procedures specified in Rule 21F-9(a).

For the reasons set out above, the Commission is amending title 17, chapter II of the Code of Federal Regulations as set forth below:

The use of the SSN is widespread in today's society. It is necessary for employment, to record properly a person's wages and the taxes paid on those wages, to collect Social Security benefits, and to receive many other government services. Commercial organizations, such as banks and credit companies, also ask individuals for their SSNs for many business transactions. Because of this widespread use, the issuance of original and replacement SSN cards is one of our most requested services.

Currently, a person can apply for an SSN by completing Form SS-5 and submitting it, in person or via mail, to his or her local field office (FO) or a Social Security Card Center, or by having one of our representatives file an application electronically through the Social Security Number Application Process during an in-office interview. The applicant must also present, or mail in, supporting documentary evidence.

To ensure that our regulations support the development of convenient and efficient electronic service delivery options, we are updating 20 CFR 422.103 and 422.110 to remove the requirement that an individual who seeks a replacement SSN card must file an application at any Social Security office. We are also removing references to Form SS-5 and replacing it with the term “prescribed application.” A prescribed application would simply be the application form—whether a paper form, an online application, or some other method—that we determine to be most efficient and user-friendly at any given time. Information about application procedures is easily available to applicants on our Internet site and at our offices nationwide.

We are also revising 20 CFR 422.107 to remove the word “documentary” from our description of evidence required to obtain an original or replacement SSN card. In order to obtain a new or replacement card, applicants may provide or we may obtain evidence to establish eligibility and identity through data matches or other agreements with government agencies or other entities that we determine can provide us with appropriate and secure verification of the applicant's true identity and other eligibility factors. These changes will provide us the flexibility to adapt our SSN application process as necessity and technology allow.

We are developing and will release—via a gradual, state-by-state rollout—a new online application that will allow adult U.S. citizens who are not reporting any changes to their record (for example, name or date of birth) to apply for replacement SSN cards electronically online after registering through the my Social Security portal. Eligible individuals would also be required to have a U.S. mailing address, (including Air/Army Post Office and Fleet Post Office) and a valid U.S. state-issued driver's license or U.S. state-issued identity card.

Our new electronic SSN replacement card application will expand our service options to meet the varied needs of the public in a cost-efficient and environmentally responsible way, while maintaining the security and integrity of the SSN replacement card issuance process. The application will allow customers to complete a request for a replacement SSN card at any time, without the need to travel, sometimes long distances, to apply in person. We also anticipate that this initiative will contribute to shorter wait times for individuals who choose to visit an FO for service.

We are also making a technical change to § 422.107(e)(1) to replace references to the “Immigration and Naturalization Service” with “Department of Homeland Security” to reflect that agency's restructuring in 2003. This is not a substantive change, but merely makes our rules consistent with the current organizational structure of the government.

On February 26, 2015, we published an NPRM in the Federal Register at 80 FR 10432 and provided a 60-day comment period. We received 17 comments on the proposed rule.1 We present all of the views received and address all of the relevant and significant issues raised by the commenters. We carefully considered the concerns expressed in these comments. We have made no changes to the proposed regulatory language based on the comments we received.

Commenters overwhelmingly supported our initiative to allow for electronic applications for replacement SSN cards. Many discussed how the initiative would provide greater access to those who need to travel long distances to reach their local FOs. Most also wrote about how the initiative would simplify and speed up the process of applying for replacement SSN cards and would reduce processing time and repeated trips to FOs due to inadvertent mistakes, such as missing or incorrect identification.

At the same time, most commenters emphasized the need to ensure the security of data during the SSN replacement card online application process. Specifically, commenters expressed concerns regarding hacking, identity theft, and fraud prevention.

Response: We understand the extraordinary breadth and sensitivity of the personally identifiable information we possess in our systems and we have always taken our responsibility for protecting that information very seriously. Over the past several years, we have developed a number of online applications that allow members of the public to apply for benefits or conduct other business with us through Internet-based applications. When we design these Internet-based applications, we take a number of steps to ensure that the data provided to us is secure. Since May 2012, we have allowed the electronic exchange with individuals of their own personal information for their own exclusive use through our my Social Security portal without any breach to our data. We use a multi-layered security framework, redundant processes, and specialized technologies to ensure the security of the data we receive. In addition, we constantly monitor all online activity to ensure proper use of agency Web sites, portals, and applications. In the event we identify any suspicious activity, we take prompt and aggressive steps to quarantine the activity and mitigate any risks to our systems or personal records.

We also take our fraud prevention responsibility very seriously. We verify customer identity using information available via a variety of data sources to ensure that all online communication is with the proper individual. We are fully compliant with the Office of Management and Budget's (OMB) e-authentication guidance for Federal agencies and the National Institute of Standards and Technology's (NIST) electronic authentication guidelines.2 In addition to our adherence to the OMB and NIST controls, we operate under a multi-layered security approach that provides due diligence for the users of my Social Security. Included in our approach is an authentication risk assessment process established by OMB's guidance, that determines the appropriate level of assurance for all of our electronic transactions. Once we determine the appropriate level of assurance needed for each transaction, we determine the technology and authentication strategy. This strategy may include sending a written notification to the verified address for everyone who creates a my Social Security account.

We employ a dynamic enterprise-wide cyber security program and leverage a defense-in-depth strategy. We work diligently to detect attacks, identify suspicious activities, and systematically respond to software and hardware vulnerabilities as they are identified. We collaborate with White House national security staff, the Federal Chief Information Officer, the Department of Homeland Security's United States Computer Emergency Readiness Team, and various law enforcement agencies to address cyber threats.

In the event that we detect suspicious activity, we will refer the customer to the local Social Security office for in-person assistance.

Comment: Four individuals specifically stated their support for the removal of the word “documentary” from 20 CFR 422.107 and the flexibility it would provide us for appropriately and securely verifying applicants' true identity and other eligibility factors. Other commenters expressed unease about the possibility of fraud resulting from the removal of the word “documentary.” Of those who expressed unease, some of the commenters were concerned about how the public would “interpret” removing the word “documentary” and what it “impli[es]” about the evidence we require in order to obtain an original or replacement card. Other commenters were concerned that illegal immigrants would be able to obtain SSNs by providing false information, were unsatisfied with the evidence of identity required under § 422.107(c), or suggested that no child should get a card without appearing in person.

Response: Our proposed rule did not change the evidentiary requirements needed to obtain an original or replacement SSN card but simply provided us and the public with different options for verifying an applicant's true identity and other eligibility factors, as appropriate. We will continue to require the same evidence to establish citizenship, age, and identity in order to obtain a new or replacement SSN card. Under our new rules, applicants may provide, or we may obtain, this evidence through data matches or other agreements with government agencies or other entities that we determine can provide us with appropriate and secure verification of the applicant's true identity and other eligibility factors. Removal of the word “documentary” does not imply any modification to the evidentiary requirements established in § 422.107, nor should it result in any interpretation other than the plain language in that section.

We process the vast majority of original SSN applications for children as part of the official birth registration process described in § 422.103(a)(2) that generally takes place at a U.S. hospital shortly after a child's birth. While we may not require a child to visit a Social Security office in the few instances when we do not assign an SSN through the birth registration process, we follow robust evidence review and verification policies in our SSN issuance process for children. When we do not assign SSNs for children as part of the official birth registration process, the parent or proper applicant must submit evidence about the child to satisfy the same requirements as adults. In addition, the proper applicant must establish relationship to and custody or responsibility for the child, and must submit evidence of his or her own identity. We visually inspect all evidence for authenticity. In addition, under the Intelligence Reform Terrorism and Prevention Act of 2014 we must verify U.S. birth records with the custodian of the record before we process the SSN application.3 We verify immigration documents directly with the Department of Homeland Security if the child is a non-citizen.

Comment: One commenter stated a concern with our updating 20 CFR 422.107(e)(1) to replace references to Immigration and Naturalization Service (INS) with Department of Homeland Security (DHS) and requested a greater explanation as to why there is a need to do so.

Response: We have not made any changes to the proposed rule in response to this comment. Section 422.107(e)(1) of our current regulations discusses what evidence we will accept to verify alien status, specifically evidence issued by the Immigration and Naturalization Service in accordance with that agency's regulations. On March 1, 2003, pursuant to the Homeland Security Act of 2002, the pertinent functions of the former INS were transferred to the newly formed DHS. We are not changing the evidence we require, but are simply updating the name of the agency responsible for issuing the evidence to applicants.

We consulted with the Office of Management and Budget (OMB) and determined that this final rule meets the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563, and was reviewed by OMB.

We certify that this final rule would not have a significant economic impact on a substantial number of small entities because it would affect individuals only. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.

Although the regulatory changes described below are not subject to OMB clearance under the Paperwork Reduction Act (PRA), the new electronic SSN replacement card application will require OMB PRA approval. We sought public comment in two separate PRA Federal Register Notices (FRN) for the new electronic process under OMB No. 0960-0066 (the first Notice published on 04/30/15 at 80 FR 24307, and the second Notice published on 06/29/15 at 80 FR 37033). We completed the PRA OMB clearance process by submitting the documentation to OMB on 06/29/15, and we will wait for OMB's approval before we implement the electronic SSN replacement card application. The public had an opportunity to review and comment on the electronic SSN replacement card application through those FRNs.

For the reasons set out in the preamble, we amend 20 CFR chapter III, part 422, subpart B as set forth below:

The New Jersey Department of Transportation, who owns and operates the Route 30 (Absecon Boulevard) Bridge and US40-322 (North Albany Avenue) Bridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.733(e) and (f), respectively, to facilitate the 2015 Atlantic City Beach Concerts.

Under the normal operating schedule for the Route 30 (Absecon Boulevard) Bridge across the Beach Thorofare, Atlantic Intracoastal Waterway, mile 67.2, at Atlantic City, NJ in 33 CFR 117.733(e); the bridge need only open on the hour from 7 a.m. to 11 p.m., from April 1 through October 31. Under the normal operating schedule for the US40-322 (North Albany Avenue) Bridge across the Inside Thorofare, Atlantic Intracoastal Waterway, mile 70.0, at Atlantic City, NJ in 33 CFR 117.733(f); the draw shall open on signal; except that, from June 1 through September 30 from 9 a.m. to 4 p.m. and from 6 p.m. to 9 p.m., the draw need only open on the hour and half hour, and from 4 p.m. to 6 p.m., the draw need not open. The vertical clearances in the closed-to-navigation position of the Route 30 (Absecon Boulevard) Bridge and US40-322 (North Albany Avenue) Bridge are 20 feet and 10 feet, respectively, above mean high water.

Under this temporary deviation, the bridges will be closed to navigation from 8:45 p.m. to 10:45 p.m. on August 16 and August 20, 2015. The Atlantic Intracoastal Waterway is used by a variety of vessels including small commercial fishing vessels, recreational vessels and tug and barge traffic. The Coast Guard has carefully coordinated the restrictions with commercial and recreational waterway users.

Vessels able to pass through the bridges in the closed position may do so at anytime. The bridges will be able to open for emergencies and there is no alternate route for vessels unable to pass through the bridges in the closed position. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notice to Mariners of the change in operating schedules for these bridges so that vessels can arrange their transits to minimize any impacts caused by this temporary deviation.

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

The New Jersey Department of Transportation, who owns and operates the Route 30 (Absecon Boulevard) Bridge and US40-322 (North Albany Avenue) Bridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.733(e) and (f), respectively, to facilitate the 2015 Atlantic City Air Show.

Under the normal operating schedule for the Route 30 (Absecon Boulevard) Bridge across the Beach Thorofare, Atlantic Intracoastal Waterway, mile 67.2, at Atlantic City, NJ in 33 CFR 117.733(e); the bridge need only open on the hour from 7 a.m. to 11 p.m., from April 1 through October 31. Under the normal operating schedule for the US40-322 (North Albany Avenue) Bridge across the Inside Thorofare, Atlantic Intracoastal Waterway, mile 70.0, at Atlantic City, NJ in 33 CFR 117.733(f); the draw shall open on signal; except that, from June 1 through September 30 from 9 a.m. to 4 p.m. and from 6 p.m. to 9 p.m., the draw need only open on the hour and half hour, and from 4 p.m. to 6 p.m., the draw need not open. The vertical clearances in the closed-to-navigation position of the Route 30 (Absecon Boulevard) Bridge and US40-322 (North Albany Avenue) Bridge are 20 feet and 10 feet, respectively, above mean high water.

Under this temporary deviation, the bridges will be closed to navigation from 7:30 a.m. to 10:30 a.m. and 4 p.m. to 8 p.m. on September 2, 2015. The Atlantic Intracoastal Waterway is used by a variety of vessels including small commercial fishing vessels, recreational vessels and tug and barge traffic. The Coast Guard has carefully coordinated the restrictions with commercial and recreational waterway users.

Vessels able to pass through the bridges in the closed position may do so at anytime. The bridges will be able to open for emergencies and there is no alternate route for vessels unable to pass through the bridges in the closed position. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notice to Mariners of the change in operating schedules for these bridges so that vessels can arrange their transits to minimize any impacts caused by this temporary deviation.

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

The Coast Guard published an NPRM for this safety zone on May 4, 2015 (80 FR 25256). Two comments from the public were received during the 30 day comment period. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Due to ongoing drilling operations, delaying the implementation of this safety zone is impracticable and would increase the possibility of an allision in the Chukchi Sea.

The Coast Guard is establishing a temporary safety zone around the DRILLSHIP NOBLE DISCOVERER while anchored or deploying and recovering moorings on location in order to drill exploratory wells in several prospects located in the Chukchi Sea during the 2015 drilling season.

The request for the temporary safety zone was made by Shell Exploration & Production Company due to safety concerns for both the personnel aboard the DRILLSHIP NOBLE DISCOVERER and the environment. Shell Exploration & Production Company indicated that it is highly likely that any allision or inability to identify, monitor or mitigate any risks or threats, including ice-related hazards that might be encountered, may result in a catastrophic event. Incursions into the safety zone by unapproved vessels could degrade the ability to monitor and mitigate such risks. In evaluating this request, the Coast Guard explored relevant safety factors and considered several criteria, including but not limited to: (1) The level of shipping activity around the operation; (2) safety concerns for personnel aboard the vessel; (3) concerns for the environment given the sensitivity of the environmental and the importance of fishing and hunting to the indigenous population; (4) the lack of any established shipping fairways, and fueling and supply storage/operations which increase the likelihood that an allision would result in a catastrophic event; (5) the recent and potential future maritime traffic in the vicinity of the proposed areas; (6) the types of vessels navigating in the vicinity of the proposed area; (7) the structural configuration of the vessel, and (8) the need to allow for lawful demonstrations without endangering the safe operation of the vessel. For any group intending to conduct lawful demonstrations in the vicinity of the rig, these demonstrations must be conducted outside the safety zone.

Results from a thorough and comprehensive examination of the criteria, IMO guidelines, and existing regulations warrant the establishment of the temporary safety zone. The regulation significantly reduces the threat of allisions that could result in oil spills, and other releases. Furthermore, the regulation increases the safety of life, property, and the environment in the Chukchi Sea by prohibiting entry into the zone unless specifically authorized by the Commander, Seventeenth Coast Guard District, or a designated representative. Due to the remote location and the need to protect the environment, the Coast Guard may use criminal sanctions to enforce the safety zone as appropriate.

The temporary safety zone will be around the DRILLSHIP NOBLE DISCOVERER while anchored or deploying and recovering moorings on location in order to drill exploratory wells in various locations in the Chukchi Sea Outer Continental Shelf, Alaska during the 2015 timeframe.

Shell Exploration & Production Company has proposed and received permits for drill sites within the Burger prospects, Chukchi Sea, Alaska.

During the 2015 timeframe, Shell Exploration & Production Company has proposed drilling exploration wells at various Chukchi Sea prospects depending on favorable ice conditions, weather, sea state, and any other pertinent factors. Each of these drill sites will be permitted for drilling in 2015 to allow for operational flexibility in the event sea ice conditions prevent access to one of the locations. The number of actual wells that will be drilled will depend on ice conditions and the length of time available for the 2015 drilling season. The predicted “average” drilling season, constrained by prevailing ice conditions and regulatory restrictions, is long enough for two to three typical exploration wells to be drilled.

The actual order of drilling activities will be controlled by an interplay between actual ice conditions immediately prior to a rig move, ice forecasts, any regulatory restrictions with respect to the dates of allowed operating windows, whether the planned drilling activity involves only drilling the shallow non-objective section or penetrating potential hydrocarbon zones, the availability of permitted sites having approved shallow hazards clearance, the anticipated duration of each contemplated drilling activity, the results of preceding wells and Marine Mammal Monitoring and Mitigation plan requirements.

All planned exploration drilling in the identified lease will be conducted with the DRILLSHIP NOBLE DISCOVERER.

The DRILLSHIP NOBLE DISCOVERER has a “persons on board” capacity of 124, and it is expected to be at capacity for most of its operating period. The DRILLSHIP NOBLE DISCOVERER's personnel will include its crew, as well as Shell employees, third party contractors, Alaska Native Marine Mammal Observers and possibly Bureau of Safety and Environmental Enforcement (BSEE) personnel.

While conducting exploration drilling operations, the DRILLSHIP NOBLE DISCOVERER will be anchored using an anchoring system consisting of an 8-point anchored mooring spread attached to the onboard turret and could have a maximum anchor radius of 3,600 ft (1,100 m). The center point of the DRILLSHIP NOBLE DISCOVERER will be positioned within the prospect location in the Chukchi Sea.

The DRILLSHIP NOBLE DISCOVERER will move into the Chukchi Sea on or about July 1, 2015 and onto a prospect location when ice allows. Drilling will conclude on or before October 31, 2015. The drillship and support vessels will depart the Chukchi Sea at the conclusion of the 2015 drilling season.

One comment from the public was received during the 30 day comment period expressing concern that the safety zone was larger than necessary and that it could unnecessary impede vessel movement. The comment proposed a smaller safety zone of 50 meters with a “no wake” restriction extending 250 meters. The Coast Guard considered this comment, but has decided not to adopt the commenter's suggestion. Considering the size of the ocean, we do not believe a 500-meter safety zone presents an unreasonable restriction of movement. Furthermore, considering the size and speed of the drillship and associated drilling operations, we believe that a 50-meter zone would not ensure the safety of boaters in the area. Finally, we note that a “no-wake zone” would not have any effect in protecting boaters from the dangerous conditions caused by drilling operations.

Additionally, one commenter questioned whether the safety zone applied when the vessel is moving. It would apply during that time, for the safety of other vessels. The commenter also suggested that the safety zone should not extend 500 meters past the mooring. For reasons described below, we agree with the commenter's suggestion in this regard.

The Coast Guard made one change to the proposed rule. The original proposed rule had called for safety zones at every point where the vessel's mooring spread intersected with the ocean's surface. After consideration of the comments and additional clarification from Shell Exploration & Production Company, the Coast Guard determined that the mooring system utilized on this vessel is configured such that its lines will not break the ocean's surface beyond the vessel's outer edge. Therefore, the Coast Guard deleted reference to such additional safety zones and corresponding marking buoys from the final rule.

The temporary safety zone will encompass the area that extends 500 meters from the outer edge of the DRILLSHIP NOBLE DISCOVERER. This safety zone will be in effect both when the DRILLSHIP NOBLE DISCOVERER is anchored and when deploying and recovering moorings. No vessel would be allowed to enter or remain in this proposed safety zone except the following: An attending vessel or a vessel authorized by the Commander, Seventeenth Coast Guard District or a designated representative. They may be contacted on VHF-FM Channel 13 or 16 or by telephone at 907-463-2000.

The Coast Guard developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or Section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order.

This rule is not a significant regulatory action due to the location of the DRILLSHIP NOBLE DISCOVERER on the Outer Continental Shelf and its distance from both land and safety fairways. Vessels traversing waters near the proposed safety zone will be able to safely travel around the zone without incurring additional costs.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612), the Coast Guard has considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the Burger Prospects of the Chukchi Sea.

This safety zone will not have a significant economic impact or a substantial number of small entities for the following reasons: This rule will enforce a safety zone around a drilling unit facility that is in areas of the Chukchi Sea not frequented by vessel traffic and is not in close proximity to a safety fairway. Further, vessel traffic can pass safely around the safety zone without incurring additional costs.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule affects your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LCDR Jason Boyle, Coast Guard Seventeenth District, Office of Prevention; telephone 907-463-2821, [email protected]. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000.00 (adjusted for inflation) or more in any one year. Though this rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

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

The Coast Guard has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Coast Guard analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant's Instruction.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 147 as follows:

Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking TFR Temporary Final Rule A. Regulatory History and Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with a maritime fireworks display. Therefore, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register. For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable.

The legal basis and authorities for this rule are found in 33 U.S.C. 1231; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish and define regulatory safety zones.

Between 8:45 p.m. and 10:15 p.m. on August 8, 2015, a fireworks display will be held on the shoreline of the St. Lawrence River on Ogden Island, NY. It is anticipated that numerous vessels will be in the immediate vicinity of the launch point. The Captain of the Port Buffalo has determined that such a launch proximate to a gathering of watercraft pose a significant risk to public safety and property. Such hazards include premature and accidental detonations, dangerous projectiles, and falling or burning debris.

With the aforementioned hazards in mind, the Captain of the Port Buffalo has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the Waddington Homecoming fireworks display. This zone will be enforced from 8:45 p.m. until 10:15 p.m. on August 8, 2015. This zone will encompass all waters of the St. Lawrence River; Ogden Island, NY within a 700-foot radius of position 44°52′8.44″ N and 075°12′35.84″ W (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the St. Lawrence River on the evening of August 8, 2015.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone would be effective, and thus subject to enforcement, for only 90 minutes late in the day. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the enforcement of the zone, we would issue local Broadcast Notice to Mariners.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

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

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

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

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

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

I. Background A. 2006 PM2.5 NAAQS and Interstate Transport

On September 21, 2006, EPA promulgated a final rule revising the 1997 24-hour primary and secondary NAAQS for PM2.5 from 65 micrograms per cubic meter (µg/m3) to 35 µg/m3 (October 17, 2006, 71 FR 61144).

Section 110(a)(1) of the CAA requires each state to submit to EPA, within three years (or such shorter period as the Administrator may prescribe) after the promulgation of a primary or secondary NAAQS or any revision thereof, a SIP that provides for the “implementation, maintenance, and enforcement” of such NAAQS. EPA refers to these specific submittals as “infrastructure” SIPs because they are intended to address basic structural SIP requirements for new or revised NAAQS. For the 2006 24-hour PM2.5 NAAQS, these infrastructure SIPs were due on September 21, 2009. CAA section 110(a)(2) includes a list of specific elements that “[e]ach such plan submission” must meet.

The interstate transport provisions in CAA section 110(a)(2)(D)(i) (also called “good neighbor” provisions) require each state to submit a SIP that prohibits emissions that will have certain adverse air quality effects in other states. CAA section 110(a)(2)(D)(i) identifies four distinct elements related to the impacts of air pollutants transported across state lines. The two elements under 110(a)(2)(D)(i)(I) require SIPs to contain adequate provisions to prohibit any source or other type of emissions activity within the state from emitting air pollutants that will (element 1) contribute significantly to nonattainment in any other state with respect to any such national primary or secondary NAAQS, and (element 2) interfere with maintenance by any other state with respect to the same NAAQS. The two elements under 110(a)(2)(D)(i)(II) require SIPs to contain adequate provisions to prohibit emissions that will interfere with measures required to be included in the applicable implementation plan for any other state under part C (element 3) to prevent significant deterioration of air quality or (element 4) to protect visibility.

On August 19, 2011, the Wyoming Department of Environmental Quality (WDEQ) made a submission certifying that Wyoming's SIP is adequate to implement the 2006 24-hour PM2.5 NAAQS for all the “infrastructure” requirements of CAA section 110(a)(2).1 On April 23, 2015, WDEQ sent EPA a letter clarifying its August 19, 2011 submission with regard to elements 1-3 of CAA section 110(a)(2)(D)(i).2 EPA proposed approval of 110(a)(2)(D)(i) elements 1-3 of Wyoming's August 19, 2011 submission on May 18, 2015 (80 FR 28209).

EPA did not receive any comments on the May 18, 2015 proposal.

EPA is approving the 110(a)(2)(D)(i)(I) portion of Wyoming's August 19, 2011 submission. We are approving elements 1 and 2 of this portion of the submission based on EPA's supplemental evaluation of relevant technical information, which supports a finding that emissions from Wyoming do not significantly contribute to nonattainment or interfere with maintenance of the 2006 24-hour PM2.5 NAAQS in any other state and that the existing Wyoming SIP is, therefore, adequate to meet the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS.

EPA is also approving element 3 of 110(a)(2)(D)(i) from Wyoming's August 19, 2011 submission, based on a finding that the Wyoming SIP is adequate to meet the PSD requirement of CAA section 110(a)(2)(D)(i)(II).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements; this action 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 Order 12866 (58 FR 51735, October 4, 1993);

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the 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 October 9, 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 CAA section 307(b)(2).)

40 CFR part 52 is amended to read as follows:

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

CAA section 110(a)(1) requires each state to submit to EPA, within three years after the promulgation of a primary or secondary NAAQS or any revision thereof, an infrastructure SIP revision that provides for the implementation, maintenance, and enforcement of such NAAQS. Section 110(a)(2) sets the content requirements of such a plan, which generally relate to the information and authorities, compliance assurances, procedural requirements, and control measures that constitute the “infrastructure” of a state's air quality management program. These infrastructure SIP elements required by section 110(a)(2) are as follows:

• Section 110(a)(2)(A): Emission limits and other control measures.

• Section 110(a)(2)(B): Ambient air quality monitoring/data system.

• Section 110(a)(2)(C): Program for enforcement of control measures and regulation of new and modified stationary sources.

• Section 110(a)(2)(D)(i): Interstate pollution transport.

• Section 110(a)(2)(D)(ii): Interstate and international pollution abatement.

• Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local and regional government agencies.

• Section 110(a)(2)(F): Stationary source monitoring and reporting.

• Section 110(a)(2)(G): Emergency episodes.

• Section 110(a)(2)(H): SIP revisions.

• Section 110(a)(2)(J): Consultation with government officials, public notification, PSD, and visibility protection.

• Section 110(a)(2)(K): Air quality modeling and submittal of modeling data.

• Section 110(a)(2)(L): Permitting fees.

• Section 110(a)(2)(M): Consultation/participation by affected local entities.

Two elements identified in section 110(a)(2) are not governed by the three-year submittal deadline of section 110(a)(1) and are therefore not addressed in this action. These two elements are: (i) Section 110(a)(2)(C) to the extent it refers to permit programs required under part D (nonattainment NSR), and (ii) section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address infrastructure for the nonattainment NSR portion of section 110(a)(2)(C) or the whole of section 110(a)(2)(I).

On November 12, 2008, the U.S. Environmental Protection Agency (EPA) issued a revised NAAQS for Pb.1 That action triggered a requirement for states to submit an infrastructure SIP to address the applicable requirements of section 110(a)(2) within three years of issuance of the revised NAAQS. On October 14, 2011, EPA issued “Guidance on Section 110 Infrastructure SIPs for the 2008 Pb NAAQS”, referred to herein as EPA's 2011 Pb Guidance.2 Depending on the timing of a given submittal, some states relied on the earlier draft version of this guidance, referred to herein as EPA's 2011 Draft Pb Guidance.3 EPA issued additional guidance on infrastructure SIPs on September 13, 2013.4

On March 27, 2008, EPA issued a revised NAAQS for 8-hour Ozone.5 That action triggered a requirement for states to submit an infrastructure SIP to address the applicable requirements of section 110(a)(2) within three years of issuance of the revised NAAQS. EPA did not, however, prepare guidance at that time for states in submitting I-SIP revisions for the 2008 Ozone NAAQS.6 On September 13, 2013, EPA issued “Guidance of Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” which provides advice on the development of infrastructure SIPs for the 2008 ozone NAAQS (among other pollutants) as well as infrastructure SIPs for new or revised NAAQS promulgated in the future.7

The Arizona Department of Environmental Quality (ADEQ) has submitted several infrastructure SIP revisions pursuant to EPA's promulgation of the NAAQS addressed by this rule, including the following:

• October 14, 2011—“Arizona State Implementation Plan Revision under Clean Air Act Section 110(a)(1) and (2); 2008 Lead NAAQS,” to address all of the CAA section 110(a)(2) requirements, except for section 110(a)(2)(G),8 for the 2008 Pb NAAQS (2011 Pb I-SIP Submittal).

• December 27, 2012—“Arizona State Implementation Plan Revision under Clean Air Act Section 110(a)(1) and (2); 2008 8-hour Ozone NAAQS,” to address all of the CAA section 110(a)(2) requirements for the 2008 8-hour Ozone NAAQS (2012 Ozone I-SIP Submittal).

• December 6, 2013—“Submittal of Maricopa County Rule 100 revising the Maricopa County Portion of the Arizona State Implementation Plan for Section 110(a)(2) Infrastructure” from Eric Massey, Director of ADEQ (2013 Maricopa County Submittal). Maricopa County Rule 100 was submitted to address a deficiency in section 110(a)(2)(E)(ii) of the SIP for Maricopa County concerning conflict of interest requirements for hearing boards.

• December 19, 2013—“Submittal of Pima County Rules revising the Pima County Portion of the Arizona State Implementation Plan for Section 110(a)(2) Infrastructure” from Eric Massey, Director of ADEQ (2013 Pima County Submittal). This submittal included Pima County Rule 17.04.190 “Composition,” adopted September 28, 1993; Pima County Rule 17.12.040 “Reporting for Compliance Evaluations,” adopted September 28, 1993; and Pima County Rule 17.24.040 “Reporting Requirements,” adopted April 19, 2005 for inclusion into the Arizona SIP. These rules were submitted to address deficiencies in section 110(a)(2)(E)(ii) of the SIP concerning conflict of interest requirements for hearing boards and section 110(a)(2)(F) of the SIP concerning stationary source monitoring and reporting.

• September 4, 2014—“Submittal of Pinal County Rule 1-3-140 Revising the Pinal County Portion of the Arizona State Implementation Plan for Section 110(a)(2) Infrastructure” from Eric Massey, Director of ADEQ (2014 Pinal County Submittal). This submittal included Pinal County Rule 1-3-140 “Definitions,” adopted July 23, 2014 for inclusion into the Arizona SIP. Pinal County Rule 1-3-140 was submitted to address a deficiency in section 110(a)(2)(E)(ii) of the SIP for Pinal County concerning conflict of interest requirements for hearing boards.

The public comment period on EPA's proposed rule opened on November 24, 2014, the date of its publication in the Federal Register at 79 FR 69796, and closed on December 24, 2014. During that period, EPA did not receive any comments.

Under CAA section 110(k)(3) and based on the evaluation and rationale presented in the proposed rule, the technical support document and this final rule, EPA is approving the 2011 Pb I-SIP Submittal, the 2012 Ozone I-SIP Submittal, the 2013 Maricopa County Submittal, the 2013 Pima County Submittal and the 2014 Pinal County Submittal with respect to the following infrastructure SIP requirements:

• Section 110(a)(2)(A): Emission limits and other control measures.

• Section 110(a)(2)(B): Ambient air quality monitoring/data system.

• Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local and regional government agencies.

• Section 110(a)(2)(F): Stationary source monitoring and reporting.

• Section 110(a)(2)(G): Emergency episodes.

• Section 110(a)(2)(H): SIP revisions.

• Section 110(a)(2)(L): Permitting fees.

• Section 110(a)(2)(M): Consultation/participation by affected local entities.

In addition, we are approving into the SIP certain regulatory provisions included in the 2013 Pima County and Maricopa County Submittals, and in the 2014 Pinal County Submittal, as discussed in the TSD.9

We are not acting today on those elements of the infrastructure SIP that address the requirements of sections 110(a)(2)(C), (D), (J) and (K) of the Act. On October 29, 2012, ADEQ submitted “New Source Review State Implementation Plan Submission” and on July 2, 2014 submitted “Supplemental Information to 2012 New Source Review State Implementation Plan Submission”. These submissions address the permitting portions of I-SIP elements in sections 110(a)(2)(C), (D), (J) and (K) of the Act and will be addressed in a subsequent rulemaking.

Section 110(l) of the Act prohibits EPA from approving any SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP) or any other applicable requirement of the Act. All of the elements of the infrastructure SIP that we are approving, as explained in the TSD, improve the SIP by replacing obsolete statutes or regulations and by updating the state and local agencies' SIP implementation and enforcement authorities. We have determined that our approval of the elements discussed above complies with CAA section 110(l) because the SIP revision would not interfere with the on-going process for ensuring that requirements for RFP and attainment of the NAAQS are met, and the SIP revision clarifies and updates the SIP. Our TSD contains a more detailed discussion of our evaluation.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Arizona Regulations described in the amendments to 40 CFR part 52 set forth below. The 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 proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

• 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).

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

This emergency rule establishes a 1,600 Chinook salmon prohibited species catch (PSC) limit for the Non-Rockfish Program CV Sector that is immediately available for use by the sector in Western and Central GOA non-pollock trawl fisheries until the limit is reached or December 31, 2015, whichever occurs first. The following sections describe: (1) The non-pollock trawl fisheries and Amendment 97 to the FMP; (2) the estimation of Chinook salmon PSC in the Non-Rockfish Program CV Sector; (3) the implementation of Amendment 97 in 2015; and (4) the emergency rule and justification for emergency action.

Trawl groundfish fisheries that do not target pollock (i.e., non-pollock trawl fisheries) in the Western and Central GOA include fisheries for sablefish, several rockfish species, arrowtooth flounder, Pacific cod, shallow water flatfish, rex sole, flathead sole, deep-water flatfish, and other non-pollock groundfish. Many of the non-pollock trawl fisheries are multi-species fisheries, in that vessels catch and retain multiple groundfish species in a single fishing trip. Additional detail on the primary target groundfish species and catch amounts in the non-pollock trawl fisheries in the Western and Central GOA are provided in Section 1.5.1 of the RIR (see ADDRESSES), the Amendment 97 Analysis, and in the final 2015 and 2016 harvest specifications for the GOA groundfish fisheries (80 FR 10250, February 25, 2015).

The Council and NMFS have adopted various measures intended to control the catch of species taken incidentally in groundfish fisheries. Certain species are designated as “prohibited species” in the FMP because they are the target of other, fully utilized domestic fisheries. The prohibited species in the FMP are Pacific halibut, Pacific herring, Pacific salmon, steelhead trout, king crab, and Tanner crab. One of the prohibited species of greatest concern to the Council and NMFS is Chinook salmon. Chinook salmon is a prohibited species in the groundfish fisheries because it is a culturally and economically valuable species that is fully allocated and for which State of Alaska and Federal managers seek to conservatively manage harvests. The Council and NMFS have established a range of management measures to constrain the impact of GOA groundfish fisheries on Chinook salmon. A summary of these measures is provided in Section 1.5.2 of the RIR.

NMFS has implemented two specific programs to limit Chinook salmon bycatch in the GOA trawl fisheries. In 2012, NMFS implemented Amendment 93 to the FMP to establish separate Chinook salmon PSC limits for the directed pollock trawl fisheries in the Western and Central GOA (77 FR 42629, July 20, 2012). These limits require NMFS to close the directed pollock fishery in the Western or Central GOA if the applicable PSC limit is reached (see regulations at § 679.21(h)(6)). The annual Chinook salmon PSC limit for the directed pollock fishery in the Western GOA is 6,684 Chinook salmon, and the annual Chinook salmon PSC limit for the directed pollock fishery in the Central GOA is 18,316 Chinook salmon (see regulations at § 679.21(h)(2)(i) and (h)(2)(ii)). Collectively, the Chinook salmon PSC limit established for the pollock trawl fisheries in the Western and Central GOA is 25,000 Chinook salmon. Amendment 93 is described in more detail in the Amendment 93 Analysis, the final rule implementing Amendment 93 (77 FR 42629, July 20, 2012), and Section 1.5.3 of the RIR.

In 2013, the Council voted to adopt Amendment 97 to the FMP to establish separate Chinook salmon PSC limits for the directed non-pollock trawl fishery in the Western and Central GOA. NMFS approved Amendment 97 in 2014 (79 FR 71350, December 2, 2014), and it became effective on January 1, 2015. Amendment 97 is designed to meet three management goals. The first goal is to avoid exceeding the annual catch threshold of 40,000 Chinook salmon identified in the incidental take statement accompanying the November 30, 2000, biological opinion on the effects of the Alaska groundfish fisheries on salmon of the Pacific Northwest that are listed as threatened or endangered under the Endangered Species Act. The second goal is to minimize Chinook salmon bycatch to the extent practicable, consistent with the Magnuson-Stevens Act and National Standard 9. The third goal is to increase the amount of Chinook salmon stock of origin information available to NMFS and the Council. This third goal is not modified or otherwise affected by this emergency rule and is not addressed further. Amendment 97 is described in more detail in the Amendment 97 Analysis, the final rule implementing Amendment 97 (79 FR 71350, December 2, 2014), and Section 1.5.4 of the RIR.

For purposes of managing Chinook salmon bycatch in the Western and Central GOA non-pollock trawl fishery, Amendment 97 includes a long-term average annual Chinook salmon PSC limit of 7,500 Chinook salmon and implements this by establishing separate Chinook salmon PSC limits for three fishery sectors: (1) the Trawl Catcher/Processor (C/P) Sector; (2) the Rockfish Program Catcher Vessel (CV) Sector; and (3) the Non-Rockfish Program CV Sector. Each of these sectors is described in Section 1.5.1 of the RIR.

Amendment 97 establishes annual base Chinook salmon PSC limits of 3,600 Chinook salmon for the Trawl C/P Sector, 1,200 Chinook salmon for the Rockfish Program CV Sector, and 2,700 Chinook salmon for the Non-Rockfish Program CV Sector. Additionally, Amendment 97 includes authority for NMFS to reallocate Chinook salmon PSC from the Rockfish Program CV Sector to the Non-Rockfish Program CV Sector (see regulations at § 679.21(i)(4)). NMFS is authorized to reallocate all of the Rockfish Program CV Sector's unused Chinook salmon PSC limit in excess of 150 salmon to the Non-Rockfish Program CV Sector on October 1 of each year, and all remaining unused Chinook salmon PSC to the Non-Rockfish Program CV Sector on November 15 of each year. If a sector reaches or is projected to reach its Chinook salmon PSC limit, NMFS will close directed fishing for all non-pollock groundfish species by vessels in that sector for the remainder of the calendar year (see regulations at § 679.21(i)(7)). Each sector is subject to its own annual Chinook salmon PSC limit, and NMFS manages each sector separately. The rationale for the Chinook salmon PSC limits selected for each of the three sectors is described in detail in the proposed and final rules implementing Amendment 97 (respectively, 79 FR 35971, June 25, 2014; 79 FR 71350, December 2, 2014). Because the subject of this emergency rule is the Non-Rockfish Program CV Sector, the following paragraphs provide additional detail on the Non-Rockfish Program CV Sector and the Chinook salmon PSC limit selected for that sector.

The Non-Rockfish Program CV Sector is composed of non-pollock trawl CVs authorized to fish for groundfish in the GOA that are not fishing under the authority of a Rockfish Program Cooperative Quota Permit. This sector fishes primarily for Pacific cod in the Central and Western GOA, and arrowtooth flounder, flathead sole, rex sole, deepwater flatfish, and shallow-water flatfish in the Central GOA. For a more detailed description of the Non-Rockfish Program CV Sector, see Section 1.5.1 of the RIR.

In recommending and approving the 2,700 Chinook salmon PSC limit for the Non-Rockfish Program CV Sector, both the Council and NMFS determined that the limit would accommodate groundfish harvests in most years in this sector. The Council and NMFS selected the Chinook salmon PSC limit of 2,700 after considering the historic amount of Chinook salmon PSC used by the Non-Rockfish Program CV Sector based on available fishery observer data during the time period analyzed and the management of the fishery at that time. These factors are briefly described and summarized in the following paragraphs. Additional detail is available in the Amendment 97 Analysis (see ADDRESSES) and the proposed rule for Amendment 97 (79 FR 35971, June 25, 2014) and the final rule implementing Amendment 97 (79 FR 71350, December 2, 2014).

According to the Amendment 97 Analysis, the Chinook salmon PSC limit of 2,700 salmon is approximately 8 percent greater than the estimated average annual amount of Chinook salmon PSC used in the Non-Rockfish Program CV Sector (2,489 salmon) during a representative 5-year period (2007 through 2011) analyzed by the Council and NMFS. The Amendment 97 Analysis shows that the 2,700 Chinook salmon PSC limit for the Non-Rockfish Program CV Sector would have closed the directed groundfish fisheries for this sector in two out of five years during 2007 through 2011 if that PSC limit had been in effect.

Data from 2007 through 2011 in the Amendment 97 Analysis indicate that almost all of the Chinook salmon PSC by the Non-Rockfish Program CV Sector occurred in the Central GOA. Average annual Chinook salmon PSC for the Non-Rockfish Program CV Sector from 2007 through 2011 in the Western GOA was 44 Chinook salmon, ranging from a high of 107 Chinook salmon in 2008 to a low of zero Chinook salmon in 2011. Therefore, Chinook salmon PSC in the Central GOA represented nearly 98 percent of the average annual Chinook salmon PSC, and the Western GOA represented only 2 percent of the Chinook salmon PSC in the Non-Rockfish Program CV Sector from 2007 through 2011. Additionally, the data in the Amendment 97 Analysis show that Chinook salmon PSC in the Western GOA occurs during the first few months of the year when Non-Rockfish Program CV Sector vessels are participating in a Pacific cod fishery in the Western GOA. When that fishery closes, Non-Rockfish Program CV Sector vessels fish in the Central GOA for the remainder of the year. See Section 1.5.7 of the RIR for additional detail.

NMFS uses observer data to account for Chinook salmon PSC by participants in the GOA groundfish fisheries, including the Non-Rockfish Program CV Sector.

Prior to 2013, NMFS did not deploy observers on vessels that were less than 60 feet in length overall. Because a number of vessels within the Non-Rockfish Program CV Sector vessels that participate in non-pollock groundfish fisheries in the Western GOA are less than 60 feet in length, NMFS estimated Chinook salmon PSC in the Western GOA for this sector by using observer information from a different group of vessels that are equal to or greater than 60 feet in length and that typically participate in Central GOA non-pollock groundfish fisheries. The Council relied on these estimates of Chinook salmon PSC in developing its Chinook salmon PSC limit for the Non-RF Program CV Sector. Those estimates were the best available data for Chinook salmon PSC use in the Non-Rockfish Program CV Sector during the years examined by the Council in the Amendment 97 Analysis.

NMFS implemented the restructured observer program in 2013 (77 FR 70062, November 21, 2012). An important change in sampling methodology under the new observer program is to deploy observers on trawl vessels under 60 feet and greater than 40 feet. NMFS had not deployed observers on vessels of this length prior to the restructured program. In 2013 and 2014, NMFS included these vessels in the partial coverage category as part of the “vessel selection” pool.

In order to address issues that had developed with observer coverage rates on vessels under 60 feet in the “vessel selection” pool, as documented in the 2013 and 2014 Annual Report for the North Pacific Groundfish and Halibut Observer Program, NMFS moved vessels less than 60 feet from the “vessel selection” pool to the “trip selection” pool for 2015. Issues with the vessel selection pool include an incomplete sampling frame and difficulty achieving a target number of vessels to be observed. The move of vessels to the trip selection pool increased observer deployment on vessels under 60 feet in length overall, including vessels under 60 feet that participate in Western GOA non-pollock groundfish fisheries within the Non-Rockfish Program CV Sector. NMFS believes the change has improved observer data by better representing fishing events.

Amendment 97, and the Chinook salmon PSC limit of 2,700 Chinook salmon for the Non-Rockfish Program CV Sector, became effective on January 1, 2015. Based on observer data from January through April 2015, NMFS estimated Chinook salmon PSC use in the Non-Rockfish Program CV Sector at 1,056 Chinook salmon in the Western GOA and 1,568 Chinook salmon in the Central GOA. Therefore, on April 30, 2015, NMFS determined that the Non-Rockfish Program CV Sector would reach its Chinook salmon PSC limit of 2,700 Chinook salmon and published an information bulletin notifying the public that NMFS was prohibiting directed fishing by the Non-Rockfish Program CV Sector as soon as possible to prevent the sector from exceeding its Chinook salmon PSC limit. On May 3, 2015, NMFS published a rule prohibiting directed fishing for non-pollock groundfish species by the Non-Rockfish Program CV Sector for the remainder of 2015 (May 6, 2015, 80 FR 25967).

At its June 2015 meeting, the Council received information from NMFS and the public concerning the data leading to the directed fishing closure of the Non-Rockfish Program CV Sector and the effects of the closure on participants in the GOA (See section 1.5.7. and 1.6 of the RIR). After considering this information, the Council recommended, by a 10 to 1 vote, that NMFS implement an emergency rule that would allocate an additional 1,600 Chinook salmon to the Non-Rockfish Program CV Sector that is immediately available for use by the sector until the limit is reached or December 31, 2015, whichever occurs first.

This emergency rule implements a 1,600 Chinook salmon PSC limit for the Non-Rockfish Program CV Sector through a new regulatory paragraph at § 679.21(i)(8). The Council recommended an additional PSC limit of 1,600 Chinook salmon based on the average amount of Chinook salmon PSC used by the Non-Rockfish Program CV Sector to harvest its average amount of groundfish after May 1 (effectively the date of the closure in 2015) until the end of the year. Based on data in Section 1.6.1 of the RIR, NMFS agrees with the Council that an average of 1,600 Chinook salmon PSC are used by the Non-Rockfish Program CV Sector after May 1, based on Chinook salmon PSC use from 2010 through 2014. NMFS agrees that an additional 1,600 Chinook salmon will likely support prosecution of the groundfish fisheries in the Non-Rockfish Program CV Sector for the remainder of 2015.

The Chinook salmon PSC limit implemented by this emergency rule is separate and distinct from the sector's annual Chinook salmon PSC limit established by regulations at § 679.21(i)(3)(i)(C). Any amount of Chinook salmon PSC that were used in excess of the sector's annual limit will not be deducted from the PSC limit established by this emergency rule. The 1,600 Chinook salmon PSC limit established by this emergency rule is available for use by the Non-Rockfish Program CV Sector starting on August 10, 2015 until it is reached or December 31, 2015, whichever occurs first. Any amount of the 1,600 Chinook salmon PSC limit that remains unused on December 31, 2015, will not be available to the sector for the 2016 fishing year.

The Chinook salmon PSC reallocation provisions at § 679.21(i)(4) will continue to apply under this emergency rule, in the event that Rockfish Program CV Sector Chinook salmon PSC is available to reallocate to the Non-Rockfish Program CV Sector beginning on October 1, 2015. At this time, NMFS anticipates a small reallocation of PSC, or none at all, to the Non-Rockfish Program CV Sector beginning on October 1, 2015, based on current and anticipated use of Chinook salmon PSC in the Rockfish Program CV Sector through the remainder of 2015 (see Section 1.4 of the RIR for additional detail). If there is Chinook salmon PSC available for reallocation on October 1, 2015, or November 15, 2015, the total Chinook salmon PSC available for use by the Non-Rockfish Program CV Sector in 2015 will be slightly increased.

Regulations at § 679.21(i)(2)(i) are amended to include reference to the new Chinook salmon PSC limit of 1,600 Chinook salmon for the Non-Rockfish Program CV Sector. Regulations at § 679.21(i)(7)(i), which describe the procedure NMFS follows for closing a non-pollock trawl sector if a Chinook salmon PSC limit is eached, are amended to include reference to the new Chinook salmon PSC limit for the Non-Rockfish Program CV Sector.

Section 305(c) of the Magnuson-Stevens Act provides authority for rulemaking to address an emergency. Under that section, a Council may recommend emergency rulemaking if it finds an emergency exists. NMFS's Policy Guidelines for the Use of Emergency Rules provide that the only legal prerequisite for such rulemaking is that an emergency must exist, and that NMFS must have an administrative record justifying emergency regulatory action and demonstrating compliance with the Magnuson-Stevens Act and the National Standards (see NMFS Instruction 01-101-07 (March 31, 2008) and 62 FR 44421, August 21, 1997). Emergency rulemaking is intended for circumstances that are “extremely urgent,” where “substantial harm to or disruption of the . . . fishery . . . would be caused in the time it would take to follow standard rulemaking procedures.”

Under NMFS' Policy Guidelines for the Use of Emergency Rules, the phrase “an emergency exists involving any fishery” is defined as a situation that meets the following three criteria:

(1) Results from recent, unforeseen events or recently discovered circumstances;

(2) Presents serious conservation or management problems in the fishery; and

(3) Can be addressed through emergency regulations for which the immediate benefits outweigh the value of advance notice, public comment, and deliberative consideration of the impacts on participants to the same extent as would be expected under the normal rule making process.

The following sections review each of these criteria and describe why the Council and NMFS determined that the May 3, 2015, closure of the Non-Rockfish Program CV Sector groundfish fisheries and the establishment of a 1,600 Chinook salmon PSC limit for the remainder of 2015 meets these criteria.

The Council and NMFS recently discovered that the use of Chinook salmon PSC in the Non-Rockfish Program CV Sector in early 2015 was exorbitantly greater than historical use, and that this significant discrepancy was unforeseen and unexpected. The use of Chinook salmon PSC by the Non-Rockfish Program CV Sector in the Western GOA resulted in the sector's reaching its Chinook salmon PSC limit much earlier than anticipated—the amount of Chinook salmon PSC taken in the Non-Rockfish Program CV Sector closed all of this sector's non-pollock groundfish fisheries approximately seven months before these fisheries would typically close. From January 1, 2015, through April 30, 2015 (the date the fleet was notified of the impending closure of the Non-Rockfish Program CV Sector), Chinook salmon PSC use in the Non-Rockfish Program CV Sector in the Western GOA was estimated at 1,056 Chinook salmon. This amount is nearly 10 times greater than the maximum amount of Chinook salmon PSC used by the Non-Rockfish Program CV Sector during any complete calendar year from 2007 through 2011 (in 2008, 107 Chinook salmon were used in the Western GOA during the entire year). Chinook salmon PSC use by the Non-Rockfish Program CV Sector from January 1, 2015, through April 30, 2015, was nearly 24 times the average annual Chinook salmon PSC use in the Western GOA from 2007 through 2011 (44 Chinook salmon). See Section 1.5.7 in the RIR for additional detail.

The unexpectedly high use of Chinook salmon PSC in the Western GOA resulted in the Non-Rockfish Program CV Sector reaching its PSC limit even though Chinook salmon use in the Central GOA from January 1, 2015, through April 30, 2015, was not unexpectedly high (1,568 Chinook salmon). Chinook salmon PSC use in the Central GOA in 2015 prior to May 1, 2015, was less than the maximum amount of Chinook salmon PSC used from January 1 through April 30 during any of the years the Council and NMFS considered when recommending Amendment 97 (2,424 Chinook salmon PSC were used prior to May 1 in 2010), and only slightly greater than the average Chinook salmon PSC use during the January 1 through April 30 time period from 2007 through 2011 (1,011 Chinook salmon PSC were used on average during these years). Section 1.5.7 in the RIR provides additional detail. The magnitude of Chinook salmon use by the sector in the Western GOA when compared with the average use of Chinook salmon by the sector in the Central GOA seems to indicate that 2015 is not simply a high encounter year for Chinook salmon.

This unforeseen and unexpected increase in the amount of Chinook salmon PSC use occurred after the implementation of improved Chinook salmon PSC data collection on vessels in the Western GOA. As described earlier, NMFS implemented a restructured North Pacific Groundfish and Halibut Observer Program (Observer Program) in 2013 (77 FR 70062, November 21, 2012). Prior to 2013, no observer data were collected on vessels less than 60 feet in length overall, and observer data collected on vessels 60 feet in length overall and greater were used to generate Chinook salmon PSC estimates for these smaller vessels. Participation in a particular fishery may be dominated by vessels larger or shorter than 60 feet in length overall and Chinook salmon PSC use is likely to vary among fisheries depending on the location and timing of a fishery. Because the majority of vessels that participate in the Western GOA groundfish fisheries are less than 60 feet in length overall and were unobserved before 2013, the data used to estimate Chinook salmon PSC use in the Amendment 97 Analysis were derived from vessels greater than 60 feet in length overall.

The use of data available under the restructured Observer Program, including data from vessels not previously observed in the Western GOA, has resulted in estimates of a substantial and unexpected amount of Chinook salmon PSC. This unforeseen and recently discovered increase in the use of Chinook salmon PSC in the Western GOA contributed significantly to the total amount of Chinook salmon PSC used by the Non-Rockfish Program CV Sector and led to the closure of the Non-Rockfish Program CV Sector fisheries.

The Council and NMFS determined that this emergency rule criterion is met because the early closure prevents the Non-Rockfish Program CV Sector from harvesting thousands of metric tons of groundfish and results in foregone revenue to harvesters, processors and communities that participate in the Non-Rockfish Program CV Sector. The closure is estimated to prevent harvest of 13,000 to 15,000 metric tons of groundfish that would otherwise be available for harvest to this sector through the remainder of 2015 based on an analysis of average groundfish catch by this sector for the years 2012 through 2014 and 2010 through 2014 (see Section 1.5 of the RIR for additional detail). The lost revenue from this forgone harvest is estimated to be approximately $4.6 million in ex-vessel value and $11.3 million in first wholesale value (see Section 1.6.1 of the RIR).

Shoreside processors and the community of Kodiak, Alaska, are disproportionately affected by this closure because after May, groundfish harvested by the Non-Rockfish CV Sector is almost exclusively delivered to shoreside processors operating in Kodiak (see Section 1.6.1 of the RIR). Sections 1.5.7 and 1.6.1 of the RIR provide additional information on the expected effects of the directed fishing closure of the Non-Rockfish Program CV Sector on harvesters, processors, and the community of Kodiak. This emergency rule is the only mechanism to restore the foregone harvest and lost revenue because other groundfish fisheries that could substitute for these losses are fully allocated and are not available to the Non-Rockfish Program CV Sector.

The Council and NMFS have determined that a 1,600 Chinook limit will likely allow the Non-Rockfish Program CV Sector to harvest remaining amounts of groundfish. If 1,600 Chinook salmon PSC are made available to the Non-Rockfish Program CV Sector by mid-August, NMFS anticipates that most, if not all, the fall Pacific cod fishery will be harvested by the sector, and a substantial portion of the forgone flatfish for the latter half of 2015 will be harvested. The Council's objective for this Emergency Rule was to restore the lost harvesting opportunities to the Non-Rockfish Program CV Sector to the maximum extent possible while continuing to impose a limit on the use of Chinook salmon PSC in the GOA trawl fisheries that likely will not exceed the combined Chinook salmon PSC limits established under Amendments 93 and 97.

The Council and NMFS also determined that implementation of this emergency rule will not create conservation issues with regard to Chinook salmon. The Council and NMFS considered the original and continuing goals for Amendment 97 to the FMP: to avoid exceeding Chinook salmon PSC use of 40,000 Chinook salmon in the GOA trawl groundfish fisheries, and to minimize bycatch of Chinook salmon to the extent practicable. The Council made its emergency rule recommendation after considering the average annual use of Chinook salmon PSC by all GOA trawl sectors for the most recent five years (2010 through 2014), total use of Chinook salmon PSC by all GOA trawl sectors from January 1, 2015, through April 30, 2015, and anticipated use of Chinook salmon PSC by all GOA trawl sectors for the remainder of 2015 (from May 1 through December 31). Based on this review of historic, current, and anticipated Chinook salmon PSC use from all trawl sectors in the Western and Central GOA, the Council and NMFS concluded that the combined GOA trawl Chinook salmon PSC in 2015 will not exceed 40,000 even with implementation of the emergency rule.

The Council and NMFS also concluded that although the GOA trawl groundfish fisheries will be authorized to take a maximum of 34,100 Chinook salmon in 2015 under current regulations and this emergency rule, it is highly unlikely that the additional allocation of 1,600 Chinook salmon for the Non-Rockfish Program CV Sector will result in total Chinook salmon PSC in the GOA trawl groundfish fisheries for 2015 exceeding 32,500 Chinook salmon, the total combined pollock and non-pollock Chinook salmon PSC limits. Sections 1.5.7 and 1.6.1 of the RIR describe the historic, current, and anticipated Chinook salmon PSC use in each of the GOA pollock and non-pollock trawl sectors, including the Non-Rockfish Program CV Sector. The data from Table 2 in the RIR at Section 1.4.3 show that an average of over 13,000 Chinook salmon were left unused by the GOA pollock sector in 2013 and 2014. Including 2012, 2013, and 2014, the average Chinook salmon PSC limit remaining from the pollock PSC limit of 25,000 was over 11,000 Chinook salmon. Of the 11,000 Chinook salmon remaining in the GOA pollock fishery, over 8,000 Chinook salmon were left unused from the Central GOA, and over 3,000 were left unused in the Western GOA. Finally, the Council considered the demonstrated ability of the voluntary catch share agreements in the GOA pollock fishery and controls implemented by this sector to control Chinook PSC use (see Section 1.2.1.2 in this RIR). Based on these data, the Council determined and NMFS agrees that it is highly unlikely that this emergency rule will result in total Chinook salmon PSC from all GOA trawl groundfish fisheries exceeding 32,500 Chinook salmon. The emergency rule will allow NMFS to open non-pollock groundfish fisheries for the Non-Rockfish Program CV Sector but still limit the overall amount of Chinook salmon PSC use by this sector.

NMFS and the Council have determined that the emergency situation created by the May 3, 2015, closure can be addressed by emergency regulations. As explained earlier, an additional allocation of 1,600 Chinook salmon PSC can be provided to the Non-Rockfish Program CV Sector without creating conservation and management issues for the resource or direct users of Chinook salmon and consistent with the goals of Amendment 97 (see Sections 1.6.1 and 1.6.2 of the RIR for additional detail).

To address the emergency, NMFS must implement an emergency rule that waives the notice-and-comment rulemaking period. The benefits of waiving notice-and-comment rulemaking will serve the industry and public by allowing for additional harvest of groundfish by the Non-Rockfish Program CV Sector. Any delay that results in implementing rulemaking will reduce opportunities to harvest non-pollock groundfish species such as flatfish and Pacific cod. The Pacific cod fishery reopens for this sector in early September, and represents the primary fall opportunity for restoring lost catches and groundfish revenue for this sector. Sections 1.6.1 and 1.6.2 of the RIR describe the potential additional harvest opportunities for the Non-Rockfish Program CV Sector in greater detail.

Without the waiver of notice-and-comment rulemaking, the Non-Rockfish Program CV Sector will not have sufficient time to prosecute these fisheries as intended. Flatfish and Pacific cod trawl fisheries are high volume fisheries that require extended fishing time. Fishing time would be extremely limited, or unavailable, with notice-and-comment rulemaking. For example, the trawl Pacific cod fishery closes by regulation on November 1, 2015, so the directed Pacific cod fishery is only available for harvest during a limited period of time. Vessel owners need time to secure new crew, which may have shifted into other groundfish fisheries, non-groundfish fisheries or other activities. In addition, vessel owners need sufficient lead time to revise fishing plans, restock vessels, change gear, and have the vessel travel to and from the fishing grounds to prosecute the reopened fisheries.

Processors also require lead time to plan for new deliveries of groundfish that they have ceased to process due to the closure. Once the summer production cycle was altered by eliminating landings from the Non-Rockfish Program CV Sector, processors removed these traditional fishery products from their annual processing cycle and budget planning. Processors will need to secure market orders with buyers for desired finished product forms and establish pricing. Packaging materials and shipping containers must be delivered to processing plants. Processing factories must be reconfigured to process groundfish. Processors will also need to secure and assign labor to these fisheries. This emergency rule needs to be effective in advance of the start of the fisheries in order to provide processors with the time needed to plan and prepare for processing operations. Therefore, the benefits of the waiver of public notice and comment more than offset the value of standard notice-and-comment rulemaking.

Any change to the Chinook salmon PSC limit for the non-Rockfish Program CV Sector will require an amendment to the FMP amendment. Secretarial review of FMP amendments must follow the process set forth in section 304 of the Magnuson-Stevens Act, which requires more time to complete than is available to provide relief for the Non-Rockfish Program CV Sector. While the normal rulemaking process is the preferred avenue for making regulatory changes, as it provides interested parties the full ability to comment, the Council and NMFS have determined that in this case, the cost of the foregone harvest opportunity outweighs the benefit of using the more protracted, standard process because it would be ineffective for addressing the immediate issue. The Council initiated a typical fishery management plan amendment process in June 2015 to address this situation in a more permanent manner.

The purpose of this emergency rule is to promulgate a temporary regulatory amendment that would provide a one-time allocation of additional Chinook salmon PSC to the Non-Rockfish Program CV Sector, while allowing continued analysis of the issue in a separate, and standard, amendment process. This emergency rule is needed to re-open groundfish trawl fisheries in order to temporarily ameliorate unforeseen economic consequences due to the unexpectedly high use of Chinook salmon PSC in the Western GOA.

The Assistant Administrator for Fisheries, NOAA, has determined that this emergency rule is consistent with the National Standards, other provisions of the Magnuson-Stevens Act, and other applicable laws.

The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be impracticable and contrary to the public interest. This emergency rule will allow groundfish fisheries for the Non-Rockfish Program CV Sector to be reopened as early as August 2015 to address the unforeseen, early closing of these fisheries in early May 2015. Once groundfish seasons are reopened, this emergency rule is anticipated to allow for harvest of most of the remainder of the non-pollock fisheries available to this sector and should prevent prolonged economic losses from the closure to the Non-Rockfish Program CV Sector and processors receiving landings from this sector. The reopened fisheries may partially restore the indirect economic effects to the community of Kodiak that would otherwise be lost if the fishery closing is allowed to extend to the end of 2015 GOA groundfish season, which is currently scheduled for December 31, 2015. If this rule were delayed to allow for notice and comment, impacted entities would likely be prevented from harvesting the 13,000 to 15,000 metric tons of groundfish that would otherwise be available to impacted entities through the remainder of 2015. The lost revenue from this forgone harvest is estimated to be approximately $4.6 million in ex-vessel value and $11.3 million in first wholesale value. Fishermen, shoreside processors, and communities that participate in the Non-Rockfish Program CV Sector would have limited alternatives to mitigate this significant, negative economic impact due to the directed fishing closure. Providing an additional PSC limit of 1,600 Chinook salmon to the Non-Rockfish Program CV Sector as soon as possible is likely to restore a substantial portion of the foregone groundfish harvest due to the closure, restore the associated harvesting and processing revenues, and provide benefits to communities engaged in these fisheries, primarily the community of Kodiak.

As explained earlier, after the closure of the Non-Rockfish Program CV Sector on May 3, 2015, NMFS became aware of the significant difference in Chinook salmon PSC use in 2015 in comparison with the level of use anticipated in the Amendment 97 Analysis. The Council and NMFS had no way of foreseeing that the amount of Chinook salmon PSC taken by this sector would be so much greater than the historic number of Chinook salmon PSC. The Chinook salmon PSC limit was reached quickly, and the Non-Rockfish Program CV Sector was not able to mitigate fishing operations that modified where and how the fishery occurred to limit Chinook salmon PSC.

Finally, the time required for notice-and-comment rulemaking would not provide relief from the closure of these fisheries because it would not provide sufficient time for participants to harvest enough groundfish to offset the foregone revenue due to the closure. The Magnuson-Stevens Act FMP amendment process sets forth certain requirements that must be followed, such as a 60-day comment period on an FMP amendment. Because the Non-Rockfish Program CV Sector must re-open by mid-August, there is not enough time to follow the FMP amendment process prescribed by the Magnuson-Stevens Act and provide sufficient time for the sector to prosecute critical fisheries that are typically open the first few days of September, or for processing operations to prepare for receiving groundfish from landings in September. For fishery participants to prosecute these reopened fisheries in early September they must contact, secure, and redeploy crew; as well as restock vessels, change gear, and travel to the fishing grounds. For processors to be prepared to accept groundfish deliveries from these vessels in early September, they must secure market orders, prepare packaging materials, and shipping containers, as well as contact, secure and train and house processing laborers. NMFS has no other way than this emergency rule to amend these PSC limits in a timely manner to restore forgone fishing opportunities for 2015. Allowing for access to the remaining groundfish harvest for the rest of 2015 provides immediate economic benefits that outweigh the value of the deliberative notice-and-comment rulemaking process.

Similarly, for the reasons above that support the need to implement this emergency rule in a timely manner, the Assistant Administrator for Fisheries finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness provision of the Administrative Procedure Act and make the emergency rule effective immediately upon publication in the Federal Register. As stated above, NMFS anticipates that this emergency rule will allow for harvest of most of the remainder of the non-pollock fisheries available to this sector, and should prevent prolonged economic losses from the closure to the Non-Rockfish Program CV Sector and processors receiving landings from this sector.

This action is being taken pursuant to the emergency provision of the Magnuson-Stevens Act and is exempt from OMB review. The RIR prepared for this emergency rule is available from NMFS (see ADDRESSES).

This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is not subject to the requirement to provide prior notice and opportunity for public comment pursuant to 5 U.S.C. 553 or any other law. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

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