83 FR 49492 - Approval and Promulgation of Air Quality Implementation Plans; New York; Determination of Attainment of the 2008 8-Hour Ozone National Ambient Air Quality Standard for the Jamestown, New York Marginal Nonattainment Area
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 83, Issue 191 (October 2, 2018)
Federal Register Volume 83, Issue 191 (October 2, 2018)
| Page Range | 49492-49495 | |
| FR Document | 2018-21329 |
[Federal Register Volume 83, Number 191 (Tuesday, October 2, 2018)] [Rules and Regulations] [Pages 49492-49495] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-21329] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R02-OAR-2018-0422; FRL-9984-81--Region 2] Approval and Promulgation of Air Quality Implementation Plans; New York; Determination of Attainment of the 2008 8-Hour Ozone National Ambient Air Quality Standard for the Jamestown, New York Marginal Nonattainment Area AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is finalizing a determination that the Jamestown, New York Marginal Nonattainment Area (Jamestown Area or Area) has attained the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS). This determination is based upon complete, quality-assured, and certified ambient air monitoring data that shows the Area has monitored attainment of the 2008 8-hour ozone NAAQS for both the 2012-2014 and 2015-2017 monitoring periods. This action does not constitute a redesignation to attainment. The Jamestown Area will remain nonattainment for the 2008 8-hour ozone NAAQS until such time as EPA determines that the Jamestown Area meets the Clean Air Act (CAA) requirements for redesignation to attainment, including an approved maintenance plan. This action is being taken under the CAA. DATES: This final rule is effective on November 1, 2018. ADDRESSES: The EPA has established a docket for this action under Docket ID Number EPA-R02-OAR-2018-0422. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, [[Page 49493]] e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, (212) 637-3381, or by email at [email protected]. SUPPLEMENTARY INFORMATION: I. Background On March 12, 2008, EPA revised both the primary and secondary NAAQS for ozone to a level of 0.075 parts per million (ppm) (annual fourth- highest daily maximum 8-hour average concentration, averaged over three years) to provide increased protection of public health and the environment. 73 FR 16436 (March 27, 2008).\1\ The 2008 ozone NAAQS retains the same general form and averaging time as the 0.08 ppm NAAQS set in 1997, but is set at a more protective level. On May 21, 2012 (77 FR 30088), effective July 20, 2012, EPA designated as nonattainment any area that was violating the 2008 8-hour ozone NAAQS based on the three most recent years (2008-2010) of air monitoring data. The Jamestown Area (specifically, Chautauqua County) was designated as a marginal ozone nonattainment area. See 40 CFR 81.333. --------------------------------------------------------------------------- \1\ For a detailed explanation of the calculation of the 3-year 8-hour average, see 40 CFR part 50, appendix I. --------------------------------------------------------------------------- Marginal areas designated in the May 21, 2012 rule are required to attain the 2008 8-hour ozone NAAQS by the applicable deadline of July 20, 2015. See 40 CFR 51.903. On May 4, 2016, EPA determined that complete, quality-assured, and certified air quality monitoring data from the 2012-2014 monitoring period indicated that the Jamestown Area attained the 2008 8-hour ozone NAAQS by that attainment date. See 81 FR 26697. Under the provisions of EPA's ozone implementation rule (40 CFR 51.918), if EPA also issues a determination (as it is doing here) that an area is attaining the relevant standard through a rulemaking that includes public notice and comment (known informally as a Clean Data Determination), the requirements for a State to submit certain required planning SIPs related to attainment of the eight-hour NAAQS, such as attainment demonstrations, reasonable further progress plans and contingency measures, shall be suspended. EPA's action only suspends the requirements to submit the SIP revisions discussed above.\2\ --------------------------------------------------------------------------- \2\ For more information on the EPA's Clean Data Policy, see https://www.epa.gov/ozone-pollution/redesignation-and-clean-data-policy-cdp for documents such as the Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, ``Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard'' (May 10, 1995). --------------------------------------------------------------------------- This suspension remains in effect until such time, if ever, that EPA (i) redesignates the area to attainment, at which time those requirements no longer apply, or (ii) subsequently determines that the area has violated the 2008 8-hour ozone NAAQS. Although these requirements are suspended, if the State provides these submissions to EPA for review and approval at any time, EPA is not precluded from acting upon them. II. EPA's Evaluation An area may be considered to be attaining the 2008 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR part 50, based on three complete, consecutive calendar years of quality-assured ambient air monitoring data. Under EPA regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations at an ozone monitor is less than or equal to 0.075 ppm. See 40 CFR part 50, appendix P. This 3-year average is referred to as the design value. When the design value is less than or equal to 0.075 ppm at each monitor within the area, then the area is attaining the NAAQS. Also, the data meets the regulatory completeness requirement when the average percent of days with valid ambient monitoring data is greater than or equal to 90 percent (%), and no single year has less than 75% data completeness as determined in appendix P of 40 CFR part 50. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in the EPA Air Quality System (AQS). As was discussed in EPA's July 20, 2018 (83 FR 34506) proposal, EPA has reviewed the complete, quality-assured, and certified ozone ambient air monitoring data for the monitoring periods for both 2012-2014 and 2015-2017 for the Jamestown Area. For both monitoring periods, the design values for the Jamestown monitor in Chautauqua County are less than or equal to 0.075 ppm, and the monitor meets the data completeness requirements. Based on the 2012-2014 data from the AQS database and consistent with the requirements contained in 40 CFR part 50, EPA has concluded that this Area attained the 2008 8-hour ozone NAAQS. In addition, complete, quality-assured, and certified data through the 2017 ozone season demonstrate that the area continues to attain the standard. III. Comments Received in Response to EPA's Proposed Action On July 20, 2018 (83 FR 34506), EPA proposed to make a determination that the Jamestown Area has attained the 2008 8-hour ozone NAAQS. In response to EPA's July 20, 2018 proposed determination for the Jamestown Area, EPA received several comments from the public during the 30-day public comment period. After reviewing the comments, EPA has determined that most of the comments are outside the scope of our proposed action or fail to identify any material issue necessitating a response. The comments do not raise issues germane to EPA's proposed action. For this reason, EPA will not provide a specific response to those comments. Those comments may be viewed under Docket ID Number EPA-R02-OAR-2018-0422 on the http://www.regulations.gov website. EPA did however receive one comment that is germane to EPA's proposed action. Comment: Please consider keeping plans in place to monitor and follow up with the ozone level in Jamestown. Keeping a close eye on data and holding people accountable for meeting a standard of 0.075 ppm ozone may be more likely to continue the downward trend in ozone than if we just stop communicating with local leadership on this issue. Response: This determination of attainment is not equivalent to a redesignation under section 107(d)(3) of the CAA. The designation status of the Jamestown Area will remain nonattainment for the 2008 8- hour ozone NAAQS until such time as EPA determines that the Area meets the CAA requirements for redesignation to attainment, including an approved maintenance plan. While this determination of attainment for the Jamestown Area suspends the reasonable further progress and attainment demonstration requirements of section 182(b)(1) and related requirements of section 172(c)(9) of the CAA, it does not suspend or rescind the requirements of CAA sections 110(a)(2)(B) and (I) for monitoring and implementing the various ozone related emissions reduction control strategies that have been adopted by New York State and approved by EPA over the years. Therefore, the New York State [[Page 49494]] Department of Environmental Conservation (NYSDEC) and EPA will continue to assess the ozone ambient air monitoring data for the Jamestown monitor in Chautauqua County. If certified air quality data indicates issues with continuing attainment of the 2008 ozone NAAQS, the EPA will, to the extent necessary, work with NYSDEC and use appropriate CAA authorities to address those air quality issues. IV. Final Action EPA is finalizing a determination that the Jamestown Area has attained the 2008 8-hour ozone NAAQS. This determination (informally known as a Clean Data Determination) is based upon complete, quality assured, and certified ambient air monitoring data that show the Jamestown Area has monitored attainment of the 2008 8-hour ozone NAAQS for the 2012-2014 and 2015-2017 monitoring periods. Complete and quality assured and certified data for these periods demonstrate that the area continues to attain the standard during both time periods. As provided in 40 CFR 51.918, EPA's determination that this area has attained the 8-hour ozone standard suspends the requirements under CAA section 182(b)(1) for submission of a reasonable further progress plan and ozone attainment demonstration. In addition, this final determination means the requirements of CAA section 172(c)(9) concerning submission of contingency measures and any other planning SIP relating to attainment of the 2008 8-hour ozone NAAQS shall be suspended for so long as the Jamestown Area continues to attain the 2008 8-hour ozone NAAQS. Although these requirements would be suspended, EPA would not be precluded from acting upon these elements at any time if submitted to EPA for review and approval. Finalizing this determination does not constitute a redesignation of the Jamestown Area to attainment for the 2008 8-hour ozone NAAQS under CAA section 107(d)(3). This determination of attainment also does not involve approving any maintenance plan for the Jamestown Area and does not determine that the Jamestown Area has met all the requirements for redesignation under the CAA, including that the attainment be due to permanent and enforceable measures. Therefore, the designation status of the Jamestown Area will remain nonattainment for the 2008 8- hour ozone NAAQS until such time as EPA takes final rulemaking action to determine that such Area meets the CAA requirements for redesignation to attainment. V. Statutory and Executive Order Reviews This action finalizes an attainment determination based on air quality data, resulting in the suspension of certain Federal requirements. The action would not impose any additional requirements. 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); Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because this action is not significant under Executive Order 12866; 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 attainment determination does not apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 3, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: September 19, 2018. Peter D. Lopez, Regional Administrator, Region 2. 40 CFR part 52 is amended as follows: PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 0 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart HH--New York 0 2. In Sec. 52.1683, add paragraph (q) to read as follows: Sec. 52.1683 Control strategy: Ozone. * * * * * (q) EPA is determining that the Jamestown marginal nonattainment area [[Page 49495]] (consisting of Chautauqua County) has attained the 2008 8-hour ozone national ambient air quality standard (NAAQS). This determination (informally known as a Clean Data Determination) is based upon complete, quality assured, and certified ambient air monitoring data that show the Jamestown Area has monitored attainment of the 2008 8- hour ozone NAAQS for the 2012-2014 and 2015-2017 monitoring periods. Under the provisions of EPA's ozone implementation rule (see 40 CFR 51.918), this determination suspends the reasonable further progress and attainment demonstration requirements of section 182(b)(1) and related requirements of section 172(c)(9) of the Clean Air Act for this area as long as the area does not monitor any violations of the 8-hour ozone standard. If a violation of the ozone NAAQS is monitored in this area, this determination shall no longer apply. [FR Doc. 2018-21329 Filed 10-1-18; 8:45 am] BILLING CODE 6560-50-P
![49492 Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Rules and Regulations
commencing at position latitude (4) The Race Area is an area described Local Notice to Mariners and issue a
38°16′52.1″ N, longitude 076°38′14.2″ by a line bounded by coordinates marine information broadcast on VHF–
W; thence northeast to latitude provided in latitude and longitude that FM marine band radio.
38°16′54″ N, longitude 076°38′12.5″ W; outlines the boundary of a Race Area (d) Enforcement periods. This section
thence southeast to latitude 38°16′48.6″ within the regulated area defined in will be enforced from 7:30 a.m. to 5:30
N, longitude 076°37′59.3″ W; thence paragraph (b)(2) of this section. The p.m. on October 6, 2018, and from 7:30
south to latitude 38°16′47.4″ N, actual placement of the race course will a.m. to 5:30 p.m. on October 7, 2018.
longitude 076°37′59.3″ W; thence be determined by the marine event Dated: September 26, 2018.
northwest along the shoreline to point sponsor but must be located within the Joseph B. Loring,
of origin. designated boundaries of the Race Area.
Captain, U.S. Coast Guard, Captain of the
(ii) Spectator area B. The area is Only participants and official patrol Port Maryland-National Capital Region.
bounded by a line commencing at vessels are allowed to enter the Race
[FR Doc. 2018–21350 Filed 10–1–18; 8:45 am]
position latitude 38°16′59.1″ N, Area.
(5) The Buffer Zone is an area that BILLING CODE 9110–04–P
longitude 076°37′45.6″ W; thence
southeast to latitude 38°16′57.1″ N, surrounds the perimeter of the Race
longitude 076°37′40.2″ W; thence Area within the regulated area defined
southwest to latitude 38°16′54.3″ N, in paragraph (b)(3) of this section. The ENVIRONMENTAL PROTECTION
longitude 076°37′41.9″ W; thence purpose of a Buffer Zone is to minimize AGENCY
southeast to latitude 38°16′51.8″ N, potential collision conflicts with
participants and spectators or nearby 40 CFR Part 52
longitude 076°37′36.4″ W; thence
northeast to latitude 38°16′55.2″ N, transiting vessels. This area provides [EPA–R02–OAR–2018–0422; FRL–9984–
longitude 076°37′34.2″ W; thence separation between the Race Area and 81—Region 2]
northwest to latitude 38°16′59.2″ N, Spectator Area or other vessels that are
operating in the vicinity of the regulated Approval and Promulgation of Air
longitude 076°37′37.2″ W; thence west
area defined in paragraph (b)(1) of this Quality Implementation Plans; New
to latitude 38°17′01.7″ N, longitude
section. Only participants and official York; Determination of Attainment of
076°37′43.7″ W; thence south to point of
patrol vessels are allowed to enter the the 2008 8-Hour Ozone National
origin.
Buffer Zone. Ambient Air Quality Standard for the
(iii) Spectator area C. The area is
(6) The Spectator Area is an area Jamestown, New York Marginal
bounded by a line commencing at
described by a line bounded by Nonattainment Area
position latitude 38°16′47.2″ N,
coordinates provided in latitude and
longitude 076°37′54.8″ W; thence south AGENCY: Environmental Protection
longitude that outlines the boundary of
to latitude 38°16′43.3″ N, longitude Agency (EPA).
a spectator area within the regulated
076°37′55.2″ W; thence east to latitude ACTION: Final rule.
area defined in paragraph (b)(4) of this
38°16′43.2″ N, longitude 076°37′47.8″
section. Spectators are only allowed SUMMARY: The Environmental Protection
W; thence north to latitude 38°16′44.7″ inside the regulated area if they remain
N, longitude 076°37′48.5″ W; thence Agency (EPA) is finalizing a
within the Spectator Area. All spectator determination that the Jamestown, New
northwest to point of origin. vessels shall be anchored or operate at
(c) Special local regulations. (1) The York Marginal Nonattainment Area
a no-wake speed while transiting within (Jamestown Area or Area) has attained
Captain of the Port Maryland-National the Spectator Area. Spectators may
Capital Region or the Coast Guard Patrol the 2008 8-hour ozone National
contact the Coast Guard Patrol
Commander may forbid and control the Ambient Air Quality Standard
Commander to request permission to
movement of all vessels and persons, (NAAQS). This determination is based
either enter the Spectator Area or pass
including event participants, in the upon complete, quality-assured, and
through the regulated area. If permission
regulated area. When hailed or signaled certified ambient air monitoring data
is granted, spectators must enter the
by an official patrol, a vessel or person that shows the Area has monitored
Spectator Area or pass directly through
in the regulated area shall immediately attainment of the 2008 8-hour ozone
the regulated area as instructed at safe
comply with the directions given. NAAQS for both the 2012–2014 and
speed and without loitering.
Failure to do so may result in expulsion (7) The Coast Guard Patrol 2015–2017 monitoring periods. This
from the area, citation for failure to Commander and official patrol vessels action does not constitute a
comply, or both. enforcing this regulated area can be redesignation to attainment. The
(2) The operator of any vessel in the contacted on marine band radio VHF– Jamestown Area will remain
regulated area shall: FM channel 16 (156.8 MHz) and nonattainment for the 2008 8-hour
(i) Stop the vessel immediately when channel 22A (157.1 MHz). Persons and ozone NAAQS until such time as EPA
directed to do so by any Official Patrol vessels desiring to transit, moor, or determines that the Jamestown Area
and then proceed only as directed. anchor within the regulated area must meets the Clean Air Act (CAA)
(ii) All persons and vessels shall obtain authorization from Captain of the requirements for redesignation to
comply with the instructions of the Port Maryland-National Capital Region attainment, including an approved
Official Patrol. or Coast Guard Patrol Commander. The maintenance plan. This action is being
(iii) When authorized to transit the Captain of the Port Maryland-National taken under the CAA.
regulated area, all vessels shall proceed Capital Region can be contacted at DATES: This final rule is effective on
at the minimum speed necessary to telephone number 410–576–2693 or on November 1, 2018.
maintain a safe course that minimizes Marine Band Radio, VHF–FM channel ADDRESSES: The EPA has established a
amozie on DSK3GDR082PROD with RULES
wake near the race course. 16 (156.8 MHz). The Coast Guard Patrol docket for this action under Docket ID
(3) The Coast Guard Patrol Commander can be contacted on Marine Number EPA–R02–OAR–2018–0422. All
Commander may terminate the event, or Band Radio, VHF–FM channel 16 (156.8 documents in the docket are listed on
the operation of any participant, at any MHz). the http://www.regulations.gov website.
time it is deemed necessary for the (8) The Coast Guard will publish a Although listed in the index, some
protection of life or property. notice in the Fifth Coast Guard District information is not publicly available,
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![Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Rules and Regulations 49495
(consisting of Chautauqua County) has 2004, BiOp on the effects of Pacific incidental take statement from the
attained the 2008 8-hour ozone national Island pelagic fisheries, including previous 2004 BiOp. This rule
ambient air quality standard (NAAQS). shallow-set longline fishing, on ESA- implements the Court Order by revising
This determination (informally known listed marine species (2004 BiOp). In the annual limit for North Pacific
as a Clean Data Determination) is based the 2012 BiOp, NMFS concluded that loggerhead sea turtles from 34 to 17. In
upon complete, quality assured, and the continued operation of the Hawaii addition, as accounted for in the Court
certified ambient air monitoring data shallow-set fishery, as managed under Order, NMFS is consulting on the
that show the Jamestown Area has the regulatory framework of the Fishery potential effects of the fishery on sea
monitored attainment of the 2008 8- Ecosystem Plan for Pelagic Fisheries of turtles, and may issue a revised
hour ozone NAAQS for the 2012–2014 the Western Pacific (FEP), was not likely regulation in the future that adopts
and 2015–2017 monitoring periods. to jeopardize the continued existence of different interaction limits or takes a
Under the provisions of EPA’s ozone any ESA-listed species or result in different approach to interactions after
implementation rule (see 40 CFR destruction or adverse modification of that consultation is concluded.
51.918), this determination suspends designated critical habitat. If the fishery reaches the interaction
the reasonable further progress and The 2012 BiOp established an annual
limit for either leatherback sea turtles or
attainment demonstration requirements incidental take statement authorizing
North Pacific loggerhead sea turtles,
of section 182(b)(1) and related the fishery to interact with up to 26
NMFS will close the fishery for the
requirements of section 172(c)(9) of the leatherback sea turtles and 34 North
remainder of the calendar year. All
Clean Air Act for this area as long as the Pacific loggerhead sea turtles.
other provisions applicable to the
area does not monitor any violations of Consistent with the 2012 BiOp, NMFS
fishery remain unchanged.
the 8-hour ozone standard. If a violation revised the annual limits on allowable
of the ozone NAAQS is monitored in incidental interactions between the Classification
this area, this determination shall no fishery and leatherback and North
Pacific loggerhead sea turtles (77 FR The Assistant Administrator for
longer apply. Fisheries, NOAA, has determined that
60637, October 4, 2012, codified at 50
[FR Doc. 2018–21329 Filed 10–1–18; 8:45 am] this final rule is consistent with the
CFR 665.813). If the fishery reaches
BILLING CODE 6560–50–P
either of the interaction limits in a given Court order, the Magnuson-Stevens
year, the regulations require NMFS to Fishery Conservation and Management
close the fishery for the remainder of the Act, the Endangered Species Act, and
DEPARTMENT OF COMMERCE calendar year. other applicable laws.
In the U.S. District Court, District of This final rule has been determined to
National Oceanic and Atmospheric Hawaii, several plaintiffs challenged the be not significant for purposes of
Administration NMFS final rule that revised the annual Executive Order 12866.
sea turtle interaction limits, among NMFS has good cause to waive the
50 CFR Part 665 other things, and the Court ruled in prior notice and comment requirement
[Docket No. 180810748–8814–01] favor of NMFS on all claims (see Turtle under the Administrative Procedure Act
Island Restoration Network, et al. v. (APA, 5 U.S.C. 553(b)(B)). The Court
RIN 0648–BI43 U.S. Dept. of Commerce, et al., (U.S.D.C. Order, in relevant parts, vacates the
2013), Civil No. 12–00594). Plaintiffs
Pacific Island Fisheries; Hawaii portion of the 2012 Biological Opinion
appealed the Court’s decision and, on
Shallow-Set Pelagic Longline Fishery; that relates to North Pacific loggerhead
December 27, 2017, a U.S. Ninth Circuit
Court Order sea turtles, and requires NMFS to revise
Court of Appeals panel issued a split
the interaction limit for those turtles to
AGENCY: National Marine Fisheries decision affirming the 2012 BiOp
17. Under the ESA, NMFS may not
Service (NMFS), National Oceanic and regarding leatherback sea turtles, but
continue to authorize the shallow-set
Atmospheric Administration (NOAA), holding that NMFS was arbitrary and
longline fishery until the consultation
Commerce. capricious in its no-jeopardy
requirements of ESA section 7(a)(2)
determination for North Pacific
ACTION: Final rule. have been satisfied, and a new
loggerhead turtles (see Turtle Island
Restoration Network, et al. v. U.S. Dept. biological opinion and incidental take
SUMMARY: This final rule revises from 34 statement are prepared. Because NMFS
to 17 the annual number of allowable of Commerce, et al., 878 F.3d 725 (9th
Cir. 2017)). has no discretion to revise and
incidental interactions that may occur implement the loggerhead sea turtle
between the Hawaii shallow-set pelagic All parties agreed to settle the case
pursuant to the terms outlined in a May interaction limit under the Court Order,
longline fishery and North Pacific no meaningful purpose will be served
loggerhead sea turtles, in compliance 4, 2018, Stipulated Settlement
Agreement and Court Order (Court by public comment, and so providing
with an order of the U.S. District Court, prior notice and comment of this rule
District of Hawaii. Order). As part of the agreement, the
U.S. District Court, District of Hawaii, would be impracticable and contrary to
DATES: Effective January 1, 2019. public interest. The 30-day delayed
ordered NMFS to close the fishery for
FOR FURTHER INFORMATION CONTACT: Bob the remainder of the 2018 fishing year. effective date requirement under the
Harman, NMFS Pacific Islands Regional On May 11, 2018, NMFS published a APA (5 U.S.C. 553(d)) is not waived.
Office, 808–725–5170. temporary rule closing the shallow-set Additionally, the regulatory flexibility
SUPPLEMENTARY INFORMATION: On longline fishery until December 31, analysis requirements of the Regulatory
January 30, 2012, NMFS completed a 2018 (83 FR 21939). Flexibility Act (5 U.S.C. 603–605) do
amozie on DSK3GDR082PROD with RULES
biological opinion (2012 BiOp) on the The Court Order also required NMFS not apply to this rule. Furthermore,
effects of the Hawaii shallow-set to implement a new regulation that because the changes identified in this
longline fishery on marine species listed establishes the annual interaction limit rule are required by the Court Order and
as threatened or endangered under the for North Pacific loggerhead sea turtle at are not discretionary, the National
Endangered Species Act (ESA). The 17, effective on January 1, 2019. The Environmental Policy Act does not
2012 BiOp superseded a February 23, revised limit is consistent with the apply to this rule.
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Document Created: 2018-10-02 01:19:00
Document Modified: 2018-10-02 01:19:00
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on November 1, 2018. | |
| Contact | Kirk J. Wieber, (212) 637-3381, or by email at [email protected] | |
| FR Citation | 83 FR 49492 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Oxides; Reporting and Recordkeeping Requirements and Volatile Organic Compounds |
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