Federal Register Vol. 83, No.232,

A. Background

In 1993, the Commission issued a standard requiring disposable and novelty lighters to meet certain requirements for child resistance. The standard, as originally written, defines “disposable lighters” as those that are either: (1) Non-refillable, or (2) use butane or similar fuels and have “a Customs Valuation or ex-factory price under $2.00, as adjusted every 5 years, to the nearest $0.25, in accordance with the percentage changes in the monthly Wholesale Price Index from June 1993.” 1 58 FR 37584 (July 12, 1993).

The standard adjusts the $2.00 threshold in accordance with inflation, with the adjustment to be rounded to the nearest 25 cents. Adjustment did not occur in 1998 because the change in the PPI since June 1993 was not sufficient to warrant an adjustment. Adjustment did occur in 2003 (to $2.25). Accordingly, the Commission revised the cigarette standard to the adjusted amount. 69 FR 19763 (April 14, 2004). At that time, the reference to the Wholesale Price Index was also revised to refer instead to the Producer Price Index (PPI). No adjustment occurred in 2008. An adjustment occurred in 2013 (to $2.50) and the Commission revised the cigarette standard to reflect the adjusted amount. 78 FR 52679 (August 26, 2013).

CPSC staff has calculated the PPI for Miscellaneous Fabricated Products to have increased by approximately 36 percent from June 1993 to June 2018. Under 16 CFR 1210.2(b)(2)(ii), this increase in the PPI merits an adjustment in the Customs Value or ex-factory price to $2.75 as the threshold for determining whether refillable lighters are within the scope of the cigarette lighter standard. The increase in the PPI (from 124.7 in June 1993 to 169.5 in June 2018) of approximately 36 percent yielded an adjustment to $2.72 per lighter, which rounds to $2.75. Thus, refillable lighters with a Customs Value or ex-factory price under $2.75 are now subject to the standard.

As the cigarette lighter standard is written, the Customs Value or ex-factory price adjusts automatically based on the PPI, and no change in the language of the rule is required to implement this change. However, we are revising the standard so that the CFR will state the properly adjusted $2.75 [c]ustoms [v]alue, and the public will have notice of the adjustment.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) authorizes an agency to dispense with notice and comment procedures when the agency, for good cause, finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” This amendment informs the public of an adjustment to the cigarette lighter regulatory standard that has occurred automatically according to the terms of the cigarette lighter regulation. Because the adjustment occurs by terms of the regulation, the Commission could not alter the adjustment based on any public comments the Commission received. Accordingly, the Commission finds that notice and comment are unnecessary.

The APA also authorizes an agency, “for good cause found and published with the rule,” to dispense with the otherwise applicable requirement that a rule be published in the Federal Register at least 30 days before its effective date. 5 U.S.C. 553(d)(3). The Commission hereby finds that a 30-day delay of the effective date is unnecessary because this amendment informs the public of an adjustment that already has occurred in accordance with the existing regulatory requirements of the cigarette lighter standard.

Accordingly, 16 CFR part 1210 is amended as follows:

1. In this Final Rule, the Federal Energy Regulatory Commission (Commission) amends its regulations at 18 CFR 284.12 to incorporate by reference, with certain enumerated exceptions, the latest version (Version 3.1) of business practice standards applicable to interstate natural gas pipelines adopted by the Wholesale Gas Quadrant (WGQ) of the North American Energy Standards Board (NAESB) in place of the currently incorporated version (Version 3.0) of those business practice standards. Under this Final Rule, interstate natural gas pipelines are required to file compliance filings with the Commission by April 1, 2019 and are required to comply with the standards incorporated by reference in this rule on and after August 1, 2019.

2. The implementation of these standards and regulations will promote additional efficiency and reliability of the natural gas industries' operations thereby helping the Commission to carry out its responsibilities under the Natural Gas Act (NGA).1

3. The NAESB WGQ Version 3.1 package of standards contains a number of revisions to the NAESB Version 3.0 package of standards. As explained further below, NAESB adopted two substantive revisions to its Nominations Related Standards, one to establish a standard rounding process for elapsed-prorated-scheduled quantity calculations and a second to revise the specifications for the information to be included in a nomination request.

4. NAESB also adopted three minor revisions to the WGQ Electronic Delivery Mechanism (EDM) Related Standards. First, it has increased the allowable field length in ASCII Comma Separated Value Files to 3000 characters. Second, NAESB adopted new Standard 4.3.106 to allow checkboxes and radio buttons in the Transmission Service Providers' (TSP) Electronic Bulletin Boards (EBB). Third, NAESB modified its standards to update the operating systems and web browsers that entities should support on behalf of users. Additionally, clarifying language was added to the Secure Sockets Layer (SSL)/Transport Layer Security (TLS) protocols.

5. Other changes adopted by NAESB included changes to the NAESB WGQ data sets and other technical implementation documentation as well as revisions to the Flowing Gas Related data sets and technical implementation. In addition, NAESB revised the Imbalance Trade data set and revised two Sender's Option data elements. NAESB also adopted revisions to the Capacity Release Related data sets and technical implementation and revised Standard 6.3.1 (i.e., the NAESB Base Contract for Sale and Purchase of Natural Gas) to add language directing users to NAESB's copyright disclaimer posted on the NAESB website. Identical language was added to three additional NAESB WGQ Contracts.

6. Lastly, NAESB adopted modifications to add a self-identification provision that assists end users in determining whether counterparties are commercial market participants as defined by the United States Commodity Futures Trading Commission.

7. Since 1996, the Commission has adopted regulations to standardize the business practices and communication methodologies of interstate natural gas pipelines to create a more integrated and efficient pipeline grid. These regulations have been promulgated in the Order No. 587 series of orders,2 wherein the Commission has incorporated by reference standards for interstate natural gas pipeline business practices and electronic communications that were developed and adopted by NAESB's WGQ. Upon incorporation by reference, this version of these standards will become part of the Commission's regulations and compliance by interstate natural gas pipelines will become mandatory and will replace the earlier version of these standards that the Commission previously incorporated by reference in 2015.3

8. On September 29, 2017, NAESB filed a report informing the Commission that it had adopted and ratified WGQ Version 3.1 of its business practice standards applicable to natural gas pipelines. The NAESB report identifies all the changes made to the Version 3.0 Standards and summarizes the deliberations that led to the changes. It also identifies changes to the existing standards that were considered but not adopted due to a lack of consensus or other reasons.

9. On August 21, 2018, the Commission issued a Notice of Proposed Rulemaking proposing to amend its regulations to incorporate by reference, with certain enumerated exceptions, the NAESB WGQ Version 3.1 business practice standards (referenced above) applicable to natural gas pipelines.4

10. In response to the Version 3.1 NOPR, Tennessee Valley Authority (TVA) and the Interstate Natural Gas Association of America (INGAA) filed comments. TVA expresses support for the Commission's proposal to incorporate by reference NAESB's WGQ Version 3.1 business practice standards. INGAA also supports the Commission's proposal in the Version 3.1 NOPR, but urges the Commission to ensure that implementation of a Final Rule in this proceeding does not occur prior to April 1, 2019, after the winter heating season. INGAA states that implementation of a Final Rule in this proceeding will require substantial time and effort from both pipelines and their customers to alter business systems, scheduling, and coordination processes and, thus, it would be best to schedule implementation to not occur during the winter heating season.

11. The NAESB WGQ Version 3.1 Business Practice Standards made a number of modifications to the earlier version of those standards that the Commission previously incorporated by reference in 2015 in Order No. 587-W.5 Notable among these modifications 6 were two substantive revisions concerning the Nominations Related Standards, which govern shipper requests to schedule service on natural gas pipelines. One revision adds a new provision, Standard 1.3.82, to establish a standard rounding process (requiring calculations to at least the seventh decimal place) for elapsed-prorated-scheduled quantity 7 calculations to provide for needed numerical uniformity and granularity for users of these NAESB procedures. The other Nominations Related Standards revision was to revise the “Service Requester” element of Standard 1.3.27,8 which specifies some of the information that should be included in a nomination request, from a Mandatory designation to a Business Conditional 9 designation. Thus, instead of forcing a specific upstream or downstream (unthreaded) nomination 10 to be tied to a specific contract (using a specific threaded nomination), upstream nominations may now be distributed among several contracts (using a Pathed Non-Threaded nomination structure), which generally increases flexibility to customers.

12. NAESB also adopted three minor revisions to the WGQ EDM Related Standards, which establish the framework for the electronic dissemination and communication of information between parties in the North American Wholesale Gas marketplace. First, NAESB revised Standard 4.3.80 to increase the allowable field length in ASCII Comma Separated Value Files to 3000 characters. The revision increases the amount of information that can be conveyed, but reasonably limits it in conformity with commonly used software such as Excel. Second, NAESB adopted new Standard 4.3.106 to allow checkboxes and radio buttons in the TSPs' EBBs to indicate “Yes” and/or “No” responses to data elements, which NAESB states is more convenient than the current drop down list. Third, NAESB revised its standards to update the operating systems and web browsers that entities should support to allow users to take advantage of recent developments in computer technology and use. Additionally, language was added to clarify the SSL/TLS protocols, which encrypt data to hide information from electronic observers on the internet. The revised standard provides guidance on the timing for adoption of a new version of SSL/TLS protocols—new versions of these protocols should be used within 9 months of the version becoming generally available. In addition, the revised standard clarifies that SSL is a colloquial term that encompasses both SSL and TLS.

13. Other changes adopted by NAESB included changes to the NAESB WGQ data sets and other technical implementation documentation, which provide the technical support necessary to use the NAESB standards effectively. One such change was to add a new Business Conditional data element “Agent” and corresponding technical implementation to the Nominations related Standard 1.4.1 and the Scheduled Quantity Standard 1.4.5. Currently, in the data sets, the Service Requester is defined as the Shipper or its Agent; however, language included in the implementation guides states that both the Shipper and Agent will be identified. Thus, this change adds a data element “Agent” to the data sets to allow the Service Requestor to identify both the shipper and its agent if it uses an agent to nominate and schedule on the pipeline.

14. NAESB also adopted revisions to the Flowing Gas Related data sets and technical implementation, which address quantitative issues relating generally to allocation, imbalances, and measurement of flowing gas. Specifically, NAESB added three Business Conditional data elements to the Authorization to Post Imbalances data set (Standard 2.4.9). The addition of the three data elements will allow a Service Requester to authorize specific contracts and quantities of imbalances for specified periods of time to be posted.

15. In addition, NAESB revised the Imbalance Trade data set (Standard 2.4.11) to reinstate language providing the confirming party the ability to reject a trade in the Imbalance Trade data set when an auto-confirm agreement with a confirming party is in place. NAESB states that in its WGQ Version 2.1 publication, before the Imbalance Trading data sets were consolidated, the Imbalance Trade Confirmation contained a Yes/No indicator that the confirming party could use to indicate its acceptance or rejection of the trade. This indicator informed a pipeline whether the confirming party agreed to the terms of the trade that the initiating trader had posted. When the data sets were consolidated, this data element was dropped because it was assumed that if a confirming party did not agree with the posted terms it would not confirm the trade, which was effective only if the pipeline did not have an auto-confirm agreement with that confirming party. Accordingly, to address situations where there are auto-confirm agreements, NAESB has now revised Standard 2.4.11 to add a new Business Conditional data element “Imbalance Trade Response” with an “Accept/Reject” code value. This Accept/Reject indicator informs the pipeline whether the confirming party agrees to the terms of the trade that the initiating trader had posted.

16. NAESB also revised Standard 2.4.6 to add two Sender's Option data elements,11 “Comments” and “Volume-Uncorrected” to the Measured Volume Audit Statement 12 in order to communicate raw data on volumes in addition to the final volumes, which are communicated through the existing data element “Volume Corrected.” Thus, users will now be able to indicate what initial data they received in addition to how that data was ultimately corrected, and to provide comments concerning that data, which relate to what meter was used to measure the data.

17. NAESB also adopted revisions to the Capacity Release Related data sets and technical implementation. Specifically, NAESB revised Standard 5.4.24 to add a new Business Conditional data element, “Waive Bidder Credit Indicator” and corresponding code values to the Offer data set. The additional data element indicates to a Bidder whether the Releasing Shipper will waive, pursuant to the TSP's tariff, the Bidder's creditworthiness pre-qualification.

18. Further, NAESB revised Standard 6.3.1 (i.e., the NAESB Base Contract for Sale and Purchase of Natural Gas) to add language to the disclaimer to provide a copyright notification and direct the reader to the NAESB Copyright Policy and Companies with Access to NAESB Standards under the Copyright Policy posted on the NAESB website. Identical language was added to three additional NAESB WGQ Contracts.

19. Lastly, NAESB adopted modifications to the cover page of Standard 6.3.1 to add a self-identification provision that assists end users in determining whether counterparties are commercial market participants as defined by the United States Commodity Futures Trading Commission.

20. NAESB used its consensus procedures to develop and approve the Version 3.1 Standards. As the Commission found in Order No. 587, the adoption of consensus standards is appropriate, because the consensus process helps ensure the reasonableness of the standards by requiring that the standards draw support from a broad spectrum of industry participants representing all segments of the industry. Moreover, since the industry itself must conduct business under these standards, the Commission's regulations should reflect those standards that have the widest possible support. In section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTT&AA),13 Congress affirmatively requires federal agencies to use technical standards developed by voluntary consensus standards organizations, like NAESB, as means to carry out policy objectives or activities determined by the agencies unless an agency determines that the use of such standards would be inconsistent with applicable law or otherwise impractical.

21. In the Version 3.1 NOPR, the Commission proposed to incorporate by reference, in its regulations, Version 3.1 of the NAESB WGQ consensus business practice standards, with the exception of NAESB's standards specifying the terms of optional model contracts and the eTariff-related standards.14 As explained above, all of the commenters supported the Commission's proposal to incorporate by reference the NAESB WGQ Version 3.1 business practice standards as proposed in the Version 3.1 NOPR.15

22. After a review of the comments filed in response to the Version 3.1 NOPR, the Commission amends Part 284 of its regulations to incorporate by reference the NAESB WGQ Version 3.1 business practice standards, with the exceptions (as explained in the Version 3.1 NOPR) of the optional model contracts and the eTariff-related standards.

23. To implement the standards we are incorporating by reference in this Final Rule, we will require each interstate natural gas pipeline to file a separate tariff record reflecting the changed standards by April 1, 2019, to take effect on August 1, 2019, and the natural gas pipelines will be required to comply with these standards on and after August 1, 2019.16

24. As suggested by INGAA, we have selected an implementation schedule for compliance with this Final Rule that delays implementation until after the winter heating period. We also observe that none of the comments took issue with the Commission's explanation of its policies on tariff filings and on waiver requests. Thus, we are not modifying these policies in this Final Rule and stand by the explanation of those policies we made in the Version 3.1 NOPR. The Commission will require interstate natural gas pipelines to comply with the revised NAESB standards that we are incorporating by reference in this Final Rule beginning on August 1, 2019. We are adopting this implementation schedule to give the interstate natural gas pipelines subject to these standards adequate time to implement these changes. In addition, the interstate natural gas pipelines must file tariff records to reflect the changed standards by April 1, 2019.

25. In addition, consistent with the requirements in Order No. 587-W,17 the Commission is including the following compliance filing requirements to increase the transparency of the pipelines' incorporation by reference of the NAESB WGQ Standards so that shippers and the Commission will know which tariff provision(s) implements each standard as well as the status of each standard.

(1) The pipelines must designate a single tariff record under which every NAESB standard currently incorporated by reference by the Commission is listed.18 This section should be a separate tariff record under the Commission's electronic tariff filing requirement and should be filed electronically using the eTariff portal using the Type of Filing Code 580. The Commission will post on its eLibrary website (under Docket No. RM96-1-041) a sample tariff record, to provide filers an illustrative example to aid them in preparing their compliance filings; 19

(2) For each standard, each pipeline must specify in the tariff record a list of all the NAESB standards currently incorporated by reference by the Commission:

(a) whether the standard is incorporated by reference;

(b) for those standards not incorporated by reference, the tariff provision that complies with the standard; 20 and

(c) a statement identifying any standards for which the pipeline has been granted a waiver, extension of time, or other variance with respect to compliance with the standard.21

(3) If the pipeline is requesting a continuation of an existing waiver or extension of time, it must include a table in its transmittal letter that states the standard for which a waiver or extension of time was granted, and the docket number or order citation to the proceeding in which the waiver or extension of time was granted.

26. Office of Management and Budget (OMB) Circular A-119 (section 11) (February 10, 1998) provides that federal agencies should publish a request for comment in a NOPR when the agency is seeking to issue or revise a regulation proposing to adopt a voluntary consensus standard or a government-unique standard. In this Final Rule, the Commission is amending its regulations to incorporate by reference voluntary consensus standards developed by NAESB's WGQ. In section 12(d) of NTT&AA, Congress affirmatively requires federal agencies to use technical standards developed by voluntary consensus standards organizations to carry out policy objectives or activities determined by the agencies unless use of such standards would be inconsistent with applicable law or otherwise impractical.22

27. The Office of the Federal Register requires agencies incorporating material by reference in final rules to discuss, in the preamble of the final rule, the ways that the materials it incorporates by reference are reasonably available to interested parties and how interested parties can obtain the materials.23 The regulations also require agencies to summarize, in the preamble of the final rule, the material it incorporates by reference.

28. The NAESB standards being incorporated by reference in this Final Rule consist of seven suites of NAESB WGQ Business Practice Standards that touch on a variety of topics and are designed to streamline the transactional processes for the wholesale gas industry by promoting a more competitive and efficient market. These include the WGQ Additional Business Practice Standards; WGQ Nominations Related Business Practice Standards; WGQ Flowing Gas Related Business Practice Standards; Invoicing Related Business Practice Standards; Quadrant EDM Related Business Practice Standards; Capacity Release Related Business Practice Standards; and internet Electronic Transport Related Business Practice Standards. These can be summarized as follows.

29. The WGQ Additional Business Practice Standards address six areas: Creditworthiness, Storage Information, Gas/Electric Operational Communications, Operational Capacity, Unsubscribed Capacity, and Location Data Download.

• The Creditworthiness related standards describe requirements for the exchange of information, notification, and communication between parties during the creditworthiness evaluation process.

• The Storage Information related standards define the information to be provided to natural gas service requesters related to storage activities and/or balances.

• The Gas/Electric Operational Communications related standards define communication protocols intended to improve coordination between the gas and electric industries in daily operational communications between transportation service providers and gas-fired power plants. The standards include requirements for communicating anticipated power generation fuel for the upcoming day as well as any operating problems that might hinder gas-fired power plants from receiving contractual gas quantities.

• The Operational Capacity related standards define requirements of the transportation service provider related to the reporting and requesting of a transportation service provider's operational capacity, total scheduled quantity, and operationally available capacity.

• The Unsubscribed Capacity related standards define requirements of the transportation service provider related to reporting and requesting a transportation service provider's available unsubscribed capacity.

• The Location Data Download related standards define requirements for the use of codes assigned by the transportation service provider for locations and common codes for parties communicating electronically.

30. The WGQ Nominations Related Business Practice Standards define the process by which a natural gas service requester with a natural gas transportation contract nominates (or requests) service from a pipeline or a transportation service provider for the delivery of natural gas.

31. The WGQ Flowing Gas Related Business Practice Standards define the business processes related to the communication of entitlement rights of flowing gas at a location, of the entitlement rights on a contractual basis, of the management of imbalances, and of the measurement and gas quality information of the actual flow of gas.

32. The Invoicing Related Business Practice Standards define the process for the communication of charges for services rendered (Invoice), communication of details about funds rendered in payment for services rendered (Payment Remittance), and communication of the financial status of a customer's account (Statement of Account).

33. The Quadrant Electronic Delivery Mechanism Related Business Practice Standards define the framework for the electronic dissemination and communication of information between parties in the North American wholesale gas marketplace for Electronic Data Interchange (EDI)/EDM transfers, batch flat file/EDM transfers, informational postings websites, EBB/EDM and interactive flat file/EDM.

34. The Capacity Release Related Business Practice Standards define the business processes for communication of information related to the selling of all or any portion of a transmission service requester's contract rights.

35. The Internet Electronic Transport Related Business Practice Standards define the implementation of various technologies necessary to communicate transactions and other electronic data using standard protocols for electronic commerce over the internet between trading partners.

36. Our regulations provide that copies of the NAESB standards incorporated by reference may be obtained from NAESB, whose offices are located at 801 Travis Street, Suite 1675, Houston, TX 77002, Phone: (713) 356-0060. NAESB's website can be accessed at https://www.naesb.org//. Copies of the NAESB standards may be inspected at the Federal Energy Regulatory Commission, Public Reference and Files Maintenance Branch, 888 First Street NE, Washington, DC 20426, Phone: (202) 502-8371, http://www.ferc.gov.24

37. NAESB is a private, consensus standards developer that develops voluntary wholesale and retail standards related to the energy industry. The procedures utilized by NAESB make its standards reasonably available to those affected by the Commission regulations.25 Participants can join NAESB, for an annual membership cost of $7,000, which entitles them to full participation in NAESB and enables them to obtain these standards at no additional cost.26 Non-members may obtain the Individual Standards Manual or Booklet for each of the seven manuals or booklets by email for $250 per manual or booklet, which in the case of these standards would total $1,750.27 Non-members also may obtain the complete set of Business Practice Standards on USB flash drive for $2,000. NAESB also provides a free electronic read-only version of the standards for a three business day period or, in the case of a regulatory comment period, through the end of the comment period.28 In addition, NAESB considers requests for waivers of the charges on a case-by-case basis based on need.

38. The collections of information for this Final Rule are being submitted to OMB for review under section 3507(d) of the Paperwork Reduction Act of 1995 29 and OMB's implementing regulations.30 OMB must approve information collection requirements imposed by agency rules. The burden estimates for this Final Rule are for one-time implementation of the information collection requirements of this Final Rule (including tariff filing, documentation of the process and procedures, and IT work), and ongoing burden.

39. The Commission solicited comments from the public on the Commission's need for this information, whether the information will have practical utility, the accuracy of the burden estimates, recommendations to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. No comments were filed raising any objections to the burden estimate presented in the Version 3.1 NOPR. Accordingly, we will use that same burden estimate in this Final Rule.

40. The collections of information related to this Final Rule fall under FERC-545B (Gas Pipeline Rates: Rate Change (Non-Formal)) 31 and FERC-549C (Standards for Business Practices of Interstate Natural Gas Pipelines).32 The following estimates of reporting burden are related only to this Final Rule and include the costs to pipelines to comply with the Commission's directives in this Final Rule. The burden estimates are primarily related to start-up to implement these standards and regulations and will not result in ongoing costs.

It has been determined that publication of this rule in the Federal Register for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing policies and procedures that are solely internal to the DON. Specifically, the subpart this rule is removing prescribes internal instructions for making available for public inspection, and copying, certain classes of documents; maintaining current indexes of documents, and publishing such indexes or making them available by other means; receiving and considering petitions of members of the public for the issuance, revision, or cancellation of documents of some classes; and, distributing the Federal Register for official use within the DON. These internal procedures will continue to be available at https://doni.documentservices.dla.mil/Directives/05000%20General%20Management%20Security%20and%20Safety%20Services/05-700%20General%20External%20and%20Internal%20Relations%20Services/5720.45C.pdf.

This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review,” therefor, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs” does not apply.

Accordingly, 32 CFR part 701 is amended as follows:

The Coast Guard will enforce a special local regulation for the Seminole Hard Rock Winterfest Holiday Boat Parade published in 33 CFR 100.701, Table to § 100.701, Line 14 on December 15, 2018 from 2:00 p.m. through 11:30 p.m. This action is being taken to provide for the safety and security of navigable waterways during this one-day event. Our regulation for marine events within the Seventh Coast Guard District, § 100.701, specifies the location of the special local regulation for the Seminole Hard Rock Winterfest Holiday Boat Parade, which encompasses a moving buffer zone of 50 yards around the parade as it travels along the New River and Intracoastal Waterway in Ft. Lauderdale, FL. Only event sponsor designated participants and official patrol vessels will be allowed to enter the regulated area. Spectators may contact the Coast Guard Patrol Commander to request permission to pass through the regulated area. If permission is granted, spectators must pass directly through the regulated area at a safe speed without loitering.

In addition to this notice of enforcement in the Federal Register, the Coast Guard will inform the public through Local Notice to Mariners and marine information broadcasts at least 24 hours in advance of the enforcement of the special local regulation.

The Burlington County Bridge Commission, owner and operator of the SR 413/Burlington-Bristol bridge, that carries SR 413 across the Delaware River, mile 117.8, between Burlington, NJ and Bristol, PA, has requested a temporary deviation from the current operating schedule to facilitate an inspection and maintenance of various mechanical components of the vertical lift span of the drawbridge. The bridge has a vertical clearance of 135 feet above mean high water in the open position, and 61 feet above mean high water in the closed position.

The current operating schedule is set out in 33 CFR 117.716. Under this temporary deviation, the bridge will be in the closed-to-navigation position from 7 a.m. through 3 p.m.; Monday through Friday; from 7 a.m. on November 26, 2018, through 3 p.m. on December 14, 2018.

The Delaware River is used by a variety of vessels including deep draft commercial vessels, U.S. government and public vessels, small commercial vessels, tug and barge traffic, and recreational vessels. The Coast Guard has carefully coordinated the restrictions with waterway users in publishing this temporary deviation.

Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will open on signal, if at least eight hours prior notification is given. The bridge will not be able to open for emergencies and there is no immediate alternative route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterway through our Local Notice 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 Norfolk Southern Corporation, owner and operator of the Norfolk Southern #7 Railroad Bridge across the South Branch of the Elizabeth River, mile 5.8, at Chesapeake, VA, has requested a temporary deviation from the current operating schedule to accommodate bridge maintenance to perform a tie replacement project. The current operating regulation is set out in 33 CFR 117.997(d).

Under this temporary deviation, the bridge will be maintained in the closed-to-navigation position from 7 a.m. to 11:30 a.m. and from 12:30 p.m. to 5 p.m., Monday through Thursday, from November 26, 2018, through December 13, 2018. At all other times the bridge will operate per 33 CFR 117.997(d). The bridge has a vertical clearance of 7 feet above mean high water in the closed position.

The South Branch of the Elizabeth River is used by a variety of vessels including deep draft ocean-going vessels, U.S. government vessels, small commercial vessels, recreational vessels and tug and barge traffic. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway and coordinated with maritime stakeholders in publishing this temporary deviation.

Vessels able to pass through the bridge in the closed position may do so, after providing 15 minutes notice to the project supervisor at the bridge on VHF-FM channel 13. The bridge will be able to open for emergencies if at least a 1-hour notice is given and there is no immediate alternate route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notice to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by this temporary deviation.

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

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector New Orleans DHS Department of Homeland Security FR Federal Register MM Mile marker NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this safety zone by December 2, 2018 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to the public interest because immediate action is necessary to respond to potential hazards associated with sub-surface research operations.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector New Orleans (COTP) has determined that a temporary moving safety zone is necessary to provide for the safety of persons, vessels, and the marine environment during sub-surface research operations in the vicinity of the Mississippi Canyon Block 20. Potential hazards include the risk of injury or pollution if normal vessel traffic were to interfere with the vessel's movement or deployed equipment. The survey activities are scheduled to take place from 6 a.m. on December 2, 2018 through 8 p.m. on December 4, 2018, in the navigable waters of the Mississippi Canyon Block 20, South of New Orleans, LA, in the Gulf of Mexico. This rule is needed to protect persons, vessels, and the marine environment from hazards associated with the vessel's limited maneuverability while it deploys underwater equipment and conducts research activity.

This rule establishes a temporary moving safety zone from 6 a.m. on December 2, 2018 through 8 p.m. on December 4, 2018. The safety zone will cover all navigable waters within 500 yards of the vessel OCEAN INTERVENTION II and equipment being used by personnel to conduct sub-surface research in Mississippi Canyon Block 20, South of New Orleans, LA, in the Gulf of Mexico. The duration of the zone is intended to protect persons, vessels, and the marine environment on these navigable waters while research is being conducted. No vessel or person will be permitted to enter or remain the safety zone without obtaining permission from the COTP or a designated representative. Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or 67 or by telephone at (504) 365-2200. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative. The COTP or a designated representative will inform the public of the enforcement times and date for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. This safety zone will restrict vessel traffic from entering or remaining within a 500 yard area around a research vessel for approximately three days. Vessels can safely transit around the zone, which impacts a small area of the Gulf of Mexico. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule allows vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 3 days that will prohibit entry within 500 yards of the research vessel being used for sub-surface research. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination will be made available in the docket where indicated under ADDRESSES.

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

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

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port New York and New Jersey DHS Department of Homeland Security FR Federal Register First District USCG First District Bridge Administration NPRM Notice of proposed rulemaking PANYNJ Port Authority of NY and NJ RNA Regulated Navigation Area § Section TFR Temporary Final Rule U.S.C. United States Code II. Background Information and Regulatory History

On April 14, 2014 the Coast Guard published a NPRM entitled “Regulated Navigation Area; Arthur Kill, NY and NJ” in the Federal Register (79 FR 20851) that would allow the Coast Guard to enforce speed and wake restrictions and prohibit vessel traffic through the RNA during bridge replacement operations on the Goethals Bridge that could pose an imminent hazard to persons and vessels operating in the area. This proposed rule would also allow the Coast Guard to enforce navigation restrictions and prohibit vessel traffic during drilling, blasting, and dredging operations in support of the U.S. Army Corps of Engineers channel deepening project. Proposed work included underwater explosives demolition of the old Goethals Bridge Pier C. We received one comment on this proposed rule. It advocated notifying mariners of waterway closures at least forty eight hours in advance, and that the closures remain in place only as long as required for safety purposes. It also recommended that the Coast Guard work to institute a queue system or other vessel movement scheme that allowed vessels moving with a flood tide to access the right of way in the restricted portion of the Arthur Kill.

On January 7, 2015, the Coast Guard published a TFR entitled “Regulated Navigation Area; Arthur Kill, NY and NJ” in the Federal Register (80 FR 00829) that allowed the Coast Guard to enforce speed and wake restrictions and prohibit vessel traffic through the RNA during bridge replacement operations on the Goethals Bridge that could pose an imminent hazard to persons and vessels operating in the area. This rule also allowed the Coast Guard to enforce navigation restrictions and prohibit vessel traffic during drilling, blasting, and dredging operations in support of the U.S. Army Corps of Engineers channel deepening project. The planned work still included underwater explosives demolition of the old Goethals Bridge Pier C. The Coast Guard said it would make every effort to notify mariners forty eight hours before a waterway closure, but that this may not always be possible due to many dynamic factors in the project. It also said it will meet with various other agencies to assess the need for a vessel queue system and administer a queue system if needed on a case by case basis by Vessel Traffic Service New York. This rule was in effect from January 7, 2015 until October 31, 2018.

On October 17, 2018 the PANYNJ contractor's project manager notified the First District and Vessel Traffic Service New York that the previously scheduled underwater explosives demolition of the old Goethals Bridge Pier C below mean lower water had been delayed from late October 2018 until Sunday, November 11, 2018 at approximately 10:20 a.m. The contractor requested the Coast Guard create a safety zone to prohibit vessels and persons within a 500 yard radius of old Goethals Bridge Pier C from approximately 10 a.m. until 11:00 a.m. During this approximate 60-minute window, no vessels or persons will be authorized within the safety zone unless authorized by the COTP New York and New Jersey.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the schedule for the demolition of old Goethals Bridge Pier C was only recently finalized and extended past the original project completion date, and timely action is needed to respond to the potential safety hazards associated with this demolition project. It is impracticable and contrary to the public interest to publish an NPRM because we must establish this safety zone by November 11, 2018 to allow for the timely demolition of old Goethals Bridge Pier C and promote the safety of the public.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with underwater explosives demolition of old Goethals Bridge Pier C.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that potential hazards associated with underwater explosives demolition tentatively scheduled on Sunday, November 11, 2018, will be a safety concern for anyone within a 500-yard radius of the old Goethals Bridge Pier C. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during underwater explosives demolition of the old Goethals Bridge Pier C.

This rule establishes a safety zone from 10:00 a.m. on November 11, 2018 through 11:59 p.m. on December 31, 2018. This rule will be enforced from 10:00 a.m. until 11:00 a.m. on November 11, 2018. The safety zone covers all navigable waters of the Arthur Kill and Old Place Creek within approximately 500 yards of the old Goethals Bridge Pier C in approximate position 40°38′07.7″ N, 074°11′46.4″ W (NAD 83). The Coast Guard is publishing this rulemaking to be effective, and enforceable, through December 31, 2018 in case the project is delayed due to unforeseen circumstances.

The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the underwater remains of Pier C are demolished for eventual removal. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP New York and New Jersey or a designated representative.

The Coast Guard will notify the public and local mariners of this safety zone through the Local Notice to Mariners and/or Broadcast Notice to Mariners via VHF-FM marine channel 16 in advance of any scheduled enforcement period.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the following reasons: (1) The safety zone only impacts a small designated area of the Arthur Kill and Old Place Creek, (2) the zone will only be enforced for approximately 60 minutes during the underwater explosives demolition of the old Goethals Bridge Pier C, (3) vessels not constrained by their draft or length may still transit the Arthur Kill south of this safety zone, to, and from sea, via Raritan Bay Reaches and Sandy Hook Channel, (4) the demolition operations are scheduled on Sunday when commercial vessel traffic is less frequent, and (5) the demolition operations are scheduled in the late Fall when recreational vessel traffic is less frequent.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting approximately 60 minutes that will prohibit entry within a 500 yard radius of the old Goethals Bridge Pier C during underwater demolition. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” In this case, the delay associated with rulemaking procedures is impracticable. The Coast Guard was informed on November 16, 2018 of forecasted extreme environmental conditions occurring near three respective locations of California likely to exceed the maximum environmental limits of the 47-foot Motor Lifeboat employed as the primary rescue asset in each area. These three locations include: The Humboldt Bay Bar and Entrance Channel, near Eureka, CA, the Noyo River Entrance Channel, near Fort Bragg, CA, and the Crescent City Harbor Entrance Channel, of Crescent City, CA. The National Oceanic and Atmospheric Administration's National Weather Service forecasts up to 25-foot breaking seas in the area through 29 November, 2018 and expects a higher probability of breaking seas of 20 feet or more through December 2018 and January 2019. The hazardous conditions associated with these extreme environmental conditions will occur before the rulemaking process could be completed.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. The Coast Guard was informed of forecasted extreme environmental conditions including 20 foot breaking seas occurring near three respective locations of California on November 16, 2018. These three locations include: The Humboldt Bay Entrance Channel, near Eureka, CA, the Noyo River Entrance Channel, near Fort Bragg, CA, and the Crescent City Harbor Entrance Channel, of Crescent City, CA. The hazardous conditions associated with these extreme environmental conditions will occur before the rulemaking process would be completed. Additionally, the observed on scene conditions are equal to, and likely to exceed, the maximum environmental limits of the 47 foot Motor Lifeboat employed as the primary rescue asset in the area. Because of the dangers posed by these extreme environmental conditions and the resulting limited availability of rescue assets, these safety zones are necessary to provide for the safety of mariners transiting the area. For the safety concerns noted, it is in the public interest to have these regulations in effect immediately.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. Notable hazards associated with the extreme environmental conditions have been observed in the Humboldt Bay Bar and Entrance Channel near Eureka, CA, the Noyo River Entrance Channel, near Fort Bragg, CA, and the Crescent City Harbor Entrance Channel, of Crescent City, CA. These safety zones establish temporary restricted areas on the navigable waters of the Humboldt Bay Bar and Entrance Channel near Eureka, CA, the Noyo River Entrance Channel, near Fort Bragg, CA, and the Crescent City Harbor Entrance Channel, of Crescent City, CA. These restricted areas are necessary to mitigate the risks associated with vessels transiting the area while extreme environmental conditions exist on scene.

The Coast Guard will enforce, independent of each other, three respective safety zones in the navigable waters of the Humboldt Bay Bar and Entrance Channel near Eureka, CA, the Noyo River Entrance Channel, near Fort Bragg, CA, and the Crescent City Harbor Entrance Channel, of Crescent City, CA, when the COTP determines that the on scene conditions are hazardous and unsafe for vessel transits, typically expected to be 20 foot breaking seas at each location. Enforcement will be announced via Broadcast Notice to Mariners. These safety zones are effective from November 27, 2018, through March 31, 2019.

The effect of the temporary safety zones is to restrict navigation in the vicinity of the Humboldt Bay Bar and Entrance Channel, Noyo River Entrance Channel, and Crescent City Harbor Entrance Channel while the hazardous conditions associated with extreme environmental conditions exist, and until the Coast Guard deems the safety zone is no longer needed. Except for persons or vessels authorized by the COTP, no person or vessel may enter or remain in the restricted areas during times of enforcement. These regulated areas are needed to keep vessels away from the immediate vicinity of the hazardous conditions associated to ensure the safety of transiting vessels in each respective area.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the limited duration and narrowly tailored geographic area of the safety zone. Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule may affect the following entities, some of which may be small entities: Owners and operators of waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities and sightseeing, if these facilities or vessels are in the vicinity of the safety zone at times when this zone is being enforced. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) This rule will encompass only a small portion of the waterway for a limited period of time while hazardous conditions exist, and (ii) the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone of limited size and duration. It is categorically excluded from further review under Categorical Exclusion L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

The Coast Guard will enforce the North American International Auto Show, Detroit River, Detroit, MI security zone listed in 33 CFR 165.915, Security zones; Captain of the Port Detroit at the following dates and times for the following event:

North American International Auto Show, Detroit River Detroit MI. This security zone listed in § 165.915(a)(3), will be enforced when necessary from 7 a.m. January 14, 2019, through 11:59 p.m. January 27, 2019.

All persons and vessels shall comply with the instructions of the Captain of the Port Detroit or his designated on-scene representative, who may be contacted via VHF Channel 16.

Under the provisions of 33 CFR 165.33, no person or vessel may enter or remain in this security zone without the permission of the Captain of the Port Detroit. Each person and vessel in this security zone shall obey any direction or order of the Captain of the Port Detroit. The Captain of the Port Detroit may take possession and control of any vessel in this security zone. The Captain of the Port Detroit may remove any person, vessel, article, or thing from this security zone. No person may board, or take or place any article or thing on board any vessel in this security zone without the permission of the Captain of Port Detroit. No person may take or place any article or thing upon any waterfront facility in this security zone without the permission of the Captain of the Port Detroit.

Vessels that wish to transit through this security zone shall request permission from the Captain of the Port Detroit or his designated representative. Requests must be made in advance and approved by the Captain of Port before transits will be authorized. Approvals may be granted on a case by case basis. The Captain of the Port may be contacted via U.S. Coast Guard Sector Detroit on channel 16, VHF-FM. The Coast Guard will give notice to the public via Local Notice to Mariners and VHF radio broadcasts that the regulation is in effect and when enforced.

This document is issued under authority of 33 CFR 165.915 and 5 U.S.C. 552(a). If the Captain of the Port determines that this security zone 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.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is amending the regulation for safety zones for annual fireworks displays in the Captain of the Port Zone Columbia River, 33 CFR 165.1315. This rule is removing 10 safety zones for inactive fireworks displays, adding 1 safety zone for a new, recurring fireworks display for which we previously issued a temporary safety zone, and updating the date or location for 3 existing fireworks displays.

On September 28, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled, “Safety Zone; Annual Fireworks Displays within the Sector Columbia River Captain of the Port Zone” (83 FR 49028). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to annual fireworks displays. During the comment period that ended October 29, 2018, we received four comments.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Columbia River (COTP) has determined that potential hazards associated with the fireworks displays create hazardous conditions for the maritime public because of the large number of vessels near the displays, as well as the noise, falling debris, and explosions that occur during the event. Because firework discharge sites pose a potential hazard to the maritime public, these safety zones are necessary in order to restrict vessel movement and reduce vessel congregation in the proximity of the firework discharge sites. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled events and provides the public accurate information regarding safety zones for annual fireworks displays in the Captain of the Port Zone Columbia River.

As noted above, we received four comments on our NPRM published September 28, 2018. The first comment suggested establishing new safety zones to replace the 10 inactive safety zones this rule is removing. There has been no indication from the sponsors of these events that they plan to continue them and our office has not received any additional information to warrant the addition of replacement safety zones. The second and third comments contained no suggested changes or recommendations. The fourth comment supported the creation of this rule. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

The Coast Guard is removing 10 fireworks display safety zones in 33 CFR 165.1315 that are listed in Table 1 below because there has been no indication from the sponsors of these events that they plan to continue them.

Additionally, the Coast Guard is adding a new fireworks display safety zone. We previously issued a temporary safety zone (83 FR 30869, July 2, 2018) for that event, and after conferring with the event sponsor, we determined it will become a recurring fireworks display. This safety zone will cover all navigable waters within a 450-yard radius of the fireworks barge in the Willamette River located at approximately 45°24′37″ N, 122°39′30″ W in the vicinity of George Rogers Park in Lake Oswego, OR. The following will be added to the table in 33 CFR 165.1315:

Finally, the Coast Guard is revising three existing fireworks display safety zones. These revisions include updating the date for 4th of July at Pekin Ferry to more precisely describe when the fireworks display will occur, correcting the wrong state listed for the Independence Day at the Port and updating the location for the Leukemia and Lymphoma Light the Night Fireworks.

These updates will eliminate any confusion caused by the fireworks display safety zones listed in the 33 CFR 165.1315 table and any subsequently issued temporary safety zones resulting from changes to the dates or locations of the events. The regulatory text appears at the end of this document.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around these safety zones which will impact small designated areas of the Oregon coast, Tillamook Bay, the Columbia River and its tributaries, and the Clatskanie River for approximately 2 hours during the evening when commercial vessel traffic is normally low. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zones, and the rule allows vessels to seek permission to enter the zone.

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

While some owners or operators of vessels intending to transit the safety zones may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves safety zones lasting less approximately two hours in duration that will prohibit entry within 450 yards of fireworks launch sites. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

Throughout this document “we,” “us,” and “our” means the EPA.

States are required to submit a progress report in the form of a SIP revision for the first implementation period that evaluates progress towards the RPGs for each mandatory Class I federal area1 (Class I area) within the state and for each Class I area outside the state which may be affected by emissions from within the state (40 CFR 51.308(g)). In addition, the provisions of 40 CFR 51.308(h) require states to submit, at the same time as the 40 CFR 51.308(g) progress report, a determination of the adequacy of the state's existing regional haze plan. The first progress report is due 5 years after submittal of the initial regional haze plan. On January 21, 2011, South Dakota submitted the State's first regional haze SIP in accordance with 40 CFR 51.308, which the EPA fully approved.2

On January 27, 2016, South Dakota submitted its Progress Report which, among other things, detailed the progress made in the first period toward implementation of the long-term strategy outlined in the State's regional haze plan; the visibility improvement measured at Badlands and Wind Cave National Parks, the two Class I areas within South Dakota, and at Class I areas outside of the State potentially impacted by emissions from South Dakota; and a determination of the adequacy of the State's existing regional haze plan.

In a notice of proposed rulemaking (NPRM) published on March 19, 2018 (83 FR 11946), the EPA proposed to approve South Dakota's Progress Report. The details of South Dakota's submission and the rationale for the EPA's actions are explained in the NPRM.

Comments on the proposed rulemaking were due on or before April 18, 2018. The EPA received a total of 16 public comment submissions on the proposed approval. All public comments received on this rulemaking action are available for review by the public and may be viewed by following the instructions for access to docket materials as outlined in the ADDRESSES section of this preamble. After reviewing the comments, the EPA has determined that 15 of the comment submissions are outside the scope of our proposed action and/or fail to identify any material issue necessitating a response. We received one comment letter from the National Parks Conservation Association (NPCA), containing two significant comments that we are responding to here. Below is a summary of those comments and the EPA's responses. Comment: In a comment letter dated April 18, 2018, the NPCA asserted that South Dakota's Regional Haze 5-Year Progress Report and the EPA's analysis of the progress report fail to meet 40 CFR 51.308(g)(5) as neither mentions the Gerald Gentleman Station in Nebraska. The commenter states that South Dakota's SIP and RPGs relied on visibility modeling from the Central Regional Air Planning Association (CENRAP) that assumed the installation of scrubbers for control of sulfur dioxide (SO2) emissions from the Gerald Gentleman Station, which has a significant impact on South Dakota's Class I areas. The commenter suggests that the lack of requirements to install scrubbers and limit SO2 emissions from the Gerald Gentleman Station constitutes an anthropogenic change that impedes visibility progress. Finally, the commenter suggests the lack of change in emissions at the Gerald Gentleman Station since the baseline period “impedes visibility progress” and is a “significant change” that the EPA's guidance suggests should be discussed to meet the requirements of § 51.308(g)(5).

Response: We acknowledge that the Progress Report from South Dakota does not include an assessment of emission changes from the Gerald Gentleman Station. However, such an assessment is not required given the facts about South Dakota's SIP, emission trends for Gerald Gentleman, and visibility trends at the two Class I areas in South Dakota. Changes in emissions from the Gerald Gentleman Station are not “significant changes” within the meaning of this section of the Regional Haze Rule (RHR). It should be noted that, South Dakota cannot regulate emissions from the Gerald Gentleman Station in Nebraska.

Section 51.308(g)(5) of the RHR requires that periodic progress reports contain an assessment of any significant changes in anthropogenic emissions within or outside the state that have occurred during the implementation period including whether such changes were anticipated and whether they have limited or impeded progress in reducing emissions and improving visibility. The EPA provided guidance that summarized and clarified the requirements for progress reports in a document titled General Principles for the 5-Year Regional Haze Progress Reports for the Initial Regional Haze State Implementation Plans (Intended to Assist States and EPA Regional Offices in Development and Review of the Progress Reports). 3 In relation to § 51.308(g)(5), the guidance states that “[t]his requirement is aimed at assessing whether any such significant emissions changes have occurred within the state over the 5-year period since the SIP was submitted, and whether emissions increases outside the state are affecting a Class I area within the state adversely.” 4 Further, the guidance principles specify that a “significant change” that can “limit or impede progress” could be “either (1) a significant unexpected increase in anthropogenic emissions that occurred over the 5-year period (that is, an increase that was not projected in the analysis for the SIP), or (2) a significant expected reduction in anthropogenic emissions that did not occur (that is, a projected decrease in emissions in the analysis for the SIP that was not realized).” 5

The “significance” of a change in emissions, if there is a change, is evaluated on a case-by-case basis depending on the factual context. It is clear from both § 51.308(g)(5) and the guidance that significance depends on whether a change in emissions is large enough to have limited or impeded progress in improving visibility, with the adopted RPGs being important benchmarks for progress.

In this instance, there have not been significant changes in emissions within the meaning of § 51.308(g)(5). First, there has not been a “significant unexpected increase” in emissions from outside South Dakota, i.e., from the Gerald Gentleman Station. While this first questions is perhaps more relevant where a new or modified source has increased emissions over what was projected in the SIP, we nonetheless assess it in respect to Gerald Gentleman Station. A review of emissions data submitted to the EPA Air Markets Program Data indicates that the annual SO2 emissions from Units 1 and 2 decreased in the 5-year period from the submittal of the initial SIP. In the 5-year period before submittal of the initial SIP, 2006 through 2010, the annual SO2 emissions from the facility averaged 30,597 tons per year.6 In the following 5-year period, 2011 through 2016, the annual SO2 emissions averaged 26,696 tons per year.7 The average annual SO2 emissions between the two periods decreased by 3,901 tons per year.8 As such, we conclude that there has not been a significant unexpected increase in anthropogenic emissions from the Gerald Gentleman Station.

Second, there was not a significant expected reduction in anthropogenic emissions that did not occur. As a preliminary matter, we acknowledge that the RPGs for South Dakota's Class I areas are based on the assumption that SO2 emissions from the Gerald Gentleman Station would be reduced by the application of scrubbers that achieve the “presumptive BART” emission rate of 0.15 lb/MMBtu.9 This assumption was built into the projected emission inventory for air quality modeling used to establish RPGs.10 However, this occurred before Nebraska made its BART determination. It also occurred before Nebraska completed its consultation with other states, including South Dakota, in the development of its emission control strategies.11 In the Agency's final action on Nebraska's Regional Haze SIP, the EPA addressed the disparity between the modeling assumptions for South Dakota's RPGs and the SO2 BART emission limit the EPA chose for the Gerald Gentleman Station.12 In response to comments on this issue, the Agency noted that “South Dakota had the opportunity to comment on Nebraska's draft BART permits as well as the overall regional haze SIP, and did not ask for additional emission reductions from Nebraska.” 13 The Agency concluded that “Nebraska did establish a BART limit for the Gerald Gentleman Station and informed South Dakota that its BART determination deviated from what was included in the modeling [for RPGs], [and] the fact that the final BART determination varied from the predictions is not grounds for disapproving either SIP.” 14 Indeed, the content of the long-term strategy (including BART controls) determines the RPGs, not the opposite case. If not for the difference in timing between the air quality modeling for the RPGs and Nebraska's BART determination, South Dakota's RPGs would have reflected Nebraska's BART determination for the Gerald Gentleman Station. Put more concisely, the SO2 BART requirement for Gerald Gentleman Station is not predicated on an assumption that was made in the modeling analysis before BART was determined, but rather on the control measures that were ultimately agreed upon between Nebraska and South Dakota through the requisite consultation process.

Nonetheless, in the Agency's final action for Nebraska, the EPA disapproved the SO2 BART determination for the Gerald Gentleman Station because the State did not comply with the EPA's regulations. The EPA also disapproved Nebraska's long-term strategy insofar as it relied on the deficient SO2 BART determination at the Gerald Gentleman Station. To address these deficiencies, in the same action, the EPA promulgated a Federal Implementation Plan relying on the Cross-State Air Pollution Rule (CSAPR, or “transport rule”) as an alternative to BART for SO2 emissions from Gerald Gentleman Station,15 with the result that the long-term strategy for Nebraska does not require that SO2 scrubbers be installed at the Gerald Gentleman Station to meet BART. Again, the RPGs are intended to reflect the emission reductions in states' long-term strategies. The fact that Nebraska's long-term strategy ultimately contains a different BART emission limit for the Gerald Gentleman Station than initially assumed does not mean that any difference between the two constitutes “a significant expected reduction in anthropogenic emissions that did not occur.”

The guidance further clarifies that the requirement in § 51.308(g)(5) is “aimed at assessing . . . whether emissions increases outside the state are affecting a Class I area within the state adversely. For those Class I areas where there is a significant overall downward trend in both visibility and nearby emissions, we expect that this assessment will point to those trends in support of a simple negative declaration satisfying this requirement” (emphasis added).16 This means that if aggregate emissions influencing the affected Class I areas are significantly declining and visibility conditions are significantly improving, an upward “change” for one contributing source relative to expectations is not significant. We accordingly turn to the topic of aggregate emissions and visibility trends for the Class I areas in South Dakota.17

In the Progress Report, South Dakota compared the most recent updated emission inventory data available at the time of Progress Report development with the baseline emissions inventory used in the modeling for the regional haze plan. The State's comparison showed that the statewide emissions of key visibility impairing pollutants, including SO2, had declined. For example, between the baseline emission inventory and the most recent updated emission inventory of 2011, South Dakota found that anthropogenic SO2 emissions declined by 8,285 tons per year. The emissions trends do not suggest any deficiencies in South Dakota's SIP that would affect achievement of the RPGs for Wind Cave and Badlands National Parks.

In the Progress Report, South Dakota provided baseline visibility conditions (2000-2004), current conditions based on the most recently available visibility monitoring data available at the time of Progress Report development, the difference between these current visibility conditions and baseline visibility conditions, and the change in visibility impairment from 2009-2013.18 In order to further assess the trend in visibility as it relates to § 51.308(g)(5), the EPA has expanded on the analysis of visibility included in South Dakota's Progress Report. In addition to the information and analysis provided in the Progress Report, Table 1 below presents updated Interagency Monitoring of Protected Visual Environments (IMPROVE) monitoring data which shows that visibility for the two Class I areas in the State, Badlands and Wind Cave National Parks, has continued to improve beyond the 2009-2013 period considered by South Dakota. Table 1 shows a continued downward trend in visibility impairment (in deciviews) at both Badlands and Wind Cave National Parks from the baseline time period (2000-2004) to the most current time period (2012-2016).

In Figures 1 and 2 below, in addition to comparing visibility improvement to the 2018 RPGs, we also compare monitored visibility (as a 5-year rolling average) to the Uniform Rate of Progress (URP). As described in the RHR, the URP is the uniform rate of visibility improvement that would need to be maintained during each implementation period in order to attain natural visibility conditions by the end of 2064.21 While the RHR does not require that states compare monitored visibility to the URP as part of their progress reports, the EPA has done so here because it is instructive when considering visibility trends in the context of § 51.308(g)(5). Figures 1 and 2 show that the visibility in recent years for both Badlands and Wind Cave National Parks is well below the RPGs. For example, for Badlands National Park, the 2011 through 2016 5-year rolling average of the 20% haziest days is 14.7 deciviews, which is well below the 2018 RPG of 16.3 deciviews. Moreover, the visibility for both Class I areas is below the URP in recent years; at Badlands National Park, the 5-year rolling average of the 20% haziest days is below the URP beginning in 2012 and extending through the most recent year of available IMPROVE data (2016). Similar trends are apparent for Wind Cave National Park. As with the emissions trends, the visibility trends do not suggest any deficiencies in South Dakota's SIP that would adversely affect achievement of the RPGs for Wind Cave and Badlands National Parks.

As previously stated, progress relative to the adopted RPGs is an important benchmark in assessing whether an increase in the Gerald Gentleman Station's SO2 emissions relative to the expectations inherent in the SIP has “limited or impeded progress in improving visibility.” While there would likely have been more progress if the Gerald Gentleman Station's SO2 emissions had been reduced even more over time than they have been, in the context of improvements already in the first implementation period relative to the RPGs and the URP for both Class I areas in South Dakota, we do not consider any lack of emission reductions from the Gerald Gentleman Station as having limited or impeded progress in improving visibility.

In summary, we find that there has been no significant change in anthropogenic emissions relative to what was expected under South Dakota's regional haze SIP. Moreover, even if there had been such a change, emissions and visibility trends do not suggest any deficiencies in South Dakota's SIP that would affect achievement of reasonable progress for Wind Cave and Badlands National Parks. Given our conclusions regarding § 51.308(g)(5) here, we find that the absence of a discussion of the Gerald Gentleman Station is not a failure to report on “significant changes in anthropogenic emissions” as that term is used in § 51.308(g)(5) nor a shortcoming in South Dakota's Progress Report that requires our disapproval of the Progress Report. Consequently, consistent with the RHR and our guidance principles, we are finalizing our finding that South Dakota has met the requirements of § 51.308(g)(5).24

Comment: The NPCA also asserts that “EPA has previously identified the need for consultation between South Dakota and Nebraska in the next planning period regarding the impacts of the Gerald Gentleman Station on South Dakota's Class I areas,” and asks the EPA to “work with South Dakota to include a discussion of the Gerald Gentleman Station in its progress report.”

Response: The Progress Report that is the subject of today's action addresses the requirements of the first regional haze planning period. When adopting long-term strategies and establishing RPGs for the second regional haze planning period, extending to 2028, the RHR requires that states once again “consult with those states that are reasonably anticipated to cause or contribute to visibility impairment in [ ] mandatory Class I area[s].” 25 As such, South Dakota will have an opportunity to consult with Nebraska regarding SO2 controls for the Gerald Gentleman Station in the second planning period. Moreover, nothing in this final rule would prevent Nebraska, in consultation with South Dakota or other states, from assessing the need for SO2 controls at the Gerald Gentleman Station as part of its long-term strategy for the second planning period.

Comment: The NPCA also asserts that the EPA does not adequately address in the NPRM South Dakota's progress towards investigating and developing a smoke management plan.26 The NPCA asserts that “EPA's analysis incorrectly states that `The Progress Report presents the extensive information collected and analyzed to investigate the impacts of a smoke management plan'.” 27 The NPCA acknowledges that the South Dakota Progress Report discusses the impact of prescribed fire at Wind Cave National Park, but asserts that the progress report does not mention a smoke management plan specifically. The commenter additionally asserts that the progress report does not include an “update or information about South Dakota's progress towards investigating and developing a smoke management plan.” 28 Finally, the commenter requests that the EPA work with South Dakota to include an update on South Dakota's examination of a smoke management plan as the NPCA asserts that 40 CFR 51.308(g)(1) requires that the status of all control strategies be included in the SIP.

Response: As this response to comment will show, South Dakota is committed to investigating the impacts of prescribed burns and wildfires and considering smoke management practices and a smoke management plan; however, there is no smoke management plan currently included in the SIP. Insofar as the comment implicates the adequacy of the State's existing Regional Haze SIP, we note that our review of the Progress Report is not a second review of the adequacy of that SIP, as the public already had an opportunity to review and comment on it and the EPA approved the SIP as meeting the requirements of 40 CFR 51.308(d)(3)(v)(E). However, since South Dakota committed to investigating these issues, it was appropriate for the State to include an update on this investigation in the Progress Report and we find that the State did so. Contrary to commenters' assertions, the SIP explains that the State will:

• “[I]nvestigate the impacts that a smoke management plan for wild fires and prescribed burns will have on the 20% most impaired days” within the first planning period of 2013”;

• Investigate and determine whether the “burning of grass in and around the Class I areas” warrants being covered under a smoke management plan”; and

• Review IMPROVE data for a recent prescribed fire to see what kind of impact the fire had on the organic carbon mass concentration and to some extent the ammonia sulfide and ammonia nitrate levels.

Finally, the SIP explains that it is DENR's “intention” to

[I]nvestigate these prescribed burns as well as other wildfires and planned prescribed burns to determine at what level (e.g., size of burn, distance from the Class I areas, combustible material) should a wildfire or prescribed fire be included in the smoke management plan and what best management practices can be used to minimize their impacts on the 20% most impaired days in the Class I areas. The results of this analysis will be adopted in the Regional Haze State Implementation Plan as part of our long term strategy. DENR will work with the federal land managers, other state agencies, and local governments during the development and implementation of the smoke management plan.29

Contrary to the commenter's assertions, the Progress Report, as explained in the Regional Haze 5-Year Progress Report NPRM, describes that the State has taken the following steps so far to investigate the impacts of prescribed burns and natural fire on visibility in the first planning period. The impacts of prescribed fires on the 20% most impaired days at Wind Cave were investigated using the IMPROVE data that was presented in their progress report.30

The State also reviewed IMPROVE data for two recent prescribed fires to see what kind of impact the fires had on the organic carbon mass concentration and to some extent the ammonium sulfide and ammonium nitrate levels. This data shows the impact of two prescribed fires conducted by the National Park Service (NPS) at Wind Cave National Park in 2009 and 2010.31 The two examples of the IMPROVE data that show that the NPS prescribed fires contributed to high levels of both particulate organic mass and elemental carbon on both days.32 Finally, the Progress Report shows that natural fire has been decreasing in its impact.33

Furthermore, regarding the State's intention to develop and implement the smoke management plan, since the publication of the NPRM, we learned that the State of South Dakota reconfirmed their intention regarding the smoke management plan,34 as is described in its SIP to participate in a Western States Air Resources Council (WESTAR) smoke management workgroup.

Finally, as described in South Dakota's progress report and the NPRM, the State has worked in coordination with Federal Land Managers to mitigate the impacts of prescribed fires. In its Progress Report, the State explains that “DENR and Federal Land Managers in South Dakota have improved coordination and communications over the past few years and plan to continue that effort to help mitigate the impacts of prescribed fires” at Wind Cave and Badlands National Parks.35

EPA is finalizing without revisions its proposed approval of South Dakota's January 27, 2016 Progress Report as meeting the applicable regional haze requirements set forth in 40 CFR 51.308(g) and 51.308(h).

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted 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, described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

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

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

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

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

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

The 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. The 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 February 1, 2019. 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:

On January 13, 2017, EPA finalized amendments to the Accidental Release Prevention Requirements for Risk Management Programs under the Clean Air Act, Section 112(r)(7) (RMP Amendments rule; 82 FR 4594). On January 26, 2017, the EPA published an action in the Federal Register that initially delayed the effective date of the RMP Amendments rule for a short period of time (82 FR 8499). The EPA further delayed the effective date of the RMP Amendments rule through additional EPA actions published in the Federal Register on March 16, 2017 and June 14, 2017 (82 FR 13968 and 82 FR 27133, respectively). On August 17, 2018, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision vacating the June 14, 2017 rule (82 FR 27133) that had delayed the effective date of the RMP Amendments rule until February 19, 2019. On September 21, 2018, the Court issued its mandate which makes the RMP Amendments rule now effective.

Section 553(b)(3)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for making this rule announcing the effectiveness of the RMP Amendments rule final without prior proposal and opportunity for comment because such notice and opportunity for comment is unnecessary.

Specifically, updating the Code of Federal Regulations (CFR) to reflect the requirements of the RMP Amendments rule is a ministerial act. The Court specifically identified as vacated the June 14, 2017 rule that had delayed the effectiveness of the RMP Amendments rule until February 19, 2019. The rule published today simply implements the decision of the Court. Since EPA lacks discretion to do otherwise, it would serve no useful purpose to provide an opportunity for public comment on this issue. The requirements of CAA section 307(d), including the requirement for public comment and a hearing on proposed rulemakings, do not apply to this action because 5 U.S.C. 553(b)(3)(B) applies.

Moreover, the agency finds that the considerations outlined above to support issuance of this rule without prior notice and comment also provide good cause for making this action effective immediately under section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 553(d). Section 553(d) provides in pertinent part that final rules shall not become effective until 30 days after publication in the Federal Register, “except . . . as otherwise provided by the agency for good cause.” The purpose of section 553(d) of the APA is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (DC Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). In determining whether good cause exists to waive the 30-day effective date under the APA, an agency should “balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.” Gavrilovic, 551 F.2d at 1105. Here, the decision of the Court vacating the Delay Rule and the issuance of the mandate have taken the issue of timing out of EPA's control. As noted above, we are simply implementing the Court's mandate by undertaking the ministerial act necessary to update the Code of Federal Regulations. Accordingly, this rule will take effect upon publication in the Federal Register. 5 U.S.C. 553(d).

Prior to 2011 the Pacific Coast Groundfish fishery was primarily managed with trip and landing limits and area closures, and monitoring was limited (i.e., less than 25 percent of groundfish bottom and midwater trawl trip landings were subject to at-sea observer coverage). During that time NMFS implemented trawl gear restrictions to both reduce groundfish and non-groundfish bycatch and discards, as well as limit access to overfished rockfish habitat. Restrictions included: (1) Minimum mesh size requirements; (2) requirements for chafing gear and codends; (3) the trawl Rockfish Conservation Areas (RCA) in which the use of groundfish bottom trawl gear between certain fathom lines is prohibited, as defined in regulation at §§ 660.71 through 660.74; and, (4) a requirement that vessels use selective flatfish trawl, a type of small footrope trawl gear, shoreward of the trawl RCA and north of 40°10′ North (N) latitude.

In 2011, NMFS implemented Amendments 20 and 21 to the Pacific Coast Groundfish Fishery Management Plan (PCGFMP), which established the Trawl Rationalization Program. The Trawl Rationalization Program, a type of catch share program, replaced trip and landing limits with fixed allocations for limited entry trawl participants through an individual fishing quota (IFQ) management system. To allow managers to accurately account for catch against IFQ the program increased at-sea and shoreside monitoring to 100 percent of trips and landings for groundfish bottom and midwater trawl vessels. This management system increased individual vessel accountability and successfully reduced bycatch of target and non-target rockfish in the trawl fishery. Since implementation of the Trawl Rationalization Program, five of the seven previously overfished rockfish species are now rebuilt.

Building on the successes of the Trawl Rationalization Program at reducing discards, NMFS and the Pacific Fishery Management Council (Council) worked with industry members to identify regulations that limit the use and configuration of groundfish bottom and midwater trawl gears, and may no longer be necessary because the Trawl Rationalization Program effectively limits target and non-target species bycatch. Additional discussion of the background and rationale for the Council's development of changes to bottom and midwater trawl gear configuration is included in the proposed rule (83 FR 45396; September 7, 2018) and is not repeated here. Detailed information, including the supporting documentation the Council considered while developing these recommendations, is available at the Council's website, www.pcouncil.org.

The discussion in this final rule and in the EA/RIR/RFA (see ADDRESSES) groups several related measures to reduce redundancy and to present the collective impacts of similar regulations. This final rule:

• Adjusts a suite of restrictions related to how nets are configured, including eliminating minimum mesh size restrictions, changing the definition of mesh size, removing chafing gear placement restrictions, and removing restrictions on using double-walled codends from groundfish bottom and midwater trawl vessels fishing under the Trawl Rationalization Program;

• Removes the requirement to use selective flatfish trawl gear north of 40°10′ N lat. and shoreward of the trawl RCA;

• Adjusts a number of provisions related to vessel operations on a single fishing trip, including allowing vessels that fish in the Shorebased IFQ Program under the Trawl Rationalization Program to carry and fish groundfish bottom and midwater trawl gears on the same trip, fish across IFQ management lines, and bring a new haul on deck before the catch from a previous haul is stowed.

This section discusses several regulatory changes that remove some minimum mesh size restrictions, revise the definition of mesh size, remove chafing gear placement restrictions, and remove the prohibition on using double-walled codends for groundfish bottom and midwater trawl vessels fishing under the Trawl Rationalization Program. These measures all relate to net configuration and all affect the mesh size for trawl nets. A description of the existing regulations for net configurations, as well as a summary of the potential impacts of these combined measures, is included in the proposed rule and is not repeated here.

This final rule removes the minimum mesh size requirement of 4.5 inches (11.4 cm) for groundfish bottom trawl nets and revises the minimum mesh size requirements for midwater trawl gear. Midwater trawl gear nets are no longer required to have a minimum mesh size of 3.0 inches (7.6 cm). However, the Council did not recommend revising the restriction on the minimum mesh size restriction for the first 20 feet (6.51 m) behind the footrope or head-rope for midwater trawl gears because it is essential to the definition of midwater trawl gear. As such, nets must still be configured so that the first 20 feet (6.51 m) immediately behind the footrope or head-rope is constructed with bare ropes or mesh with a minimum size of 16 inches (40.64 cm).

This final rule redefines minimum mesh size as the smallest distance allowed from opposing knots or corners. In addition, this final rule revises the definition for measuring minimum mesh size to include knotless nets, as well as redefining the approach for measuring mesh size as the opening between opposing corners. These changes will allow NMFS Office of Law Enforcement (OLE) to enforce current mesh size requirements for vessels using midwater trawl nets, which must meet minimum mesh size requirements for the first 20 feet (6.51 m) behind the footrope or head-rope.

Finally, this final rule eliminates the prohibition on double-walled codends and restrictions on the use of chafing gear. Removing these restrictions will allow vessel operators flexibility in how they use chafing gear to protect nets and codends, fish relative to the seafloor, and strategically use mesh sizes to enhance fishing operations (i.e., herding smaller fish through the net). NMFS anticipates that under these regulations vessel operators will use chafing gear strategically to provide protection in areas where the net can be susceptible to wear. This will allow vessels to extend the life of their nets and ultimately reduce operational costs.

Eliminating restrictions on groundfish bottom and midwater trawl net configuration allows vessels to experiment with different mesh sizes, chafing gear placement, and use of double-walled codends. The new regulations will allow vessels to reduce the mesh size of their nets and increase net protections to better target semi-pelagic rockfish species or longspine thornyheads.

This final rule adjusts groundfish vessel requirements for using selective flatfish trawl gear. A description of the existing regulations for selective flatfish trawl, as well as a summary of the potential impacts of this measure, is included in the proposed rule and is not repeated here.

This final rule revises the definition of selective flatfish trawl, a type of small footrope trawl gear, to allow for a two- or four-seamed net with no more than four riblines, while retaining all other existing restrictions related to configuration of this gear including: The breastline may not be longer than 3 feet (0.92 m); there may be no floats along the center third of the headrope or attached to the top panel, except on the riblines; the footrope must be less than 105 feet (32.26 m); the headrope must be no less than 30 percent longer than the footrope; and the headrope is issued along the length of the headrope from the outside edge to the opposite outside edge.

Revising the definition of selective flatfish trawl to allow for use of a four-seam net will provide for better flow and improved selectivity compared to a two-seam net. A four-seam net has more open meshes for smaller fish to escape. In addition, studies have demonstrated that improved flow within nets improves fishing efficiency, which may increase catch of marketable target groundfish (e.g., widow rockfish, yellowtail rockfish, and Pacific cod), and reduce bycatch of small or unmarketable groundfish (e.g., undersized redstripe rockfish, rosethorn rockfish, sand dabs).

The final rule also eliminates the requirement that vessels use selective flatfish trawl gear shoreward of the trawl RCA north of 42° N lat. Instead, trawl vessels are allowed to use any type of small footrope trawl gear, including selective flatfish trawl gear, shoreward of the trawl RCA north of 42° N lat. Large footrope trawl gear will still be prohibited shoreward of the trawl RCA. This final rule does not make any changes to the requirement to use selective flatfish trawl gear between 40°10′ N lat. and 42° N lat. Vessels that choose to fish groundfish bottom trawl gear in this area are required to use selective flatfish trawl gear. Fishing with small footrope trawl gear, other than selective flatfish trawl gear, is prohibited between 40°10′ N lat. and 42° N lat.

As described in the proposed rule for this action, the Council recommended that NMFS remove the requirement to use selective flatfish trawl gear north of 40°10′ N lat. and replace it with a requirement to use small footrope trawl gear. However, NMFS determined that the Council's recommended changes to the selective flatfish trawl gear requirement shoreward of the trawl RCA between 42° N lat. and 40°10′ N lat. are out of compliance with the terms and conditions of the December 2017 Salmon Incidental Take Statement. Term and Condition 4b requires that “prior to allowing additional non-whiting trawling south 42° N lat., NMFS will implement one or more exempted fishing permits (EFPs) designed to collect information about Chinook and coho bycatch levels and stock composition from fishing in those areas or at those times for a minimum of three years.” Because the area shoreward of the trawl RCA between 42° N lat. and 40°10′ N lat. was not part of the exemption to the selective flatfish trawl gear requirement in the 2017 and 2018 EFPs, which was the Council's recommendation, NMFS cannot make changes to restrictions in this area that could result in additional non-whiting trawling effort. NMFS notified the Council of this preliminary determination at its September 2018 meeting in Seattle, Washington.

NMFS does support the continued use of EFPs to obtain data on potential impacts of changing the selective flatfish trawl gear requirement between 42° N lat. and 40°10′ N lat. This information would help inform any future regulatory changes the Council recommends for this area and gear type.

This section discusses the three regulatory changes that relate to vessel operations on a single fishing trip including allowing vessels that fish in the Shorebased IFQ Program under the Trawl Rationalization Program to carry and fish groundfish bottom and midwater trawl gears on the same trip, fish across IFQ management lines, and bring a new haul on deck before the catch from a previous haul is stowed. A description of the existing regulations for vessel operators, as well as a summary of the potential impacts of these combined measures, is included in the proposed rule and is not repeated here.

The groundfish regulations define four trawl gear types (large footrope trawl, small footrope trawl, selective flatfish trawl, and midwater trawl), as well as where and when vessels may carry those trawl gear types. Under the revised regulations in this final rule, vessels fishing north of 40°10′ N lat. may not have both groundfish trawl gear and non-groundfish trawl gear on board simultaneously, but vessels fishing in the Shorebased IFQ Program will be allowed to carry multiple trawl gear types (groundfish bottom or midwater trawl gear) on board simultaneously. A vessel may have more than one type of small footrope bottom trawl gear on board (selective flatfish trawl or small footrope trawl gear) either simultaneously or successively during a trip limit period, with one exception. Only a selective flatfish trawl is allowed onboard when fishing shoreward of the trawl RCA between 42° N lat. and 40°10′ N lat. Finally, a vessel may have more than one type of midwater groundfish trawl gear on board, either simultaneously or successively, during a cumulative trip limit period. South of 40°10′ N lat., a vessel may not have both groundfish trawl gear and non-groundfish trawl gear on board simultaneously; however, they may have both bottom trawl gear and midwater trawl gear on board simultaneously or any type of small footrope trawl gear, including selective flatfish trawl gear, simultaneously or successively.

This final rule eliminates the prohibition on using multiple types of groundfish trawl gears (bottom and midwater trawl gear) on the same trip for vessels fishing in the Trawl Rationalization Program's IFQ Program. Allowing the use of multiple trawl gears during a single trip reduces the complexity in the regulations and will improve economic efficiency and safety at sea by reducing the number of trips and days at sea.

Vessels fishing with multiple types of groundfish trawl gear are required to keep and land all catch separately by gear type, and catch must be reported on electronic fish tickets by gear type (i.e., midwater or bottom trawl). Vessels are not required to keep catch separate by haul. This rule does not adjust the current provision that requires vessels to stow any gear not authorized for use in the area when transiting through a groundfish conservation area. For species managed with trip limits, crossover provisions, or gear-specific trip limits, all current regulations would remain in effect.

This final rule also modifies recordkeeping and reporting requirements for vessels fishing in the Shorebased IFQ Program that choose to use more than one type of groundfish trawl gear on the same trip. These vessels are required to make a new gear declaration to indicate that they have chosen to fish with a new gear type (i.e., groundfish bottom trawl vs. midwater trawl). Previously, the regulations only allowed vessels to declare one type of trawl gear at a time when fishing in the Trawl Rationalization Program, and vessel operators were required to make the declaration for each trip prior to leaving port. The final rule revises the regulations so that vessel operators in the Shorebased IFQ Program that choose to use multiple groundfish trawl gears on the same trip may adjust their gear declarations from sea and do not need to return to port to do so. Vessel operators are required to make a new declaration any time they switch to a gear other than the gear that was previously declared. This allows for the continued monitoring and enforcement of gear-specific closed areas. Allowing vessels the flexibility to use and carry multiple trawl gears onboard the vessel will reduce costs to operators by reducing daily fuel and observer coverage costs.

This final rule eliminates both the existing prohibition on bringing a haul on board before the previous haul has been stowed and the requirement to stow all catch before catch from a new haul is brought on board. Vessels may now bring a new haul on board before the previous haul has been stowed and will not be required to stow all catch before the catch from a new haul is brought on board. Vessels are still required to keep catch from separate hauls until the observer has completed all haul-specific sampling protocols and has allowed the hauls to be mixed. Vessels will also still be required to allow observers and catch monitors to carry out all required duties without interference to ensure continued accurate monitoring and reporting of catch. This ensures availability of quality data for catch at-sea and landings which are used to manage the fishery in season and to assess the stocks and develop catch limits and harvest guidelines. Vessels fishing with electronic monitoring are required to keep catch from different hauls separate on deck until fully documented according to protocols established in the specific vessel's monitoring plan. All vessels are required to land any catch by gear type if it was caught using different gears separated by gear type.

This final rule also eliminates the prohibition on fishing in multiple IFQ management areas on the same trip or tow, for vessels fishing in the Shorebased IFQ Program. These vessels are allowed to fish in multiple IFQ management areas on the same trip and the same haul, and catch does not need to be sorted by area. Vessel operators will be responsible for recording the number of hauls that took place in which IFQ management area. Catch will then be assigned to an area and quota pounds will be deducted from vessel accounts based on the proportion of hauls in a given management area. For example, if six hauls were taken in one IFQ management area, and two hauls were taken in another management area, the total catch would be apportioned to management areas by a 6 to 2 ratio. For any hauls that took place across management lines, catch would be apportioned 50 percent to each area. Therefore, if six hauls were taken in one management area, two hauls taken in another management area, and one haul taken across management areas, the total catch would be apportioned to management areas by a 6.5 to 2.5 ratio.

Vessel operators are expected to use the flexibility to create an efficient fishing strategy that best limits bycatch of non-target and protected species while still maximizing catch of their target species. Vessels would maximize attainment of IFQ by carrying and fishing with both midwater and groundfish bottom trawl gear on the same trip. Eliminating regulations that manage vessel operations may have some potential negative impacts to processors, observers, and managers, but these are likely to be limited and may even decrease over time as operations adjust to the changes.

NMFS received seven comment letters from private citizens during the comment period for the proposed rule. All of the comments raised similar issues regarding the potential for these gear changes to negatively impact previously overfished rockfish stocks and their habitat, and the potential for the changes to increase salmon bycatch. Only comments relevant to measures considered in the proposed rule are summarized and addressed below. Comments related to other fishery actions, general fishery management, or unrelated to fisheries are not addressed here. All public comment letters can be viewed, along with the proposed and final rules for this action, at www.regulations.gov.

Comment 1: Please withhold changes to gear restrictions until salmon stocks have had a chance to rebuild. These gear changes will likely increase bycatch of Chinook salmon.

Response: While NMFS shares the commenter's concerns over any action that could increase bycatch of Chinook salmon, the analysis for this action does not support the conclusion that removing these restrictions and requirements would result in additional bycatch beyond what already occurs in this fishery. Over the past two years NMFS has permitted more than 40 vessels annually to test whether removing these requirements or prohibitions would result in additional bycatch of Chinook and coho salmon. These vessels have completed more than 200 EFP trips. Based on the analysis of this EFP information, changes that have occurred within the fishery over the past several years, and the analysis in the December 2017 biological opinion, NMFS has determined that changes to mesh size, removing restrictions on codends and chafing gear, and removing restrictions on vessel operations is unlikely to result in additional impacts to Chinook salmon. With regards to removal of the selective flatfish trawl gear requirement, impacts to Chinook salmon are unlikely to increase from this action in the area north of 42° N lat. (the southern boundary of the 2017 and 2018 Trawl Gear EFPs). However, impacts to Chinook salmon resulting this action are less certain in the area between 42° N lat. and 40°10′ N lat.

NMFS discussed uncertainty around potential impacts to Chinook salmon in the area between 42° N lat. and 40°10′ N lat. in the proposed rule, particularly when considering the removal of the requirement to use selective flatfish trawl gear, because this area was not included in the 2017 or 2018 EFPs. Therefore, as mentioned above in Section III, NMFS is only removing the prohibition on using any small footrope trawl gear besides selective flatfish trawl gear for the area north of 42° N lat. No changes to regulations requiring the use of selective flatfish trawl gear will be implemented for the area between 42° N lat. and 40°10′ N lat., where impacts to salmon are less certain.

Additionally, unlike in previous years, NMFS is proposing through the proposed rule for the 2019-2020 harvest specifications and management measures (83 FR 47416, September 19, 2018), to establish hard caps for Chinook salmon established in the 2017 Salmon Biological Opinion. If implemented, NMFS will have a mechanism available in regulation that may be used to close the non-whiting and/or whiting fisheries if the bycatch of Chinook salmon exceeds or is projected to exceed the thresholds for those fisheries. Finally, NMFS continues to work with the Council to develop any management measures needed to address any unexpected high bycatch of Chinook or coho salmon in the groundfish fisheries.

Comment 2: The proposed regulations do not acknowledge the potential for rockfish habitats to be destroyed with little chance of rehabilitation.

Response: In developing the EA for this action NMFS considered potential impacts to the physical environment, which includes important habitats for rockfish species, and determined that impacts to the physical environment from this action are likely to be negligible to low for the several reasons. First, the regulatory revisions do not change any areas that are currently closed to fishing, such as essential fish habitat conservation areas (EFHCAs) designed to protect sensitive habitat from bottom contact gear. NMFS expects there may be increased effort shoreward of the trawl RCA and north of 42° N latitude by vessels fishing without selective flatfish trawl gear. However, NMFS expects this effort would likely only occur with groundfish bottom trawl over soft-bottom habitat or with pelagic trawls fished off the ocean floor and in the water column away from any high relief structures that could damage fishing nets. Finally, the regulatory revisions do not change small footrope requirements for groundfish bottom trawl shoreward of the RCA. This small footrope requirement provides a strong disincentive for harvesters to fish with bottom trawl over high-relief habitat. Therefore, based on this analysis, NMFS determined that the revised regulations will not result in additional impacts to the physical environments.

Comment 3: Eliminating the mesh and net size requirements would potentially increase the incentive for vessels to use larger equipment, which could increase the likelihood for overfishing. Rockfish are especially vulnerable to overfishing.

Response: Eliminating regulations that restrict the configuration and use of the nets would not affect the size of the gear used. Requirements affecting rope size will still be in place. Additionally, trawl nets are often limited by the size of the vessel and the ability of the vessel to pull the net. None of the revisions implemented through this final rule will change any of the vessel size restrictions for limited entry permits in the groundfish fishery.

In regard to overfishing, NMFS agrees that rockfish can be susceptible to overfishing because many species do not begin to reproduce until they are 5-20 years old, and very few of their young survive to adulthood. In addition, many species can live more than 100 years (e.g, yelloweye rockfish). However, NMFS and the Council are obligated under National Standard 1 to ensure that conservation and management measures, including those implemented through this final rule, prevent overfishing while also providing an opportunity for industry to harvest catch. NMFS and the Council have worked diligently over the past 15 years to conservatively manage species in order to rebuild seven previously overfished rockfish stocks. There are only two stocks (i.e., yelloweye rockfish and cowcod) that remain in rebuilding plans, and both are projected to rebuild ahead of schedule. The Trawl Rationalization Program has proven to be an effective management system for groundfish fisheries because it increases individual vessel accountability and ensures full catch accounting for all stocks. NMFS and the Council will continue to use the management tools available through that program to protect rockfish stocks from overfishing while also providing economic opportunities for West Coast communities.

Comment 4: Eliminating the mesh size requirements will result in increased unwanted bycatch, discards, and the increased mortality of small or young fish. Allowing this will reverse the Trawl Rationalization Program's longstanding success.

Response: The Trawl Rationalization Program has been successful in addressing the NMFS and Council's responsibilities under the Magnuson-Stevens Fishery Conservation Act (MSA) and the National Standards, in particular National Standard 1 guideline responsibilities for preventing overfishing, and National Standard 8 responsibilities to reduce bycatch to the extent practicable. Consistent with requirements under MSA, NMFS will continue to support development of actions that continue this success. As discussed in additional detail in the proposed rule, the continued success of the program relies on the use of an individual quota management system, which provides a disincentive for vessels to target small fish or reduce the mesh size of the net so as to catch more small fish. These undersized fish are not marketable and harvesters would have to use their quota pounds to cover the catch. One hundred percent at-sea monitoring, either with human observers or electronic monitoring, is required by all groundfish trawl vessels and ensures against vessels discarding unwanted or unmarketable catch without first recording the information. Additionally, reducing mesh size increases drag on the net which can reduce the efficiency of the fishing practices and also serves as a disincentive.

The purpose of eliminating the mesh size restrictions is not to incentivize the catch of small fish. It is intended to allow vessel operators the ability to address concerns about gilled fish (fish stuck in the net) and to use different mesh sizes to attach excluders and chafing gear, or heard smaller fish through the net and out the codend. This will ultimately have a limited positive impact for vessel operators. NMFS and the Council will make every effort to continue the successful management of the Trawl Rationalization Program.

Comment 5: Allowing vessels to use multiple types of groundfish trawl gear on the same trip will threaten the quality of stock assessments.

Response: There is a potential to impact stock assessments by allowing vessels to use multiple types of groundfish trawl gear to be fished on the same trip, and allowing vessels to fish in multiple IFQ management areas on the same trip and haul. However, NMFS is implementing mitigation measures, such as sorting and haul tabulation requirements, to ensure that the impacts to stock assessments will be low. The Council and its advisory bodies, including the Groundfish Management Team, the Groundfish Advisory Subpanel, and the Scientific and Statistical Committee (SSC), had extensive discussion on the potential issues that could arise from revising these regulations. The SSC spoke specifically to the risk that co-mingling of total catch could result in greater uncertainty in data used in stock assessments because gear-specific and area-specific catch, as well as effort per trip would be unknown, and species-specific selectivity varies among gear types. However, the SSC reported that the sorting requirements (catch must be separate by gear type) and the haul tabulation requirements (number of hauls by area must be recorded) could alleviate the potential impacts on data for stock assessments. Additionally, recording the number of hauls should allow for an accurate assessment of catch location.

Comment 6: The proposed rule appears to state that the purpose of removing the prohibition on the use of chafing gear is to extend the life of nets and ultimately reduce operational costs. This purpose is distinct from the purpose stated in the summary of the proposed rule, namely increasing flexibility while still limiting the catch of target and non-target species.

Response: The intent of the entire package of proposed measures is to increase flexibility while still limiting the catch of target and non-target species. As stated in the proposed rule, removing the restrictions on chafing gear will increase flexibility in how vessel operators attach their chafing gear to both protect the net and increase fishing efficiency. When implemented in the mid-1990s, the original restrictions on chafing gear were introduced to ensure that chafing gear was not used to effectively reduce the mesh size of the net. When discussing the elimination of the restrictions on net configurations, the Council considered the flexibility vessel operators would have through elimination of the minimum mesh size requirements, and how that flexibility would be limited if restrictions on codends and chafing gear were not also revised. In developing these measures on net configuration, vessel operators sought the flexibility to configure their nets strategically with different mesh sizes and chafing gear panels to optimize fishing operations by reducing operational costs (i.e., reduction in net replacement costs) and increasing fishing efficiency (i.e., herding of smaller fish). As described in the proposed rule and elsewhere in this preamble, the provisions of the Trawl Rationalization Program will continue to limit catch of target and non-target species.

Comment 7: A full environmental impact statement (EIS) is necessary to consider alternative approaches and designs that could serve the needs of NMFS while protecting marine life.

Response: NMFS originally published a notice of intent (NOI) to prepare an EIS in the Federal Register on March 3, 2016 (81 FR 11189), in accordance with the National Environmental Policy Act (NEPA) to analyze the impacts on the human environment resulting from changes to gear requirements for groundfish bottom trawl and midwater trawl gear in the Trawl Rationalization Program. NMFS accepted public comments on the NOI from March 3, 2016, to April 4, 2016.

Upon completion of the analysis for the action, NMFS determined that the impacts associated with implementing the action would not be significant and, therefore, there would be no need to complete an EIS. Instead, NMFS completed an EA for the proposed action, in compliance with NEPA. NMFS withdrew the NOI to prepare an EIS on June 8, 2018 (83 FR 22640).

The proposed rule for this action contained all the measures that the Pacific Fishery Management Council recommended, including a measure that would eliminate the requirement to use selective flatfish trawl gear north of 40°10′ N lat. and shoreward of the trawl RCA, and replace it with a small footrope trawl gear requirement. The proposed rule also highlighted NMFS' concerns that the removal of the requirement to use selective flatfish trawl gear shoreward of the trawl RCA between 40°10′ N lat. and 42° N lat. may be inconsistent with the terms and conditions of the 2017 Salmon Biological Opinion.

After consideration of public comment we preliminarily determined that, in order to maintain consistency with the 2017 Salmon Biological Opinion, it was only appropriate to remove the selective flatfish trawl requirement north of 42° N lat. This final rule would implement a revised version of the regulation put forward in the proposed rule, and would maintain the selective flatfish trawl requirement between 40°10′ N lat. and 42° N lat. Vessels fishing in the area between 40°10′ N lat. and 42° N lat. would be required to use selective flatfish trawl gear in a two- or four-seam net. North of 42° N lat., vessels would be allowed to fish with any type of small footrope trawl gear, including selective flatfish trawl gear.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this action is consistent with the Pacific Coast Groundfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

The Office of Management and Budget has determined that this final rule is not significant for purposes of Executive Order 12866.

This final rule does not contain policies with Federalism or “takings” implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

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

This action contains a change to an information collection requirement, which has been approved by the Office of Management and Budget (OMB) under OMB Control Number 0648-0573: Expanded Vessel Monitoring System Requirement for the Pacific Groundfish Fishery. The regulatory change, which was described in section IV of this final rule, would allow vessel operators who fish in the Shorebased IFQ Program to make a new declaration from sea when a new gear fished on a trip. This revision removes the requirement that vessels return to port to make a new declaration. The numbers of declaration reports the vessel operator is required to submit to NMFS would not change under this request. Therefore, no small entity would be subject to additional reporting requirements.

Pursuant to Executive Order 13175, this final rule was developed after meaningful collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction.

NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective January 1, 2019. Each of these revisions to groundfish regulations in this rule would remove restrictions that are no longer necessary due to implementation of the Trawl Rationalization Program, create more efficient and safe harvesting practices, and allow vessel operators to better attain species that are currently under attained without causing any additional impacts on the fishery. NMFS was unable to finalize these regulations sooner because of the need to include data in the analysis for this action from the 2018 trawl gear exempted fishing permit which was not available until May 2018.

Delaying the implementation of these revisions would reduce the benefits that they would provide to the industry and could cause confusion for vessel operators. For example, trawl vessels average between 10 and 20 days spent annually traveling back and forth to port to change gear types. Reducing restrictions on how they operate their vessels, including carrying multiple types of trawl gear onboard, vessel operators may be able to substantially reduce or eliminate the number of days spent traveling back and forth to port to change gears, resulting in financial savings and increased safety. Delays in implementing these revisions would reduce those financial savings and require vessels to continue more dangerous fishing practices. The revisions to regulations described in the preamble of this document affect commercial fisheries in Washington, Oregon and California. These revisions have been requested by members of industry, and were recommended to NMFS by the Council. No aspect of this action is controversial.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows: