Federal Register Vol. 82, No.179,

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. The NPRM published in the Federal Register on July 15, 2016 (81 FR 45997) (“the NPRM”). The NPRM was prompted by a determination that a certain task in the AMM will not accomplish the intent of a CCMR. This CCMR task tests the PF and RTLA back-up modules in the FCU to detect dormant failures. The NPRM proposed to require doing an operational test of the FCU back-up modules, and repair if necessary. We are issuing this AD to detect and correct a dormant failure of both FCU back-up modules. This condition, in combination with other failures in the FCU, may result in the inability to maintain the minimum control requirements for the PF and RTLA, which could create hazardous flight control inputs during flight.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2015-06R1, dated April 22, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8177.

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

Bombardier, Inc. (Bombardier), and NetJets Aviation Inc. (NetJets), requested that we clarify that task 27-61-05-201 is not a CMR task. Bombardier stated that the task was misidentified as a certification maintenance requirement (CMR) task during the investigation into the cause of the identified unsafe condition. Bombardier further explained that task 27-61-05-201 is a candidate CMR, or CCMR.

We agree that the task type should be clarified. We have confirmed that task 27-61-05-201 is a CCMR task. Therefore, we have revised references to the task throughout this AD accordingly.

Bombardier, Kacalp Flight Operation, and NetJets, requested that we revise the NPRM to reference revised service information. The commenters explained that the temporary revisions (TRs) referenced in the NPRM have been incorporated into the AMM, as have several subsequent revisions. The commenters asserted that the referenced TRs and certain subsequent AMM revisions are not available to operators.

We partially agree with the commenters' requests. We have confirmed that the TRs and subsequent AMM revisions referenced in the NPRM are no longer available. Therefore, we agree that this final rule needs to be revised. However, given the number of subsequent AMM revisions that have been issued for each of the AMMs since the NPRM was published, and the difficulties in obtaining the necessary material, we do not agree to reference subsequent AMM revisions in this final rule. Instead, we have revised paragraph (g) of this AD to specify doing the required actions in accordance with a method approved by the Manager, New York ACO Branch, FAA. We have also removed the content provided in paragraphs (h) and (i) of the proposed AD from this AD. We have redesignated subsequent paragraphs accordingly.

NetJets requested that we revise the proposed compliance time for FCUs with less than 3,000 total flight hours in paragraph (g)(3) of the proposed AD to the later of the following:

• Prior to 3,000 total flight hours on the FCU; or

• Within 15 months or 700 flight hours after the effective date of the AD, whichever occurs first.

NetJets stated that, for an FCU with 2,999 total flight hours on the effective date of the AD, the proposed AD would require compliance prior to further flight. NetJets pointed out that no justification was given for the more restrictive compliance time. Further, NetJets explained that paragraph (g)(1) of the proposed AD has a grace period of 15 months or 700 hours flight hours, whichever occurs first for an FCU that has accumulated 3,000 total flight hours or more.

We partially agree with the commenter's request. We agree that a grace period is needed for FCUs having accumulated less than 3,000 total flight hours as of the effective date of this AD, on which an operational test has not been completed. We do not agree that the commenter's proposed grace period is adequate to address the unsafe condition. However, we have revised the compliance time in paragraph (g)(3) of this AD to provide a grace period of within 30 days after the effective date of this AD.

Bombardier requested that we correct a typographical error in paragraph (h)(5) of the proposed AD.

We agree that there is a typographical error in paragraph (h)(5) of the proposed AD. However, as explained previously, we have removed the content of paragraph (h) of the proposed AD from this AD. Therefore, no change to this AD is necessary in this regard.

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

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

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

We estimate that this AD affects 76 airplanes of U.S. registry. We also estimate that it will take about 3 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $19,380, or $255 per product.

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

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

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:

On June 18, 1991, the U.S. Department of Health and Human Services (HHS) issued a rule setting forth the Common Rule requirements for the protection of human subjects. (56 FR 28003). The HHS regulations are codified at 45 CFR part 46. At that time, 15 other agencies, including CPSC, joined HHS in adopting a uniform set of rules for the protection of human subjects, identical to subpart A of 45 CFR part 46. The Common Rule is codified in CPSC's regulations at 16 CFR part 1028. The basic provisions of the Common Rule include, among other things, requirements related to the review of human subjects research by an institutional review board, obtaining and documenting informed consent of human subjects, and submitting written assurance of institutional compliance with the Common Rule.

On September 8, 2015 (80 FR 53933), HHS, on behalf of many of the same agencies that were signatories to the original Common Rule, proposed revisions to the Common Rule to modernize and strengthen the rule. Although CPSC was not a signatory to the Common Rule NPR, CPSC proposed to amend the Commission's regulations at 16 CFR part 1028, to cross-reference the HHS regulations in 45 CFR part 46, subpart A. 80 FR 57548 (Sept. 24, 2015). In addition, CPSC directed that any comments on the proposed Common Rule be sent to the HHS docket for the proceeding at HHS-OPHS-2015-0008.

On January 19, 2017, HHS issued a final rule on the Common Rule, which, among other things, establishes new requirements regarding the information that must be given to prospective research subjects as part of the informed consent process. 82 FR 7149. HHS also reviewed and addressed more than 2,100 comments. Although CPSC instructed that any comment on the Common Rule be submitted in the HHS docket, 22 comments were submitted, instead, to the CPSC docket. CPSC reviewed the comments and determined that all of the substantive issues were addressed in the Common Rule final rule.

Because CPSC's current regulations on the protection of human subjects, codified at 16 CFR part 1028, follow the HHS regulations in 45 CFR part 46, subpart A, CPSC proposed to adopt the amended regulatory text provided in the Common Rule final rule by providing a cross-reference to the HHS regulations in 45 CFR part 46, subpart A, rather than restating the text of HHS's regulation in CPSC's rule. However, at the direction of the Office of the Federal Register, for the final rule, CPSC is codifying the text of the revised Common Rule in CPSC's regulations at 16 CFR part 1028. CPSC's final rule is substantively identical to the HHS regulations in 45 CFR part 46, subpart A. Accordingly, CPSC now adopts the final Common Rule. The effective date of the Common Rule is January 19, 2018, with a compliance date of January 19, 2018, except for the section on cooperative research (§ 1028.114), which has a compliance date of January 20, 2020.

For the reasons stated in the preamble, the Consumer Product Safety Commission amends Title 16 of the Code of Federal Regulations by revising part 1028 to read as follows:

The CPSIA was enacted on August 14, 2008. Section 104(b) of the CPSIA requires the Commission to: (1) Examine and assess the effectiveness of voluntary consumer product safety standards for durable infant or toddler products, in consultation with representatives of consumer groups, juvenile product manufacturers, and independent child product engineers and experts; and (2) promulgate consumer product safety standards for durable infant and toddler products. Standards issued under section 104 are to be “substantially the same as” the applicable voluntary standards or more stringent than the voluntary standard, if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product.

The term “durable infant or toddler product” is defined in section 104(f)(1) of the CPSIA as “a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years,” and the statute specifies twelve categories of products that are included in the definition, including walkers, carriers and various types of children's chairs. When issuing a regulation governing product registration under section 104, the Commission determined that an “infant bouncer” falls within the definition of a “durable infant or toddler product.” 74 FR 68668 (Dec. 29, 2009); 16 CFR 1130.2(a)(15).

On October 19, 2015, the Commission issued a notice of proposed rulemaking (NPR) for infant bouncer seats. 80 FR 63168. The NPR proposed to incorporate by reference the 2015 version of the voluntary standard, ASTM F2167 Standard Consumer Safety Specification for Infant Bouncer Seats (ASTM F2167), as a mandatory consumer product safety rule with several modifications to the content, format, and placement of warning labels and instructions, to strengthen the standard.

In this document, the Commission is issuing a mandatory consumer product safety standard for bouncer seats. As required by section 104(b)(1)(A), the Commission consulted with manufacturers, retailers, trade organizations, laboratories, consumer advocacy groups, consultants, and the public to develop this rule, largely through the ASTM process. Based on revisions to the voluntary standard since the NPR published, the final rule incorporates by reference the most recent voluntary standard for infant bouncer seats, developed by ASTM International, ASTM F2167-17, with two modifications related to warning label content and placement. These modifications strengthen the standard by requiring a more stringent warning to caregivers to use the restraints, even if an infant falls asleep in the bouncer, and requires the fall hazard warning to be placed on the upper seat back of the bouncer seat, to ensure that caregivers read and heed the warning. The Commission's more stringent requirements are intended to further reduce the risk of injury to infants that fall from, and with, bouncer seats, especially bouncer seats that are placed on an elevated surface.

Additionally, the final rule amends the list of NORs issued by the Commission in 16 CFR part 1112 to include the standard for infant bouncer seats. Under section 14 of the CPSA, the Commission promulgated 16 CFR part 1112 to establish requirements for accreditation of third party conformity assessment bodies (or testing laboratories) to test for conformity with a children's product safety rule. Amending part 1112 adds an NOR for the infant bouncer seat standard to the list of children's product safety rules.

Section 1.2 of ASTM F2167-17 defines an “infant bouncer seat” as: “a freestanding product intended to support an occupant in a reclined position to facilitate bouncing by the occupant, with the aid of a caregiver or by other means.” Additionally, section 1.2 states that infant bouncer seats are intended for “infants who have not developed the ability to sit up unassisted (approximately 0 to 6 months of age).”

Bouncer seats vary widely in style and complexity, but typically, bouncer seats consist of a cloth cover stretched over a wire or tubular frame. Wire frame bouncers have two designs. The forward bend design is constructed with the seating area supported from the front side of the product. The second wire frame design is a rear bend design. In the rear bend design, the seat is supported from the rear side of the product. Other bouncer designs are also currently available, including, but not limited to, products with individual wire legs, solid bases, and spring designs. These infant bouncer designs use different methods to support the seat and are intended for “bouncing,” as defined in ASTM F2167.

All bouncer seats support the child in an inclined position, and some brands have adjustable seat backs. Various bouncer seat models include a “soothing unit” that vibrates or bounces the chair, and may play music or other sounds. Most bouncer seats also feature an accessory bar with attached toys that are, or at some point will be, within the child's reach. Most of the bouncer seat models examined by Commission staff provide a 3-point restraint system, consisting of wide cloth crotch restraints and short adjustable waist straps with plastic buckles. Only two models of bouncer seats reviewed by CPSC for the NPR employed upper body restraints. Many bouncer seat brands also include an “infant insert,” intended for use to support smaller babies. Tabs C and D, Staff Briefing Package: Infant Bouncer Seats Notice of Proposed Rulemaking, dated September 30, 2015 (Staff NPR Briefing Package), available at: http://www.cpsc.gov/Global/Newsroom/FOIA/CommissionBriefingPackages/2015/ProposedRuleSafetyStandardforInfantBouncerSeatSeptember302.pdf.

For the final rule, staff identified 23 firms supplying infant bouncer seats to the U.S. market, with several firms moving into or out of the market since the NPR was published. The 23 identified firms primarily specialize in the manufacture and/or distribution of children's products, including durable nursery products. Eight of the 23 known firms are domestic manufacturers and 8 are domestic importers. The remaining seven firms are foreign (four manufacturers, two importers, and one retailer).1 Tab C, Staff Briefing Package: Final Rule for Infant Bouncer Seats, dated August 23, 2017 (Staff Final Rule Briefing Package), available at: https://www.cpsc.gov/s3fs-public/Final-Rule-Safety-Standard-for-Infant-Bouncer-Seats-August-23-2017.pdf?ctmyMqMkYWQ1t3QN9DUXCDKnJQ5rKCX6.

Staff expects that the infant bouncer seats of 14 of these firms already comply with ASTM F2167 because the firms either: (1) Have their bouncers certified by the Juvenile Products Manufacturers Association (JPMA) (five firms); (2) claim compliance with the voluntary standard (eight firms); or (3) have been tested to the ASTM standard by CPSC staff (one firm).2

For the NPR, CPSC's Directorate for Epidemiology, Division of Hazard Analysis, described 277 reported incidents involving bouncer seats, including 11 fatalities and 51 injuries, occurring between January 1, 2006 and February 2, 2015. The incidents described in the NPR were based on reports involving victims 12 months old and younger in the Injury or Potential Injury Incident (IPII), In-Depth Investigation (INDP), and Death Certificates (DTHS) databases (collectively referred to as Consumer Product Safety Risk Management System data, or CPSRMS data). A detailed discussion of the incidents and hazard patterns developed for the NPR can be found in Tab A of the Staff NPR Briefing Package.

For the final rule, CPSC staff reviewed bouncer seat incident reports in CPSRMS from February 2, 2015 through July 6, 2016. CPSC staff found 70 incident reports in addition to those discussed in the NPR, including one fatality and three injuries. The fatality involved a 4-month-old female who died after suffering a fractured skull injury when the infant bouncer she was seated in fell from a table. Two of the reported injuries were head contusions. A 5-month-old male sustained a head contusion when a bouncer seat bent backward to the floor. A 6-month-old male sustained a head contusion when a bouncer cover came off of the wire frame and the infant flipped forward, striking his head on the battery compartment. In another reported incident, the victim suffered minor leg burns from a hot metal bar under a bouncer cover. Tab A, Staff Final Rule Briefing Package.

Staff did not identify any hazards in the updated incident data that were not included in the hazard patterns described in the NPR (product design, structural integrity, toy bar-related, stability, chemical/electric hazards, restraints, hazardous environment), which specifically identified product design and structural integrity as the top two product-related hazards (in terms of frequency of occurrence). Staff found that product design and structural integrity continue to be the top two product-related hazards (in terms of frequency) for the updated CPSRMS data. Of the 70 new incident reports involving bouncer seats, 51 incident reports described issues with product design, and 13 incident reports described issues with structural integrity. Staff determined that almost all of the issues with product design were related to lopsided or low-riding bouncer frames. Data for the final rule can be found in Tab A of the Staff Final Rule Briefing Package.

For the NPR, CPSC staff found 672 bouncer-related incidents, including two fatalities, reported in the National Electronic Injury Surveillance System (NEISS) records retrieved for bouncer incidents from January 1, 2006 to December 31, 2013, involving children 12 months old and younger. Staff found that 385 cases, or an estimated 9,200 injuries, occurred in hazardous environments (counters, tables, and other elevated surfaces).

Staff updated information on bouncer-related incidents from the NEISS records for the final rule. From January 1, 2014 through December 31, 2015, staff found 202 additional NEISS records describing infant bouncer incidents. Staff's inspection of the updated NEISS data revealed that 100 cases, or an estimated 2,800 injuries, took place in hazardous environments. The remaining 102 cases, or an estimated 2,800 injuries, took place on the floor or an unknown location. Staff found no additional fatalities in the NEISS data during this time frame. Staff estimates that 4,700 (85%) bouncer injuries involved the head and face.

The NPR described two recalls of infant bouncer seats since January 2006, involving two different firms, one recall in April 2007 3 (involving breakage of a tubular steel frame) and another recall in July 2009 4 (involving small, sharp metal objects that could protrude through the bouncer fabric). No injuries were associated with either product at the time of the recall. See Tab E, Staff NPR Briefing Package. For the final rule, staff reports that no additional recalls involving bouncer seats have occurred.

The voluntary standard for infant bouncer seats, ASTM F2167, Standard Consumer Safety Specification for Infant Bouncer Seats, is intended to minimize the risk of injury or death to infants in bouncer seats associated with falls from elevated surfaces, product disassembly or collapse, stability, and suffocation. ASTM F2167 was first approved in December 2001, and the standard published in January 2002. Since then, ASTM has revised the standard 11 times. Tab C of the Staff NPR Briefing Package includes a description of these revisions through 2015.5

More recently, in May 2016, ASTM revised the standard to add specific developmental guidance for caregivers about when to stop using the bouncer, and ASTM removed a general requirement for banned toys or other articles because those requirements do not apply to infant bouncer seats. As discussed below, the standard was subsequently revised in June of 2017 to incorporate changes recommended by ASTM's Ad Hoc Task Group 6 concerning warning label formatting requirements, and to add a requirement that limits the maximum weight of an occupant in an infant bouncer seat. The June 2017 version of the voluntary standard also removed a requirement for manufacturers of bouncer seats to change the model number whenever the product underwent a significant structural or design modification. We agree with ASTM that although changing the model number represents a best practice, most ASTM standards do not include the statement, and such practice does not impact the safety of the product.

For the NPR, CPSC staff examined the relationship between the performance requirements in ASTM F2167-15 and each of the hazard patterns staff identified in the incident data for bouncer seats. Tab C, Staff NPR Briefing Package. Based on staff's assessment, the Commission issued the NPR proposing to incorporate ASTM F2167-15 with the following modifications to warnings content, placement, and format:

• Revised content of the warnings, markings, and instructions:

• Restricted the fall hazard label on the front surface of the bouncer to be adjacent to the area where the child's head would rest, and modified the visibility test to reflect this requirement.

• Specified a standard format (including black text on a white background, table design, bullet points, and black border) for the warnings on the product and in the instructions.

The most recent version of the voluntary standard for bouncer seats, ASTM F2167-17, was approved on June 1, 2017, and published in June 2017. ASTM F2167-17 includes modified and new performance and labeling requirements developed by ASTM in conjunction with stakeholders and CPSC staff on the ASTM subcommittee task group, to address the hazards associated with bouncer seats. ASTM F2167-17 addresses several of the hazards identified by the Commission in the NPR. Accordingly, after reviewing and considering comments received in response to the NPR, as well as the work of the Ad Hoc Task Group, the Commission incorporates by reference ASTM F2167-17, with two modifications that were identified in the NPR related to warning content and warning placement, as the mandatory safety standard for infant bouncer seats. Below we assess ASTM F2167-17 and explain how it differs from what the Commission proposed.

The NPR proposed to incorporate by reference ASTM F2167-15, with modifications to warning, marking, and instruction requirements. ASTM F2167-15 advised caregivers: “Always use restraints. Adjust to fit snugly.” Based on the incident data that relate deaths to suffocation among unrestrained infants while they slept, and relate serious head injuries to unrestrained infants due to falls from bouncer seats that are placed on elevated surfaces and falls from bouncer seats that are being carried by caregivers, the Commission stated in the NPR that the voluntary standard was inadequate to address the risk of injury to infants from falls out of bouncer seats, or the risk of suffocation among unrestrained infants who are sleeping. In the NPR, the Commission proposed warning language stating: “Adjust to fit snugly, even if baby is sleeping.” Tab D, Staff NPR Briefing Package.

The newest version of the voluntary standard, ASTM F2167-17, still does not require a warning statement that caregivers should use the restraints, even if an infant is asleep. We disagree with this approach. We note that some NPR commenters were concerned by the addition of language to the product warnings regarding sleep because such language may suggest that bouncer seats are intended to be used for long-term, unattended, sleep. However, CPSC staff advises that young infants, such as those who are intended to use bouncer seats, spend more time asleep than awake.7 Infants spending more than brief periods in a bouncer seat will fall asleep on occasion (and caregivers will place infants to sleep in bouncer seats under some circumstances), just as infants will fall asleep in strollers, swings, and car-seat carriers. It may be counterintuitive, and therefore unlikely to occur to consumers, that products made for infants' use, especially those that have features intended to sooth and comfort infants, would be unsafe places for infants to sleep. In fact, despite claims that bouncer seats are not intended for children to sleep in, CPSC staff found that some manufacturers' marketing suggests that bouncers are intended for sleep as well as play. Moreover, incident data and Health Sciences' assessment demonstrate that the severity of injury from a fall from a bouncer seat increases for a child who is unrestrained. Accordingly, in the final rule, the Commission requires that the fall hazard warning state that caregivers should use the restraints, even if baby falls asleep.

Based on staff's recommendation and the work of the Ad Hoc Task Group, the final rule uses the phrase “falls asleep” instead of the phrase “is sleeping” that the Commission had proposed in the NPR. This change aligns with wording approved by the Ad Hoc Task Group, which is “Never leave child unattended, even if child falls asleep.” The Ad Hoc Task Group intends for this warning to be used on products for infants who are likely to fall asleep in the product, but which are not intended for periods of unattended sleep (i.e. bouncers, swings, infant rockers, and handheld carriers).8 The Commission notes that the final rule does not preclude manufacturers from including an additional statement indicating that bouncers are not intended for long term sleep. Accordingly, the required fall and suffocation warning label text regarding use of restraints for the final rule is:

• Always use restraints and adjust to fit snugly, even if baby falls asleep.

ASTM F2167-17 includes the other modifications the Commission had proposed for warning statement requirements. Specifically, sections 8.5.2.1 and 9.2.1 Fig. 11 of ASTM F2167-17 requires text in the warnings to state: “stop using when baby starts trying to sit up.” ASTM F2167-17 requires additional text in the suffocation hazard warning label to limit the maximum weight for an occupant in an infant bouncer seat. The rationale for ASTM's change is based on surveillance of the marketplace, which demonstrated that some manufacturers have weight limits that do not correlate to the developmental milestones contemplated in the current warnings. Section 8.5.2.1 of ASTM F2167-17 requires text in the warnings to instruct caregivers to: “STOP using bouncer when baby starts trying to sit up or has reached [insert manufacturer's recommended maximum weight, not to exceed 20 lb], whichever comes first.”

The NPR proposed a modification to ASTM F2167-15's requirement for label placement. ASTM F2167-15 required that the fall hazard label be placed on the front surface of the bouncer seat back so that it is visible when a newborn CAMI dummy is placed in the bouncer seat. In the NPR, the Commission assessed this provision of the voluntary standard and found that it did not adequately address the risk of injury to infants falling from bouncer seats placed on elevated surfaces, a foreseeable misuse of infant bouncer seats. Tab D, Staff NPR Briefing Package. To strengthen the standard and further reduce the risk of injury, the NPR proposed that the fall hazard warning label be on the front surface of the bouncer seat, adjacent to where the child's head would rest, and the NPR also modified the visibility test. ASTM F2167-17 retains the fall hazard warning placement and corresponding visibility test from ASTM F2167-15. Thus, the current voluntary standard still does not address the Commission's concern about the visibility of the fall hazard warning.

NPR Commenters expressed concern that some products were designed with insufficient space in the area adjacent to the child's head to accommodate the necessary warning labels. Commenters were also concerned about the repeatability of the visibility test proposed in the NPR. We note, however, that staff's research on the seat back space, including models with narrow seat backs, did not corroborate the commenters' concerns. Nevertheless, to enhance test repeatability and to address the comments regarding insufficient seat back space for warning labels, the final rule allows a larger area for warning label placement than proposed in the NPR and clarifies the corresponding visibility test.

The visibility test in the final rule is based on ASTM F2167-17. Using the CAMI dummy, as shown in Figure 1 below, the allowable area for warning label placement starts from a dotted line that crosses the junctions of underarm and both sides of the torso of the CAMI dummy.

The NPR proposed modifications to the requirements in ASTM F2167-15 regarding the format of warning labels noting that ASTM F2167-15 did not provide for a consistent warning label format across infant bouncer seats. Staff evaluated the warnings format in the voluntary standard and recommended that the Commission establish minimum requirements for presenting the hazard information that are consistent with best practices to attract and maintain attention, as well as aid reading and comprehension. Tab D, Staff NPR Briefing Package. Accordingly, the NPR proposed to specify a standard format (including black text on a white background, table design, bullet points, and black border) for the warnings on bouncer seats and in the instructions.

Since the NPR published in 2015, ASTM's Ad Hoc Task Group issued recommendations regarding warnings intended to apply across juvenile products. These recommendations, based on ANSI Z535.4, American National Standard for Product Safety Signs and Labels, have been incorporated into ASTM F2167-17. The Commission notes that Human Factors staff regularly cites ANSI Z535.4 as a baseline in developing warning materials, including those proposed in the bouncer seat NPR. The approved Ad Hoc Task Group recommendations are very similar to the ANSI Z535.4, with modifications to make the recommendations more stringent. The recommendations provide noticeable and consistent warning labels on infant bouncer seats and across juvenile products. Accordingly, for the final rule, the Commission incorporates by reference ASTM F2167-17, without any modifications to the formatting provisions.

CPSC received six comments in response to the NPR, including a joint letter submitted by four consumer advocacy groups. Three commenters supported the changes proposed in the NPR, and the remaining commenters expressed concern over the Commission's proposed modifications. We summarize and respond to the commenters below.

Comment 1: One commenter stated that the proposed requirement for the fall hazard warning label to be adjacent to an infant's head would necessitate a wider seat back to accommodate a warning label in multiple languages, which is desirable for international sales. According to the same commenter, the ASTM F15.21 Subcommittee had already evaluated this location and concluded that other locations above and below the infant's head were considered to be just as visible as the locations adjacent to an infant's head. A second commenter stated that the proposed fall hazard label visibility test procedure is not specific and can be misinterpreted by test labs. This commenter suggested using the test protocol in the current ASTM standard that uses the CAMI newborn dummy.

Response 1: Based on the incident data and research, the final rule requires that the fall hazard warning label be placed near the child's face. This location allows caregivers to notice the label while making eye contact with the infant, and potentially creates mental images of the consequence (“skull fracture”) of not complying with the instructions because the warning label would be placed next to the body part at risk. Tab D, Staff NPR Briefing Package.

Commenters claim that the area on the infant bouncer adjacent to an infant's head could be severely limited in some cases due to the design of the seat back and allowance needed for stitching tolerances. CPSC staff's research did not corroborate this claim. Tab D, Staff NPR Briefing Package. Accordingly, the NPR, 80 FR at 63179-80, invited commenters to provide information on costs and design changes that would be required if the label were required to be next to an infant's head. Staff reports that during the ASTM Ad Hoc Task Group meetings held in January and February 2016, manufacturers provided several examples of juvenile products, including infant bouncer seats, to demonstrate difficulties associated with warning label placement in proposed locations. However, NPR commenters provided neither cost estimates, nor specific comments, other than stating that the location would require a wider seat back and would limit representing multiple languages.

To resolve concerns about the amount of space for warning label placement and address the Commission's concern about an effective warning label, the final rule states the test procedure language in ASTM F2167-17, but clarifies the allowable area for the fall hazard warning label. The fall hazard warning label must be visible when placed above an imaginary horizontal line that crosses through the junctions of underarm and side of the torso (armpits) on both left and right of the CAMI, and not obscured by any part of the dummy. A warning label located at or around the infant's shoulders can address the visibility and caregiver motivational concerns expressed in the Human Factors staff memorandum for the NPR (Tab D), and also provide additional surface area to accommodate the recommended warning label.

Comment 2: Two commenters recommended against the proposed formatting requirements. Commenters specifically highlighted the following proposed warning formatting requirements:

• A heavy black border around the label,

• Delineating message panels with solid lines,

• Black text on white message panel,

• Bullet points preceding precautionary statements,

• Choosing a background color for the signal word panel based on a best contrast against the product material, and

• Using non-condensed style font.

Commenters stated that, in general, ASTM standards provide flexibility to manufacturers to pick colors and formatting features that are most appropriate for the product. One commenter recommended delaying the publication of the final rule for any and all warnings requirements until the warnings format and content revisions proposed in the NPR can be reviewed by ASTM Ad Hoc Task Group, balloted through the ASTM process, and then implemented into F2167. The same commenter also indicated that the formatting requirements in the bouncer NPR and several other NPRs are inconsistent with each other.

Response 2: Human Factors staff at CPSC employs the ANSI Z535.4, American National Standard for Product Safety Signs and Labels as a baseline to develop warning materials. Since the NPR was published, the ASTM Ad Hoc Task Group met and made recommendations for warning label formatting across juvenile products. The ASTM Ad Hoc Task Group's recommendations are based on ANSI Z535.4 and are more stringent than the ANSI Z535 series. ASTM 2167-17 now incorporates recommendations made by the Ad Hoc Task Group. Accordingly, the final rule incorporates by reference ASTM 2167-17 without any modifications to warning label format.

Comment 3: Two commenters recommended against the proposed addition of “even if baby is sleeping” to the end of the precautionary statement: “Always use restraints. Adjust to fit snugly.” One commenter believes that this statement implies that sleeping in a bouncer is acceptable and may encourage caregivers to use the product for extended periods of sleep. The second commenter believes that this statement contradicts the warning to never leave children unattended.

Response 3: Incident data associated with bouncer seats demonstrate that unrestrained infants suffer serious head injuries from falls and get into compromised positions that may result in suffocation. Tab A, Staff NPR Briefing Package; Tab A, Staff Final Rule Briefing Package. Young infants will sleep in bouncers as they spend more time asleep than awake. Tab D, Staff NPR Briefing Package. Some bouncers in the market include references to calming and soothing features of a bouncer, as well as appropriateness for short periods of sleep in a bouncer, such as “Your child can also sleep for short periods of time in the bouncer if he or she is content doing so.” Based on incident data, the final rule requires that the warning statement reference sleep to reflect this foreseeable product use scenario and to address the risk of injury from falls.

In October 2016, the ASTM Ad Hoc Task Group approved a recommended warning to address products likely to be used for short-term sleep.9 The Commission agrees with the Ad Hoc Task Group's language and has modified the warning in the final rule to use the phrase “even if child falls asleep” to align with the Ad Hoc Task Group's language. Manufacturers who produce bouncers in which infants should not be allowed to sleep may add language to their warnings statements alerting caregivers to this issue.

Comment 4: One commenter recommended that the ASTM subcommittee reach a consensus on the need for the additional proposed language: “Stop using bouncer when baby starts trying to sit up.”

Response 4: At the January 12, 2016 ASTM meeting, the F15.18 subcommittee on Infant Bouncer Seats reviewed and agreed with the Commission's proposed language on developmental guidance. ASTM balloted and approved the proposed language, and such language has been included in ASTM F2167 since the 2016 version of the standard.

Comment 5: Two commenters recommended that the warning label be attached on the product using embroidery or stamping to increase its permanency.

Response 5: The ASTM standard does not require a certain type of attachment for labels but requires the labels to be tested per section 7.8 to determine the labels' permanency. A similar permanency test procedure is used in other ASTM standards. No data were provided by the commenter, and the Commission has no information suggesting that these requirements are ineffective. Accordingly, the Commission incorporates by reference ASTM F2167-17, without any modification to section 7.8.

Comment 6: Three commenters recommended using pictures to clarify warning messages.

Response 6: The Commission acknowledges that well-designed graphics can be useful to increase the noticeability of the warnings as they help capture a user's attention. Pictograms are also helpful for users with limited or no English literacy. However, the design of effective graphics can be difficult. To avoid confusing consumers, a warning pictogram should be developed with an empirical study and well tested on the target audience. Although the Commission may take action in the future if it believes graphic symbols are needed to reduce the risk of injury associated with bouncer seats, the rule permits, but does not mandate, such supporting graphics.

Section 1229.2(a) of the final rule provides that infant bouncer seats must comply with applicable sections of ASTM F2167-17. The OFR has regulations concerning incorporation by reference. 1 CFR part 51. These regulations require that, for a final rule, agencies must discuss in the preamble to the rule the way in which materials that the agency incorporates by reference are reasonably available to interested persons, and how interested parties can obtain the materials. Additionally, the preamble to the rule must summarize the material. 1 CFR 51.5(b).

In accordance with the OFR's requirements, the discussion in section VIII of this preamble summarizes the required provisions of ASTM F2167-17. Interested persons may purchase a copy of ASTM F2167-17 from ASTM, either through ASTM's Web site, or by mail at the address provided in the rule. A copy of the standard may also be inspected at the CPSC's Office of the Secretary, U.S. Consumer Product Safety Commission, as discussed above. Note that the Commission and ASTM arranged for commenters to have “read only” access to ASTM F2167-15 during the NPR's comment period.

Section 1229.2(a) of the final rule for infant bouncer seats incorporates by reference ASTM F2167-17 with two modifications, as stated in § 1229.2(b), related to the content and placement of warnings. Section 1229.2(a) includes the following key provisions summarized below: scope, terminology, general requirements, performance requirements, test methods, marking and labeling, and instructional literature. As described below, § 1229.2(b) includes modifications to test methods (§ 1229.2(b)(1)), marking and labeling (§ 1229.2(b)(2) and (3)), and instructional literature (§ 1229.2(b)(4)).

Scope. Section 1 of ASTM F2167-17 states the scope of the standard, detailing what constitutes an “infant bouncer seat.” As stated in section II.A of this preamble, the Scope section defines an “infant bouncer seat” as “a freestanding product intended to support an occupant in a reclined position to facilitate bouncing by the occupant, with the aid of a caregiver or by other means.” ASTM F2167-17 states that infant bouncer seats are intended for “infants who have not developed the ability to sit up unassisted (approximately 0 to 6 months of age).”

Terminology. Section 3 of ASTM F2167-17 provides definitions of terms specific to this standard.

General Requirements. Section 5 of ASTM F2167-17 addresses numerous hazards with several general requirements, most of which are also found in the other ASTM juvenile product standards. Several requirements reference an existing CPSC standard. The following general requirements apply to bouncer seats. Where the ASTM standard relies on a CPSC mandatory standard, the mandatory standard is cited in parentheses next to the requirement:

• Hazardous sharp points and edges (16 CFR 1500.48 and 1500.49);

• Small parts (16 CFR part 1501);

• Lead in paint (16 CFR part 1303);

• Wood parts;

• Latching and locking mechanisms;

• Scissoring, shearing, and pinching;

• Openings;

• Exposed coil springs;

• Protective components;

• Permanency of labels and warnings; and

• Toys (ASTM F963).

Performance Requirements and Test Methods. Sections 6 and 7 of ASTM F2167-17 contain performance requirements specific to bouncer seats, as well as test methods that must be used to assess conformity with such requirements. Accordingly, the final rule includes performance requirements for the following:

• Restraints;

• Stability (forward, sideward, and rearward);

• Slip Resistance

• Structural Integrity;

• Dynamic and Static Load;

• Disassembly/Collapse;

• Drop Test;

• Toy Bar Attachment Integrity; and

• Battery Compartment.

Additionally, section 7 of ASTM F2167-17 includes test procedures to ensure the permanency of labels and warnings, and a fall hazard visibility test. The test procedure in § 1229.2(b)(1) of the final rule replaces the fall hazard visibility test in section 7.11.3.1 of ASTM F2167-17, as described in section V.B.2 of this preamble.

Marking and Labeling. Section 8 of ASTM F2167-17 requires products to be marked or labeled with manufacturing information and relevant product warnings. Warning label requirements for bouncer seats in section 8.4.5 of ASTM F2167-17 require two groups of warning statements, a fall hazard warning and a suffocation warning. ASTM F2167-17 includes warning language and formatting requirements for both falls and suffocation warnings. Section 8.4.7.1 requires the fall hazard warning to be placed on the front surface of the infant bouncer seat back, so that it complies with the visibility requirement in section 7.11.

Section 1229.2(b)(2) of the final rule replaces the content of the fall hazard warning in section 8.5.1.1 of ASTM F2167-17. Section 1229.3(b)(3) of the final rule replaces the content of the suffocation hazard warning in sections 8.5.2.1 and 8.5.3 in ASTM F2167-17. Changes to warning content and the visibility test for the placement of the fall hazard warning are outlined in section V.B.1-2 of this preamble.

Instructional Literature. Section 9 of ASTM F2167-17 requires that instructions be provided with bouncer seats and be easy to read and understand. Additionally, the section contains requirements relating to instructional literature contents, including warnings.

Section 1229.2(b)(4) of the final rule replaces the content of sections 9.2.1 and 9.2.2 of ASTM F2167-17. These sections contain example warning labels or references to example warning labels. The content of the example warning labels in § 1229.2(b)(4) reflects changes to the content of the fall hazard warning and suffocation hazard warning in § 1229.2(b)(2) and (3) of the final rule. Changes to the instructional literature that relate to warnings content are outlined in section V.B.1-2 of this preamble.

The Administrative Procedure Act (APA) generally requires that the effective date of a rule be at least 30 days after publication of the final rule. 5 U.S.C. 553(d). CPSC generally considers 6 months to be sufficient time for suppliers of durable infant and toddler products to come into compliance with a new standard under section 104 of the CPSIA. Six months is also the period that the Juvenile Products Manufacturers Association (JPMA) typically allows for products in the JPMA certification program to transition to a new standard once that standard is published. The Commission proposed a 6-month effective date in the NPR for infant bouncer seats and we received no comments on the proposed effective date. Accordingly, the final rule for bouncer seats, as well as the amendment to part 1112, has a 6-month effective date.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires that agencies review a proposed rule and a final rule for the rule's potential economic impact on small entities, including small businesses. Section 604 of the RFA generally requires that agencies prepare a final regulatory flexibility analysis (FRFA) when promulgating final rules, unless the head of the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Staff prepared a FRFA that is available at Tab C of the Staff Final Rule Briefing Package. We provide a summary of the FRFA below.

The final rule is unlikely to have a significant economic impact on the five domestic manufacturers of infant bouncer seats. Of the six small importers, a significant economic impact cannot be ruled out for four of the importers, either as a result of the final rule requirements or the resulting third party testing costs. Therefore, the Commission cannot rule out a significant economic impact for four of the 11 firms (36 percent) operating in the U.S. market for bouncers.

An infant bouncer seat is defined in ASTM F2167-17, Standard Consumer Safety Specification for Infant Bouncer Seats, as “a freestanding product intended to support an occupant in a reclined position to facilitate bouncing by the occupant, with the aid of a caregiver or by other means.” These products vary widely in price; they can be purchased for as little as $20, but can also easily cost more than $200.

For the FRFA, the Commission identified 23 firms supplying infant bouncer seats to the U.S. market, with several firms moving into or out of the market since the NPR. These firms primarily specialize in the manufacture and/or distribution of children's products, including durable nursery products. Eight of the 23 known firms are domestic manufacturers and eight are domestic importers. The remaining seven firms are foreign (4 manufacturers, 2 importers, and 1 retailer).10 We expect that the infant bouncer seats of 14 of these firms already comply with ASTM F2167 because the firms either: (1) Have their bouncers certified by JPMA (five firms); (2) claim compliance with the voluntary standard (eight firms); or (3) have been tested to the ASTM standard by CPSC staff (one firm).11

The Commission is aware of approximately 23 firms currently marketing infant bouncer seats in the United States, 16 of which are domestic. Under U.S. Small Business Administration (SBA) guidelines, a manufacturer of infant bouncer seats is categorized as small if it has 500 or fewer employees, and importers and wholesalers are considered small if they have 100 or fewer employees. We have limited our analysis to domestic firms because SBA guidelines and definitions pertain to U.S.-based entities. Based on these guidelines, the Commission determined that about 11 of the 23 firms are small—five domestic manufacturers and six domestic importers. Additional unknown small domestic infant bouncer seat suppliers may be operating in the U.S. market.

The economic impact of the final rule for infant bouncer seats should be small for the five small domestic manufacturers. Each firm has an established history of compliance with the ASTM standard for infant bouncers and is therefore expected to be compliant with ASTM F2167-17, the version of the voluntary standard upon which the final rule is based, by the time the mandatory standard becomes final.

None of these firms includes more than four languages in their warnings and redesign is not expected. Based upon staff's inspection of their products, we expect products to have more than sufficient space for the required warning labels under the modified warning label for the final rule without the products seeming cluttered.

Under section 14 of the CPSA, once the new infant bouncer seat requirements become effective, all manufacturers will be subject to the third party testing and certification requirements under the CPSA and the Testing and Labeling Pertaining to Product Certification rule (16 CFR part 1107) (1107 rule). Third party testing will include any physical and mechanical test requirements specified in the final infant bouncer seats rule. Manufacturers and importers should already be conducting required lead testing for bouncer seats.

Third party testing costs are in addition to the direct costs of meeting the infant bouncer seats standard. The Initial Regulatory Flexibility Analysis (IRFA) prepared for the NPR concluded that we could not rule out a significant economic impact, given that we do not know specifically how much the third party requirement adds to testing costs or precisely how many models are needed to meet the “high degree of assurance” standard but that it was unlikely to be economically significant for most small manufacturers (i.e., testing costs would be less than 1 percent of gross revenue). Given that these firms are already testing to the voluntary standard and the Commission received no public comments about third party testing, the Commission believes that it is unlikely that third party testing would have a significant economic impact on any of the five small manufacturers.

As noted in the IRFA, imported bouncers tend to be produced to meet the requirements for several trading partners simultaneously, including their different labeling requirements. Producers for international markets typically address labeling requirements for their various trading partners by simply providing a warning that covers all required safety issues in multiple languages. Specificity regarding warning label location impacts the practicability of replicating the warning label in multiple languages. This could mean that foreign producers will need to design a product for the U.S. market or reduce the number of languages used for warnings on U.S.-bound bouncer seats.

The final rule provides additional space for warning label placement than that proposed in the NPR. With this additional space, reducing on-product warning languages should be a more viable alternative for firms than it was under the NPR proposal. Firms would not need to reduce the number of languages for their on-product warnings for the final rule as significantly as that required in the NPR. The additional space addresses the location requirement in the final rule, while ensuring that the appearance of bouncers remains comparable to firms' competitor products (for which one to three languages is typical).

Three small importers of infant bouncer seats are currently in compliance with the voluntary standard; these firms likely would continue compliance as new versions of the voluntary standard are published. One importer is unlikely to experience a significant economic impact, even if the importer opted to redesign its bouncers to accommodate more than eight warning label languages. The cost estimate to redesign an infant bouncer (based on information from several firms) is between $200,000 and $300,000, which is less than 1 percent of this firm's revenue. The remaining two small importers of compliant bouncer seats might experience significant economic costs, based on the same comparison (i.e., $200,000 to $300,000 could represent more than 1 percent of their annual revenue). Although the Commission does not expect that these firms would require space for warning labels in more than eight languages, we cannot rule out a significant economic impact for one of these two firms, given an extremely low revenue level compared to estimated costs for redesign. The second firm appears to have the option of exiting the bouncer market without experiencing a significant impact.

Three firms import bouncers that do not comply with the voluntary standard. The bouncers for these firms will require changes to come into compliance with the voluntary standard as well as modifications to meet the warning label requirements in the final rule. In the absence of information on precisely what changes would be required to bring the bouncer seats supplied by all three firms into compliance with the final rule (as well as information on sales revenue for all three firms), the Commission cannot rule out a significant economic impact for any of these firms.

The magnitude of the economic impact on the three firms with noncompliant infant bouncer seats will depend upon the cost of the changes required and the degree to which their supplying firms pass on any increases in production costs associated with changes to the product needed to meet the mandatory standard (a redesign is estimated to cost between $200,000 to $300,000). Two of the firms are directly tied to their foreign suppliers and therefore, finding an alternate supply source would not be a viable alternative. However, given this close relationship, it seems likely that their foreign suppliers would have an incentive to work with their U.S. subsidiaries to maintain an American market presence. One of those two firms likely would only avoid a significant economic impact if their supplier absorbed 100 percent of the cost of a redesign. The third firm imports and wholesales a wide variety of children's products. We do not know, however, how much of the firm's revenue is due to bouncer sales and cannot determine what impact discontinuing bouncer sales might have on the third firm should the firm be unable to find a supplier of bouncers that comply with the standard.

Based on the additional space provided in the final rule for placement of the fall hazard warning label, two of these firms should not require modifications to meet the requirement in the final rule (although they would have required modifications under the NPR).

As with manufacturers, all importers will be subject to third-party testing and certification requirements, and consequently, will be subject to costs similar to those for manufacturers if their supplying foreign firm(s) does not perform third party testing. Half of the bouncer seat importers (3 of 6) are already testing their products to verify compliance with the ASTM standard, and any costs would be limited to the incremental costs associated with third party testing over the current testing regime.

The Commission was able to obtain revenue data for one of the small importers with noncompliant bouncers. For that importer, third party testing costs, considered alone and apart from any additional performance requirements due to the final rule, would not exceed one percent of gross revenue unless around 12 units per model required testing to provide the “high degree of assurance” required by 16 CFR part 1107. The Commission has no basis for estimating the size of the impact for the remaining two importers of noncompliant bouncers.

The Commission is aware of 11 small firms, five domestic manufacturers and six domestic importers, currently marketing infant bouncer seats in the United States. With regards to the five domestic manufacturers, the Commission considers it unlikely that testing costs would have a significant impact on any of these firms. Of the six small importers, a significant economic impact cannot be ruled out for four of the importers either as a result of the final rule requirements or the resulting third party testing costs. Therefore, the Commission cannot rule out a significant economic impact for four of the 11 firms (36 percent) operating in the U.S. market for bouncers.

One of the alternatives to reduce the impact on small entities discussed in the NPR was to adopt the voluntary standard with all of the modifications to the on-product warning labels, except for the location specificity (i.e., next to the child's head). Based on comments received, the requirements regarding on-product warning label placement have been modified in the final rule (i.e., up from the child's armpits on either side). This modification provides additional room and will reduce the economic impact of the warning label location specificity on small suppliers. The Commission could further reduce the economic impact on small entities by eliminating the location requirement for the fall hazard warning entirely. However, this would reduce the effectiveness of the fall hazard warning label. The location for the fall hazard warning “allows caregivers to notice the label while making eye contact with the infant, and potentially creates mental images of the consequence (“skull fracture”) of not complying with the instructions . . .” Tab D, Staff NPR Briefing Package; Tab B, Staff Final Rule Briefing Package.

The Commission considered two additional alternatives discussed in the NPR that might minimize the economic impact on small entities: (1) Adopt ASTM F2167-17 with no modifications; and (2) allow a later effective date.

Section 104 of the CPSIA requires that the Commission promulgate a standard that is either substantially the same as the voluntary standard or more stringent. Therefore, adopting ASTM F2167-17 with no modifications is the least stringent rule allowed by law. This alternative would reduce the impact on all of the known small businesses supplying infant bouncers to the U.S. market. If it were adopted, it should eliminate any economic impact related to warning label changes, but firms would continue to be affected by third party testing requirements. However, adopting ASTM F2167-17 without modification would not adequately address the fall hazard scenario identified in the incident data and would reduce the effectiveness of the fall hazard warning label.

Finally, the Commission could reduce the final rule's impact on small businesses by setting a later effective date. A later effective date would reduce the economic impact on firms in two ways. Firms would be less likely to experience a lapse in production/importation, which could result if they are unable to comply and third party test within the required timeframe. Also, firms could spread costs over a longer time period, thereby reducing their annual costs, as well as the present value of their total costs. However, the Commission received no comments asserting that firms would not have sufficient time to comply with the proposed 6 month effective date. Accordingly, the Commission declines to extend the effective date of the final rule.

In accordance with section 14 of the CPSA, all children's products that are subject to a children's product safety rule must be tested by a CPSC-accepted third party conformity assessment body (i.e., testing laboratory) for compliance with applicable children's product safety rules. Testing laboratories that want to conduct this testing must meet the NOR pertaining to third party conformity testing. NORs have been codified for existing rules at 16 CFR part 1112. Consequently, the Commission finalizes an amendment to 16 CFR part 1112 that establishes an NOR for those testing laboratories that want to test for compliance with the bouncers final rule. This section assesses the impact of the amendment on small laboratories.

A FRFA was conducted as part of the promulgation of the original 1112 rule (78 FR 15836, 15855-58) as required by the RFA. Briefly, the FRFA concluded that the accreditation requirements would not have a significant adverse impact on a substantial number of small laboratories because no requirements were imposed on laboratories that did not intend to provide third party testing services. The only laboratories that were expected to provide such services were those that anticipated receiving sufficient revenue from the mandated testing to justify accepting the requirements as a business decision.

Based on similar reasoning, amending the rule to include the NOR for the bouncer standard will not have a significant adverse impact on small laboratories. Moreover, based upon the number of laboratories in the United States that have applied for CPSC acceptance of the accreditation to test for conformance to other juvenile product standards, we expect that only a few laboratories will seek CPSC acceptance of their accreditation to test for conformance with the infant bouncer seat standard. Most of these laboratories will have already been accredited to test for conformance to other juvenile product standards, and the only costs to them would be the cost of adding the bouncer standard to their scope of accreditation, a cost that test laboratories have indicated is extremely low when they are already accredited for other section 104 rules. As a consequence, the Commission certifies that the NOR for the infant bouncer seat standard will not have a significant impact on a substantial number of small entities.

The Commission's regulations address whether the agency is required to prepare an environmental assessment or an environmental impact statement. Under these regulations, a rule that has “little or no potential for affecting the human environment,” is categorically exempt from this requirement. 16 CFR 1021.5(c)(1). The final rule for bouncer seats falls within the categorical exemption.

The final rule for infant bouncer seats contains information collection requirements that are subject to public comment and review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The preamble to the proposed rule (80 FR at 63181-82) discussed the information collection burden of the proposed rule and specifically requested comments on the accuracy of our estimates. OMB has assigned control number 3041-0174 to this information collection. We did not receive any comment regarding the information collection burden of the proposal. However, the final rule makes modifications regarding the information collection burden because the number of estimated manufacturers subject to the information collection burden is now estimated at 23 manufacturers rather than the 22 manufacturers initially estimated in the proposed rule.

Accordingly, the estimated burden of this collection of information is modified as follows:

Our estimate is based on the following:

Section 8.1 of ASTM F2167-17 requires that all infant bouncer seats and their retail packaging be permanently marked or labeled as follows: The manufacturer, distributor, or seller name, place of business (city, state, mailing address, including zip code), and telephone number; and a code mark or other means that identifies the date (month and year as a minimum) of manufacture.

CPSC is aware of 23 firms that supply bouncer seats in the U.S. market. For PRA purposes, we assume that all 23 firms use labels on their products and on their packaging already. All firms will need to make some modifications to their existing labels. We estimate that the time required to make these modifications is about 1 hour per model. Each of the 23 firms supplies an average of four different models of bouncer seats. Therefore, we estimate the burden hours associated with labels to be 92 hours annually (1 hour × 23 firms × 4 models per firm = 92 hours annually).

We estimate the hourly compensation for the time required to create and update labels is $33.58 (U.S. Bureau of Labor Statistics, “Employer Costs for Employee Compensation,” March 2017, Table 9, total compensation for all sales and office workers in goods-producing private industries: http://www.bls.gov/ncs/). Therefore, we estimate the annual cost to industry associated with the labeling requirements in the final rule to be approximately $3,089 ($33.58 per hour × 92 hours = $3,089.36). This collection of information does not require operating, maintenance, or capital costs.

In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted the information collection requirements of this final rule to the OMB.

Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that when a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury unless the state requirement is identical to the federal standard. Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the Commission for an exemption from this preemption under certain circumstances. Section 104(b) of the CPSIA refers to the rules to be issued under that section as “consumer product safety rules.” Therefore, the preemption provision of section 26(a) of the CPSA applies to this final rule issued under section 104.

The CPSA establishes certain requirements for product certification and testing. Products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard or regulation under any other act enforced by the Commission, must be certified as complying with all applicable CPSC-enforced requirements. 15 U.S.C. 2063(a). Certification of children's products subject to a children's product safety rule must be based on testing conducted by a CPSC-accepted third party conformity assessment body. Id. 2063(a)(2). The Commission must publish an NOR for the accreditation of third party conformity assessment bodies to assess conformity with a children's product safety rule to which a children's product is subject. Id. 2063(a)(3). The Safety Standard for Infant Bouncer Seats, to be codified at 16 CFR part 1229, is a children's product safety rule that requires the issuance of an NOR.

The Commission published a final rule, Requirements Pertaining to Third-Party Conformity Assessment Bodies, 78 FR 15836 (March 12, 2013), which is codified at 16 CFR part 1112 (referred to here as part 1112). Part 1112 became effective on June 10, 2013 and establishes requirements for accreditation of third-party conformity assessment bodies (or laboratories) to test for conformance with a children's product safety rule in accordance with section 14(a)(2) of the CPSA. Part 1112 also codifies a list of all of the NORs that the CPSC had published at the time part 1112 was issued. All NORs issued after the Commission published part 1112, such as the standard for bouncer seats, require the Commission to amend part 1112. Accordingly, the Commission is now amending part 1112 to include the standard for infant bouncer seats in the list of other children's product safety rules for which the CPSC has issued NORs.

Laboratories applying for acceptance as a CPSC-accepted third-party conformity assessment body to test to the new standard for infant bouncer seats would be required to meet the third-party conformity assessment body accreditation requirements in 16 CFR part 1112, Requirements Pertaining to Third-Party Conformity Assessment Bodies. When a laboratory meets the requirements as a CPSC-accepted third-party conformity assessment body, the laboratory can apply to the CPSC to have 16 CFR part 1229, Safety Standard for Infant Bouncer Seats, included in its scope of accreditation of CPSC safety rules listed for the laboratory on the CPSC Web site at: www.cpsc.gov/labsearch.

As required by the RFA, staff conducted a FRFA when the Commission issued the part 1112 rule (78 FR 15836, 15855-58). Briefly, the FRFA concluded that the accreditation requirements would not have a significant adverse impact on a substantial number of small test laboratories because no requirements were imposed on test laboratories that did not intend to provide third-party testing services. The only test laboratories that were expected to provide such services were those that anticipated receiving sufficient revenue from the mandated testing to justify accepting the requirements as a business decision. Moreover, a test laboratory would only choose to provide such services if it anticipated receiving revenues sufficient to cover the costs of the requirements.

Based on similar reasoning, amending 16 CFR part 1112 to include the NOR for the infant bouncer seats standard will not have a significant adverse impact on small test laboratories. Moreover, based upon the number of test laboratories in the United States that have applied for CPSC acceptance of accreditation to test for conformance to other mandatory juvenile product standards, we expect that only a few test laboratories will seek CPSC acceptance of their accreditation to test for conformance with the infant bouncer seats standard. Most of these test laboratories will have already been accredited to test for conformity to other mandatory juvenile product standards, and the only costs to them would be the cost of adding the infant bouncer seats standard to their scope of accreditation. For these reasons, the Commission certifies that the NOR amending 16 CFR part 1112 to include the infant bouncer seats standard will not have a significant impact on a substantial number of small entities.

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

FDA is amending the animal drug regulations to reflect approval actions for a NADA and ANADAs during March and April 2017, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the Dockets Management Staff Office (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Persons with access to the internet may obtain these documents at the CVM FOIA Electronic Reading Room: https://www.fda.gov/AboutFDA/CentersOffices/OfficeofFoods/CVM/CVMFOIAElectronicReadingRoom/default.htm. Marketing exclusivity and patent information may be accessed in FDA's publication, Approved Animal Drug Products Online (Green Book) at: https://www.fda.gov/AnimalVeterinary/Products/ApprovedAnimalDrugProducts/default.htm.

Pharmgate LLC, 1015 Ashes Dr., suite 102, Wilmington, NC 28405, has informed FDA that it has changed its address to 1800 Sir Tyler Dr., Wilmington, NC 28405. Accordingly, we are amending § 510.600(c) to reflect this change.

We are making several technical amendments in part 558, which was amended on December 27, 2016 (81 FR 94991), and February 24, 2017 (82 FR 11510), as part of the FDA Center for Veterinary Medicine's (CVM's) Judicious Use Initiative. We are also making several technical amendments to the regulations for dosage form drugs. These actions are being taken to improve the accuracy of the regulations.

This final rule is issued under section 512(i) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360b(i)), which requires Federal Register publication of “notice[s] . . . effective as a regulation,” of the conditions of use of approved new animal drugs. This rule sets forth technical amendments to the regulations to codify recent actions on approved new animal drug applications and corrections to improve the accuracy of the regulations, and as such does not impose any burden on regulated entities.

Although denominated a rule pursuant to the FD&C Act, this document does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a “rule of particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. Likewise, this is not a rule subject to Executive Order 12866, which defines a rule as “an agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.”

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR parts 510, 520, 522, 524, and 558 are amended as follows:

The Coast Guard will enforce the following special local regulations listed in 33 CFR part 100, Safety of Life on Navigable Waters, on the following dates and times:

(1) § 100.917 The Old Club Cannonade, Harsens Island, MI. This special local regulation will be enforced from 1:30 p.m. to 4:30 p.m. on October 21, 2017.

In accordance with § 100.901, entry into, transiting, or anchoring within these regulated areas is prohibited unless authorized by the Coast Guard patrol commander (PATCOM). The PATCOM may restrict vessel operation within the regulated area to vessels having particular operating characteristics.

The PATCOM may direct the anchoring, mooring, or movement of any vessel within this regulated area. A succession of sharp, short signals by whistle or horn from vessels patrolling the area under the direction of the PATCOM shall serve as a signal to stop. Vessels so signaled shall stop and shall comply with the orders of the PATCOM. Failure to do so may result in expulsion from the area, a Notice of Violation for failure to comply, or both.

If it is deemed necessary for the protection of life and property, the PATCOM may terminate the marine event or the operation of any vessel within the regulated area.

In accordance with the general regulations in § 100.35 of this part, the Coast Guard will patrol the regatta area under the direction of a designated Coast Guard Patrol Commander. The PATCOM may be contacted on Channel 16 (156.8 MHz) by the call sign “Coast Guard Patrol Commander.”

The “on-scene representative” of the Captain of the Port Detroit is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port Detroit to act on his behalf. The on-scene representative of the Captain of the Port Detroit will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port Detroit or his designated on scene representative may be contacted via VHF Channel 16.

The rules in this section shall not apply to vessels participating in the event or to government vessels patrolling the regulated area in the performance of their assigned duties.

This document is issued under authority of 33 CFR 100.35 and 5 U.S.C. 552(a). If the Captain of the Port determines that this special local regulation need not be enforced for the full duration stated in this document, he may suspend such enforcement and notify the public of the suspension via a Broadcast Notice to Mariners.

The California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge over the Sacramento River, mile 59.0, at Sacramento, CA. The drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw operates as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.

The drawspan will be secured in the closed-to-navigation position from 1 p.m. through 10 p.m. on September 24, 2017, to allow the community to participate in the Farm-to-Fork Dinner event. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

Vessels able to pass through the bridge in the closed position may do so at anytime. In the event of an emergency the draw can open on signal if at least two hours notice is given to the bridge operator. There are no immediate alternate routes for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators 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 effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Coast Guard will enforce the safety zone listed in Table 1 from 33 CFR 165.118 on the specified dates and times specified:

This notice of enforcement is issued under authority of 33 CFR 165.118 and 5 U.S.C. 552(a). During the enforcement period, persons and vessels are prohibited from entering into, transiting through, mooring, or anchoring within the safety zone unless they receive permission from the COTP or designated representative. In addition to this notice of enforcement in the Federal Register, the Coast Guard plans to provide mariners with advanced notification of this enforcement period via the Local Notice to Mariners.

On December 14, 2012, EPA promulgated a revised primary annual PM2.5 NAAQS. The standard was strengthened from 15.0 micrograms per cubic meter (μg/m3) to 12.0 μg/m3. See 78 FR 3086 (January 15, 2013). Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2012 Annual PM2.5 NAAQS to EPA no later than December 9, 2015.1

In a proposed rulemaking published on June 29, 2017 (82 FR 29448), EPA proposed to approve portions of Alabama's December 9, 2015, SIP submission for the 2012 Annual PM2.5 NAAQS. The details of Alabama's submission and the rationale for EPA's actions for this final rule are explained in the June 29, 2017, proposed rulemaking. Comments on the proposed rulemaking were due on or before July 31, 2017. EPA received no adverse comments.

EPA is taking final action to approve Alabama's infrastructure submission submitted on December 9, 2015, for the 2012 Annual PM2.5 NAAQS for the infrastructure SIP requirements, with the exception of the interstate transport requirements of section 110(a)(2)(D)(i)(I) (prongs 1 and 2) and visibility of section 110(a)(2)(D)(i)(II) (prong 4), and the state board requirements of section 110(a)(2)(E)(ii). EPA notes that the Agency is not approving any specific rule, but rather approving that Alabama's already approved SIP meets certain CAA requirements. With respect to the interstate transport provisions pertaining to contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2) and visibility of section 110(a)(2)(D)(i)(II) (prong 4), and the state board requirements of section 110(a)(2)(E)(ii). EPA will consider these requirements in relation to Alabama's 2012 Annual PM2.5 NAAQS infrastructure submission in a separate rulemaking. EPA is taking final action to approve all other elements of Alabama's infrastructure SIP submissions for the 2012 Annual PM2.5 NAAQS because the submission is consistent with section 110 of the CAA.

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 17, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See sec

40 CFR part 52 is amended as follows:

I. Background

On March 4, 1993, the Commonwealth of Kentucky submitted a SIP revision to address the Stage II requirements 1 for Jefferson County, Kentucky.2 EPA approved that SIP revision, which contained changes to the Jefferson County portion of Kentucky SIP at Regulation 6.40, Standards of Performance for Gasoline Transfer to Motor Vehicle (Stage II Vapor Recovery and Control Systems), in a document published on March 6, 1996 (61 FR 8873). On November 10, 2016, the Commonwealth of Kentucky submitted a SIP revision for Regulation 6.40, Standards of Performance for Gasoline Transfer to Motor Vehicle (Stage II Vapor Recovery and Control Systems). In this action, EPA is approving Louisville's request to revise the Stage II requirements in the Louisville Kentucky Area. Specifically, it seeks to remove the Stage II requirements in Jefferson County, Kentucky, and to add requirements for decommissioning the stations. EPA published a proposed rulemaking on July 3, 2017, to approve this SIP revision. The details of Kentucky's submittal and the rationale for EPA's action are explained in the proposed rulemaking. See 82 FR 30809. The comment period for this proposed rulemaking closed on August 2, 2017. EPA did not receive any comments, adverse or otherwise, during the public comment period.

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 Jefferson County portion of Kentucky, regulation 6.40, Standards of Performance for Gasoline Transfer to Motor Vehicle (Stage II Vapor Recovery and Control Systems), effective November 10, 2016, which removes Stage II vapor control requirements for new and upgraded gasoline dispensing facilities in Jefferson County, Kentucky. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.3

EPA is taking final action to approve the November 10, 2016, revision to the Jefferson County portion of the Kentucky SIP, Regulation 6.40, Standards of Performance for Gasoline Transfer to Motor Vehicle (Stage II Vapor Recovery and Control Systems), submitted by the Commonwealth of Kentucky. This action removes Stage II vapor control requirements for new and upgraded gasoline dispensing facilities, and allows for the decommissioning of existing Stage II equipment. EPA has determined that Kentucky's November 10, 2016, SIP revision related to the Louisville's Stage II rules is consistent with the CAA and EPA's regulations and guidance related to removal of Stage II requirements from the SIP and that these changes will not interfere with any applicable requirement concerning attainment or any other applicable requirement of the CAA, and therefore satisfy section 110(l).

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 17, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

Throughout this document, the terms “we,” “us,” or “our” refer to U.S. EPA.

Organization of this document: The following outline is provided to aid in locating information in this preamble.

On June 17, 2016 (81 FR 39607) and December 12, 2016 (81 FR 39607), EPA proposed to incorporate various Santa Barbara County APCD and Ventura County APCD air pollution control requirements into the OCS Air Regulations at 40 CFR part 55. We are incorporating these requirements in response to the submittal of these rules by the Districts. EPA has evaluated the proposed requirements to ensure that they are rationally related to the attainment or maintenance of federal or state ambient air quality standards or Part C of title I of the Act, that they are not designed expressly to prevent exploration and development of the OCS and that they are applicable to OCS sources. 40 CFR 55.1. EPA has also evaluated the rules to ensure that they are not arbitrary or capricious. 40 CFR 55.12(e).

Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55 as they exist onshore. This limits EPA's flexibility in deciding which requirements will be incorporated into part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into part 55 that do not conform to all of EPA's state implementation plan (SIP) guidance or certain requirements of the Act. Consistency updates may result in the inclusion of state or local rules or regulations into part 55, even though the same rules may ultimately be disapproved for inclusion as part of the SIP. Inclusion in the OCS rule does not imply that a rule meets the requirements of the Act for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.

EPA's proposed actions provided 30-day public comment periods. During these periods, we received no comments on the proposed actions.

No comments were submitted. Therefore, as authorized in section 328(a)(1) of the Act, 42 U.S.C. 7627, the EPA is taking final action to incorporate the proposed changes into 40 CFR part 55. Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into Part 55 as they exist onshore.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Santa Barbara County APCD and Ventura County APCD requirements described in the amendments to 40 CFR part 55 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore air control requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55 as they exist onshore. 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS consistency updates, EPA's role is to maintain consistency between OCS regulations and the regulations of onshore areas, provided that they meet the criteria of the Clean Air Act. Accordingly, this action simply updates the existing OCS requirements to make them consistent with requirements onshore, without the exercise of any policy discretion by EPA. 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);

• 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 (Publ. L. 104-4);

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 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, nor does it impose substantial direct compliance costs on tribal governments, nor preempt tribal law.

Under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in 40 CFR part 55 and, by extension, this update to the rules, and has assigned OMB control number 2060-0249. Notice of OMB's approval of EPA Information Collection Request (“ICR”) No. 1601.07 was published in the Federal Register on February 17, 2009 (74 FR 7432). The approval expires January 31, 2012. As EPA previously indicated (70 FR 65897-65898 (November 1, 2005)), the annual public reporting and recordkeeping burden for collection of information under 40 CFR part 55 is estimated to average 549 hours per response, using the definition of burden provided in 44 U.S.C. 3502(2).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 17, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

Title 40 of the Code of Federal Regulations, Part 55, is amended as follows:

I. Background

On November 3, 2015, the EPA published a final rule amending 40 CFR part 423, the effluent limitations guidelines and standards for the steam electric power generating point source category, under Sections 301, 304, 306, 307, 308, 402, and 501 of the CWA (33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, and 1361). The amendments addressed limitations and standards on various wastestreams at steam electric power plants: FGD wastewater, bottom ash transport water, fly ash transport water, flue gas mercury control wastewater, gasification wastewater, and combustion residual leachate. Collectively, this rulemaking is known as the “Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category,” or “2015 Rule.” For further information on the 2015 Rule, see 80 FR 67838 (November 3, 2015).

EPA received seven petitions for review of the 2015 Rule. The U.S. Judicial Panel on Multi-District Litigation issued an order on December 8, 2015, consolidating all of the petitions in the U.S. Court of Appeals for the Fifth Circuit, Southwestern Electric Power Co., et al. v. EPA, No. 15-60821.

In a letter dated March 24, 2017, the Utility Water Act Group (“UWAG”) 1 submitted a petition for reconsideration of the 2015 Rule which requested that EPA suspend the Rule's approaching deadlines. UWAG supplemented its petition with additional information in a letter dated April 13, 2017. In a letter dated April 5, 2017, the Small Business Administration (“SBA”) Office of Advocacy sent EPA a second petition for reconsideration of the 2015 Rule, which expressly supports UWAG's petition and raises issues that SBA considers to be pertinent to small businesses. The petitions raise wide-ranging objections to the Rule.2 Among other things, the UWAG petition points to new data which they believe show that plants burning subbituminous and bituminous coal cannot comply with the 2015 Rule's limitations and standards for FGD wastewater and questions EPA's characterization of bottom ash transport water. UWAG also requested that EPA suspend or delay the “rule's fast-approaching compliance deadlines while EPA works to reconsider and revise, as appropriate, the substantive requirements of the current rule.”

In an April 12, 2017 letter to those who submitted the reconsideration petitions, the Administrator announced his decision to reconsider the 2015 Rule. See DCN SE06612. As explained in that letter, after considering the objections raised in the reconsideration petitions, the Administrator determined that it is appropriate and in the public interest to reconsider the Rule. On April 14, 2017, EPA requested that the Fifth Circuit hold the case in abeyance while the Agency undertook reconsideration. On April 24, 2017, the Fifth Circuit granted the motion and placed the case in abeyance.

On June 6, 2017 (82 FR 26017), EPA proposed to postpone the compliance dates for the new, more stringent, BAT effluent limitations and PSES in the 2015 Rule for each of the following wastestreams: FGD wastewater, bottom ash transport water, fly ash transport water, flue gas mercury control wastewater, and gasification wastewater, while reconsideration of the 2015 Rule was underway. EPA explained that this postponement would preserve the regulatory status quo with respect to wastestreams subject to the 2015 Rule's new, and more stringent, limitations and standards during reconsideration and that postponement of compliance dates is intended to prevent the unnecessary expenditure of resources until EPA finalizes any rulemaking as a result of its reconsideration of the 2015 Rule. EPA also solicited comments on whether this postponement should be for a specified period of time, for example, two years.

On August 11, 2017, EPA sent a second letter to those who had requested reconsideration of the 2015 Rule, announcing the Administrator's decision to conduct a new rulemaking to potentially revise the new, more stringent BAT limitations and PSES in the 2015 Rule that apply to two wastestreams: FGD wastewater and bottom ash transport water. See DCN SE06670. On August 14, 2017, EPA filed a motion to govern further proceedings in the U.S. Court of Appeals for the Fifth Circuit, which explained that EPA intends to conduct further rulemaking to potentially revise the new, more stringent BAT/PSES requirements in the 2015 Rule applicable to FGD wastewater and bottom ash transport water, and requested, in part, that the Court sever and hold in abeyance all judicial proceedings concerning portions of the 2015 Rule related to those particular requirements. On August 22, 2017, the Court granted EPA's motion.

In an earlier action, EPA administratively postponed certain compliance dates that had not yet passed in part of the 2015 Rule pursuant to Section 705 of the Administrative Procedure Act (“APA”), 5 U.S.C. 705, which states that “[w]hen an agency finds that justice so requires, it may postpone the effective date of action taken by it pending judicial review.” 82 FR 19005 (April 25, 2017). EPA had postponed the compliance dates as a temporary measure pursuant to Section 705 to preserve the status quo while the litigation in the Fifth Circuit was pending and EPA's reconsideration was underway. Because EPA has decided to conduct further rulemaking to potentially revise the new, more stringent BAT limitations and PSES in the 2015 Rule applicable to two specific wastestreams (FGD wastewater and bottom ash transport water), and it is today finalizing a rule which postpones the associated compliance dates in the 2015 Rule pending its next rulemaking, there is no longer any need for the Agency to maintain its prior action pursuant to Section 705 of the APA. EPA, hereby, withdraws that action.

EPA received thousands of written comments on the proposed rule to postpone certain compliance dates in the 2015 Rule. EPA also held a public hearing on July 31, 2017. The comments on the proposed rule generally fall into one of four categories: (1) Support for postponement of compliance dates; (2) opposition to the postponement of compliance dates; (3) comments on the substantive requirements of the 2015 Rule (which are outside the scope of this action, which concerns postponing certain compliance dates only); and (4) comments on the length of time that EPA should postpone the compliance dates.

Commenters that support the postponement rule generally assert that the postponement is appropriate to prevent industry from spending “unnecessary resources” until EPA completes its reconsideration of the 2015 Rule. Many commenters who support a postponement in compliance dates state that, given the substantial costs required to implement technology required to comply with the 2015 Rule, as well as the time needed for designing and optimizing treatment systems, certainty in the discharge requirements is needed and postponement of compliance dates allows for that. In addition, commenters argue that the Agency has both the authority and the responsibility to postpone the 2015 Rule until it completes any rulemaking following its reconsideration process.

Comments on the length of the postponement generally assert that EPA should postpone the compliance dates for a minimum of two years, until EPA has taken final action on any rule revisions, or some time period beyond when EPA has taken final action on any rule revisions.

Commenters that oppose the postponement rule generally assert that (1) the technology bases underlying the 2015 Rule are widely available and affordable now, many steam electric plants have already installed or are in the process of implementing these technologies, and postponing the compliance dates would hinder technology development; (2) any postponement allows power plants to continue to discharge pollutants that are harmful to public health and the environment, and the forgone public health and environmental benefits during any postponement outweigh the costs to industry; and (3) EPA lacks authority to postpone the compliance dates.

In light of new information not contained in the record for the 2015 Rule and the inherent discretion the Agency has to reconsider past policy decisions consistent with the CWA and other applicable law, EPA intends to conduct a new rulemaking regarding the appropriate technology bases and associated limits for the BAT/PSES requirements applicable to FGD wastewater and bottom ash transport water discharged from steam electric power plants. Given this, and after carefully considering comments received on the proposed rule, EPA finds it appropriate to postpone the earliest compliance dates for the new, more stringent, BAT effluent limitations and PSES applicable to FGD wastewater and bottom ash transport water in the 2015 Rule until it completes the new rulemaking. This maintains the 2015 Rule as a whole at this time, with the only change being to postpone specific compliance deadlines for two wastestreams. Thus, the earliest compliance dates for plants to meet the new, more stringent FGD wastewater and bottom ash wastewater limitations and standards in the 2015 Rule, which were to be determined by the permitting authority as a date “as soon as possible beginning November 1, 2018 . . .”, are now to be determined by the permitting authority as a date “as soon as possible beginning November 1, 2020 . . . .” EPA is not changing the “no later than” date of December 31, 2023, because EPA is not aware that the 2023 date is an immediate driver for expenditures by plants (petitioners had requested relief from the “fast-approaching compliance deadlines” in the 2015 Rule), and EPA plans to take up the appropriate compliance period in its next rulemaking. In order to be absolutely clear about what is being postponed, the final rule includes more precise regulatory text to implement the rule than was included in the proposed rule.

Agencies have inherent authority to reconsider past decisions and to revise, replace or repeal a decision to the extent permitted by law and supported by a reasoned explanation. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42 (1983). See also Nat'l Ass'n of Home Builders v. EPA, 682 F.3d 1032, 1038 & 1043 (D.C. Cir. 2012). Particularly relevant here, the CWA expressly authorizes EPA to revise effluent limitations and standards. 33 U.S.C. 1311(d), 1314(b), (g)(1), (m)(1)(A), 1317(b)(2). Moreover, in doing so, Section 304(b)(2)(B) of the CWA directs EPA to consider several factors, including “other factors as the Administrator deems appropriate,” and the Agency is afforded considerable discretion in deciding how much weight to give each factor. See, e.g., Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1045 (D.C. Cir. 1978). In this case, where EPA has decided to undertake a new rulemaking, which may result in substantive changes to the 2015 Rule, that is an appropriate factor to consider and one that warrants the postponement of compliance dates for the new, more stringent BAT and PSES requirements for two wastestreams in the 2015 Rule, until such a rulemaking is complete (i.e., EPA issues any final rule that substantively revises the 2015 Rule or EPA decides not to issue such a final rule). This will prevent the potentially needless expenditure of resources during a rulemaking that may ultimately change the 2015 Rule in these respects.

As mentioned, some commenters stated that the record for the 2015 Rule demonstrates that the technologies underlying the new, more stringent requirements for FGD wastewater and bottom ash transport water are widely available and affordable. Notwithstanding statements in the 2015 Rule record, certain parties have raised serious concerns about the availability and affordability of the technology basis for the FGD wastewater and bottom ash transport water requirements in the 2015 Rule, and the Administrator wishes to take some time to carefully review these requirements in light of those concerns and ensure any such requirements are technologically available and economically achievable within the meaning of the statute. EPA has discretion in determining technological availability and economic achievability and is not constrained by the CWA to make the same policy decision as the former Administration, so long as its decision is reasonable. As explained above, the Agency may reconsider past policy decisions consistent with the Clean Water Act and other applicable law. The Agency may also reconsider technical determinations in light of new information submitted to the Agency that was not in the record for the 2015 Rule. EPA intends to fully evaluate all of the issues raised in the petitions, including concerns about: Cost and impacts to steam electric facilities, public availability of information on which the rule is based, lack of data for plants that burn certain types of coal, and validity of certain pollutant data used in EPA's 2015 Rule analysis. For example, petitioners raised concerns about the numerical BAT limitations and PSES applicable to FGD wastewater in the 2015 Rule. They assert that there are differences among coal types that affect the performance and costs of biological treatment and that EPA did not have data to demonstrate the performance of biological treatment on all coal types. To resolve this concern, following the rulemaking, industry collected (and continues to collect) additional data on the performance of biological treatment for different coal types. As another example, petitioners raised questions about the inclusion and validity of certain data due, in part, to what they assert are flaws in data acceptance criteria, obsolete analytical methods, and the treatment of non-detect analytical results, which petitioners believed resulted in an overestimation of pollutant loadings for bottom ash transport water. EPA agrees that these are important issues that warrant further consideration in conjunction with the statutory factors for determining BAT for these wastestreams. EPA thus intends to re-evaluate these and other concerns raised in the petitions in the next rulemaking. EPA acknowledges that postponement of certain of the 2015 Rule's compliance dates may be disruptive to vendors and treatment technology suppliers. EPA, however, must also consider the substantial investments required by the steam electric power industry to comply with the BAT limitations and PSES,3 and that certainty regarding the limitations and standards deserves prominent consideration by the Agency when these limitations and standards may change. As UWAG pointed out in its April 13, 2017 letter, “a rule of this magnitude and complexity requires substantial time to come into compliance for multiple wastestreams. Detailed studies and planning, followed by large capital expenditures and subsequent installation and testing, are time-consuming.” Companies have been evaluating their compliance options and are reaching the point at which they will be committing funds, incurring costs, or commencing construction to install technologies.

As part of the 2015 Rule, EPA estimated the costs associated with compliance with the 2015 Rule's new requirements. For all applicable wastestreams, EPA assessed the operations and treatment system components, identified equipment and process changes that the plant would likely make to meet the 2015 Rule, and estimated the cost to implement those changes. This includes, among other things, the capital costs of installing the technology (based on estimates of the technology selected as representing the level of control) and the operation and maintenance costs of operating the technology. See Technical Development Document (“TDD”), pp. 9-1 through 9-52. EPA estimated that the total post-tax annualized compliance costs would be $339.6 million/year. See Regulatory Impact Analysis (“RIA”), Table 3-2 (Option D).4

The 2015 rulemaking record also describes evaluation of the initial capital costs that regulated parties would incur in the near term (if a stay were not in place) to meet the 2015 Rule's effluent limitations and standards. For the purpose of analysis, in the RIA, EPA assumed that all capital costs are incurred concurrently with technology installation according to discharge permit renewal schedules, but EPA realizes that feasibility studies and planning may need to be completed in advance of that date. Specifically, plants would incur engineering design costs, costs to acquire equipment, freight shipping costs to transport equipment from manufacturers to the installation site, costs for actions to prepare the site (such as installing concrete foundations and buildings for the new equipment), and construction expenses associated with connecting electrical and piping systems to new equipment. See TDD, p. 9-3. EPA estimated post-tax annualized capital costs of $204.4 million/year. See RIA, Table 3-2 (Option D). Although there is a wide degree of variability among the costs particular plants would expend, EPA estimates that the average post-tax annualized capital compliance costs for a plant would be approximately $1.5 million/year. See TDD, Table 9-19 (plants with compliance costs); RIA, Table 3-2 (Option D). To the extent that these costs are associated with the 2015 Rule requirements for FGD wastewater and bottom ash transport water, and in the event that EPA revises these requirements in a future rulemaking, these are costs that would be incurred for activities that ultimately might not be necessary. In that case, this would reflect costs incurred by facilities and potentially passed on to utility rate payers that ultimately did not need to be spent.

In light of these imminent planning and capital expenditures that facilities incurring costs under the 2015 Rule would need to undertake in order to meet the earliest compliance deadlines for the new, more stringent limitations and standards in the 2015 Rule, and the fact that the Agency is conducting a new rulemaking regarding the appropriate technology bases and associated limits for BAT limitations and PSES applicable to FGD wastewater and bottom ash transport water, the Agency views it as appropriate to postpone the earliest compliance dates that have not yet passed for these wastestreams in 2015 Rule. This will preserve the regulatory status quo with respect to requirements for FGD wastewater and bottom ash transport water until the new rulemaking is complete.

Some commenters also express concerns that postponement of compliance dates would hinder technology advancements. EPA's experience does not support this concern. The record for the 2015 Rule demonstrates that technology advancements were not hindered during that rulemaking. Rather, as explained in the preamble to the final 2015 Rule, vendors continued to improve existing technologies and to develop new technologies during the rulemaking leading up to the 2015 Rule.

EPA acknowledges that postponement of the compliance dates could lead to a delay in the accrual of some of the benefits attributable to the 2015 Rule. The 2015 Rule required that steam electric power plants would comply with the new, more stringent requirements no later than 2023, with plants expected to implement new control technologies over a five-year compliance period of 2019-2023 according to their permit renewal schedule. In the record for the 2015 Rule, EPA estimated the value of certain benefits linked to reduced pollutant discharges that could be monetized for the period 2019 through 2042. Based on the 2015 Rule data and methodology, and depending on the inclusion of the Clean Power Plan, EPA estimates that foregone annualized benefits for a two-year delay would be between $26.6 million and $33.6 million.5 EPA similarly estimates that plants would experience annualized cost savings of between $27.5 million and $36.8 million as a result of a two-year delay. See DCN SE06668 for additional details, including calculations of the foregone benefits and cost savings. EPA understands that these estimates have uncertainty due to, for example, the possibility of unexpected implementation approaches, and thus that the actual cost savings could have been somewhat higher or lower than estimated. Similarly, due to data and analysis limitations, the forgone monetized benefits are likely underestimated. These estimates, however, are consistent with and reflect the best data and analysis available at the time of the 2015 Rule.

EPA notes that, as explained earlier, there is uncertainty as to the FGD wastewater and bottom ash transport water BAT/PSES requirements while EPA conducts a new rulemaking. If EPA did not postpone the compliance dates, industry would likely incur costs as it prepares to comply with the 2015 Rule, irrespective of what EPA ultimately determines to be BAT/PSES for FGD wastewater and bottom ash transport water. By contrast, under the 2015 Rule, even if permits were written today, the earliest those permits would have required compliance with the limitations and standards at issue are “as soon as possible beginning November 1, 2018.” So, while some companies would have to plan to comply and spend money right away, the benefits would not begin to accrue until 2018, at the earliest. Also, these benefits may not be lost if a permitting authority requires similar effluent limitations where necessary to meet applicable water quality standards, under CWA section 301(b)(1)(C). EPA has carefully weighed the concerns about potentially foregone benefits with the consideration of the costs that could needlessly be incurred should the requirements be changed, as well as the overall uncertainty and potential confusion that would be caused by imposing the 2015 Rule requirements while simultaneously undertaking rulemaking that may change those requirements. On balance, EPA has concluded the more reasonable approach is to postpone the compliance dates in the 2015 Rule.

Thus, EPA agrees with commenters who argue that it should postpone the new, more stringent BAT/PSES requirements for FGD wastewater and bottom ash transport water in the 2015 Rule until it completes a new rulemaking on these wastestreams. After reflecting on the time it typically takes the Agency to propose and finalize revised effluent limitations guidelines and standards, and in light the characteristics of this industry and the anticipated scope of the next rulemaking, EPA projects it will take approximately three years to propose and finalize a new rule (Fall 2020). See DCN SE06667. Consequently, EPA is postponing the earliest compliance dates for the new, more stringent, BAT effluent limitations and PSES for FGD wastewater and bottom ash transport water for a period of two years (November 1, 2020).6 To the extent that commenters believe a postponement under this rule should last beyond the time it takes EPA to complete its new rulemaking, such comments are appropriately considered as part of, and in light of, that new rulemaking and not this action. As explained, this rule is intended only as a relatively short-term measure until EPA completes the next rulemaking, and EPA anticipates that the next rulemaking will necessarily address compliance dates in some fashion. Although EPA proposed to postpone the compliance dates for the new, more stringent requirements applicable to fly ash transport water, gasification wastewater, and flue gas mercury control (FGMC) wastewater, in addition to the requirements for FGD wastewater and bottom ash transport water, this final rule does not postpone those former compliance dates. Commenters stated that EPA has no basis to postpone compliance dates for requirements that parties have not expressly argued should be reconsidered, such as those for fly ash transport water and FGMC wastewater. EPA agrees that the final rule should postpone only those requirements that the Agency plans to potentially revise in the next rulemaking. Because EPA is not conducting a new rulemaking concerning any of the other issues addressed by the 2015 Rule, including requirements for fly ash transport water, gasification wastewater, and FGMC wastewater, EPA is not changing the compliance dates for these wastestreams or any of the other compliance dates for the requirements in that Rule. The record for the 2015 Rule demonstrates that changes associated with converting a fly ash system are unrelated from an engineering perspective to conversions/upgrades for bottom ash transport water and FGD treatment systems. Converting a fly ash system requires installing a silo to capture the dry fly ash, which is subsequently transported offsite to beneficial reuse markets (e.g., cement plants) or landfilled. Bottom ash is handled separately, regardless of whether it is wet or dry. The same is true for FGD wastes. EPA recognizes however, that from a financing and long-term planning perspective, there are advantages to a facility in knowing the full suite of requirements it will need to comply with over a longer term planning horizon.

Some facilities commented that they may need to know what the ultimate requirements will be for bottom ash transport water and FGD wastewater to assist them in considering alternatives for meeting the requirements for the other waste streams (fly ash transport water and FGMC wastewater) for which EPA is not postponing the earliest compliance dates. EPA notes that there continues to be discretion under the 2015 Rule for permitting authorities to consider: Time needed to “expeditiously plan (including time to raise capital), design, procure, and install equipment” to comply with the rule; changes being made at the plant to comply with several other rules; and “other factors as appropriate” in determining exactly when, within a specified compliance period, the 2015 Rule's new, more stringent limitations apply to any given plant. See 40 CFR 423.11(t).

In light of the compliance date postponements being finalized today, in determining the “as soon as possible date,” EPA believes it would be reasonable for permitting authorities to consider the need for a facility to make integrated planning decisions regarding compliance with the requirements for all of the wastestreams currently subject to new, more stringent requirements in the 2015 Rule, as well as the other rules identified in § 423.11(t) to the extent that a facility demonstrates such a need. This could include harmonizing schedules to the extent provided for under the 2015 Rule 7 for meeting the 2015 Rule requirements for fly ash transport water and FGMC wastewater to allow time for a facility to have certainty regarding what their ultimate requirements will be under the steam electric ELGs, as well as the requirements under the other rules listed in § 423.11(t).

This rule is effective immediately upon publication. Section 553(d) of the Administrative Procedure Act, 5 U.S.C. 553(d), provides that publication of a substantive rule must be made no less than 30 days before its effective date, subject to several exceptions. Section 553(d)(1) establishes an exception for “a substantive rule which grants or recognizes an exemption or relieves a restriction.” The exception in Section 553(d)(1) reflects the purpose of the 30-day notice requirement, which is to give affected entities time to prepare for the effective date of a rule or to take any other action which the issuance of a rule may prompt. This rule fits within Section 553(d)(1) because it postpones certain requirements on steam electric power plants to control their pollutant discharges by two years, and as a result, it relieves a restriction on regulated entities for that period.

This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket.

This action is considered an Executive Order 13771 deregulatory action. Details on the estimated cost savings of this final rule can be found in EPA's analysis of the potential costs and benefits associated with this action.

This final rule does not involve any information collection activities subject to the PRA, 44 U.S.C. 3501 et seq.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action maintains the 2015 Rule as a whole at this time, with the only change being to postpone specific compliance deadlines for two wastestreams. As described above, EPA estimates that steam electric plants, including some small entities, would experience annualized cost savings of $27.5 million as a result of this two-year delay. We have therefore concluded that this action will relieve regulatory burden for some directly regulated small entities.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.

This action does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

This action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000).

This final rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because EPA previously determined that the environmental health risks or safety risks addressed by the requirements EPA is finalizing do not present a disproportionate risk to children.

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

This rulemaking does not involve technical standards that would require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272 note.

This is a final rule to delay action, and it does not change the requirements of the effluent limitations guidelines and standards published in 2015. While the postponement in compliance dates could delay the protection the 2015 Rule would afford to all communities, including those impacted disproportionately by the pollutants in certain wastewater discharges, this action would not change any impacts of the 2015 Rule upon implementation. The EPA therefore believes it is more appropriate to consider the impact on minority and low-income populations in the context of possible substantive changes as part of any future rulemaking.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is a not a “major rule” as defined by 5 U.S.C. 804(2).

For reasons stated in the preamble, EPA amends 40 CFR part 423 as set forth below:

Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of northern albacore, swordfish, and bluefin tuna by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27(e) describes the northern albacore annual quota recommended by ICCAT and the annual northern albacore quota adjustment process. Section 635.27(c) describes the quota adjustment process for both North and South Atlantic swordfish. Section 635.27(a) subdivides the ICCAT-recommended U.S. bluefin tuna quota among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006), as amended by Amendment 7 to the 2006 Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014), and describes the annual bluefin tuna quota adjustment process. NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quotas.

The northern albacore quota implementation and quota adjustment processes, along with the bluefin tuna quota adjustment process, were previously analyzed in Amendment 7, which published in August 2014 and included a Final Environmental Impact Statement, Final Regulatory Impact Review (RIR), Final Regulatory Flexibility Analysis (FRFA), and Final Social Impact Statement. ICCAT conducted another bluefin tuna stock assessment update in 2014, and, after considering the scientific advice in the stock assessment, adopted a recommendation regarding western Atlantic bluefin tuna management that increases the U.S. bluefin tuna quota for 2015 and 2016 (ICCAT Recommendation 14-05). NMFS published a final rule to implement that baseline annual U.S. bluefin tuna quota on August 28, 2015 (80 FR 52198), and prepared an Environmental Assessment (EA), RIR, and FRFA for that action. ICCAT Recommendation 16-08 extended the U.S. bluefin tuna allocation established in Recommendation 14-05 through 2017.

The North Atlantic swordfish quota adjustment process was previously analyzed in the EA, RIR, and FRFA that were prepared for the 2012 Swordfish Quota Adjustment Rule (July 31, 2012; 77 FR 45273). The South Atlantic swordfish quota adjustment process was previously analyzed in the EA, RIR, and FRFA that were prepared for the 2007 Swordfish Quota Specification Final Rule (October 5, 2007; 72 FR 56929). In the 2016 North and South Atlantic Swordfish Quotas Adjustment Final Rule (July 26, 2016, 81 FR 48719), after taking public comment on the issue, NMFS announced its intent to no longer issue proposed and final specifications/rules for North and South Atlantic swordfish quotas adjustments in cases where the quota adjustment follows previously codified and analyzed formulas. Therefore, beginning this year, NMFS is instead issuing a temporary final rule to adjust the quota, in a similar process to northern albacore and bluefin tuna quota adjustments. NMFS will continue to undertake notice and comment rulemaking when adopting new quotas, quota formulas, or otherwise altering conservation and management measures.

Note that weight information for northern albacore and bluefin tuna below is shown in metric tons (mt) whole weight (ww), and both dressed weight (dw) and ww is shown for swordfish.

Since 1998, ICCAT has adopted recommendations regarding the northern albacore fishery. The current ICCAT northern albacore recommendation (Recommendation 16-06) includes a total allowable catch (TAC) at 28,000 metric tons (mt) for 2017 and specific recommendations regarding the northern albacore conservation and management. The U.S. baseline quota for 2017 is 527 mt, annually. The baseline quota of 527 mt is codified at § 635.27(e) and will remain in effect until changed. For example, Recommendation 16-06 specifies that the quota for 2019 and 2020 will be 564.6 mt. It also specifies that if, in any year, the combined contracting parties' landings exceed the TAC, the Commission will re‐evaluate the Recommendation and recommend further conservation measures, as appropriate.

Amendment 7 established the process by which NMFS adjusts the U.S. annual northern albacore quota for allowable underharvest, if any, in the previous year. NMFS makes such adjustments consistent with ICCAT limits and when complete catch information for the prior year is available and finalized. The maximum underharvest that a Contracting Party may carry forward from one year to the next is 25 percent of its initial catch quota, which equals 131.75 mt for the United States.

For 2016, the adjusted quota was 658.75 mt (527 mt plus 131.75 mt of 2015 underharvest carried forward to 2016). The total 2016 northern albacore catch was 249.60 mt, which is 409.15 mt less than the 2016 adjusted quota. Thus, the underharvest for 2016 is 409.15 mt, 131.75 mt of which may be carried forward to the 2017 fishing year. Thus, the adjusted 2017 northern albacore quota is 527 mt plus 131.75 mt, totaling 658.75 mt.

At the 2016 ICCAT annual meeting, Recommendation 16-03 maintained the North Atlantic swordfish TAC of 10,301 mt dw (13,700 mt ww) through 2017. Of this TAC, the United States' baseline quota is 2,937.6 mt dw (3,907 mt ww) per year. ICCAT Recommendation 16-03 also includes an 18.8 mt dw (25 mt ww) annual quota transfer from the United States to Mauritania and limits underharvest carryover to 15 percent of a Contracting Party's baseline quota. Therefore, the United States may carry over a maximum of 440.6 mt dw (586.0 mt ww) of underharvest from 2016 to 2017. This final rule adjusts the U.S. baseline quota for the 2017 fishing year to account for the annual quota transfer to Mauritania and the 2016 underharvest.

The 2017 North Atlantic swordfish baseline quota is 2,937.6 mt dw (3,907 mt ww). The total 2016 North Atlantic swordfish catch and dead discards totaled 1,144.4 mt dw, which is 2,215 mt dw less than the 2016 adjusted quota of 3,359.4 mt dw. Thus, the North Atlantic swordfish underharvest for 2016 was 2,215 mt dw, and NMFS is carrying forward 440.6 mt dw, the maximum carryover allowed under Recommendation 16-03. The 2,937.6 mt dw baseline quota is reduced by the 18.8 mt dw annual quota transfer to Mauritania and increased by the underharvest carryover of 440.6 mt dw, resulting in a final adjusted North Atlantic swordfish quota for the 2017 fishing year of 3,359.4 mt dw (2,937.6−18.8 + 440.6 = 3,359.4 mt dw). From that adjusted quota, 50 mt dw will be allocated to the reserve category for inseason adjustments and research, and 300 mt dw will be allocated to the incidental category, which includes recreational landings and landings by incidental swordfish permit holders, in accordance with regulations at 50 CFR 635.27(c)(1)(i). This would result in an allocation of 3,009.4 mt dw (3,359.4−50−300 = 3,009.4 mt dw) for the directed category, which would be split equally between two seasons in 2017 (January through June, and July through December) (Table 1).

In 2016, ICCAT Recommendation 16-04 maintained the South Atlantic swordfish TAC at 11,278.2 mt dw (15,000 mt ww) through 2017. Of this, the United States receives 75.2 mt dw (100 mt ww). Recommendation 16-04 limits the amount of South Atlantic swordfish underharvest that can be carried forward from one year to the next, and the United States may carry forward up to 100 percent of its baseline quota (75.2 mt dw). Recommendation 16-04 also included a total of 75.2 mt dw (100 mt ww) of quota transfers from the United States to other countries. These transfers were 37.6 mt dw (50 mt ww) to Namibia, 18.8 mt dw (25 mt ww) to Côte d'Ivoire, and 18.8 mt dw (25 mt ww) to Belize.

U.S. fishermen landed no South Atlantic swordfish in 2016. The adjusted 2016 South Atlantic swordfish quota was 75.1 mt dw due to nominal landings in previous years. Therefore, 75.1 mt dw of underharvest is available to carry over to 2017. NMFS is carrying forward 75.1 mt dw to be added to the 75.2 mt dw baseline quota. The quota is then reduced by the 75.2 mt dw of annual international quota transfers outlined above, resulting in an adjusted South Atlantic swordfish quota of 75.1 mt dw for the 2017 fishing year (Table 1).

Pursuant to Amendment 7, NMFS augments the Reserve category quota to the extent that underharvest from the prior year's adjusted U.S. bluefin tuna quota is available. NMFS makes such adjustments consistent with ICCAT limits and when complete catch information for the prior year is available and finalized. Consistent with the bluefin tuna quota regulations, NMFS may allocate any portion of the Reserve category quota for inseason or annual adjustments to any fishing category quota pursuant to regulatory determination criteria described at § 635.27(a)(8), or for scientific research.

NMFS implemented ICCAT Recommendation 14-05 in the bluefin tuna quota final rule in August 2015 (80 FR 52198, August 28, 2015). That rulemaking implemented Recommendation 14-05, which included a western bluefin tuna TAC of 2,000 mt (for 2015 and 2016) and the recommended annual U.S. baseline quota of 1,058.79 mt. The total annual U.S. quota, including the 25 mt to account for bycatch related to pelagic longline fisheries in the Northeast Distant gear restricted area (NED) is 1,083.79 mt. Any underharvest of a CPC's total quota in a given year may be carried forward to the next year but is limited to 10 percent of the CPC's initial quota allocation (for the United States, its baseline quota plus 25 mt for the NED). ICCAT Recommendation 16-08 extended these provisions through 2017. The baseline annual U.S. bluefin tuna quota of 1,058.79 mt is codified at § 635.27(a) and will remain in effect until changed (for instance, if a new ICCAT western bluefin tuna TAC recommendation is adopted).

The total 2016 bluefin tuna catch was 1,025.10 mt. This total catch includes landings and dead discards. The total catch of 1,025.10 mt is 167.07 mt less than the 2016 adjusted quota of 1,083.79 mt. Per ICCAT Recommendation 16-08, only 10 percent of the total 2016 U.S. quota, or 108.38 mt, of that underharvest may be carried forward to the 2017 fishing year, resulting in a 2017 adjusted quota of 1,192.17 mt (baseline quota of 1,083.79 mt + underharvest carryover of 108.38 mt). The codified Reserve category quota is 24.8 mt. Consistent with the process established in Amendment 7, NMFS augments the Reserve category quota with 108.38 mt in this action. Effective February 28, 2017, NMFS adjusted the Reserve category quota for 2017 to 118 mt by reallocating 138.2 mt of Purse Seine quota to the Reserve category (based on 2016 catch by Purse Seine category participants) and also transferring 45 mt of Reserve category quota to the Longline category (82 FR 12296, March 2, 2017). Effective March 2, 2017, NMFS transferred 40 mt from the Reserve to the General category (82 FR 12747, March 7, 2017). Additionally, effective August 11, 2017, NMFS transferred an additional 30 mt from the Reserve to the Harpoon category (82 FR 38853, August 16, 2017). Thus, as of the effective date of this action (September 18, 2017), the adjusted 2017 Reserve category quota would be 156.38 mt (24.8 + 138.2−45−40−30 + 108.38).

The Assistant Administrator for NMFS (AA) has determined that this temporary final rule is consistent with the Magnuson-Stevens Act, the 2006 Consolidated Atlantic HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, ATCA, and other applicable law.

Pursuant to section 553(b)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(B)), the AA finds that it would be unnecessary and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the reasons described below.

NMFS solicited and accepted public comment on the northern albacore quota implementation and quota adjustment processes, along with the bluefin tuna quota adjustment process, as part of the Amendment 7 rulemaking. Public comments on these provisions in response to the proposed Amendment 7 rule were generally supportive and were addressed in the Response to Comments section of the Amendment 7 final rule. (See comments 18, 19, and 105 at 79 FR 71530-71531 and 71553). Similarly, in the past, North and South Atlantic swordfish quota adjustments were performed through an annual notice and comment rulemaking process. In the 2016 North and South Atlantic Swordfish Quota Adjustment Rule (81 FR 48719, July 26, 2016), NMFS announced the intent to no longer issue proposed and final specifications/rules for North and South Atlantic swordfish quota adjustments in cases where the quota adjustment simply follows previously codified and analyzed formulas. Public comments on this process change were generally supportive. Beginning this year, NMFS will instead issue a temporary final rule to adjust the quota. NMFS will continue to undertake notice and comment rulemaking if adopting new quotas, quota formulas, or otherwise altering conservation and management measures for North and South Atlantic swordfish.

This action applies the formulas which the public received notice of in the earlier actions (Amendment 7 and the 2016 North and South Atlantic Swordfish Quota Adjustment Rule), using the best available data regarding 2016 catch and underharvest and calculating allowable underharvest consistent with ICCAT recommendations. The rulemakings for Amendment 7 and the 2016 North and South Atlantic Swordfish Quota Adjustment Rule specifically provided prior notice of, and accepted public comment on, these formulaic quota adjustment processes and the manner in which they occur. The application of this formula in this action does not have discretionary aspects requiring additional agency consideration and thus it would be unnecessarily duplicative to accept public comment for this action.

There is good cause under U.S.C. 553(d)(3) to waive the 30-day delay in effective date and to make the rule effective upon publication in the Federal Register. The fisheries for northern albacore, North and South Atlantic swordfish, and bluefin tuna began on January 1, 2017. NMFS monitors northern albacore, North and South Atlantic swordfish, and bluefin tuna annual catch and measures the annual catch data against the applicable available quotas. Delaying the effective date of these quota adjustments would complicate the management of the northern albacore, North and South Atlantic swordfish, and bluefin tuna fisheries, all of which rely on management flexibility to respond quickly to fishery conditions to ensure that fishermen have a reasonable opportunity to catch the available quotas. For example, under the northern albacore fishery closure regulations, NMFS must close the fishery when the annual fishery quota is reached. Closure of the fishery based only on the baseline (codified) quota versus the adjusted northern albacore quota could preclude the fishery from harvesting northern albacore that are legally available consistent with the ICCAT recommendations and the 2006 Consolidated HMS FMP, as amended. Adjusting the North and South Atlantic swordfish quota allows the United States to comply with the ICCAT allowance to carry over quota underharvest and the obligation of international quota transfers. Adjusting the bluefin tuna Reserve category as soon as possible provides NMFS the flexibility to transfer quota from the Reserve to other fishing categories inseason after considering the regulatory determination criteria, including fishery conditions at the time of the transfer. The amount of quota currently in the Reserve category is relatively low, and NMFS may need to transfer quota soon in order to reduce the likelihood of fishery closure during the September or subsequent subquota time periods. NMFS could not appropriately adjust the annual quotas for 2017 sooner because the data needed to make the determination did not become available until August, and additional time was needed for agency analysis and consideration of the data.

Additionally, to prevent confusion and potential overharvests, these adjustments should be in place as soon as possible in order to allow the impacted sectors to benefit from any subsequent quota adjustments to the fishing categories, give them a reasonable opportunity to catch available quota, and provide them the opportunity for planning operations accordingly.

This action is being taken under § 635.27(e) and § 635.27(a)(10), and is exempt from review under Executive Order 12866.

This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

Need for Correction

NMFS published the reallocation of Pacific cod on September 5, 2017 (82 FR 41899). The document contains incorrect amounts of Pacific cod to be transferred to catcher vessels less than 60 feet LOA using hook-and-line or pot gear from vessels using jig gear. These corrections will not affect the fishing operations. These corrections are necessary to provide the correct information about the amount of the Pacific cod transferred from vessels using jig gear and eliminate potential avoid confusion by fishery participants.

In the Federal Register of September 5, 2017, (82 FR 41899) in FR Doc. 2017-18733, on page 41900, column 1, paragraph 2, sentences 1 and 2 are corrected to read as follows:

“The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that jig vessels will not be able to harvest 1,186 mt of the remaining 2017 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(1). Therefore, in accordance with § 679.20(a)(7)(iii)(A), NMFS apportions 1,186 mt of Pacific cod to the annual amount specified for catcher vessels less than 60 feet LOA using hook-and-line or pot gear.”

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This actions corrects an error that attributed the total amount of Pacific cod being transferred to catcher vessels less than 60 feet LOA using hook-and-line or pot gear from multiple sectors (1,612 mt), rather than the amount of Pacific cod being reallocated from vessels using jig gear (1,186 mt). This correction does not change operating practices in the fisheries. Corrections should be made as soon as possible to avoid confusion for participants in the fisheries.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.