Federal Register Vol. 80, No.53,

I. Obtaining Information and Submitting Comments II. Procedural Background III. Background IV. Discussion of Changes V. Voluntary Consensus Standards VI. Agreement State Compatibility VII. Plain Writing VIII. Environmental Assessment and Finding of No Significant Environmental Impact IX. Paperwork Reduction Act Statement X. Regulatory Flexibility Certification XI. Regulatory Analysis XII. Backfitting and Issue Finality XIII. Congressional Review Act XIV. Availability of Documents I. Obtaining Information and Submitting Comments A. Obtaining Information

Please refer to Docket ID NRC-2014-0275 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2014-0275.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected]. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

Please include Docket ID NRC-2014-0275 in the subject line of your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

This direct final rule is limited to adding Amendment No. 1, Revision 1, which will supersede Amendment No. 1 (effective December 17, 2014), to CoC No. 1032 to the “List of approved spent fuel storage casks,” and does not include other aspects of the Holtec HI-STORM FW System design. Amendment No. 1 continues to be effective but is now being modified with respect to certain specified provisions, as outlined in Amendment No. 1, Revision 1, and in Section IV of this document, which apply to all general licensees using the casks for Independent Spent Fuel Storage Installations (ISFSIs). Therefore, Amendment No. 1, Revision 1, supersedes the previously issued Amendment No. 1 (effective December 17, 2014). In requesting this revision, Holtec indicated that no ISFSI licensee has placed such a cask into service under CoC No. 1032, Amendment No. 1.

The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. The amendment to the rule will become effective on June 2, 2015. However, if the NRC receives significant adverse comments on this direct final rule by April 20, 2015, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rule section of this issue of the Federal Register. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or Technical Specifications (TSs).

For detailed instructions on filing comments, please see the ADDRESSES section of this document.

Section 218(a) of the Nuclear Waste Policy Act (NWPA) of 1982, as amended, requires that “the Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[t]]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule which added a new subpart K in part 72 of Title 10 of the Code of Federal Regulations (10 CFR) entitled, “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new subpart L in 10 CFR part 72 entitled, “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on October 3, 2014 (79 FR 59623), that approved the HI-STORM FW System design amendment and added it to the list of NRC-approved cask designs in 10 CFR 72.214 as CoC No. 1032, Amendment No. 1.

On July 31, 2013, Holtec submitted a revision request for the Holtec HI-STORM FW System CoC No. 1032, Amendment No. 1. Holtec supplemented its request on November 5, 2013. As a revision, the CoC will supersede the previous version of the CoC and its TSs, effective December 17, 2014, in their entirety. Amendment No. 1, Revision 1, revises the authorized contents of the cask in Appendix B to the TSs to include 14X14B fuel assemblies with minor changes in the internal diameter of the fuel cladding, diameter of the fuel pellet, and fuel rod pitch (distance from fuel pin centerlines). The amendment also updates testing requirements for the fabrication of Metamic HT neutron-absorbing aluminum alloy structural material used to secure the spent fuel inside the cask. These changes to Appendix B of the TSs are identified with revision bars in the margin of the document.

Specifically, Amendment No. 1, Revision 1, changes the fuel cladding internal diameter, the fuel pellet diameter, and the fuel rod pitch (distance from fuel pin centerlines) of the fuel assembly class 14X14B. These changes in spacing between the fuel pins would result in a volumetric increase of 0.6 percent of the fuel and a reduction of 0.13 percent of the original flow area. Because this reduced flow area is still larger than the 17X17 assembly flow area used as the bounding scenario, the flow resistance factor is still less restrictive than the bounding scenario, and the passive decay heat removal of the proposed 14X14B assembly is still conservative.

Amendment No. 1, Revision 1, also removes fabrication testing requirements for the thermal expansion coefficient and thermal conductivity of Metamic HT neutron-absorbing structural material, as these properties have little variability in this aluminum alloy when fabricated according to the manufacturer's manual.

As documented in the safety evaluation report (SER), the NRC staff performed a detailed safety evaluation of the proposed CoC Amendment No. 1, Revision 1 request. There are no significant changes to cask design requirements in the proposed Revision 1 to the CoC Amendment No. 1. Considering the specific design requirements for each accident condition, the design of the cask would prevent loss of containment, shielding, and criticality control. If there is no loss of containment, shielding, or criticality control, the environmental impacts would be insignificant. Amendment No. 1, Revision 1 does not reflect a significant change in design or fabrication of the cask. In addition, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 1, Revision 1, would remain well within 10 CFR part 20 radiation protection limits. Therefore, the proposed CoC changes will not result in any radiological or non-radiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the October 3, 2014 (79 FR 59623), final rule that approved the HI-STORM FW System design Amendment 1. There will be no significant change in the types or amounts of any effluent released, no significant increase in individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents.

This direct final rule revises the Holtec HI-STORM FW System listing in 10 CFR 72.214 by superseding Amendment 1 to CoC No. 1032 (effective December 17, 2014) with Amendment No. 1, Revision 1. The revision consists of the changes previously described, as set forth in the revised CoC and TSs. Appendix A and the revised Appendix B of the TSs are identified in the SER and are also available in ADAMS.

The amended Holtec HI-STORM FW System design, when used under the conditions specified in the CoC, the TSs, and the NRC's regulations, will meet the requirements of 10 CFR part 72; therefore, adequate protection of public health and safety will continue to be ensured. When this direct final rule becomes effective, persons who hold a general license under 10 CFR 72.210 may load spent nuclear fuel into Holtec HI-STORM FW Systems that meet the criteria of Amendment No. 1, Revision 1, to CoC No. 1032 under 10 CFR 72.212.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC will revise the Holtec HI-STORM FW System design listed in § 72.214, “List of approved spent fuel storage casks.” This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of 10 CFR. Although an Agreement State may not adopt program elements reserved to the NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws, but does not confer regulatory authority on the State.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

This direct final rule amends 10 CFR 72.214 by revising the CoC for the Holtec HI-STORM FW System design listing within the “List of approved spent fuel storage casks” to add Amendment No. 1, Revision 1, to CoC No. 1032. Under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in subpart A of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has made a finding of no significant impact on the basis of this environmental assessment.

This direct final rule revises the CoC for the Holtec HI-STORM FW System within the list of approved systems that can be used for dry storage of additional fuel assembly designs now in reactor spent fuel storage pools.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. The potential environmental impact of using NRC-approved storage casks was initially analyzed in the environmental assessment for the 1990 final rule. The environmental assessment for this Amendment No. 1, Revision 1, of CoC 1032 tiers off of the environmental assessment for the July 18, 1990, final rule. Tiering on past environmental assessments is a standard process under the National Environmental Policy Act.

Holtec HI-STORM FW Systems are designed to mitigate the effects of design basis accidents that could occur during storage. Design basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an ISFSI, the type of facility at which a holder of a power reactor operating license would store spent fuel in casks in accordance with 10 CFR part 72, include tornado winds and tornado-generated missiles, a design basis earthquake, a design basis flood, an accidental cask drop, lightning effects, fire, explosions, and other incidents.

Considering the specific design requirements for each accident condition, the design of the cask would prevent loss of confinement, shielding, and criticality control. If there is no loss of confinement, shielding, or criticality control, the environmental impacts would be insignificant. This amendment does not reflect a significant change in design or fabrication of the cask. There are no significant changes to cask design requirements in the proposed CoC amendment. In addition, because there are no significant design or process changes, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 1, Revision 1, would remain well within 10 CFR part 20 radiation protection limits. Therefore, the proposed CoC changes will not result in any radiological or non-radiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the July 18, 1990, final rule. There will be no significant change in the types or amounts of any effluents released, no significant increase in individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents. The staff has documented its safety findings in the SER.

The alternative to this action is to deny approval of Amendment No. 1, Revision 1, and end this direct final rule. Consequently, any 10 CFR part 72 general licensee that seeks to load spent nuclear fuel into the Holtec HI-STORM FW System in accordance with the changes described in proposed Amendment No. 1, Revision 1, would have to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, interested licensees would have to prepare, and the NRC would have to review, each separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee. Therefore, the environmental impacts of the alternative to the action would be the same or more than the impacts of the action.

Approval of Amendment No. 1, Revision 1, to CoC No. 1032 would result in no irreversible commitments of resources.

No agencies or persons outside the NRC were contacted in connection with the preparation of this environmental assessment.

The environmental impacts of the action have been reviewed under the requirements in 10 CFR part 51. Based on the foregoing environmental assessment, the NRC concludes that this direct final rule entitled, “Holtec HI-STORM Flood/Wind System; Certificate of Compliance No. 1032, Amendment No. 1, Revision 1,” will not have a significant effect on the human environment. Therefore, the NRC has determined that an environmental impact statement is not necessary for this direct final rule.

This rule does not contain any information collection requirements, and is therefore not subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The NRC may not conduct or sponsor, and a person is not required to respond to a request for information or an information collection requirement unless the requesting document displays a currently valid Office of Management and Budget control number.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and Holtec International, Inc. These entities do not fall within the scope of the definition of small entities set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in 10 CFR 72.214. On March 28, 2011 (76 FR 17019), the NRC issued an amendment to 10 CFR part 72 that approved the Holtec HI-STORM FW System design by adding it to the list of NRC-approved cask designs in 10 CFR 72.214.

On July 31, 2013, and as supplemented on November 5, 2013, Holtec submitted an application to amend the HI-STORM FW System as described in Section IV, “Discussion of Changes,” of this document.

The alternative to this action is to withhold approval of Amendment No. 1, Revision 1, and to require any 10 CFR part 72 general licensee seeking to load spent nuclear fuel into a Holtec HI-STORM FW System under the changes described in Amendment No. 1, Revision 1, to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, each interested 10 CFR part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

Approval of the direct final rule is consistent with previous NRC actions. Further, as documented in the SER and the environmental assessment, the direct final rule will have no adverse effect on public health and safety or the environment. This direct final rule has no significant identifiable impact or benefit on other Government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of the direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and therefore, this action is recommended.

This direct final rule revises the CoC No. 1032 for the Holtec HI-STORM FW System, as currently listed in 10 CFR 72.214, “List of approved spent fuel storage casks.” Amendment No. 1, Revision 1, revises authorized contents of the cask to include 14X14B fuel assemblies with minor changes in the internal diameter of the fuel cladding, diameter of the fuel pellet, and spacing between the fuel pins. The revision also updates testing requirements for the fabrication of Metamic HT neutron-absorbing aluminum alloy structural material used to secure the spent fuel inside the cask.

Although Holtec has manufactured some casks under the existing CoC 1032, Amendment No. 1 that is being revised by this direct final rule, Holtec, as the vendor, is not subject to backfitting protection under 10 CFR 72.62. Moreover, Holtec requested the change and has requested to apply it to the existing casks manufactured under Amendment No. 1. Therefore, even if the vendor were deemed to be an entity protected from backfitting, this request represents a voluntary change and is not backfitting.

Additionally, because Holtec has not delivered any cask certified under CoC No. 1032, Amendment No. 1, no ISFSI licensee has placed such a cask into service. Therefore, the changes in Amendment 1, Revision 1 which are approved in this direct final rule do not fall within the definition of backfitting under 10 CFR 72.62 or 10 CFR 50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52.

Finally, the changes in CoC No. 1032, Amendment 1, Revision 1 do not apply to casks manufactured to the initial CoC 1032, and therefore, have no effect on current ISFSI licensees using these casks. While any current CoC user may comply with the new requirements in Amendment No. 1, Revision 1, this would be a voluntary decision on the part of the user. For these reasons, NRC approval of CoC No. 1032, Amendment No. 1, Revision 1, does not constitute backfitting under 10 CFR 72.62 or 10 CFR 50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions in 10 CFR part 52 for users of the Holtec HI-STORM FW System manufactured to the initial CoC No. 1032.

For the reasons set forth above, the NRC has not prepared a backfit analysis or additional documentation addressing the issue finality criteria in 10 CFR part 52.

This action is not a major rule as defined in the Congressional Review Act (5 U.S.C. 801-808).

The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated below.

The NRC may post materials related to this document, including public comments, on the Federal rulemaking Web site at http://www.regulations.gov under Docket ID NRC-2014-0275. The Federal rulemaking Web site allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2014-0275); (2) click the “Sign up for Email Alerts” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72.

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No.: 2015-0034-E, dated February 27, 2015, (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

This AD is a temporary measure and further AD action may follow. You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0633.

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

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 a bending defect of the fork head could lead to failure of the flight control system, possibly resulting in loss of control. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-0633; Directorate Identifier 2015-CE-005-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 will affect 6 products of U.S. registry.

At the time of issuance of this AD, no design solution is available to restore the airworthiness of the respective type designs to a level corresponding to their approved type design specifications. Therefore, the FAA cannot determine the cost of returning the affected gliders to service.

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

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to remove AD 2014-04-14, Amendment 39-17773 (79 FR 11699, March 3, 2014) for Agusta Model A109S, AW109SP, A119, and AW119 MKII helicopters with a main rotor lag damper assembly (lag damper), part number (P/N) 109-0112-39-103, 109-0112-39-105, 109-0112-05-105, or 109-0112-05-107, installed with a rod end assembly, P/N M004-01H007-041 or P/N M004-01H007-045, with a serial number from 84 through 132 or from 4964 through 5011, and add a new AD. The NPRM published in the Federal Register on August 18, 2014 (79 FR 48698). AD 2014-04-14 required removing the rod end assemblies from service. AD 2014-04-14 was prompted by AD No. 2012-0208, dated October 5, 2012, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Agusta Model A109LUH, A109S, AW109SP, A119, and AW119 MKII helicopters. EASA advises of cases of in-flight fractures of rod end assembly, P/N M004-01H007-045, installed on main rotor lag dampers on Model A109LUH and AW109SP helicopters. An investigation revealed that two batches of rod end assemblies, P/N M004-01H007-041 and M004-01H007-045, could have cracks, according to EASA. EASA states that this condition, if not corrected, could lead to main rotor damage, possibly resulting in loss of control of the helicopter. The actions of AD 2014-04-14 were intended to prevent such damage and loss of control of the helicopter.

Between the time we published the NPRM for AD 2014-04-14 (78 FR 44042, July 23, 2013) and the Final Rule for AD 2014-04-14 (79 FR 11699, March 3, 2014), EASA issued AD No. 2013-0290, dated December 9, 2013. EASA advises in AD No. 2013-0290 that a new case of a fractured rod end assembly has been reported and that additional batches of rod end assembly, P/N M004-01H007-041 and P/N M004-01H007-045, as well as batches of P/N 109-0112-11-101 and P/N 109-0112-22-105 could also have cracks. EASA expanded the applicability of its AD to include the additional rod end assemblies.

We consequently issued the NPRM (79 FR 48698, August 18, 2014) to amend 14 CFR part 39 to remove AD 2014-04-14 and add a new AD. The NPRM proposed to retain the requirements of AD 2014-04-14 but expand the scope of applicable rod end assemblies. The NPRM also proposed to add a provision requiring compliance with the AD if the rod end assembly is removed during maintenance before 25 hours time-in-service (TIS).

We gave the public the opportunity to participate in developing this AD, but we received no comments on the NPRM (79 FR 48698, August 18, 2014).

These helicopters have been approved by the aviation authority of Italy and are approved for operation in the United States. Pursuant to our bilateral agreement with Italy, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed, except we have correctly stated the design holder's name as Agusta S.p.A. instead of AgustaWestland S.p.A. as specified by the current FAA type certificate. This change is consistent with the intent of the proposals in the NPRM (79 FR 48698, August 18, 2014) and will not increase the economic burden on any operator nor increase the scope of the AD.

The EASA AD calls for replacing certain rod end assemblies with airworthy rod end assemblies within 25 hours TIS, 2 months, or the next time maintenance of the applicable helicopters involves removing the rod end assembly. This AD does not have a calendar time requirement. The EASA AD applies to Agusta Model A109LUH helicopters. This AD does not apply to Model A109LUH helicopters because that model does not have a U.S. type certificate.

We reviewed AgustaWestland Bollettino Tecnico (BT) No. 109S-49 for Model A109S helicopters, BT No. 109SP-052 for Model AW109SP helicopters, and BT No. 119-50 for Model A119 and AW119 MKII helicopters. All of the BTs are revision A, and dated December 3, 2013. The BTs specify a one-time inspection of each rod end assembly to determine its serial number. The BTs then require removal from service of certain serial-numbered rod end assemblies because fractures had been reported on rod ends in these batches. According to the BTs, no one was injured in the helicopters, and no helicopters were damaged because of these fractures.

We estimate that this AD affects 91 helicopters of U.S. Registry and that labor costs average $85 a work-hour. Based on these estimates, we expect the following costs:

• Replacing a rod end assembly requires 1.5 work-hours for a labor cost of $128. Parts cost $3,918 for a total cost of $4,046 per helicopter, $368,186 for the U.S. fleet.

According to the manufacturer's service information, costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage by manufacturers. Accordingly, we have included all costs in our cost estimate.

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

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

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

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

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

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

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

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

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

Airworthiness Directive 2015-04-01, Amendment 39-18003 (80 FR 9382, February 23, 2015), currently requires a visual inspection of the NLG sliding tube and a fluorescent penetrant inspection of the sliding tube. If any crack is detected during either inspection, before further flight, obtain FAA-approved repair instructions approved specifically for compliance with this AD by reporting the findings, and incorporating those instructions for Short Brothers & Harland Ltd. Model SC-7 Series 3 airplanes, all serial numbers, certificated in any category.

As published, the amendment number in the Agency Identification Numbers in the preamble section of the AD is incorrect. It has been corrected in this document.

Although no other part of the preamble or regulatory information has been corrected, we are publishing the entire rule in the Federal Register.

The effective date of this AD remains March 30, 2015.

In General

On October 20, 2010, the Department of Labor (Department) published a final regulation requiring plan administrators to disclose certain plan and investment-related information, including fee and expense information, to participants and beneficiaries in participant-directed individual account plans.1 The regulation requires certain information to be furnished on or before the date on which a participant can first direct his or her investments and “at least annually thereafter.” The regulation defines this term as “at least once in any 12-month period, without regard to whether the plan operates on a calendar or fiscal year basis.” 2 The regulation was effective on December 20, 2010, but was not applicable until plan years beginning on or after November 1, 2011.3

On July 30, 2012, the Department's Employee Benefits Security Administration (EBSA) issued Field Assistance Bulletin 2012-02R (FAB 2012-02R) providing guidance on frequently asked questions. Q&A 35 clarified that, for most plans, including calendar year plans, the first initial disclosures under the new regulation were required no later than August 30, 2012. FAB 2012-02R did not, however, specifically address the deadline for subsequent annual disclosures.4

In Field Assistance Bulletin 2013-02, issued July 22, 2013, the Department made clear that the regulation requires annual disclosures to be made no more than one year exactly (e.g., 365 days) after the prior annual disclosures. Specifically, FAB 2013-02, in relevant part, states “[f]or example, a plan administrator that furnished the first required chart on August 25, 2012, must furnish the next comparative chart no later than August 25, 2013.” This interpretation was intended to prevent inconsistencies, delays, and possible manipulation of the timing of annual disclosures. It also was responsive to the views expressed by some plan administrators, which contrary to EBSA's intent, interpreted “at least once in any 12-month period” to allow the furnishing of the annual disclosures, for example, on January 1 of one year and December 31 of the following year, thus allowing for approximately 24 months in between disclosures. At the same time, however, EBSA was concerned that the requirement that disclosures be made no more than one year exactly from the prior annual disclosures (as interpreted in FAB 2013-02) might impose undue administrative burdens on plans. Consequently, FAB 2013-02 solicited public comments on whether EBSA should amend the regulation to provide plan administrators with more flexibility as to when they must furnish the annual disclosures.5 For example, instead of a permanently fixed annual deadline set at one year exactly from the last annual disclosure, EBSA requested comments on whether the deadline should have some degree of elasticity, such as a 30-day or 45-day window from the one-year anniversary of the last annual disclosure.

The Department received comments from several organizations representing employers, plans, recordkeepers and other service providers who furnish annual disclosures to participants and beneficiaries on behalf of plan administrators. These commenters raised multiple practical and logistical concerns about the current definition.

For instance, the commenters maintain that the current definition may prevent them from consolidating the annual disclosures under the regulation with other annual plan disclosures. One commenter stated “many plan sponsors and service providers try, where possible, to consolidate participant communications in a way that ensures effective disclosures and avoids overloading participants with information too frequently.” On this point, a different commenter observed “it is helpful for employers to have a flexible deadline in case they need to change the dates of their annual enrollment periods or other annual plan-related mailings. A 45-day window would provide them with the flexibility to timely provide the annual disclosures to participants without concern that they may miss the deadline.”

Another concern raised by the commenters is that the current definition requires them to track the specific date of annual disclosures on a plan-by-plan or participant-by-participant basis, even though large recordkeepers may have responsibility for tens of thousands of plan clients and millions of plan participants. The commenters also maintain that the current definition is a disincentive or punishment to plans that provide early disclosures in a given year. The commenters also maintain that certain investment information needed on a comparative chart, such as a designated investment alternative's 1-year, 5-year, and 10-year performance, often comes from different investment vendors and may not always be predictably delivered and consolidated by the 12-month anniversary deadline.

Each of these concerns stems from the fact that the furnishing of a required annual disclosure before the expiration of the 12-month deadline (365th day) in any year necessarily changes and accelerates the deadline for subsequent plan years (i.e., the deadline “creeps” forward for all future years when there is early compliance during the current year). One commenter, for example, stated “the requested flexibility mitigates the incentive that plan sponsors and service providers may have to delay furnishing the materials when they may otherwise be able to send them sooner, in order to avoid accelerating subsequent compliance deadlines.” The commenters overwhelmingly support a regulatory amendment that provides some flexibility as to the timing of annual disclosures. A reasonable interpretation of their comments is that they support a buffer zone of no less than 45 days, and that such flexibility would abate the concerns mentioned above. Commenters also identified special or irregular events that warrant flexibility, including corporate mergers and changes in recordkeepers, investment lineups, plan years (e.g., from fiscal to calendar year), or law.

No commenter objected to giving plan administrators some flexibility, or suggested that flexibility would harm participants and beneficiaries or hinder their ability to direct their investments. Two commenters, in fact, suggested just the opposite. One of them observed that “[r]esolving this concern will also benefit plan participants because it will facilitate expedited furnishing of the materials when it is feasible for providers and plan sponsors to do so.” The other observed “it is common for plans to periodically change the menu of investment options available to participants and, in such circumstances, a plan may find it helpful to slightly delay distribution of an otherwise due comparative chart until the new investment options are set.”

The overall objective of the “participant-level fee disclosure” regulation is to make sure participants and beneficiaries in participant-directed individual account plans are furnished the information they need, on a regular and periodic basis, to make informed decisions about the management of their individual accounts and the investment of their retirement savings. While deadlines are needed to avoid irregular and non-periodic disclosures, flexible deadlines alone do not undermine the overall objective of the regulation.

Based on the foregoing, the Department has decided to replace the definition contained in paragraph (h)(1) of the current regulation with a new definition that provides a buffer requested by the commenters. The current regulatory language states that the term at least annually thereafter “means at least once in any 12-month period, without regard to whether the plan operates on a calendar or fiscal year basis.” Today's direct final rule replaces “12-month period” with “14-month period.” Thus, the definition, as amended by this rulemaking, states that the term at least annually thereafter “means at least once in any 14-month period, without regard to whether the plan operates on a calendar year or fiscal year basis.” It is the Department's view that this definition achieves the correct balance by ensuring that participants and beneficiaries will receive annual disclosures on a consistent and regular basis, and without unwarranted delays in-between disclosures, while at the same time offering plan administrators some flexibility.

The Department also requests comments on whether a similar adjustment is needed for the “at least quarterly” definition in paragraph (h)(2) of the regulation.6 Today's direct final rule has no effect on the definition contained in paragraph (h)(2). No commenter identified problems with this definition or requested an adjustment similar to the adjustment being made to the “at least annually” definition. Consequently, the Department today has no basis to make any change to this definition. The lack of comment on this definition may be due, in whole or in part, to EBSA Field Assistance Bulletin 2006-03 (providing a 45-day window for furnishing quarterly pension benefit statements required under section 105 of ERISA) and paragraph (e)(2) of 29 CFR 2550.404a-5 (which allows quarterly fee disclosures to be furnished with quarterly pension benefit statements). Commenters are encouraged to consider FAB 2006-03 if making a comment.

The Department is adopting an enforcement policy, effective immediately, under which plan administrators may rely on the new definition in paragraph (h)(1) prior to the effective date of the amendment. Some plans may be preparing their next set of annual disclosures, which may be due before the effective date of the amendment. Accordingly, EBSA, as an enforcement matter, will treat a plan administrator as satisfying the timing requirement in paragraph (h)(1) of the regulation if the plan administrator complies with the new definition establishing a 2-month grace period for annual disclosures, provided that the plan administrator reasonably determines that doing so will benefit participants and beneficiaries. This enforcement policy expires on the effective date of the direct final rule without notice or any other action by the Department. If the direct final rule is withdrawn because of significant adverse comment, EBSA will provide further guidance on this enforcement policy in the Federal Register notice announcing the withdrawal of the rule. The relief under this policy is in addition to the relief previously granted under FAB 2013-02 and is available regardless of whether a plan has used the relief in such FAB 2013-02 to reset the first or second applicable annual disclosure.

Rulemaking under section 553 of the Administrative Procedure Act (5 U.S.C. 551 et seq.) ordinarily involves publication of a notice of proposed rulemaking in the Federal Register and provides the public with the opportunity to comment on the proposed rule. However, an agency may issue a rule without prior notice and comment if it determines for good cause that prior notice and comment is impracticable, unnecessary, or contrary to the public interest.

The Department finds it unnecessary to publish a notice of proposed rulemaking. The Department, in FAB 2013-02, already solicited public comment on the issue of flexible timing for annual disclosures. Additional notice and comment is not likely to change the Department's conclusion that there is a need for greater flexibility, but it will delay the relief sought by the affected parties. Such delay also makes ordinary notice and comment procedures impracticable for those plan administrators who would benefit from the new definition in paragraph (h)(1) in connection with disclosures that must be furnished in the early part of 2015.

The Department is concurrently publishing a notice of proposed rulemaking in the “Proposed Rules” section of today's Federal Register that will serve as a notice of proposal to amend part 2550 as described in this direct final rule. If the Department receives significant adverse comment during the comment period, it will withdraw this direct final rule. The Department will then address public comments in a subsequent final rule. The Department does not intend to institute a second comment period on this rule. Any parties interested in commenting must do so during this comment period.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule (1) Having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Pursuant to the terms of the Executive Order, OMB has determined that this regulatory action is significant within the meaning of section 3(f)(4) of the Executive Order, and therefore it will be reviewed by OMB. As discussed in the Paperwork Reduction Act section below, the Department expects this amendment to benefit plan administrators by providing flexibility when the annual disclosures are furnished with no additional cost impact.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) imposes certain requirements with respect to Federal rules that are subject to the notice and comment requirements of section 553(b) of the APA (5 U.S.C. 551 et seq.) and that are likely to have a significant economic impact on a substantial number of small entities. Under Section 553(b) of the APA, a general notice of proposed rulemaking is not required when an agency, for good cause, finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest. This direct final regulation is exempt from the APA's notice and comment requirements because the Department made a good cause finding earlier in this preamble that a general notice of proposed rulemaking is not necessary. Therefore, the RFA does not apply and the Department is not required to either certify that this regulation would not have a significant economic impact on a substantial number of small entities or conduct a regulatory flexibility analysis.

As part of its continuing effort to reduce paperwork and respondent burden, the Department of Labor conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.

In accordance with the requirements of the PRA (44 U.S.C. 3506(c)(2)), the Department submitted an information collection request (ICR) to OMB in accordance with 44 U.S.C. 3507(d) for the current rule that was published on October 20, 2010. The information collection request was approved by OMB on October 5, 2010, under OMB Control Number 1210-0090, which currently is scheduled to expire on April 30, 2017.

Currently, the Department has submitted an information collection for the ICR as revised by the direct final rule under the emergency procedures for review and clearance contained in 5 CFR 1320.13. A copy of the ICR may be obtained by contacting the PRA addressee shown below. The Department is hereby soliciting comments concerning the revision to the ICR currently approved under OMB Control Number 1210-0090. The Department and OMB are interested particularly in comments that:

• Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

• Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

• Enhance the quality, utility, and clarity of the information to be collected; and

• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

Comments should be sent to the PRA Addressee within the same 30-day comment period that applies for comments on the direct final rule. Any comments received will be considered when the Department submits an extension request for the emergency ICR to OMB.

PRA Addressee: Address requests for copies of the ICR to G. Christopher Cosby, Office of Policy and Research, U.S. Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue NW., Room N-5718, Washington, DC 20210. Telephone (202) 693-8410; Fax: (202) 219-5333. These are not toll-free numbers. ICRs submitted to OMB also are available at http://www.RegInfo.gov.

The Department expects this amendment to have no impact on the cost or hour burden associated with the ICR, because it solely determines when the disclosures are distributed but does not affect the content of the disclosures. The timing flexibility provided by the amendment will benefit plan administrators by allowing them to combine and distribute annual disclosures with other employment and annual employee benefits communication materials, which may result a small decrease in burden; however, the Department does not have sufficient data to estimate this decrease. The Department welcomes comments regarding this assessment.

This direct final rule is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.) and will be transmitted to Congress and the Comptroller General for review.

For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as well as Executive Order 12875, the direct final rule does not include any Federal mandate that may result in expenditures by State, local, or tribal governments in the aggregate of more than $100 million, adjusted for inflation, or increase expenditures by the private sector of more than $100 million, adjusted for inflation.

Executive Order 13132 (August 4, 1999) outlines fundamental principles of federalism, and requires the adherence to specific criteria by Federal agencies in the process of their formulation and implementation of policies that have substantial direct effects on the States, the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government. The direct final rule does not have federalism implications because it has no 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. Section 514 of ERISA provides, with certain exceptions specifically enumerated, that the provisions of Titles I and IV of ERISA supersede any and all laws of the States as they relate to any employee benefit plan covered under ERISA.

For the reasons set forth in the preamble, the Department is amending Subchapter F, Part 2550 of Title 29 of the Code of Federal Regulations as follows:

The Virginia Department of Transportation, who owns and operates this swing bridge, has requested a temporary deviation from the current operating regulation set out in 33 CFR 117.1025, to facilitate maintenance of the moveable spans on the structure.

Under the regular operating schedule, the Coleman Memorial Bridge, mile 7.0, between Gloucester Point and Yorktown, VA, opens on signal except from 5 a.m. to 8 a.m. and 3 p.m. to 7 p.m. Monday through Friday, except Federal holidays, the bridge shall remain closed to navigation. The Coleman Memorial Bridge has vertical clearances in the closed position of 60 feet above mean high water.

Under this temporary deviation, the drawbridge will be closed to navigation from 7 a.m. to 5 p.m. on Sunday March 29, 2015; with an inclement weather date from 7 a.m. to 5 p.m. on Sunday April 4, 2015. The bridge will operate under normal operating schedule at all other times. Emergency openings cannot be provided. There are no alternate routes for vessels transiting this section of the York River. Vessels able to pass under the bridge in the closed position may do so at anytime and are advised to proceed with caution. All other vessels may pass before 7 a.m. and after 5 p.m.

The York River is used by a variety of vessels including military, tugs, and recreational vessels. The Coast Guard has carefully coordinated the restrictions with these waterway users. The Coast Guard will also inform additional waterway users through our Local and Broadcast Notices to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impacts caused by the temporary deviation.

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.

Table of Acronyms CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking § Section Symbol U.S.C. United States Code A. Regulatory History and Information

On August 11, 2014, we published a notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulations; Gulf Intracoastal Waterway, St Petersburg Beach, FL” in the Federal Register (79 FR 46740). We received 173 comments on the proposed rule. No public meeting was requested, and none was held.

The Pinellas Bayway Structure “E” Bridge provides a vertical clearance of 25 feet at mean high water in the closed position and a horizontal clearance of 89 feet. Vessels with a height of less than 25 feet may pass through the bridge at any time. The current regulation, 33 CFR 117.287(d)(4), states Pinellas Bayway Structure “E” (SR 679) bridge, mile 113.0 at St. Petersburg Beach “shall open on signal, except that from 9 a.m. to 7 p.m. the draw need open only on the hour and 30 minutes past the hour.” This modification will extend the time by two hours in the morning and two hours in the evening, allowing this Bridge to open on the hour and half-hour from 7 a.m. to 9 p.m., seven days a week and continue to open on demand all other times.

Of the 173 comments received, 171 were in favor of extending the half-hour schedule by two hours in the morning and two hours in the evening. Two comments opposed extending the scheduled opening period.

Two commenters asked if afternoon scheduled openings should end prior to 9 p.m. Vehicles exiting Fort de Soto Park to the mainland must use Pinellas Bayway Structure “E” Bridge. Fort de Soto Park closes at 8:30 p.m. Extending scheduled openings until 9 p.m. will reduce traffic for departing park visitors.

One commenter indicated that one hour is too long to wait for a bridge opening. This rule will provide for passage two times in an hour during the period of scheduled openings. From 7 a.m. to 9 p.m. the bridge will open on the hour and on the half hour.

One commenter voiced concern for the safety of vessels transiting to a dock or marina in a storm. Other comments recommended extending scheduled openings for the entire day, in part because it serves as a means of ingress and egress for emergency vehicles. Under Title 33 Code of Federal Regulations, Section 117.31, drawtenders are required to make reasonable efforts to have drawspans closed for emergency vehicles and opened for vessels in distress or seeking shelter from severe weather.

One commenter asked for an exception for boat parades. If an extended closure period is necessary for a special event, the bridge owner may request a temporary change to the drawbridge operating schedule.

No changes were made to the proposed regulatory text as a result of the comments. Therefore, paragraph (d)(4) of 33 CFR 117.287 will be revised to require opening on signal, except that from 7 a.m. to 9 p.m. the draw need open only on the hour and 30 minutes past the hour.

This rule will not unreasonably impact navigation. Both vehicle traffic and vessel traffic may need to adjust schedules to ensure that they are not unreasonably delayed.

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

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

This rule is not a significant regulatory action because vessels may still transit the Bridge at scheduled intervals and these changes will continue to meet the reasonable needs of navigation. Therefore, the rule will only have a minor impact on vessels transiting the Gulf Intracoastal Waterway in the vicinity of St. Petersburg Beach, Florida.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels transiting the Gulf Intracoastal Waterway. However, this action will not have a significant economic impact on a substantial number of small entities for the following reasons: Vessels that can safely transit under the Bridge may do so at any time. Vessels unable to transit under the Bridge will be able to transit the Bridge at specific intervals which can be taken into account by vessel owners and operators.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.

Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

The Washington State Department of Transportation requested a temporary deviation from the operating schedule, 33 CFR 117.1051, for the Montlake Bridge across the Lake Washington Ship Canal, mile 5.2, at Seattle, WA. The requested deviation is necessary to accommodate safe movement of “Beat the Bridge Run” event participants. This deviation allows the bridge to remain in the closed-to-navigation position. This deviation is effective from 7:30 a.m. on May 17, 2015 to 9 a.m. on May 17, 2015.

The Montlake Bridge crosses the Lake Washington Ship Canal at mile 5.2 and while in the closed position provides 30 feet of vertical clearance throughout the navigation channel and 46 feet of vertical clearance throughout the center 60-feet of the bridge; vertical clearance referenced to the Mean Water Level of Lake Washington. Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. Waterway users on the Lake Washington Ship Canal range from commercial tug and barge to small pleasure craft. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notice to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

VA published an interim final rule in the Federal Register at 79 FR 45093 on August 4, 2014, to amend the portion of the VASRD dealing with mental disorders and its adjudication regulations which define the term “psychosis.” The DSM-5, which was published by the American Psychiatric Association in May 2013, provides a common language and standard criteria for the classification of mental disorders. The amendments in the interim final rule deleted outdated references to the DSM-IV and DSM-IV-TR and replaced them with references to DSM-5. Additionally, the rulemaking updated the nomenclature in the VASRD to refer to certain mental disorders to conform to DSM-5 terminology.

VA provided a 60-day public comment period, which ended on October 3, 2014, and received no public comments in response to the publication of this interim final rule. One non-comment was received from a VA employee suggesting additional changes to Part 3 regulations which are outside the scope of this rulemaking. No changes were made as a result of the non-comment. Although no comments were received on this issue, in reviewing the interim final rule to prepare for publication of the final rule, VA determined that the applicability date should be clarified. For the reasons set forth in the interim final rule and below, we are adopting the interim final rule as final, with changes to the applicability date, as explained below.

Upon further review, VA has amended the language of the applicability date to ensure clarity and avoid potential misapplication of this final rule. In the interim final rule, VA stated that the provisions applied to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after the effective date of the interim final rule. For clarity, this language has been amended to specify that the provisions of the final rule apply to claims received by VA or pending before the agency of original jurisdiction as of August 4, 2014, the date the interim final rule was published in the Federal Register and became effective. Similarly, the interim final rule stated that the provisions did not apply to claims that were certified for appeal to the Board of Veterans' Appeals or were pending before the Board of Veterans' Appeals, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit. For clarity, this language has been amended to specify that the provisions of the final rule do not apply to claims that were pending before the Board of Veterans' Appeals (i.e., certified for appeal to the Board of Veterans' Appeals on or before August 4, 2014), the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. No other changes or amendments to the applicability date language are made.

The Director of the Federal Register approves the incorporation by reference of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) (2013) for the purposes of 38 CFR 4.125(a) in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from the American Psychiatric Association, 1000 Wilson Boulevard, Arlington, VA 22209-3901. You may inspect a copy at the Office of Regulation Policy and Management, Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420 or the Office of the Federal Register, 800 North Capitol Street NW., Suite 700, Washington, DC. Although §§ 3.384 and 4.130 also mention DSM-5, incorporation by reference is not required because those sections merely refer to the DSM-5 as a source and not as a requirement. In contrast, § 4.125 requires claims adjudicators to use the DSM-5.

Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), VA found that there was good cause to dispense with advance public notice and opportunity to comment on the interim final rule and good cause to publish that rule with an immediate effective date. The interim final rule was necessary to implement immediately the Secretary's decision that health professionals must utilize the latest diagnostic standards—the DSM-5—the same standards used to diagnose and treat veterans with mental disorders—to adjudicate claims pertaining to mental disorders. Delay in the implementation of this rule would have been impracticable, unnecessary, and contrary to public interest, particularly to veterans.

It would have been impracticable to provide opportunity for prior notice and comment for this rulemaking because a delay in implementation would have required the Veterans Health Administration (VHA) to continue to diagnose mental disorders under two versions of the DSM until this regulation became effective, one for clinical purposes (under DSM-5) and one for compensation purposes (under DSM-IV). It would have been unnecessary because it was inevitable that the Veterans Benefits Administration (VBA) would adopt the DSM-5 for diagnostic purposes because VHA clinicians have a professional duty as licensed medical practitioners to use the most current medical guidelines, in this case the DSM-5. It would have been contrary to the public interest because a delay in VBA's transition to the DSM-5 would have denied veterans timely access to benefits based on current and accurate clinical diagnostic criteria already adopted by the psychiatric community.

The change to the references from DSM-IV and DSM-IV-TR to DSM-5 in VBA's adjudication regulations did not present a change in how mental disorders are evaluated under the VASRD, nor were any disorders removed from the VASRD. VA has reviewed the contents of the DSM-5 to ensure that, while some disabilities have been renamed, re-categorized, or consolidated into another diagnosis, all mental disorders currently listed in the VASRD are accounted for. In cases of periodic updates of clinical guidelines and medical terminology used by the medical community, such as DSM-5, VA has no authority to comment, challenge, or change the content, terminology, or nomenclature based on public comment. VA's use of the DSM-5 is limited to conforming to the most current medical standards and practices in diagnosing mental disabilities.

For the foregoing reasons, and as explained in further detail in the interim final rule, the Secretary issued the rule as an interim final rule with immediate effect.

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

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

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule will not affect any small entities. Only certain VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

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

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

The Catalog of Federal Domestic Assistance program numbers and titles for this rule are 64.009, Veterans Medical Care Benefits; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Jose D. Riojas, Chief of Staff, Department of Veterans Affairs, approved this document on March 12, 2015, for publication.

Based on the rationale set forth in the interim final rule published in the Federal Register at 79 FR 45093 on August 4, 2014, and in this document, VA is adopting the provisions of the interim final rule as a final rule without change.

On December 11, 2014 (79 FR 73508), EPA published a notice of proposed rulemaking (NPR) for the District of Columbia. In the NPR, EPA proposed approval of revisions to DC's nonattainment NSR program, notably provisions for Plantwide Applicability Limits (PALs) and preconstruction permitting requirements for major sources of fine particulate matter (PM2.5). The formal SIP revision was submitted by DDOE on April 5, 2013.

Generally, the revision submitted by DDOE involves amendments to sections 199.1 (Definitions and Abbreviations) and 200 (General Permit Requirements), repealing and replacing section 204 (Permit Requirements for Sources Affecting Non-attainment Areas), repealing section 206 (Notice and Comment Prior to Permit Issuance), adding sections 208 (General and Non-attainment Areas) and 210 (Notice and Comment Prior to Permit Issuance), and adding specific definitions to section 299 (Definitions and Abbreviations). Additionally, several non-substantive, clarifying and organizational revisions to the sections mentioned herein were submitted. As described in detail in the NPR, the revisions incorporate provisions related to two Federal rulemaking actions: The 2002 “Prevention of Significant Deterioration (PSD) and Nonattainment NSR (NSR): Baseline Emissions Determination, Actual-to-Future-Actual Methodology, Plantwide Applicability Limitations, Clean Units, Pollution Control Projects” (2002 NSR Rules); and the 2008 “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” (2008 NSR PM2.5 Rule). 67 FR 80186 (December 31, 2002) (2002 NSR Rules) and 73 FR 28321 (May 16, 2008) (2008 NSR Rule). The 2008 NSR PM2.5 Rule (as well as the 2007 “Final Clean Air Fine Particle Implementation Rule” (2007 PM2.5 Implementation Rule) 1 ), was the subject of litigation before the United States Court of Appeals for the District of Columbia Circuit (DC Circuit) in Natural Resources Defense Council v. EPA. 2 On January 4, 2013, the court remanded to EPA both the 2007 PM2.5 Implementation Rule and the 2008 NSR PM2.5 Rule. The court found that in both rules EPA erred in implementing the 1997 PM2.5 National Ambient Air Quality Standard (NAAQS) solely pursuant to the general implementation provisions of subpart 1 of part D of title I of the CAA (subpart 1), rather than pursuant to the additional implementation provisions specific to particulate matter in subpart 4 of part D of title I (subpart 4).3 As a result, the court remanded both rules and instructed EPA “to re-promulgate these rules pursuant to subpart 4 consistent with this opinion.”

As was noted in the NPR, with respect to PM2.5, DDOE submitted an attainment plan for the Metropolitan Washington, DC-MD-VA nonattainment area on April 2, 2008. On January 12, 2009, EPA finalized a clean data determination for the area for the 1997 PM2.5 NAAQS, which suspended the requirement for DDOE to submit, among other things, an attainment plan SIP for the area. 74 FR 1146. Accordingly, on February 6, 2012, DDOE withdrew the attainment plan SIP, and it is no longer before EPA. Moreover, on October 6, 2014, EPA took final action to redesignate the Metro-Washington area to attainment for the 1997 PM2.5 NAAQS. 79 FR 60081. As a result, DDOE is no longer obligated to submit a nonattainment NSR SIP revision under section 189 of the CAA addressing nonattainment NSR permitting requirements for PM2.5, including the requirements under subpart 4. Therefore, EPA has not evaluated the April 5, 2013 submittal for the purposes of determining compliance with the subpart 4 requirements. To the extent that any area is designated nonattainment for PM2.5 in the future in the Metropolitan Washington, DC area, DDOE will have to make a submission under Section 189 of the CAA addressing how its nonattainment permitting program in the D.C. SIP satisfies the CAA statutory requirements as to PM2.5, including subpart 4 and any applicable PM2.5 Federal implementation rules.

Other specific requirements of DDOE's April 5, 2013 submittal and the rationale for EPA's approval are explained in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is approving DDOE's April 5, 2013 submittal as a revision to the D.C. SIP.

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 finalizing the incorporation by reference of revisions to D.C.'s nonattainment NSR program, notably provisions for PALs and preconstruction permitting requirements for major sources of PM2.5 as discussed in section II of this action. 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 May 18, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to D.C.'s nonattainment NSR program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Therefore, 40 CFR part 52 is amended as follows:

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

EPA is taking direct final action to approve the SIP and Operating Permits Program revisions submitted by the state of Missouri for 10 CSR 10-6.110, “Reporting Emission Data, Emission Fees, and Process Information,” on October 3, 2013. Section (2) of the rule is being amended to move seven definitions from this rule to the state's general definifions rule 10 CSR 10-6.020 (and also the definitions for “reportable pollutant” and “reporting threshold” which have been moved to the state's general definitions rule but not yet submitted to EPA for SIP approval.) Section (3)(A) revised the emission fees section, which is approved under the Operating Permits Program only, and clarifies that the current emissions fee is only applicable for years 2013, 2014 and 2015 as set by Missouri statute. No changes were made to the emission fees in the rule. Section (4) of the rule is being amended to better reflect information required in emission reports and clarifies the types and frequencies of reports to be submitted to the Missouri Department of Natural Resources (MDNR) Air Pollution Control Program for the Emissions Inventory Questionnaire. Missouri clarifies the rule by providing a table which lists the type of installation, such as, any installation that is required to obtain an operating permit, and any installation with an intermediate operating permit or a small source. The table shows various installations in the timetable for the full emissions report and/or the reduced reporting form, if applicable. The revisons to this section ensure that Missouri's rule is equivalent to EPA's Federal Air Emission Reporting Rule.

The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations, as well as meeting the Title V requirements. MDNR received one comment from their Air Pollution Control program regarding capitalization of the term “Full Emissions Report” and the relevant term was corrected for rule clarity. Overall, these actions strengthen the Missouri SIP and Operating Permits program by providing clarifications for the regulated public. These revisions do not negatively impact air quality, nor relax the SIP or operating permits program.

We are publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to these SIP and Operating Permits revisions if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Missouri's rule 10 CSR 10-6.110 described in the direct final amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 18, 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. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR parts 52 and 70 as set forth below:

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0326 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 18, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0326, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of August 1, 2014 (79 FR 44729) (FRL-9911-67), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-10693) by Exponent, 1150 Connecticut Ave. NW., Washington, DC 20036, on behalf of Archer Daniels Midland Company, 4666 E. Faries Parkway, Decatur, IL 62526. The petition requested that 40 CFR 180.910 be amended by establishing an exemption from the requirement of a tolerance for residues of sodium L-lactate (CAS Reg. No. 867-56-1) and sodium DL-lactate (CAS Reg. No. 72-17-3) when used as an inert ingredients (surfactants) in pesticide formulations applied to growing crops or to raw agricultural commodities after harvest. That document referenced a summary of the petition prepared by Exponent, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . . ”

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for sodium L-lactate and sodium DL-lactate including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with sodium L-lactate and sodium DL-lactate follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by sodium L-lactate and sodium DL-lactate as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

The Agency has reviewed the data submitted by the petitioner. The data submitted includes data on lactic acid. Sodium lactate, the sodium salt of lactic acid, is expected to readily disassociate into the lactate and sodium ions in the body upon ingestion. Lactic acid also typically converts to lactate in the body. Because sodium L-lactate and sodium DL-lactate readily disassociate into the lactate and sodium ions in the body, the Agency has concluded that the data on L-lactic acid (often referred to as lactic acid) can be used in conjunction with the data on another lactate salt, calcium lactate, and that these data are adequate to characterize the toxicity of sodium L-lactate and sodium DL-lactate.

Acute oral and inhalation toxicity of lactic acid to rats and acute dermal toxicity of lactic acid to rabbits are low (oral LD50 >3,500 milligrams/kilogram (mg/kg); inhalation LC50 >5 milligrams/Liter (mg/l); dermal LD50 >2,000 mg/kg). L-lactic acid is severely irritating and corrosive to rabbit skin. Dilute solutions of lactic acid are irritating to the eyes of rabbits. L-Lactic acid is not a dermal sensitizer in guinea pigs. In an oral feeding study, two groups of (strain not-specified) received daily doses of 1,000 and 2,000 mg/kg/day of sodium lactate (as lactic acid) over 14 to 16 days. Body analyses of the animals showed no accumulation of lactate. No developmental or reproductive toxicity studies are available for sodium L-lactate or sodium DL-lactate; however, a developmental toxicity study for lactic acid resulted in no maternal or developmental effects and none of the reproductive parameters were affected in mice at 570 mg/kg/day. Additionally, sodium L-lactate and DL-lactate are not expected to be mutagenic or carcinogenic based on the presence of the lactic acid metabolite in the human body. Lactic acid is transported to the liver and converted by lactic acid dehydrogenase to pyruvate. Pyruvate, in turn can be converted into free glucose, stored as glycogen, and utilized in other metabolic transformations (Krebs cycle). In addition, in a 2-year combined chronic toxicity/carcinogenicity study in rats with calcium lactate, there was no evidence of carcinogenicity or systemic toxicity at doses up to 5,000 mg/kg/day.

Sodium L-lactate and sodium DL-lactate are naturally occurring compounds and when disassociated, are normal constituents of the human body. No toxicological endpoint of concern has been identified.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to sodium L-lactate and sodium DL-lactate, EPA considered likely exposure from the use of sodium L-lactate and sodium DL-lactate as an inert ingredient in pesticides applied to growing crops or to raw agricultural commodities after harvest. Since no toxicological endpoint of concern has been identified and since the metabolic processes involving sodium L-lactate and sodium DL-lactate are well understood, the Agency has determined that a quantitative dietary exposure assessment is not necessary. While dietary exposure may result from the use of sodium L-lactate and sodium DL-lactate as an inert ingredient in pesticide formulations applied to growing crops or to raw agricultural commodities after harvest, the amount of sodium L-lactate and sodium DL-lactate contained in pesticide formulations and applied to growing crops or to raw agricultural commodities after harvest would be at levels far below its natural occurrence in foods and endogenous production in the human body.

By comparison, L-lactic acid (CAS Reg. No. 79-33-4) is a naturally occurring compound found in many foods and is also a human metabolite that results from various biochemical pathways. Humans are generally exposed to lactic acid on a daily basis in significant quantities because it is naturally present in many food products that are derived through natural fermentation, such as cheese, yogurt, soy sauce, sourdough, meat products, and pickled vegetables.

2. Dietary exposure from drinking water. Dietary exposure from drinking water to sodium L-lactate and sodium DL-lactate can occur by drinking water that has been contaminated by run-off from a pesticide treated area. Since an endpoint for risk assessment was not identified, a quantitative dietary exposure assessment from drinking water for sodium L-lactate and sodium DL-lactate was not conducted.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

There is a potential for residential exposure to pesticide products containing sodium L-lactate and sodium DL-lactate, however, quantitative residential exposure assessment was not conducted since no endpoint of concern was identified.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found sodium L-lactate and sodium DL-lactate to share a common mechanism of toxicity with any other substances, and sodium L-lactate and sodium DL-lactate does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that sodium L-lactate and sodium DL-lactate does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children.

Because of the non-toxic nature of sodium L-Lactate and sodium DL-lactate, there are no threshold effects that would trigger the application of section 408(b)(2)(C).

Taking into consideration all available information on sodium L-lactate and sodium DL-lactate, EPA has determined that there is a reasonable certainty that no harm to any population subgroup will result from aggregate exposure to sodium L-lactate and sodium DL-lactate under reasonable foreseeable circumstances. Therefore, the establishment of an exemption from tolerance under 40 CFR 180.910 for residues of sodium L-lactate and sodium DL-lactate when used as an inert ingredient (surfactant) in pesticide formulations applied to growing crops or to raw agricultural commodities after harvest, is safe under FFDCA section 408.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.910 for sodium L-lactate (CAS Reg. No. 867-56-1) and sodium DL-lactate (CAS Reg. No. 72-17-3) when used as an inert ingredient (surfactant) in pesticide formulations applied to growing crops or to raw agricultural commodities after harvest.

This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule 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. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

46 CFR 502.5

The Commission proposes to amend § 502.5 of title 46 of the Code of Federal Regulations in order to instruct parties on how to request confidential treatment of their documents and how to mark confidential material. The revision requires segregation and clear marking of confidential and non-confidential information. The current confidentiality provisions in part 502 will benefit from a more consistent format.

The revisions also correct an erroneous reference to § 502.201(i)(1)(vii) in the introductory text to § 502.5. The reference to § 502.201(i)(1)(vii) in the introductory text was intended to refer to confidential information within protective orders, but the currently cited provision does not exist. The revision corrects the citation to § 502.201(j)(1)(vii).

The Commission proposes to amend § 502.113 of title 46 of the Code of Federal Regulations concerning service of private party complaints. 46 U.S.C. 41301 requires the Commission to “provide a copy of the complaint to the person named in the complaint.” This revision would clarify and memorialize that the Commission will use U.S. mail or express mail to serve the complaint. A notice is published, and will continue to be published, in the Federal Register for each private party complaint for formal adjudication that is filed with the Commission. Additionally, a full copy of the formal complaint is available on the Commission's Web site, www.fmc.gov, and available in the Commission's Docket Library. The proposed rule continues to allow for alternative service by other means by the Complainant but specifies that it may only do so after the complaint has been filed with the Commission and must inform the Commission of the method, time, and place of service. To conform to this clarification, 46 CFR 502.62(b)(1) is amended to clarify the time an answer to the complaint is due. Sections 502.304 and 502.305 are also revised to reflect that the Secretary will also serve small claims complaints filed pursuant to 46 CFR subpart S.

For the reasons set forth in the preamble, the Federal Maritime Commission amends 46 CFR part 502 as follows:

Availability of Published Materials

Information regarding the Marine Mammal Protection Act (MMPA) List of Fisheries (LOF) may be obtained at http://www.nmfs.noaa.gov/pr/interactions/lof/ and information regarding Marine Mammal Stock Assessment Reports may be obtained at http://www.nmfs.noaa.gov/pr/sars/ or from any NMFS Regional Office at the addresses listed below:

• NMFS, Greater Atlantic Region, 55 Great Republic Drive, Gloucester, MA 01930;

• NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701;

• NMFS, West Coast Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802;

• NMFS, Pacific Islands Region, Protected Resources, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818.

Under the ESA, 16 U.S.C. 1531 et seq., NMFS has the responsibility to implement programs to conserve marine species listed as endangered or threatened. All sea turtles found in U.S. waters are listed as either endangered or threatened under the ESA. Kemp's ridley (Lepidochelys kempii), loggerhead (Caretta caretta; North Pacific distinct population segment), leatherback (Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) sea turtles are listed as endangered. Loggerhead (Caretta caretta; Northwest Atlantic distinct population segment), green (Chelonia mydas), and olive ridley (Lepidochelys olivacea) sea turtles are listed as threatened, except for breeding colony populations of green turtles in Florida and on the Pacific coast of Mexico, and breeding colony populations of olive ridleys on the Pacific coast of Mexico, which are listed as endangered. Due to the inability to distinguish between populations of green and olive ridley turtles away from the nesting beach, NMFS considers these turtles endangered wherever they occur in U.S. waters. While some sea turtle populations have shown signs of recovery, many populations continue to decline.

Incidental take, or bycatch, in fishing gear is the primary anthropogenic source of sea turtle injury and mortality in U.S. waters. Section 9 of the ESA prohibits the take (including harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting or attempting to engage in any such conduct), including incidental take, of endangered sea turtles. Pursuant to section 4(d) of the ESA, NMFS has issued regulations extending the prohibition of take, with exceptions, to threatened sea turtles (50 CFR 223.205 and 223.206). The purpose of the sea turtle observer requirement and the AD is ultimately to implement ESA sections 9 and 4(d), which prohibit the incidental take of endangered and threatened sea turtles, respectively, and to conserve sea turtles. Section 11 of the ESA provides for civil and criminal penalties for anyone who violates a regulation issued pursuant to the ESA, including regulations that implement the take prohibition, as well as for the issuance of regulations to enforce the take prohibitions. NMFS may grant exceptions to the take prohibitions for activities that are covered by an incidental take statement or an incidental take permit issued pursuant to ESA section 7 or 10, respectively. To do so, NMFS must determine the activity that will result in incidental take is not likely to jeopardize the continued existence of the affected listed species. For some Federal fisheries and most state fisheries, NMFS has not granted an exception for incidental takes of sea turtles primarily because we lack information about fishery-sea turtle interactions.

The most effective way for NMFS to learn about sea turtle-fishery interactions, in order to implement management measures and prevent or minimize take, is to place observers aboard fishing vessels. In 2007, NMFS issued a regulation (50 CFR 222.402) establishing procedures to annually identify, pursuant to specified criteria and after notice and opportunity for comment, those fisheries in which the agency intends to place observers (72 FR 43176, August 3, 2007). These regulations specify that NMFS may place observers on U.S. fishing vessels, commercial or recreational, operating in U.S. territorial waters, the U.S. exclusive economic zone (EEZ), or on the high seas, or on vessels that are otherwise subject to the jurisdiction of the United States. Failure to comply with the requirements under this rule may result in civil or criminal penalties under the ESA.

NMFS will pay the direct costs for vessels to carry observers. These include observer salary and insurance costs. NMFS may also evaluate other potential direct costs, should they arise. Once selected, a fishery will be eligible to be observed for a period of five years without further action by NMFS. This will enable NMFS to develop an appropriate sampling protocol to investigate whether, how, when, where, and under what conditions incidental takes are occurring; evaluate whether existing measures are minimizing or preventing takes; and develop ESA management measures that implement the prohibitions against take and that conserve sea turtles.

Pursuant to 50 CFR 222.402, NOAA's Assistant Administrator for Fisheries (AA), in consultation with Regional Administrators and Fisheries Science Center Directors, developed a proposed AD identifying which fisheries are required to carry observers, if requested, to monitor potential interactions with sea turtles. NMFS provided an opportunity for public comment on any proposed determination. The determination is based on the best available scientific, commercial, or other information regarding sea turtle-fishery interactions; sea turtle distribution; sea turtle strandings; fishing techniques, gears used, target species, seasons and areas fished; and/or qualitative data from logbooks or fisher reports. The AD is based on the extent to which:

(1) The fishery operates in the same waters and at the same time as sea turtles are present;

(2) The fishery operates at the same time or prior to elevated sea turtle strandings; or

(3) The fishery uses a gear or technique that is known or likely to result in incidental take of sea turtles based on documented or reported takes in the same or similar fisheries; and

(4) NMFS intends to monitor the fishery and anticipates that it will have the funds to do so.

For the 2015 AD, the AA used the most recent version of the annually published MMPA List of Fisheries (LOF) as the comprehensive list of commercial fisheries for consideration. The LOF includes all known state and Federal commercial fisheries that occur in U.S. waters and on the high seas. However, in preparing the AD, we do not rely on the three-part MMPA classification scheme used for fisheries on the LOF. In addition, unlike the LOF, the AD may include recreational fisheries likely to interact with sea turtles on the basis of the best available information.

NMFS consulted with appropriate state and Federal fisheries officials to identify which fisheries, both commercial and recreational, should be considered on the AD. Recommendations were received from six state agencies. Gear types recommended for consideration included gillnet, trawl, trap/pot, pound net, seine, and hook-and line. NMFS considered all recommendations carefully in developing the proposed list of fisheries to be included. Although the comments and recommendations provided to NMFS by states were based upon the best available information on their fisheries, NMFS received more recommendations for fisheries to include on the 2015 AD than is practical based on the four previously noted criteria (50 CFR 222.402(a)). The AD is not an exhaustive or comprehensive list of all fisheries with documented or suspected takes of sea turtles. For some fisheries, NMFS may already be addressing incidental take through another mechanism (e.g., rulemaking to implement modifications to fishing gear and/or practices), may be observing the fishery under a separate statutory authority, or will consider including them in future ADs based on the four previously noted criteria (50 CFR 222.402(a)). Note also that fisheries not included on the 2015 AD may still be observed under a different authority than the ESA (e.g., MMPA, MSA).

Notice of the final determination will be published in the Federal Register and made in writing to individuals permitted for each fishery identified on the AD. NMFS will also notify state agencies and provide notification through publication in local newspapers, radio broadcasts, and other means, as appropriate. Once included in the final determination, a fishery will remain eligible for observer coverage for a period of five years to enable the design of an appropriate sampling program and to ensure collection of sufficient scientific data for analysis. If NMFS determines that more than five years are needed to obtain sufficient scientific data, NMFS will include the fishery in the proposed AD again prior to the end of the fifth year.

In the 2010 AD, NMFS identified 19 fisheries that were required to carry observers for a period of five years, through December 31, 2014, if requested by NMFS. Because of a lack of resources to implement new observer programs or expand existing programs, NMFS has not identified any additional fisheries on the AD since 2010. Eleven of the 19 fisheries included on the 2010 AD have been included on the 2015 AD, and are described further below. The remaining eight fisheries were summarized in the proposed 2015 AD (October 22, 2014, 79 FR 63066).

As part of the 2015 AD, NMFS has included, to the extent practicable, information on the fisheries or gear types to be observed, geographic and seasonal scope of coverage, and any other relevant information. For each of these fisheries or gear types, NMFS intends to monitor the fishery and anticipates that it will have the funds to do so. After publication of this final AD, a 30-day delay in the effective date for implementing observer coverage will follow, except for those fisheries where the AA has determined that there is good cause pursuant to the Administrative Procedure Act to make the rule effective without a 30-day delay.

The design of any observer program for fisheries identified through the AD process, including how observers would be allocated to individual vessels, will vary among fisheries, fishing sectors, gear types, and geographic regions and will ultimately be determined by the individual NMFS Regional Office, Science Center or observer program. During the program design, NMFS will be guided by the following standards for distributing and placing observers among fisheries identified on the AD and among vessels in those fisheries:

(1) The requirement to obtain the best available scientific information;

(2) The requirement that observers be assigned fairly and equitably among fisheries and among vessels in a fishery;

(3) The requirement that no individual person or vessel, or group of persons or vessels, be subject to inappropriate, excessive observer coverage; and

(4) The need to minimize costs and avoid duplication, where practicable.

Vessels subject to observer coverage under the AD must comply with observer safety requirements specified at 50 CFR 600.725 and 50 CFR 600.746. Specifically, 50 CFR 600.746(c) requires vessels to provide adequate and safe conditions for carrying an observer and conditions that allow for operation of normal observer functions. To provide such conditions, a vessel must comply with the applicable regulations regarding observer accommodations (see 50 CFR parts 229, 300, 600, 622, 635, 648, 660, and 679) and possess a current United States Coast Guard (USCG) Commercial Fishing Vessel Safety Examination decal or a USCG certificate of examination. A vessel that fails to meet these requirements at the time an observer is to be deployed on the vessel is prohibited from fishing (50 CFR 600.746(f)) unless NMFS determines that an alternative platform (e.g., a second vessel) may be used, or determines that a vessel with inadequate or unsafe facilities is not be required to take an observer under 50 CFR 222.404. In any case, all persons on a vessel must cooperate in the operation of observer functions. Observer programs designed or carried out in accordance with 50 CFR 222.404 would be required to be consistent with existing observer-related NOAA policies and regulations, such as those under the Fair Labor and Standards Act (29 U.S.C. 201 et seq.), the Service Contract Act (41 U.S.C. 351 et seq.), Observer Health and Safety regulations (50 CFR part 600), and other relevant policies.

Again, note that fisheries not included on the 2015 AD may still be observed under statutory authority other than the ESA (e.g., MMPA, MSA). Additional information on observer programs in commercial fisheries can be found on the NMFS National Observer Program's Web site: http://www.st.nmfs.noaa.gov/observer-home/; links to individual regional observer programs may also be found on this Web site.

The sea turtle distribution and ecological use of habitats that leads to the overlap of sea turtles and fisheries is critical information that NMFS uses to inform the development of the final AD. A summary of this information was included in the proposed AD (October 22, 2014, 79 FR 63066) and was considered in the development of the final 2015 AD.

NMFS received a total of seven comments on the proposed rule from members of the public, the State of North Carolina, and Turtle Island Restoration Network. Commenters expressed general support of the rule or fishery observer programs, some with additional suggestions and requests for the inclusion or exclusion of particular fisheries. All substantive comments are specifically addressed below. Comments on issues outside the scope of the AD were noted, but are not responded to in this final rule.

Comment 1: Six commenters expressed general support of the rule.

Response: NMFS agrees, and has included 14 fisheries on the 2015 AD to allow for increased data gathering on sea turtle bycatch in order to accomplish the purposes of the rule.

Comment 2: The Turtle Island Restoration Network recommended that the Atlantic, Caribbean, and Gulf of Mexico pelagic longline and highly-migratory species fisheries be divided into independent fishery listings rather than treated as a whole, to ensure that adequate observer coverage is applied and subsequent independent ESA authority given.

Response: This recommendation is outside the scope of this rulemaking given the criteria for including fisheries on the AD as codified in the 2007 regulation (50 CFR 222.402), which specifies that NMFS will use the most recently published LOF as the comprehensive set of commercial fisheries to be considered for inclusion on the AD.

Comment 3: The North Carolina Department of Environment and Natural Resources (NCDENR) expressed concern on the inclusion of the North Carolina inshore gillnet fishery and recommended that the fishery not be included on the 2015 AD. This concern was based on several factors including the low level of Federal observer effort expended on the fishery since it was included in the 2010 AD, the relatively high level of observer effort associated with the state observer program, communication difficulties that inclusion can create when both state and federal observer programs interact with fishers, existence of permits and regulations to reduce sea turtle interactions within the fishery, and NMFS observer effort is already in place under MMPA authority.

Response: After considering this recommendation, NMFS has determined the best course of action is to include the North Carolina inshore gillnet fishery on the 2015 AD. In 2013, NMFS issued an ESA section 10(a)(1)(B) incidental take permit (ITP) to NCDENR, Division of Marine Fisheries, for the incidental take of sea turtles in the North Carolina inshore gillnet fishery. As a requirement of the permit, NCDENR must maintain a specific level of observer coverage to monitor and track the level of incidental take that is occurring. Although NCDENR is currently observing this fishery under the authority of the ITP, the observer coverage required by the ITP does not include all areas where the fishery operates. NMFS has evaluated the entire North Carolina inshore gillnet fishery based on the AD criteria, and has determined that this fishery meets the criteria for inclusion on the 2015 AD. However, NMFS does not intend to place observers on vessels in a fishery subject to observer requirements under an ITP without discussion and coordination with the state.

NMFS understands there may be confusion when multiple government agencies have regulatory authority to observe, resulting in both Federal and state observers within a fishery. NMFS strives to clarify and improve the communication process regarding fishery observer requirements with local, state, and other federal entities to achieve the highest possible level of compliance and coordination.

Comment 4: The Turtle Island Restoration Network recommended that all drift gillnet fisheries be monitored, particularly the California thresher shark/swordfish drift net fishery, due to the impacts these fisheries have on sea turtles.

Response: NMFS acknowledges that there are other fisheries, in addition to those listed on the 2015 AD, that may be a concern for sea turtles. The 2015 AD is not meant to be a comprehensive list of fisheries that interact with sea turtles or fisheries that require monitoring, but rather a focused list, based on specific inclusion criteria (see Purpose of the Sea Turtle Observer Requirement section). NMFS evaluates fisheries for inclusion on the AD on an annual basis and will re-evaluate the gillnet fisheries recommend by Turtle Island Restoration Network in future AD's. The California thresher shark/swordfish drift gillnet fishery is currently listed as a Category I fishery on the LOF, and therefore NMFS may monitor this entire fishery for marine mammals, which also allows for the collection of information on sea turtle bycatch. Dedicated observer coverage of this fishery is currently a top priority of NMFS and is considered necessary and essential to the successful implementation and monitoring of the Pacific Offshore Cetacean Take Reduction Plan and Endangered Species Act requirements already in place for the fishery. Indications are that observer coverage goals and mandates for this fishery are likely to increase in the foreseeable future due to management considerations already in place. Because NMFS does not intend to monitor this fishery beyond its existing coverage under other authorities, NMFS is not including this fishery on the 2015 AD.

Comment 5: The Turtle Island Restoration Network expressed concern that the Virginia Pound Net and U.S. Mid-Atlantic mixed species stop seine/weir/pound net fisheries were not included in the 2015 AD.

Response: In accordance with the criteria for listing a fishery on the AD, NMFS is not including the Virginia Pound Net or the Mid-Atlantic mixed species stop seine/weir/pound net on the 2015 AD because NMFS does not intend to monitor these fisheries for sea turtle takes at this time. NMFS has observed the Virginia Pound Net fishery for sea turtle takes in the past, and NMFS currently maintains the authority to observe for marine mammals. Although these fisheries are not included on the 2015 AD, the AD is published annually and these fisheries may be considered for inclusion on a future AD.

Comment 6: The Turtle Island Restoration Network commented that, although sea turtle takes occur in association with longline fisheries, no longline fishery was included in the 2015 AD and recommended that longline fisheries (particularly the Hawaii deep-set and shallow-set longline fisheries, as well as the western Pacific pelagic deep-set fishery) be included and observed if funding becomes available for NMFS to undertake additional observing effort.

Response: NMFS agrees that sea turtle interactions occur in association with longline fisheries. However, in accordance with the criteria for listing a fishery on the AD, described above, NMFS is not including the longline fisheries noted by the Turtle Island Restoration Network on the 2015 AD because NMFS does not intend to monitor the fishery beyond the existing coverage. At this time, NMFS believes that monitoring efforts available through MMPA and MSA authorities provide sufficient monitoring coverage for assessing sea turtle interactions in longline fisheries. As noted earlier, information on sea turtles is collected whenever an interaction occurs on an observed trip. NMFS does not currently have funding available to add observer coverage specifically for the purposes of monitoring for sea turtle bycatch, and therefore these fisheries did not meet the criteria for listing on the 2015 AD. NMFS will continue to assess these and other fisheries for inclusion on future ADs.

NMFS includes 14 fisheries (12 in the Atlantic Ocean/Gulf of Mexico and 2 in the Pacific Ocean) on the 2015 AD. The 14 fisheries, described below and listed in Table 1, represent several gear types, including trawl, gillnet, trap/pot, and weir/seine.

The 2014 LOF (79 FR 14418, March 14, 2014) was used as the comprehensive list of commercial fisheries to evaluate for inclusion on the AD. All of the fisheries included on the AD are also included in the 2015 LOF (79 FR 77919, December 29, 2014). The fishery name, definition, and number of vessels/persons for fisheries listed on the AD are taken from the most recent LOF. Additionally, the fishery descriptions below include a particular fishery's current classification on the MMPA LOF (i.e., Category I, II, or III); Category I and II fisheries are required to carry observers under the MMPA if requested by NMFS. As noted previously, NMFS also has authority to observe fisheries in Federal waters under the MSA and collect sea turtle bycatch information.

Interactions with trawl fisheries are of particular concern for sea turtles, because forced submergence in any type of restrictive gear can lead to lack of oxygen and subsequent death by drowning. Metabolic changes that can impair a sea turtle's ability to function can occur within minutes of forced submergence (Lutcavage et al., 1997).

Trawls that are not outfitted with turtle excluder devices (TEDs) may result in forced submergence. Currently, only otter trawl fisheries capable of catching shrimp and operating south of Cape Charles, Virginia, and in the Gulf of Mexico, as well as trawl fisheries targeting summer flounder south of Cape Charles, Virginia, in the summer flounder fishery-sea turtle protection area (50 CFR 222.102), are required to use TEDs.

The Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery (estimated 4,950 vessels/persons) targets shrimp using various types of trawls; NMFS will focus on the component of the fishery that uses skimmer trawls for the 2015 AD. Skimmer trawls are used primarily in inshore/inland shallow waters (typically less than 20 ft. (6.1 m)) to target shrimp. The skimmer trawl has a rigid “L”-shaped or triangular metal frame with the inboard portion of the frame attached to the vessel and the outboard portion attached to a skid that runs along the seabed.

Skimmer trawl use increased in response to TED requirements for shrimp bottom otter trawls. Skimmer trawls currently have no TED requirement, but are subject to tow time limits of 55 minutes from April 1 to October 31, and 75 minutes from November 1 to March 31. Skimmer trawls are used in North Carolina, Florida (Gulf Coast), Alabama, Mississippi, and Louisiana. There are documented takes of sea turtles in skimmer trawls in North Carolina and the Gulf of Mexico. All Gulf of Mexico states, except Texas, include skimmer trawls as an allowable gear. In recent years, the skimmer trawl has become a major gear in the inshore shrimp fishery in the Northern Gulf and also has some use in inshore North Carolina. Louisiana hosts the vast majority of skimmer boats, with 2,248 skimmer and butterfly net trawlers reporting landings in 2008. In 2008, Mississippi had approximately 62 active skimmer, butterfly, and chopstick boats, Alabama had 60 active skimmer boats, and North Carolina had 97 skimmer vessels (NMFS 2014). However, skimmer vessels in North Carolina have declined in recent years to 64 active vessels in 2010.

Skimmer trawl effort overlaps with sea turtle distribution and, as noted above, takes have been observed in this fishery. In response to high numbers of sea turtle strandings since 2010, a portion of fishery observer effort was shifted from otter trawls to the nearshore skimmer trawls in the northern Gulf of Mexico during the summers of 2012, 2013, and 2014. In 2012, 119 sea days were observed in the skimmer trawl fishery resulting in 24 observed interactions with sea turtles. In 2013, 145 sea days were observed, resulting in 8 observed interactions with sea turtles. In 2014, 82 sea days were observed, resulting in 10 observed interactions with sea turtles.

Continued observer coverage to understand the scope and impact of turtle takes in this fishery is needed to inform management decisions on what additional actions may be necessary to minimize and prevent sea turtle takes, and further sea turtle conservation and recovery.

The Southeastern U.S. Atlantic/Gulf of Mexico shrimp trawl fishery is classified as Category II on the MMPA LOF, and mandatory observer coverage in Federal waters began in 2007 under the MSA. The fishery is currently observed at approximately 1% of total fishery effort. The fishery was previously included in the 2010 AD, which allowed for observer coverage to be shifted to skimmer trawls to specifically investigate bycatch of sea turtles. NMFS includes this fishery again pursuant to the criteria identified at 50 CFR 222.402(a)(1) for including a fishery on the AD, because sea turtles are known to occur in the same areas where the fishery operates, takes have been previously documented in this fishery, and NMFS intends to continue to focus observer coverage in the component of the fishery that uses skimmer trawls.

The Gulf of Mexico Mixed Species Trawl Fishery (estimated 20 vessels/persons) targets fish using various types of trawl gear, including bottom otter trawl gear targeting sheepshead. This fishery is located in state waters, and is classified as Category III on the MMPA LOF. NMFS has not previously required vessels operating in this fishery to carry an observer under MMPA authority, and this fishery was not included in the 2010 AD. NMFS includes this fishery in the 2015 AD pursuant to the criteria identified at 50 CFR 222.402(a)(1) for including a fishery on the AD, because sea turtles are known to occur in the same areas where the fishery operates, takes have been documented in similar gear types, mainly the shrimp trawl fishery, and NMFS intends to monitor this fishery.

Sea turtles are vulnerable to entanglement and drowning in gillnets, especially when the gear is left unattended. The main risk to sea turtles from capture in gillnet gear is forced submergence. Sea turtle entanglement in gillnets can also result in severe constriction wounds and/or abrasions. Large mesh gillnets (e.g., 10-12 in. [25.4-30.5 cm] stretched mesh or greater) have been documented as particularly effective at capturing sea turtles. Additionally, sea turtles have been documented entangled in smaller mesh gillnets.

Given known interactions between sea turtles and this gear type, and the need to obtain more coverage on state inshore fisheries, NMFS includes the California Halibut, White Seabass and Other Species Set Gillnet Fishery; California Yellowtail, Barracuda, and White Seabass Drift Gillnet Fishery; Chesapeake Bay Inshore Gillnet Fishery; Long Island Inshore Gillnet Fishery; North Carolina Inshore Gillnet Fishery; and Gulf of Mexico Gillnet Fishery in the 2015 AD. Each of these fisheries, with the exception of the Gulf of Mexico Gillnet Fishery, was listed on the 2010 AD.

The California halibut, white seabass, and other species set gillnet fishery (estimated 50 vessels/persons) targets halibut, white seabass, and other species from the U.S.-Mexico border north to Monterey Bay using 200 fathom (1,200 ft.; 366 m) gillnets with a stretch mesh size of 8.5 in (31.6 cm). Net soak duration is typically 8-10, 19-24, or 44-49 hours at a depth ranging from 15-50 fathoms (90-300 ft.; 27-91 m), with most sets from 15-35 fathoms (90-210 ft.; 27-64 m). No more than 1500 fathoms (9,000 ft.; 2,743 m) of gill or trammel net may be fished in combination for California halibut and angel shark. Fishing occurs year-round, with effort generally increasing during summer months and declining during the last three months of the year. The central California portion of the fishery from Point Arguello to Point Reyes has been closed since September 2002, following a state ban on gillnets inshore of 60 fathoms (360 ft.; 110 m). Since 1990, set gill nets have been prohibited in state waters south of Point Arguello and within 70 fathoms (420 ft.; 128 m) or one mile (1.6 km), whichever is less, around the Channel Islands. The California Department of Fish and Game (CDFG) manages the fishery as a limited entry fishery with gear restrictions and area closures.

This fishery is classified as Category II on the MMPA LOF, which authorizes NMFS to observe this fishery in state waters for marine mammal interactions and to collect information on sea turtles should a take occur on an observed trip. This fishery was included in the 2010 AD. This fishery was observed at 13% of all trips in 2010, 8% in 2011, and 6% in 2012. During that time, no sea turtle bycatch was observed in the fishery. Notwithstanding the fact that no sea turtle takes were documented in this fishery during this three year period, NMFS again includes this fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for including a fishery on the AD, because it operates in the same waters that turtles are known to occur, this gear type is known to result in the incidental take of sea turtles based on documented takes, and NMFS intends to monitor this fishery.

The California yellowtail, barracuda, and white seabass drift gillnet fishery (30 vessels/persons) targets primarily yellowtail and white seabass, and secondarily barracuda, with target species typically determined by market demand on a short-term basis. Drift gillnets are up to 6,000 ft. (1,829 m) long and are set at the surface. The mesh size depends on target species and is typically 6.0-6.5 in (15-16.5 cm). When targeting yellowtail and barracuda, the mesh size must be ≥3.5 in (9 cm); when targeting white seabass, the mesh size must be ≥6 in (15.2 cm). From June 16 to March 14 not more than 20%, by number, of a load of fish may be white seabass with a total length of 28 in (71 cm). A maximum of ten white seabass per load may be taken if taken in gillnet or trammel nets with meshes from 3.5-6.0 in (9-15 cm) in length. The fishery operates year-round, primarily south of Point Conception with some effort around San Clemente Island and San Nicolas Island. This fishery is a limited entry fishery with various gear restrictions and area closures managed by the CDFG.

This fishery is classified as Category II on the MMPA LOF, which authorizes NMFS to observe this fishery in state waters for marine mammal interactions and to collect information on sea turtles should a take occur on an observed trip. This fishery was included in the 2010 AD. This fishery was observed at 5% of all trips in 2010, 3% in 2011, and 1% in 2012. During that time, no sea turtle bycatch was observed in the fishery. Notwithstanding the fact that no sea turtle takes were documented in this fishery during this three year period, NMFS again includes this fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for including a fishery on the AD because it operates in the same waters that turtles are known to occur, this gear type is known to result in the incidental take of sea turtles based on documented takes, and NMFS intends to monitor this fishery.

The Chesapeake Bay inshore gillnet fishery (estimated 1,126 vessels/persons) targets menhaden and croaker using gillnet gear with mesh sizes ranging from 2.875-5 in (7.3-12.7 cm), depending on the target species. The fishery operates between the Chesapeake Bay Bridge-Tunnel and the mainland. The fishery is managed under the Interstate Fishery Management Plans (FMPs) for Atlantic menhaden and Atlantic croaker. Gillnets in Chesapeake Bay also target striped bass and spot croaker.

This fishery is classified as Category II on the MMPA LOF, and was included in the 2010 AD. There has been limited observer coverage in this fishery since 2010, with 12 observed trips in 2010, one observed trip in 2011, and three observed trips in 2013. To date, observer coverage in gillnet fisheries has focused on Federally-managed fisheries. There is a need to better understand the gear fished in state waters and the extent to which this gear interacts with sea turtles. Given the risk of interaction and the limited data currently available on interactions, NMFS again includes this fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for listing a fishery on the AD because sea turtles are known to occur in the same areas where the fishery operates, takes have been previously documented in similar gear, the fishery operates during a period of high sea turtle strandings, and NMFS intends to monitor this fishery.

The Long Island Sound inshore gillnet fishery (estimated 20 vessels/persons) includes all gillnet fisheries operating west of a line from the north fork of the eastern end of Long Island, New York (Orient Point to Plum Island to Fishers Island) to Watch Hill, Rhode Island (59 FR 43703, August 25, 1994). Target species include bluefish, striped bass, weakfish, and summer flounder.

This fishery is classified as Category II on the MMPA LOF and was included in the 2010 AD. There has been limited observer coverage in this fishery since 2010. To date, observer coverage in gillnet fisheries has focused on Federally-managed fisheries. However, the NMFS Northeast Fisheries Observer Program has worked with the state of New York to develop a plan to achieve observer coverage in New York state waters between 2014 and 2017, which includes approximately 250 gillnet trips annually. There is a need to better understand the gear fished in state waters and the extent to which this gear interacts with sea turtles. Given the risk of interaction and the limited data currently available on interactions, and the new partnership with the State of New York, NMFS again includes this fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for listing a fishery on the AD. NMFS also makes this determination because sea turtles are known to occur in the same areas where the fishery operates, takes have been previously documented in similar gear, the fishery operates during a period of high sea turtle strandings, and NMFS intends to monitor this fishery.

The North Carolina inshore gillnet fishery (approximately 1,323 vessels/persons) targets species including southern flounder, weakfish, bluefish, Atlantic croaker, striped mullet, spotted seatrout, Spanish mackerel, striped bass, spot, red drum, black drum, and shad. This fishery includes any fishing effort using any type of gillnet gear, including set (float and sink), drift, and runaround gillnet for any target species inshore of the COLREGS lines in North Carolina. This fishery is managed under state and Atlantic States Marine Fisheries Commission (ASMFC) interstate FMPs, applying net and mesh size regulations, and seasonal area closures in the Pamlico Sound Gillnet Restricted Area.

NMFS issued two ESA section 10(a)(1)(B) permits for the North Carolina state-wide inshore gillnet fishery to incidentally take sea turtles in 2013, and to incidentally take Atlantic sturgeon in 2014, which include all inshore, estuarine waters, including Core Sound and Pamlico Sound. The permits require the State of North Carolina to maintain a minimum of 7% observer coverage for large mesh gillnet in each state management area for the spring, summer, and fall seasons. It also requires a minimum of 2% observer coverage for small mesh gillnets. Since issuance of the sea turtle incidental take permit in September 2013, it is estimated that 261 green sea turtles (173 alive, 88 dead) and 15 Kemp's ridley sea turtles (all alive), have been incidentally taken in the inshore large mesh gillnet fishery. Additionally, one live green sea turtle was observed in the small mesh gillnet fishery.

This fishery is classified as Category II on the MMPA LOF, and was included in the 2010 AD. NMFS has observed this fishery with limited coverage since 2010, observing 42 trips in 2010, 18 trips in 2011, 22 trips in 2012, and 28 trips in 2013. Although the state is currently required to maintain observer coverage in inshore waters, NMFS again includes this fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for listing a fishery on the AD because sea turtles are known to occur in the same areas where the fishery operates, takes have been previously documented in this fishery, the fishery operates during a period of high sea turtle strandings, and NMFS intends to monitor this fishery.

The Gulf of Mexico Gillnet Fishery (estimated 724 vessels/persons) operates in state inshore waters, targeting finfish, including Spanish mackerel, king mackerel, striped mullet, Florida pompano, and southern flounder using sink gillnets and strike gillnets.

This fishery is classified as Category II on the MMPA LOF, which authorizes NMFS to observe this fishery for marine mammal interactions and to collect information on sea turtles should a take occur on an observed trip. To better characterize fishing effort and bycatch, the NMFS Southeast Gillnet Observer Program began placing observers on state commercial gillnet vessels in coastal Louisiana, Mississippi, and Alabama in 2012. NMFS includes this fishery in the 2015 AD because sea turtles are known to occur in the same areas where the fishery operates and takes have been documented in similar other fisheries using gillnet gear, and NMFS intends to monitor this fishery.

Sea turtles are known to become entangled in the buoy lines (also called vertical lines) of trap/pot gear, and there have been anecdotal reports that sea turtles may interact with the trap/pot itself. Turtles entangled in trap/pot gear may drown or suffer injuries (and potential subsequent mortality) due to constriction by the rope or line. Takes of both leatherback and hard-shelled sea turtles have been documented in this gear type. NMFS Greater Atlantic Regional Fisheries Office (GARFO), formerly the Northeast Regional Office, established the Northeast Atlantic Sea Turtle Disentanglement Network (STDN) in 2002 to respond to entanglements in vertical lines associated with trap/pot gear. Reports of entangled sea turtles come from fishermen, boaters, and the general public. Since 2002, entanglements in vertical lines have averaged 20.4 annually. Takes in 2012 and 2013 increased significantly with 41 and 56 takes documented in each year, respectively. These numbers include all vertical line interactions, the vast majority of which were identified as trap/pot gear (as opposed to gillnet gear). A more systematic data collection on these interactions is needed to begin understanding the extent to which interactions occur in order to implement the prohibitions against takes, including preventing or minimizing takes.

Three pot/trap fisheries were included in the 2010 AD; Atlantic Blue Crab Trap/Pot Fishery, Atlantic Mixed Species Trap/Pot Fishery, and the Northeast/Mid-Atlantic American Lobster Trap/Pot Fishery. However, limited or no observer coverage has been achieved in these fisheries since listing on the 2010 AD. While some pot/trap vessels can be observed through traditional methods, other vessels participating in these fisheries, especially in state waters, may be too small to carry observers, which create challenges for observer programs. Further discussions regarding the most appropriate and effective methodologies for observing the pot/trap fisheries will be beneficial. On June 27, 2014, NMFS published a final rule under the MMPA that will reduce the volume of vertical lines in Atlantic waters (79 FR 36586). In addition to helping conserve and recover large whales, this reduction is expected to benefit sea turtles. NMFS will continue to monitor the implementation of this rule and evaluate its effectiveness. In addition, staff from GARFO, the Northeast Fisheries Science Center (NEFSC), and Fisheries and Oceans Canada met in December 2014 to discuss technologies that may apply to mitigating sea turtle interactions with vertical lines. Based on these discussions, the GARFO and NEFSC are developing a research plan related to vertical line and sea turtle interactions. This plan will consider observer coverage in these fisheries. New methods to more effectively monitor these fisheries may be developed and implemented as an outcome of this meeting. Based on the input from the states, NMFS again includes all three pot/trap fisheries in the 2015 AD, further described below.

The Atlantic blue crab trap/pot fishery (estimated 8,557 vessels/persons) targets blue crab using pots baited with fish or poultry typically set in rows in shallow water. The pot position is marked by either a floating or sinking buoy line attached to a surface buoy. The fishery occurs year-round from the south shore of Long Island at 72° 30′ W. long. in the Atlantic and east of the fishery management demarcation line between the Atlantic Ocean and the Gulf of Mexico (50 CFR 600.105), including state waters. The fishery is managed under state FMPs.

This fishery is classified as Category II on the MMPA LOF and was included in the 2010 AD. However, since NMFS included this fishery in the 2010 AD, NMFS has been unable to observe the fishery, as discussed above. Accordingly, NMFS again includes this fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for listing a fishery on the AD because sea turtles are known to occur in the same areas where the fishery operates, takes have been documented in similar gear types (i.e. lobster pot fishery), and NMFS intends to monitor this fishery.

The Atlantic mixed species trap/pot fishery (estimated 3,467 vessels/persons) targets species including hagfish, shrimp, conch/whelk, red crab, Jonah crab, rock crab, black sea bass, scup, tautog, cod, haddock, pollock, redfish (ocean perch), white hake, spot, skate, catfish, and stone crab. The fishery includes all trap/pot operations from the Maine-Canada border south through the waters east of the fishery management demarcation line between the Atlantic Ocean and the Gulf of Mexico (50 CFR 600.105), but does not include the following trap/pot fisheries (as defined on the MMPA LOF): Northeast/Mid-Atlantic American lobster trap/pot; Atlantic blue crab trap/pot; Florida spiny lobster trap/pot; Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot; U.S. Mid-Atlantic eel trap/pot fisheries; and the Southeastern U.S. Atlantic, Gulf of Mexico golden crab fishery (68 FR 1421, January 10, 2003). The fishery is managed under various Interstate and Federal FMPs.

This fishery is classified as Category II on the MMPA LOF and was included in the 2010 AD. However, since listing this fishery on the 2010 AD, NMFS has been unable to observe the fishery, as discussed above. Accordingly, NMFS again includes this fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for listing a fishery on the AD because sea turtles are known to occur in the same areas where the fishery operates, takes have been documented in similar gear types (i.e. lobster pot fishery), and NMFS intends to monitor this fishery.

The Northeast/Mid-Atlantic American lobster trap/pot fishery (estimated 11,693 vessels/persons) targets American lobster primarily with traps, while approximately 2-3% of the target species is taken by mobile gear (trawls and dredges). The fishery operates in inshore and offshore waters from Maine to New Jersey, and may extend as far south as Cape Hatteras, North Carolina. Approximately 80% of American lobster is harvested from state waters; therefore, the ASMFC has the primary regulatory role. The fishery is managed in state waters under the ASMFC Interstate FMP and in Federal waters under the Atlantic Coastal Fisheries Cooperative Management Act.

This fishery is classified as Category I on the MMPA LOF and was included in the 2010 AD. Since that time, NMFS observed 22 lobster trips in 2013 and 32 trips in 2014, with 216 observation days planned for the 2014-2015 schedule. NMFS STDN has documented 83 leatherback entanglements in lobster trap gear operating in Maine, Massachusetts, Rhode Island, Connecticut, New York, and New Jersey since 2002. These entanglements have occurred between May and October (STDN, unpublished data), which is the time period when observer coverage for this fishery will be focused.

NMFS again includes this fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for listing a fishery on the AD because sea turtles are known to occur in the same areas where the fishery operates, takes have been documented in this fishery, and NMFS intends to monitor this fishery.

Pound net, weir, seine and floating trap fisheries may use mesh similar to that used in gillnets, but the gear is prosecuted differently from traditional gillnets. For example, pound net leaders have a mesh component similar to a gillnet; yet sea turtles have been documented entangled in pound net leaders. Pound net leaders in the Virginia portion of the Chesapeake Bay are subject to requirements designed to reduce sea turtle bycatch. Purse seines, weirs and floating traps also have the potential to entangle and drown sea turtles, as they are set similarly to pound nets. Turtles have been documented in the pounds of pound net gear and/or weirs in Massachusetts, New York, Maryland, North Carolina, and Virginia. The turtles observed in these pounds have generally been alive and uninjured. In Virginia, sea turtles have been documented becoming entangled with the leader, which often results in mortality.

Four pound net/weir/seine fisheries were included on the 2010 AD: the Mid-Atlantic haul/beach seine, the Mid-Atlantic menhaden purse seine, the Mid-Atlantic mixed species stop seine/weir/pound net, and the Virginia pound net fishery. Based on the information provided by states and the best available scientific information, NMFS includes again two of these fisheries: the Mid-Atlantic haul/beach seine fishery, Mid-Atlantic menhaden purse seine fishery, and adds the Rhode Island floating trap fishery on the 2015 AD.

The Mid-Atlantic haul/beach seine fishery (estimated 565 vessels/persons) targets striped bass, mullet, spot, weakfish, sea trout, bluefish, kingfish, and harvest fish using seines with one end secured (e.g., swipe nets and long seines) and seines secured at both ends or those anchored to the beach and hauled up on the beach. The beach seine system also uses a bunt and a wash net that are attached to the beach and extend into the surf. The beach seines soak for less than two hours. The fishery occurs in waters west of 72° 30′ W. long. and north of a line extending due east from the North Carolina-South Carolina border. Fishing on the Outer Banks, North Carolina occurs primarily in the spring (April to June) and fall (October to December). In the Chesapeake Bay, this gear has been historically fished in the southwest portion of the Bay with some effort in the northwest portion. Effort begins to increase in early May, peaks in early/mid-June, and continues into July. During this time, based on historical data from Virginia, approximately 100 haul seine trips occur. Beach haul seines have been documented to interact with sea turtles.

The fishery is managed under the Interstate FMPs for Bluefish and for Atlantic Striped Bass of the Atlantic Coast from Maine through North Carolina, and is subject to Bottlenose Dolphin Take Reduction Plan implementing regulations.

This fishery is classified as Category II on the MMPA LOF and was included in the 2010 AD. NMFS observed this fishery at low levels prior to 2008, but it has not been observed since then. NMFS again includes this fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for listing a fishery on the AD based on suspected interactions with sea turtles given the nature of the gear and fishing methodology in addition to effort overlapping with sea turtle distribution. In the Chesapeake Bay, the fishery operates at the same time as historically elevated sea turtle strandings, and NMFS intends to monitor this fishery.

The Mid-Atlantic menhaden purse seine fishery (estimated 5 vessels/persons) targets menhaden and thread herring using purse seine gear. Most sets occur within 3 mi (4.8 km) of shore with the majority of the effort occurring off North Carolina from November to January, and moving northward during warmer months to southern New England. The fishery is managed under the Interstate FMP for Atlantic Menhaden. In the Chesapeake Bay, this fishery operates to a limited extent during a period of high sea turtle strandings (May and June). This fishery is classified as Category II on the MMPA LOF and was listed on the 2010 AD. NMFS has observed this fishery at low levels, with nine trips observed in 2010, and three trips observed in 2012. NMFS again includes this fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for listing a fishery on the AD, given the nature of the gear and fishing methodology in addition to effort overlapping with sea turtle distribution, and NMFS intends to monitor this fishery.

The Rhode Island Floating Trap Fishery (estimated nine vessels/persons) is a small fishery that sets traps similar to a weir/pound net seasonally (May-October) targeting scup, striped sea bass, and squid.

This fishery is classified as Category III on the MMPA LOF, and NMFS has not previously required vessels operating in this fishery to carry an observer under MMPA authority. This fishery was not included in the 2010 AD. Turtles have been documented in the pounds of pound net gear and/or weirs in Massachusetts, New York, Maryland, and Virginia, which operates similarly to the Rhode Island Floating Trap Fishery. There have also been anecdotal reports of sea turtle interactions in this fishery, but bycatch levels are unknown. NMFS includes this fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for listing a fishery on the AD because sea turtles are known to occur in the same areas where the fishery operates, takes have been documented in similar gear types, such as the Virginia and Maryland pound nets, and NMFS intends to monitor this fishery.

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

The information collection for the AD is approved under Office of Management and Budget (OMB) under OMB control number 0648-0593.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB Control Number.

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

An environmental assessment (EA) was prepared under the National Environmental Policy Act (NEPA) on the issuance of the regulations to implement this observer requirement in 50 CFR part 222, subpart D. The EA concluded that implementing these regulations would not have a significant impact on the human environment. This final rule would not make any significant change in the management of fisheries included on the AD, and therefore, this final rule would not change the analysis or conclusion of the EA. If NMFS takes a management action for a specific fishery, for example, requiring fishing gear modifications, NMFS would first prepare any environmental document required under NEPA and specific to that action.

This final rule would not affect species listed as threatened or endangered under the ESA or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this final rule would not affect the conclusions of those opinions. The inclusion of fisheries on the AD is not considered to be a management action that would adversely affect threatened or endangered species. If NMFS takes a management action, for example, requiring modifications to fishing gear and/or practices, NMFS would review the action for potential adverse effects to listed species under the ESA.

This final rule would have no adverse impacts on sea turtles and may have a positive impact on sea turtles by improving knowledge of sea turtles and the fisheries interacting with sea turtles through information collected from observer programs.

This final rule would not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act.

NMFS and the Council manage the Gulf reef fish fishery under the FMP. The Council prepared the FMP and NMFS implements the FMP through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On November 21, 2014, NMFS published a proposed rule for the framework action and requested public comment (79 FR 69418). The proposed rule and the framework action outline the rationale for the actions contained in this final rule. A summary of the actions implemented by the framework action and this final rule is provided below.

This final rule revises the red snapper recreational AMs to support management efforts to maintain landings within the recreational quota and to mitigate any recreational quota overages should they occur.

This final rule establishes a red snapper recreational ACT by applying a buffer to the recreational quota that is based on the Council's annual catch limit (ACL)/ACT control rule developed in the Generic ACL/Amendment (76 FR 82044, December 29, 2011). The ACL/ACT control rule is used to determine the appropriate target catch levels that account for management uncertainty in maintaining catches at or below the ACL (quota). The control rule is intended to be applied separately to the recreational and commercial sectors because each sector has different levels of management uncertainty. The control rule recommends no buffer be applied to the quota for the red snapper commercial sector because the sector is managed by an IFQ program, has accurate landings data, and has not exceeded its quota in the last 7 years the IFQ program has been in effect. For the recreational sector, the control rule recommends applying a 20-percent buffer to the quota primarily because the recreational quota has been exceeded in 3 of the last 4 years. When the 20-percent buffer is applied to the quota, it results in an ACT of 4.312 million lb (1.956 million kg), round weight.

This final rule also revises the procedure for determining the recreational season length (closure date). Beginning in the 2015 fishing year, the red snapper recreational season closure date will be based on when the recreational ACT will be met instead of when the recreational quota will be met. Using the ACT to set the season length serves as an in-season AM and reduces the probability of exceeding the recreational quota during a fishing year from 50 percent to 15 percent.

This final rule also revises the recreational AMs to include a quota overage adjustment (payback) should the recreational quota be exceeded while the red snapper stock is overfished. If red snapper are overfished and the recreational quota is exceeded, then in the year following the overage, the recreational quota will be reduced by the amount of the recreational quota overage in the prior fishing year, unless the best scientific information available determines that a greater, lesser, or no overage adjustment is necessary. If the quota is adjusted, the recreational ACT will also be reduced to maintain the 20-percent buffer between the ACT and the adjusted quota.

NMFS received a total of 40 public comments on the proposed rule: 2 Comments from non-governmental organizations, 4 comments from fishing organizations, and the rest from individuals. Ten commenters submitted suggestions for the reef fish fishery that were outside the scope of the framework and the proposed rule, including comments related to reallocation between sectors, regional management, area closures, different fishing seasons, making red snapper a gamefish, and establishing a recreational tag system. A number of commenters also expressed opinions about the status of the red snapper stock. Eleven commenters stated general opposition to the rule, while 4 commenters expressed general support for the rule. Only specific comments related to the actions contained in the framework and the proposed rule as well as NMFS' respective responses are summarized below.

Comment 1: Accountability measures, such as ACTs and payback provisions are unreasonable requirements because the Marine Recreational Information Program (MRIP) was never designed to count, in real-time, the number of red snapper being harvested by anglers, and so these measures cannot be used for in-season quota monitoring.

Response: NMFS disagrees that managing the recreational sector for Gulf red snapper with an ACT and requiring a payback is unreasonable. NMFS agrees that MRIP is not designed to count landings in real time. This is why the Federal red snapper recreational fishing season begins each year on June 1, and with implementation of this final rule, will remain open until the ACT is projected to be reached. The MRIP information, in combination with other landings and effort information, is used to project season lengths and is not used for in-season monitoring. Using the ACT to set the season accounts for uncertainty in the projections and is a reasonable method to help ensure the recreational quota is not exceeded. However, if the quota is exceeded, the payback provision mitigates possible biological consequences to the stock resulting from the overage. Using an ACT and a payback in this manner is consistent with the National Standard 1 Guidelines.

Comment 2: After any red snapper recreational quota overage, the ACT should be reset using the Council's ACL/ACT control rule rather than just reducing the recreational quota by a fixed percentage. This would allow the buffer to change in response to changing management conditions.

Response: NMFS disagrees that the ACT should be reset using the ACL/ACT control rule after a recreational quota overage. The ACT is not intended to address quota overages. The ACT is used to account for management uncertainty in setting the recreational season and is intended to help ensure that the quota is not exceeded. If a quota overage does occur, the payback provision, which reduces the quota by the amount of the overage and also reduces the ACT to keep a consistent 20 percent buffer, mitigates for that excess harvest. Keeping a consistent buffer of 20 percent between the quota and ACT provides for more stable management of the recreational sector. If new information indicates that a 20 percent buffer may no longer be appropriate, the Council can consider revising the ACT. The ACL/ACT control rule would be used to determine one alternative for an appropriate buffer. The Council would also consider other reasonable alternatives before deciding whether to adjust the ACT.

Comment 3: No AMs should be applied to the recreational sector until there is better data to determine red snapper recreational harvest.

Response: NMFS disagrees that no AMs should be applied to the recreational sector until some unspecified time in the future. AMs are required by the Magnuson-Stevens Act and the AMs implemented in this final rule are consistent with that requirement and the National Standard 1 Guidelines. Further, estimates of red snapper landings used to support implementation of the AMs in this final rule are based on the best scientific information available as required by National Standard 2. Currently, NMFS uses historical landings data to project the length of the Federal season. This landings information is obtained from MRIP-based private angler/charter survey; the Southeast Region Headboat Survey; the Louisiana Department of Wildlife and Fisheries creel survey, and the Texas Parks and Wildlife Department creel survey. NMFS agrees there are opportunities to improve the landings data collection process and is collaborating with many of the Gulf states' marine fisheries resource agencies to make improvements in both data collection and data analysis.

Comment 4: Because the red snapper allocation between the commercial and recreational sectors does not accurately reflect the actual use of the resource by the recreational sector, the AMs are unreasonable requirements.

Response: NMFS disagrees that the AMs implemented by this rule are unreasonable requirements. As explained above, AMs are required by the Magnuson-Stevens Act, and both the ACT and payback provision are consistent with the National Standard 1 Guidelines. The framework action developed by the Council did not consider and this rule does not address the red snapper allocation between the recreational and commercial sectors. Thus, to the extent this comment is advocating for a change in the current allocation, it is beyond the scope of the current rulemaking. However, NMFS notes that the Council is currently evaluating alternatives to the current red snapper allocation in Amendment 28 to the FMP.

Comment 5: Introducing further restrictions, like ACTs and paybacks, on the red snapper recreational sector would have detrimental economic impacts to the sector and coastal communities supported by recreational fishing. These impacts would be large because the recreational sector contributes more money into the local economies and creates more jobs than the commercial sector.

Response: NMFS recognizes the economic importance of the recreational sector to many coastal communities; however, as discussed in the proposed rule and above, the Council has determined that implementing the ACT and payback provisions are necessary for the management of the recreational sector. Although the AMs are expected to result in economic losses to recreational fishing participants and their communities, the AM alternatives that were selected are expected to best achieve the objectives of the framework action while minimizing, to the extent practicable, adverse economic effects.

Comment 6: The payback provision states that the AA will file a notification with the Office of the Federal Register to reduce the recreational quota by the amount of the quota overage unless the best scientific information available determines that a greater, lesser, or no overage adjustment is necessary. How will this determination be made?

Response: NMFS will make the final determination about whether the best scientific information available shows that something other than a payback of 100 percent of the quota overage is necessary. However, NMFS anticipates that this scientific information will likely come from a red snapper stock assessment and would also be reviewed by the Council's Scientific and Statistical Committee. The rationale for an overage adjustment, if different from 100 percent, would be described in the Federal Register notice that is published when AMs are implemented.

The Regional Administrator, Southeast Region, NMFS has determined that this final rule is necessary for the conservation and management of Gulf red snapper and is consistent with the framework action, the FMP, the Magnuson-Stevens Act, and other applicable law.

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

A final regulatory flexibility analysis (FRFA) was prepared for this action. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant economic issues raised by public comment, NMFS' responses to those comments, and a summary of the analyses completed to support the action. The FRFA follows.

No public comments specific to the IRFA were received and, therefore, no public comments are addressed in this FRFA. Some comments with indirect socio-economic implications were received and these are addressed in the comments and responses section of this rule. No changes in the final rule were made in response to public comments.

This final rule establishes a red snapper recreational ACT; revises the procedure for determining the recreational season length (closure date); and, adds a quota overage adjustment (payback) should the recreational quota be exceeded while the red snapper stock is overfished.

NMFS agrees that the Council's choice of preferred alternatives will best achieve the Council's objectives for the framework action while minimizing, to the extent practicable, the adverse effects on fishers, support industries, and associated communities. The preamble of the proposed rule and this final rule provide a statement of the need for and objectives of this final rule, and it is not repeated here.

The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this final rule. Accordingly, this final rule does not implicate the Paperwork Reduction Act.

NMFS expects this final rule to directly affect federally permitted for-hire vessels operating in the Gulf reef fish fishery. The for-hire sector is comprised of charter boats and headboats (party boats). Although charter boats tend to be smaller in length, on average, than headboats, the key distinction between the two types of operations is how the fee is determined. On a charter boat trip, the fee charged is for the entire vessel, regardless of how many passengers are carried, whereas the fee charged for a headboat trip is paid per individual angler.

A Federal Gulf charter/headboat permit has been required for reef fish since 1996 and the sector currently operates under a limited access permit system. In 2013, there were 1,190 valid (non-expired) or renewable Gulf of Mexico Charter/Headboat Reef Fish Permits. A renewable permit is an expired permit that may not be actively fished, but is renewable for up to 1 year after expiration. Although the for-hire permit application collects information on the primary method of operation, the permit itself does not identify the federally permitted vessel as either a headboat or a charter boat. Operation as either a headboat or charter boat is not restricted by the Federal permitting regulations, and vessels may operate in both capacities. However, only federally permitted headboats are required to submit harvest and effort information to NMFS' HBS. Participation in the HBS is based on determination by the NMFS Southeast Fisheries Science Center (SEFSC) that the vessel primarily operates as a headboat. In 2013, 70 Gulf vessels were registered in the HBS. As a result, 1,120 of the vessels with a valid or renewable reef fish charter/headboat permit are expected to operate as charter boats. The average charter boat is estimated to earn approximately $83,000 (2013 dollars) in gross annual revenue and the average headboat is estimated to earn approximately $251,000 (2013 dollars) in gross annual revenue.

The Small Business Administration established size criteria for all major industry sectors in the U.S. including fish harvesters and for-hire operations. A business involved in finfish harvesting is classified as a small business if independently owned and operated, is not dominant in its field of operation (including its affiliates), and its combined annual receipts are not in excess of $20.5 million (NAICS code 114111, finfish fishing) for all of its affiliated operations worldwide. For for-hire vessels, all qualifiers apply except that the annual receipts threshold is $7.5 million (NAICS code 487210, recreational industries).

Based on the revenue figures above, all for-hire vessels expected to be directly affected by this final rule are determined for the purpose of this analysis to be small business entities. Because all entities expected to be affected by this rule are small entities, NMFS has determined that this final rule will affect a substantial number of small entities. In addition, because all entities affected by this rule are small entities, the issue of disproportionate effects on small versus large entities does not arise in the present case.

Establishing an ACT, which serves as the basis for estimating the length of the recreational red snapper fishing season, is expected to reduce net operating revenues (the return used to pay all labor wages, returns to capital, and owner profits) of all Gulf reef fish for-hire vessels (charter and headboats) by a combined total of approximately $2.286 million (2013 dollars) in the first year this rule is implemented. If there are no recreational quota overages, this amount will be the annual net operating revenue loss to the for-hire vessels. If recreational quota overages occur in a fishing year, and red snapper are overfished, net operating revenues will further decrease in the following fishing year with the application of 100 percent of the recreational quota overage reduction from the following year's quota. In effect, establishing a payback provision will tend to increase the potential losses in net operating revenue to the for-hire vessels.

An important feature associated with the payback provision is the uncertainty of the occurrence and level of overages. Under the proposed buffer of 20 percent for deriving the ACT from the recreational quota, the probability of exceeding the quota is estimated at 15 percent. At this probability level, the occurrence of an overage is relatively low. However, should an overage occur, the overage level could be insignificant or could be substantial. If the quota overage is low, the net operating revenue loss to the for-hire vessels will be approximately equivalent to the amount estimated above ($2.286 million). If the quota overage is substantial, it could result in setting the ACT at zero the following year. In this case, net operating revenue loss to the for-hire vessels will be relatively substantial, with some unknown number of for-hire businesses possibly exiting the industry as a result of revenue loss. The year after that overage adjustment, however, the recreational quota and the corresponding ACT will be restored as there would be no overages in the previous year if the ACT had been set at zero. Assuming no increases in the recreational red snapper quota, for-hire vessels will continue to lose the amount of net operating revenue estimated above. A recreational quota increase will alleviate some of the losses to the for-hire vessels.

The following discussion analyzes the alternatives that were not selected as preferred by the Council. Five alternatives, including the preferred alternative (as fully described in the preamble), were considered for setting a red snapper recreational ACT. The first alternative, the no action alternative, would not establish an ACT. This alternative is associated with the highest probability of exceeding the recreational quota and so would not address the need to better control the recreational harvest to the sector's quota. The other three alternatives would establish an ACT by applying a buffer of 30 percent, 40 percent, or 60 percent to the quota. Relative to the preferred alternative, each of these three alternatives would result in a lower ACT, and therefore greater loss in net operating revenues for the for-hire component of the recreational sector. For this reason, the three alternatives were not selected.

Three alternatives, including the preferred alternative (as fully described in the preamble), were considered for establishing a payback provision in case of recreational quota overages. It is noted that the payback provision only applies when red snapper are overfished. The first alternative, the no action alternative, would not establish a payback provision. This alternative would not address the need to mitigate for overages that may negatively impact the rebuilding plan, and thus was rejected. The second alternative would establish a 100-percent recreational quota payback provision, similar to the preferred alternative, and in addition would further reduce the adjusted ACT in the following season by 100 percent, 50 percent, or 30 percent of the quota overage. The adjusted ACT is derived by applying the 20-percent buffer to the quota after the recreational quota is reduced by the amount of overage. This alternative, together with any of its additional options to further reduce the following season's overage adjusted ACT, would be expected to result in higher net operating revenue losses for the for-hire sector, and therefore was rejected.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as small entity compliance guides. As part of the rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all interested parties.

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows: