Federal Register Vol. 80, No.198,

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on June 19, 2015 (80 FR 35260). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

The axial migration of the No. 10 bearing is caused by non-optimal bearing internal clearance. This migration may cause an erroneous torque reading, possibly leading to engine overtorque and engine failure. We are also requiring replacement of the No. 9 bearing since it may also migrate, has the same part number as a No. 10 bearing, and could be installed in the same location as a No. 10 bearing.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 35260, June 19, 2015).

We reviewed the available data and determined that air safety and the public interest require adopting this AD as proposed.

P&WC has issued Service Bulletin (SB) No. PT6B-72-39095, Revision No. 3, dated December 29, 2014. The service information describes procedures for inspecting affected bearings. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this final rule.

P&WC has also issued SB No. PT6B-72-39092, Revision No. 4, dated December 29, 2014. The service information describes procedures for removing affected bearings.

We estimate that this AD affects 83 engines installed on rotocraft of U.S. registry. We estimate that it will take about 3 hours per engine to comply with this AD. We also estimate that it would take about 1 hour per engine to replace the affected bearings. The average labor rate is $85 per hour. Required parts cost about $49,800 per engine. Based on these figures, we estimate the cost of this AD on U.S. operators to be $4,161,620.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2014-14-02, Amendment 39-17896 (79 FR 39958, July 11, 2014), (“AD 2014-14-02”). AD 2014-14-02 applied to certain P&WC PW120, PW121, PW121A, PW124B, PW127, PW127E, PW127F, PW127G, and PW127M turboprop engines. The NPRM published in the Federal Register on June 2, 2015 (80 FR 31325). The NPRM proposed to require replacement of the fuel nozzle and the fuel manifold flow adapter.

We reviewed P&WC SB No. PW100-72-21861, dated November 21, 2014, which identifies the final fuel nozzle configuration. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 31325, June 2, 2015) or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting this AD as proposed.

We estimate that this AD affects 150 engines installed on airplanes of U.S. registry. We also estimate that it will take about 2.5 hours per engine to comply with this AD. The average labor rate is $85 per hour. Required parts cost about $146,594 per engine. Based on these figures, we estimate the cost of this AD on U.S. operators to be $22,020,975.

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

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2001-18-06, Amendment 39-12432 (66 FR 47575, September 13, 2001, (“AD 2001-18-06”) and AD 2008-22-16, Amendment 39-15712 (73 FR 63629, October 27, 2008, (“AD 2008-22-16”). AD 2001-18-06 and AD 2008-22-16 applied to certain GE CT58 turboshaft engines. The NPRM published in the Federal Register on May 1, 2015 (80 FR 24852). The NPRM was prompted by GE updating the life limits of compressor spools. GE also updated the calculation method for the life consumption of compressor spools and of life-limited rotating parts flown in Utility operations. This update resulted in generally reduced lives for compressor spools and all other life-limited parts used in Utility operations. The NPRM proposed to consolidate AD 2001-18-06 and AD 2008-22-16, and further reduce the life capability of certain parts. We are issuing this AD to prevent failure of life-limited rotating parts, uncontained part release, damage to the engine, and damage to the aircraft.

We reviewed GE CT58 Alert Service Bulletin (ASB) No. SB 72-A0162, Revision 16, dated January 7, 2015. The service information describes procedures for calculating life limits for the affected life-limited rotating parts. This service information is reasonably available because the interested parties have access to it through their normal course of business or see ADDRESSES for other ways to access this service information.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.

AAR Airlift Group (AAR) requested replacement of the current method for determining reduced life limits because current limits do not agree with operators field experience. AAR independent testing revealed that expired critical rotating parts showed no fatigue cracks.

We disagree. FAA-approved life limits for rotating parts are specified to prevent fatigue crack initiation, using conservative analytical margins. The number of parts that AAR had inspected would not be sufficient to show a likelihood of part cracking consistent with FAA regulatory guidelines for rotating part life limits. We did not change this AD.

AAR disagrees that the NPRM has minimal impact on their company. AAR stated that their cost per flight would increase and company revenue would be reduced.

We agree that this AD will impose an economic impact to operators. How an operator absorbs or passes on the cost is left to the operator to determine. We did not change this AD.

Since we issued the proposed AD, we discovered that ASB formatting discrepancies exist due to documentation changes implemented by GE. We changed paragraphs (e)(2), (e)(3), and (e)(4) to reflect the correct SB paragraph numbers.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed.

We estimate that this AD will affect about 60 engines installed on aircraft of U.S. registry. The average pro-rated cost of the life-limited rotating parts is $20,000. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $8,715,000.

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

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to add an AD that would apply to Schempp-Hirth Flugzeugbau GmbH Models Duo Discus and Duo Discus T powered sailplanes. The NPRM was published in the Federal Register on August 4, 2015 (80 FR 46206). The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 46206, August 4, 2015) or on the determination of the cost to the public.

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

• Are consistent with the intent that was proposed in the NPRM (80 FR 46206, August 4, 2015) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 46206, August 4, 2015).

We reviewed Schempp-Hirth Flugzeugbau GmbH Technical Note No. 380-2/396-17/868-22/890-14, Revision 1, issued July 13, 2015 (published as a single document), and Working instruction for Technical Note No. 380-2/396-17/868-22/890-14, Ausgabe (English translation: issue) 1, Datum (English translation: dated) May 11, 2015. The service information describes procedures for inspecting and replacing the airbrake bell crank and the airbrake drive funnels and inspecting the airbrake control system for proper clearance and making necessary adjustments. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of the AD.

We estimate that this AD will affect 31 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with the basic inspection requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of this portion of the AD on U.S. operators to be $5,270, or $170 per product.

We estimate that it will take about 4 work-hours per product to comply with the airbrake bell crank replacement requirement of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $500 per product.

Based on these figures, we estimate the cost of this portion of the AD on U.S. operators to be $26,040, or $840 per product.

We estimate that it will take about 4 work-hours per product to comply with the airbrake drive funnel replacement requirement of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $500 per product.

Based on these figures, we estimate the cost of this portion of the AD on U.S. operators to be $26,040, or $840 per product.

In addition, we estimate that any necessary follow-on actions to make any necessary adjustments to the airbrake control system will take about 2 work-hours for a cost of $170 per product. We have no way of determining the number of products that may need these actions.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3224; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

Discussion

We received a report from Piper Aircraft, Inc. of a production quality control problem on certain Models PA-28-161, PA-28-181, and PA-28R-201 airplanes. A change in production tooling and processes caused cracks to form along the edge of rib stiffening beads during manufacture. These cracks cause reduced structural integrity of the wing, which results in the inability of the wing rib to carry ultimate load.

This condition, if not corrected, could result in reduced structural integrity of the wing with consequent loss of control. We are issuing this AD to correct the unsafe condition on these products.

We reviewed Piper Aircraft, Inc. Service Bulletin No. 1279, dated August 26, 2015. The service bulletin describes procedures for inspecting the right wing rib at wing station 140.09 for cracks and for obtaining an FAA-approved repair if cracks are found. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

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

This AD requires accomplishing the actions specified in the service information described previously.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because cracks in the wing rib, if not detected and corrected immediately, could result in reduced structural integrity of the wing with consequent loss of control. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2015-4085 and Directorate Identifier 2015-CE-033-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 15 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary repairs that would be required based on the results of the inspection. This estimate is based on replacement of the rib. We have no way of determining the number of airplanes that might need these repairs:

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

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator.

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

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

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

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

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

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it makes administrative changes to the descriptions of restricted areas R-3602A and R-3602B, Fort Riley, KS.

In July 1967, the FAA published a rule in the Federal Register (32 FR 10296, July 13, 1967) establishing the Manhattan, KS, restricted areas R-3602A and R-3602B in support of U.S. Army requirements for firing various munitions including artillery, mortar, and rockets. Then, in November 1979, the FAA published another rule in the Federal Register (44 FR 68452, November 29, 1979) that amended R-3602B by reducing airspace in the southeast corner of the restricted area sufficient to permit an instrument approach to Runway 03 at the Manhattan Municipal Airport.

When established in 1967, and subsequently amended in 1979, the boundary descriptions for R-3602A and R-3602B used visual landmarks, including the Chicago, Rock Island and Pacific Railroad right-of-way; Old U.S. Highway 77; and the Milford Reservoir shoreline, to identify segments of the restricted area boundaries. However, the FAA has become aware that the railroad track was removed, portions of the railroad right-of-way are obscured by trees or has been plowed under for agriculture, and segments of the Old U.S. Highway 77 have been renamed S. Main Street in Riley, KS; 12400 Rd W.; and Governor Harvey Canyon Road. The visual landmarks originally used to define the restricted area boundaries are no longer useful for determining where the restricted area boundaries are located or where hazardous activities may be occurring to pilots unfamiliar with the Riley, KS, local area.

The FAA worked with the U.S. Army to redefine the affected boundary segments using geographic (latitude/longitude) coordinates. New restricted area boundary descriptions, using geographic coordinates, were developed to overlay the boundaries previously identified by the visual landmarks that no longer exist. As a result of amending the restricted area boundaries, corresponding amendments to the Riley MOA boundary were also deemed necessary to ensure the shared boundary segments between the restricted areas and MOA continued to align.

Additionally, when R-3602A and R-3602B were originally proposed and established, the FAA noted that numerous aircraft, both fixed and rotary wing, would participate in the training activities being accomplished. The restricted areas were established with the ceilings being expressed in feet above mean sea level (MSL); however, since aircraft operations were planned in the restricted areas, in addition to the artillery, mortar, and rocket fires being conducted, the ceilings should have been expressed in flight levels (FL). As such, the designated altitudes ceiling information listed in the restricted area descriptions are being amended accordingly.

Finally, the Marshall Army Air Field RBN navigation aid referenced in R-3602B was renamed the Cavalry NDB and the using agency information for R-3602A and R-3602B does not reflect the military service of the using agency listed, nor does it match the using agency for the associated Riley MOA which surrounds the restricted areas. To overcome these issues, the Marshall Army Air Field RBN name in R-3602B and the using agency information for the restricted areas and MOA are also being updated accordingly.

MOAs are established to separate or segregate non-hazardous military flight activities from aircraft operating in accordance with instrument flight rules (IFR), and to advise pilots flying under VFR where these activities are conducted. IFR aircraft may be routed through an active MOA only by agreement with the using agency and only when air traffic control can provide approved separation from the MOA activity. VFR pilots are not restricted from flying in an active MOA but are advised to exercise caution while doing so. MOAs are nonregulatory airspace areas that are established or amended administratively and published in the National Flight Data Digest (NFDD) rather than through rulemaking procedures. When a nonrulemaking action is ancillary to a rulemaking action, FAA procedures allow for the nonrulemaking changes to be included in the rulemaking action. Since the Riley MOA amendments are ancillary to the R-3602A and R-3602B amendments being made, the MOA changes are addressed in this rule as well as being published in the NFDD.

The Riley MOA boundary description is being amended to incorporate the geographic coordinates used in the R-3602A and R-3602B boundary descriptions to redefine the boundary segments previously defined by the Chicago, Rock Island and Pacific Railroad right-of-way, Old U.S. Highway 77, and the Milford Reservoir shoreline. This amendment will ensure shared boundaries with the updated restricted area descriptions and prevent airspace conflict with any potential SUA overlap resulting from the redefined boundary segments. With the advent of digital charting techniques and tools, the restricted area and MOA boundary coordinates associated with defining the pre-existing railroad right-of-way, the highway, and the reservoir shoreline are able to be accurately reflected by geographic coordinates. Lastly, the Riley MOA using agency is being amended to match the associated restricted areas using agency amendment. The amended boundaries description, and using agency information will be published in the NFDD; the rest of the MOA legal description is unchanged.

This action amends 14 CFR part 73 by modifying restricted areas R-3602A and R-3602B at Fort Riley, KS. The FAA is taking this action to accurately define the restricted area boundaries using geographic coordinates to overcome the loss of the visual landmarks used previously, amend how the restricted area ceilings are expressed, correct the Marshall Army Air Field RBN name in R-3602B, and update the using agency information to include the military service. The following restricted area boundary, designated altitudes, and using agency information is amended as indicated:

The R-3602A boundary segment previously described by the Chicago, Rock Island and Pacific Railroad right-of-way is redefined using the geographic coordinates, “lat. 39°17′54″ N., long. 96°50′12″ W.; to lat. 39°17′43″ N., long. 96°52′27″ W.; to lat. 39°18′21″ N., long. 96°53′49″ W.; to lat. 39°18′09″ N., long. 96°55′04″ W.; to lat. 39°18′23″ N., long. 96°55′59″ W.; to lat. 39°18′24″ N., long. 96°57′39″ W.”

The R-3602B boundary segment previously described by the Chicago, Rock Island and Pacific Railroad right-or-way is redefined using the geographic coordinates, “lat. 39°13′15″ N., long. 96°42′36″ W.; to lat. 39°13′59″ N., long. 96°45′25″ W.; to lat. 39°14′34″ N., long. 96°45′58″ W.; to lat. 39°15′20″ N., long. 96°46′29″ W.; to lat. 39°16′57″ N., long. 96°48′47″ W.”

The R-3602A and R-3602B shared boundary segment previously described by Old U.S. Highway 77 is redefined using the geographic coordinates, “lat. 39°17′45″ N., long. 96°49′51″ W.; to lat. 39°08′22″ N., long. 96°49′53″ W.”

The R-3602A geographic coordinates used for identifying where the boundary intercepts the main body of the Milford Reservoir shoreline are updated to reflect “lat. 39°12′40″ N., long. 96°57′40″ W.″ and “lat. 39°10′58″ N., long. 96°54′39″ W.”

The R-3602A and R-3602B designated altitudes are amended to express the restricted area ceiling in terms of flight levels. The restricted area designated altitudes are changed to read, “Surface to FL 290.”

The R-3602B boundary information reference to the Marshall Army Air Field RBN navigation aid is amended to reflect the “Cavalry NDB.”

Lastly, the R-3602A and R-3602B using agency information is changed by prefacing the existing using agency with “U.S. Army.”

This change does not affect the boundaries, designated altitudes, activities conducted within the restricted areas or the actual physical location of the airspace; therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

The corresponding restricted area boundary segment amendments noted previously are also made to the Riley MOA boundary information, as needed, to retain shared boundary segments with R-3602A and R-3602B. And, the Riley MOA using agency information is amended to match the restricted areas using agency information. The amended Riley MOA boundary and using agency information changes addressed in this rule will be published in the NFDD as a separate action with a matching effective date.

This action does not affect the overall restricted area or MOA boundaries; designated altitudes; times of designation; or activities conducted within the restricted areas and MOA.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5d. This action is an administrative change to the technical description of the affected restricted areas and is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

Section 14(a) of the CPSA, as amended by the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), requires that manufacturers of products subject to a consumer product safety rule or similar rule, ban, standard or regulation enforced by the CPSC must certify that the product complies with all applicable CPSC-enforced requirements. 15 U.S.C. 2063(a). For children's products, certification must be based on testing conducted by a CPSC-accepted third party conformity assessment body. Id. Public Law 112-28 (August 12, 2011) directed the CPSC to seek comment on “opportunities to reduce the cost of third party testing requirements consistent with assuring compliance with any applicable consumer product safety rule, ban, standard, or regulation.” In response to Public Law 112-28, the Commission published in the Federal Register a Request for Comment (“RFC”). See http://www.cpsc.gov//PageFiles/103251/3ptreduce.pdf. As directed by the Commission, staff submitted a briefing package to the Commission that described opportunities that the Commission could pursue to potentially reduce the third party testing costs consistent with assuring compliance. See http://www.cpsc.gov/PageFiles/129398/reduce3pt.pdf.

In addition to soliciting and reviewing comments as required by Public Law 112-28, the Commission published in the Federal Register on April 16, 2013 a Request for Information (“RFI”) on four potential opportunities to reduce testing burdens. See http://www.thefederalregister.org/fdsys/pkg/FR-2013-04-16/pdf/2013-08858.pdf. In February 2014, the Commission also published a notice in the Federal Register of a CPSC workshop on potential ways to reduce third party testing costs through determinations consistent with assuring compliance. See http://www.thefederalregister.org/fdsys/pkg/FR-2014-02-27/pdf/2014-04265.pdf. The workshop was held on April 3, 2014.

The Commission has issued several regulations concerning third party testing and certification. In this direct final rule, the Commission clarifies provisions in two such regulations. The Commission believes that these clarifications will enable manufacturers to better understand their testing obligations so that they can avoid unnecessary testing.

In November 2011, the Commission promulgated 16 CFR part 1109, Conditions and Requirements for Relying on Component Part Testing or Certification, or Another Party's Finished Product Testing or Certification, to Meet Testing and Certification Requirements (“component part testing rule”). Through the component part testing rule the Commission sought to help manufacturers meet their testing, continuing testing, and certification obligations under section 14 of the CPSA. The component part testing rule is intended to give all parties involved in testing and certifying consumer products pursuant to section 14 of the CPSA the flexibility to procure or rely on required certification testing where such testing is easiest to conduct or least expensive.

Subpart A of 16 CFR part 1109 provides the general requirements for component part testing, and subparts B and C provide for additional conditions for specific products and requirements. Although the component part testing rule does not specifically limit the applicability of component part testing to just those products and requirements included in subparts B and C, the inclusion in the rule of conditions and requirements for specific products and requirements may have been misinterpreted by stakeholders as excluding the option of component part testing for other products and requirements that are not explicitly specified in the requirements currently referenced in subpart B (paint, lead content of children's products, and phthalates in children's toys and child care articles). An example of a requirement not explicitly specified in subpart B of 16 CFR part 1109 where component part testing may be used is the requirement for the solubility of specified chemicals for toy substrate materials other than paints in the ASTM F963 mandatory toy standard.

This amendment makes the following revisions to the component part testing rule. Section 1109.1(c) is revised to clarify that subpart B applies only to products or requirements expressly identified in subpart B rather than placing limitations on the use of component part testing of chemical content. Section 1109.5(a) is revised to clarify that the requirements of subpart B and C are only required if applicable in the circumstances identified in subparts B and C. Thus, manufacturers are free to use component part testing in addition to the specific circumstances in subpart B (paint, lead content of children's products, and phthalates in children's toys and child care articles) and subpart C (composite testing).

In addition, the amendment brings two other provisions in the component part rule up to date. Section 1109.11(a) currently refers to an older version of the mandatory toy standard, ASTM F963-08. However, the toy standard has been revised, and the appropriate reference should be ASTM F963-11. The amendment revises section 1109.11(a) to update the obsolete references to the mandatory toy standard. The amendment also updates section 1109.13 to refer to guidance that the Commission issued after publication of the component part rule. Section 1109.13 addresses when a certifier may rely on component part testing for phthalates in children's toys and child care articles. The amendment adds a reference to the Commission's guidance concerning inaccessible component parts (16 CFR part 1199). This change will make the provision concerning phthalates (section 1109.13) consistent with the provision concerning lead (section 1109.12) and will help certifiers understand which components are inaccessible and do not need to be tested for phthalate content.

These revisions to part 1109 do not, and are not intended to, make any substantive revisions to the existing rule, but rather clarify what the Commission intended when the rule was originally promulgated and bring the rule up to date by referencing current regulations.

The Commission determined by rule that certain products and materials inherently do not contain lead at levels that exceed the lead content limits under section 101(a) of the CPSIA, so long as those materials have not been treated or adulterated with materials that could add lead. 16 CFR 1500.91. The effect of these determinations is to relieve the material or product from the third party testing requirement.

Section 1500.91(d)(7) states that such a determination applies to “textiles (excluding after-treatment applications, including screen prints, transfers, decals, or other prints) consisting of [various fibers].” 16 CFR 1500.91(d)(7) (emphasis added). Thus, the rule determined that dyes and dyed textiles do not contain lead. As explained in the preamble to the determination rule, dyes are organic chemicals that can be dissolved and made soluble in water or another carrier so that they penetrate into the fiber. 74 FR 43031, 43036 (Aug. 26, 2009). Dyes can be applied to textiles at the fiber, yarn, fabric or finished product stage. Although some dye baths may contain lead, the colorant that is retained by the finished textile after rinsing would not contain lead above a non-detectable lead level. In contrast to dyes, pigments may be either organic or inorganic and they are insoluble in water. Some textiles may have lead based paints and pigments that are directly incorporated onto the textile product or added to the surface of textiles. Examples are decals, transfers, and screen printing. Id. The reference in the rule to “other prints” referred only to those after-treatment applications that use non-dye substances. Such prints, in which the non-dye substances do not become part of the fiber matrix but remain a surface coating, could contain lead, and are subject to the testing required under the CPSIA for children's products.

The American Apparel & Footwear Association (“AAFA”) has expressed confusion about the phrase “or other prints” in 16 CFR 1500.91(d)(7). AAFA argues that this phrase can be read to exclude from the determination rule items that are dyed (and are lead free) merely because of the technique used to apply colorant.1 AAFA asserts that this interpretation has resulted in a “significant amount of unnecessary testing.” The Commission is amending the rule to reduce any confusion about the meaning of the phrase “or other prints” in 16 CFR 1500.91(d)(7).

As discussed above, the preamble to the determination rule explained the parameters of the determination regarding textiles. Whether textiles require testing for lead content depends on whether the products are dyed or include other non-dye finishes, decorations, colorants, or prints, and not on the techniques that are used in manufacturing, printing, or applying such products. Some printing, treatments, and applications involve dyes that do not contain lead, others may use paints, pigments, or inks that may contain lead. The phrase “or other prints” in the exclusion in 1500.91(d)(7) may mistakenly give the impression that the application process (e.g., printing) is a determining factor. The Commission is amending the provision to clarify that dyed textiles, regardless of the techniques used to produce such materials and apply such colorants, are not subject to required testing for lead in paint or for total lead content.

Section 1500.91(d)(7) is revised to clarify that the Commission has determined that textiles that have treatments and applications consisting entirely of dyes do not exceed the lead content limits, and are not subject to the third party testing requirements for children's products, so long as those materials have not been treated or adulterated with materials that could add lead. The amendment does not make any substantive change in the requirements of the current rule.

The Commission is issuing these amendments as a direct final rule (“DFR”). The Administrative Procedure Act (“APA”) generally requires notice and comment rulemaking 5 U.S.C. 553(b). In Recommendation 95-4, the Administrative Conference of the United States (“ACUS”) endorsed direct final rulemaking as an appropriate procedure to expedite promulgation of rules that are noncontroversial and that are not expected to generate significant adverse comment. See 60 FR 43108 (August 18, 1995). Consistent with the ACUS recommendation, the Commission is publishing this rule as a direct final rule because we believe the clarifications will not be controversial. The rule will not impose any new obligations, but rather will clarify existing rules to make clear what is permissible and what is required to be third party tested. We expect that the clarifications will be supported by stakeholders. The clarifications respond to the desire expressed by numerous stakeholders and Congress that the Commission provide relief from the burdens of third party testing while also ensuring that products will comply with all applicable children's product safety rules. We expect that these clarifications will not engender any significant adverse comments.

Unless we receive a significant adverse comment within 30 days, the rule will become effective on December 14, 2015. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be one where the commenter explains why the rule would be inappropriate, including an assertion challenging the rule's underlying premise or approach, or a claim that the rule would be ineffective or unacceptable without change.

Should the Commission receive a significant adverse comment, the Commission will withdraw this direct final rule. If a significant adverse comment is received for an amendment to only one of the two rules being revised in the direct final rule, the Commission will only withdraw the amendment to the rule receiving a significant adverse comment. A notice of proposed rulemaking (“NPR”), providing an opportunity for public comment, is also being published in this same issue of the Federal Register.

The APA generally requires that a substantive rule must be published not less than 30 days before its effective date. 5 U.S.C. 553(d)(1). Because the final rule provides relief from existing testing requirements under the CPSIA, the effective date is December 14, 2015. However, as discussed in section D of the preamble, if the Commission receives a significant adverse comment the Commission will withdraw the DFR and proceed with the NPR published in this same issue of the Federal Register.

The Regulatory Flexibility Act (“RFA”) generally requires that agencies review proposed and final rules for the rules' potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603 and 604.

The revisions to the component part testing rule clarify that component part testing can be used whenever tests on a component part will provide the same information about the compliance of the finished product as would be provided by tests of the component after it is incorporated into or applied to a finished product. The revisions do not make any substantive changes in the requirements of the current component part rule. Therefore, the number of manufacturers affected should be small. The changes will not increase costs for any entities. Therefore, the changes to the rule are not expected to have a significant impact on a substantial number of small entities.

The revision to the lead determination rule clarifies that textiles that have treatments and applications that consist entirely of dyes are determined by the Commission not to exceed the lead content limits, and are not subject to the third party testing requirements for children's products. The amendment does not make any substantive change in the requirement of the current rule. The change will not increase costs for any entities. Therefore, the change to the rule is not expected to have a significant impact on a substantial number of small entities.

Due to the small number of entities affected and the limited scope of the impact, the Commission certifies that this rule will not have a significant impact on a substantial number of small entities pursuant to section 605(b) of the RFA, 5 U.S.C. 605(b).

The Commission's regulations provide a categorical exclusion for Commission rules from any requirement to prepare an environmental assessment or an environmental impact statement because they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required. The Commission's regulations state that safety standards for products normally have little or no potential for affecting the human environment. 16 CFR 1021.5(c)(1). Nothing in this rule alters that expectation.

For the reasons discussed in the preamble, the Commission amends Title 16 of the Code of Federal Regulations, as follows:

This final rule adopts the notice of proposed rulemaking (NPRM) that we published in the Federal Register on March 24, 2014.1

This final rule creates our own administrative debt collection regulations. This final rule will improve our authorities to pursue collection of administrative debts from current and separated employees and non-employee debtors as authorized by the DCA of 1982, amended by the DCIA of 1996 and other existing debt collection statutes.

Employee debts include, but are not limited to, salary overpayments, advanced travel pay, and debts resulting from overpayments of benefit premiums. Non-employee debts include, but are not limited to, vendor overpayments and reimbursable agreements.

This change will authorize us to pursue collection of administrative debts under the authorities prescribed in the following statutes and legislations:

We updated this final rule in accordance with the Data Act (Pub. L. 113-101), which was enacted on May 9, 2014. Section five of the Data Act requires Federal agencies to refer all debts 120 or more days delinquent to the Department of the Treasury for offset. Prior to the Data Act, Federal agencies were required to refer all debts 180 or more days delinquent.

In the notice of proposed rulemaking, we provided a 60-day comment period, which ended on May 23, 2014. We carefully considered the one public comment we received. We present a summary of that comment below, and respond to the significant issues relevant to this rulemaking.

Comment: The one commenter stated that he agreed with our efforts to collect debts. However, the commenter was concerned that the proposed rule's “minimum amount of referrals” exception in § 422.850(d)(2)(i) “is so broad, subjective, and vague that it could apply to anything.” The commenter suggested that we focus the exception on specific situations or remove it.

Response: We are unable to adopt the commenter's suggestion to change or remove the language in § 422.850 (d)(2)(i). This section follows the Federal Claims Collection Standards as set forth by Treasury and the Department of Justice (DOJ) that all Federal Agencies must follow to complete debt collection activities. Since administrative debts include debts from employees, vendors, and States, as well as other debts listed in § 422.801(c), we handle each case individually, following the guidelines in § 422.850(d)(2)(i), to determine if referring a debt to the DOJ for civil suit is necessary.

We consulted with the Office of Management and Budget (OMB) and determined that this final rule does not meet the criteria for a significant regulatory action under Executive Order 12866 as supplemented by Executive Order 13563. Thus, OMB did not review the final rule.

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

This final rule does not contain information collection requirements. Therefore, we need not submit the rule to Office of Management and Budget for review under the Paperwork Reduction Act.

For the reasons set out in the preamble, we add subpart I of part 422 of chapter III of title 20 of the Code of Federal Regulations as set forth below:

The Chicago, Central & Pacific Railroad requested a temporary deviation for the Illinois Central Railroad Drawbridge, across the Upper Mississippi River, mile 579.9, at Dubuque, Iowa to remain in the closed-to-navigation position from 7 a.m. to 1 p.m., on October 21 and 22, 2015 to complete electrical and mechanical upgrades and replace the control house essential to the continued safe operation of the drawbridge.

The Illinois Central Railroad Drawbridge currently operates in accordance with 33 CFR 117.5, which states the general requirement that the drawbridge shall open on signal.

There are no alternate routes for vessels transiting this section of the Upper Mississippi River. The bridge cannot open in case of emergency.

The Illinois Central Railroad Drawbridge provides a vertical clearance of 19.9 feet above normal pool in the closed-to-navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft and will not be significantly impacted. This temporary deviation has been coordinated with waterway users. No objections were received.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule 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.

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

The background for this action is discussed in detail in our June 29, 2015 proposal (80 FR 36956). In that notice, we proposed to approve the New Mexico i-SIP submittal for the 2010 SO2 NAAQS.

We received comments from one commenter on the proposal. Our response to the comments are below.

Comment: One commenter stated that EPA cannot approve the PSD portions of the i-SIP, ergo110(a)(2)(C), (D)(i)(II)(PSD prong) and (J), until the PM2.5 increments are fully approved into both the New Mexico and Albuquerque-Bernalillo County SIPs.

Response: EPA disagrees with the comment as our proposed action did not pertain to the Albuquerque-Bernalillo County portion of the SIP. The New Mexico Air Quality Control Act (section 74-2-4) authorizes Albuquerque/Bernalillo County to locally administer and enforce the State Air Quality Control Act by providing for a local air quality control program. Thus, State law views Albuquerque/Bernalillo County and the remainder of the State of New Mexico as distinct air quality control entities. Therefore, each entity is required to submit its own SIP revision in order to completely satisfy the requirements of the Clean Air Act for the entire State of New Mexico. The Albuquerque/Bernalillo County Air Quality Control Board has the authority to implement a comprehensive Prevention of Significant Deterioration (PSD) permit program, separate and independent from the NM Air Quality Board. At the time of the instant proposal and comment, EPA had not yet approved any revision to the Albuquerque/Bernalillo County portion of the New Mexico PSD SIP.

EPA published its approval of revisions to the New Mexico SIP for Albuquerque/Bernalillo County that address the requirements of the EPA's May 2008, July 2010, and October 2012 PM2.5 PSD Implementation Rules, and also incorporate revisions consistent with EPA's March 2011 Fugitives Interim Rule, July 2011 Greenhouse Gas (GHG) Biomass Deferral Rule, and July 2012 GHG Tailoring Rule Step 3 and GHG PALs Rule (see docket EPA-R06-OAR-2013-0616 in www.regulations.gov). The comment is not relevant to the instant New Mexico SIP action, but EPA's approval of the Albuquerque/Bernalillo County PSD SIP revisions renders the comment moot.

EPA is approving the February 14, 2014, infrastructure SIP submission from New Mexico, which addresses the requirements of CAA sections 110(a)(1) and (2) as applicable to the 2010 SO2 NAAQS, including two of the four CAA requirements for interstate transport of SO2 emissions. The two interstate transport requirements being addressed pertain to prohibiting SO2 emissions that will interfere with measures required to be included in the SIP for any other State to prevent significant deterioration of air quality or to protect visibility (CAA 110(a)(2)(D)(i)(II)). Specifically, EPA is approving the i-SIP as meeting the following CAA infrastructure elements: 110(a)(2)(A), (B), (C), (D)(i)(II), D(ii), (E), (F), (G), (H), (J), (K), (L), and (M). EPA is not taking action on section 110(a)(2)(D)(i)(I)—pertaining to prohibiting emissions which will contribute significantly to nonattainment or interfere with maintenance of the NAAQS at this time. EPA is not taking action pertaining to section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions under Part D as EPA believes this need not be addressed in the i-SIP. Based upon review of the state's infrastructure SIP submissions and relevant statutory and regulatory authorities and provisions referenced in these submissions or referenced in New Mexico's SIP, EPA believes that New Mexico has the infrastructure in place to address all applicable required elements of sections 110(a)(1) and (2) (except as otherwise noted) to ensure that the 2010 SO2 NAAQS are implemented in the state.

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

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

• 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).

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 14, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Table of Contents I. Background A. What action is EPA taking? B. Delaware's Air Quality With Respect to the Federal National Ambient Air Quality Standards (NAAQS) for Ozone 1. Delaware Ozone Nonattainment 2. Delaware PM2.5 Nonattainment C. Federal Motor Vehicle Emission Standards D. California LEV Program E. Delaware LEV Program II. Summary of August 2014 Delaware LEV SIP Revision III. Final Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Background A. What action is EPA taking?

EPA is taking direct final rulemaking action to approve a SIP revision submitted by Delaware to EPA on August 28, 2014, requesting the inclusion of the state's adopted and implemented California LEV standards as part of the Delaware SIP. A description of the direct final rulemaking process being used by EPA to approve Delaware's SIP revision is described in section III of this rulemaking action. Delaware's LEV standards are applicable to subject, new motor vehicles sold or titled in Delaware beginning with model year 2014. Subject vehicles include passenger cars, light-duty trucks, medium-duty vehicles and medium-duty trucks. Delaware first adopted California LEV standards as state regulation (7 Admin. Code 1140) in 2010, effective with the sale and titling of new vehicles beginning in model year 2014. However, Delaware did not submit a request to EPA to incorporate that version of the program as a SIP revision. Instead, Delaware revised its Regulation 1140 in 2013 to incorporate California's most recent version of its LEV program, otherwise known as the Advanced Clean Car Program. Delaware formally submitted a SIP submittal to EPA on August 20, 2014 requesting EPA to incorporate this 2013 version of its LEV program rule for inclusion in the SIP. Further detail on Delaware's LEV program is provided below in subsection C. of this Background section.

The CAA, as amended in 1990, requires EPA to set NAAQS for ambient air pollutants considered harmful to public health and the environment. EPA establishes NAAQS for six principal air pollutants, or “criteria” pollutants, which include: Ozone, carbon monoxide (CO), lead, nitrogen dioxide, fine particulate matter (PM2.5), and sulfur dioxide (SO2). The CAA establishes two types of NAAQS. Primary standards provide public health protection, including protecting the health of “sensitive” populations such as asthmatics, children, and the elderly. Secondary standards protect public welfare, including protection against decreased visibility and damage to animals, crops, vegetation, and buildings. The CAA also requires EPA to periodically review the standards to ensure that they provide adequate health and environmental protection, and to update those standards as necessary.

Ozone is formed in the atmosphere by photochemical reactions between ozone precursor pollutants, including volatile organic compounds (VOCs) and nitrogen oxides (NOX) in the presence of sunlight. In order to reduce ozone concentrations in the ambient air, the CAA directs areas designated as nonattainment to apply controls on VOC and NOX emission sources to reduce the formation of ozone.

EPA has revised the ozone NAAQS and designated and classified areas under those revised NAAQS several times since the CAA was reauthorized in 1990. For each revised ozone NAAQS, Delaware has had areas designated as nonattainment for the pollutant ozone.

On November 6, 1991 (56 FR 56694), EPA designated Kent and New Castle Counties as severe nonattainment under the 1-hour ozone NAAQS, as part of the Philadelphia-Wilmington-Trenton, PA-DE-NJ ozone nonattainment area, with Sussex County designated as a separate, marginal 1-hour ozone nonattainment area. Both areas were found to have attained the 1-hour ozone standard by their respective attainment dates, although neither area was formally redesignated to attainment. EPA later revoked the 1-hour ozone NAAQS effective June 15, 2005.

On April 30, 2004 (84 FR 23857), EPA designated all three Delaware counties as moderate nonattainment under the 1997 8-hour ozone NAAQS, as part of the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment area. EPA granted the area a 1-year extension of its attainment date (from 2010 to 2011) on January 21, 2011 (76 FR 3840). On March 26, 2012, EPA determined that the area had attained the 8-hour ozone NAAQS by its attainment date and also that it qualified for a clean data determination, which suspended most CAA air quality planning requirements based on air quality monitoring data showing that the area met the NAAQS for the most recent three prior years. Once again, the area was never formally redesignated to attainment prior to EPA's revocation of the 1997 8-hour NAAQS on March 6, 2015 (44 FR 12264), effective April 6, 2015.

Most recently, EPA revised the 8-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm on March 27, 2008 (73 FR 16436). On May 21, 2012 (77 FR 30088), EPA finalized designations for this 2008 8-hour ozone NAAQS, with New Castle County designated marginal nonattainment as part of the Philadelphia-Wilmington-Atlantic City nonattainment area, and Sussex County once again designated marginal nonattainment as the separate Seaford, DE area.

On August 27, 2015, EPA published a Federal Register document (80 FR 51992) proposing to find that the Seaford, DE area had attained the 2008 8-hour ozone NAAQS by the marginal area attainment deadline of July 20, 2015, based on complete, quality-assured and certified ozone monitoring data for the period 2012-2014. In that same action, EPA proposed to find that the Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD marginal area meets the criteria, as provided in CAA section 181(a)(5) and interpreted by regulation at 40 CFR 51.1107, to qualify for a 1-year attainment date extension for the 2008 8-hour ozone NAAQS.

PM2.5 can be emitted directly or formed secondarily in the atmosphere. The main precursors of secondary PM2.5 are SO2, NOX, ammonia, and VOCs. Sulfates are a type of secondary particle formed from SO2 emissions of power plants and industrial facilities. Nitrates, another common type of secondary particle, are formed from NOX emissions of power plants, automobiles, and other combustion sources.

On July 18, 1997, EPA promulgated the first air quality standards for PM2.5 (62 FR 38652). EPA promulgated primary and secondary annual standards at a level of 15 micrograms per cubic meter (μg/m3), based on a 3-year average of annual mean PM2.5 concentrations. In the same rulemaking, EPA promulgated primary and secondary 24-hour standards of 65 μg/m3, based on a 3-year average of the 98th percentile of 24-hour concentrations. On October 17, 2006 (71 FR 61144), EPA once again revised the PM2.5 NAAQS, retaining the annual average NAAQS at 15 μg/m3 but revising the 24-hour NAAQS to 35 μg/m3, based again on the 3-year average of the 98th percentile of 24-hour concentrations. As established by EPA regulation at 40 CFR part 50, the primary and secondary 1997 Annual PM2.5 NAAQS are attained when the annual arithmetic mean concentration, as determined in accordance with 40 CFR part 50, appendix N, is less than or equal to 15.0 μg/m3 at all relevant monitoring sites in the subject area over a 3-year period.

Under the revised particulate matter NAAQS promulgated by EPA since 1990, Delaware's New Castle County has been designated nonattainment for both the 24-hour and annual PM2.5 NAAQS on a number of occasions. On January 5, 2005 (70 FR 944), and supplemented on April 14, 2005 (71 FR 19844), EPA designated New Castle County nonattainment for the annual 1997 PM2.5 NAAQS as part of the Philadelphia-Wilmington, PA-NJ-DE nonattainment area. On November 13, 2009 (74 FR 58688), EPA promulgated designations for the 24-hour PM2.5 NAAQS established in 2006, designating New Castle County nonattainment as part of the Philadelphia-Wilmington, PA-NJ-DE nonattainment area. EPA did not promulgate designations for the 2006 Annual PM2.5 NAAQS because that NAAQS was essentially identical to the 1997 Annual PM2.5 NAAQS. The November 13, 2009 action clarified that all counties in Delaware were designated unclassifiable/attainment for the 1997 24-hour PM2.5 NAAQS through the designations promulgated on January 5, 2005. EPA has since redesignated Delaware's portion of the Philadelphia-Wilmington, PA-NJ-DE nonattainment area as attainment with both the 1997 and 2006 PM2.5 NAAQS. See 79 FR 45350, (August 5, 2014).

On January 15, 2013, EPA promulgated a revised primary annual PM2.5 NAAQS (78 FR 3086), strengthening the standard from 15 μg/m3 to 12 μg/m3. Nonattainment area designations for the 2012 primary annual PM2.5 standard were published on January 15, 2015 (80 FR 2206), with all counties in Delaware classified as unclassifiable/attainment.

To reduce air pollution from motor vehicles, which contributes to higher levels of ambient air pollution such as ozone and PM2.5, motor vehicles sold in the United States are required by the CAA to be certified to meet Federal motor vehicle emission standards. States are generally prohibited from adopting vehicle standards, except for California, which, having regulated vehicle emission prior to passage of the CAA in 1970, was granted an exception by the CAA to continue to issue its own vehicle emission standards. Section 209 of the CAA requires that California must demonstrate to EPA that its newly adopted standards will be “. . . in the aggregate, at least as protective of public health and welfare as applicable Federal standards.”

The CAA also authorizes other states to adopt California emission standards for which EPA has granted California such a waiver of preemption. Under section 177 of the CAA, states are authorized to adopt California's standards in lieu of Federal vehicle standards, provided they do so with at least two model years lead time prior to the effective date of the standards, provided that EPA has issued a waiver of preemption to California for such standards.

EPA has adopted several iterations, or “tiers,” of Federal emissions standards since the CAA was reauthorized in 1990. When Delaware first state-adopted California's LEV standards in 2010, the Federal vehicle emission standards in effect were Tier 2 standards, which were adopted by EPA on February 10, 2000 (65 FR 6698) and implemented beginning with 2004 model year vehicles. These Federal Tier 2 standards set tailpipe emissions standards for passenger vehicles and light-duty trucks and also limited gasoline sulfur levels. The Federal Tier 3 program set more stringent vehicle emissions standards and further limited allowable sulfur content of gasoline for new cars, beginning in 2017. EPA attempted to closely harmonize the Tier 3 standards with California's most current LEV Program. EPA finalized the Tier 3 vehicle and fuel standards on April 28, 2014 (79 FR 23414).

On May 7, 2010 (75 FR 25324), EPA and the U.S. Department of Transportation's National Highway Traffic Safety Administration (NHTSA) jointly established a national program consisting of new standards for light-duty motor vehicles to reduce GHG emissions and to improve fuel economy. This program affected new passenger cars, light-duty trucks, and medium-duty passenger vehicles sold in model years 2012 through 2016. On October 15, 2012 (77 FR 62624), EPA and NHTSA issued another joint rule to further tighten GHG emission standards for model years 2017 through 2025. The Federal GHG standards were harmonized with similar GHG standards set by California, to ensure that automobile manufacturers would face a single set of national emissions standards to meet both Federal and California emissions requirements.

In 1990, California's Air Resources Board (CARB) adopted LEV standards applicable to light- and medium-duty vehicles and phased-in beginning with model year 1994 vehicles. In 1999, California adopted a second generation of LEV standards, known as LEV II, which were phased-in beginning model year 2004 through model year 2010. EPA waived Federal preemption for California's LEV II program on April 22, 2003 (68 FR 19811).

This LEV II program reduced emissions in a similar manner to the Federal Tier 2 program by use of declining fleet average non-methane organic gas (NMOG) emission standards, applicable to each vehicle manufacturer each year. Separate fleet average standards were not established for NOX, CO, PM, or formaldehyde as these emissions are controlled as a co-benefit of the NMOG fleet average (fleet average values for these pollutants are set by the certification standards for each set of California prescribed certification standards.) These allowable sets of standards ranged from LEV standards (the least stringent standard set) to Zero Emission Vehicle (ZEV) standards (the most stringent standard set). California's LEV II program established various other standards: The Ultra-Low Emission Vehicles (ULEV), Super-Ultra Low Emission Vehicles (SULEV), Partial Zero Emission Vehicles (PZEV), and Advanced Technology-Partial Zero Emission Vehicles (AT-PZEV). Each manufacturer complied by demonstrating that its own sales-weighted average of these respective categories of standards fell below overall program standards.

In January 2012, California approved a new LEV program for model years 2017 through 2025, called the Advanced Clean Cars Program, or the LEV III program. The program combines control of smog, soot, and GHG emissions with requirements for greater numbers of ZEV vehicles into a single program. LEV III regulations apply to light-duty vehicles, light-duty trucks, and medium-duty passenger vehicles. The program was phased in beginning with vehicles certified in model year 2015, with all vehicles meeting LEV III standards by model year 2020. Amendments to California's ZEV requirements added flexibility to California's existing ZEV program for 2017 and earlier model years, and establish new sales and technology requirements starting with the 2018 model year. The LEV III amendments establish more stringent criteria and GHG emission standards starting with the 2015 and 2017 model years, respectively. The California GHG standards are almost identical in stringency and structure to the Federal GHG standards for model years from 2017 to 2025. Additionally, on December 2012, California adopted a “deemed to comply” regulation that enables manufacturers to show compliance with California GHG standards by demonstrating compliance with Federal GHG standards. On June 9, 2013 (78 FR 2112), EPA granted a Federal preemption waiver for California's Advanced Clean Cars Program. California's LEV III program rules are codified in Title 13 of the California Code of Regulations (CCR), under Division 3.

Delaware first adopted California's LEV II program via a Delaware LEV program regulation (7 DE Admin Code 1140) adopted on November 9, 2010, effective with 2014 and newer model year passenger cars and trucks and medium-duty vehicles titled in Delaware. Prior to that, Delaware participated in the National Low Emission Vehicle (NLEV) program—a voluntary, nationwide clean car program promulgated by EPA, in conjunction with auto manufacturers and states, which allowed for more stringent vehicle standards than prescribed by Federal law. However, the program expired with the promulgation by EPA of more stringent Tier II motor vehicle standards, which were sold beginning in model year 2004. Therefore, the Delaware LEV program effectively superseded Federal Tier 2 vehicle standards beginning with model year 2014. However, Delaware did not submit the 2010 version of its LEV program rule (7 DE Admin. Code 1140) to EPA as a SIP revision request to EPA at that time, and the SIP was not amended at that time to replace the defunct NLEV program with the Delaware LEV program.

On August 20, 2014, Delaware submitted a SIP submittal requesting that EPA amend the Delaware SIP to incorporate the state's LEV program. Delaware adopted revisions to its Delaware LEV program, which was originally adopted in December of 2010, on November 15, 2013 and published the revised regulation in the Delaware Register of Regulations on December 1, 2013 (effective December 11, 2013). This revised version of Regulation 1140 serves to incorporate by reference California's more recent LEV III standards and GHG standards applicable to model year 2015 to 2025 LEV-subject vehicles. At the same time, Delaware rescinded requirements that could prospectively and automatically force incorporation of future California LEV rule changes to Delaware's LEV program, without being subject to rulemaking under Delaware's regulatory process.

EPA is incorporating by reference Delaware's entire Regulation 1140 Delaware Low Emission Vehicle Program (7 DE Admin. Code 1140, effective date December 11, 2013). Section 10.0 of Regulation 1140 lists the applicable sections of Title 13 of the California Code of Regulations that comprise California's LEV III program which Delaware has incorporated by reference as part of state adoption process of Delaware's LEV program. Future changes made by California to its LEV program will require additional regulatory action on the part of Delaware and a SIP revision request to EPA to amend the Delaware SIP, in the event that Delaware wishes to include such changes to its program.

Since Delaware's LEV program Regulation 1140 is codified in the same regulatory section as the prior Delaware NLEV program, the action to approve Delaware's request to revise the SIP to incorporate the LEV program for the first time will have the effect of superseding the prior SIP-approved, defunct NLEV program in the Delaware SIP. See 62 FR 72564, (December 28, 1999). Thus, this action also removes Delaware's prior approved NLEV rule from the SIP and replaces it with the most recently amended version of Regulation 1140, state effective December 11, 2013.

EPA is approving Delaware's August 20, 2014 SIP submittal pertaining to adoption by Delaware of a LEV program as a revision to the Delaware SIP. The CAA authorizes states to adopt California's vehicle standards for which EPA has granted California a waiver of preemption from Federal vehicle standards that would otherwise apply. In this case, Delaware has already adopted California LEV III emission standards and has begun implementing the program. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of this Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 14, 2015 without further notice unless EPA receives adverse comment by November 13, 2015. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

In this rulemaking action, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is incorporating by reference Delaware's LEV Program codified at 7 DE Admin. Code 1140 (effective date of December 11, 2013) 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 CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 14, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action. This action to approve Delaware's LEV Program SIP revision request may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Persons potentially affected by this action include those who seek or might seek permits or approval to dispose of dredged material into ocean waters pursuant to the Marine Protection, Research, and Sanctuaries Act, as amended (MPRSA), 33 U.S.C. 1401 to 1445. The EPA's action would be relevant to persons, including organizations and government bodies seeking to dispose of dredged material in ocean waters offshore of Jacksonville, Florida. Currently, the U.S. Army Corps of Engineers (USACE) would be most affected by this action. Potentially affected categories and persons include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding persons likely to be affected by this action. For any questions regarding the applicability of this action to a particular person, please refer to the contact person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

The existing Jacksonville ODMDS is located approximately 5 nautical miles (nmi) southeast of the mouth of the St. Johns River on the continental shelf off the east coast of Florida. It is currently 1 nmi by 1 nmi (1 nmi2) in size. Since 1952, the area now designated as the Jacksonville ODMDS and vicinity has been used for disposal of dredged material (e.g., sand, silt, clay, rock) primarily from the Jacksonville Harbor Navigation Project, Naval Station Mayport entrance channel, and Naval Station Mayport turning basin. The Jacksonville ODMDS received interim site designation status in 1977 and final designation in 1983.

The USACE Jacksonville District and the EPA Region 4 have identified a need to either designate a new ODMDS or expand the existing Jacksonville ODMDS. The need for expanding current ocean disposal capacity is based on observed mounding at the Jacksonville ODMDS, future capacity modeling, historical dredging volumes, estimates of dredging volumes for future proposed projects, and limited capacity of upland confined disposal facilities (CDFs) in the area. This section discusses in detail the current and future capacity issues at the existing Jacksonville ODMDS and CDFs.

The expansion of the ODMDS for dredged material does not mean that the USACE or the EPA has approved the use of the ODMDS for open water disposal of dredged material from any specific project. Before any person can dispose dredged material at the ODMDS, the EPA and the USACE must evaluate the project according to the ocean dumping regulatory criteria (40 CFR, part 227) and authorize the disposal. The EPA independently evaluates proposed dumping and has the right to restrict and/or disapprove of the actual disposal of dredged material if the EPA determines that environmental requirements under the MPRSA have not been met.

This action proposes the expansion of the ocean dredged material site offshore of Jacksonville, Florida. The location of the expanded ocean dredged material disposal site is bounded by the coordinates, listed below, and shown in Figure 1. The expansion of the ODMDS will allow the EPA to adaptively manage the ODMDS to maximize its capacity, minimize the potential for mounding and associated safety concerns, potentially create hard bottom habitat and minimize the potential for any long-term adverse effects to the marine environment.

The coordinates for the site are, in North American Datum 83 (NAD 83):

(A) 30°21.514′ N. 81°18.555′ W.

(B) 30°21.514′ N. 81°17.422′ W.

(C) 30°20.515′ N. 81°17.422′ W.

(D) 30°20.515′ N. 81°17.012′ W.

(E) 30°17.829′ N. 81°17.012′ W.

(F) 30°17.829′ N. 81°18.555′ W

The expanded ODMDS is located in approximately 28 to 61 feet of water, and is located to 4.4 nmi offshore the mouth of the St. Johns River. The expanded ODMDS would be 3.7 nmi long on the west side and 2.7 nmi long on the east side. It would be 1 nmi long on the north side and 1.3 nmi wide on the south side. It would be 4.56 nmi2 in size.

On March 11, 2015, the EPA published a proposed rule to expand the site and opened a public comment period under Docket ID No. EPA-R04-OW-2014-0372. The comment period closed on April 10, 2015. The EPA received six comments on the proposed rule. One comment was from the U.S. Department of the Interior stating they have no comments at this time. One commenter was in support of the expansion as it would protect wildlife by having a specific location for disposal of dredged materials.

Two commenters raised concerns regarding impacts to endangered species and critical habitat including whales. Although located within the North Atlantic right whale critical habitat, disposal vessel speed and operation will be restricted as necessary in order to protect North Atlantic right whales as set forth in: (1) The Site Management and Monitoring Plan (SMMP) for the expanded ODMDS developed by the EPA in coordination with the USACE; and (2) an Endangered Species Act (ESA) Biological Assessment completed by the EPA. In a letter to the EPA from the National Marine Fisheries Service (NMFS) dated August 3, 2015, NMFS concluded that because all potential project effects to listed species and critical habitat were found to be discountable, insignificant, or beneficial, that the ODMDS expansion is not likely to adversely affect listed species under NMFS purview including the North Atlantic right whale. Additional discussion of compliance with the ESA is provided in section III.d of this final rule labeled “ESA.” The SMMP, the ESA Biological Assessment and the letter from NMFS dated August 3, 2015, are included in the Docket for this action.

Finally, two commenters raised concerns about the overall impacts of disposal of sediments on the ecosystem, fisheries and reefs and that additional measures should be instituted to reduce the amount of waste that needs to be disposed in the ocean. The location of the expanded ODMDS was selected to minimize impacts to the shrimp fishery in the area and to minimize impacts to hard bottom communities in the vicinity of the ODMDS. In response to these commenters, the EPA reviewed the SMMP for the expanded ODMDS to ensure that controls are in place both to prevent negative effects and to correct impacts from negative effects in the unlikely event such effects occurred. The final SMMP, found in the Docket for this action, includes safeguards to act to prevent negative effects, primarily through ensuring that only material meeting ocean dumping criteria for ocean disposal are allowed to be disposed at the expanded ODMDS. The EPA can respond to negative impacts, including, for example, having ODMDS users adjust disposal amounts, techniques, and timing, and the EPA can shut down the ODMDS on a short term or long term basis if needed, if negative effects are observed or if trends suggest negative impacts could occur. The EPA has authority to condition, terminate, or restrict ODMDS use with cause. Regarding the amount of dredged material needed to be disposed in the ocean, the USACE, rather than the EPA determines the location and amount of dredging necessary to maintain the waterways of the U.S. The EPA determines, with the USACE's input, how best to dispose of material that must be disposed of in the ocean. Part of that analysis includes a balancing community and ocean user needs. The EPA finds this ODMDS expansion to be the best balance of those needs at this time. The EPA will continue to evaluate these local community concerns and will use the SMMP to make adjustments as needed to the extent practicable, to help ensure the needs of the users are balanced against the concerns of the local community.

The expanded ODMDS is expected to receive sediments dredged by the USACE to deepen and maintain the federally authorized navigation project at Jacksonville Harbor, Florida, maintain Naval Station Mayport and dredged material from other persons who have obtained a permit for the disposal of dredged material at the ODMDS. All persons using the ODMDS are required to follow a Site Management and Monitoring Plan (SMMP) for the ODMDS. The SMMP includes management and monitoring requirements to ensure that dredged materials disposed at the ODMDS are suitable for disposal in the ocean and that adverse impacts of disposal, if any, are addressed to the maximum extent practicable. The SMMP for the expanded ODMDS, in addition to the aforementioned, also addresses management of the ODMDS to ensure adverse mounding does not occur, promotes habitat creation where possible and to ensure that disposal events minimize interference with other uses of ocean waters in the vicinity of the expanded ODMDS. The SMMP, which was available for public comment as a draft document, has been finalized and the final document may be found in the Docket.

In proposing to expand the ODMDS, the EPA assessed the proposed expanded ODMDS according to the criteria of the MPRSA, with particular emphasis on the general and specific regulatory criteria of 40 CFR part 228, to determine whether the proposed site designations satisfy those criteria. The EPA's Final Environmental Impact Statement for Designation of an Ocean Dredged Material Disposal Site Offshore Jacksonville, Florida, [October 2014] (FEIS), provides an extensive evaluation of the criteria and other related factors for the expansion of the ODMDS. The FEIS may be found in the Docket.

(1) Sites must be selected to minimize interference with other activities in the marine environment, particularly avoiding areas of existing fisheries or shellfisheries, and regions of heavy commercial or recreational navigation (40 CFR 228.5(a)).

Historical disposal of dredged material at the existing Jacksonville ODMDS has not interfered with commercial or recreational navigation, commercial fishing, or sportfishing activities. Expansion of this ODMDS is not expected to change these conditions. The expanded ODMDS avoids any identified major fisheries, natural and artificial reefs, and areas of recreational use. The expanded ODMDS is approximately 1 nmi east of the areas identified by commercial shrimpers as important shrimp trawling areas. The expanded ODMDS minimizes interference with shellfisheries by avoiding areas frequently used by commercial shrimpers. The expanded ODMDS is not expected to adversely affect recreational boating and is located outside of designated shipping/navigation channels and anchorage areas. The draft SMMP outlines ODMDS management objectives, including minimizing interference with other uses of the ocean. Should an ODMDS use conflict be identified, ODMDS use could be modified according to the SMMP to minimize that conflict.

(2) Sites must be situated such that temporary perturbations to water quality or other environmental conditions during initial mixing caused by disposal operations would be reduced to normal ambient levels or undetectable contaminant concentrations or effects before reaching any beach, shoreline, marine sanctuary, or known geographically limited fishery or shellfishery (40 CFR 228.5(b)).

Based on the EPA's review of modeling, monitoring data, sediment quality, and history of use, no detectable contaminant concentrations or water quality effects, e.g., suspended solids, would be expected to reach any beach or shoreline from disposal activities at the expanded ODMDS. The expanded ODMDS is removed far enough from shore (4.4 nmi) and fishery resources to allow water quality perturbations caused by dispersion of disposed material to be reduced to ambient conditions before reaching any environmentally sensitive areas. Dilution rates are expected to range from 140:1 to 2800:1 after four hours. The primary impact of disposal activities on water quality is expected to be temporary turbidity caused by the physical movement of sediment through the water column. All dredged material proposed for disposal will be evaluated according to the ocean dumping regulations at 40 CFR 227.13 and guidance developed by the EPA and the USACE.

(3) The sizes of disposal sites will be limited in order to localize for identification and control any immediate adverse impacts, and to permit the implementation of effective monitoring and surveillance to prevent adverse long-range impacts. Size, configuration, and location are to be determined as part of the disposal site evaluation (40 CFR 228.5(d)).

The location, size, and configuration of the expanded ODMDS allows and facilitates long-term capacity, site management, and site monitoring while limiting environmental impacts to the surrounding area to the extent possible. Based on projected future new work and maintenance dredged material disposal needs, is the USACE estimated that the new ODMDS should be approximately 4 nmi2 in size to meet the long-term (>50 years) disposal needs of the area. An ODMDS of this size should have a capacity of greater than 65 million cubic yards. The expanded ODMDS is 4.56 nmi2 in size inclusive of the existing Jacksonville ODMDS and therefore meets the long-term disposal needs of the area.

A site management and monitoring program will be implemented to determine if disposal at the ODMDS is significantly affecting adjacent areas and to detect the presence of long-term adverse effects. At a minimum, the monitoring program will consist of bathymetric surveys, sediment grain size analysis, chemical analysis of constituents of concern in the sediments, an assessment of the health of the benthic community, and an assessment of any movement of disposed dredged material offsite. The size of the expanded ODMDS is similar to that of other ocean dredged material disposal sites in the Southeastern United States. Monitoring of sites of this size have proved to be effective and feasible.

(4) EPA will, wherever feasible, designate ocean dumping sites beyond the edge of the continental shelf and other such sites where historical disposal has occurred (40 CFR 228.5(e)).

Disposal areas located off of the continental shelf would be at least 60 to 70 nautical miles offshore. This distance is well beyond the 5 to 10 nautical mile haul distance determined to be feasible by the USACE for maintenance of their Jacksonville Harbor project. Additional disadvantages to off-shelf ocean disposal would be the unknown environmental impacts of disposal on deep-sea, stable, fine-grained benthic communities and the higher cost of monitoring sites in deeper waters and further offshore.

Historic disposal has occurred at the location for the expanded ODMDS. The substrate of the expanded ODMDS is similar grain size to the disposal material.

(1) Geographical Position, Depth of Water, Bottom Topography and Distance from Coast (40 CFR 228.6(a)(1)).

The EPA does not anticipate that the geographical position of the expanded ODMDS, including the depth, bottom topography and distance from the coastline, will unreasonably degrade the marine environment. The expanded ODMDS is located on the shallow continental shelf off northeast Florida and is 7.1 nautical miles southeast of the mouth of the St. Johns River. Depths within the expansion area of the ODMDS range from 43 to 66 feet (13 to 20 meters) with an average depth of 57 feet (17 meters). To help avoid adverse mounding at the expanded ODMDS, bathymetry will be routinely monitored following disposal activities and disposal locations modified as necessary. In this way, mounding that could create a navigation hazard will be avoided. Material disposed in the expanded ODMDS is not expected to move from the expanded ODMDS except during large storm events.

(2) Location in Relation to Breeding, Spawning, Nursery, Feeding, or Passage Areas of Living Resources in Adult or Juvenile Phases (40 CFR 228.6(a)(2)).

The expanded ODMDS is located within the North Atlantic right whale critical habitat. The coastal waters off Georgia and northern Florida are the only known calving ground for the North Atlantic right whale between November and April. The expansion of the ODMDS is not expected to alter the critical habitat. Disposed dredged material will settle out of the water column to the benthos, which is not considered part of the critical habitat. Disturbances from ships transiting through the area would not be significantly different from normal vessel operations that occur daily in the project area, although during dredging activities there would be an increase in vessel activity in the areas between the river entrance and the expanded ODMDS which may lead to an increase risk of animal collisions. Observance of critical habitat designations and the North Atlantic right whale Early Warning System should mitigate for this potential increase.

The expanded ODMDS is not located in exclusive breeding, spawning, nursery, feeding or passage areas for adult or juvenile phases of living resources. The most active fish breeding and nursery areas are located in inshore estuarine waters, along adjacent beaches, or in nearshore reef areas. At and in the immediate vicinity of the expanded ODMDS, spawning and migrating adult penaeid shrimp may be present. However, as much of the dredged material will consist of silts and clays, it appears likely that the area will remain suitable for penaeid shrimp.

(3) Location in Relation to Beaches and Other Amenity Areas (40 CFR 228.6(a)(3)).

The ODMDS is approximately 4.4 nmi from coastal beaches and protected inshore waters. Shore-related amenities include Nassau River-St. Johns River Marshes Aquatic Preserve, Little Talbot Island State Park, Kingsley Plantation Historic Monument, and Fort Caroline National Memorial. These amenity areas are outside the area to be affected by disposal in the expanded ODMDS. The ODMDS is approximately 4 to 5 nmi west of the nearest artificial reef or fishing hotspots.

(4) Types and Quantities of Wastes Proposed to be Disposed of, and Proposed Methods of Release, including Methods of Packing the Waste, if any (40 CFR 228.6(a)(4)).

Dredged material found suitable for ocean disposal pursuant to the regulatory criteria for dredged material, or characterized by chemical and biological testing and found suitable for disposal into ocean waters, will be the only material allowed to be disposed at the expanded ODMDS. No material defined as “waste” under the MPRSA will be allowed to be disposed at the ODMDS. The dredged material to be disposed at the expanded ODMDS will be a mixture of rock, sands, silts and clays. Annual average quantities are expected to range 0.5 to 1.1 million cubic yards. 18 million cubic yards is expected to be disposed from the Jacksonville Harbor Deepening Project. Generally, disposal is expected to occur from a hopper dredge or disposal scow, in which case, material will be released just below the surface while the disposal vessel remains underway and slowly transits the disposal location.

(5) Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5)).

The EPA expects monitoring and surveillance at the expanded ODMDS to be feasible and readily performed from ocean or regional class research vessels. The expanded ODMDS is of similar size, water depth and distance from shore of a majority of the ODMDSs within the Southeastern United States which are routinely monitored. The EPA will ensure monitoring of the ODMDS for physical, biological and chemical attributes as well as for potential impacts beyond the ODMDS boundaries. Bathymetric surveys will be conducted routinely as defined in the SMMP, contaminant levels in the dredged material will be analyzed prior to dumping, and the benthic infauna and epibenthic organisms will be monitored every 10 years, as funding allows.

(6) Dispersal, Horizontal Transport and Vertical Mixing Characteristics of the Area, including Prevailing Current Direction and Velocity, if any (40 CFR 228.6(a)(6)).

Waves are predominately out of the east and a few exceed 2 meters (6.6 feet) in height or 15 seconds (s) in period. Waves are the primary factor influencing re-suspension of disposed dredged material, and currents probably affect the direction and magnitude of transport. Currents flow predominately in a north-northwest and south-southeast direction and rarely exceeds 30 cm/s in magnitude. Modeling and monitoring conducted at the existing ODMDS has shown that the net direction of transport is to the south. Dilution rates due to mixing are expected to range from 140:1 to 2800:1 after four hours.

(7) Existence and Effects of Current and Previous Discharges and Dumping in the Area (including Cumulative Effects) (40 CFR 228.6(a)(7)).

The areas within the vicinity of the Jacksonville ODMDS have been in use since 1952 for disposal of dredged material (e.g., sand, silt, clay, gravel, shell, and some rock) from the Jacksonville Harbor Navigation Project and the Naval Station Mayport entrance channel and turning basin. The Jacksonville ODMDS received interim site designation status in 1977 and final designation in 1983. Prior to 1970 and in the early 1970s, material was disposed in an area 0.5 nmi east of the Jacksonville ODMDS. In the late 1970s material was unintentionally disposed south of the ODMDS. Water column chemistry in past studies at the ODMDS has typically shown little or no impact due to dredged material disposal. Sediment analysis in the late 1970s showed higher concentrations of certain heavy metals (nickel, copper, zinc, lead, and chromium), Kjeldahl nitrogen, and organic carbon in sediments within the ODMDS versus outside the ODMDS. Sediment analysis as part of a 1995 benthic survey showed that, in general, metal concentrations within the ODMDS remained elevated compared to concentrations outside the ODMDS. However, concentrations within the ODMDS have decreased since 1978 and, based on a 1998 study, continue to decrease. The average percentage of silts and clays at stations within the ODMDS exceeds that of stations outside the ODMDS, but has decreased both inside and outside the ODMDS since. A 2009 study documented tri-n-butyltin, di-n-butyltin, and n-butyltin present at sampling stations both inside and outside the Jacksonville ODMDS. Benthic infaunal community studies at the existing Jacksonville ODMDS have showed that communities remain diverse with no significant changes. The normal equilibrium benthic community in the area consists of surface-dwelling suspension feeders that are pre-adapted to energetic sandy environments.

(8) Interference with Shipping, Fishing, Recreation, Mineral Extraction, Desalination, Fish and Shellfish Culture, Areas of Special Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR 228.6(a)(8)).

The expanded ODMDS is not expected to interfere with shipping, fishing, recreation or other legitimate uses of the ocean. Commercial navigation, commercial fishing, and mineral extraction (sand mining) are the primary activities that may spatially overlap with disposal at the expanded ODMDS. The expanded ODMDS avoids the National Oceanographic and Atmospheric Administration (NOAA) recommended vessel routes offshore Jacksonville, Florida, thereby avoiding conflict with commercial navigation.

Commercial fishing (shrimp trawling) occurs primarily to the west of the expanded ODMDS. The northern portion of the expanded ODMDS encompasses areas with rubble and other debris that commercial shrimp trawlers avoid due to potential damage to their shrimp nets. The southern portion of the expanded ODMDS includes areas used for commercial shrimp trawling. The expanded ODMDS will be managed such that rock will be disposed in the eastern portion of the expanded ODMDS outside of the fishing area and finer grained material (silts/clays) will be disposed in the western portion. Additionally, the southern portion will only be used if the northern portion has reached capacity.

Potential sand borrow areas have been identified to the east of the expanded ODMDS. The expanded ODMDS will be managed to avoid impacts to these areas. Only rock and sand will be disposed in the eastern portions of the expanded ODMDS providing a buffer between the disposal of silts and clays and the potential borrow areas. The nearest potential borrow area is adjacent to the southern half of the expanded ODMDS. This borrow area is expected to be exhausted prior to use of the southern portion of the expanded ODMDS as the southern portion will only be used if the northern portion has reached capacity.

The likelihood of direct interference with these activities is low, provided there is close communication and coordination among users of the ocean resources. The EPA is not aware of any plans for desalination plants, or fish and shellfish culture operations near the expanded ODMDS at this time. The expanded ODMDS is not located in areas of special scientific importance.

(9) The Existing Water Quality and Ecology of the Sites as Determined by Available Data or Trend Assessment of Baseline Surveys (40 CFR 228.6(a)(9)).

Spring and fall season baseline surveys were conducted in 2010 at the expanded ODMDS. Water quality was determined to be good with no evidence of degradation. No hypoxia conditions were observed and all chemical constituents were below EPA national recommended water quality criteria for salt water. Annelid worms, arthropods, echinoderms, gastropods, and bivalves are common benthic taxonomic groups. The Atlantic croaker, spotted hake, searobins, drums, and sand flounders are common fish species. Important mollusks include transverse and ponderous arks, mussels, and Atlantic calico scallops.

(10) Potentiality for the Development or Recruitment of Nuisance Species in the Disposal Site (40 CFR 228.6(a)(10)).

Nuisance species, considered as any undesirable organism not previously existing at a location, have not been observed at, or in the vicinity of, the expanded ODMDS. Material expected to be disposed at the expanded ODMDS will be rock, sand, silt and clay similar to the sediment present at the expanded ODMDS. Finer-grained material could have the potential to attract different species to the expanded ODMDS then currently exist as was documented following disposal of significant amounts of silts and clays from deepening of Naval Station Mayport. However, it is expected that over time, as current and wave energy transports the finer-grained sediments away, the normal equilibrium benthic community will re-establish itself. The SMMP includes benthic infaunal monitoring requirements, which will act to identify any nuisance species and allow the EPA to direct special studies and/or operational changes to address the issue if it arises.

(11) Existence at or in Close Proximity to the Site of any Significant Natural or Cultural Feature of Historical Importance (40 CFR 228.6(a)(11)).

No significant cultural features have been identified at, or in the vicinity of, the expanded ODMDS at this time. Archaeological surveys of the expanded ODMDS were conducted in 2011 and 2012. The survey identified three sub-bottom features and one magnetic cluster. Archaeological divers investigated these targets and determined that they did not represent significant cultural features of historical or prehistorical importance. The EPA has coordinated with Florida's State Historic Preservation Officer (SHPO) to identify any cultural features. The SHPO concurred with the EPA's determination that the expansion of the ODMDS will have no effect on cultural resources listed, or eligible for listing on the National Register of Historic Places. No shipwrecks have been observed or documented within the expanded ODMDS or its immediate vicinity.

The EPA corrected a clerical error that was included in the proposed language in 40 CFR 228.15(h)(9)(vi). As indicated in the preamble to the proposed rule, only dredged material from the Jacksonville, Florida area may be disposed in the ODMDS. This restriction was the only restriction specifically stated in the regulation prior to this rulemaking. The language in the proposed rule added three new restrictions to 40 CFR 228.15(h)(9)(vi) but due to a clerical error did not include the existing restriction. The final rule language reflects all four restrictions for disposal of dredged material into the ODMDS.

Section 102 of the National Environmental Policy Act of 1969, as amended (NEPA), 42 U.S.C. 4321 to 4370f, requires Federal agencies to prepare an Environmental Impact Statement (EIS) for major federal actions significantly affecting the quality of the human environment. NEPA does not apply to EPA designations of ocean disposal sites under the MPRSA because the courts have exempted the EPA's actions under the MPRSA from the procedural requirements of NEPA through the functional equivalence doctrine. The EPA has, by policy, determined that the preparation of NEPA documents for certain EPA regulatory actions, including actions under the MPRSA, is appropriate. The EPA's “Notice of Policy and Procedures for Voluntary Preparation of NEPA Documents,” (Voluntary NEPA Policy), 63 FR 58045, (October 29, 1998), sets out both the policy and procedures the EPA uses when preparing such environmental review documents. The EPA's primary voluntary NEPA document for expanding the ODMDS is the Final Environmental Impact Statement for Designation of an Ocean Dredged Material Disposal Site Offshore Jacksonville, Florida, [October 2014] (FEIS), prepared by the EPA in cooperation with the USACE. On October 17, 2014, the Notice of Availability (NOA) of the FEIS for public review and comment was published in the Federal Register (79 FR 62436 [October 17, 2014]). Anyone desiring a copy of the FEIS may obtain one from the addresses given above. The public comment period on the FEIS closed on November 17, 2014. The FEIS and its Appendices, which are part of the Docket for this action, provide the threshold environmental review for expansion of the ODMDS. The information from the FEIS is used above, in the discussion of the ocean dumping criteria.

The EPA prepared an essential fish habitat (EFH) assessment pursuant to Section 305(b), 16 U.S.C. 1855(b)(2), of the Magnuson-Stevens Act, as amended (MSA), 16 U.S.C. 1801 to 1891d, and submitted that assessment to the National Marine Fisheries Service (NMFS) on May 11, 2012. The NMFS provided EFH Conservation Recommendations and a request for additional information on July 11, 2012. The EPA prepared an interim response with the requested additional information on August 2, 2012 and a revised EFH Assessment for the preferred alternative on October 6, 2014. In a letter dated January 5, 2015, NMFS determined that the EPA and the USACE have provided the substantive justification required by 50 CFR 600.920(k) for not following EFH conservation recommendations.

Pursuant to an Office of Water policy memorandum dated October 23, 1989, the EPA has evaluated the site designations for consistency with the State of Florida's (the State) approved coastal management program. The EPA has determined that the designation of the ODMDS is consistent to the maximum extent practicable with the State coastal management program, and submitted this determination to the State for review in accordance with the EPA policy. The State concurred with this determination on November 17, 2014. In addition, as part of the NEPA process, the EPA has consulted with the State regarding the effects of the dumping at the ODMDS on the State's coastal zone. The EPA has taken the State's comments into account in preparing the FEIS for the ODMDS, in determining whether the ODMDS should be designated, and in determining whether restrictions or limitations should be placed on the use of the ODMDS, if they are designated. The EPA modified Alternative 1 to address the State's concern regarding potential impacts to hard bottom benthic habitat and has incorporated management and monitoring requirements into the SMMP to ensure that disposed dredged materials do not negatively affect important benthic resources and sand borrow areas located outside of the designated ODMDS boundaries. Furthermore, at the request of the State, the EPA has conducted an evaluation of recently designated critical habitat for the loggerhead sea turtle.

The Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 to 1544, requires Federal agencies to consult with NMFS and the U.S. Fish and Wildlife Service (USFWS) to ensure that any action authorized, funded, or carried out by the Federal agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of any critical habitat. The EPA prepared a Biological Assessment (BA) to assess the potential effects of expanding the Jacksonville ODMDS on aquatic and wildlife species and submitted that BA to the NMFS and USFWS on October 6, 2014. A supplement to the BA addressing loggerhead critical habitat was submitted on January 15, 2015. The EPA concluded that its action may affect, but is not likely to adversely affect 10 ESA-listed species and is not likely to adversely affect designated critical habitat for the North Atlantic right whale or the loggerhead sea turtle. The USFWS concurred on the EPA's finding that the action is not likely to adversely affect listed endangered or threatened species under the jurisdiction of the USFWS.

The informal consultation process with NMFS was concluded on August 3, 2015. NMFS concluded that dredged disposal activities at the Jacksonville ODMDS are not likely to adversely affect sea turtles, sturgeon, or whales. The Jacksonville ODMDS is located within Unit 2 of the proposed modifications to the designated critical habitat for the North Atlantic right whale. North Atlantic right whales are observed calving off the southeastern U.S. coast, in an area designated as Unit 2 of the proposed critical habitat. The essential features of right whale calving habitat are calm sea surface conditions, sea surface temperature, and depth. The NMFS concluded that neither the dredging, related vessel operations, nor the disposal of dredged material will significantly impact water depth, sea surface conditions, or the temperature of the ocean. While the ODMDS will decrease water depths, the elevated sea bottom will not impede whales in any way. Water depths will still be sufficient for the animals to move freely throughout the habitat. Furthermore, the likelihood of interaction which may impact the distribution of right whale calf/cow pairs is further reduced by the precautions stipulated for vessel avoidance. These precautions are required as part of the SMMP and restrict disposal vessel speed and operation in accordance with the most recent USACE South Atlantic Division Endangered Species Act Section 7 Consultation Regional Biological Opinion for Dredging of Channels and Borrow Areas in the Southeastern United States (SARBO), or other relevant Biological Opinion for specific projects not included in the SARBO to capture requirements for projects not covered by the SARBO. Because all potential project effects to listed species and critical habitat were found to be discountable, insignificant, or beneficial, NMFS concluded that the action is not likely to adversely affect listed species under their purview.

The USACE and the EPA initiated consultation with the State of Florida's Historic Preservation Officer (SHPO) on November 24, 2010, to address the National Historic Preservation Act, as amended (NHPA), 16 U.S.C. 470 to 470a-2, which requires Federal agencies to take into account the effect of their actions on districts, sites, buildings, structures, or objects, included in, or eligible for inclusion in the National Register of Historic Places (NRHP). A submerged cultural resource survey of the area including the use of magnetometer, side scan sonar, and sub-bottom profiler was conducted in 2011. A follow-up archaeological diver investigation was conducted in 2012. No historic properties were found within the expanded ODMDS boundaries and SHPO concurred with the determination that designated the expanded ODMDS would have no effect on cultural resource listed, or eligible for listing on the NRHP.

This rule proposes the designation of an expanded ODMDS pursuant to Section 102 of the MPRSA. This action complies with applicable executive orders and statutory provisions as follows:

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This site designation does not require persons to obtain, maintain, retain, report, or publicly disclose information to or for a Federal agency.

The Regulatory Flexibility Act (RFA) generally requires Federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business defined by the Small Business Administration's size regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. The EPA determined that this action will not have a significant economic impact on small entities because the rule will only have the effect of regulating the location of site to be used for the disposal of dredged material in ocean waters. After considering the economic impacts of this rule, I certify that this action will not have a significant economic impact on a substantial number of small entities.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1531 to 1538, for State, local, or tribal governments or the private sector. This action imposes no new enforceable duty on any State, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA. This action is also not subject to the requirements of section 203 of the UMRA because it contains no regulatory requirements that might significantly or uniquely affect small government entities. Those entities are already subject to existing permitting requirements for the disposal of dredged material in ocean waters.

This action does not have federalism implications. It does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between the EPA and State and local governments, the EPA specifically solicited comments on this action from State and local officials.

This action does not have tribal implications, as specified in Executive Order 13175 because the expansion of the Jacksonville ODMDS will not have a direct effect on 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. Thus, Executive Order 13175 does not apply to this action. Although Executive Order 13175 does not apply to this action the EPA consulted with tribal officials in the development of this action, particularly as the action relates to potential impacts to historic or cultural resources. The EPA specifically solicited comment from tribal officials. The EPA did not receive comments from tribal officials.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under Section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. The action concerns the expansion of the Jacksonville ODMDS and only has the effect of providing a designated location for ocean disposal of dredged material pursuant to Section 102(c) of the MPRSA.

This action is not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355) because it is not a “significant regulatory action” as defined under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272), directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action includes environmental monitoring and measurement as described in EPA's SMMP. The EPA will not require the use of specific, prescribed analytic methods for monitoring and managing the designated ODMDS. The Agency plans to allow the use of any method, whether it constitutes a voluntary consensus standard or not, that meets the monitoring and measurement criteria discussed in the SMMP.

Executive Order 12898 (59 FR 7629) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. The EPA determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The EPA has assessed the overall protectiveness of expanding the Jacksonville ODMDS against the criteria established pursuant to the MPRSA to ensure that any adverse impact to the environment will be mitigated to the greatest extent practicable. We welcome comments on this action related to this Executive Order.

For the reasons set out in the preamble, the EPA amends chapter I, title 40 of the Code of Federal Regulations as follows:

Background

The March 10, 2015, final rule (80 FR 12567) set catch limit specifications for 2015-2016 (overfishing limits (OFLs), acceptable biological catches (ABCs), and annual catch limits (ACLs)), and established management measures designed to keep catch within the ACLs. As part of that final rule, consistent with the Council's recommendations and described in the preamble to that rule, NMFS shortened the recreational fishing season for California scorpionfish. In 2014, the California scorpionfish fishery was open year-round and harvest was higher than anticipated, exceeding the California scorpionfish ACL. The season length was shortened by four months to prevent harvest from exceeding the ACL in 2015 and beyond.

The March 10, 2015, final rule closed the recreational California scorpionfish fishery early in three of the four applicable management areas, but inadvertently left the California scorpionfish fishery open year-round in one of the four management areas. The change to the California scorpionfish season length in the Southern Management Area was mistakenly omitted. This action changes the season dates for the California scorpionfish fishery in the Southern Management Area at § 660.360(c)(3)(v)(A)(4), closing the fishery September 1 through December 31.

The recreational rockfish conservation area (RCA) is a seasonal depth-based closure that prohibits recreational fishing for groundfish species seaward of a boundary line approximating a depth contour. The depth at which the RCA begins the closure varies by management area (i.e. the RCA closes seaward of the 30 fm line in the San Francisco Management Area and closes seaward of the 40 fm line in the Central Management Area (§ 660.360)(c)(3)(i)(A)(3) and (4)). Because the recreational RCA applies to various groundfish species and species groups, seasonal depth restrictions are described separately from the fishing seasons for groundfish species and species groups. For the most part, the seasonal depth restrictions apply during the times that the fishing seasons for groundfish species and species groups are open. If the RCA has not closed an area, fishing is not necessarily allowed for a species or species group if the season for that species or species group is closed. Accordingly, in addition to the change in season dates for California scorpionfish described above, this action also clarifies this point in the recreational RCA regulations, as described below.

The September 1 through December 31 closure of the California scorpionfish fishing season applies in all areas, including the cowcod conservation areas (CCAs) and the areas that are open outside the depth-based recreational RCAs. Clarifying edits to this effect in the recreational RCA regulations were mistakenly omitted in the final rule. Regulations at § 660.360(c)(3)(i)(A)(5) published in the March 10, 2015, final rule stated that “Recreational fishing for California scorpionfish south of 34°27′ N. lat. is prohibited seaward of a boundary line approximating the 60 fm (109.7 m) depth contour from January 1 through December 31. . .”. It could be interpreted that this means that recreational fishing for California scorpionfish is open in the Southern Management Area year-round, as long as fishing occurs shoreward of the boundary line approximating the 60 fm (109.7 m) depth contour. This is not the case, given the applicable season dates for California scorpionfish at § 660.360(c)(3)(v) that are cited earlier in the paragraph. Clarifying changes to the RCA regulations at § 660.360(c)(3) and (c)(3)(i)(A) are made to clearly state that that only “when the fishing season is open” can you retain California scorpionfish in the areas not closed by the recreational RCA. Added regulatory text clarifies that retention of groundfish species or species groups for which the season is closed is prohibited in the recreational fishery seaward of California all year in all areas, “unless otherwise authorized in this section,” and makes no change in how current regulations apply.

The Assistant Administrator (AA) for Fisheries, NOAA, finds that pursuant to 5 U.S.C.553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and would be contrary to the public interest. This correcting amendment implements regulations as recommended by the Council, brings consistency between Federal and State regulations, and implements the season dates that were described in the preambles to the harvest specification and management measures proposed (80 FR 687, January 6, 2015) and final rules (80 FR 12567, March 10, 2015). NMFS announced to the public January 6, 2015 (80 FR 687, 696) that the Council had recommended an early closure of the recreational fishery for California scorpionfish, that regulations at § 660.360(c)(3) would be modified, and requested public comment on the potential changes that would be incorporated into regulations in the final rule. No comments regarding the shortened recreational California scorpionfish seasons were received. In the final rule, NMFS described changes from the proposed rule with regards to the recreational fishing regulations for California scorpionfish (80 FR 12567, 12569) and made the appropriate changes to regulations for three of the four management areas. The correction this rule makes to regulatory text at § 660.360(c)(3)(v)(A)(4) is consistent with changes that NMFS has already taken public comment on, therefore further notice and opportunity for public comment on this change is unnecessary. The minor correction to regulatory text at § 660.360(c)(3)(v)(A)(4) is limited in its effect to the public because California State regulations already prohibit fishing for California scorpionfish from September 1 through December 31 in all management areas, including the Southern Management Area that is the subject of this action. The minor edits to § 660.360(c)(3) introductory text, (c)(3)(i)(A) introductory text and (c)(3)(i)(A)(5) make no changes to the effect of the regulations, but clarify that fishers cannot retain species for which the season is closed, even if they are fishing in an area that is generally open to recreational fishing for other groundfish species. It would be contrary to the public interest to delay implementation of the minor corrections in this rule because they will reduce confusion caused by inconsistency in State and Federal regulations. For the reasons above, the AA also finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness and makes this rule effective immediately upon publication. This rule is exempt from the procedures of the Regulatory Flexibility Act (RFA) because the rule is issued without opportunity for prior notice and opportunity for public comment. Therefore, RFA analysis is not required and none has been prepared.

For the reasons set out in the preamble, 50 CFR part 660 is corrected by making the following correcting amendments:

NMFS is specifying a catch limit of 2,000 mt of longline-caught bigeye tuna for the CNMI in 2015. NMFS is also authorizing the territory to allocate up to 1,000 mt of its 2,000 mt bigeye tuna limit to U.S. longline fishing vessels permitted to fish under the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (FEP). The Western Pacific Fishery Management Council recommended these specifications.

NMFS will monitor catches of longline-caught bigeye tuna by the CNMI longline fisheries, including catches made by U.S. longline vessels operating under specified fishing agreements. A specified fishing agreement must meet specific criteria set forth in 50 CFR 665.819—Territorial catch and fishing effort limits, which also governs the procedures for attributing longline-caught bigeye tuna. When NMFS projects a territorial catch or allocation limit will be reached, NMFS will, as an accountability measure, prohibit the catch and retention of longline-caught bigeye tuna by vessels in the applicable territory (if the territorial catch limit is projected to be reached), and/or vessels in a specified fishing agreement (if the allocation limit is projected to be reached). These catch and allocation limits and accountability measures are identical to those that NMFS specified in 2014 (79 FR 64097, October 28, 2014). NMFS notes that there is a pending case in litigation—Conservation Council for Hawai‘i, et al., v. NMFS (D. Haw.), case no. 14-cv-528—that challenges the framework process allowing the U.S. Pacific Island territories to allocate a portion of their bigeye tuna catch limit to U.S. longline fishing vessels.

You may find additional background information on this action in the preamble to the proposed specifications published on August 24, 2015 (80 FR 51193).

On August 24, 2015, NMFS published the proposed specifications and request for public comments (80 FR 51193); the comment period closed on September 8, 2015. NMFS received comments from individuals, businesses, and non-governmental organizations on the proposed specifications and the draft EA.

NMFS responds to comments on the proposed specifications, as follows:

Comment 1: Several commenters expressed concerns that the current closure of the western and central Pacific Ocean (WCPO) to longline-caught bigeye tuna is having a negative financial effect on fishing vessels and other related businesses, and has created a very unstable environment for sustaining market confidence and job security of employees in the industry.

Response: On August 5, 2015, NMFS closed the U.S. pelagic longline fishery in the WCPO as a result of the fishery reaching the 2015 U.S. bigeye tuna catch limit of 3,502 mt (80 FR 44883). NMFS implemented the 2015 U.S. bigeye tuna catch limit to meet obligations of the United States under the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPF Convention), including implementation of applicable decisions by the Western and Central Pacific Fisheries Commission (WCPFC). At its Eleventh Regular Session, in December 2014, the WCPFC adopted Conservation and Management Measure (CMM) 2014-01 “Conservation and Management Measure for Bigeye, Yellowfin, and Skipjack Tuna in the Western and Central Pacific Ocean.” CMM 2014-01 is the most recent in a series of CMMs for the management of tropical tuna stocks under the purview of the WCPFC. For bigeye tuna, the stated objective of CMM 2014-01 and its predecessor CMM (i.e., CMM 2013-01) is to ensure reductions in the fishing mortality rate for bigeye tuna to a level no greater than the fishing mortality rate at maximum sustainable yield or FMSY, i.e., F/FMSY ≤ 1. CMM 2014-01 and other CMMs are available at: www.wcpfc.int/conseration-and-management-measures. Consistent with Amendment 7, NMFS will establish a limit of 2,000 mt of bigeye tuna for each U.S. Pacific territory for calendar year 2015, and allow each territory to allocate through specified fishing agreements up to 1,000 mt of its 2,000 mt bigeye tuna limit to U.S. fishing vessels permitted under the Pelagic FEP. This action would enable U.S. Pacific territories, which are not subject to catch limits under CMM 2014-01, to transfer a limited portion of quota in exchange for payments to support responsible fisheries development in the Territories, consistent with the conservation needs of the stock. We also anticipate that this action may provide limited stability to bigeye tuna markets in Hawaii and elsewhere, as well as some positive economic benefits for fishery participants, associated businesses, and net benefits to the Nation.

Comment 2: Several commenters expressed concern that, without this action, foreign imports will supply tuna and other pelagic species to the local market. These imports may be caught illegally and/or without proper regulatory oversight, and may end up replacing future landings from U.S. vessels fishing out of Hawaii.

Response: NMFS acknowledges that during the WCPO closure to U.S. pelagic longline fisheries, more foreign-caught bigeye tuna would fill Hawaii market gaps. NMFS also agrees that increasing foreign imports of bigeye tuna into Hawaii has the potential to result in negative impacts on bigeye tuna stocks. Data presented in the EA show that bigeye tuna imports into Hawaii increased markedly in 2012, primarily from a 350 percent increase in imports from the Republic of the Marshall Islands, which has access agreements with foreign longline vessels consisting mostly of Chinese longline vessels. These access agreements allow Chinese longline vessels to catch bigeye tuna in the EEZ of the Republic of the Marshall Islands, which is within Region 4, an area of the WCPO that is experiencing some of the highest fishing impacts on bigeye tuna biomass (See Fig. 1 in the EA). Data in the EA, excerpted from the 2014 WCPO bigeye tuna stock assessment, also suggest that the bigeye tuna biomass would be substantially higher in Region 4 in the absence of fishing.

Comment 3: Several commenters expressed support for the action, noting that it would benefit the Hawaii longline fishing industry, local seafood-related businesses and restaurants, and their employees.

Response: NMFS acknowledges the comment. See also response to Comment 1.

Comment 4: One commenter noted that the proposed rule includes adoption of both an annual bigeye tuna longline catch limit of 2,000 mt per year for each of the U.S. Pacific territories, with an annual transferable limit of 1,000 mt for each territory. The commenter also noted that these limits are substantially more stringent than the conservation measures adopted by the WCPFC, which do not establish any bigeye limits for the U.S. Pacific territories.

Response: NMFS agrees that the 2015 bigeye tuna longline catch limit of 2,000 mt for each U.S. Pacific territory is more stringent than the big eye tuna conservation measures adopted by the WCPFC (e.g., CMM 2014-01, CMM 2013-01, etc.). Paragraph 7 of CMM 2014-01 for example, exempts Small Island Developing States (SIDS) and Participating Territories (PT) to the WCPFC from annual catch limits. As PTs to the WCPFC, the U.S. Pacific territories of American Samoa, Guam and the CNMI, are not subject to individual bigeye tuna limits. However, consistent with the objectives of Amendment 7, the 2,000 mt bigeye tuna limit applied to the U.S. Pacific territories, in conjunction with the 1,000 mt limit available for allocation, helps to ensure the sustainability of bigeye tuna stocks.

Comment 5: One commenter expressed support for the proposed rule, but questioned whether there is a factual basis to limit each territory to a 1,000 mt allocation. The commenter noted that even if there were a demonstrated need for such limits, it would be within the sovereign rights of each territory to evaluate and reserve appropriate bigeye tuna catch when negotiating the terms of specified fishing agreements.

Response: NMFS disagrees that the U.S. Pacific territories have independent authority under the Magnuson-Stevens Act or WCPF Convention to evaluate and allocate catch of bigeye tuna. Under the Magnuson-Stevens Act, the United States exercises exclusive management authority over fishery resources in the EEZ. This action authorizes U.S. Pacific territories to enter into specified agreements to allocate a limited amount of bigeye tuna to eligible U.S. fishing vessels permitted under the Pelagic FEP, consistent with the conservation needs of the stock. Under Federal regulations implementing the Pelagic FEP, NMFS has established overall catch limits and limits available for allocation; however, within the available allocation limits, the territories exercise a limited interest to negotiate the terms of specified fishing agreements, including the amount of catch up to and including the allocation limit.

As documented in the EA, NMFS is satisfied that this action helps achieve conservation and management objectives to eliminate overfishing on bigeye tuna, consistent with regional international objectives. Limiting overall harvest of bigeye tuna is important to eliminate overfishing and sustainably manage the stock in the WCPO. Further, NMFS does not expect the limited amount available for allocation to eligible permit holders through specified fishing agreements to support fisheries development in the territories to impede those objectives to end overfishing.

Comment 6: One commenter said that in the circumstance where a specified fishing agreement with CNMI or Guam is in effect, the catch of a dual-permitted longline vessel (i.e., a vessel registered under a valid American Samoa Longline Limited Access Permit in addition to a valid Hawaii Longline Limited Access Permit) listed in the agreement that occurs outside the U.S. EEZ is attributed to American Samoa unless and until the American Samoa quota is exhausted, at which time such catch would be attributed to the territory (e.g., CNMI or Guam) identified in the agreement. Conversely, the commenter also said that in this same circumstance, NMFS would attribute the catch of a dual-permitted vessel that occurs inside the U.S. EEZ to the territory (e.g., CNMI or Guam) identified in the agreement.

Response: NMFS disagrees with that interpretation. Federal regulations at 50 CFR 300.224(c) set forth the attribution procedures for bigeye tuna caught by vessels with an American Samoa Longline Limited Access Permit. Pursuant to 50 CFR 300.224(c), attribution of high seas catch by a “dual permitted” vessel is always to the American Samoa permit unless there is a specified fishing agreement. In that case, attribution of catch (whether on the high seas or in US EEZ surrounding Hawaii) is to the applicable U.S. Pacific territory “according to the terms of the agreement to the extent the agreement is consistent with this section [300.224] and applicable law [665.819(c) of this title].” The terms of the specified fishing agreement cannot alter the attribution priority scheme. Furthermore, Federal regulations at 50 CFR 665.819(c) clarify that NMFS will attribute catch made by vessels identified in a specified fishing agreement to the applicable U.S. territory to which the agreement applies. Therefore, NMFS attributes bigeye tuna caught by any vessel identified in a specified fishing agreement to the U.S. territory to which the agreement applies, even if the vessel has a dual permit.

Comment 7: One commenter said that the proposed specifications would further undermine international efforts to eliminate overfishing of bigeye tuna and is at odds with the United States agreement to reduce its bigeye tuna catch.

Response: NMFS disagrees that this action undermines the WCPFC overfishing objectives of its bigeye tuna CMMs. As stated above, the objective of CMM 2014-01 is to ensure reduction of fishing mortality rate for bigeye tuna to a level no greater than FMSY, i.e., F/FMSY ≤ 1. The analysis in the EA demonstrates that the 1,000 mt allocation limit authorized for each U.S. Pacific territory will achieve the conservation and management objectives to eliminate overfishing on bigeye tuna, consistent with regional international objectives, without prejudicing the rights and obligations of SIDs and PTs as set forth in the CMMs. The action is further consistent with Article 30 of the Convention, which provides that the WCPFC shall give full recognition to the special requirements of developing States to this Convention, in particular SIDS, and of territories and possessions, in relation to conservation and management of highly migratory fish stocks. This action provides a mechanism for U.S. territories to develop their pelagic fisheries, without compromising conservation objectives.

Comment 8: One commenter urged NMFS to follow the WCPFC Scientific Committee's recommendation that, in order to reduce fishing mortality to FMSY levels, a 36 percent reduction in fishing mortality is required from 2008-2011 levels.

Response: NMFS disagrees. The WCPFC Scientific Committee provides recommendations and information to help ensure that the WCPFC considers the best scientific information available. The U.S. has no obligation to directly implement Scientific Committee recommendations. Doing so could place U.S. fishermen at an unfair disadvantage relative to other nations' fisheries. The WCPFC properly takes into account Scientific Committee recommendations in making its conservation and management decisions.

Comment 9: The proposed specifications would authorize Hawaii-based longliners to catch far more bigeye than ever before.

Response: Under the action, Hawaii-based longline vessels could potentially enter into specified fishing agreements with each of the three U.S. Pacific territories and harvest each territory's allocation limit of 1,000 mt of bigeye tuna, for a total of 3,000 mt. This would be in addition to the 2015 U.S. bigeye tuna limit of 3,502 mt. NMFS evaluated the potential impact of this action on WCPO bigeye tuna and is satisfied that this action helps achieve conservation and management objectives to eliminate overfishing on bigeye tuna, consistent with regional international objectives. (See also response to Comment 5.)

Comment 10: One commenter noted that in CMMs 2013-01 and 2014-01, the WCPFC established a goal of ending overfishing of bigeye tuna in the WCPO by 2017.

Response: NMFS agrees that the objective of CMM 2013-01, as carried forward in CMM 2014-01, is to end overfishing of bigeye tuna. However, NMFS disagrees with the interpretation that we must reach the objective by 2017. The language of CMM 2013-01, as carried forward in 2014-01, reads “The fishing mortality rate for bigeye tuna will be reduced to a level no greater than FMSY, i.e., F/FMSY ≤ 1. This objective shall be achieved through step by step approach through 2017 in accordance with this Measure.”

As explained in the EA, no model indicates that overfishing of bigeye tuna will end by 2017 under CMM 2014-01, with or without the proposed action. Accordingly, the second sentence more appropriately applies to the timeframe for implementing the annual step-by-step reductions in purse seine effort and longline catches, as set forth in CMM 2013-01, and as carried forward in CMM 2014-01. In fact, at the Eleventh Regular Session of the WCPFC in December 2014, the Secretariat of the Pacific Community, the scientific services provider of the WCPFC, presented a report indicating that if fully implemented, the step-by-step measures contained in CMM 2013-01 and carried forward in CMM 2014-01 for 2015, 2016, and 2017, would end overfishing of bigeye tuna by 2032. This report provides the baseline against which NMFS evaluates the impacts of the proposed action.

Comment 11: One commenter noted that on September 25, 2015, the U.S. District Court in Hawaii will hold a hearing on a motion for summary judgment relating to the Pelagic FEP Amendment 7 framework to allocate bigeye tuna catch and effort limits to the U.S. Pacific territories. The commenter argued that the proposed allocation scheme is “illegal” under the Western and Central Pacific Fisheries Implementation Act (WCPFC Implementation Act), as argued in the case Conservation Council for Hawai‘i v. NMFS, Civ. No. 14-00523 (D. Haw.), and attached various court documents supporting the plaintiffs' claims. The commenter urged NMFS to await the court's ruling before making a final decision regarding the proposed 2015 bigeye tuna specifications.

Response: Section 304(b) of the Magnuson-Stevens Act requires the Secretary to promulgate final regulations within 30 days of the end of the comment period for a proposed rule. The comment period for this action closed on September 8, 2015. Therefore, NMFS must promulgate final regulations in the Federal Register on or before October 8, 2015. There is, moreover, no certainty that the Court would render a decision on the motion before October 8, 2015. Finally, NMFS is implementing the proposed specification consistent with the Magnuson-Stevens Act, Amendment 7, and applicable WCPFC decisions. NMFS has no basis with which to lawfully delay action on the final rule.

NMFS also disagrees with the comment that the catch and allocation framework established by Amendment 7 and promulgated at 50 CFR 665.819 is “illegal” under the WCPFC Implementation Act. First, NMFS implemented Amendment 7 and the accompanying regulations under the Magnuson-Stevens Act, not the WCPFC Implementation Act (as asserted in the aforementioned litigation). Second, in approving Amendment 7 and framework regulations in 2014, NMFS reviewed both the amendment and regulations for consistency with the Magnuson-Stevens Act and its National Standards; the WCPFC Implementation Ac; Section 113 of Public Law 112-55; 125 Stat. 552 et seq., the Consolidated and Further Continuing Appropriations Act, 2012 (continued by Public Law 113-6, 125 Stat. 603, section 110, the Department of Commerce Appropriations Act, 2013); and applicable WCPFC CMMs. Finally, the Council and NMFS developed Amendment 7 and implementing regulations in response to a congressional directive.

NMFS responds to comments on the draft EA, as follows:

Comment 12: One commenter agreed with the NMFS approach of addressing a two-year period in the draft EA. This will eliminate the need for a duplicative National Environmental Policy Act (NEPA) review for the 2016 specification process.

Response: NMFS acknowledges the comment.

Comment 13: One commenter agreed that WCPFC CMMs are relevant to the NMFS determination that the Federal government is acting consistent with its international obligations. However, it is important to recognize that those international obligations are not binding domestic law unless and until the Federal government expressly incorporates them through the promulgation of Federal regulations pursuant to the WCPFC Implementation Act.

Response: NMFS generally agrees that international obligations reflected in WCPFC decisions are not enforceable until the government gives them effect by regulations implemented under the WCPFC Implementation Act.

Comment 14: One commenter suggested correcting Table 1 to reflect that the fisheries would reach the territory limits and allocations under the assumptions stated for Outcome D. The commenter also noted, however, that it is not necessary or possible to currently predict when the fisheries would reach those limits and allocations in the Outcome D scenario.

Response: Outcome D assumes that all three U.S. Pacific territories would each catch 1,000 mt of bigeye tuna (total catch of 3,000 mt) in 2015 and 2016, and that U.S. pelagic fisheries would harvest each of the territory's allocation limit of 1,000 mt of bigeye tuna under three specified fishing agreements (3,000 mt). However, NMFS does not expect all three U.S. Pacific territories will each catch 1,000 mt of bigeye tuna. This is because Guam and CNMI currently do not have an active longline fishery and vessels operating in the longline fisheries of American Samoa harvest an annual average of 521 mt of bigeye tuna. Therefore, it is unlikely longline fisheries of these territories will each catch 1,000 mt of bigeye tuna in 2015 or 2016. However, because Outcome D represents the full potential impact of the Council's recommendation, and given that the development of U.S. territorial fisheries is an objective of this action, the scenario in Outcome D is a reasonable alternative to consider.

Comment 15: One commenter noted the deep-set fishery does not interact at all, nor does it have the potential to interact, with some of the species listed on the protected species interaction table, such as the blue whale, the Hawaiian monk seal, and all of the coral species. The commenter suggested that it is, therefore, incorrect to state that the fishery has a “potential to interact” with these species.

Response: Table 14 of the EA identifies all species listed as threatened or endangered under the Endangered Species Act (ESA) known to occur or are reasonably expected to occur in areas where U.S. longline fishing vessels operate. While NMFS agrees that the Hawaii deep-set longline fishery has not interacted with some of the species listed in the table, all longline vessels have the potential to interact with these species through incidental hooking or entanglement with fishing gear, collisions, exposure to vessel wastes and discharges, or direct and indirect competition for forage. Pursuant to ESA Section 7, NMFS has evaluated the pelagic longline fisheries of Hawaii, American Samoa, Guam, and the CNMI for potential impacts on ESA-listed marine species under NMFS jurisdiction and their habitat. EA section 5.5 summarizes the conclusions of these consultations. Additionally, EA section 4.3 presents the effects of the action described in this final rule on ESA-listed species.

Comment 16: One commenter said that the EA should note that the Hawaii humpback whale population has been proposed for delisting.

Response: On April 21, 2015, NMFS published a proposed rule in the Federal Register announcing the Agency's intention to divide the globally-listed endangered humpback whale species into 14 distinct population segments (DPS), remove the current species listing, and, in its place, propose for listing four DPSs. The ten DPSs not proposed for listing include the Hawaii DPS and the Oceania DPS, which occur in areas where the Hawaii and American Samoa longline fisheries operate, respectively (80 FR 22304). Please consult the proposed rule for specific information on the humpback whale DPS proposal. NMFS added a summary of the proposed rule in the EA accompanying the big eye tuna specification (see section 3.3.2—Marine Mammals).

Comment 17: One commenter noted that in numerous areas, the Draft EA addresses the transferred effects caused by closing Hawaii longline fisheries (i.e., the resulting increase in imports from less regulated foreign fisheries) and the detrimental impacts this can have on local Hawaii seafood markets and on U.S. fisheries. The commenter supports these statements, and notes that several published scientific studies corroborate them. In this light, the commenter requested that NMFS include the papers enclosed with their comment letter in the administrative record.

Response: NMFS acknowledges and posted for public viewing at www.regulations.gov the papers included in the submission of this comment.

Comment 18: One commenter identified an incorrect reference to the “proposed action” in the “CNMI and Guam longline fisheries” subsection. The commenter noted that this section appears to address the “no action” alternative, not the proposed action.

Response: NMFS agrees and has corrected the text in EA section 4.1.1.2 “Potential Impacts to Other Non-Target Stocks.”

Comment 19: One commenter suggested that, although Outcome D is theoretically possible, as NMFS and the Council recognize, it is very unlikely to occur (and, in fact, will not occur). Outcome D is therefore not a “reasonable” potential outcome and there is no reason to evaluate it as a sub-alternative to the proposed action alternative. See 40 CFR 1502.14 (only “reasonable” alternatives evaluated in NEPA document).

Response: NMFS disagrees with the assertion that Outcome D is not a reasonable sub-alternative to consider. The final rule implements the Council's recommendation to establish 2,000 mt longline limits for CNMI, of which CNMI may allocate 1,000 mt under a specified fishing agreement. We believe that both the Magnuson-Stevens Act and NEPA require NMFS to analyze the full impact of the action that it authorizes.

NMFS agrees that because Guam and the CNMI do not currently have an active longline fishery, Outcome D is not likely to occur in the next 2 years because Outcome D anticipates that the longline fisheries of all three U.S territories would each harvest 1,000 mt of bigeye tuna in 2015 and 2016. However, NMFS also notes that this action, by providing for payments for fisheries development in the U.S. Pacific territories, has the potential to develop longline fishery capacity in the territories. Therefore, NMFS believes that Outcome D is a reasonable alternative to consider in the environmental impact analysis in the EA. (See also response to Comment 14.)

Comment 20: One commenter suggested that NMFS add a discussion in the EA about why the proposed rule will have no material impacts on yellowfin tuna.

Response: NMFS agrees and has revised EA section 4.1.2.2 “Potential Impacts to Other Non-Target Stocks” to include an analysis of the potential impacts of the action on WCPO yellowfin tuna.

Comment 21: One commenter noted that Appendix E states that “one [specified fishing] agreement would only provide support for projects in one territory.” However, as noted earlier in the Draft EA, specified fishing agreements may benefit all U.S. participating territories, not just the territory to which the agreement applies.

Response: NMFS has revised Appendix E of the EA by removing the statement that one specified fishing agreement would only provide support for projects in one U.S. Pacific territory.

In the proposed specifications published on August 24, 2015 (80 FR 51193), NMFS proposed to specify a catch limit of 2,000 mt of longline-caught bigeye tuna for each of the three U.S. Pacific territories (Guam, the CNMI, and American Samoa). NMFS also proposed to authorize each territory to allocate up to 1,000 mt of its 2,000 mt bigeye tuna limit to U.S. longline fishing vessels permitted to fish under the FEP.

NMFS determined that the proposed catch and allocation limits were consistent to the maximum extent practicable with the enforceable policies of the approved coastal zone management programs of each of the three territories. The coastal management program of the CNMI concurred with this determination. The American Samoa coastal management program, however, has requested an extension of time to review the proposed action. Under regulations at 15 CFR 930.41(b), NMFS is approving the requested extension. The Guam coastal management program has also indicated that it is still reviewing the proposed specifications.

So that we may implement the territorial limits in a timely fashion, NMFS is currently implementing the 2015 limits only for the CNMI. We will consider the American Samoa and Guam reviews of the CZMA federal consistency determination before implementing a 2015 limit for American Samoa and Guam.

The Regional Administrator, NMFS PIR, determined that this action is necessary for the conservation and management of Pacific Island fishery resources, and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. NMFS published the factual basis for the certification in the proposed rule and does not repeat it here. NMFS received no comments on this certification. As a result, a regulatory flexibility analysis is not required, and none has been prepared.

There is good cause to waive the 30-day delay requirement of the Administrative Procedure Act, 5 U.S.C. 553(d)(1), and make this rule effective immediately upon service. NMFS closed the U.S. pelagic longline fishery for bigeye tuna in the WCPO on August 5, 2015, because the fishery reached the 2015 U.S. WCPO catch limit (80 FR 44883, July 28, 2015). A delayed effective date would be impracticable because the fishing year ends on December 31, 2015, and vessels identified in a valid specified fishing agreement would be prevented from fishing for one month of the remaining three months of this fishing year. Furthermore, during the comment period for the proposed rule, NMFS received comments that the WCPO closure is having a negative financial effect on the fishing community, including vessels, restaurants, and other seafood-related businesses, and that this action would relieve this financial pressure by allowing U.S. fishing vessels identified in a valid specified fishing agreement to supply the domestic big eye tuna market. Finally, these specifications are identical to those that NMFS specified in 2014 (79 FR 64097, October 28, 2014), do not impose any new requirements on any entity, and would not result in significant impacts to the human environment.

This action is exempt from review under E.O. 12866 because it contains no implementing regulations.