Summary of Grant of Exemption

Docket No.: FAA-2012-0429.

Petitioner: Airbus Operations GmbH.

Sections of 14 CFR Affected: Part 121.

On August 28, 2012, the FAA granted an exemption in the matter of the petition of Airbus Operations GmbH. The exemption from 14 CFR 121.344(f) and Appendix M is granted to the extent necessary to allow the operators of the Airbus model 318, 319, 320 and 321 airplanes listed in Exemption No. 10611 to temporarily operate these airplanes without complying with the digital flight data recorder sampling rate requirement, subject to the conditions and limitations listed in the exemption. Among other conditions and limitations, each operator of an affected airplane must, within 90 days of issuance of the exemption (August 28, 2012), submit a letter to its principal inspector that, among other things, includes a request to use Exemption No. 10611.

Background

On May 24, 2012, the FAA published a technical amendment to a final rule. The technical amendment is entitled “Aging Airplane Program: Widespread Fatigue Damage” (77 FR 30877), which corrected a final rule published November 15, 2010 (75 FR 69746).

In that technical amendment, the FAA intended to correct compliance dates of §§ 26.21, 121.1115, and 129.115 for Airbus A310 and A300-600 series airplanes. Upon publication, however, the technical amendment contained inadvertent errors due to pagination in two of the tables.

Accordingly, FAA amends 14 CFR parts 121 and 129 by making the following technical amendments:

The Commercial Space Launch Act of 1984, as amended and re-codified at 51 United States Code (U.S.C.) Subtitle V—Commercial Space Transportation, ch.509, Commercial Space Launch Activities, 51 U.S.C. 50901-50923 (the Act), authorizes the Department of Transportation (DOT) and thus the FAA, through delegations, to oversee, license, and regulate commercial launch and reentry activities, and the operation of launch and reentry sites as carried out by U.S. citizens or within the United States. 51 U.S.C. 50904, 50905. Authority for this particular rulemaking is derived from 51 U.S.C. 50905, which requires that the FAA issue a license to operate a launch site consistent with public health and safety. See also 49 U.S.C. 322(a), 51 U.S.C. 50901(a)(7). Section 50901(a)(7) directs the FAA to regulate only to the extent necessary to, in relevant part, protect the public health and safety and safety of property.

This final rule amends part 420 of Title 14 of the Code of Federal Regulations (14 CFR) Chapter III, updating the FAA's requirements for how to site explosives under a license to operate a launch site. 1 Part 420 establishes criteria for siting facilities at a launch site where solid propellants, energetic liquids, or other explosives are located to prepare launch vehicles and payloads for flight. These criteria are commonly referred to as quantity-distance (Q-D) requirements because they provide minimum separation distances between explosive hazard facilities, surrounding facilities and locations where the public may be present on the basis of the type and quantity of solid propellants, energetic liquids, and other explosives located within the area. Minimum separation distances are necessary to protect the public from explosive hazards.

The FAA is making a number of changes consistent with the goals of Executive Order 13610, Identifying and Reducing Regulatory Burdens, 77 FR 28469 (May 14, 2012). First, the FAA is dispensing with its separation distance requirements at launch sites for storing liquid oxygen, nitrogen tetroxide, hydrogen peroxide in concentrations equal to or below 91 percent, and refined petroleum-1 (RP-1). If these energetic liquids are not within an intraline distance of an incompatible energetic liquid or co-located on a launch vehicle, the FAA is no longer imposing public area separation distances because the current separation requirements for storing these energetic liquids unnecessarily duplicate the requirements of the Occupational Safety and Health Administration. Second, the FAA is decreasing the separation distances required for division 1.1 explosives and liquid propellants with trinitrotoluene (TNT) equivalents of less than or equal to 450 pounds. Although decreased, the revised separation requirements will continue to protect against hazardous fragments, which are defined as having a kinetic energy of 58 foot-pounds, which is a level of kinetic energy capable of causing a fatality. The probability of a person six feet tall and one foot wide being struck by a hazardous fragment at a given separation from a given net explosive weight (NEW) is one percent, which is an equivalent level of safety to today's separation distances. Third, the FAA is reducing the separation distances for the storage and handling of division 1.3 explosives, while maintaining a level of safety equivalent to current requirements. Fourth, the FAA is eliminating its own separation distance requirements for storing liquid oxidizers and Class I, II and III flammable and combustible liquids because they duplicate the requirements of other regulatory regimes. Consistent with the current Department of Defense (DOD) Explosive Siting Board's (DDESB) and National Fire Protection Association (NFPA) practice, the FAA is dispensing with the hazard groups of tables E-3 through E-6 of appendix E of part 420 as a means of classification. This revision will conform the FAA's classification to the NFPA classification system, which is more commonly used to reflect chemical hazards of energetic liquids used at commercial launch sites. Finally, a site map must now be at a sufficient scale to determine compliance with part 420.

In 2000, the FAA issued rules governing the storage and handling of explosives as part of its regulations governing the licensing and operation of a launch site. Licensing and Safety Requirements for Operation of a Launch Site; Final Rule, 65 FR 62812 (Oct. 19, 2000) (Launch Site Rule). The FAA has requirements for obtaining a license to operate a launch site in part 420. Part of the application for a license requires an applicant to provide the FAA with an explosive site plan that complies with the explosive siting requirements of part 420. The plan must show how a launch site operator will separate explosive hazard facilities from the public. It must identify the location of the explosives and how the public is safeguarded. The explosive siting requirements of part 420 mandate how far apart a launch site operator should site its explosive hazard facilities based on the quantities of energetic materials housed in each facility. Distances vary based on the quantities at issue, whether the energetic materials at a given facility are being handled or stored, and whether or not the distance being calculated is a distance to a public area or public traffic route.

Since the original rulemaking, the FAA's experience with the requirements has led it to the current changes. At the time it promulgated the original requirements, the FAA anticipated that any new launch sites would have similar siting issues as launch sites devoted to expendable launch vehicles, and, therefore, relied on the siting requirements of the DDESB DOD Ammunition and Explosive Safety Standard, 6055.9-STD (1997) (1997 DOD Standard). 2 Instead, for the most part, the FAA has issued a number of licenses for the operation of launch sites at existing airports, such as Mojave Air and Space Port in California. At these airports, the presence of jet fuels regulated under existing FAA space transportation requirements created conditions requiring the FAA to reconcile and clarify its separation requirements for launch vehicle liquid propellant requirements with the presence of other industrial chemicals, such as aircraft fuels. Based on experience with these launch sites and on research on other regimes that address explosive materials, the FAA amends its own requirements as described above.

The comment period for the NPRM closed on May 17, 2011. The FAA received comments from XCOR Aerospace (XCOR). XCOR's comments support the FAA's acceptance of a separation distance different from the one required by §§ 420.63 through 420.69 if an operator demonstrates an equivalent level of safety. XCOR also supports the FAA's proposal to abandon storage requirements for the types of liquid fuels and oxidizers that are already regulated by OSHA. The FAA also received a number of opposing comments from XCOR. They are discussed below and address the FAA's jurisdiction over explosive hazards, the nature of explosive hazards and whether energetic liquids are all explosives, the interplay between the definition of liquid propellants and aviation fuels, the appropriate license for dealing with explosive hazards and, lastly, stoichiometric ratios, the theoretical ratio of fuel and oxidizer at which the fuel is burned completely.

As an initial matter, the FAA must address XCOR's objection to the FAA's jurisdiction over treating a location where static engine firing takes place as an explosive hazard facility. XCOR at 12. 3 Congress charged the FAA with licensing and regulating the operation of launch sites as well as launches. 51 U.S.C. 50904. Explosive hazards are present at launch sites and may threaten members of the public who are also present at the site, as well as persons outside of the launch site. Because static firing of an engine involves the handling of energetic liquids or explosives and all the hazards associated with their mixing, the FAA finds it necessary to require separation distances between the location and the public. At commercial launch sites, locations where static firing occurs are considered explosive hazard facilities under § 420.5.

As it proposed in the NPRM, the FAA is adopting and defining the term “energetic liquids” to mean a liquid, slurry, or gel, consisting of, or containing an explosive, oxidizer, fuel, or combination of the above, that may undergo, contribute to, or cause rapid exothermic decomposition. XCOR opposes the FAA's proposed definition of “energetic liquids” on the grounds that there is no need for the FAA to regulate fuels and oxidizers, as explosives, because, according to XCOR, energetic liquids are not explosives. XCOR at 6.

In 2000, the FAA found it necessary to regulate both explosives and liquid propellants, but did not define the latter. The FAA's use of both terms apparently created the erroneous impression that the FAA only regulated materials that do not require mixing to explode, notwithstanding the FAA's inclusion of liquid propellants in its part 420 requirements. As should be evident from the FAA's requirements for materials other than division 1.1 explosives, the FAA has not so limited itself. “Explosive” is a broad term, and the FAA is using it throughout part 420 as such. Because of past confusion, the FAA is now defining “energetic liquids” to encompass liquid fuels, oxidizers, and liquid propellants.

XCOR believes that if a fuel and oxidizer are not mixed, the FAA's separation requirements for energetic liquids are not necessary. The FAA's requirements, however, are designed to mitigate harm caused by inadvertent mixing. Energetic liquids such as fuels and oxidizers may, when mixed, produce the reactions of and share characteristics with materials that are explosives in the truest technical sense. Explosions are due to the sudden release of energy over a short period of time and may or may not involve chemical reactions. 4 Three basic characteristics of an explosion are: a sudden energy release, a rapidly moving blast or shock wave, and a blast of a magnitude large enough to be potentially hazardous. Additionally, explosions may be purely a physical event involving a sudden release of mechanical energy, or a chemical explosion requiring a chemical reaction. Furthermore, an accident may happen without mixing. For example, liquid oxygen is an oxidizer and is usually stored in its liquid state at a very low temperature. Because liquid oxygen has a very large liquid-to-gas-expansion ratio, 1 to 860 at 68° F, it can undergo an explosion known as a boiling liquid expanding vapor explosion, commonly referred to as a BLEVE. The FAA recognizes that no one intends inadvertent mixing, but because it can happen and because not all accidents are the result of mixing, separation distances are necessary for energetic liquids.

As proposed, the FAA now defines “liquid propellant” to mean a monopropellant or incompatible energetic liquids co-located for purposes of serving as propellants on a launch vehicle or a related device. In response to XCOR's comment that unmixed fuels and oxidizers do not explode, the FAA is clarifying that the co-location of incompatible energetic liquids makes something a liquid propellant only where the incompatible energetic liquids are housed in tanks connected by piping for purposes of mixing. The stored energy present when incompatible energetic liquids are connected by piping poses a hazard requiring separation distances because, under feasible conditions, the system may fail and cause fire, blast, and flying fragment hazards. It is because of these hazards that organizations such as the NFPA require a minimum separation distance of 20 feet between a liquid fuel and an oxidizer. Obviously, for launch, this is not possible, but the NFPA requirement underscores the importance of separating a fueled launch vehicle from the public. For most liquid fueled launch vehicles, incompatible energetic liquids such as fuels and oxidizers are housed in separate tanks on the vehicle. Pipes lead from each tank to a combustion chamber where combustion takes place to generate thrust. The presence of the piping is designed to ensure mixing in the combustion chamber in order to achieve propulsion. Accordingly, the FAA is revising its definition of liquid propellants from what it proposed to the following: A monopropellant or an incompatible energetic liquid co-located for purposes of serving as propellants on a launch vehicle or a related device where the incompatible energetic liquids are housed in tanks connected by piping for purposes of mixing. This new reference to “connecting piping” should alleviate concerns that the FAA intends the definition of liquid propellants to apply to aircraft or tanker trucks. See XCOR at 6, 7.

XCOR claims that because a launch license will govern incompatible energetic liquids co-located on a launch vehicle, these issues should not be addressed through a site license. XCOR at 3, 8. The FAA does not dispute that the launch license will govern launch. That being said, the launch operator will also have to operate with separation distances in effect. This means the site operator's advance planning attendant to explosive siting will not go to waste. For example, § 417.411, which applies to launch operators, requires safety clear zones that would keep the hazards associated with a launch operator's vehicle from the public during launch processing. 5 Accordingly, a site operator must be able to provide appropriately sited facilities that permit a launch operator to comply with its requirements. 6 Similarly, XCOR maintains that, in the context of the definition of liquid propellants, energetic liquids are better addressed in the launch license where an appropriate hazard assessment will be conducted. The FAA agrees, but there still needs to be enough room to encompass the results of that assessment. For example, if a launch operator performs its hazard assessment and it, or the FAA, determines that it needs a great deal of room to encompass its hazards, the launch site operator's preliminary explosive siting should already have made sure that the necessary separation distances are in place at the launch site. Different launch vehicles may have different levels of quality, safety, and reliability, depending on the maturity of the technology and the organization, which means that the site operator's separation distances must account for a worst-case launch vehicle.

XCOR suggests the FAA take into account launch vehicle design and construction when determining separation distances at a launch site where the launch vehicles may vary in reliability. XCOR at 3, 8. XCOR brings to light an issue that requires clarification. Part 420 addresses a different issue than a launch operator's safety clear zone. Under parts 417 and 437, a launch operator must establish a safety clear zone during pre- and post-flight operations. Part 420 requires there be room for such safety clear zones in the first place. Otherwise, when constructing or establishing a launch site, a site operator may fail to plan for the safety needs and regulatory requirements of its customers. The philosophy underlying the necessity for separation distance requirements is that there must be room for hazardous operations, even those covered by other licenses. Accordingly, the separation distances for the site operator must account for vehicles of varying quality and reliability.

The FAA is amending its definition of “explosive hazard facility” to clarify that it includes locations and facilities at a launch site where solid propellants, liquid propellants or other explosives are stored or handled. XCOR objected to the proposed definition of an “explosive hazard facility” because it includes facilities containing energetic liquids, including liquid oxygen. XCOR at 4. XCOR maintains this conflicts with the FAA proposal that it would no longer require separation distances around liquid oxygen. Although the FAA will no longer require separation distances for many energetic liquids, a site operator must still, in its explosive site plan, identify all explosive hazard facilities where all energetic liquids will be located. The FAA has been regulating liquid oxygen as part of an explosive hazard facility since 2000, characterizing liquid oxygen as a liquid propellant, and will continue to do so under the new rule, while characterizing it as an energetic liquid. However, because the FAA has been attempting to reduce duplicative requirements, the FAA will rely on OSHA's regulations. Therefore, while the FAA will no longer require separation distances around liquid oxygen, OSHA will continue to do so, and for the FAA to fail to recognize that liquid oxygen is an energetic liquid would only create confusion. As discussed in the NPRM, OSHA's requirements are extensive and serve to protect the safety of the public as an ancillary benefit to OSHA's protection of worker safety.

Lastly, XCOR comments that the net explosive weight (NEW) of liquid propellant should not be based on the total quantity of liquid fuel and oxidizer available on a launch vehicle, but only on the portion where the liquid fuel and oxidizer are at a stoichiometric ratio. XCOR at 10. For example, XCOR postulated a horizontal vehicle dumping unused oxidizer so that it returns to the runway with only 100 pounds of liquid oxygen and 1000 pounds of kerosene aboard. XCOR maintains that part 420 would require it to treat the amount of kerosene in excess of that which would react explosively as, in fact, exploding. Therefore, any excess should be ignored. XCOR's comments relate to existing requirements that the FAA did not propose to change. Therefore, its comments are outside the scope of this rulemaking. Additionally, part 420 addresses a site operator's location of its facilities, and XCOR raises an operational issue addressed not through a launch site operator license, but through a launch license. The FAA would assess NEW for scenarios hypothesized by XCOR under a launch license or permit.

This final rule is adopted for the reasons discussed in the NPRM, but with minor changes from what the FAA proposed. The FAA is defining “explosive hazard facility” to mean a facility or location at a launch site where solid propellants, energetic liquids, or other explosives are stored or handled. In the NPRM, the FAA proposed to define this facility as one where, in relevant part, solid explosives were stored or handled. However, this would have created redundancies with the references to “solid explosives” and “other explosives” being references to the same thing; the FAA is accordingly keeping the original reference to solid propellants.

The FAA requires a launch site operator to submit a scaled map that shows the location of all explosive hazard facilities at the launch site, the actual and minimal allowable distances between each explosive hazard facility and all other explosive hazard facilities, each public traffic route, and each public area, including the launch site boundary. The NPRM incorrectly identified the public traffic route as a public area. This is relevant for division 1.1 explosives because the separation distances between an explosive hazard facility and a public traffic route are less than those between an explosive hazard facility and a public area. Likewise, § 420.63(d), which permits a site operator to demonstrate an equivalent level of safety now clarifies that this form of relief applies to separation distances to public traffic routes as well as to public areas. See also § 420.67(a) (separating incompatible energetic liquids from public traffic routes); § 420.69 (separating division 1.1 and 1.3 explosives co-located with liquid propellants from public traffic routes).

The FAA is clarifying its requirement that a launch site operator must separate each explosive hazard facility where the NEW is greater than 450 pounds and less than 501,500 pounds from each public area containing any member of the public in the open by a distance equal to −1133.9 + [389 *ln(NEW)]. 7 Accordingly, the final rule contains this requirement not only in section 420.65(c)(3), where it appeared in the NPRM, but also in sections 420.67(d)(3) and 420.69(b)(4), (c) and (d)(5), where it was inadvertently omitted. The FAA discussed the reasons for this provision in its original discussion. NPRM at 8928.

The final rule, § 420.65(c)(3), which governs the handling of division 1.1 and 1.3 explosives, now requires each public area containing any member of the public in the open to be separated from an explosive hazard facility by a distance equal to −1133.9 + [389 *ln(NEW)] where the NEW is greater than 450 pounds and less than 501,500 pounds. The NPRM incorrectly  8 identified the range of NEW as less than 600,000 pounds, rather than 501,500 pounds. Above 501,500 pounds the NEW formulas for blast and fragments show that blast hazards, rather than fragment hazards, determine the separation distance. This means that an operator must use a blast formula rather than a fragment formula for quantities above 501,500 pounds. Table E-2 contains the formulas.

In the NPRM, the FAA stated, in proposed footnote 3 of Table E-3 that a net explosive weight of greater than 500,000 pounds was not allowed for division 1.1 explosives because it was implied in the 2004 DOD Standard. Further investigation has disclosed, however, that the FAA misread the DDESB limitation. The FAA now understands that the limitation meant only that the table's intraline distances could not be used for division 1.1 explosives.

In the interest of greater clarity, the FAA is modifying § 420.65(d)(2), from what it proposed in the NPRM to clarify that when a site operator has quantities of explosives that fall between table entries, the site operator may use a formula provided by the tables to find a separation distance different than the one listed for the specified quantity. For example, if a site operator has 17 pounds of division 1.1 explosives, table E-1 would require a separation distance for a public area of either 506 or 529 feet. However, the site operator may calculate a distance using footnote 1 that falls between these two distances. The FAA's change clarifies that the site operator must use the equation from the same table as the distance the site operator seeks to determine. In other words, the site operator may not use an equation from table 2 to calculate a distance for table 1. Similarly, for paragraph (e)(3), a site operator with existing structures who wants to calculate the maximum quantity of explosives permitted in those structures may not use an equation from another table to calculate for a quantity being calculated.

Section 420.69 now clarifies that a launch site operator may, when determining separation distances for co-location of division 1.1 and 1.3 explosives with liquid propellants, employ a maximum credible event (MCE) assessment under paragraph (e) rather than using the separation distances prescribed by paragraphs (b), (c) and (d). The NPRM incorrectly described the MCE assessment as a requirement rather than an option. An MCE assessment is one way of demonstrating an equivalent level of safety.

Finally, in table E-7 of Appendix E of part 420, the FAA inadvertently transcribed a footnote from the DDESB requirements that the FAA had not intended to propose. Specifically, footnote 3 of table E-7 in the NPRM, would have required sprinklers for Class 4 oxidizers inside a building. This final rule does not incorporate that requirement.

Changes to Federal regulations must undergo several analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows:

In this final rule, the FAA is amending its explosive siting separation requirements. First, the FAA will dispense with separation distances for liquid oxygen, nitrogen tetroxide, and hydrogen peroxide in concentrations equal to or below 91 percent, if not stored within an intraline distance of another incompatible energetic liquid, and if not co-located on a launch vehicle. These are unnecessary because they duplicate the requirements of other regulatory regimes. Second, the FAA is decreasing required separation distances for division 1.1 explosives and liquid propellants with TNT equivalents that are less than or equal to 450 pounds, while maintaining a level of safety equivalent to current requirements. Third, the FAA is reducing separation distances for the storage and handling of division 1.3 explosives, while maintaining an equivalent level of safety to current requirements. Fourth, the FAA is dispensing with the separation distance requirements for storing liquid oxidizers and Class I, II and III flammable and combustible liquids because they duplicate the requirements of other regulatory regimes. The outcome of these changes is expected to be cost relieving. These amendments will allow the launch operator increased flexibility in site planning for the storage and handling of explosives. By encouraging existing launch sites to more effectively use their infrastructure, which could result in the additional co-location of launch sites with existing airports, the rule provides benefits (such as encouraging the development of more launch sites) and is cost relieving. By removing duplications, the amendments make the regulations less burdensome. There may be additional cost savings if the FAA issues fewer waivers as a result of this rule.

Under current part 420, the FAA does not distinguish between public areas that are buildings, where people are sheltered, and those where people are out in the open. This final rule will result in greater distances for some public areas than are required under current rules, but should not result in increased distances for siting buildings. The operational constraints themselves should not increase costs because a launch site operator currently must ensure under § 420.55 that its customers schedule their hazardous operations so as not to harm members of the public. A site operator may incur minimal costs in performing these new calculations and updating its procedures to reflect any changes in distances.

Other provisions will add clarity to the regulations and result in reduced ambiguity and confusion. Included are: dispensing with the hazard groups of tables E-3 through E-6 of appendix E of part 420 as a means of classification; changing the definition of explosive hazard facility, and adding definitions for energetic liquid, liquid propellant and maximum credible event. These provisions are cost neutral. The requirement that the explosive site map be at a scale sufficient to determine compliance with part 420 can be cost relieving because it can avoid time spent reviewing maps that are difficult to read or requesting that an applicant create and submit another map.

The FAA has, therefore, determined this final rule provides cost saving opportunities, is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The final rule will not increase and will likely reduce costs to industry because it provides options to launch sites with regards to explosive siting. It does not require launch site operators to increase the distances between where they have sited explosives and buildings. We did not receive comments regarding the initial regulatory flexibility analysis.

Therefore, as the acting FAA Administrator, I certify that this rule will not have a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will have only a domestic impact.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The map requirement is not an increased burden in collecting information because the FAA already required a map. The FAA has determined that there is no new requirement for information collection associated with this final rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 310f and involves no extraordinary circumstances.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

An electronic copy of a rulemaking document my be obtained by using the Internet—

1. Search the Federal eRulemaking Portal ( http://www.regulations.gov );

2. Visit the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/or

3. Access the Government Printing Office's Web page at http://www.gpo.gov/fdsys/.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.

Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the Internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the Federal Aviation Administration amends Chapter III of Title 14, Code of Federal Regulations as follows:

The Coast Guard is providing notice of enforcement of the Special Local Regulation for Hydroplane Races within the Captain of the Port Puget Sound Area of Responsibility 33 CFR 100.1308. The Lake Sammamish area, 33 CFR 100.1308(a)(3) will be enforced from 12 p.m. until 5 p.m. from September 28, 2012 through September 30, 2012. These regulations can be found in the March 29, 2011 issue of the Federal Register (76 FR 17341).

Under the provisions of 33 CFR 100.1308, the regulated area shall be closed for the duration of the event to all vessel traffic not participating in the event unless authorized by the event sponsor or Coast Guard Patrol Commander.

When this special local regulation is enforced, non-participant vessels are prohibited from entering the designated race areas unless authorized by the designated on-scene Patrol Commander. Spectator craft may remain in designated spectator areas but must follow the directions of the designated on-scene Patrol Commander. The event sponsor may also function as the designated on-scene Patrol Commander. Spectator craft entering, exiting or moving within the spectator area must operate at speeds which will create a minimum wake.

Emergency Signaling: A succession of sharp, short signals by whistle or horn from vessels patrolling the areas under the discretion of the designated on-scene Patrol Commander shall serve as a signal to stop. Vessels signaled shall stop and shall comply with the orders of the patrol vessel. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.

This notice is issued under authority of 33 CFR 100.1308 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners. If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, he may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

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.” 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 doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with an acrobatic event involving human-powered craft, which are discussed further below.

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 . For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable and contrary to the public interest.

Between 11:00 a.m. until 5:00 p.m. on September 8, 2012 Red Bull North America will sponsor their Red Bull Flugtag event on the waters of Lake Michigan near North Avenue Beach, Chicago, IL. The Captain of the Port, Sector Lake Michigan, has determined that the Red Bull Flugtag event, which will involve personally-crafted flying machines with human occupants falling from a raised platform into Lake Michigan, will pose a significant risk to public safety and property. Such hazards include drifting debris, collisions between spectators, falling water craft and their human occupants, and the obscuring of persons in need of rescue by spectator water craft.

A temporary safety zone is necessary to ensure safety of life prior to, during, and after the Red Bull Flugtag event. With the aforementioned hazards in mind, the Captain of the Port, Sector Lake Michigan, has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the Red Bull Flugtag event. This zone will be effective and enforced from 11 a.m. to 5 p.m. (local) on September 8, 2012. The safety zone will encompass all waters of Lake Michigan, in the vicinity of North Avenue Beach, Chicago, IL, beginning at 41°54′37″ N, 087°37′33″ W; then north east to 41°54′53″ N, 087°37′12″ W; then south east to 41°54′49″ N, 087°37′08″; W; then south west to 41°54′34″ N, 087°37′29″ W; then back to the point of origin (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The 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 will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Lake Michigan, Chicago, IL on September 8, 2012.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone would be activated, and thus subject to enforcement, for only six hours on September 8, 2012. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the activation of the zone, we would issue local 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 above.

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

This rule 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 determined that this rule does not have implications for federalism.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (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 the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

On July 10, 2012, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Safety Zone; ESI Ironman 70.3 Augusta Triathlon, Savannah River, Augusta, GA in the Federal Register (77 FR 40544). The Coast Guard received no comments on the proposed rule. No public meeting was requested, and none was held.

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 . This event will occur before 30 days have elapsed after the publication of the rule in the Federal Register . Insufficient time was available to provide both a period for meaningful comment and also a 30 day period after publication for the effective date of this temporary final rule.

(a) The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

(b) The purpose of the rule is to ensure the safety of the swimmers, participant vessels, spectators, and the general public during the ESI Ironman 70.3 Augusta Triathlon.

The Coast Guard did not receive any comments to the proposed rule, and no changes were made to the regulatory text.

On Sunday, September 30, 2012, the ESI Ironman 70.3 Augusta Triathlon is scheduled to take place in Augusta, Georgia. This event includes a 1.1 mile swim that will take place on the waters of the Savannah River. The swim starts at the 6th Street Railroad Bridge and finishes at Mile Post 198.

The temporary safety zone will encompass certain waters of the Savannah River in Augusta, Georgia. The temporary safety zone will be enforced from 7 a.m. until 11:59 a.m. on September 30, 2012. Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port Savannah or a designated representative.

Persons and vessels desiring to enter, transit through, anchor in, or remain within the safety zone may contact the Captain of the Port Savannah by telephone at 912-652-4353, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the Captain of the Port Savannah or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Savannah or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The economic impact of this rule is not significant for the following reasons: (1) The safety zone will only be enforced for only five hours; (2) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Savannah or a designated representative, they may operate in the surrounding area during the enforcement period; (3) persons and vessels may still enter, transit through, anchor in, or remain within the safety zone if authorized by the Captain of the Port Savannah or a designated representative; and (4) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

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

(1) This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of the Savannah River encompassed within the safety zone from 7 a.m. until 11:59 a.m. on September 30, 2012.

(2) For the reasons discussed in the Executive Order 12866 and Executive Order 13563 section above, this rule will not have a significant economic impact on a substantial number of small entities.

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 , above.

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

This rule 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 determined that this rule does not have implications for federalism.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (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 the establishment of a temporary safety zone on the waters of the Savannah River that will be enforced for a total of five hours. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

The Coast Guard will enforce the safety zone established for Annual Fireworks Displays within the Captain of the Port, Puget Sound Area of Responsibility in 33 CFR 165.1332 during the dates and times noted below.

The following safety zone will be enforced from 5 p.m. on September 8, 2012 through 1 a.m. on September 9, 2012:

1. Potentially Affected Persons

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

The Corps historically used the general area offshore of Yaquina Bay for dredged material disposal. In 1977, an Interim ODMD site offshore of Yaquina Bay received an EPA interim designation and was used by the Corps for dredged material disposal after 1977 and prior to 1986 (Figure 1). Because of increased mounding in the Interim Site and its potential adverse effect on navigation safety, the Corps selected an alternate ODMD site, the “Adjusted Site,” under the authority of Section 103 of the MPRSA, with the EPA's concurrence. The Corps began to use this “Adjusted Site” in 1986. By 1990, dredged material had accumulated in the Adjusted Site to an extent that portions of the Site had to be avoided, and careful placement of material was necessary on specific portions of the Adjusted Site. In 2000, the Corps ceased disposal of material at the Adjusted Site. In 2001, the Corps and the EPA completed a study examination of possible new locations for ocean disposal further offshore from the entrance to Yaquina Bay. The recommended locations from that study are the Yaquina North and South Sites designated in this action.

In October 2000, these disposal sites were authorized for use by the Corps, following the EPA's concurrence, under Section 103 of the MPRSA as selected sites. To provide for sufficient disposal capacity over the long term, on April 5, 2012, the EPA proposed to designate both a Yaquina North Site and a Yaquina South Site under Section 102 of the MPRSA, for the ocean disposal of dredged material offshore of Yaquina Bay. These proposed sites were designed to use the footprints of the Section 103 selected sites. The Yaquina North Site, which had been unavailable once authorization for use under Section 103 of the MPRSA expired at the end of the 2011 dredge season, will be available for use as a designated site upon the effective date of this final action. The Yaquina South Site, which was used for disposal of dredged material for the first time during the 2012 dredging and disposal season since its selection under Section 103 in 2001, will also be available for use as a designated site upon the effective date of this action.

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

This action finalizes the designation of two ocean dredged material sites to the north and south, respectively, offshore of Yaquina Bay. The location of the two ocean dredged material disposal sites (Yaquina North and South ODMD Sites, North and South Sites, or Sites) are bounded by the coordinates, listed below, and shown in Figure 1. The designation of these two Sites will allow the EPA to adaptively manage the Sites to maximize their capacity, minimize the potential for mounding and associated safety concerns, and minimize the potential for any long-term adverse effects to the marine environment.

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

The two Sites are located in approximately 112 to 152 feet of water, and are located to the north and south of the entrance to Yaquina Bay on the central Oregon Coast. The Yaquina North Site is located about 1.7 nautical miles northwest of the entrance to Yaquina Bay and the Yaquina South Site is located about 2.0 nautical miles southwest of the bay's entrance. Both ocean disposal sites are 6,500 feet long by 4,000 feet wide, each about 597 acres in size.

The EPA received several comments on the proposed site designation during the public comment period which closed on May 7, 2012. Two commenters, while finding the proposed site designation to be thorough and inclusive, questioned whether negative effects from the site designation could be adequately controlled. In response to the concern raised by these commenters, the EPA reviewed the Site Management and Monitoring Plan (SMMP) for the Sites to ensure that controls are in place both to prevent negative effects and to correct impacts from negative effects in the unlikely event such effects occurred. The final SMMP, found in the docket for this action, includes safeguards to act to prevent negative effects, primarily through ensuring that only material meeting ocean dumping criteria for ocean disposal are allowed to be disposed at the Sites, and through the implementation of adaptive management of the Sites. The EPA can respond to negative impacts, including, for example, having site users adjust disposal amounts, techniques, and timing, and the EPA can shut down the sites on a short term or long term basis if needed, if negative effects are observed or if trends suggest negative impacts could occur. The EPA has authority to condition, terminate or restrict site use with cause.

Another commenter suggested that dumping dredged material at the Sites would result in a large amount of pollution in concentrated areas. In response to this comment, the EPA reiterates that material allowed to be disposed of at the Sites is limited to dredged material deemed to be environmentally acceptable for ocean disposal. As discussed in the proposed designation, and further discussed below, dredged material proposed for disposal would be evaluated prior to disposal. Only dredged material without contaminant concentrations at harmful levels would be deemed suitable for ocean disposal.

This commenter also suggested that less dredging in the waterways would create less need for ocean disposal, while another commenter asked the EPA to consider alternate disposal sites and to facilitate additional discussions with local businesses and residents to discuss the impacts of the designation. The EPA appreciates these concerns. While the Corps, rather than the EPA determines the location and amount of dredging necessary to maintain the waterways of the U.S., the EPA determines, with the Corps' input, how best to dispose of material that must be disposed of in the ocean. Part of that analysis includes a balancing of community and ocean user needs. The EPA finds this site designation to be the best balance of those needs at this time. The EPA will continue to evaluate these local community concerns and will use the SMMP to make adjustments as needed to the extent practicable, to help ensure the needs of the users are balanced against the concerns of the local community.

A commenter raised a concern about the site designations on bar conditions across the Yaquina Bay bar during high swell conditions and asked whether any special analysis was warranted. The EPA and the Corps share the commenter's concern that negative effects on bar crossing safety are unacceptable. The SMMP for the designated North and South Sites is designed with safeguards to help prevent disposal at the Sites from causing or contributing to adverse swell conditions. A primary goal of site management is to avoid the creation of persistent mounds that could negatively impact the wave climate. SMMP safeguards include placement strategies and special management conditions and practices to be implemented, such as “uniform placement” of dredged material and annual bathymetric surveys, so as to minimize the potential for mounding that could create or contribute to adverse swell conditions across the sites. Alternating the use of the North and South Sites is an included condition to help ensure minimal impact to the wave climate. Safeguards also include quantity restrictions, and the EPA's annual review of the prior year's dumping and the EPA's review of dump plans for the upcoming year prepared by the Corps. The SMMP sets a threshold condition to require the Corps to re-evaluate disposal impacts on wave climate if bathymetric surveys show elevations at 14 feet above 2001 baseline elevations over more than 30% of the Site. If mounds above this threshold become widespread or persistent, the USACE and the EPA will conduct additional site assessment to determine if site use restrictions, including a change in disposal methodology, or cessation of use, are needed. If necessary, the EPA can direct users to conduct special studies to assess conditions and contributing factors. The EPA is convinced these safeguards combined with the EPA's authority to condition, terminate or restrict site use with cause, are sufficient to address this commenter's concern.

Finally, one commenter asked whether shorebirds in the area would be affected by the site designation. The EPA assessed the potential impact to shorebirds in the Environmental Assessment prepared for the site designation and as part of evaluating the site designation pursuant to the Endangered Species Act. As discussed in the Environmental Assessment and the Biological Assessment, shorebirds are not expected to be affected by the site designation. The U.S. Fish and Wildlife Service (USFWS) concurred with the EPA's finding that the site designation is not likely to adversely affect seabirds because of the presence of abundant suitable foraging habitat and the anticipated temporary nature of minor behavioral changes in flight or foraging during disposal activities at the designated sites. The USFWS concurrence letter is included in the docket for this action.

The Sites are expected to receive sediments dredged by the Corps to maintain the federally authorized navigation project at Yaquina Bay, Oregon and dredged material from other persons who have obtained a permit for the disposal of dredged material at the Sites. All persons using the Sites are required to follow the Site Management and Monitoring Plan (SMMP) for the Sites. The SMMP includes management and monitoring requirements to ensure that disposal activities will not unreasonably degrade or endanger human health, welfare, the marine environment, or economic potentialities. The SMMP for the Yaquina North and South Sites, in addition to the aforementioned, also addresses management of the Sites to ensure adverse mounding does not occur and to ensure that disposal events minimize interference with other uses of ocean waters in the vicinity of the proposed Sites. The SMMP, which was available for public comment as a draft document, has been finalized and the final document may be found in the Docket.

In designating these Sites, the EPA assessed the Sites according to the criteria of the MPRSA, with particular emphasis on the general and specific regulatory criteria of 40 CFR part 228, to determine whether the site designations satisfied those criteria. The EPA's Yaquina Bay, Oregon Ocean Dredged Material Disposal Sites Evaluation Study and Environmental Assessment, July 2012 (EA), provided an extensive evaluation of the criteria and other related factors for the designation of these Sites. The EA was available as a draft document for review and comment when the EPA proposed to designate the sites. The EA has been finalized and the final document may be found in the Docket.

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

The EPA reviewed the potential for the Sites to interfere with navigation, recreation, shellfisheries, aquatic resources, commercial fisheries, protected geologic features, and cultural and/or historically significant areas and found low potential for conflicts. The Sites spatially overlap with recreational activities such as boating and whale watching, recreational and commercial finfish or Dungeness crab fishing, tow lane agreements between tow boat operators and Dungeness crab fishermen, and recreational and commercial navigation. However, the Sites are unlikely to cause interference with these or other uses provided close communication and coordination is maintained among users, vessel traffic control and the U.S. Coast Guard. Recreational users are expected to focus their activities on areas that are shoreward of the Sites, such as Yaquina Reef. Commercial fishing, including that for salmon and Dungeness crab, is expected to occur at the Sites, but the EPA does not expect disposal operations at the Sites to conflict with this use because of the limited space and time during which disposal occurs. The SMMP outlines site management objectives, including minimizing interference with other uses of the ocean. Should a site use conflict be identified, site use could be modified according to the SMMP to minimize that conflict.

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

Based on the EPA's review of modeling, monitoring data, sediment quality, and history of use, no detectable contaminant concentrations or water quality effects, e.g., suspended solids, would be expected to reach any beach or shoreline from disposal activities at the Sites. The primary impact of disposal activities on water quality is expected to be temporary turbidity caused by the physical movement of sediment through the water column. All dredged material proposed for disposal will be evaluated according to the ocean dumping regulations at 40 CFR 227.13 and guidance developed by the EPA and the Corps. In general, dredged material which meets the criteria under 40 CFR 227.13(b) is deemed environmentally acceptable for ocean dumping without further testing. Dredged material which does not meet the criteria of 40 CFR 227.13(b) must be further tested as required by 40 CFR 227.13(c).

Disposal of suitable material meeting the regulatory criteria and deemed environmentally acceptable for ocean dumping will be allowed at the Sites. Most of the dredged material (approximately 95%) to be disposed at the Sites is expected to be sandy material, while a small amount of material (up to 5% of the material) would be classified as fine-grained. Hopper dredges, which are typically used for the Corps' annual navigation dredging, are not capable of removing debris from the dredge site. However, specific projects may utilize a clamshell dredge, in which case there is the potential for the occasional placement of naturally occurring debris at the disposal Sites.

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

To ensure that site managers can be responsive to the specifics of each dredging season based on dredge schedules, weather, and bathymetry at the Sites, the EPA has decided to designate both the North and South Sites. The footprints of the Sites are designed to maximize their capacity, helping to assure minimal mounding and to minimize any adverse affects to the wave climate. The presence of Yaquina Reef, close to shore at shallow depths, prevents nearshore designation and dredged material disposal in dispersive locations at depths less than 60 feet. The North Site will be the preferred placement area for disposal of dredged material as was the case when the Site was used as a Section 103 selected site. During some periods, disposal may be alternated between the two Sites. The use of the South Site is more dependent upon wind and wave conditions, particularly in April and May when the typical dredge season starts, and for this reason is expected to be used less frequently than the North Site. Effective monitoring of the Sites is necessary and required. The EPA will require annual bathymetric surveys for each Site to track site capacity and to assess the potential for mounding concerns. These surveys will inform the active management of the Sites.

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

Disposal areas located off of the continental shelf would be at least 20 nautical miles offshore. This distance is well beyond the 4.5 nautical mile haul distance determined to be feasible by the Corps for maintenance of their Yaquina Bay project. Additional disadvantages to off-shelf ocean disposal would be the unknown environmental impacts of disposal on deep-sea, stable, fine-grained benthic communities and the higher cost of monitoring sites in deeper waters and further offshore.

Historic disposal has occurred at or in the vicinity of these Sites receiving final designation. The substrate of the Sites is similar in grain size to the disposal material and the placement avoids the unique habitat features of Yaquina Reef.

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

The EPA does not anticipate that the geographical position of the Sites, including the depth, bottom topography and distance from the coastline, will unreasonably degrade the marine environment. To help avoid adverse mounding at the Sites, site management will generally include uniform placement, i.e., spreading disposal material throughout the Sites in a manner that will result in a relatively uniform accumulation of disposed material on the bottom over the long-term. Site management will include creating dump plans for each Site where disposal will occur. Dump plans establish cells within the Site to ensure uniform placement. In addition to minimizing mounding, the uniform placement is expected to minimize the thickness of disposal accumulations, which is expected to be less disruptive to benthic communities and aquatic species, such as crabs, that might be present at the Sites during disposal events. Because the Sites are relatively deep, to avoid the nearshore Yaquina Reef, they are not considered dispersive. Material placed in the Sites is not expected to move from the Sites except during large storm events.

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

The Sites are not located in exclusive breeding, spawning, nursery, feeding or passage areas for adult or juvenile phases of living resources. At and in the immediate vicinity of the Sites, a variety of pelagic and demersal fish species, including salmon, green sturgeon, and flatfish, as well as Dungeness crab, are found. Studies conducted by the EPA and the Corps at the Sites found the benthic infaunal and epifaunal community to be dominated by organisms that are adapted to a sandy environment. The benthic species, densities and diversities collected during these studies were typical of the nearshore sandy environment along the Oregon coast.

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

The Sites are approximately 2 nautical miles off the beach in water depths greater than 100 feet and beyond the ecologically and economically important Yaquina Reef. Given the depth of these Sites, the material is not expected to disperse from the Sites except during infrequent large storm events. Thus, impacts to beaches or the reef will be avoided. The sand removed from the Newport littoral cell is not expected to affect Newport's beaches because Pacific Northwest beaches tend to respond strongly to storm effects, the episodic nature of which would mask any long-term discrete changes such as disposal at these Sites. Site monitoring and adaptive management are components of the final SMMP to ensure beaches and other amenity areas are not adversely impacted.

(4) Types and Quantities of Wastes Proposed To Be Disposed of, and Proposed Methods of Release, Including Methods of Packing the Waste, if any (40 CFR 228.6(a)(4)).

Dredged material found suitable for ocean disposal pursuant to the regulatory criteria for dredged material, or characterized by chemical and biological testing and found suitable for disposal into ocean waters, will be the only material allowed to be disposed at the Sites. No material defined as “waste” under the MPRSA will be allowed to be disposed at the Sites. The dredged material to be disposed at the Sites will be predominantly marine sand. Generally, disposal is expected to occur from a hopper dredge, in which case, material will be released just below the surface while the disposal vessel remains under power and slowly transits the disposal location. This method of release is expected to spread material at the Sites to minimize mounding, while minimizing impacts to the benthic community and to aquatic species present at the Sites at the time of a disposal event.

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

The EPA expects monitoring and surveillance at the Sites to be feasible and readily performed from small, surface vessels. The EPA will ensure monitoring of the sites for physical, biological and chemical attributes. Bathymetric surveys will be conducted annually, contaminant levels in the dredged material will be analyzed prior to dumping, and the benthic infauna and epibenthic organisms will be monitored every 5 years, as funding allows.

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

Disposal at the Sites will not degrade the existing wave environment within or outside the Sites. The placement of dredged material may have a minor effect on circulation within or outside the site boundaries. Due to the anticipated size of the mound resulting from the accumulated dredged material (10-14 feet high covering 597 acres over 20 years), it is possible the currents in the vicinity of the Sites may begin to be affected. Any potential effect would not be expected to occur until a substantial amount of dredged material has been placed at the site (4-6 million cubic yards). At that time, the EPA plans to re-assess these assumptions and associated potential effects.

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

The North Site was used for disposal of dredged material from 2001 to 2011. The seafloor elevation at the Site has risen 12 feet in a few locations. Annual bathymetric surveys will continue to be conducted to monitor mounding at the North Site. To date, disposal of dredged material has not changed the benthic infaunal nor epifaunal species expected to inhabit nearshore sandy substrates at this location. The South Site, prior to this designation, was selected by the Corps under their Section 103 authority under the MPRSA and has been used during the current 2012 dredging season. Preferential use of the North Site is expected to resume when this designation becomes effective, but capacity and other factors may result in continued use of the South Site in the future. The final SMMP includes monitoring and adaptive management measures to address potential mounding issues.

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

The Sites are not expected to interfere with shipping, fishing, recreation or other legitimate uses of the ocean. Commercial and recreational fishing and commercial navigation are the primary activities that may spatially overlap with disposal at the Sites. This overlap is more likely at the South Site given the South Site's proximity to the commercial shipping lane and in more direct alignment with the entrance channel to Yaquina Bay. The likelihood of direct interference with these activities is low, provided there is close communication and coordination among users, vessel traffic control and the U.S. Coast Guard. The EPA is not aware of any plans for mineral extraction, desalination plants, or fish and shellfish culture operations near the Sites at this time. The Sites are not located in areas of special scientific importance. They are located to the south of the Newport Hydrographic line, south of the proposed Northwest National Marine Renewable Energy Center's nearshore test facility, and west of the Yaquina Reef.

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

The EPA has not identified any potential adverse water quality impacts from the ocean disposal of dredged material at the Sites based on water and sediment quality analyses conducted in the study area of the Sites, and based on past disposal experience at the proposed North Site when it was used as a Section 103 selected site. Benthic grabs and trawl data show the ecology of the area to be that associated with sandy nearshore substrate typical of the Oregon Coast.

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

Nuisance species, considered as any undesirable organism not previously existing at a location, have not been observed at, or in the vicinity of, the Sites. Material expected to be disposed at the Sites will be uncontaminated marine sands similar to the sediment present at the Sites. Some fine-grained material, finer than natural background, may also be disposed. While this finer-grained material could have the potential to attract nuisance species to the Sites, no such recruitment is known to have taken place at the North Site while the Site was used as a Section 103 selected site. The final SMMP includes benthic infaunal and epifaunal monitoring requirements, which will act to identify any nuisance species and allow the EPA to direct special studies and/or operational changes to address the issue if it arises.

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

No significant cultural features have been identified at, or in the vicinity of, the proposed Sites at this time. The EPA coordinated with Oregon's State Historic Preservation Officer and with Tribes in the vicinity of the Sites to identify any cultural features. On July 16, 2012, the State agreed with the EPA that the designation of the North and South Yaquina Sites will have no effect on any known cultural resources. No cultural features or shipwrecks have been observed or documented within the proposed Sites or their immediate vicinity.

Section 102 of the National Environmental Policy Act of 1969, as amended (NEPA), 42 U.S.C. 4321 to 4370f, requires Federal agencies to prepare an Environmental Impact Statement (EIS) for major federal actions significantly affecting the quality of the human environment. NEPA does not apply to the EPA designations of ocean disposal sites under the MPRSA because the courts have exempted the EPA's actions under the MPRSA from the procedural requirements of NEPA through the functional equivalence doctrine. The EPA has, by policy, determined that the preparation of NEPA documents for certain EPA regulatory actions, including actions under the MPRSA, is appropriate. The EPA's “Notice of Policy and Procedures for Voluntary Preparation of NEPA Documents,” (Voluntary NEPA Policy), 63 FR 58045, (October 29, 1998), sets out both the policy and procedures the EPA uses when preparing such environmental review documents. The EPA's primary voluntary NEPA document for designating the Sites was the draft Yaquina Bay, Oregon Ocean Dredged Material Disposal Sites Evaluation Study and Environmental Assessment, (July 2012) (EA), jointly prepared by the EPA and the Corps. The draft EA and its Technical Appendices, which are part of the docket for this action, were finalized after the close of the public comment period for this action. The information from the final EA is used above, in the discussion of the ocean dumping criteria.

The EPA prepared an essential fish habitat (EFH) assessment pursuant to Section 305(b), 16 U.S.C. 1855(b)(2), of the Magnuson-Stevens Act, as amended (MSA), 16 U.S.C. 1801 to 1891d, and submitted that assessment to the National Marine Fisheries Service (NMFS) on December 19, 2011. The NMFS reviewed the EPA's EFH assessment and Endangered Species Act (ESA) Biological Assessment and addendum thereto for purposes of the Marine Mammal Protection Act of 1972, as amended (MMPA), 16 U.S.C. 1361 to 1389. The NMFS found that that all potential adverse effects to ESA-listed marine mammals, marine turtles, and designated critical habitat for leatherback sea turtles from the EPA's action to designate the Yaquina North and South Sites are discountable or insignificant. Those findings are documented in the Biological Opinion issued by the NMFS to the EPA on July 10, 2012. With respect to EFH, the NMFS concluded that the disposal of dredged material will adversely affect water quality from increased turbidity in the water column, availability of benthic prey species, and safe passage during disposal. The NMFS provided two EFH Conservation Recommendations to avoid or minimize the effects to EFH mentioned above. The NMFS recommends monitoring how fish interact with the disposal plume and conducting surveys to determine seasonal distribution, abundance, and habitat use of EFH species and their prey at the disposal sites. The EPA will respond in a separate written response to the NMFS' recommendations.

The Coastal Zone Management Act, as amended (CZMA), 16 U.S.C. 1451 to 1465, requires Federal agencies to determine whether their actions will be consistent to the extent practicable with the enforceable policies of approved state programs. The EPA prepared a consistency determination for the Oregon Coastal Management Program (OCMP), the approved state program in Oregon, to meet the requirements of the CZMA and submitted that determination to the Oregon Department of Land Conservation and Development (DLCD) for review on February 17, 2012. The DCLD concurred on May 7, 2012, with the EPA's determination that the designation of the North and South Yaquina ODMD sites is consistent to the maximum extent practicable with the enforceable policies of the OCMP. The DLCD based its concurrence on the information contained in the EPA's consistency determination and supporting materials, and on extensive conversations with the EPA. The Oregon Department of Fish and Wildlife (ODFW) participated in discussions with the EPA and the DLCD concerning the consistency determination and both the ODFW and the DLCD encouraged the EPA to pursue future disposal sites within the littoral zone.

The Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 to 1544, requires Federal agencies to consult with the NMFS and the U.S. Fish and Wildlife Service (USFWS) to ensure that any action authorized, funded, or carried out by the Federal agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of any critical habitat. The EPA prepared a Biological Assessment (BA) to assess the potential effects of designating the two proposed Sites on aquatic and wildlife species and submitted that BA to the NMFS and the USFWS on December 19, 2011. The EPA found that site designation does not have a direct impact on any of the identified ESA species, and also found that indirect impacts associated with reasonably foreseeable future disposal activities had to be considered. These anticipated indirect impacts from disposal included a short-term increase in suspended sediment, short-term disruption in avian foraging behavior, modification of bottom topography, loss of benthic prey species from burial, and loss of pelagic individuals during disposal of material through the water column. The EPA concluded that its action may affect, but is not likely to adversely affect 18 ESA-listed species and is not likely to adversely affect designated critical habitat for southern green sturgeon ( Acipenser medirostris) but is likely to adversely affect Oregon Coast coho salmon ( Oncorhynchus kisutch ). The USFWS concurred on the EPA's finding that the proposed action is not likely to adversely affect listed endangered or threatened species under the jurisdiction of the USFWS.

The NMFS issued a Biological Opinion on July 10, 2012. The NMFS considered disposal by the Corps and all other entities as an interrelated action to the EPA's proposed site designation, thus, the effects from future disposals are indirect effects of the EPA's action. The NMFS concluded that the EPA's action is not likely to jeopardize the continued existence of Oregon Coast coho salmon, southern distinct population segment (DPS) of North American green sturgeon, southern DPS of Pacific eulachon, or result in the destruction or adverse modification of designated critical habitat for southern DPS North American green sturgeon. The NMFS also concluded that the EPA's proposed action is not likely to adversely affect 18 ESA-listed salmon, sea lions, whales, marine turtles, and critical habitat for southern DPS of North American green sturgeon and leatherback turtles.

The NMFS did not issue an incidental take statement with their Biological Opinion to the EPA. This decision was based upon the following: (1) The adverse effects identified in the Biological Opinion will result from indirect effects of subsequent Federal actions carried out by the Corps and other entities carrying out dredging and disposal; (2) these individual actions are likely to cause take of ESA-listed species, so it is more appropriate to consider exempting take on a case-by-case basis as such actions are proposed in the future; (3) the EPA's action as described in the Biological Opinion does not authorize and will not itself result in disposal of any dredged materials; and (4) the NMFS does not anticipate any take will result from the site designation and adoption of the SMMP. The NMFS further stated that “any further analysis of the effects of disposal of dredged material at the disposal site and issuance of an incidental take statement with reasonable and prudent measures and non-discretionary terms and conditions to minimize take will be prepared when an ESA consultation on a dredging and disposal action is requested.”

The EPA initiated consultation with the State of Oregon's Historic Preservation Officer (SHPO) on February 27, 2012, to address the National Historic Preservation Act, as amended (NHPA), 16 U.S.C. 470 to 470a-2, which requires Federal agencies to take into account the effect of their actions on districts, sites, buildings, structures, or objects, included in, or eligible for inclusion in the National Register. The EPA determined that no historic properties were affected, or would be affected, by designation of the Sites. The EPA did not find any historic properties within the geographic area of the Sites. This determination was based on a review of the National Register of Historic Districts in Oregon, the Oregon National Register list and an assessment of potential cultural resources near the Sites. On July 16, 2012, the State agreed with the EPA that the designation of the North and South Yaquina Sites will have no effect on any known cultural resources.

This rule finalizes the designation of two ocean dredged material disposal sites pursuant to Section 102 of the MPRSA. This action complies with applicable executive orders and statutory provisions as follows:

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

The EPA does not reasonably anticipate collection of information from ten or more people based on the historic use of designated sites. Consequently, the action is not subject to the Paperwork Reduction Act.

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et seq., generally requires Federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business defined by the Small Business Administration's size regulations at 13 CFR part 121; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. The EPA has determined that this action will not have a significant economic impact on small entities because the rule will only have the effect of regulating the location of sites to be used for the disposal of dredged material in ocean waters. After considering the economic impacts of this proposed rule, I certify that this action will not have a significant economic impact on a substantial number of small entities.

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

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

This action does not have tribal implications, as specified in Executive Order 13175 because the designation of the two ocean dredged material disposal Sites will not have a direct effect on Indian Tribes, on the relationship between the federal government and Indian Tribes, or on the distribution of power and responsibilities between the federal government and Indian Tribes. Thus, Executive Order 13175 does not apply to this action. Although Executive Order 13175 does not apply to this action the EPA consulted with tribal officials in the development of this action, particularly as the action relates to potential impacts to historic or cultural resources. The EPA specifically solicited comment from tribal officials. The EPA did not receive comments from tribal officials.

The EPA interprets Executive Order 13045 (62 FR 19885) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under Section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. The action concerns the designation of two ocean dredged material disposal sites and only has the effect of providing designated locations to use for ocean disposal of dredged material pursuant to Section 102(c) of the MPRSA.

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

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

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

Congressional Review Act (CRA), 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 rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . 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). This rule will be effective October 9, 2012.

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

Background

This action corrects regulations that were published in three separate final rules for the Pacific Coast groundfish fisheries managed under 50 CFR 660 subparts C through F in order to correctly reflect Council intent. The final rules that are the subject of this correction are as follows: (1) Trawl Rationalization Program Components final rule (program components rule) published on December 15, 2010, (75 FR 78344); (2) 2011-2012 Biennial Harvest Specifications and Management Measures final rule (2011-2012 specifications rule) published on May 11, 2011, (76 FR 28897); and (3) Trawl Program Improvement and Enhancement final rule (PIE rule) published on December 1, 2011, (76 FR 74725). As published, the three final rules contain inadvertent errors that, although they will not modify current fishing practices need to be corrected so that the rule text comports with the intent as expressed in the rules' preambles. Each correction is explained below grouped together by the final rule that originally published the regulations.

None of these changes will result in any vessel or vessel owner having to modify its behavior in order to comply with the rules. In fact, the fishery already complies with the rules as they were intended to be written. Accordingly, these corrections are just that; they make changes necessary to have the rule text reflect both NMFS' original intent—as expressed in the preambles to the rules—as well as to current fishery practice.

There are four corrections to the Program Components final rule, as follows:

(1) Correct regulations to specify that all commercial vessels processing groundfish at sea carry an observer. During implementation of Amendment 20 to the Pacific Coast Groundfish Fishery Management Plan (PCGFMP), which restructured the entire groundfish regulations, this existing provision, which required observers on all commercial vessel processing at-sea, was inadvertently changed from applying to all commercial fisheries to only applying to the at-sea whiting fisheries. Nonetheless, all commercial fisheries continued to use observers on board. To bring the rules in line with the original intent, this action modifies the observer requirement language to include all vessels that process groundfish at sea. The affected fisheries are as follows: Shorebased IFQ Program (§ 660.140(h)(1)(i)), the limited entry fixed gear fishery (§ 660.216(a)), and the open access fishery (§ 660.316(a)). See 68 FR 53334 (September 10, 2003) for more history on this requirement.

(2) Correct regulations at § 660.150(g)(2)(i)—the Mothership (MS) program—to clarify that processor obligations are to an MS permit and not to the MS vessel. This change is necessary to make the MS regulations consistent with the processor obligation in the MS Coop Program, as defined under “processor obligation” at § 660.111 and specified at § 660.150(c)(7)(i).

(3) Correct language at § 660.114(b), in the third column of the table, which specifies who is required to submit an Economic Data Collection (EDC) form. This change makes the third column of the table consistent with § 660.113(d)(1), and the table now requires owners, lessees, and charterers of a vessel registered to a C/P endorsed limited entry trawl permit to submit an EDC. Vessels subject to this rule, as revised, are already providing the EDCs; this clarification merely corrects the language of the table to make it more clear who needs to submit the EDCs.

(4) Correct language at §§ 660.150(d)(2) and 660.160(d)(2) to specify that if an applicant does not appeal an initial administrative decision (IAD) in the trawl rationalization program within 30 calendar days, that the decision in the IAD becomes the final decision. This correction will make this provision consistent with the limited entry permit regulations at § 660.25(g)(4)(ii) for IADs.

There are four corrections to the PIE rule, as follows:

(1 and 2) Correct language at §§ 660.112 and 660.140 to specify that an observer must be on the vessel while in port unless the observer provides a form to the catch monitor documenting the weight and number of select overfished species (bocaccio, canary rockfish, cowcod, and yelloweye rockfish) retained on board by the vessel during that IFQ trip. The current regulations at § 660.112 and management measures at § 660.140 are unclear on the requirements for documenting IFQ species (all IFQ species versus the specified overfished species). Additionally corrections clarify that a vessel must carry an observer in port any time the vessel is underway in port, not just between delivery points.

(3) Correct § 660.150(g)(2)(iv)(B) to specify the proper form used to transfer an MS/CV endorsement. A request to change an MS/CV endorsement requires use of a unique form from the Fisheries Permit Office and may not be requested using the change in vessel registration and permit ownership form as currently stated in regulations.

(4) Correct regulations at § 660.150(d)(1)(v) regarding software requirements for electronic fish tickets. Current regulations erroneously state that an operating system such as “Windows 2007” may be used; there is no such operating system so this system is removed.

There are two corrections to the 2011-2012 specifications rule, as follows:

(1) Correct coordinates at § 660.71(b)(25) and (c)(55), which define the 10-fm (18-m) through 40-fm (73-m) depth contour. The coordinates are expressed in degrees latitude and longitude, and define large-scale boundaries utilized in managing the groundfish fishery. These corrections change incorrect and transposed coordinate numbers listed in the final rule; and better defines the intended boundary lines. These corrections do not change the intent or application of the geographic area described in the proposed and final rules that implemented the 2011-2012 harvest specifications and management measures.

(2) Correct language at § 660.360(c)(3) to allow spearfishing for lingcod during the same seasons as all of the other modes of the California recreational fishery, consistent with the Council motion. The 2011-2012 specifications final rule revised all recreational fishing modes to match the season restrictions for the rockfish, cabezon, greenling (RCG) complex in all of the California recreational fishery management areas. However, the change to lingcod seasons for spearfishing, one mode of the California recreational fishery, was mistakenly not revised and was therefore inconsistent with the Council's recommendation and with spearfishing regulations implemented by the California Department of Fish and Game. This correction extends the lingcod season for spearfishers by exempting anglers using only spearfishing gear from lingcod season restrictions. The effects of the change to lingcod seasons and mortality of other Groundfish species, for all California recreational fishery modes including spearfishing, was analyzed in the Final Environmental Impact Statement on the 2011-2012 harvest specifications and management measures.

To be consistent with the FMP provisions for limited entry permit renewal, this correction revises the date by which NMFS will mail permit renewal notices from September 1st to requiring mailing by September 15th each year, and makes corresponding changes to the renewal process for Quota Share (QS) permits/accounts and vessel accounts. This change will allow NMFS' Permits Office to complete any pending transfers (changes in vessel registration or permit ownership) for the start of the September 1 cumulative limit period before sending out permit renewal notices in addition to other benefits discussed below. The following sections are revised:

(1) § 660.25(b)(4)(i)(B) for LE permits.

(2) § 660.140(d)(3)(i)(B) for QS permits/accounts.

(3) § 660.140(e)(3)(i)(B) for vessel accounts.

NMFS notes that this change still gives the affected public adequate time to renew their permits because it still allows 2 weeks advance notice of the October 1-November 30 permit renewal period.

The Assistant Administrator for Fisheries, NOAA (AA) finds good cause under 5 U.S.C. 553(b)(B), to waive the requirement for prior notice and opportunity for additional public comment for this action because notice and comment are unnecessary and contrary to the public interest. This action simply makes corrections to accurately reflect the intent of the rules as expressed in the preamble of the final rules. In the text of those rules, however, NMFS inadvertently omitted various clauses or phrases that the preambles suggested would be included in the text. This action merely codifies NMFS' original intent for these rules. Moreover, because the parties subject to these rules already comply with the provisions as if these changes had already been made, and because the public had prior notice and opportunity to comment on the original rules—including the preambles—when they were issued, NMFS believes that allowing a second round of notice and comment on these rules may only further confuse the mistakes this rule would clarify. Moreover, these corrections are not substantive, because the regulated community has been acting in a manner consistent with the intent of the rules as expressed in their respective preambles. Implementing this rule immediately will allow the updates to come into force prior to the beginning of the next fishing year, thereby ensuring that the rules accurately reflect NMFS' original intent in implementing them.

For the same reasons, pursuant to 5 U.S.C. 553(d), the AA finds good cause to waive the 30-day delay in effective date for this action. However, NMFS will delay the effectiveness of this action for 15 days for all of the corrections listed above except the changes to the permit renewal date. Good cause exists for this waiver, because if these rules do not go into effect prior to thirty days after being printed in the Federal Register , then a new permit renewal cycle will start, but with contradictory information in the rule texts and the rules' preambles. This contradiction may cause public confusion, and will be inconsistent with the intent of the final rules. The 15 day delay in effective date allows NMFS to ensure the public becomes informed about the changes, even though NMFS believes that the rule will not result in any changes to fishermen's practices. Conversely, for the correction to the permit renewal date, which corrects regulations at § 660.25(b)(4)(i)(B) for LE permits, § 660.140(d)(3)(i)(B) for QS permits/accounts and § 660.140(e)(3)(i)(B) for vessel accounts, the changes become effective immediately. These corrections must be effective immediately because this correction makes current regulations consistent with the PCGFMP and affects an agency action for September. A delay would be contrary to the public's interest because it would leave in place rules that are inconsistent with the intent expressed by NMFS in the preambles of the final rules.. Therefore pursuant to 5 U.S.C. 553(d), the AA finds good cause to waive the 30-day delay in effective date.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. are inapplicable. This final rule is not significnant under Executive Order 12866.

For reasons set out in the preamble, 50 CFR part 660 is amended by making the following corrections: