Airworthiness Directive (AD) 2013-05-08, Amendment 39-17380 (78 FR 27015, May 9, 2013), currently requires, depending on airplane configuration, modifying three flight control primary computers (FCPCs); modifying two flight control secondary computers (FCSCs); revising the airplane flight manual (AFM) to include certain information; replacing certain O-rings; and checking part number and replacing certain O-ring seals if needed.

As published, AD 2013-05-08, Amendment 39-17380 (78 FR 27015, May 9, 2013), currently includes typographical errors in paragraphs (p)(4) and (p)(5) of the AD, which specify FCSCs, instead of flight control primary computers FCPCs.

No other part of the preamble or regulatory information has been changed; therefore, only the changed portion of the final rule is being published in the Federal Register .

The effective date of AD 2013-05-08, Amendment 39-17380 (78 FR 27015, May 9, 2013), remains June 13, 2013.

History

On April 29, 2013, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish two new RNAV routes in the Washington, DC area (82 FR 25006). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. One comment was received.

The Aircraft Owners and Pilots Association (AOPA) commented that they do not support the establishment of T-287 and T-299 and advocated that the FAA withdraw the proposal. AOPA contended that aircraft already are able to circumnavigate the Washington-Dulles (IAD) arrival flows by using existing Victor airways; thus, pilots will avoid use of the proposed T-routes because they are inefficient and lack benefit.

T-287 and T-299 were developed to allow aircraft to navigate via routes that are procedurally separated from the NextGen Optimized Profile Descent arrival procedures in the IAD area. While the new routes may result in more track miles flown as compared to nearby V-143, it should be noted that, during busy periods, Air Traffic Control vectors aircraft on V-143 vectored off the airway to the west very near the tracks of the new T-routes. Aircraft filed via V-377 will fly a shorter distance and more direct routing with the new routes. T-287 and T-299 allow for unrestricted optimized profile descents into the IAD area. The routes were not designed to push traffic farther away from Class B airspace, but to provide additional options for pilots and air traffic controllers alike during weather and high volume traffic periods. Since they mimic the tracks already used for vectoring aircraft, the T-routes provide more consistent, predicable and precise routing. The FAA believes that these routes do benefit both pilots and air traffic controllers.

AOPA further contended that T-routes must be established within Class B airspace to retain an equivalent level of service and access for general aviation. AOPA asserted that, if future T-route development is limited to locations significantly outside the boundaries of Class B airspace, general aviation will loose the limited access it currently has.

Originally, T-routes were developed to serve as “Area Navigation IFR Terminal Transition Routes (RITTR).” RITTRs were intended to provide more direct routing and expedite movement of aircraft around or through congested terminal airspace areas (such as Class B airspace) using RNAV capabilities. In 2007 the FAA decided to discontinue the use of the term “RITTR” in favor of applying the “T-route” designator to all published RNAV routes below 18,000 feet MSL, whether their purpose is to provide more direct access through terminal airspace (such as Class B) or as part of the low altitude en route structure. This change does not alter the fact that T-routes may still be established specifically to enable transit through Class B airspace areas.

AOPA criticized the Washington DC “Optimization of Airspace and Procedures in a Metroplex (OAPM)” effort in that this rule did not include T-routes through the Washington Tri-Area Class B airspace area. AOPA suggested another location for a T-route through the Washington Class B airspace area.

This rule represents just one part of the DC OAPM effort. While a separate DC OAPM rulemaking action included the establishment of two T-routes (T-291 and T-295) through the east side of the Washington Tri-Area Class B airspace (78 FR 37104, June 20, 2013), establishing T-routes through the Class B airspace is outside the scope of this specific rule. The Washington Tri-Area Class B area is currently under review for possible modification in the future. An Ad Hoc Committee was formed to recommend possible Class B changes to the FAA. The FAA is reviewing the Committee's recommendations and will initiate further public participation at a later date. The issue of access through the Class B will be considered as part of that effort. It should be noted that any future DC Class B modifications will be influenced by the requirements of the “Washington, DC Metropolitan Area Special Flight Rules Area (14 CFR part 93, subpart V).”

This rule corrects an error in the header line of the legal description of RNAV route T-287, as published in the NPRM, by removing the abbreviation “(GVE).” GVE was mistakenly inserted in the NPRM and is not a part of the T-287 description. The coordinates for the WILMY waypoint in T-287 were adjusted slightly along the track to facilitate a more optimum minimum en route altitude. This rule also changes the name of the “HAANK” waypoint in T-299 to “UCREK.” After the NPRM was published, it was found that the name “HAANK” was unavailable. The latitude/longitude coordinates for UCREK are the same as were listed for HAANK in the NPRM. Also in T-299, the “SCAPE” navigation point is changed from a “waypoint” to a “fix.” Except for these corrections and editorial changes, this rule is the same as published in the NPRM.

The FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 to establish two new RNAV routes (T-287 and T-299) west of the Washington-Dulles International Airport (IAD) area. The new routes support the Washington, DC Optimization of Airspace and Procedures in a Metroplex (OAPM) project and enable aircraft to circumnavigate IAD arrival flows. Aircraft transiting through the Washington, DC area are routinely vectored to the west of the IAD area in order to separate them from the major arrival flows into the IAD area. T-287 and T-299 are designed to mimic the flight paths currently used for vectoring these transiting aircraft. The routes provide consistent and predictable routing for aircraft to file and navigate while being assured of separation from larger turbojet aircraft entering and exiting the Washington, DC area. Further, the routes reduce air traffic controller workload and enhance efficiency within the National Airspace System.

Low altitude RNAV routes are published in paragraph 6011 of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The RNAV routes listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes RNAV routes to as required to preserve the safe and efficient flow of air traffic in the Washington, DC area.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend two jet routes, six VOR Federal airways, and three area navigation routes; establish six area navigation (RNAV) routes; and cancel two VOR Federal airways in the northeast United States (78 FR 38236, June 26, 2013). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. One comment was received. The Aircraft Owners and Pilots Association (AOPA) did not oppose the modifications but encouraged the FAA to utilize stakeholders in developing an air traffic service route modernization plan.

This action amends Title 14, Code of Federal Regulations (14 CFR) part 71 by modifying jet routes J-36 and J-68; VOR Federal airways V-58, V-93, V-106, V-126, V-149, V-408; and RNAV routes T-212, T-291 and T-295. This action also establishes new RNAV routes Q-436, Q-438, Q-440, T-216, T-218 and T-221. In addition, VOR Federal airways V-153 and V-449 are cancelled. The decommissioning of the Lake Henry VORTAC (LHY) facility has made this action necessary.

The specific route changes are outlined below.

J-36: J-36 is amended by eliminating the segment of the route between Flint, MI (FNT) and Sparta, NJ (SAX). A new RNAV route, Q-436, as described below, replaces the cancelled segment. Most aircraft utilizing J-36 are RNAV equipped, so replacing the above J-36 segment with an RNAV route furthers the transition to an RNAV route structure and supports the NextGen initiative.

J-68: J-68 is modified by eliminating the route segments between FNT and Dunkirk, NY (DKK), supporting the transition to RNAV and reducing chart clutter. RNAV routes Q-436, Q-438 and Q-440 (see below), as well as other jet routes, provide alternative routings through the area. The portion of J-68 between Hancock, NY (HNK) and Nantucket, MA (ACK) is retained.

Q-436: Q-436 is a new route extending between the EMMMA, MI, fix and the COATE, NJ, fix. Q-436 replaces the cancelled segments of J-36 and that part of J-68 that extends between FNT and DKK. The routing of Q-436 from COATE, NJ, to a point southeast of DKK is an exact overlay of the segments of J-36 that are cancelled (see above). From this point Q-436 continues westbound providing a more direct routing for aircraft transiting from the New York area and landing in Chicago, IL.

Q-438 and Q-440: RNAV route Q-438 extends between the RUBYY, MI, WP and the RAAKK, NY, WP. Q-440 extends between the SLLAP, MI, WP and the RAAKK, NY, WP. From a point southeast of DKK, Q-438 and Q-440 diverge from Q-436 providing segregation between Chicago arrivals and aircraft overflying the Chicago area. Although not directly tied to the LHY VORTAC decommissioning, these additional Q-routes serve to reduce ATC sector complexity, allow overflight aircraft to be cleared to their cruising altitude more expeditiously and provide a more direct routing to destinations west of Chicago; therefore, they are included in this rule.

V-58: V-58 is modified by eliminating the segments between Williamsport, PA (FQM) and the HELON, NY, intersection. Following this gap, the airway resumes its charted track between HELON and ACK. In addition, the Franklin, PA 175° radial is changed to the 176° radial to correct a mathematical rounding error.

V-93: The modified V-93 extends between Patuxent, MD VORTAC (PXT) and the new LAAYK, PA intersection. The segments between LAAYK, PA, and HELON, NY, are deleted. The route then resumes its charted track between HELON, NY, and the United States/Canadian Border.

V-106: V-106 is realigned to the LAAYK, PA, fix in lieu of the LHY VORTAC and that portion of the airway between LAAYK, PA, and Barnes, MA (BAF) is deleted. Following that gap, the airway resumes its charted track between the Barnes, MA VORTAC (BAF) and the Kennebunk, ME VORTAC (ENE). This change is made because similar routing is available via other conventional airways (e.g., V-34 from WEETS, NY, to Pawling, NY (PWL) then V-405 to BAF). The change also reduces chart clutter. As described below, T-212 replaces the deleted segments of V-106.

V-126: V-126 is modified by eliminating the segment between Stonyfork, PA (SFK) and SAX. The new RNAV route T-218 replaces the cancelled segments of V-126.

V-149: V-149 is modified by replacing the LHY VORTAC with the LAAYK, PA, fix (formed by radials from the CFB and FJC VORTACs). In addition, the segment of V-149 between the MAZIE fix and the Allentown, PA VORTAC (FJC) is removed because the FJC 147°(M) radial, upon which it is based, does not pass flight inspection. The new T-221 overlies this removed segment as described below.

V-153: V-153 is removed in its entirety based on other available route alternatives and minimal usage by air traffic.

V-408: V-408 is modified by eliminating the segments between FJC and SAGES. The eliminated portion is replaced by the extension of T-295, as described below.

V-449: V-449 is removed in its entirety. With the LHY decommissioning, the remainder of the airway does not pass flight inspection. An extension of T-291, as described below, replaces this airway.

T-212: T-212 is extended to the west by adding segments between the RASHE, PA, fix (formed by the intersection of radials from the Selinsgrove, PA (SEG), and the Philipsburg, PA, (PSB) VORTACs and the WEARD, NY, fix. The amended T-212 replaces the cancelled segment of V-106 between the LAAYK, PA, and the WEETS, NY fixes.

T-216: T-216 is a new route that extends between the PSB and the Nantucket, MA, VOR/DME (ACK). T-216 overlies V-58 between PSB and ACK, and also replaces the cancelled portion of V-93 between the LAAYK INT and the HELON fix.

T-218: T-218 is a new route that extends between the Stonyfork, PA (SFK), VOR/DME and the Sparta, NJ, VORTAC (SAX). T-218 replaces V-126 between SFK and SAX.

T-221: T-221 is a new route that extends between the MAZIE, PA, fix and the Albany, NY, VORTAC (ALB). T-221 overlies V-149 between the MAZIE, PA, fix and Binghamton, NY (CFB).

T-291: T-291 is extended northward between HAR and ALB. The extended route overlies V-31 to Selinsgrove, PA (SEG), then proceeds direct to Milton, PA (MIP), and from MIP it replaces V-449 by way of the LAAYK, PA, fix and terminates at ALB.

T-295: T-295 is extended northward to the Princeton, ME, VOR/DME (PNN). T-295 overlies V-93 from Lancaster, PA (LRP) through Wilkes-Barre, PA (LVZ), to the LAAYK, PA, fix and replaces V-408 from LAAYK, PA, to the SAGES, NY, fix where it turns and overlies V-292 to the SASHA, MA, fix. T-295 then continues northbound overlying V-93 to PNN.

This rule includes several minor differences from the NPRM. Specifically, the LAAYK, PA, WP is redescribed as a “Fix.” In the V-58 description, the Franklin, PA, 175° radial is changed to the 176° radial. In the T-295 description, the Kennebunk, ME, VORTAC is reclassified as a VHF Omnidirectional Range/Distance Measuring Equipment (VOR/DME). Except for these, and editorial changes, this rule is the same as published in the NPRM.

Jet routes are published in paragraph 2004; high altitude RNAV routes (Q) are published in paragraph 2006; VOR Federal airways are published in paragraph 6010(a); and low altitude RNAV routes (T) are published in paragraph 6011, respectively, of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The jet routes, Q routes, VOR Federal airways and T routes listed in this document will be subsequently published in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation because the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority because it modifies the route structure as required to preserve the safe and efficient flow of air traffic.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

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

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 the logistical details of the San Diego Bay triathlon swim were not finalized nor presented to the Coast Guard in enough time to draft and publish an NPRM. As such, the event would occur before the rulemaking process was complete.

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 because it is impractical and contrary to the public interest. The Coast Guard did not have the necessary event information in time to provide both a comment period and allow for a 30 day delayed effective date. Immediate action is required to ensure the safety zone is in place to protect participants, crew, spectators, participating vessels, and other vessels and users of the waterway during the event.

The Ports and Waterways Safety Act gives the Coast Guard authority to create and enforce safety zones. The Coast Guard is establishing a temporary safety zone on the navigable waters of San Diego Bay for a swim event.

The safety zone will be enforced from 6:30 a.m. to 9:30 a.m. on September 22, 2013. The limits of the safety zone will be navigable waters of the San Diego Bay in the vicinity of the San Diego Convention Center bound by the following coordinates including the marina: 32°42′16 N, 117°09′58″ W to 32°42′15″ N, 117°10′02″ W then south to 32°42′00″ N, 117°09′45″ W to 32°42′03″ N, 117°09′40″ W.

This safety zone is necessary to provide for the safety of the participants, crew, spectators, sponsor vessels, and other users of the waterway.

This safety zone is necessary to ensure unauthorized personnel and vessels remain safe by keeping clear during the bay swim. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative.

Before the effective period, the Coast Guard will publish a Coast Guard District Eleven Local Notice to Mariners information on the event and associated safety zone.

Vessels will be able to transit the surrounding area and may be authorized to transit through the safety zone with the permission of the Captain of the Port of the designated representative. Immediately before and during the fireworks display, Coast Guard Sector San Diego Joint Harbor Operations Center will issues Broadcast Notice to Mariners on the location and enforcement of the safety zone.

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

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. This determination is based on the size, duration and location of the safety zone. Commercial vessels will not be hindered by the safety zone. Recreational vessels may be allowed to transit through the designated safety zone during specified times if they request and obtain authorization from the Captain of the Port, or his designated representative. Additionally, before the effective period, the Coast Guard will publish a Local 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 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 will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the aforementioned portion of San Diego Bay from 6:30 a.m. to 9:30 a.m. on September 22, 2013.

(2) This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone will only be in effect for three hours early in the morning when vessel traffic is low. Vessel traffic can transit safely around the zone.

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

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

This rule 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. 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 .

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

The Coast Guard is issuing this temporary final rule after publishing a Notice of Proposed Rulemaking (NPRM) on July 15, 2013 (78 FR 42027). The Coast Guard received no comments on the NPRM and as such, no changes have been made to this safety zone.

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 because it is impracticable and contrary to the public interest. The Coast Guard did not have the necessary event information about this boat race in time to provide both a comment period and allow for a 30 day delayed effective date. The Coast Guard was able to take comments on this safety zone prior to publication and enforcement. Immediate action is required to ensure the safety zone is in place to protect participants, crew, spectators, participating vessels, and other vessels and users of the waterway during the event.

The Ports and Waterways Safety Act gives the Coast Guard authority to create and enforce safety zones. The Coast Guard is establishing a temporary safety zone on the navigable waters of Mission Bay for the 2013 San Diego Bayfair power boat races. This event will occur between 7 a.m. and 5:30 p.m. on September 13 to September 15, 2013.

The safety zone includes the waters of Mission Bay bound by the following coordinates:

This safety zone is necessary to provide for the safety of the participants, crew, spectators, participating vessels, and other vessels and users of the waterway. Persons and vessels would be prohibited from entering into, transiting through or anchoring within this safety zone unless authorized by the Captain of the Port or his designated representative.

The Coast Guard received 0 comments on the NPRM for this rule, and as such, no changes have been made to the final rule.

The Coast Guard is establishing a temporary safety zone on the navigable waters of Mission Bay for the 2013 San Diego Bayfair power boat races. This event will occur between 7 a.m. and 5:30 p.m. on September 13, 2013 to September 15, 2013. This safety zone is necessary to provide for the safety of the participants, crew, spectators, participating vessels, and other vessels and users of the waterway. Persons and vessels would be prohibited from entering into, transiting through or anchoring within this safety zone unless authorized by the Captain of the Port or his designated representative. The temporary safety zone includes a portion of the navigable waters of Mission Bay.

Before the effective period, the Coast Guard will publish a Coast Guard District Eleven Local Notice to Mariners information on the event and associated safety zone. Immediately before and during the event, Coast Guard Sector San Diego Joint Harbor Operations Center will issue a Broad cast Notice to mariners on the location and enforcement of the safety zone.

Vessels will be able to transit the surrounding area and may be authorize to transit through the safety zone with the permission of the Captain of the Port or the designated representative. Before activating the zones, the Coast Guard will notify mariners by appropriate means including but not limited to Local Notice to Mariners and Broadcast Notice to Mariners.

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

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. This determination is based on the size and location of the safety zone. The safety zone is relatively small in size, an annual occurrence and traffic can circumvent the racing location. Persons and vessels would be prohibited from entering into, transiting through or anchoring within this safety zone unless authorized by the Captain of the Port or his designated representative. Additionally, before the effective period, the Coast Guard will publish a Local 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 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 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 the waters of Mission Bay in San Diego, California from 7 a.m. to 5:30 p.m. on September 13, 2013 to September 15, 2013.

(2) This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. Although the safety zone would apply to a main portion of the navigable waters of Mission Bay, traffic would be allowed to pass through the safety zone with the permission of the Coast Guard patrol commander and the safety zone will collapse once the last races have concluded. Before the effective period, the Coast Guard will publish a Local 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, 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 establishment of a temporary safety zone. 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 .

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

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

EPA is approving revisions to the Missouri SIP submitted to EPA on March 22, 2011. These revisions to the rule do not add any additional requirements to the existing rule but merely add language that better clarifies specific roles and responsibilities including the consultation groups' processes. EPA has conducted an analysis of the State's amendments and has concluded that these revisions do not adversely affect the stringency of the SIP. Missouri's revisions include amendments to sections (1) through (4) of rule 10 CSR 10-5.480 St. Louis Area Transportation Conformity Requirements, which updates the rule to provide more specificity to the interagency consultation process requirements, including roles and responsibilities. Section (1) revises language to include requirements of three sections from the federal conformity rule: 40 CFR 93.105, 40 CFR 93.122(a)(4)(ii), 40 CFR 93.125(c).

Section (2) adds language that describes in detail which agencies embody the interagency consultation group and defines who appoints air quality agency representatives. Section (3) revises the language to describe in detail roles and responsibilities of each agency involved in the interagency consultation group, communication strategy procedures, specific conformity processes and procedures, conflict resolution procedures, and public participation process procedures. Section (4) makes minor administrative revisions to correct spelling.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

EPA is taking direct final action to amend the Missouri SIP by approving the State's request to amend 10 CSR 10-5.480 St. Louis Area Transportation Conformity Requirements. EPA has determined that these changes will not relax the SIP or adversely impact air emissions.

We are processing this action as a direct final action because the revisions do not adversely impact air emissions, and we do not anticipate any adverse comments. However, in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that will serve as the proposed rule to approve the SIP revision if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

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

• is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 28, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document, “we,” “us” and “our” refer to EPA.

On November 9, 2012 (77 FR 67322), EPA proposed to approve the following rule into the SIP.

We proposed to approve this rule because we determined that it complied with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

No comments were submitted. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving this rule into the California SIP. Final approval of this rule satisfies California's obligation to implement RACT under CAA section 182 for this source category and terminates both the sanctions clocks and the Federal Implementation Plan (FIP) clock associated with our limited approval and limited disapproval of an earlier version of this rule. (77 FR 2643, January 19, 2012).

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

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

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particles (e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil dust), and their precursors (e.g., sulfur dioxide (SO 2 ), nitrogen oxides (NO X ), ammonia (NH 3 ), and volatile organic compounds (VOC)). Fine particle precursors react in the atmosphere to form fine particulate matter (PM 2.5 ), which impairs visibility by scattering and absorbing light. Visibility impairment reduces the clarity, color, and visible distance that one can see. PM 2.5 can also cause serious health effects and mortality in humans and contributes to environmental effects such as acid deposition and eutrophication.

In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I areas which impairment results from manmade air pollution.” On December 2, 1980, EPA promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources, i.e., “reasonably attributable visibility impairment.” See 45 FR 80084. These regulations represented the first phase in addressing visibility impairment. EPA deferred action on regional haze that emanates from a variety of sources until monitoring, modeling, and scientific knowledge about the relationships between pollutants and visibility impairment were improved.

Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35713), commonly referred to as the Regional Haze Rule (RHR). The RHR revised the existing visibility regulations by adding provisions addressing regional haze impairment and establishing a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300-309. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia, and the Virgin Islands. 40 CFR 51.308(b) required states to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007. Regional haze SIPs must assure reasonable progress towards the national goal of achieving natural visibility conditions in Federal Class I areas. These implementation plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install Best Available Retrofit Technology (BART) controls for the purpose of eliminating or reducing visibility impairment.

On March 19, 2010, and August 31, 2010, FDEP submitted and subsequently amended Florida's SIP to address regional haze in Florida and other states' Class I areas. On May 25, 2012, EPA published an action proposing a limited approval of Florida's regional haze SIP to address the first implementation period for regional haze. 1 See 77 FR 31240. EPA's May 25, 2012, proposed rulemaking covered Florida's March 19, 2010, SIP submittal, as amended on August 31, 2010, as well as the State's April 13, 2012, draft amendment to the regional haze SIP submission. In a July 31, 2012, draft amendment to the regional haze SIP submission, Florida addressed the 18 reasonable progress units and 11 facilities with BART-eligible electric generating units (EGUs) subject to EPA's Clean Air Interstate Rule (CAIR  2 ) (a total of 20 EGUs) that were not covered by Florida's April 13, 2012, draft amendment to the regional haze SIP submission. It also amended the SIP submission to remove Florida's reliance on CAIR to satisfy BART and reasonable progress requirements for the State's affected EGUs.

Florida's September 17, 2012, final amendment to the regional haze SIP submission consolidated its draft April 13, 2012, and draft July 31, 2012, amendments to the regional haze SIP submission into a single package. On October 15, 2012, and on May 2, 2013, FDEP submitted supplemental information and documentation for Progress Energy's Crystal River facility. On November 29, 2012 (77 FR 71111), EPA finalized a full approval of the BART determinations addressed in the Agency's May 25, 2012, proposed rulemaking action. These BART determinations were submitted to EPA for parallel processing on April 13, 2012, in a draft amendment to the regional haze SIP submission and submitted in final form on September 17, 2012.

On December 10, 2012 (77 FR 73369), EPA proposed several actions related to regional haze requirements for Florida. First, EPA proposed to approve certain BART and reasonable progress determinations included in Florida's September 17, 2012, amendment to the regional haze SIP submission. Second, EPA proposed to find that the September 17, 2012, amendment to Florida's regional haze SIP submission corrects the deficiencies that led to the aforementioned proposed limited approval and limited disapproval actions. Third, EPA proposed to withdraw the previously proposed limited disapproval of Florida's entire regional haze SIP, and alternatively proposed full approval of the entire regional haze SIP.

EPA is now finalizing full approval of all remaining portions of the Florida regional haze SIP as proposed on May 25, 2012, and December 10, 2012, including the remaining BART and reasonable progress determinations in Florida's September 17, 2012, amendment to the regional haze SIP submission (as supplemented on October 15, 2012, and May 2, 2013)  3 not previously addressed in EPA's November 29, 2012, final action. 4 EPA finds that Florida's September 17, 2012, amendment to the regional haze SIP submission (as supplemented on October 15, 2012, and May 2, 2013): (1) Replaces reliance on CAIR to satisfy the BART and reasonable progress requirements for its affected EGUs with case-by-case BART and reasonable progress control analyses; and (2) corrects the deficiencies that led to the December 30, 2011, proposed limited disapproval and the May 25, 2012, proposed limited approval of the State's regional haze SIP. Consequently, EPA finds that the regional haze SIP as a whole now meets the regional haze requirements of the CAA.

EPA received adverse comments on the May 25, 2012, proposed limited approval of Florida's regional haze SIP and on the December 10, 2012, proposed approval of certain BART and reasonable progress determinations. See Section III of this rulemaking for a summary of the comments received on EPA's May 25, 2012, and December 10, 2012, proposed actions and the Agency's responses to these comments. Detailed background information and EPA's rationale for the proposed actions are provided in EPA's May 25, 2012, and December 10, 2012, proposed rulemakings. See 77 FR 31240 and 77 FR 73369.

EPA received two sets of comments on its May 25, 2012, rulemaking proposing a limited approval of Florida's regional haze SIP submittals and seven sets of comments on its December 10, 2012, proposed approval described above. Specifically, the comments on the May 25, 2012, proposed rulemaking were received from the Sierra Club and National Parks Conservation Association, collectively, and from the Florida Electric Power Coordinating Group, Inc.-Environment Committee. One comment related to BART was addressed in the Agency's November 29, 2012, final rulemaking. The remaining comments are addressed in this action. The seven sets of comments relating to the December 10, 2012, proposed rulemaking were received from Sierra Club, EarthJustice, and the National Parks Conservation Association, collectively; National Park Service (NPS); Florida Electric Power Coordinating Group, Inc. -Environment Committee; FPL Company; Progress Energy; Utility Air Regulatory Group; and numerous individual members of the Sierra Club. The complete comments provided by all of the aforementioned entities (hereinafter referred to as “the Commenter”) are provided in the docket for today's final action (Docket Identification No. EPA-R04-OAR-2010-0935). A summary of the comments and EPA's responses are provided below.

Comment 1: The Commenter concludes that EPA cannot approve Florida's reasonable progress demonstration or long-term strategy (LTS) at this time because “relevant portions of the SIP are incomplete in important regards” and because the components of the SIP are “interdependent” (i.e., regional haze SIPs are “comprehensive documents which fully address haze through linked reasonable progress goals, an effective long-term strategy, BART requirements for appropriate sources, and robust monitoring, amongst other requirements”). The Commenter believes that EPA cannot approve the reasonable progress demonstration or LTS “because the shift from CAIR to CSAPR [Cross State Air Pollution Rule] has fundamentally altered the SIP, and has required Florida to reanalyze significant portions of its SIP.” The Commenter states that until such an analysis is complete, the SIP is missing critically important components. According to the Commenter, EPA cannot lawfully or rationally approve SIP provisions that rely on future revisions that Florida has not yet adopted or submitted to EPA or rely on CAIR to meet specific regional haze requirements when EPA has already “taken action to disapprove that exact action.” Without a complete reasonable progress demonstration, LTS, and supporting analyses, the Commenter believes that EPA approval of such SIP sections would be arbitrary and contrary to law.

Response 1: EPA disagrees with the Commenter's conclusions and is approving the reasonable progress demonstrations, reasonable progress goals (RPGs), and LTS set forth in Florida's regional haze SIP. The State has submitted a complete regional haze SIP that satisfies all CAA requirements, and EPA is taking final action today to approve Florida's entire regional haze SIP. When combined with EPA's November 29, 2012, final rulemaking approving several BART determinations, there are no outstanding regional haze SIP elements requiring action.

Regarding the comments on the relationship between CAIR and the regional haze SIP, Florida set its RPGs based on modeled projections of future conditions that were developed using the best available information at the time the modeling analysis was performed. Given the requirement in 40 CFR 51.308(d)(1)(vi) that states must take into account the visibility improvement that is expected to result from the implementation of other CAA requirements, Florida set its RPGs based, in part, on the emissions reductions expected to be achieved by CAIR and other measures being implemented across the southeast region as modeled for Florida by the Visibility Improvement State and Tribal Association of the Southeast (VISTAS). 5 Although Florida no longer relies on CAIR to satisfy regional haze requirements for any sources within the State, the underlying emissions inventories and projections of reductions from upwind states continue to include assumptions based on the implementation of CAIR. As CAIR has been remanded by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit or Court), some of the assumptions underlying the development of this element of the RPGs may change. EPA has determined that this reliance on CAIR in upwind states in the underlying analysis does not require EPA to withhold full approval of Florida's regional haze SIP. The 2008 remand of CAIR was followed by a 2012 decision in EME Homer City Generation, L.P. v. EPA (hereafter referred to as “EME Homer City”), 696 F.3d 7 (D.C. Cir. 2012), cert. granted 570 U.S. (June 24, 2013) (No. 12-1182), to vacate CSAPR and keep CAIR in place pending the promulgation of a valid replacement rule. In this unique circumstance, EPA believes that full approval of the SIP submission is appropriate. To the extent that Florida is relying on emissions reductions associated with the implementation of CAIR in other states in its regional haze SIP, the recent directive from the D.C. Circuit in EME Homer City ensures that the reductions associated with CAIR will be sufficiently permanent and enforceable for the first implementation period ending in 2018. EPA has been ordered by the court to develop a new rule and the opinion makes clear that after promulgating that new rule, EPA must provide states an opportunity to draft and submit SIPs to implement that rule. Thus, CAIR cannot be replaced until EPA has promulgated a final rule through a notice-and-comment rulemaking process, states have had an opportunity to draft and submit regional haze SIPs, EPA has reviewed the SIPs to determine if they can be approved, and EPA has taken action on the SIPs, including promulgating a Federal implementation plan, if appropriate. These steps alone will take many years, even with EPA and the states acting expeditiously. The Court's clear instruction to EPA that it must continue to administer CAIR until a “valid replacement” exists provides an additional backstop; by definition, any rule that replaces CAIR and meets the Court's direction would require upwind states to eliminate significant downwind contributions. Further, in vacating CSAPR and requiring EPA to continue administering CAIR, the D.C. Circuit emphasized that the consequences of vacating CAIR “might be more severe now in light of the reliance interests accumulated over the intervening four years.” EME Homer City, 696 F.3d at 38. The accumulated reliance interests include the interests of states who reasonably assumed they could rely on reductions associated with CAIR to meet certain regional haze requirements. For these reasons also, EPA believes it is appropriate to allow Florida to rely on reductions associated with CAIR in other states as sufficiently permanent and enforceable pending a valid replacement rule for purposes such as evaluating RPGs in the regional haze program. Following promulgation of the replacement rule, EPA will review regional haze SIPs as appropriate to identify whether there are any issues that need to be addressed.

EPA believes the Commenter overstates the overarching nature of the changes due to the CAIR remand. Many of the emissions units subject to reasonable progress analysis either have already reduced SO 2 emissions or will be reducing SO 2 emissions in the near future. These reductions are the result of company decisions to shut-down or re-power certain units or to install new control equipment (e.g., scrubbers) in response to CAIR. Furthermore, Florida has reviewed the facilities subject to BART or reasonable progress analysis on a case-by-case basis and has developed BART or reasonable progress requirements for the sources for which additional controls were appropriate. EPA expects these BART and reasonable progress requirements to provide benefits similar to or greater than those provided by CAIR. In fact, as Florida notes in its September 17, 2012, SIP amendment, EGU emissions in 2010 were already lower than the projected emissions for 2018 used in the State's RPG analysis. In addition, unlike the enforceable emissions limitations and other enforceable measures in the LTS, RPGs are not directly enforceable. See 64 FR 35733; 40 CFR 51.308(d)(1)(v). Because the projected SO 2 emissions reductions are sufficient to meet the RPGs, and because actual emissions in 2010 have been shown to be lower than projected emissions for 2018, EPA is approving Florida's RPGs and LTS.

As noted in the May 25, 2012, proposal, EPA believes that the five-year progress report is the appropriate time to address any changes, if necessary, to the RPG demonstration and/or the LTS. EPA expects that this demonstration will address the impacts on the RPGs of any needed adjustments to the projected 2018 emissions due to updated information on the emissions for EGUs and other sources and source categories. If this assessment determines that an adjustment to Florida's regional haze SIP is necessary, EPA regulations require a SIP revision within a year of the five-year progress report. See 40 CFR 51.308(h)(4).

Comment 2: The Commenter contends that EPA cannot approve Florida's RPGs in a manner consistent with the Administrative Procedure Act (APA) because the Agency did not specifically state that it was proposing to approve the RPGs in the May 25, 2012, action.

Response 2: EPA disagrees with the Commenter that the public was not provided adequate notice that the Agency was proposing approval of the RPGs included in Florida's regional haze SIP and that the public did not have a meaningful opportunity to comment on such a proposed approval. In the May 25, 2012, proposed rulemaking, EPA explicitly and repeatedly stated that it proposed to grant limited approval to the State's March 19, 2010, August 31, 2010, and April 13, 2012, regional haze SIP submittals. 6 See, e.g., 77 FR 31242, 31261. EPA described the content of these submittals in the action and included them in the docket. For example, in Section V.7 (77 FR 31259), entitled “RPGs,” EPA discussed the RPGs included in Florida's SIP subject to the rulemaking action.

As stated in the May 25, 2012, action, a limited approval results in approval of the entire SIP with regards to regional haze, even of those parts that are deficient, preventing EPA from granting a full approval. 7 Because EPA identified the RPGs as part of Florida's regional haze SIP and stated that its proposed action would act as approval of Florida's entire regional haze SIP, the public was provided with adequate notice that EPA's action included approval of Florida's RPGs. Furthermore, in the December 10, 2012, action, EPA explicitly stated that it was proposing full approval of the entire regional haze SIP due to the changes made in Florida's September 17, 2012, final regional haze SIP amendment to address the deficiencies leading to the proposed limited approval and limited disapproval actions. It is not necessary or practical for EPA to single out every element of a SIP submission and expressly state that it is acting on each element when it proposes to act on the SIP submission as a whole. See, e.g., Tucker v. Atwood, 880 F.2d 1250, 1251 (11th Cir. 1989) (explaining that a rulemaking notice under Section 553(b) of the APA “requires no more than `. . . a description of the subjects and issues involved.' ”); Lloyd Noland Hosp. & Clinic v. Heckler, 762 F.2d 1561, 1565 (11th Cir. 1985) (noting that a rulemaking notice “is adequate if `it affords interested parties a reasonable opportunity to participate in the rulemaking process.' ”); Forester v. Consumer Prod. Safety Comm'n, 559 F.2d 774, 787 (D.C. Cir. 1977) (“Section 553(b) does not require that interested parties be provided precise notice of each aspect of the regulations eventually adopted. Rather, notice is sufficient if it affords interested parties a reasonable opportunity to participate in the rulemaking process.”).

EPA's proposal to approve the RPGs is also evident through language in Section V.7 of the May 25, 2012, action stating that the modeling supporting the analysis of these RPGs is consistent with EPA guidance prior to the CAIR remand and that the RPGs for the Class I areas in Florida are based on modeled projections of future conditions that were developed using the best available information at the time the analysis was done. EPA also explained the requirements for a review of the reasonableness of this estimate as part of the mid-course review and notes that FDEP has committed to follow this process.

In addition, the proposed limited SIP disapproval for Florida and other states (December 30, 2011, 76 FR 82219) referenced in Section I of the May 25, 2012, proposal action (77 FR 31242) was explicit that EPA was not proposing to disapprove the RPGs for 2018 and that EPA believed that the five-year progress report was the appropriate time to address any changes to the RPG demonstration and, if necessary, the LTS. See 76 FR 82229. For all of the reasons discussed above, EPA's intention to approve the RPGs for Florida was clear, unambiguous, and consistent with the requirements of the APA.

Comment 3: The Commenter does not believe that EPA can approve Florida's RPGs because the State must re-evaluate its demonstration of reasonable progress based on concrete, definite reductions of visibility-impairing pollutants that result only from those programs and emissions limits that are legally in force. The Commenter states that there is no lawful or rational basis for assuming that the reasonable progress projected by Florida will occur because the State's RPGs rely on CAIR, “a temporary program due to the CAIR remand.” The Commenter also asserts that Florida's RPGs should be disapproved because they “rely upon other control programs whose benefits are far from certain” (e.g., Atlanta/Birmingham/Northern Kentucky 1997 8-hour ozone nonattainment area SIP; consent decrees for Tampa Electric, Virginia Electric and Power Company, and Gulf Power-Plant Crist; Industrial Boiler Maximum Achievable Control Technology (MACT)). The Commenter also takes issue with EPA's assertion that Florida may address any discrepancies between projected emissions and actual reductions in the five-year progress report and contends that the five-year review of RPGs is not a lawful or rational basis for approving the SIP.

Response 3: The technical information provided in the docket demonstrates that the emissions inventory in the SIP adequately reflects projected 2018 conditions and should be approved. In addition, EPA does not believe that the State's reliance on CAIR in developing its RPGs affects EPA's ability to approve these RPGs for the reasons discussed in the response to Comment 1. EPA does not expect that the other inventory differences like those alleged, even if they occur, would affect the adequacy of Florida's regional haze SIP. The RPGs are based on emissions estimates and modeling conducted by VISTAS for its 10 member states, including Florida, which reflect Florida's best estimate of expected conditions in 2018 during the period that the initial March 19, 2010, regional haze SIP submittal was developed.

Florida's 2018 projections are based on the State's technical analysis of the anticipated emissions rates and level of activity for EGUs, other point sources, non-point sources, on-road sources, and off-road sources based on their emissions in the 2002 base year, considering growth and additional emissions controls to be in place and federally enforceable by 2018. The emissions inventory used in the regional haze technical analyses that was developed by VISTAS with assistance from Florida projected 2002 emissions (the latest region-wide inventory available at the time the SIP submittal was being developed) and applied reductions expected from Federal and state regulations affecting the emissions of VOC and the visibility impairing pollutants NO X , particulate matter (PM), and SO 2 . It is expected that individual projections within a statewide inventory will vary from actual emissions over a 16-year period (i.e., 2002-2018 for the first implementation period). For example, some facilities shut down whereas others expand operations. Furthermore, economic projections and population changes used to estimate growth often differ from actual events; new rules are modified, changing their expected effectiveness; and methodologies to estimate emissions improve, modifying emissions estimates.

In the regional haze program, uncertainties associated with modeled emissions projections into the future are addressed through the requirement under the RHR to submit periodic progress reports in the form of a SIP revision. Specifically, 40 CFR 51.308(g) requires each state to submit a report every five years evaluating progress toward the RPGs for each mandatory Class I area located in the state and for each Class I area outside the state that may be affected by emissions from within the state. To minimize the differences between projected emissions and what will actually occur at the end of the implementation period, the RHR requires that the five-year review address any expected significant differences due to changed circumstances from the initial projected emissions, provide updated expectations regarding emissions for the implementation period, and evaluate the impact of these differences on RPGs.

The five-year review is a mechanism to assure that these expected differences between projected and actual emissions (in this case, for the year 2018) are considered and that their impact on the RPGs (in this case, for the year 2018) is evaluated. Despite the Commenter's claims to the contrary, the projections included in the SIP are still reasonably robust projections of emissions expected in 2018 and reflect a reasonable estimate of visibility conditions in 2018. EPA does not expect the five-year review will result in wholesale changes to emissions or visibility estimates and regards the regulatory process established in the RHR to be appropriate. The State's analysis of projected emissions and its reliance on these projections to establish its RPGs meets the requirements of the RHR and EPA guidance and adequately reflects the best estimate of expected ambient conditions in 2018.

Comment 4: The Commenter states that because the RPGs for Florida's Class I areas fail to meet uniform rate of progress (URP) projections for 2018 for two Class I areas, and “barely meet URP for others,” the RPGs are arbitrary and unlawful. The Commenter believes that without CAIR, or any other comprehensive SO 2 control program, there is no rational basis for finding that Florida's RPGs and LTS will provide reasonable progress. The Commenter also states that Florida has not provided an explanation why it was reasonable for the State to fall short of the URP for the St. Marks Class I area (located in Florida) and the Okefenokee Class I area (located in Georgia) based upon the four reasonable progress factors and that EPA may not approve the RPGs until Florida provides such an explanation and has subjected it to notice and comment. The Commenter states that EPA and Florida lack factual support for the position that Florida is likely to do better than predicted once it makes final BART and reasonable progress determinations and that Florida's claims of progress illegally and irrationally rely on emissions reductions from the CAIR program. Even then, according to the Commenter, the plan fails to assure progress sufficient to achieve the URP at two Class I areas and just barely provides for such progress at others.

Response 4: As stated in the proposal, the RHR does not mandate specific milestones or rates of progress, but instead calls for states to establish goals that provide for “reasonable progress” toward achieving natural (i.e., “background”) visibility conditions. In setting RPGs, states must provide for an improvement in visibility for the most impaired days over the first implementation period of the SIP and ensure no degradation in visibility for the least impaired days over the same period. States have significant discretion in establishing RPGs, but are required to consider the following factors established in section 169A of the CAA and in EPA's RHR at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. States must demonstrate in their SIPs how these factors are considered when selecting the RPGs for the best and worst days for each applicable Class I area. States have flexibility in how they take these factors into consideration.

Florida followed EPA guidance and the RHR in preparing its RPGs. The State projects that it will meet the URP at two of its Federal Class I areas and falls just 0.03 deciview (dv) short of the URP at St. Marks. Florida stated in its September 12, 2012, SIP submittal that many of the sources that were projected to reduce emissions due to CAIR have shut down or re-powered (providing greater reductions than projected from emissions controls). The State's SIP submittal also notes that the projected reductions from the Industrial Boiler MACT Rule and EPA's Utility Mercury and Air Toxics Standards (MATS) Rule appear to be providing greater SO 2 reductions than expected when they were evaluated and modeled for reasonable progress. With regard to Florida's assessment of CAIR sources, Florida has reviewed all the facilities subject to BART or reasonable progress analysis on a case-by-case basis and determined BART or reasonable progress requirements for the remaining sources for which additional controls were appropriate.

EPA expects these BART and reasonable progress requirements to provide similar or greater benefits than CAIR. As noted in the September 17, 2012, Florida SIP submittal, emissions from Florida EGUs in 2010 were already below the emissions levels projected for 2018 without these additional BART limitations. As Florida stated on page 174 in its September 2012, SIP submittal, “[t]hese modeling results were used to set the reasonable progress goals. Because not all expected reductions were included in the final modeling runs (due to timing of the runs to be complete in time for SIP submittals), reductions will likely be greater when all BART reductions and reasonable measures are taken into account.” In summary, Florida believes that the RPGs remain valid and that no further assessment is necessary for this first implementation period and EPA agrees with this assessment.

In addition, while SO 2 reductions due to the original Industrial Boiler MACT Rule are included in the 2018 emissions projection, the revised Industrial Boiler MACT Rule is expected to result in even greater emissions reductions than those reductions previously accounted for and evaluated as part of the 2018 projections presented in the submittal. In summary, although the sources and control strategies evaluated as part of the VISTAS process result in a RPG that is 0.03 dv less than the URP projection, Florida asserts, and EPA agrees, that the emissions reductions resulting from existing regulations, plus additional reductions from the newly-promulgated Industrial Boiler MACT, will result in “reasonable progress” that meets or exceeds the URP in all of the Florida Class I areas.

Comment 5: The Commenter contends that Florida must “go beyond the uniform rate of progress analysis to evaluate whether greater progress than the uniform rate is reasonable” and that the SIP is deficient because the State has not provided such an evaluation.

Response 5: EPA affirmed in the RHR that the URP is not a “presumptive target.” Rather, it is an analytical requirement for setting RPGs. See 64 FR 35731-32. If a state sets an RPG that provides a slower rate of visibility improvement than the URP, a state must demonstrate that the RPG is nonetheless reasonable and that it is unreasonable to meet the URP for the Class I area at issue. 40 CFR 51.308(d)(1)(ii). The RHR does not require a state to evaluate whether it would be reasonable to set a RPG that would achieve greater visibility improvement than the URP. In determining RPGs for Florida's Class I areas, the State identified sources eligible for a reasonable progress control evaluation using certain selection criteria (also described in response to Comment 6 and at 77 FR 31251) and described those evaluations in its SIP. Florida performed this reasonable progress evaluation in accordance with EPA regulations and guidance.

Comment 6: The Commenter states that Florida's identification of sources to assess for reasonable progress is flawed and cannot be approved by EPA because the State selected sources for reasonable progress control based upon its assumption that CAIR would maintain reasonable progress towards visibility goals during the first implementation period (i.e., the Commenter believes that the State relied on CAIR to reduce the number of sources evaluated for reasonable progress controls). The Commenter also states that because Florida expected “visibility in Class I areas to improve at or very near the nominal straight line path to the 2064 goal” based on this assumption, it selected a ratio of source emissions (“Q”) divided by distance from a Class I area (“d”) of 50 as the threshold for reasonable progress evaluation (five times the nominal significance criteria) and that Florida narrowed the field further by eliminating units that emit less than 250 tons per year of SO 2 and are more than 300 kilometers (km) from a Class I area, “leaving 16 of these very large sources unconsidered for RP controls.” The Commenter states that Florida's approach, in CAIR's absence, now falls “well short of the [RHR's] mandate that the state `consider major and minor stationary sources, mobile sources, and area sources' as it develops emissions limitations” and to include all “measures necessary to achieve the RPGs.” The Commenter does not believe that EPA can approve Florida's approach unless the State can demonstrate that its methodology is warranted even in CAIR's absence and that, without CAIR in place, Florida acted arbitrarily in increasing the nominal significance criteria.

According to the Commenter, the State must revise its Q/d threshold for its BART exemption modeling to “rationally identify those sources which may cause or contribute to visibility impairment in one or more Class I areas.”  8 The Commenter also believes that Florida's approach was flawed because it was based solely on SO 2 emissions; the State's LTS should have also considered reducing NO X and NH 3 emissions; sulfate emissions account for only 30-60 percent of the impairment at the Everglades Class I area; and Florida excluded all sources that commenced construction or submitted a complete application after August 30, 1999, from its reasonable progress review. Therefore, the Commenter believes that Florida arbitrarily ignored a large percentage of sources that emit visibility impairing pollutants.

Response 6: States are required to consider the improvement expected from existing CAA programs (such as CAIR for affected states) in setting their RPGs. Thus, Florida appropriately factored in the expected emissions reductions and resulting visibility improvement from the implementation of CAIR in setting its RPGs. However, the identification of the major sources in Florida contributing to visibility impairment and the necessary emissions reductions from these sources was not winnowed because of CAIR. As discussed below, Florida established and applied certain criteria to identify for a reasonable progress control evaluation the largest known sources of SO 2 having the potential to impair visibility in Class I areas. The Florida LTS was developed by the State, in coordination with the VISTAS RPO, through an evaluation of the following components: (1) Identification of the emissions units within Florida and in surrounding states that likely have the largest impacts currently on visibility at the State's Class I areas; (2) estimation of emissions reductions for 2018 based on all controls required or expected under Federal and state regulations for the 2004-2018 period (including BART); (3) comparison of projected visibility improvement with the URP for the State's Class I areas; and (4) application of the four statutory factors in the reasonable progress analysis for the identified emissions units to determine if additional controls were reasonable.

As discussed in EPA's May 25, 2012, proposal, Florida's assessment concluded that ammonium sulfate is the largest contributor to visibility impairment at the State's Class I areas as a whole. See 77 FR 31250. For the Chassahowitzka and St. Marks Class I areas, these ammonium sulfate particles, resulting from SO 2 emissions, contribute roughly 71 percent of the calculated light extinction on the haziest days, and in Everglades National Park, the ammonium sulfate contribution was 40 percent of the calculated light extinction on the haziest days (due to a greater relative influence from organic carbon). Visibility impairment at Everglades National Park is occasionally dominated by organic carbon emissions due to lower SO 2 emissions in South Florida and the park's greater distance from large continental SO 2 emissions sources. However, controlling anthropogenic carbon emissions sources was determined not to be a viable strategy for improving visibility for the first implementation period because the organic carbon emissions are primarily biogenic in origin. Therefore, reduction of SO 2 emissions would be the most effective means of reducing visibility impairment at Florida's Class I areas. Because over 85 percent of 2002 SO 2 emissions in Florida were attributable to EGUs and industrial point sources, EPA considers Florida's decision to focus on SO 2 emissions from these facilities as a reasonable application of EPA's Guidance for Setting Reasonable Progress Goals Under the Regional Haze Program   9 (EPA's Reasonable Progress Guidance).

The State then considered three variables that each play a strong role in determining the impact any source may have on a particular Class I area. The first variable is the amount of SO 2 emissions (the greater the emissions, the more likely a source may impact visibility); the second variable is distance to a Class I area (visibility impacts decrease as distance from a Class I area increases); and the third variable is frequency of winds (residence time) in the direction of the Class I area from the source (trajectory analysis). The VISTAS States considered a number of different combinations of these variables as a surrogate for visibility impact.

The Commenter raises concerns relating to the Q/d threshold for BART exemption modeling in Florida. To clarify, the State used the Q/d metric as a threshold to identify those sources of SO 2 subject to a reasonable progress control evaluation, not for BART evaluations. Florida chose to develop a reasonable progress source-selection metric based on Q/d that would be essentially equivalent to the VISTAS metric with several differences. Florida chose to use 2002 emissions for Q, instead of the 2018 projections that VISTAS used in its suggested methodology for determining sources subject to a reasonable progress evaluation developed by its member states. Because the Integrated Planning Model (IPM) projected conversion of virtually all of the oil-fired boilers in Florida to natural gas, using 2018 emissions estimates of SO 2 from these sources would have exempted these units from reasonable progress review. Thus, the approach Florida used was more likely to result in selection of certain larger SO 2 sources for reasonable progress control analysis.

As a general strategy, Florida did not want to base its selection of sources for a reasonable progress review on the IPM's prediction of how the CAIR market-based reductions will occur. Rather, Florida chose to use criteria that would include the known largest sources having the greatest potential to impair visibility and that would ensure that these sources are addressed through the reasonable progress process. Because the State was evaluating existing sources for additional control, rather than simply screening whether a proposed new facility warranted further evaluation, Florida chose a Q/d threshold equal to 50 rather than 10 to assure that many of the largest sources of SO 2 nearest the Class I areas were required to address reasonable progress, while smaller sources (not expected to provide significant, cost-effective reductions) were excluded. Similarly, Florida provided some bounds for the Q and d values. The State excluded small (< 250 tons per year) units because any reductions from theses sources would likely be small and not very cost-effective for the first implementation period. Also, Florida's decision to consider only sources within 300 km of a Class I area was consistent with the bounds used in the protocol developed by VISTAS, Protocol for the Application of the CALPUFF Model for Analyses of Best Available Retrofit Technology (BART), 10 dated December 22, 2005, for the BART-exemption analysis. Finally, Florida only considered sources that commenced construction or submitted a complete application prior to August 30, 1999. This date was chosen because, under Florida's permit review process, all permits issued after that date require that visibility specifically be addressed. Hence, it is unlikely that additional cost-effective controls would be identified.

EPA disagrees that Florida's Q/d threshold must be revised. The guidance referenced by the Commenter is not directly relevant to the process developed by Florida for screening sources for a reasonable progress analysis during the first implementation period. 11 This guidance, issued by the Federal Land Managers in 2010, refers to the initial screening test for new or modified sources subject to EPA's New Source Review (NSR) regulations to determine whether a visibility evaluation is necessary for these proposed new sources. This document is not part of the guidance developed by EPA or used by states to develop their long-term strategies for regional haze.

As noted in EPA's Reasonable Progress Guidance  12 and discussed further in EPA's May 25, 2012, proposal action on the Florida regional haze SIP (77 FR 31250), the RHR gives states wide latitude to determine additional control requirements, and there are many ways to approach identifying additional reasonable measures as long as the four statutory factors are considered. Florida explained that its intent in choosing a Q/d threshold of 50 was to assure that many of the largest sources of SO 2 that are closest to the Class I areas were required to address reasonable progress, while smaller sources (not expected to provide significant, cost-effective reductions in the first implementation period) were excluded. EPA finds this explanation to be reasonable. Florida also included a comparison between its methodology and the VISTAS methodology and demonstrated that the differences were minimal. For example, 15 units that were identified by the VISTAS methodology were exempted under Florida's method, but Florida also identified nine additional units for analysis that the VISTAS method would have excluded. Of the 15 units identified by the VISTAS methodology but excluded by the Florida methodology, nine have a Q/d of less than 17 and five others are BART-subject sources. EPA regards the Florida methodology as an acceptable approach for determining the sources that should be subject to a reasonable progress analysis for the first implementation period.

Comment 7: The Commenter contends that EPA cannot approve Florida's reasonable progress control determinations as proposed because the State's reasonable progress analysis relies on CAIR or CSAPR. The Commenter believes that trading programs such as CAIR and CSAPR are not reliable guarantors of emissions controls under the regional haze program (incorporating by reference its February 28, 2012, comments on EPA's proposed rule to find that CSAPR is better than BART). The Commenter also states that EPA's analysis and approval of CSAPR as being better than BART does not validate the use of the CSAPR for reasonable progress as a matter of course and that such a determination must be made on a state-by-state basis, upon consideration of whether CSAPR assures reasonable progress or if further controls are required. Additionally, the Commenter does not believe that CSAPR can assure reasonable progress because CSAPR controls only ozone season NO X in Florida, while Florida has determined that the bulk of visibility impairment at its Class I areas is due to SO 2 emissions.

Response 7: EPA addressed the Commenter's February 28, 2012, comments on CSAPR in its June 7, 2012, better-than-BART action (77 FR 33642). Regarding the comments about a relationship between CAIR, CSAPR, and reasonable progress in Florida, see the response to Comment 1. EPA did not propose in its May 25, 2012, action, and is not approving in this action, a conclusion that no additional controls for EGUs in Florida beyond CAIR or CSAPR are reasonable in the first implementation period. The State performed source-by-source analyses of the SO 2 emissions control alternatives for the affected facilities and made case-by-case reasonable progress determinations for each of these sources. EPA is relying on these analyses to address reasonable progress requirements. The State has adequately justified focusing on SO 2 emissions for its reasonable progress demonstration, as discussed in the response to Comment 6, and did not consider additional NO X reductions in its reasonable progress demonstration for this implementation period.

Comment 8: The Commenter does not believe that EPA can approve Florida's exemption of JEA Northside Unit 27 from a reasonable progress analysis on the grounds that it took permit limits in 2009 to limit its SO 2 emissions. 13 The Commenter believes that Florida's exclusion of this facility from a reasonable progress analysis is arbitrary and inconsistent with the RHR because visibility impacts are measured based on a one-hour averaging time and the Commenter does not believe that these federally enforceable limits ensure that short-term visibility impacts are not experienced in the Okefenokee Class I area. The Commenter states that these permit limits must be modified to provide for a one-hour averaging time unless there is a “reasoned and factually supported explanation in the SIP as to why short-term visibility impacts will not occur despite the permit's relatively long averaging times.”

Response 8: EPA disagrees with the Commenter's contention that the differences in averaging time identified in the comment should affect the Agency's findings and conclusions for Northside Unit 27.” The reasonable progress evaluation is performed for the 20 percent best and worst days. While EPA does assess Interagency Monitoring of Protected Visual Environments (“IMPROVE”) samples over a 24-hour time period (not hourly as stated by the Commenter), none of the visibility program requirements are based on these 24-hour peaks. Both the 20 percent best days and 20 percent worst days represent an average over one-fifth of monitored days of the year. Because this is a relatively long time period, it tends to “smooth out” any variations that would occur over a shorter time period. EPA finds no reason to believe that there is a need to address any potential short-term variations in emissions with a short-term emissions limit.

Comment 9: The Commenter does not believe that EPA's May 25, 2012, proposal states the Agency's intentions with sufficient clarity or that EPA can approve SIP components that it has not clearly proposed to approve in the notice. According to the Commenter, EPA has not met the APA's notice and comment provisions governing rulemaking requiring that an agency clearly state what it is proposing so that members of the public have adequate notice and can offer informed comment. The Commenter provides two examples of instances where it believes that EPA has not clearly stated whether it is proposing approval or disapproval of a particular SIP component (i.e., RPGs and the reasonable progress demonstration).

Response 9: As discussed in the response to Comment 2, EPA disagrees there was any ambiguity in its clearly stated intention in the May 25, 2012, proposed rulemaking action to grant limited approval to the March 19, 2010, August 31, 2010, and April 13, 2012, Florida regional haze SIP submittals and the Agency's position that the limited approval acted as approval of these SIP submittals in their entirety. EPA devoted significant text in the May 25, 2012, rulemaking notice to RPGs and the reasonable progress demonstrations, and included the three SIP submittals (subject to the proposed action) in the docket for public review. Because EPA identified the RPGs and reasonable progress demonstrations as part of the SIP, and stated that its proposed action would act as approval of the entire three regional haze SIP submittals, the public was provided with adequate notice that EPA's action included approval of Florida's RPGs and reasonable progress demonstrations. Furthermore, in the December 10, 2012, action, EPA explicitly stated that it was proposing full approval of the entire regional haze SIP due to the changes made in Florida's September 17, 2012, final regional haze SIP amendment to address the deficiencies leading to the proposed limited approval and limited disapproval actions.

It is not necessary or practical for EPA to single out every element of a SIP submittal and expressly state that it is acting on each element when it proposes to act on the SIP as a whole. See, e.g., Tucker v. Atwood, 880 F.2d at 1251 (explaining that a rulemaking action under Section 553(b) of the APA “requires no more than `. . . a description of the subjects and issues involved.' ”); Lloyd Noland Hosp. & Clinic v. Heckler, 762 F.2d at 1565 (noting that a rulemaking notice “is adequate if `it affords interested parties a reasonable opportunity to participate in the rulemaking process.' ”); Forester v. Consumer Prod. Safety Comm'n, 559 F.2d at 787 (“Section 553(b) does not require that interested parties be provided precise notice of each aspect of the regulations eventually adopted. Rather, notice is sufficient if it affords interested parties a reasonable opportunity to participate in the rulemaking process.”).

Comment 10: The Commenter believes that it is improper for EPA to withhold full approval of Florida's regional haze SIP because CAIR is still in effect.

Response 10: See the response to Comment 1. In this action, EPA is now fully approving Florida's regional haze SIP because the State has replaced its reliance on CAIR with source-specific emissions limitations to satisfy both the BART requirements and the requirement for a LTS sufficient to achieve the state-adopted RPGs.

Comment 11: The Commenter contends that FDEP improperly rejected wet flue gas desulfurization (FGD) as BART for Units 1 and 2 at Lansing Smith. The Commenter states that it would be arbitrary and capricious for EPA to approve the BART determination because the analysis inflated the cost-effectiveness of wet FGD by using an emissions limit of 0.15 lb/MMBtu of SO 2 rather than the removal efficiency potential of 95 percent identified by Gulf Power and by not evaluating the most stringent control efficiency associated with wet FGD (asserted to be 98 percent or greater). The Commenter also states that wet FGD is cost-effective even using the “flawed” values provided in the SIP because Florida's values are “still easily within the range which EPA has already determined to be cost-effective elsewhere” and because they are lower than cost-effectiveness values associated with BART controls adopted by FDEP at FPL's Manatee power plant.

Response 11: In evaluating the statutory BART factors for FGD, FDEP most heavily weighed the lack of visibility improvement associated with this control technology for Lansing Smith, not the cost of control. States have the flexibility to determine the weight and significance of each factor. See, e.g., 70 FR 39123, 39153, 39170 (July 6, 2005). As discussed in EPA's December 10, 2012, proposal, the model predicted limited visibility improvements considering both the absolute visibility benefits of FGD from the baseline as well as the incremental benefits from the use of FGD over dry sorbent injection (DSI). FDEP concluded that the predicted incremental improvements in visibility of 0.07 dv for Unit 1 and 0.09 dv for Unit 2 for the 98th percentile highest day over three years were not sufficient in light of the costs to warrant the selection of FGD as BART, regardless of whether FGD is cost-effective on a dollars per ton basis.

EPA agrees that if FDEP had assumed either a 95 percent or 98 percent removal efficiency for wet FGD, then Florida's cost-effectiveness values would have been slightly lower, while the modeled visibility improvement would have been slightly higher. As explained in EPA's BART Guidelines, 14 however, sources evaluating post-combustion SO 2 controls can consider a presumptive limit of either 95 percent control or 0.15 lb/MMBtu when performing a five-factor BART analysis. 15 Therefore, while FDEP could have used a higher removal efficiency in evaluating wet FGD, EPA believes that it was reasonable for FDEP to conduct its analysis using an emissions limit of 0.15 lb/MMBtu. Moreover, even had FDEP used a higher removal efficiency, the incremental visibility improvement expected from wet FGD over DSI would not have increased sufficiently to render FDEP's conclusion unreasonable.

Comment 12: The Commenter states that the visibility benefits associated with wet FGD are significant and that it is therefore inappropriate for EPA to dismiss these improvements. The Commenter concludes that EPA has overemphasized the incremental visibility improvements between wet FGD and DSI rather than evaluating the overall improvement associated with wet FGD and that it is improper for EPA to disregard the incremental improvements on the basis that they are less than 0.5 dv. The Commenter also concludes that EPA must consider the visibility improvement from wet FGD in relation to the statutory goal of eliminating visibility impairment. According to the Commenter, the improvement associated with wet FGD is “significant” in light of the 0.244 dv annual rate of progress required to achieve the national goal at the St. Marks Class I area and because the State is “already falling short of the uniform rate of progress required to restore visibility by 2064” at this Class I area. The Commenter further states that it would be arbitrary and capricious for EPA to reject wet FGD based on incremental visibility values when the incremental benefits from wet FGD are greater than the incremental visibility improvement between DSI and the switch to lower sulfur coal.

Response 12: See the response to Comment 11. FDEP did not summarily disregard wet FGD using a 0.5 dv threshold. FDEP evaluated the visibility improvements associated with wet FGD for Lansing Smith under a five-factor BART analysis and concluded that these improvements were minimal and did not warrant the selection of wet FGD as BART for the facility. The State has flexibility to weigh the five factors. See 70 FR 39170 (July 6, 2005). As discussed in Florida's regional haze SIP, FDEP does not believe that St. Marks will fall short of the URP target in light of the additional BART and reasonable progress measures added to the regional haze SIP after the modeling of reasonable progress was conducted and the retirement and conversion to natural gas of several EGUs. Moreover, states need not consider the URP at a specific Class I area in determining whether the visibility benefits associated with a given control option warrant its selection as BART. The URP is a metric that states use in setting their RPGs. A state's RPGs, in turn, need not be met by requiring the most stringent control technology at a single source, but rather can be met with a variety of control options and strategies that apply to various sources throughout the state. Here, EPA concurs with FDEP's assessment that the incremental visibility improvements associated with wet FGD at Lansing Smith are insufficient to warrant the technology's selection as BART.

Comment 13: The Commenter argues that the energy and non-air quality issues cited by FDEP (e.g., four megawatt (MW) power penalty, generation of scrubber waste) are immaterial and not sufficient to reject wet FGD as BART.

Response 13: FDEP included an evaluation of the energy and non-air quality impacts associated with wet FGD for completeness because these impacts are, collectively, one of the five statutory factors to be considered in a BART determination. This factor was not determinative in this instance because FDEP concluded that the visibility impacts associated with wet FGD for Lansing Smith did not warrant selection of this control technology as BART for the facility.

Comment 14: The Commenter contends that FDEP improperly rejected dry FGD as BART for Units 1 and 2 because the State did not fully consider the technology or provide any evidence supporting its cost and control efficiency claims that a full analysis is not required based on FDEP's determination that dry FGD is more expensive than wet FGD and has the same or lower control efficiency. The Commenter asserts that dry FGD is technically feasible and can achieve control efficiencies of up to 98 percent removal. The Commenter also claims that it would be arbitrary and capricious for EPA to approve FDEP's rejection of dry FGD at Lansing Smith because the State approved the technology as BART at Crystal River.

Response 14: See the response to Comment 11. EPA's BART Guidelines provide that in identifying control options, states must identify the most stringent option and a reasonable set of options for analysis that reflects a comprehensive list of available technologies. 16 It is not necessary to list all permutations of available control levels that exist for a given technology. The BART Guidelines also state that a “possible outcome of the BART procedures discussed in these guidelines is the evaluation of multiple control technology alternatives which result in essentially equivalent emissions. It is not our intent to encourage evaluation of unnecessarily large numbers of control alternatives for every emissions unit. Consequently, you should use judgment in deciding on those alternatives for which you should conduct detailed impacts analyses. . . . For example, if two or more control techniques result in control levels that are essentially identical, considering the uncertainties of emissions factors and other parameters pertinent to estimating performance, you may evaluate only the less costly of these options.”  17 EPA does not regard the differences in removal efficiency or cost between wet FGD and dry FGD to be sufficient in this instance to warrant an independent assessment of dry FGD as BART for Lansing Smith.

Comment 15: The Commenter believes that FDEP's use of a 0.15 lb/MMBtu emissions limit underestimates the visibility benefits from a FGD system because it is equivalent to 89 percent control. The Commenter alleges that a control efficiency of 95 percent or 98 percent is achievable.

Response 15: See response to Comment 11. Changing the SO 2 control rate to the level suggested by the Commenter would not sufficiently alter the results of the modeling analysis for Lansing Smith to change the conclusion reached by FDEP. Furthermore, FDEP appropriately modeled FGD assuming a maximum allowable emissions rate of 0.15 lb/MMBtu. The actual percent reduction associated with this limit varies depending on the sulfur content of the coal burned. Different assumptions regarding the sulfur content of future coal used would result in different estimates of the emissions rate. For example, although the 0.15 lb/MMBtu rate results in an approximately 89.5 percent reduction from baseline emissions on an annual basis, it results in 93 and 91.5 percent reductions at Units 1 and 2, respectively, on the maximum actual short-term (24-hour) basis used in the baseline visibility assessment. Finally, it is also important to note that the 0.15 lb/MMBtu limit also takes into account emissions from startup, shutdown, and malfunction because the BART limit must be met on a continuous basis.

Comment 16: The Commenter believes that FDEP underestimated the visibility improvement associated with wet FGD, thereby making it less cost-effective, by only estimating Lansing Smith's visibility impacts on St. Marks, the only Class I area within 300 km of the facility. The Commenter states that EPA must consider CALPUFF modeling results from Federal Class I areas beyond 300 km and the cumulative visibility impacts across these multiple areas. The Commenter cites to a May 2012 report entitled “Long Range Transport Models Using Tracer Field Experiment Data” in support of its position that changes to CALPUFF since the publication of the 1998 Interagency Workgroup on Air Quality Modeling (IWAQM) Phase 2 guidance requires consideration of visibility impacts beyond 300 km. The Commenter also contends that a rough analysis based on the visibility impacts for St. Marks using linear and simple Gaussian dispersion assumptions reveals that the impacts at Class I areas other than St. Marks may be significant.

Response 16: As a general matter, EPA agrees that Florida should have considered the visibility improvements at all affected Class I areas in its BART visibility assessments. For the Lansing Smith BART analysis, Florida modeled visibility impacts at St. Marks, the only mandatory Class I Federal area within the surrounding 300 km CALPUFF modeling domain used by FDEP to assess visibility impacts. FDEP conducted the visibility modeling consistent with the modeling protocol that VISTAS developed for preparing BART analyses entitled Protocol for the Application of the CALPUFF Model for Analyses of Best Available Retrofit Technology (BART). (See appendix L of the Florida regional haze SIP submittal). This modeling protocol was developed in a transparent manner involving states, EPA, NPS, Fish & Wildlife Service (FWS), and any other interested entities that wished to participate in the public process. The protocol establishes 300 km as the boundary around a BART-subject source in which to model potential visibility impacts at Class I areas, and consistent with this protocol, FDEP modeled the highest visibility impact from the nearby Class I areas within a 300 km radius of the source. As noted above, there are no Class I areas other than the St. Marks area within the 300 km boundary around Lansing Smith's BART-subject units.

EPA disagrees with the Commenter's assertion that changes to CALPUFF now support modeling at distances greater than 300 km. The Commenter cited a May 2012 technical evaluation ( Documentation of the Evaluation of CALPUFF and Other Long Range Transport Models Using Tracer Field Experiment Data   18 ) that evaluates several long range transport models based on several tracer studies. The report cited by the Commenter does not refute the IWAQM Phase 2 report which states that “IWAQM recommends use of CALPUFF for transport distances of order 200 km and less. Use of CALPUFF for characterizing transport beyond 200 to 300 km should be done cautiously with an awareness of the likely problems involved.”  19 In fact, the May 2012 report further “emphasizes the need for a standardized set of options for regulatory CALPUFF modeling.”  20 Given these findings, EPA does not agree, as the Commenter asserts, that it must consider CALPUFF modeling results from Federal Class I areas beyond 300 km. EPA therefore believes that the results of CALPUFF modeling beyond 300 km of the source should be evaluated in light of the limitations discussed in the two guidance documents cited above.

Finally, as discussed in the response to Comment 11, FDEP concluded that the predicted incremental improvements in visibility of 0.07 dv for Unit 1 and 0.09 dv for Unit 2 for the 98th percentile day at St. Marks were not sufficient to warrant the selection of FGD as BART. The visibility improvements associated with FGD for the Class I areas outside of the 300 km area are expected to be even lower than those modeled for St. Marks. EPA does not believe that, even had impacts at Class I areas beyond 300 km been modeled, the visibility benefits of wet FGD across all Class I areas would be sufficient to make FDEP's SO 2 BART determination for Lansing Smith unreasonable. The Commenter estimates visibility impacts based on “linear and simple Gaussian dispersion assumptions,” but did not provide any further information on how it developed these estimates or how EPA should consider them.

Comment 17: The Commenter states that EPA cannot approve the wet FGD BART analysis without further explanation from FDEP because Gulf Power provided emissions data for 2003-2005, while it modeled the visibility impacts of these emissions based on meteorological data from 2001-2003.

Response 17: FDEP chose 2001-2003 as its baseline period. It is not necessary to match the years of meteorology with the years of emissions in a BART analysis as long as both sets of data are representative. EPA guidance states that the “emissions estimates used in the models are intended to reflect steady-state operating conditions during periods of high capacity utilization.”  21 Concerning the choice of an alternate period for the emissions data, EPA has reviewed the SO 2 emissions data for the Lansing Smith power plant in the EPA Clean Air Markets Division (CAMD) database  22 for the 2000-2005 period. EPA found that the 2002 SO 2 emissions from Lansing Smith were lower than the SO 2 emissions for any other year in this period and are not representative of steady-state operating conditions during periods of high capacity utilization. The SO 2 emissions from 2003-2005 appear to be the most representative three-year period in this time frame and EPA supports the State's use of this more representative data.

Comment 18: The Commenter states that EPA cannot approve FDEP's rejection of wet FGD as BART without a more thorough review of the cost analysis. According to the Commenter: (1) The analysis is based on un-sourced and potentially biased data from an entity within Gulf Power's parent company; (2) the data underlying the control effectiveness estimates is not publicly available; (3) the cost estimates likely do not follow the EPA Air Pollution Control Cost Manual (“EPA Control Cost Manual” );  23 and (4) the assumptions regarding a seven percent interest rate and 20-year scrubber lifetime are inappropriate.

Response 18: EPA reviewed the cost estimates provided by Gulf Power and found that they are consistent with those resulting from application of EPA's Control Cost Manual. Appendix I of the Florida regional haze SIP submittal describes how members of the public can obtain access to the data underlying the cost analysis. EPA believes that Florida has adequately addressed data access and that the State's cost analysis is consistent with the BART Guidelines. The seven percent interest rate used by FDEP is consistent with EPA's Control Cost Manual and guidelines issued by the Office of Management and Budget (Circular A-94). Furthermore, adjusting the scrubber lifetime from 20 to 30 years would affect the cost analysis only by approximately 10 to 11 percent. Decreasing the estimated cost of FGD by 10 percent would not make FDEP's conclusion that wet FGD is not SO 2 BART for Lansing Smith unreasonable given the minimal incremental visibility improvements associated with this technology at this facility.

Comment 19: The Commenter asserts that EPA cannot approve the PM BART limit of 0.1 lb/MMBtu for Lansing Smith, which is the existing limit in the facility's title V permit, without considering lowering the limit to reflect the most stringent emissions control level that the facility's electrostatic precipitators (ESPs) are capable of achieving. The Commenter claims that it would be an arbitrary and capricious action for EPA to approve this limit as PM BART because the existing ESPs achieve emissions rates of 0.014 and 0.015 lb/MMBtu.

Response 19: In its BART analysis, FDEP evaluated actual PM emissions from Units 1 and 2 with current controls (high efficiency hot- and cold-side ESPs), the impact of these emissions on visibility at St. Marks, existing permit conditions, and the visibility improvement associated with reducing the PM limits beyond the facility's actual emissions. In assessing impacts due to PM emissions at St. Marks, FDEP reviewed historic PM emissions from Units 1 and 2 and established a baseline filterable PM 10 emissions rate of 47.9 lb PM/hour, equal to approximately 0.025 lb/MMBtu for Unit 1 and 0.021 lb/MMBtu for Unit 2, derived from the highest stack test for the three-year period of 2003-2005 combined with maximum heat input. FDEP modeled visibility impairment using this baseline and calculated an impact at St. Marks due to PM emissions from Units 1 and 2 of approximately 0.02 dv, equal to 1.3 percent of the total baseline impact. FDEP also evaluated fabric filters as a possible BART control option, which would reduce PM emissions to a rate of 0.008 lb/MMBtu, and found that reducing PM emissions beyond the baseline emissions rate would result in a visibility improvement of 0.00 dv at St. Marks.

While the existing permit limit of 0.1 lb/MMBtu is above actual controlled emissions levels and FDEP arguably should have tightened the limit to reflect the capabilities of the existing ESPs, EPA believes that FDEP's decision not to tighten the limit was reasonable for several reasons. First, the impact of tightening Lansing Smith's PM emissions limit would be minimal from a visibility perspective. Second, Lansing Smith's current operating permit does not authorize the facility to increase PM emissions beyond the actual controlled levels when the facility installs DSI for SO 2 BART. EPA notes that Lansing Smith must submit a comparison of baseline actual emissions to future actual emissions once a final design is available for the installation of DSI at the facility. This comparison should be available in early 2015. At that time, FDEP will need to determine whether the installation of DSI will cause a significant increase in the facility's PM emissions, thereby triggering PSD review. Third, MATS was promulgated on April 24, 2013, (78 FR 24073) for existing sources and will further limit PM emissions from Units 1 and 2 to 0.03 lb/MMBtu by 2015. For these reasons, EPA believes that the existing permit limit of 0.1 lb/MMBtu for Units 1 and 2 at Lansing Smith is adequate for PM BART at this time. However, EPA expects FDEP to review the PM emissions limit in the next regional haze implementation period, at which time the PM impacts, if any, from the operation of DSI for SO 2 BART will be clear.

Comment 20: The Commenter claims that the modeling files have not been made available and that EPA cannot evaluate or approve the BART determinations for the Lansing Smith facility without this information. The Commenter requests that EPA obtain the modeling files, evaluate them for consistency with the BART Guidelines and Control Cost Manual, and provide them for public review and comment.

Response 20: Appendix I of the Florida regional haze SIP submittal describes how members of the public can obtain access to the modeling files. It also states that the raw meteorological, emissions, and air quality modeling input and output datasets will in many cases surpass any practical file size for online storage or downloading. EPA has accessed the data in this manner and reviewed the appropriate files. EPA believes that Florida has adequately addressed data access and that the State's visibility modeling for Lansing Smith is consistent with the BART Guidelines. The EPA Control Cost Manual is not relevant to visibility modeling.

Comment 21: The Commenter notes that under Option 1 (shutdown), the underlying BART analysis does not consider the use of DSI as an interim control for SO 2. The Commenter believes that an analysis of this control is required before EPA can approve the proposed BART determination.

Response 21: EPA has evaluated the cost-effectiveness of DSI under the shutdown option and concludes that, although FDEP should have evaluated DSI as a possible interim BART control option, DSI would not be cost-effective. 24 EPA estimates that DSI would result in approximately $46,000,000 in capital costs and $54,000,000 in annual operating costs at the Crystal River facility, not including expenses for any necessary upgrades to the ESPs due to the increased loading from the DSI system or the potential costs due to local retrofit constraints. 25 Allowing time for permit approvals, engineering, construction, and installation, and assuming that DSI could be fully operational by the end of 2017 under an expeditious schedule, DSI would be in operation for approximately three years before the units would be shut down at the end of 2020. At an expected control efficiency of 50 percent, EPA estimates that the annual SO 2 reduction would be 4,644 tons from Unit 1 and 5,912 tons from Unit 2 at a cost-effectiveness of $6,897/ton and $6,943/ton of SO 2 removed, respectively. 26 EPA also evaluated the cost-effectiveness of operating DSI for five years rather than three, but still found that the cost-effectiveness values would exceed $6,000/ton. Therefore, EPA concurs with FDEP's SO 2 BART determination for Crystal River because the cost-effectiveness of DSI is higher than what EPA or Florida has considered to be BART in other BART determinations selecting DSI.

Comment 22: The Commenter does not believe that EPA can approve Option 2 of the Crystal River BART determination because of alleged inadequacies in the BART analyses that resulted in BART determinations for SO 2 , PM, and NO X with emissions limits that were less stringent than the Commenter considered appropriate as BART for this facility.

Response 22: On May 2, 2013, FDEP supplemented Florida's regional haze SIP with an April 30, 2013, letter from Duke Energy (formerly known as Progress Energy) notifying FDEP of the Company's binding decision to pursue Option 1 under the Crystal River BART construction permit and shut down Units 1 and 2 by December 31, 2020. Pursuant to the construction permit, which was incorporated into Florida's regional haze SIP, Duke Energy's binding determination renders Option 2 and the corresponding permit provisions allowing for the implementation of Option 2 void. Today's final action approving Florida's regional haze SIP makes this shutdown requirement federally enforceable. Hence, EPA regards any comments on Option 2 to be moot.

Comment 23: The Commenter recommends that selective non-catalytic reduction (SNCR) be re-evaluated as an interim control under Option 1 based on its contention that the technology can be installed in much less than five years, thus improving its cost-effectiveness by increasing its useful life.

Response 23: EPA does not believe that SNCR would be cost-effective as an interim control on Units 1 and 2 given the remaining useful life of this facility. Although EPA disagrees with FDEP's conclusion that SNCR is not a demonstrated technology for boilers of this size, it does concur with FDEP that detailed engineering and site-specific assessments would be necessary to design and install SNCR given the nature of the units and that these assessments could take substantial additional time to complete. Compared with smaller coal-fired boilers, the engineering design for Units 1 and 2 would require consideration of the limited access to temperature regions in the boiler, greater variations in combustion temperatures, longer distances over which reagent must be delivered and mixed, and increased ammonia slip due to less optimal use of reagent. Even if FDEP had evaluated SNCR as an interim measure and determined that SNCR was technically feasible, this facility would likely have had until mid-2018 under the Florida BART rule  27 to begin operating a SNCR system, which would then have ceased operation by no later than 2020 when the facility shut down. Thus, the limited remaining useful life of this facility makes the application of SNCR as an interim control option not practicable for Units 1 and 2.

Comment 24: The Commenter does not believe that EPA can approve Florida's regional haze SIP until FDEP considers the visibility impacts of Crystal River's NO X emissions on Class I areas other than Chassahowitzka, the nearest Class I area.

Response 24: No further visibility analysis is required for Crystal River because Duke Energy must now shut down Units 1 and 2 by December 31, 2020. EPA agrees that Florida should have considered the visibility improvements at all affected Class I areas in its BART visibility assessments under Option 1; however, EPA does not believe that doing so would have altered the outcome given the limited remaining useful life of the facility.

Comment 25: The Commenter believes that the visibility modeling for Lakeland Electric's C.D. McIntosh Jr. (McIntosh) facility should have considered cumulative visibility impacts from Everglades National Park, Okefenokee, and Chassahowitzka.

Response 25: As a general matter, EPA agrees that Florida should have considered the visibility improvements at all affected Class I areas in its BART visibility assessments. For the McIntosh BART analysis, Florida modeled visibility impacts at Chassahowitzka, the nearest Class I area to the facility, as well as at Everglades National Park and Okefenokee, the other mandatory Class I Federal areas within the surrounding 300 km CALPUFF modeling domain used by FDEP. FDEP conducted the visibility modeling consistent with the modeling protocol that VISTAS developed for preparing BART analyses entitled Protocol for the Application of the CALPUFF Model for Analyses of Best Available Retrofit Technology (BART). (See appendix L of the Florida regional haze SIP submittal.) This modeling protocol was developed in a transparent manner involving states, EPA, NPS, FWS, and any other interested entities that wished to participate in the public process. The protocol establishes 300 km as the boundary around a BART-subject source in which to model potential visibility impacts at Class I areas, and consistent with this protocol, FDEP modeled the highest visibility impact from the three Class I areas within a 300 km radius of the source.

While FDEP should have considered the visibility improvement at Everglades and Okefenokee when conducting its BART analyses for McIntosh, EPA does not believe that FDEP not doing so has rendered its BART determinations unreasonable. As discussed in more detail in the responses below, FDEP rejected several SO 2 BART options based on excessive cost, not visibility improvement. Moreover, while FDEP did eliminate several NO X BART options based on low visibility improvement, those values were so low that EPA does not believe that a consideration of cumulative impacts would alter the reasonableness of FDEP's conclusions, especially in light of the fact that the baseline visibility impacts for the 98th percentile most impacted day at Everglades and Okefenokee were only 31 percent and 27 percent, respectively, of those at Chassahowitzka.

Comment 26: EPA received several comments regarding the adequacy of the NO X BART analysis for Units 1 and 2 at McIntosh. According to the Commenter, EPA cannot approve the BART determination without: (1) Fully evaluating SNCR as a retrofit technology for Unit 2; (2) considering additional available retrofit control technologies such as low NO X burners, overfire air systems, and flue gas recirculation for Unit 1; (3) setting a NO X emissions limit for Unit 1; (4) demonstrating why a selective catalytic reduction (SCR) control efficiency greater than 80 percent is not achievable; and (5) calculating the cost-effectiveness of SCR for each individual unit. The Commenter also states that even the incorrect cost-effectiveness values calculated for SCR fall within the range of acceptable values and that SCR should therefore have been selected as BART.

Response 26: Regarding a SNCR evaluation for Unit 2, this unit already has combustion controls in place (flue gas recirculation), lowering its worst case 24-hour NO X emission rate  28 to approximately 0.22 lb/MMBtu, comparable to what can be achieved with SNCR for this unit. In addition, the technical feasibility of installing SNCR on these units is uncertain because an engineering study would need to be undertaken to ascertain whether the units operate within the temperature range required by SNCR.

With regard to the Commenter's remaining concerns for Units 1 and 2, the BART modeling for Units 1 and 2 predicted a total visibility impact of 0.31 dv at Chassowitzka from their combined NO X emissions and a visibility impact of approximately 0.20 dv from the NO X emissions at Unit 1. 29 Moreover, EPA reviewed the operations of Unit 1 and concluded that the modeling based on 2001 to 2003 emissions was sufficiently conservative compared to present operations. Unit 1 emitted a total of 12.3 tons of NO X from 2009 through 2012, according to EPA's CAMD database, whereas the baseline BART modeling assumed that Unit 1 emitted 2,119 tons of NO X per year.

FDEP placed greater weight on the lack of potential visibility improvement from controlling NO X at Units 1 and 2 than the other statutory factors due to the modeling results described above and concluded that no additional controls were required to satisfy NO X BART and that no adjustment to the existing permits were warranted. Furthermore, because the available controls (low NO X burners, flue gas recirculation, and SNCR) for Unit 1 would only reduce the visibility impacts by 25 to 50 percent, the anticipated improvement from these controls would be as low as 0.05 to 0.1 dv assuming 2001-2003 emission levels. Under the same logic, adjusting the control efficiency of the modeled SCR system from 80 to 90 percent or calculating the cost-effectiveness individually for each unit would not change the fact that the visibility improvement associated with the installation of NO X controls would remain low.

Regarding a NO X BART emissions limit for Unit 1, the RHR does require an emissions limit for each visibility-impairing pollutant at each BART-subject source. FDEP submitted a letter to EPA dated July 30, 2013, in which it committed to provide EPA with a regional haze SIP revision no later than March 19, 2015, the deadline for the State's five-year regional haze periodic progress report, that will include a NO X BART emissions limit for Unit 1 reflecting best operating practices for good combustion. The State also committed to modify the title V operating permit for the facility by March 19, 2015, to include this limit. The limit will be effective no later than the effective date of EPA's approval of the SIP revision. Because of the limited visibility impact of NO X emissions from Unit 1 and because the BART limit will reflect the existing level of control, EPA concludes that it is reasonable for the State to implement a NO X BART emissions limit for Unit 1 upon EPA's approval of the aforementioned SIP revision. Under these unique circumstances, EPA concludes that FDEP's NO X BART determination for the McIntosh facility was ultimately reasonable. The major visibility-impairing pollutant of concern at this source, SO 2 , has been addressed, and the delay in establishing a NO X BART emissions limit for Unit 1 will have no appreciable impact on visibility at any Class I area.

Comment 27: The Commenter alleges that FDEP overestimated the costs and underestimated the visibility benefits of reducing fuel oil sulfur content in its SO 2 BART analysis for McIntosh and submitted an analysis evaluating the visibility benefits of reducing the fuel oil sulfur content and associated costs. According to the Commenter, FDEP should have included the visibility improvements at Everglades National Park and Okefenokee Wilderness Area associated with the 0.7 percent sulfur fuel evaluation and should not have used the 2001-2003 baseline period to estimate heat inputs and fuel costs.

Response 27: EPA disagrees with the Commenter. With respect to the information provided by the Commenter, EPA finds that the Commenter used different baselines to evaluate the costs and visibility benefits of a lower sulfur content fuel oil. Specifically, the Commenter based costs on lower 2009-2011 operating rates and fuel-use data, but evaluated visibility benefits based on a 2001-2003 baseline period with a much higher operating rate. This approach neglects to consider that less fuel use would result in less visibility impairment. Had the Commenter adjusted the visibility benefits to match 2009-2011 operating rates, the visibility benefits would have been much lower. Therefore, the Commenter's $/dv estimates are artificially low. Consistent with the State's BART modeling protocol, FDEP's visibility modeling was appropriately based on a 2001-2003 baseline for estimates of both visibility impacts and fuel consumption, assuring that higher visibility impacts from the higher level of fuel utilization in that period were properly considered. FDEP then based total costs on the latest estimates of fuel costs assuming baseline year consumption. Finally, while FDEP should have considered cumulative visibility impacts in assessing the 0.7 percent sulfur fuel oil option, it is ultimately of no consequence because FDEP selected this option as BART for both Units 1 and 2.

Comment 28: The Commenter states that FDEP should not have eliminated DSI as SO 2 BART for McIntosh because “the space required for DSI is minimal, as is the capital cost.”

Response 28: EPA notes that DSI requires an adequate PM control device to collect the sulfate particles generated by the sorbent injection system. Currently, there are no add-on particulate controls on the oil-fired units at McIntosh. Installation of DSI would therefore require installation of a fabric filter system or ESP to capture the sulfate particles generated. The expense of adding a new particulate control system in addition to DSI itself would have made this control option not cost-effective for Units 1 and 2 at McIntosh.

Comment 29: The Commenter believes that FDEP also should have evaluated the firing of 0.3 percent sulfur fuel oil, 0.5 percent sulfur fuel oil, distillate, and Ultra Low Sulfur Diesel (ULSD) in its SO 2 BART analysis for McIntosh.

Response 29: As is discussed in more detail in EPA's response to Comment 14, the BART Guidelines do not require states to list all permutations of available control levels that exist for a given technology. FDEP evaluated switching from 0.7 percent sulfur fuel oil to 0.3 percent sulfur fuel oil in its BART analyses for several other facilities. In these other instances, FDEP presented the cost-effectiveness of switching to 0.7 percent and 0.3 percent sulfur fuel oils, which are the commonly-available grades of residual fuel oil. The use of 0.5 percent sulfur fuel oil would require a blending of these two fuel oils, and its cost-effectiveness can be interpolated from the information provided. Distillate and ULSD would be substantially more expensive than 0.3 percent sulfur fuel oil, which FDEP had already determined was not cost-effective. FDEP did not re-perform this analysis for Units 1 and 2 at McIntosh because distillate oil and ULSD were found to not be cost-effective in the BART analyses for other facilities. EPA does not believe that an explicit evaluation of these additional fuels for McIntosh would have resulted in a different conclusion because the analysis is dependent on fuel cost, and fuel cost is approximately uniform among the facilities evaluated by FDEP given that the suppliers of fuel oil in Florida that service the other EGUs are the same as those that supply Lakeland Electric, including the McIntosh facility.

Comment 30: The Commenter believes that FDEP also should have considered 0.5 percent sulfur fuel oil, distillate, and ULSD fuel oils in the SO 2 BART analysis for FPL Manatee (Manatee).

Response 30: See response to Comment 29. The same rationale for not assessing additional fuels at McIntosh also applies to Manatee.

Comment 31: The Commenter alleges that FDEP overestimated the costs and underestimated the visibility benefits of reducing fuel oil sulfur content in evaluating SO 2 BART options. According to the Commenter, FDEP should have included the cumulative visibility improvements at Everglades National Park and Chassahowitzka Wilderness Area associated with the fuel switching options and should have used a 2009-2011 baseline period to estimate heat inputs and fuel costs rather than the 2001-2003 period chosen by FDEP. The Commenter contends that 0.3 percent sulfur fuel oil is SO 2 BART because FDEP overestimated the cost of switching to this fuel oil by not considering that the use of fuel oil is “likely to continue to decrease in favor of gas.”

Response 31: In regards to the comments on cost estimates and the correct baseline period, see the response to Comment 27. In regards to the comment on cumulative visibility benefits, while EPA agrees that Florida should have considered the visibility improvements at all affected Class I areas in its BART visibility assessments, EPA does not believe that doing so would have altered the outcome here. For the Manatee BART analysis, Florida modeled visibility impacts at the Chassahowitzka National Wildlife Area as well as at Everglades National Park, the only other mandatory Class I Federal area within the surrounding 300 km CALPUFF modeling domain. For SO 2 BART, FDEP evaluated the costs and visibility benefits associated with switching from 1.0 percent sulfur fuel oil to 0.7 percent and 0.3 percent sulfur fuel oil. FDEP selected 0.7 percent sulfur fuel oil as BART at a cost-effectiveness of $5,468/ton of SO 2 reduced and rejected 0.3 percent sulfur fuel oil at a cost-effectiveness of $6,542/ton of SO 2 reduced. The incremental cost-effectiveness of lowering the sulfur level in fuel oil from 0.7 percent to 0.3 percent was $7,348/ton of SO 2 reduced. The Commenter did not provide any data in support of its contention that the use of fuel oil is likely to continue to decrease in favor of gas such that a switch to 0.3 percent sulfur fuel oil would be more cost effective. EPA agrees with FDEP's SO 2 BART determination and is not persuaded that, given the incremental cost-effectiveness of more stringent controls, consideration of cumulative visibility benefits or the Commenter's assumptions regarding trends in fuel oil usage would have resulted in a different BART determination for SO 2 .

Comment 32: The Commenter argues that BART should be a fuel-specific determination and that EPA should not allow the source to blend a fuel oil with sulfur content higher than what is determined to be BART with natural gas. The Commenter believes that blending fuel oil with natural gas is not a legitimate offset because natural gas would be used anyway.

Response 32: EPA disagrees with the Commenter's view that BART needs to be a fuel-specific determination. Except in cases where work practices are delineated, BART is an emissions limit, not a specified technology. 30 Blending fuels to lower the emissions rate is an acceptable and cost-effective method to reduce emissions and their associated visibility impacts, and it is allowed by the EPA New Source Performance Standards (NSPS) subpart D rules for oil-fired boilers. The Commenter's statement that “natural gas would be used anyway” is not explained or supported.

Comment 33: The Commenter believes that FDEP should have evaluated additional combustion controls and SNCR in the NO X BART analysis for Manatee and cites to units in EPA's CAMD database with lower NO X emissions rates than the rate selected as NO X BART.

Response 33: The Manatee units are currently equipped with multiple NO X emissions control methods including: Flue gas recirculation, overfire air systems, staged combustion, low NO X burners, and re-burn. FDEP assessed SCR as a technically feasible post-combustion NO X control, but did not evaluate SNCR. For oil-fired units, the technical feasibility of SNCR is uncertain because SNCR depends on the availability of an accessible location within the furnace with relatively high temperatures where injectors could be installed. To determine whether such a location existed in these units would have required a detailed engineering analysis because oil-fired boilers typically operate at lower peak temperatures than coal-fired boilers. While the BART Guidelines ordinarily require states to make a reasoned determination that a widely available control technology, such as SNCR, is technically infeasible before rejecting it, EPA does not believe that SCR would be BART for NO X at Manatee. Six to 17 percent of the 98th percentile visibility impact at the Chassahowitzka Wilderness Area from 2001-2003 was attributable to NO X emissions from Manatee. FDEP evaluated SCR operating at 90 percent efficiency as part of its BART analysis for Manatee and determined that this control technology would improve visibility by 0.47 dv at a cost of $3,776/ton of NO X reduced, or approximately $66 million/dv. The likely visibility improvement from SNCR, if it were feasible for these oil-fired units, would range from 0.1 dv to 0.2 dv (assuming a 25 to 40 percent reduction potentially achievable with the use of SNCR). EPA concludes that, in light of the visibility improvement predicted for a highly efficient SCR, that a more thorough evaluation of a less effective technology would not have changed the State's BART determination.

Comment 34: The Commenter believes that FDEP also should have considered 0.5 percent sulfur fuel oil, distillate, and ULSD fuel oils in the SO 2 BART analysis for FPL Martin Power Plant (Martin).

Response 34: See the response to Comment 29.

Comment 35: The Commenter contends that FDEP inappropriately dismissed FGD systems from consideration as BART because, according to the Commenter, FGD systems are “feasible and in use on oil-fired boilers” even though these systems “are seldom used on oil-fired boilers because it is more cost-effective to reduce fuel sulfur content.”

Response 35: According to the BART Guidelines, “[a]vailable retrofit control options are those air pollution control technologies with a practical potential for application to the emissions unit and the regulated pollutant under evaluation.”  31 Based on a review of EPA's Reasonably Available Control Technology/Best Available Control Technology/Lowest Achievable Emissions Rate (RACT/BACT/LAER) Clearinghouse, 32 EPA is not aware of any oil-fired utility boilers currently equipped with a FGD system. As noted by the Commenter, oil-fired utility boilers that need to reduce SO 2 emissions typically rely on lower sulfur fuel oil where the desulfurization is conducted at the refinery rather than after combustion in the utility boiler. Thus, EPA believes that the State's decision not to include FGD in the BART analysis for this facility was reasonable and consistent with the BART Guidelines.

Comment 36: The Commenter alleges that FDEP overestimated the costs and underestimated the visibility benefits of reducing fuel oil sulfur content in evaluating SO 2 BART options. According to the Commenter, FDEP should have included the cumulative visibility improvements at Everglades National Park and Chassahowitzka Wilderness Area associated with the fuel switching options and should have used a 2009-2011 baseline period to estimate heat inputs and fuel costs rather than the 2001-2003 period chosen by FDEP.

Response 36: In regards to the comments on cost estimates and the correct baseline period, see the response to Comment 27. In regards to the comment on cumulative visibility benefits, while EPA agrees that Florida should have considered the visibility improvements at all affected Class I areas in its BART visibility assessments, EPA does not think doing so would have altered the outcome here. For the Martin BART analysis, Florida modeled visibility impacts at the Chassahowitzka Wilderness Area as well as at Everglades National Park, the only other mandatory Class I Federal area within the surrounding 300 km CALPUFF modeling domain. For SO 2 BART, FDEP evaluated the costs and visibility benefits associated with switching from 0.7 percent sulfur fuel oil to 0.3 percent sulfur fuel oil. FDEP rejected 0.3 percent sulfur fuel oil at a cost-effectiveness of $7,348/ton of SO 2 reduced. Similarly, for NO X BART, FDEP evaluated the costs and visibility benefits associated with the installation of SCR. FDEP rejected SCR at a cost-effectiveness of $5,323/ton of NO X reduced, with a visibility improvement at Chassahowitzka of just 0.15 dv. EPA agrees with FDEP's SO 2 and NO X BART determinations and is not persuaded, given the cost-effectiveness values associated with more stringent controls, that consideration of cumulative visibility benefits would have resulted in a different BART determination for SO 2 .

Comment 37: The Commenter believes that FDEP should have evaluated additional combustion controls and SNCR in the NO X BART analysis and cites to units in EPA's CAMD database with lower NO X emissions rates than the rate selected as NO X BART.

Response 37: See the response to Comment 33. The Martin units, like the Manatee units, are currently equipped with multiple NO X emissions control methods including flue gas recirculation, overfire air systems, staged combustion, and low NO X burners. FDEP assessed SCR as a technically feasible post-combustion NO X control, but did not evaluate SNCR. For oil-fired units, the technical feasibility of SNCR is uncertain because SNCR depends on the availability of an accessible location within the furnace with relatively high temperatures where injectors could be installed. To determine whether such a location existed in these units would have required a detailed engineering analysis because oil-fired boilers typically operate at lower peak temperatures than coal-fired boilers. While the BART Guidelines ordinarily require states to make a reasoned determination that a widely available control technology, such as SNCR, is technically infeasible before rejecting it, EPA does not believe that SCR would be BART for NO X at Martin. Six to seven percent of the 98th percentile visibility impact at the Chassahowitzka Wilderness Area from 2001-2003 was attributable to NO X emissions from Martin. FDEP evaluated SCR operating at 90 percent efficiency as part of its BART analysis for Martin and determined that this control technology would improve visibility by 0.15 dv at a cost of $5,323/per ton of NO X reduced. Therefore, the likely visibility improvement from SNCR, if it were feasible for these oil-fired units, would be less than 0.1 dv (assuming a 25 to 40 percent reduction achievable with the use of SNCR). EPA concludes that, in light of the visibility improvement predicted for a highly efficient SCR, that a more thorough evaluation of a less effective technology would not have changed the State's BART determination.

Comment 38: The Commenter states that FDEP's PM BART analysis should have considered the increase in PM emissions resulting from the re-injection of fly ash into the boiler and that FDEP “should prohibit the reinjection of fly ash to provide an economical interim reduction in PM 10 emissions.”

Response 38: EPA disagrees that FDEP should have considered the elimination or restriction of fly ash reinjection in its PM BART analysis. EPA has no data on the impacts of fly ash re-injection on oil-fired utility boilers and no basis to determine whether prohibiting fly ash re-injection would improve visibility because of the low particulate load of the flue gas emitted from oil-fired boilers. Although restricting fly ash re-injection is not an emissions control technology in the conventional sense, EPA believes that the BART Guidelines' instructions on technical feasibility are instructive. Under the BART Guidelines, a control technology is technically feasible if it is “available” (i.e., if a source owner may obtain it through commercial channels or it is otherwise available within the common sense meaning of the term) and “applicable” (i.e., it can reasonably be installed and operated on the source at issue). 33 An applicability evaluation generally involves consideration of gas stream characteristics, the capabilities of the technology, and unresolvable technical difficulties. Operators of certain coal-fired boilers re-inject fly ash for the purpose of energy conservation, not emissions control. Coal-fired boilers generate substantially greater amounts of ash and have particulate control technologies with different characteristics than oil-fired boilers. Although fly ash re-injection has been prohibited for certain coal-fired boilers, there is no evidence that this methodology has been used for oil-fired boilers and no evidence that the gas streams are similar enough such that the process would be applicable as a PM emissions control technique for oil-fired boilers. For these reasons, EPA believes that the Commenter's extrapolation of a control technique from coal-fired to oil-fired boilers is not appropriate in this instance.

Comment 39: The Commenter believes that FDEP also should have considered 0.5 percent sulfur fuel oil, distillate, and ULSD fuel oils in the SO 2 BART analysis and 0.3 percent sulfur fuel oil, 0.5 percent sulfur fuel oil, distillate, and ULSD fuel oils in the PM BART analysis for FPL Turkey Point Power Plant (Turkey Point).

Response 39: Regarding SO 2 BART, see the response to Comment 29. With regard to PM BART, Unit 2 is shutting down and Unit 1 has a PM emissions limit of 0.07 lb/MMBtu and is limited under BART to operating at no more than 25 percent of capacity on fuel oil with the remainder of operations on natural gas. This limit will result in an emissions reduction of over 80 percent from the baseline emissions from Units 1 and 2 combined. EPA believes that, in light of these conditions and because the baseline PM contribution from this facility is approximately 0.1 dv, any additional PM measures would result in negligible visibility improvement.

Comment 40: The Commenter alleges that FDEP overestimated the costs and underestimated the visibility benefits of reducing fuel oil sulfur content in evaluating SO 2 BART options. According to the Commenter, FDEP should have used a 2009-2011 baseline period to estimate heat inputs and fuel costs rather than the 2001-2003 period chosen by FDEP. The Commenter also believes that it is inconsistent for FDEP to conclude that 0.7 percent sulfur fuel oil is feasible at $19,197/ton but that 0.3 percent sulfur fuel oil is not feasible at $16,044/ton and to conclude that its SO 2 BART determination will produce a significant visibility improvement of 0.6 dv while “dismiss[ing] 2.5 deciview and 1.5 deciview incremental improvements as `extremely small.' ”

Response 40: In regards to the comments on cost estimates and the correct baseline period, see the response to Comment 27. Regarding the alleged inconsistency in cost-effectiveness, FDEP did not rely on this factor for its SO 2 BART determination for Turkey Point. As part of an alternative PM emissions reduction strategy, FDEP approved the use of 0.7 percent low sulfur fuel oil, a reduction in the PM emissions limit to 0.07 lb/MMBtu, and a limitation on the use of fuel oil equivalent to a capacity factor of 25 percent. For SO 2 BART, FDEP evaluated wet and dry FGD, 0.7 percent sulfur fuel oil, and 0.3 percent sulfur fuel oil. Despite the high cost-effectiveness of 0.7 percent sulfur fuel oil, FDEP determined that it was SO 2 BART due to the fact that the fuel also satisfied the PM BART requirement.

Comment 41: The Commenter believes that FDEP should have evaluated additional combustion controls and SNCR in the NO X BART analysis for Turkey Point and cites to units in the CAMD database with lower NO X emissions rates than the rate selected as NO X BART.

Response 41: No further analysis was necessary for Turkey Point Unit 2 because there is a federally enforceable requirement to shut down the unit as expeditiously as practicable, but no later than December 31, 2013. Unit 1 currently employs low NO X burners that reduce NO X formation in the combustion zone. For NO X BART, FDEP evaluated SNCR and SCR as potential post-combustion controls. Baseline visibility modeling for Turkey Point showed that nitrates contributed less than three percent of the visibility impairment associated with the emissions from both Units 1 and 2 at this facility. In light of these minimal visibility impacts, FDEP determined that additional NO X reductions from Unit 1 were not required, and maintained the existing NO X emissions limit of 0.40 lb/MMBtu when firing natural gas and 0.53 lb/MMBtu when firing fuel oil, with continuous emissions monitoring and a 30-day rolling average based on a state rule, 62-296.570 F.A.C., for NO X reasonably available control technology. EPA concludes that FDEP's conclusions were reasonable.

Comment 42: The Commenter states that FDEP's PM BART analysis should have considered the increase in PM emissions resulting from the re-injection of fly ash into the boiler and that FDEP should have included the elimination of fly ash re-injection in its PM BART analysis.

Response 42: See the response to Comment 38.

Comment 43: The Commenter alleges that JEA Northside had the lowest $/ton fuel switching option rejected by FDEP and that FDEP did not explain why it rejected this option or why it did not evaluate a more comprehensive switch to lower sulfur fuels. The Commenter contends that FDEP should explain why a switch from 1.0 percent to 0.7 percent sulfur fuel oil is not cost-effective at JEA Northside when it is cost-effective at Manatee.

Response 43: FDEP's cost-effectiveness estimate for converting from 1.8 to 1.0 percent sulfur fuel oil was $7,184/ton of SO 2 reduced. FDEP also estimated that the conversion would cost $31.1 million/dv. EPA concurs that these high cost-effectiveness values provide sufficient justification for FDEP's decision to reject 1.0 percent sulfur fuel oil as SO 2 BART for this facility. In its BART analyses for other oil-fired units, FDEP presented the cost-effectiveness of switching to 0.7 percent and 0.3 percent sulfur fuel oils, which are the commonly available grades of residual fuel oil. FDEP did not extend the analysis to JEA Northside because it was found not to be cost-effective in the BART analyses for other facilities. EPA does not believe that an explicit evaluation of these additional fuels for JEA Northside would have resulted in a different conclusion because the analysis is dependent on fuel cost, a cost that is approximately uniform among the facilities evaluated by FDEP given that the suppliers of fuel oil in Florida that service the other facilities are the same as those that supply JEA Northside.

Comment 44: The Commenter states that FDEP did not justify the use of an 80 percent control efficiency assumption for SCR and that any additional energy costs associated with the control should have been included in the cost analysis and not “double-counted.” The Commenter also states that the ammonia issues identified by FDEP are common to all SCR systems and can be addressed by good operating procedures.

Response 44: FDEP included an evaluation of the energy and non-air quality impacts associated with SCR for completeness because these impacts are, collectively, one of the five statutory factors to be considered in a BART determination. The improvement in visibility at Okefenokee associated with the installation of an SCR operating at 80 percent efficiency and Unit 3 operating at a maximum permitted capacity of 28 percent was estimated to be 0.26 dv. A SCR operating at 90 percent efficiency would improve this estimate by roughly 0.03 dv. EPA believes that the limited visibility improvement that would result from adjusting the control efficiency of SCR to 90 percent would not have changed FDEP's conclusion that SCR is not warranted as BART at JEA Northside.

Comment 45: The Commenter alleges that FDEP was inconsistent in its approach to evaluating dollars per dv values, citing the $11.3 million (M)/dv value associated with SO 2 BART for McIntosh and the $17.7M/dv value associated with SNCR at Crystal River (a control not selected as NO X BART at the facility). The Commenter also states that FDEP's conclusions regarding $/dv values are not consistent with those across the country. The Commenter further states that FDEP does not explain why it determined that upgrading to FGD at McIntosh and adding FGD at Lansing Smith are not reasonable when the cost-effectiveness values associated with those controls are lower than the $6,542/ton cost-effectiveness value associated with SO 2 BART at Manatee.

Response 45: FDEP evaluated BART on a case-by-case basis using facility-specific conditions. Thus, it is to be expected that the resulting BART determinations may appear to be inconsistent when compared using a single metric. For example, at Manatee, FDEP determined that equivalent visibility improvements to those that can be achieved by switching to 0.7 percent sulfur fuel oil could be achieved by removing the current prohibition on blending and co-firing 1.0 percent sulfur fuel oil with natural gas and by lowering the allowable emissions limit to 0.8 lb/MMBtu (12-month rolling average). The estimate of $6,542/ton for SO 2 controls is based on using lower sulfur fuel oil only for compliance, and the blending and co-firing option is expected to be less expensive in practice. By comparison, at Lansing Smith, the limited incremental visibility improvement (0.07-0.09 dv) from installing a FGD was weighed heavily in FDEP's BART determination even though FDEP concluded the cost-effectiveness values would have been reasonable had there been greater visibility improvement.

Comment 46: The Commenter is concerned that the proposed source-specific BART and reasonable progress emissions limits for the Florida EGUs subject to CAIR would allow emissions to increase compared to 2011 actual emissions.

Response 46: EPA does not consider the situation presented by the Commenter to be a realistic future scenario. The Commenter assumes that the present use of natural gas at oil/gas units will be replaced with the use of residual fuel oil at the levels used in 2001-2003. The Commenter's concern that emissions may increase are based on the assumption that three oil-fired Florida EGUs (Martin, Manatee, and Turkey Point) could revert to firing residual oil rather than the current use of natural gas. EPA does not consider reversion to oil-firing at these units to be a plausible scenario for the first implementation period. FDEP relied on the VISTAS IPM projections to project 2018 emissions that consider, among other factors, the expected price of oil and gas in the projection year to estimate facility utilization. As noted in the Florida regional haze SIP narrative, these projections are conservative because several of the units have either shut down or repowered to gas entirely, making the scenario of reverting to firing residual oil even more unlikely and resulting in even lower emissions levels in 2011 than predicted for 2018.

Comment 47: The Commenter states that EPA cannot approve the BART determinations for Crystal River, McIntosh, and JEA Northside because FDEP relied on “rough calculations `instead of modeling' to determine visibility impacts under step 5 of the BART analysis.”

Response 47: EPA has reviewed the visibility impact calculation procedures for the BART determinations identified by the Commenter. While the calculations were not performed in accordance with the BART Guidelines, EPA agrees with FDEP that they are acceptable in this instance. The methodology used for these facilities to estimate visibility impacts relied on a simplifying assumption that the visibility impacts would be reduced in direct proportion to the reduction in emissions of individual visibility-impairing pollutants. Based on the results of other BART determinations where emissions reductions have been modeled with CALPUFF, the direct relationship assumption would likely overestimate reductions in visibility impacts as opposed to understating them. EPA acknowledges that unlike a Gaussian plume model, such as AERMOD, there is not a direct linear relationship between emissions and calculated visibility impacts when using the CALPUFF modeling system. However, CALPUFF's calculation of visibility impacts has been termed “quasi-linear” in EPA's Guideline on Air Quality Models. 34 Therefore, an assumption of a linear response to changes in emissions is a reasonable estimation and the simplified methodology used for these BART determinations likely provides conservative overestimates of visibility impact reductions.

Comment 48: The Commenter states that it would be unlawful and arbitrary for EPA to fully approve Florida's regional haze SIP because it “improperly relies on the illegal [CAIR] for inventories and projections from upwind states, which in turn form the basis for Florida's [RPGs] and its entire reasonable progress strategy.” According to the Commenter, the State's RPGs also include assumptions based on Florida's SO 2 emissions under CAIR and there is no guarantee that CAIR's eventual replacement rule will cover SO 2 emissions and achieve the emissions reductions predicted under CAIR. The Commenter also contends that it is not appropriate for EPA to wait until the five-year progress report to update these RPGs based on updated information; that states which have failed to update their SIPs to remove reliance on CAIR do not have a “reliance interest” in CAIR; and that Florida must revise its Q/d reasonable progress exemption threshold because it was selected based on Florida's projected progress toward natural visibility conditions that relied on CAIR. The Commenter believes that it is factually and legally incorrect for EPA to state that the emissions reductions associated with CAIR will be sufficiently permanent and enforceable for the necessary time period when “CAIR has been struck down” and EPA has “disapproved reliance on CAIR for regional haze purposes.”

Response 48: With regard to CAIR, see the response to Comment 1. With regard to Q/d, see the response to Comment 6. Regarding the regional haze SIP disapproval actions cited by the Commenter, EPA took all of these actions before the D.C. Circuit ruling in EME Homer City. Since that decision, EPA has stated its belief that it would be appropriate to rescind the limited disapproval actions for those regional haze SIPs that relied on CAIR should EME Homer City be upheld. See, e.g., 78 FR 11805, 11807 (Feb. 20, 2013).

EPA is finalizing a full approval of all remaining portions of Florida's regional haze SIP. EPA also finds that the entire Florida regional haze SIP now meets the applicable regional haze requirements as set forth in sections 169A and 169B of the CAA and in 40 CFR 51.300-51.308.

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

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

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 28, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

The background for today's action is discussed in detail in our May 7, 2013 proposal (78 FR 26568). In that notice, we proposed to approve portions of SIP submittals for the State of Arkansas submitted on December 17, 2007, and September 16, 2009, and the technical supplement submitted on March 20, 2013, that determined the existing SIP for Arkansas contains adequate provisions to prohibit air emissions from contributing significantly to nonattainment or interfering with maintenance of the 1997 and 2006 PM 2.5 NAAQS in any other state as required by CAA section 110(a)(2)(D)(i)(I). This action is being taken under section 110 of the Act. We did not receive any comments regarding our proposal.

We are approving portions of SIP submittals for the State of Arkansas submitted on December 17, 2007, and September 16, 2009, and the technical supplement submitted on March 20, 2013, to address interstate transport for the 1997 and 2006 PM 2.5 NAAQS. We approve the portions of the SIP submittals and technical supplement determining the existing SIP for Arkansas contains adequate provisions to prohibit air emissions from contributing significantly to nonattainment or interfering with maintenance of the 1997 and 2006 PM 2.5 NAAQS in any other state as required by CAA section 110(a)(2)(D)(i)(I). This action is being taken under section 110 of the Act.

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

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

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 28, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document, “we,” “us” and “our” refer to EPA.

On February 14, 2013 (78 FR 10589), EPA proposed to fully approve the following rules that were submitted for incorporation into the California SIP.

We proposed to approve these rules based on a conclusion that they satisfy the applicable CAA requirements. Our proposed rule and related Technical Support Document (TSD) contain more information on the basis for this rulemaking and on our evaluation of the submitted rules.

EPA's proposed action provided a 30-day public comment period. During this period, we received one comment from the SMAQMD. We summarize the comment and provide our response below.

Comment: The SMAQMD requested confirmation that EPA's final rule to approve Rule 214 and Rule 217 into the SIP will remove the 1984 version of Rule 202 (“New Source Review”) from the California SIP. The District stated that, based on EPA's statements in the TSD for a previous rulemaking action on SMAQMD permitting rules that were intended to replace Rule 202 in the SIP (76 FR 43183, July 20, 2011), the District had expected that Rule 202 would be removed from the SIP but that the necessary language to amend the California SIP in 40 CFR part 52 had not been included in EPA's final rule. The SMAQMD stated that it supports EPA's proposed approvals and requests only that the regulatory language to delete Rule 202 from the SIP be included in EPA's final action on Rule 214 and Rule 217.

EPA Response: We agree with the District that SMAQMD Rule 202 should have been removed from the California SIP as a result of the referenced July 20, 2011 final action on SMAQMD permitting rules that were intended to replace Rule 202. Specifically, on July 20, 2011, EPA finalized a full approval of Rule 203 and limited approval/limited disapproval of Rule 214. See 76 FR 43183 (July 20, 2011). EPA explained in the proposal for this rulemaking that “[t]hese two new rules will replace in its entirety, the existing SIP approved NSR/PSD programs contained in Rule 202.” 76 FR 28942 at 28943 (May 19, 2011); see also U.S. EPA, Region IX, Technical Support Document for EPA's Notice of Proposed Rulemaking for the California SIP, Sacramento Metropolitan Air Quality Management District, Rule 214 (Federal New Source Review), Rule 203 (Prevention of Significant Deterioration), May 6, 2011, at 1 (“Upon approval into the SIP, [Rules 214 and 203] will replace current SIP Rule 202— New Source Review, which was approved into the SIP by EPA on June 19, 1985 (50 FR 25417).” EPA received no comments on this proposed rule and finalized the rulemaking as proposed. See 76 FR 43183 (July 20, 2011). In the final regulatory text codifying this final action, however, EPA incorporated Rule 214 and Rule 203 into the SIP but neglected to remove Rule 202. See 76 FR at 43185.

In response to SMAQMD's comment, we are making a technical amendment to 40 CFR 52.220 to correct this error by removing Rule 202 from the SMAQMD portion of the California SIP. This technical amendment makes no change to the substance of our July 20, 2011 final action or to today's final action to fully approve Rule 214 and Rule 217 into the California SIP.

No comments were submitted that change our assessment that submitted Rule 214 and Rule 217 satisfy the applicable CAA requirements. Therefore, under CAA section 110(k)(3) and for the reasons set forth in our February 14, 2013 proposed rule, we are fully approving Rule 214 and Rule 217. This action incorporates the submitted rules into the SMAQMD portion of the California SIP and makes them federally enforceable.

Simultaneously, we are making a technical amendment to 40 CFR 52.220 to remove Rule 202 from the SIP, consistent with the District's intent and EPA's final rule at 76 FR 43183 (July 20, 2011).

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

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

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

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

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

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

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

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

In addition, this final rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On July 5, 2011, MDEQ submitted its request to redesignate the Detroit-Ann Arbor nonattainment area to attainment for the 1997 annual and 2006 24-hour PM 2.5 NAAQS, and for EPA approval of the state's SIP revision containing a maintenance plan for the area. On July 2, 2013, (78 FR 39654), EPA proposed approval of Michigan's redesignation request and plan for maintaining the 1997 annual and 2006 24-hour PM 2.5 NAAQS. EPA also proposed approval of Michigan's MVEBs for PM 2.5 and NO X for 2023 for the area. Additional background for today's action is set forth in EPA's July 2, 2013, proposed rulemaking.

EPA has determined that the entire Detroit-Ann Arbor area is attaining the 1997 annual and 2006 24-hour PM 2.5 standards (78 FR 39654) and that the Detroit-Ann Arbor area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Thus, EPA is approving the requests from the state of Michigan to change the legal designation of the Detroit-Ann Arbor area from nonattainment to attainment for the 1997 annual and 2006 24-hour PM 2.5 NAAQS. EPA is also taking several additional actions related to Michigan's PM 2.5 redesignation requests, as discussed below.

EPA is approving Michigan's PM 2.5 maintenance plan for the Detroit-Ann Arbor area as a revision to the Michigan SIP (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to keep the Detroit-Ann Arbor area in attainment of the 1997 annual and 2006 24-hour PM 2.5 NAAQS through 2023.

EPA also finds adequate and is approving Michigan's 2023 primary PM 2.5 and NO X MVEBs for the Detroit-Ann Arbor area. These MVEBs will be used in future transportation conformity analyses for the area.

EPA received two sets of supportive comments on its proposed rulemaking which have been added to the docket.

EPA has determined that the Detroit-Ann Arbor area has attained the 1997 annual and 2006 24-hour PM 2.5 NAAQS. EPA has also determined that all other criteria have been met for the redesignation of the Detroit-Ann Arbor area from nonattainment to attainment of the 1997 annual and 2006 24-hour PM 2.5 NAAQS and for approval of Michigan's maintenance plan for the area. See CAA sections 107(d)(3)(E) and 175A. The detailed rationale for EPA's findings and actions is set forth in the proposed rulemaking of July 2, 2013 (78 FR 39654).

EPA is determining that the Detroit-Ann Arbor area has attained the standards and that the area meets the requirements for redesignation to attainment of that standard under sections 107(d)(3)(E) and 175A of the CAA. Thus, EPA is granting the request from Michigan to change the legal designation of the Detroit-Ann Arbor area from nonattainment to attainment for the 1997 annual and 2006 24-hour PM 2.5 NAAQS. EPA is also approving Michigan's 1997 annual and 2006 24-hour PM 2.5 maintenance plan for the Detroit-Ann Arbor area as a revision to the SIP because the plan meets the requirements of section 175A of the CAA. Finally, EPA finds adequate and is approving Michigan's 2023 primary PM 2.5 and NO X MVEBs for the Detroit-Ann Arbor area. These MVEBs will be used in future transportation conformity analyses for the area after the effective date for the adequacy finding and approval.

In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this action to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule grants or recognizes an exemption or relieves a restriction, and section 553(d)(3), which allows an effective date less than 30 days after publication as otherwise provided by the agency for good cause found and published with the rule. The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule relieves Michigan of various requirements for the Detroit-Ann Arbor area. For these reasons, EPA finds good cause under 5 U.S. C. 553(d)(3) for this action to become effective on the date of publication of this action.

Under the CAA, redesignation of an area to attainment and the accompanying approval of the maintenance plan under CAA section 107(d)(3)(E) are actions that affect the status of geographical area and do not impose any additional regulatory requirements on sources beyond those required by state law. A redesignation to attainment does not in and of itself impose any new requirements, but rather results in the application of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For these reasons, this action:

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

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

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

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

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

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

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

In addition, this final rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the Commonwealth, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 28, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).

40 CFR Parts 52 and 81 are amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On December 2, 2011 (76 FR 75464), EPA issued a final determination that the Parkersburg-Marietta and Wheeling nonattainment areas were attaining the 1997 annual PM 2.5 standard.

On February 29, 2012, Ohio submitted its request to redesignate the Ohio portion of Parkersburg-Marietta (Washington County) to attainment of the 1997 annual PM 2.5 standard. On April 16, 2012, Ohio submitted its request to redesignate the Ohio portion of Wheeling (Belmont County) to attainment of the 1997 annual PM 2.5 standard. These redesignation requests are based on 2008-2010 monitoring data showing attainment of the 1997 annual PM 2.5 standard.

On November 30, 2012 (77 FR 71383, 77 FR 71371), EPA published notices proposing to approve Ohio's requests to redesignate the Ohio portions of the Parkersburg-Marietta and Wheeling areas to attainment of the 1997 annual PM 2.5 standard. These rulemaking notices also proposed to approve Ohio's PM 2.5 maintenance plan, 2005 NO X , SO 2 , and primary PM 2.5 emission inventories for Washington and Belmont Counties, and proposed to determine the insignificance of the 2022 NO X and PM 2.5 MVEBs for Washington and Belmont Counties. These rulemaking notices also proposed to determine that the Ohio portions of the Parkersburg-Marietta and Wheeling areas continue to attain the 1997 PM 2.5 annual standard based on certified 2009-2011 air quality data. For each proposed action, one supportive comment was received from the Ohio Utility Group, and no adverse comments were received.

On April 30, 2013, Ohio provided ammonia and VOC emissions inventories to EPA to supplement the February 29, 2012, and April 16, 2012, requests for redesignation.

On June 26, 2013 (78 FR 38256, 78 FR 38247), EPA published supplemental notices proposing to determine that the Ohio portions of Parkersburg-Marietta and Wheeling continue to attain the 1997 annual standard and have met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA received one supportive comment from the Ohio Utility Group on the supplemental notice for the Ohio portion of the Wheeling area, and received no adverse comments.

After reviewing Ohio's redesignation requests, EPA has determined that the requests meet the criteria set forth in section 107(d)(3)(E) of the CAA. Therefore, EPA is approving the redesignation of the Ohio portion of the Parkersburg-Marietta area (Washington County) and the Ohio portion of the Wheeling area (Belmont County) to attainment for the 1997 annual PM 2.5 standard. EPA is also approving Ohio's PM 2.5 maintenance plans for these areas as a revision to the Ohio SIP based on Ohio's demonstration that the plan meets the requirements of section 175A of the CAA. In addition, EPA is approving the 2005 NO X , SO 2 , and PM 2.5 emission inventories and 2007/2008 ammonia and VOC emission inventories for Washington and Belmont Counties as meeting the requirement for emission inventories contained in section 172(c)(3) of the CAA. EPA also finds the state's 2022 NO X and PM 2.5 MVEBs for Washington and Belmont Counties to be insignificant for purposes of transportation conformity. Finally, EPA is determining that the entire Parkersburg-Marietta and Wheeling areas continue to attain the 1997 annual PM 2.5 standard based on certified 2009-2011 air quality data.

In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for these actions to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3) which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule relieves the State of planning requirements for this 8-hour ozone nonattainment area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these actions to become effective on the date of publication of these actions.

Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by State law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, these actions merely do not impose additional requirements beyond those imposed by State law and the CAA. For that reason, these actions:

• Are not “significant regulatory actions” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 28, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR parts 52 and 81 are amended as follows:

On May 14, 2013 the National Science Foundation (NSF) published a proposed rule at 78 FR 28173 requesting public comment on proposed revisions to its existing FOIA regulations at 45 CFR part 612. No comments were received. Accordingly, NSF is revising its FOIA regulations by adopting the revisions as proposed. This revision of Part 612 implements the provision of the Open FOIA Act of 2009 which amends Exemption 3. It also updates and clarifies several procedural provisions concerning FOIA administration, reflects changes in case law, and includes revised current cost figures for calculating and charging fees. The duplication fee will be reduced. In addition, the Foundation will implement multi-track processing. Clarifications and procedural changes are found at § 612.1(b) (General Provisions); § 612.3(b) and (f) (Requirements for making requests); § 612.5(a), (b), (c) and (d)(3) (Timing of responses to requests); § 612.6(a) (Responses to requests); § 612.7(a)(2), (3) and (5)(iii) (Exemptions); and § 612.10(b)(3), and (c)(1) and (2) (Fees).

For purposes of the Regulatory Flexibility Act (5 U.S.C. 601), the revised rule will not have a significant economic effect on a substantial number of small entities; the rule addresses the procedures to be followed when submitting or responding to requests for records under the Freedom of Information Act. For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) the revised rule would not significantly or uniquely affect small governments and would not result in increased expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more. For purposes of Executive Order 12866, the revised rule is not a significant regulatory action requiring review by the Office of Management and Budget. For the purposes of the Paperwork Reduction Act of 1995 (44 U.S.C. 35) it has been determined that this rulemaking does not impose any reporting or recordkeeping requirement on the public. This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 U.S.C. 804, and will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

For the reasons stated in the preamble, the National Science Foundation amends 45 CFR Chapter VI by revising Part 612 as follows:

The legal basis for this final rule is 46 U.S.C. 3306, which requires the Secretary of Homeland Security to prescribe regulations for Coast Guard-inspected vessels, and Executive Order (E.O.) 12988, Civil Justice Reform, section 3(a), which obligates Federal agencies to eliminate ambiguity in existing regulations. The Secretary's authority under 46 U.S.C. 3306 is delegated to the Coast Guard in Department of Homeland Security Delegation No. 0170.1 paragraph (92.b). The purpose of this final rule is to finalize revisions that are intended to align Coast Guard regulations with current statutory language, thereby eliminating ambiguity that could cause confusion among the regulated public. That ambiguity arose as the result of two statutory changes that affect how seagoing barges are defined and regulated.

First, seagoing barges were once defined by law as non-self-propelled vessels of 100 gross tons and over that proceed on voyages on the high seas or ocean. In 1983, as part of a comprehensive revision of the shipping statutes in Title 46, U.S. Code, Congress provided a new definition of “seagoing barge” in 46 U.S.C. 2101(32): a non-self-propelled vessel of at least 100 gross tons making voyages beyond the statutorily defined Boundary Line. 1 In 1997, the Coast Guard amended 46 CFR 90.10-36 to align that section's definition of seagoing barge. Nevertheless, two Coast Guard regulations, 46 CFR 90.05-25 and 91.01-10, continue to use the pre-1983 definition. This final rule amends both sections so that they align with 46 U.S.C. 2101(32).

Second, in 1993, Congress added 46 U.S.C. 3302(m) to exempt a seagoing barge from the general 46 U.S.C. 3301(6) requirement for such barges to be Coast Guard inspected and certificated, if the barge is “unmanned” and “does not carry” either a “hazardous material as cargo” or “a flammable or combustible liquid, including oil, in bulk.” It is long-established Coast Guard policy not to require exempt seagoing barges to be inspected or certificated. However, some owners or operators of exempt barges voluntarily request inspection and certification, either unnecessarily and because they are unaware of the section 3302(m) exemption, or as a rational business decision meant to facilitate the barge's anticipated near-term use for non-exempt service. To ensure that these voluntary requests are made with full knowledge of the exemption's availability, this final rule aligns regulatory language with section 3302(m) in eight Coast Guard regulations: 46 CFR 90.05-25 and 91.01-10; and 46 CFR 2.01-7, 24.05-1, 30.01-5, 70.05-1, 90.05-1, and 188.05-1, all of which contain tables that summarize Coast Guard inspection and certification requirements.

On December 14, 2011, the Coast Guard published a direct final rule (DFR) entitled “Seagoing Barges” (76 FR 77712). Following the receipt of an adverse comment on the DFR and pursuant to Coast Guard regulations, 33 CFR 1.05-55, we withdrew the DFR on April 6, 2012 (77 FR 20727). On January 9, 2013, we published a notice of proposed rulemaking (NPRM) entitled “Seagoing Barges” in the Federal Register (78 FR 2148). It was substantively identical to the DFR except insofar as it was modified to address the adverse comment. No public meeting on the NPRM was requested and none was held. All prior publications were issued under RIN 1625-AB71.

Two persons commented on the NPRM. The first commenter requested expanding the scope of the rulemaking to include barges operating on the Great Lakes, and asked us to define what is a “manned seagoing barge.” We decline to expand the limited aim of this rulemaking, which applies only to seagoing barges, which are defined in 46 U.S.C. 2101(32) as vessels that operate beyond the Boundary Line. The Boundary Line is set at varying distances from the ocean-bound coastline of the U.S. and does not pertain to the Great Lakes. See Coast Guard regulations in 46 CFR part 7. We also decline to create a definition for a manned seagoing barge because determining when a seagoing barge is “manned” is a highly fact-specific determination made by the local Coast Guard Officer in Charge, Marine Inspection. As discussed in the NPRM's preamble, 78 FR 2150, col. 1, that fact-specific determination depends on factors cited in 46 CFR 15.501(b): “the applicable laws, the regulations in [46 CFR part 15], and other factors involved, such as: Emergency situations, . . . cargo carried, . . . degree of automation, use of labor saving devices, and the organizational structure of the vessel.”

The second commenter requested more detailed discussion in support of our proposed definition of a seagoing barge carrying flammable or combustible liquid, including oil “in bulk.” We are amending 46 CFR 90.05-25(a) to define “in bulk” as a quantity equivalent to at least 250 barrels (10,500 gallons). Some regulatory definition of “in bulk” is needed so that barge operators know whether or not they are subject to the 46 U.S.C. 3302(m) exemption. The statute does not provide that definition. However, as we pointed out in the NPRM, 78 FR at 2150, col. 3, Coast Guard policy set the bulk threshold at 250 barrels in 1996. That same policy has been in place without public concern for almost two decades and so the regulatory definition follows current Coast Guard policy.

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

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a significant regulatory action under section 3(f) of E.O. 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

This final rule aligns 46 CFR 90.05-25, 46 CFR 91.01-10, and the vessel inspection tables in 46 CFR parts 2, 24, 30, 70, 90, and 188 with the current statutory definition of “seagoing barge,” (“a non-self-propelled vessel of at least 100 gross tons . . . making voyages beyond the Boundary Line;” 46 U.S.C. 2101(32)), and with the current statutory exemption for seagoing barges from inspection and certification when the barges are unmanned and not carrying hazardous material as cargo, or a flammable or combustible liquid, including oil, in bulk. 46 U.S.C. 3302(m).

As stated above, seagoing barges have been exempt from inspection since 1996, as defined in 46 U.S.C. 3302(m). In the Preliminary Regulatory Analysis for the NPRM, we anticipated that there would be no cost to implement this rule. The benefit of this final rule is eliminating regulatory ambiguity and aligning regulatory language with that of current statutes. We received no public comments that would alter our assessment of the impacts discussed in the NPRM. We received no additional information or data that would alter our assessment of the impacts on industry; therefore, we adopt the Preliminary Regulatory Analysis for the NPRM as final.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. 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.

We received no public comments and received no additional information or data that would alter our assessment of the impacts on small entities as discussed in the NPRM. This final rule will not result in additional costs for small entities because the Coast Guard is aligning the text of the regulations with current statutory language. The Coast Guard currently does not require the inspection of 46 U.S.C. 3302(m)-exempt seagoing barges, so finalizing this rule will impose no additional impacts (costs or cost savings) to small entities. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final 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 offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking. 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.

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).

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

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

It is well-settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well-settled, now, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within the field foreclosed from regulation by the States. (See the decision of the Supreme Court in the consolidated cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000). ) As noted above, the purpose of this rule is to eliminate existing ambiguities in the regulations in order to clarify how seagoing barges are certificated and inspected. Because the States may not regulate the process of certification and inspection for inspected seagoing barges, nor may they regulate within the categories noted above relating to these barges, the rule is consistent with the principles of federalism and preemption requirements in Executive Order 13132.

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 E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

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

We have analyzed this rule under E.O. 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 E.O. 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.

We have analyzed this rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

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 (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded under section 2.B.2, figure 2-1, paragraph (34)(a) and (d) of the Instruction. This rule involves amendments to regulations which are editorial or procedural and regulations concerning documentation and inspection of vessels. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

For the reasons discussed in the preamble, the Coast Guard amends 46 CFR parts 2, 24, 30, 70, 90, 91, and 188 as follows:

What is the list of fisheries?

Section 118 of the MMPA requires NMFS to place all U.S. commercial fisheries into one of three categories based on the level of incidental serious injury and mortality of marine mammals occurring in each fishery (16 U.S.C. 1387(c)(1)). The classification of a fishery on the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, observer coverage, and take reduction plan requirements. NMFS must reexamine the LOF annually, considering new information in the Marine Mammal Stock Assessment Reports (SARs) and other relevant sources, and publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment (16 U.S.C. 1387(c)(1)(C)).

The definitions for the fishery classification criteria can be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2). The criteria are also summarized here.

The fishery classification criteria consist of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock and then addresses the impact of individual fisheries on each stock. This approach is based on consideration of the rate, in numbers of animals per year, of incidental mortalities and serious injuries of marine mammals due to commercial fishing operations relative to the potential biological removal (PBR) level for each marine mammal stock. The MMPA (16 U.S.C. 1362(20)) defines the PBR level as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. This definition can also be found in the implementing regulations for section 118 of the MMPA (50 CFR 229.2).

Tier 1: If the total annual mortality and serious injury of a marine mammal stock, across all fisheries, is less than or equal to 10 percent of the PBR level of the stock, all fisheries interacting with the stock would be placed in Category III (unless those fisheries interact with other stock(s) in which total annual mortality and serious injury is greater than 10 percent of PBR). Otherwise, these fisheries are subject to the next tier (Tier 2) of analysis to determine their classification.

Tier 2, Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level (i.e., frequent incidental mortality and serious injuries of marine mammals).

Tier 2, Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level (i.e., occasional incidental mortality and serious injuries of marine mammals).

Tier 2, Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level (i.e., a remote likelihood or no known incidental mortality and serious injuries of marine mammals).

While Tier 1 considers the cumulative fishery mortality and serious injury for a particular stock, Tier 2 considers fishery-specific mortality and serious injury for a particular stock. Additional details regarding how the categories were determined are provided in the preamble to the final rule implementing section 118 of the MMPA (60 FR 45086, August 30, 1995).

Because fisheries are classified on a per-stock basis, a fishery may qualify as one Category for one marine mammal stock and another Category for a different marine mammal stock. A fishery is typically classified on the LOF at its highest level of classification (e.g., a fishery qualifying for Category III for one marine mammal stock and for Category II for another marine mammal stock will be listed under Category II).

There are several fisheries on the LOF classified as Category II that have no recent documented injuries or mortalities of marine mammals, or fisheries that did not result in a serious injury or mortality rate greater than 1 percent of a stock's PBR level based on known interactions. NMFS has classified these fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, or according to factors discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995) and listed in the regulatory definition of a Category II fishery, “In the absence of reliable information indicating the frequency of incidental mortality and serious injury of marine mammals by a commercial fishery, NMFS will determine whether the incidental serious injury or mortality is “frequent,” “occasional,” or “remote” by evaluating other factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries” (50 CFR 229.2).

Further, eligible commercial fisheries not specifically identified on the LOF are deemed to be Category II fisheries until the next LOF is published (50 CFR 229.2).

The LOF includes a list of marine mammal species or stocks incidentally killed or injured in each commercial fishery. To determine which species or stocks are included as incidentally killed or injured in a fishery, NMFS annually reviews the information presented in the current SARs. The SARs are based upon the best available scientific information and provide the most current and inclusive information on each stock's PBR level and level of interaction with commercial fishing operations. NMFS also reviews other sources of new information, including observer data, stranding data, and fisher self-reports.

In the absence of reliable information on the level of mortality or injury of a marine mammal stock, or insufficient observer data, NMFS will determine whether a species or stock should be added to, or deleted from, the list by considering other factors such as: Changes in gear used, increases or decreases in fishing effort, increases or decreases in the level of observer coverage, and/or changes in fishery management that are expected to lead to decreases in interactions with a given marine mammal stock (such as a TRP or a fishery management plan (FMP)). In these instances, NMFS will provide case-specific justification in the LOF for changes to the list of species or stocks incidentally killed or injured.

Data obtained from the observer program and observer coverage levels are important tools in estimating the level of marine mammal mortality and serious injury in commercial fishing operations. The best available information on the level of observer coverage and the spatial and temporal distribution of observed marine mammal interactions is presented in the SARs. Starting with the 2005 SARs, each SAR includes an appendix with detailed descriptions of each Category I and II fishery on the LOF, including observer coverage in those fisheries. The SARs generally do not provide detailed information on observer coverage in Category III fisheries because, under the MMPA, Category III fisheries are not required to accommodate observers aboard vessels due to the remote likelihood of mortality and serious injury of marine mammals. Fishery information presented in the SARs' appendices may include: Level of observer coverage, target species, levels of fishing effort, spatial and temporal distribution of fishing effort, characteristics of fishing gear and operations, management and regulations, and interactions with marine mammals. Copies of the SARs are available on the NMFS Office of Protected Resources Web site at: http://www.nmfs.noaa.gov/pr/sars/. Information on observer coverage levels in Category I and II fisheries can also be found in the Category I and II fishery fact sheets on the NMFS Office of Protected Resources Web site: http://www.nmfs.noaa.gov/pr/interactions/lof/. Additional information on observer programs in commercial fisheries can be found on the NMFS National Observer Program's Web site: http://www.st.nmfs.gov/st4/nop/.

This rule includes three tables that list all U.S. commercial fisheries by LOF Category. Table 1 lists all of the commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists all of the commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; and Table 3 lists all U.S.-authorized commercial fisheries on the high seas. A fourth table, Table 4, lists all commercial fisheries managed under applicable TRPs or take reduction teams (TRT).

Beginning with the 2009 LOF, NMFS includes high seas fisheries in Table 3 of the LOF, along with the number of valid High Seas Fishing Compliance Act (HSFCA) permits in each fishery. As of 2004, NMFS issues HSFCA permits only for high seas fisheries analyzed in accordance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The authorized high seas fisheries are broad in scope and encompass multiple specific fisheries identified by gear type. For the purposes of the LOF, the high seas fisheries are subdivided based on gear type (e.g., trawl, longline, purse seine, gillnet, troll, etc.) to provide more detail on composition of effort within these fisheries. Many fisheries operate in both U.S. waters and on the high seas, creating some overlap between the fisheries listed in Tables 1 and 2 and those in Table 3. In these cases, the high seas component of the fishery is not considered a separate fishery, but an extension of a fishery operating within U.S. waters (listed in Table 1 or 2). NMFS designates those fisheries in Tables 1, 2, and 3 by a “*” after the fishery's name. The number of HSFCA permits listed in Table 3 for the high seas components of these fisheries operating in U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels/participants holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

HSFCA permits are valid for five years, during which time FMPs can change. Therefore, some vessels/participants may possess valid HSFCA permits without the ability to fish under the permit because it was issued for a gear type that is no longer authorized under the most current FMP. For this reason, the number of HSFCA permits displayed in Table 3 is likely higher than the actual U.S. fishing effort on the high seas. For more information on how NMFS classifies high seas fisheries on the LOF, see the preamble text in the final 2009 LOF (73 FR 73032; December 1, 2008).

Starting with the 2010 LOF, NMFS developed summary documents, or fishery fact sheets, for each Category I and II fishery on the LOF. These fishery fact sheets provide the full history of each Category I and II fishery, including: When the fishery was added to the LOF, the basis for the fishery's initial classification, classification changes to the fishery, changes to the list of species or stocks incidentally killed or injured in the fishery, fishery gear and methods used, observer coverage levels, fishery management and regulation, and applicable TRPs or TRTs, if any. These fishery fact sheets are updated after each final LOF and can be found under “How Do I Find Out if a Specific Fishery is in Category I, II, or III?” on the NMFS Office of Protected Resources' Web site: http://www.nmfs.noaa.gov/pr/interactions/lof/, linked to the “List of Fisheries by Year” table. NMFS plans to develop similar fishery fact sheets for each Category III fishery on the LOF. However, due to the large number of Category III fisheries on the LOF and the lack of accessible and detailed information on many of these fisheries, the development of these fishery fact sheets will take significant time to complete. NMFS anticipates posting Category III fishery fact sheets along with the final 2015 LOF, although this timeline may be revised as this effort progresses.

Owners of vessels or gear engaging in a Category I or II fishery are required under the MMPA (16 U.S.C. 1387(c)(2)), as described in 50 CFR 229.4, to register with NMFS and obtain a marine mammal authorization to lawfully take non-endangered and non-threatened marine mammals incidental to commercial fishing operations. Owners of vessels or gear engaged in a Category III fishery are not required to register with NMFS or obtain a marine mammal authorization.

NMFS has integrated the MMPA registration process, implemented through the Marine Mammal Authorization Program (MMAP), with existing state and Federal fishery license, registration, or permit systems for Category I and II fisheries on the LOF. Participants in these fisheries are automatically registered under the MMAP and are not required to submit registration or renewal materials directly under the MMAP. In the Pacific Islands, Southwest, Northwest, and Alaska regions, NMFS will issue vessel or gear owners an authorization certificate and/or injury/mortality reporting forms via U.S. mail or with their state or Federal license at the time of renewal. In the Northeast region, NMFS will issue vessel or gear owners an authorization certificate via U.S. mail automatically at the beginning of each calendar year, but vessel or gear owners must request or print injury/mortality reporting forms by contacting the NMFS Northeast Regional Office at 978-281-9328 or by visiting the Northeast Regional Office Web site ( http://www.nero.noaa.gov/mmap ). In the Southeast region, NMFS will issue vessel or gear owners notification of registry and vessel or gear owners may receive their authorization certificate and/or injury/mortality reporting form by contacting the Southeast Regional Office at 727-209-5952 or by visiting the Southeast Regional Office Web site ( http://sero.nmfs.noaa.gov/pr/mm/mmap.htm ) and following the instructions for printing the necessary documents.

The authorization certificate, or a copy, must be on board the vessel while it is operating in a Category I or II fishery, or for non-vessel fisheries, in the possession of the person in charge of the fishing operation (50 CFR 229.4(e)). Although efforts are made to limit the issuance of authorization certificates to only those vessel or gear owners that participate in Category I or II fisheries, not all state and Federal permit systems distinguish between fisheries as classified by the LOF. Therefore, some vessel or gear owners in Category III fisheries may receive authorization certificates even though they are not required for Category III fisheries. Individuals fishing in Category I and II fisheries for which no state or Federal permit is required must register with NMFS by contacting their appropriate Regional Office (see ADDRESSES ).

In Southwest, Alaska, and Northeast regional fisheries, registrations of vessel or gear owners are automatically renewed and participants should receive an authorization certificate by January 1 of each new year. In Pacific Islands regional fisheries, vessel or gear owners should receive an authorization certificate by January 1 for state fisheries and with their permit renewal for federal fisheries. In Northwest regional fisheries, vessel or gear owners receive authorization with each renewed state fishing license, the timing of which varies based on target species. Vessel or gear owners who participate in these regions and have not received authorization certificates by January 1 or with renewed fishing licenses must contact the appropriate NMFS Regional Office (see ADDRESSES ).

In Southeast regional fisheries, vessel or gear owners' registrations are automatically renewed and participants will receive a letter in the mail by January 1 instructing them to contact the Southeast Regional Office to have an authorization certificate mailed to them or to visit the Southeast Regional Office Web site ( http://sero.nmfs.noaa.gov/pr/mm/mmap.htm ) to print their own certificate.

In accordance with the MMPA (16 U.S.C. 1387(e)) and 50 CFR 229.6, any vessel owner or operator, or gear owner or operator (in the case of non-vessel fisheries), participating in a fishery listed on the LOF must report to NMFS all incidental injuries and mortalities of marine mammals that occur during commercial fishing operations, regardless of the category in which the fishery is placed (I, II, or III) within 48 hours of the end of the fishing trip. “Injury” is defined in 50 CFR 229.2 as a wound or other physical harm. In addition, any animal that ingests fishing gear or any animal that is released with fishing gear entangling, trailing, or perforating any part of the body is considered injured, regardless of the presence of any wound or other evidence of injury, and must be reported. Injury/mortality reporting forms and instructions for submitting forms to NMFS can be downloaded from: http://www.nmfs.noaa.gov/pr/pdfs/interactions/mmap_reporting_form.pdf or by contacting the appropriate Regional office (see ADDRESSES ). Reporting requirements and procedures can be found in 50 CFR 229.6.

Individuals participating in a Category I or II fishery are required to accommodate an observer aboard their vessel(s) upon request from NMFS. MMPA section 118 states that an observer will not be placed on a vessel if the facilities for quartering an observer or performing observer functions are inadequate or unsafe, therefore, vessels too small to accommodate an observer are exempt from this requirement. However, observer requirements will not be exempted, regardless of vessel size, for U.S. Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline vessels operating in special areas designated by the Pelagic Longline Take Reduction Plan implementing regulations (50 CFR 229.36(d)). Observer requirements can be found in 50 CFR 229.7.

Table 4 in this rule provides a list of fisheries affected by TRPs and TRTs. TRP regulations can be found at 50 CFR 229.30 through 229.37. A description of each TRT and copies of each TRP can be found at: http://www.nmfs.noaa.gov/pr/interactions/trt/. It is the responsibility of fishery participants to comply with applicable take reduction regulations.

Information regarding the LOF and the Marine Mammal Authorization Program, including registration procedures and forms, current and past LOFs, information on each Category I and II fishery, observer requirements, and marine mammal injury/mortality reporting forms and submittal procedures, may be obtained at: http://www.nmfs.noaa.gov/pr/interactions/lof/, or from any NMFS Regional Office at the addresses listed below:

NMFS, Northeast Region, 55 Great Republic Drive, Gloucester, MA 01930-2298, Attn: Allison Rosner;

NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701, Attn: Jessica Powell;

NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, Attn: Elizabeth Petras;

NMFS, Northwest Region, 7600 Sand Point Way NE., Seattle, WA 98115, Attn: Brent Norberg, Protected Resources Division;

NMFS, Alaska Region, Protected Resources, P.O. Box 22668, 709 West 9th Street, Juneau, AK 99802, Attn: Bridget Mansfield; or

NMFS, Pacific Islands Region, Protected Resources, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814, Attn: Nancy Young.

NMFS reviewed the marine mammal incidental serious injury and mortality information presented in the SARs for all fisheries to determine whether changes in fishery classification were warranted. The SARs are based on the best scientific information available at the time of preparation, including the level of serious injury and mortality of marine mammals that occurs incidental to commercial fishery operations and the PBR levels of marine mammal stocks. The information contained in the SARs is reviewed by regional Scientific Review Groups (SRGs) representing Alaska, the Pacific (including Hawaii), and the U.S. Atlantic, Gulf of Mexico, and Caribbean. The SRGs were created by the MMPA to review the science that informs the SARs, and to advise NMFS on marine mammal population status, trends, and stock structure, uncertainties in the science, research needs, and other issues.

NMFS also reviewed other sources of new information, including marine mammal stranding data, observer program data, fisher self-reports, reports to the SRGs, conference papers, FMPs, and ESA documents.

The LOF for 2013 was based, among other things, on information provided in the NEPA and ESA documents analyzing authorized high seas fisheries; stranding data; fishermen self-reports through the MMAP; the final SARs for 2006 (72 FR 12774, March 19, 2007), 2007 (73 FR 21111, April 18, 2008), 2008 (74 FR 19530, April 29, 2009), 2009 (75 FR 12498, March 16, 2010), 2010 (76 FR 34054, June 10, 2011), 2011 (77 FR 29969, May 21, 2012); and 2012 (78 FR 19446, April 1, 2013, 78 FR 32377, May 30, 2013). The SARs are available at: http://www.nmfs.noaa.gov/pr/sars/.

Beginning with the final 2008 LOF (72 FR 66048, November 27, 2007), NMFS describes each Category I and II fishery in the LOF. In each LOF, NMFS describes the fisheries classified as Category I or II that were not classified as such on a previous LOF (and therefore have not yet been described in the LOF). Descriptions of all Category I and II fisheries operating in U.S. waters may be found in the SARs, FMPs, and TRPs, through state agencies, or through the fishery summary documents available on the NMFS Office of Protected Resources Web site ( http://www.nmfs.noaa.gov/pr/interactions/lof/. ) Additional details for Category I and II fisheries operating on the high seas are included in various FMPs, NEPA, or ESA documents.

The “Alaska Bering Sea and Aleutian Islands rockfish trawl” fishery is reclassified from Category III to Category II. Rockfish species fished include Pacific Ocean perch, northern rockfish, rougheye rockfish, shortraker rockfish, and other rockfish. Fishing effort in this fishery takes place in the U.S. Exclusive Economic Zone of the Eastern Bering Sea and the portion of the North Pacific Ocean adjacent to the Aleutian Islands, which is west of 170°W longitude up to the U.S.-Russian Convention Line of 1867. Pacific Ocean perch in the Aleutian Islands is allocated under the Amendment 80 catch share program to the trawl gear sectors. Northern rockfish, rougheye rockfish, shortraker rockfish, and other rockfish do not have directed fisheries but are caught incidentally in other fisheries. There are currently an estimated 28 vessels licensed in this fishery.

NMFS received 10 comment letters on the proposed LOF for 2013 (78 FR 23708, April 22, 2013). Comments were received from the Blue Water Fishermen's Association, Bright Eye Fishing Company, Center for Biological Diversity, Hawaii Longline Association, Marine Mammal Commission, Oceana, Inc., Turtle Island Restoration Network, U.S. Department of the Interior, Western Pacific Regional Fishery Management Council, and one individual. Comments on issues outside the scope of the LOF were noted, but generally without response.

Comment 1: An individual commenter requests that NMFS explicitly state what years of data are used in LOF analyses, specifically in the vessels/persons and other tables where dates are not provided, to make the information more clear and useful.

Response: In the preamble, NMFS states the years of the data used in the LOF review. NMFS used the best available data for each stock. In this rule for 2013, we used data from 2006-2010. The majority of data used come from the SARs, which are updated annually. In the SARs, the dates of the data used are stated. Other best available data sources include: Observer data, stranding data, and fisher self-reports. In the vessels/persons tables the most current federal and state commercial fisheries data are used. References to specific data sources are included in the proposed 2013 LOF rule (78 FR 23708, April 22, 2013) “Summary of Changes to the LOF for 2013” section.

Comment 2: The Marine Mammal Commission (Commission) recommends that NMFS work in collaboration with the states to develop reliable methods for estimating the number of participants in fisheries.

Response: As stated in the Final 2012 LOF (76 FR 73912, November 29, 2011), Table 2 represents a description of each fishery including the estimated number of persons/vessels active in the fishery. Currently, a clear measure of effort for all state fisheries has not been determined due to the way some state permits allow for the use of multiple gear types. As stated in the proposed 2013 LOF (78 FR 23708, April 22, 2013), NMFS recognizes that there may be disparity between permit holders listed and actual fishing effort; however, the numbers provided on the LOF are solely used for descriptive purposes and will not be used in determining future management of fisheries, observer coverage designations, or bycatch rates, which are all done through other processes that include public comment periods. Further, NMFS has communicated with the states regarding the need for consistent fishing effort data collection methods across states to better assess fisheries' effects on marine mammal stocks that have interstate distributions. NMFS will continue to communicate this need through TRT processes, LOF yearly inquiries, and the Marine Mammal Authorization Program's (MMAP's) integrated registration process and will work with states to improve the accuracy of these estimated numbers of vessels/persons.

Comment 3: The Center for Biological Diversity (CBD) requests that NMFS not reclassify fisheries to a lower category or remove marine mammals from the list when information on the fishery and its interactions is scant.

Response: As stated in the Final 2012 LOF (76 FR 73912, November 29, 2011), NMFS considers a broad range of information when proposing or making fishery classification decisions on the LOF and does not classify fisheries based solely on the presence or absence of serious injuries or mortalities. Under the implementing regulations for section 118, NMFS uses observer data, logbook data, stranding data, fishers' reports, anecdotal reports, qualitative factors outlined in 50 CFR 229.2 (i.e., fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area), information on incidental serious injury or mortality to marine mammals reported in SARs (50 CFR 229.2; 60 FR 45086, August 30, 1995; 60 FR 67063, December 28, 1995), and input received during the public comment periods. NMFS considers all of this information to determine whether the fishery can be classified on the LOF based on quantitative information analyzed through the Tier 1 and 2 analyses; or whether the fishery can be classified on the LOF based on the qualitative information outlined in NMFS regulations at 50 CFR 229.2.

Comment 4: The CBD recommends that NMFS be more transparent about the statistical reliability of bycatch estimates. The CBD reiterated an old Commission recommendation that NMFS include observer coverage for each fishery on the List of Fisheries, including Category III fisheries, to allow the reader to assess the adequacy of information on incidental mortality and serious injury to marine mammals. CBD recommends adding a column with observer coverage to the first table in the proposed rule that lists each fishery and the estimated number of participants.

Response: NMFS agrees with CBD's comment referencing the Commission's comment from the Final 2012 LOF (76 FR 73916, November 29, 2011, comment/response 2), that summarizing the information used as the basis to classify each fishery on the LOF in one location could be useful for interested readers. NMFS has posted information on each Category I and II fishery on the LOF on the NMFS Office of Protected Resources Web site ( http://www.nmfs.noaa.gov/pr/interactions/lof/ ), where it can be considered at the readers' discretion. NMFS is developing similar fishery fact sheets for each Category III fishery and anticipates posting those fishery fact sheets along with the final 2015 LOF. However, due to the large number of Category III fisheries on the LOF and the lack of accessible and detailed information on many of these fisheries, this timeline may be revised as this effort progresses.

Comment 5: The CBD opposes the inclusion of aquaculture operations as Category III fisheries and recommends that they be managed under MMPA Section 101(a)(5)(A) through (D) with take prohibitions and permits.

Response: As stated in the Final 2012 LOF (76 FR 73912, November 29, 2011), NMFS works under Section 118 of the MMPA which governs the “taking of marine mammals incidental to commercial fishing operations.” The MMPA does not provide a definition of a commercial fishing operation; therefore, NMFS defined “commercial fishing operation” in regulations at 50 CFR 229.2. The definition was presented in the proposed and final rules implementing the regulations for section 118 of the MMPA (60 FR 31666, June 16, 1995; 60 FR 65086, August 30, 1995). As noted in those proposed and final rules, and in the responses to comments on the 2009, 2010 and 2012 LOFs (73 FR 73032, December 1, 2008, comment/response 5; 74 FR 58859, November 16, 2009, comment/response 11; 76 FR 73916, November 29, 2011, comment/response 3), the definition of a “commercial fishing operation” includes aquaculture. The regulations in 50 CFR 229.2 define a “commercial fishing operation” as “the catching, taking, or harvesting of fish from the marine environment . . . . The term includes . . . aquaculture activities.” Further, “fishing or to fish” is defined as “any commercial fishing operation.” Therefore, aquaculture fisheries are considered commercial fisheries that are managed under section 118 of the MMPA and are therefore included on the annual LOF.

Comment 6: The Commission recommends that NMFS include in the 2014 LOF the estimated fishing effort, number of participants, and sources of the estimates (e.g., number of active participants, number of licensed vessels/persons, number of vessels/persons in previous LOFs, or other).

Response: Section 118 (c)(1) of the Marine Mammal Protection Act states that the Secretary shall include “the approximate number of vessels or persons actively involved in, each such fishery.” Each year NMFS provides updates on the estimated fishery participants as indicated in Table 2. NMFS provides a description of the sources of this information in each proposed rule when changes to the LOF are proposed. NMFS describes why these numbers may reflect potential industry participation and not necessarily active permit holders. Providing additional information on active participants, as requested by the commenter, may be possible for federal and some state permit/license holders. However, it is not currently available for many state fisheries.

NMFS requests state permit holder data from state agencies through the MMAP integrated registration process. At that time, NMFS provides state officials with the MMPA Category I & Category II fishery definitions. State representatives, being experts in their fisheries, then assign their state fisheries to the most appropriate LOF fishery when responding to NMFS's annual request for permit holder information. In some cases, a permit holder may have the potential to use a particular gear type, though they may not be actively participating. NMFS has interpreted Table 2 to represent an estimation of “potential participation” in a fishery, and each year provides specific language that explains that these numbers represent estimates and not actual effort for certain fisheries. NMFS will strive to include the requested additional information of estimated fishing effort, number of participants, and sources of estimates in the fishery fact sheets that are available on the NMFS Office of Protected Resources Web site: http://www.nmfs.noaa.gov/pr/interactions/lof/.

Comment 7: The Commission recommends that NMFS elevate the Hawaii charter and Hawaii trolling, rod and reel fisheries to Category II and initiate observer coverage to obtain data necessary to rigorously assess the risk the fisheries pose to the Hawaii stock of pantropical spotted dolphins. The Commission states that NMFS's conclusions regarding total commercial fishery-related mortality and serious injury of Hawaiian pantropical spotted dolphins are based on a series of observations that are not sufficient to assess the takes from the fisheries. The Commission also disagrees with NMFS's conclusion that, “in the absence of evidence of mortality/serious injury . . . a Category III classification . . . is appropriate,” for it shifts the burden of proof away from fishery management and removes the incentive to collect data needed to characterize the level of take.

Response: NMFS is retaining the Hawaii charter and Hawaii trolling, rod and reel fisheries as Category III fisheries. As described in the proposed rule (78 FR 23708, April 22, 2013), NMFS does not have a quantitative estimate of the number of mortalities and serious injuries of pantropical spotted dolphins in the fisheries. In the absence of that data, consistent with 50 CFR 229.2, NMFS considers other factors to assess the risk to the dolphins, including fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data, stranding information, and other relevant information on marine mammals. We have evaluated the available information, which is summarized in the proposed rule, and determined that incidental mortalities and serious injuries are likely rare, rather than “occasional”; and, thus, a Category III classification is warranted.

NMFS has the authority to place observers on Category III vessels under certain circumstances and to develop an alternative observer program to collect data on commercial fishing operations via other platforms (e.g., vessels, airplanes, points on shore) (50 CFR 229.7). Although NMFS is not initiating observer coverage for the troll and charter vessel fisheries at this time, we will continue to work with the State of Hawaii and with independent researchers to collect and evaluate information on the interaction between the fisheries and dolphins.

Comment 8: The Western Pacific Regional Fishery Management Council concurs with NMFS that the Hawaii charter and Hawaii trolling, rod and reel fisheries should remain Category III.

Response: NMFS acknowledges this comment and is finalizing the Hawaii charter and Hawaii trolling, rod and reel fisheries' proposed Category III classification.

Comment 9: The CBD opposes the removal of humpback whales (Central North Pacific stock) and Blainville's beaked whales (Hawaiian stock) from the list of species or stocks incidentally killed or injured in Category I Hawaii deep-set longline fishery. The CBD provides three reasons for retaining the species on the list. First, effort in the fishery increased from 2010 to 2011, and interactions with marine mammals will increase with the additional effort. As a result, NMFS should not now remove these species. Second, 20% observer coverage means there is a quantifiable risk that some interactions are unobserved and unreported, especially for the endangered humpback whale, NMFS should consider more than the most recent five years of data before removing a species historically taken by the fishery. Third, excluding marine mammals based solely on a lack of documented injuries or deaths in the most recent 5-year period is inconsistent with NMFS policy and prior practice. For example, NMFS just added Blainville's beaked whales on the 2012 LOF as an acknowledgment of the great uncertainty in identifying species and stocks taken in this fishery outside the U.S. EEZ. Therefore, the removal from the list on the basis of information for the most recent five-year period seems contradictory to what NMFS decided in listing them.

Response: NMFS is removing the two stocks from the list of species and stocks injured or killed in the Category I Hawaii deep-set longline fishery, as proposed. Responses to each of the CBD's three arguments are set forth below.

First, although the number of fishing sets in the Hawaii deep-set longline fishery has increased somewhat from 2010 to 2011 (Pacific Islands Fisheries Science Center, Fisheries Monitoring Branch, 2012), this fact alone does not indicate that there was or will be an increase in marine mammal interactions. The Hawaii deep-set fishery operates under a limited entry system, with the number of vessels remaining relatively constant over the past ten years. NMFS is removing these two marine mammal species/stocks because they have not been observed to be caught in the fishery in the most recent five years of data included in this analysis (2006-2010). NMFS will continue to update the list in future LOFs to reflect the best available data on observed interactions.

Second, in fisheries where observer coverage is inadequate, NMFS may retain species and stocks on the list for longer than five years, on a case-by-case basis. In the Hawaii deep-set longline fishery, NMFS is satisfied that existing observer coverage (20%) is sufficient to detect even rare marine mammal bycatch events, particularly when data are pooled across multiple years. Therefore, NMFS is relying on observer data to inform the list of species injured or killed in the fishery.

Third, NMFS considers these changes to the list of species injured or killed to be consistent with our policy and prior practice. The CBD's discussion of the addition of the Blainville's beaked whale to the list contains factual errors that we clarify below. The Hawaiian stock of Blainville's beaked whale has been included on the list of species injured/killed in the Hawaii deep-set longline fishery since the 2009 LOF (and in the Hawaii longline fishery on the 2006-2008 LOFs before the Hawaii deep- and shallow-set longline fisheries were split). The most recently observed interaction with a Blainville's beaked whale in the deep-set fishery was a non-serious injury on the high seas in 2005. In the 2012 LOF, NMFS added an “unknown” stock of Blainville's beaked whale to the high-seas component of the fishery (Table 3—Western Pacific Pelagic (Hawaii Deep-set component)) to account for the uncertainty in stock (not species) identification on the high seas given that the full offshore ranges of Hawaiian pelagic cetacean stocks are unknown. Accordingly, the addition of this “unknown” stock was meant to account for the inherent uncertainty in identifying whether the animals are from the Hawaiian pelagic stocks or from other high seas stocks and not because of additional observed takes within the time period considered for the 2012 LOF (2005-2009). More recent data indicate there have been no observed interactions with Blainville's beaked whales in the most recent 5-year period (2006-2010); and, thus, the removal of the species (including both the Hawaiian and unknown stocks) is appropriate.

Comment 10: The CBD continues to have concern over NMFS's lack of assessment and analysis of fisheries' impacts on Hawaiian monk seals. The CBD stated that, given the critically endangered status of the monk seal, any interaction is significant and any fishing mortality would qualify a fishery as Category I if NMFS calculated the potential biological removal (PBR) level. Continuing to rely on the fact that the PBR level for monk seals is “undetermined” to justify NMFS's failure to make a quantitative evaluation of incidental mortality and serious injury compared to PBR evades the intent and legal mandates of the MMPA.

Response: NMFS expects that the great majority of fisheries' interactions with Hawaiian monk seals occur in the main Hawaiian Islands (MHI), where coastal and recreational fisheries primarily operate. Currently, NMFS is only able to estimate the minimum number of fisheries' interactions based on opportunistic reporting by the public. Reports about interactions coming directly from fishermen are rare. A majority of those reported interactions are hookings (serious injury). However, notwithstanding these fisheries interactions, NMFS is encouraged that the monk seal population in the MHI continues to increase, with an estimated intrinsic population growth rate of 6.5% per year (Baker et al., 2011).

NMFS is unable to reliably determine whether an interaction (i.e., hooking) occurred in a commercial or recreational fishery, primarily for two reasons. First, when a seal is sighted with a hook, it is often difficult to determine the fishery of origin, even if the hook or other gear is recovered from the animal. Second, many Hawaiian fisheries have both commercial and non-commercial components. As a result, even if the fishery can be identified from the recovered gear, it may be difficult to verify whether the interaction occurred during commercial fishing (and would thus be evaluated on the LOF). This issue will not be resolved without improved information and reporting by fishermen.

NMFS continues to try to improve its data collection, analysis and assessment of fisheries' interactions and their impacts on Hawaiian monk seals. NMFS is currently working with state and private partners to address some of these limitations in data and reporting. Some examples include:

• The NMFS Pacific Islands Fisheries Science Center Hawaiian Monk Seal Research Program (HMSRP) partners with the State of Hawaii to better quantify and describe potential monk seal interactions with fisheries in order to develop mitigation strategies.

• The HMSRP is conducting a community-based research project using National Geographic Crittercams to look at the seals' foraging behavior and fisheries interactions. This project allows fishermen to take part in the research and has a substantial community engagement component educating the fishing community about seals and encouraging reporting.

• The NMFS Pacific Islands Regional Office develops outreach products and messages to inform fishermen about best practices when fishing around monk seals and how to report interactions.

• Several Federal, State, and non-governmental organization liaisons are working with various fishing communities to encourage better reporting of monk seal interactions.

NMFS will continue to work with its state and federal partners and the public to better understand, quantify, and reduce monk seal-fishery interactions.

Comment 11: The Hawaii Longline Association (HLA) argues that the Hawaii-based deep-set longline fishery does not interact with MHI insular false killer whales and opposes including the stock on the list of marine mammals injured or killed in the deep-set fishery.

Response: NMFS determines which species or stocks are included as incidentally killed or injured in a fishery by annually reviewing the information presented in the current SARs, among other relevant sources. The SARs are based on the best available scientific information and provide the most current and inclusive information on each stock, including range, abundance, PBR, and level of interaction with commercial fishing operations. The LOF does not analyze or evaluate the data and calculations contained within the SARs.

The 2012 SAR for false killer whales indicates that an average of 0.5 mortalities or serious injuries of MHI insular false killer whales occur each year incidental to the Hawaii-based deep-set longline fishery (Carretta et al., 2013). Therefore, NMFS is retaining the stock on the list of marine mammal stocks incidentally killed or injured in the Hawaii deep-set longline fishery. For a more complete analysis of the methodology for determining mortality and serious injury of MHI insular false killer whales, the commenter is referred to the 2012 SAR.

Comment 12: The HLA opposes NMFS's inclusion of a number of “unknown” marine mammals stocks on the list of species or stocks injured or killed in the deep-set and shallow-set fisheries and states it is in violation of the MMPA.

Response: The listings of “unknown” stocks are for species that have been observed to have been taken by the Hawaii-based deep-set and shallow-set longline fisheries on the high seas, but for which the stock identity could not be reliably determined. NMFS' SARs for Hawaii pelagic cetacean stocks note that the stocks' ranges extend into the high seas, but the full offshore ranges are unknown. For those animals taken by the longline fisheries on the high seas, NMFS is often unable to determine whether the animals belong to the Hawaii pelagic stocks or other high seas stocks. This is particularly true for takes that occur far outside the U.S. EEZ around the Hawaiian Islands. Therefore, NMFS' inclusion of “unknown” stocks that are known to interact with the longline fisheries on the high seas is necessary to account for uncertainty in stock identification.

Comment 13: The HLA opposes NMFS adding short-finned pilot whales to the list of species injured or killed in the Hawaii shallow-set longline fishery because it is not supported by the available data. The addition is based on a single interaction on the high seas involving an unidentified cetacean that “may have” been a short-finned pilot whale. In the absence of data confirming that the fishery is interacting with short-finned pilot whales, NMFS may not add the species to the list of species or stocks that are incidentally killed or injured by the fishery.

Response: One unidentified cetacean, known to be either a false killer whale or short-finned pilot whale (i.e., a “blackfish”), was observed seriously injured in the shallow-set longline fishery on the high seas in 2008. When the species of a blackfish cannot be positively identified, NMFS prorates the interaction to one species or the other based on distance from shore (McCracken, 2010). Proration of unidentified blackfish takes accounts for uncertainty in the bycatch estimates and until all animals taken can be identified to either species (e.g., photos, tissue samples). This approach constitutes the best available information and ensures that potential impacts to all species and stocks are assessed. Based on this approach, the estimated average annual mortality and serious injury of short-finned pilot whales in the fishery is 0.1 (McCracken, 2011). Therefore, NMFS is adding the short-finned pilot whale to the list of species or stocks that are incidentally killed or injured by the fishery, as proposed.

Comment 14: The HLA concurs with NMFS's proposed removals from the list of species and stocks that interact with the Hawaii-based longline fisheries.

Response: NMFS acknowledges this comment and is finalizing the list of species and stocks interacting with the Hawaii deep- and shallow-set longline fisheries as proposed. As stated in the proposed rule (78 FR 23708, April 22, 2013), the changes reflect the most recent five years of data (2006-2010) on observed marine mammal interactions in the fisheries.

Comment 15: The Turtle Island Restoration Network (TIRN) recommends that NMFS add pygmy killer whales to the list of species/stocks incidentally killed or injured in the Hawaii deep-set longline fishery based on one observed take in the first quarter of 2013.

Response: The 2013 LOF does not yet incorporate the recently observed pygmy killer whale interaction. The observed interaction has not yet been included in any bycatch estimate, and has not yet been evaluated as part of the tier analysis for this fishery. This observed take will be evaluated in a future LOF.

Comment 16: The Commission concurs with NMFS's proposed reclassifications of the Bering Sea Aleutian Islands (BSAI) rockfish trawl fishery from Category III to Category II, the BSAI Pacific cod longline fishery from Category II to Category III, and the Alaska Bering Sea sablefish pot fishery from Category II to Category III.

Response: NMFS acknowledges this comment and is finalizing the fishery reclassifications.

Comment 17: The U.S. Department of the Interior (DOI) concurs with NMFS that the Southwestern Alaska stock of northern sea otter is incidentally taken in the AK Kodiak salmon set gillnet fishery, the South Central Alaska stock of northern sea otter is incidentally taken in the Alaska Prince William Sound salmon drift gillnet fishery, and the Pacific walrus is incidentally taken in the Alaska BSAI flatfish trawl fishery.

Response: NMFS acknowledges this comment and is finalizing the changes to the list of species injury or killed in these fisheries as proposed.

Comment 18: NMFS received four comment letters supporting the reclassification of the CA thresher shark and swordfish drift gillnet fishery. All of the commenters concurred with the proposed elevation to Category I, the addition of the CA/OR/WA stock of sperm whales to the list of species or stocks incidentally killed or injured in this fishery, and that interactions with this stock provide the basis for the elevation in classification.

Response: NMFS acknowledges this comment and is finalizing the CA thresher shark and swordfish drift gillnet fishery reclassification from Category II to Category I.

Comment 19: NMFS received three comment letters about species injured and killed in the CA swordfish and thresher shark drift gillnet fishery. All commenters requested that NMFS add minke whales to the list of species incidentally killed or injured in the CA swordfish and thresher shark drift gillnet fishery. One letter suggested that NMFS consider whether these takes exceeded PBR.

Response: In the proposed 2013 LOF (78 FR 23708, April 22, 2013), NMFS relied on information available through 2010. When the proposed 2013 LOF was drafted, the best available information on the fisheries and marine mammal interactions was through 2010. The available information included assessments of observed interactions and serious injuries as well as extrapolations of the observed interactions of commercial fisheries and marine mammals (Carretta and Enriquez, 2012). A minke whale interaction was observed in the CA swordfish and thresher shark drift gillnet fishery in 2011 (Carretta and Enriquez, 2012). This information, as well as other fishery activities through 2011, will be reviewed and included in the 2014 LOF, as appropriate.

Comment 20: DOI concurs with NMFS that the CA (southern) sea otters be listed as incidentally taken in the CA halibut/white seabass and other species set gillnet fishery. The DOI recommends that NMFS add CA sea otters to CA coonstripe, shrimp, rock crab, tanner crab pot or trap and CA spiny lobster fisheries lists.

Response: NMFS received a similar comment for the proposed 2012 LOF (76 FR 73912, November 29, 2011, comment/response 9) as well as 2011 LOF (75 FR 68475, November 8, 2010) and 2010 LOF (74 FR 58859, November 16, 2009). As described in the response to comments in the final 2012 LOF (76 FR 73912, November 29, 2011) and described in detail in the proposed 2009 LOF (73 FR 33760, June 13, 2008), NMFS conducted an extensive review of all available information on marine mammal interactions with pot/traps gear in 2008. Also in 2008, the U.S. Fish and Wildlife Service (USFWS) completed a stock assessment for southern sea otters. As described in the 2008 SAR and 2009 LOF, there have been four sea otters that are known to have died in pot/trap gear in California and all occurred in 1987 and 1991. The U.S. Geological Survey and California Department of Fish and Game (now California Department of Fish and Wildlife) collaborated on observing finfish traps in California, but did not record any sea otter interactions (Carretta et al., 2009). The USFWS, as part of public comments for the 2012 LOF, submitted a paper by Hatfield et al. (2011), detailing experiments that indicate that sea otters can enter and become entrapped in pots or traps with openings of certain sizes. However, the paper presented no evidence of this occurring during commercial fishing activities off California. The possibility of an interaction is insufficient justification to include southern sea otters on the list of species incidentally injured or killed in the CA coonstripe shrimp, rock crab, tanner crab pot or trap or the CA spiny lobster trap fisheries. Instead, NMFS needs some indication that injuries or mortalities are occurring or have occurred in these fisheries in recent years (e.g., fisher self-reports, observer data, stranding data). If additional information becomes available to indicate that southern sea otters have been injured or killed in CA trap/pot fisheries in recent years, NMFS will consider including this species on the LOF at that time.

Comment 21: The Blue Water Fishermen's Association recommends that NMFS divide the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery for swordfish, tuna, and sharks into three regional fisheries. The Atlantic and Caribbean should be divided at the Georgia/Florida state line into north and south Atlantic regions and the Gulf of Mexico should be a third region.

Response: NMFS disagrees that the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery should be divided into three regions. Gear used throughout the large pelagics longline fishery is relatively the same, and marine mammal stocks have the potential to interact with this gear across all geographic regions. For example, other Southeast fisheries including the Southeastern U.S. Atlantic, Gulf of Mexico stone crab trap/pot fishery; the Atlantic mixed species trap/pot fishery; the Southeastern U.S. Atlantic Gulf of Mexico shrimp trawl fishery; and the Mid-Atlantic gillnet fishery are all grouped together based on similar gear types, despite slight regional differences in fishing techniques or the marine mammal stocks affected. Furthermore, even though the pelagics longline fishery is grouped over geographic regions for LOF purposes, management measures to reduce serious injuries and mortalities of marine mammals for the fishery are already focused on geographic areas where interactions pose a significant risk to specific marine mammal stocks, rather than implementing broad-brush regulations that span over large areas with different variations of interactions.

Comment 22: The Blue Water Fishermen's Association recommends that NMFS support research efforts to better understand depredation by marine mammals on hooked catches, specifically pilot whale interactions.

Response: NMFS agrees with the Blue Water Fishermen's Association that research efforts are important to reduce marine mammal interactions. The LOF does not include any funding mechanisms to support research efforts. However, we are supporting research efforts to better understand how to reduce or prevent serious injuries and mortalities of marine mammals in the Atlantic portion of the pelagic longline fishery. Specifically, we are providing funding through North Carolina Sea Grant for cooperative research between scientists and fishermen to better understand pilot whale interactions with the pelagic longline fishery as described in the Pelagic Longline Take Reduction Plan. In addition, we are supporting two research projects in 2013 to evaluate the potential of weak hooks for reducing serious injury and mortality of marine mammals, while maintaining catch for fishermen.

Comment 23: DOI recommends that NMFS delete the superscript reference about the level of interaction with the Atlantic blue crab trap/pot fishery for the Florida subspecies of the West Indian manatee because it is erroneous. The reference reads, “[F]ishery classified based on serious injuries and mortalities of this stock, which are greater than 50 percent (Category 1) or greater than 1 percent and less than 50 percent (Category II) of the stock' s [potential biological removal] PBR.”

Response: NMFS believes that the footnote regarding the level of interaction between the Atlantic blue crab trap/pot fishery and the Florida subspecies of West Indian manatee is relevant. This reference is included for any stock listed under a fishery that has data showing that serious injuries and mortalities are greater than 1 percent and less than 50 percent (Category II) of the stock's PBR. In NMFS preliminary data, the PBR for the West Indian manatee was 14.98, and three serious injuries were reported in Atlantic blue crab pot gear, 20% of the stock's PBR. Based on this information, NMFS finds the footnote to be accurate and will maintain the footnote reference for the Florida subspecies of manatee.

Comment 24: DOI recommends that NMFS remove the Florida subspecies of the West Indian manatee from the list of species/stocks incidentally killed or injured in the Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery. DOI is unaware of any manatees taken in this fishery since 1990.

Response: Notwithstanding the record of historic takes and low observer coverage since 1992 (less than 1%), NMFS will remove the Florida subspecies of the West Indian manatee from the list of species/stocks incidentally killed or injured in the Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery since there have been no recently documented takes. Further, the Georgia Department of Natural Resources and Florida Fish and Wildlife Conservation Commission closely monitor the manatee population, which allows them to detect the majority of dead and injured animals. The last known takes of manatees by trawl gear were in 1997, as presented in the 2009 SAR (74 FR 69136, December 30, 2009). Two takes were reported that year from Georgia waters. One of the takes was lethal; the other was non-lethal. Also, in 1990, the inshore bait shrimp fishery was suggested to cause three unconfirmed manatee mortalities. The manatee carcass salvage and recovery program at the Florida Fish and Wildlife Conservation Commission coordinates carcass salvage to determine the cause of death of every reported dead manatee (up to 400 manatees a year) (Florida Fish and Wildlife Conservation Commission, 2007). In Georgia, the Department of Natural Resources works closely with the state of Florida and U.S. Fish and Wildlife Service to monitor impacts to manatees.

Comment 25: The Commission recommends that NMFS elevate the Atlantic, Gulf of Mexico, Caribbean commercial passenger fishing vessel fishery and all other fisheries that could be responsible for observed takes of bottlenose dolphins from Category III to Category II until NMFS can reliably attribute the takes to a specific fishery(s).

Response: NMFS is currently reviewing all Category III fisheries and associated data. Given the large number of Category III fisheries and the lack of accessible and detailed information on many of these fisheries, including the Atlantic, Gulf of Mexico, Caribbean commercial passenger fishing vessel fishery, NMFS anticipates this review will take some time. As noted in the preamble, fishery fact sheets for all Category III fisheries are expected to be completed with the LOF for 2015, although this timeline may be revised as this effort progresses.

Comment 26: The Commission recommends that NMFS keep the eastern Gulf of Mexico coastal bottlenose dolphin stock on the lists of species or stocks incidentally killed or injured in the Gulf of Mexico gillnet fishery and the Gulf of Mexico menhaden purse seine fishery until five years of adequate observer coverage data show otherwise.

Response: The eastern Gulf of Mexico coastal bottlenose dolphin stock was removed from the Gulf of Mexico gillnet fishery because there is little to no overlap with this fishery. The range of the eastern Gulf of Mexico coastal bottlenose dolphin stock extends off the coast of Florida to the 20 m isobath. Gillnets are prohibited in Florida state waters. In Federal waters on the Gulf side, there are no gillnet fisheries with the exception of a small fishery for king mackerel north of the Marquesas' in the Florida Keys that fishes an average of 5-7 days per year. Because the spatial and temporal overlap of this stock with this fishery is minimal and there are no recorded takes, NMFS removed the Gulf of Mexico coastal bottlenose dolphin stock from this fishery.

NMFS also removed the eastern Gulf of Mexico coastal bottlenose dolphin stock from the Gulf of Mexico menhaden purse seine fishery because there is now minimal overlap between the fishery and the stock's range. Historically, the bait fishery for menhaden occurred along the Florida panhandle and around Tampa Bay, but the fishery was curtailed after the Florida net-ban of 1995 (Gulf States Marine Fisheries Commission, 2010). There is now only a very small fishery for menhaden off the Florida panhandle in Federal waters. No has been documented from that fishery.

Comment 27: The Commission recommends that NMFS keep the Gulf of Mexico oceanic Gervais beaked whale stock on the lists of species or stocks incidentally killed or injured in Atlantic, Caribbean, Gulf of Mexico large pelagics longline fishery until five years of adequate observer coverage data show otherwise.

Response: NMFS will keep the Gulf of Mexico oceanic Gervais beaked whale stock on the list of species incidentally killed or injured by the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery, because there has not been adequate observer coverage data that show otherwise in the five year (2006-2010) data period used in the LOF for 2013 analysis.

Comment 28: The Commission recommends that NMFS keep the northern Gulf of Mexico continental shelf bottlenose dolphin stock on the lists of species or stocks incidentally killed or injured in Atlantic, Caribbean, Gulf of Mexico large pelagics longline fishery until five years of adequate observer coverage data show otherwise.

Response: The Gulf of Mexico continental shelf bottlenose dolphin stock was removed from the Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline fishery because there has been adequate observer coverage without any observed takes in the last five years. The Gulf of Mexico portion of the pelagic longline fishery has adequate observer coverage. For example, in 2011, the average observer coverage of total longline sets in the Gulf of Mexico was 17.6% (Garrison and Stokes, 2012). The last reported take potentially from this stock was in 2007. This dolphin was released alive and presumed to have no serious injuries. This animal could have belonged to the continental shelf or oceanic stock.

Comment 29: The Association, Turtle Island Restoration Network, and Bright Eye Fish Company request that NMFS re-evaluate or provide further explanation of the Atlantic Ocean, Caribbean, and Gulf of Mexico large pelagics longline fishery increase of estimated number of vessels/persons from 94 to 420.

Response: NMFS re-evaluated the compiled permit data to ensure all duplicated values were removed. The corrected estimated number of vessels/persons is 234, based on 2012 permit data for all Atlantic tuna longline and incidental and directed swordfish. The value of 234 represents all unique vessels that have one of these permits. Active vessels in a given year may be less than 234, but we list all permitted vessels that have the potential to fish in a given year within the designated pelagic longline fishery.

Comment 30: The Turtle Island Restoration Network requests an explanation of why prohibited fishing gears, such as gillnets on the high seas, are listed as active fisheries.

Response: As stated in the preamble supplementary information under header “Are high seas fisheries included on the LOF?” HSFCA permits are valid for five years, during which time FMPs can change. Therefore, some vessels/participants may possess valid HSFCA permits without the ability to fish under the permit because it was issued for a gear type that is no longer authorized under the most current FMP. For this reason, the number of HSFCA permits displayed in Table 3 is likely higher than the actual U.S. fishing effort on the high seas.

Gillnets are an authorized gear type in the List of Authorized Fisheries and Gear in the MSA Provisions (50 CFR 600.725). On the U.S. West Coast, the thresher shark and swordfish fishery is authorized to use drift gillnets. Under the FMP for U.S. West Coast Fisheries for Highly Migratory Species, drift gillnet use is banned during certain seasons in specific portions of the EEZ off of California and Oregon. An HSFCA permit is generally associated with at least one fishery that is authorized by a Fishery Management Plan. As such gill netters are still listed as a vessel type in the HSFCA permit application.

Comment 31: The Association states that the high seas fishing vessel permit holders are already included in the Atlantic, Caribbean, Gulf of Mexico large pelagics longline vessels/persons count, so they have been double-counted in the NMFS estimate of vessels/permits.

Response: As stated in the preamble supplementary information under header “Are high seas fisheries included on the LOF,” many fisheries operate in both U.S. waters and on the high seas, creating some overlap between the fisheries listed in Tables 1 and 2 and those in Table 3. In these cases, the high seas component of the fishery is not considered a separate fishery, but an extension of a fishery operating within U.S. waters (listed in Table 1 or 2). NMFS designates those fisheries in Tables 1, 2, and 3 by a “*” after the fishery's name. The number of HSFCA permits listed in Table 3 for the high seas components of these fisheries operating in U.S. waters does not necessarily represent additional effort that is not accounted for in Tables 1 and 2. Many vessels/participants holding HSFCA permits also fish within U.S. waters and are included in the number of vessels and participants operating within those fisheries in Tables 1 and 2.

In this final rule, NMFS updated the “Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline” fishery vessels/persons value. The revised, final estimate is 243, down from 420 in the proposed rule.

In this final rule, NMFS added Gervais beaked whales (Gulf of Mexico oceanic) to the list of species or stocks incidentally killed or injured in the “Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline” fishery.

In this final rule, NMFS removed West Indian manatee (Florida) from the list of species or stocks incidentally killed or injured in the “Southeastern U.S. Atlantic, Gulf of Mexico trawl” fishery.

The following summarizes changes to the LOF for 2013 in fishery classification, the estimated number of vessels/participants in a particular fishery, the species or stocks that are incidentally killed or injured in a particular fishery, and the fisheries that are subject to a take reduction plan. The classifications and definitions of U.S. commercial fisheries for 2013 are identical to those provided in the LOF for 2012 with the changes discussed below. State and regional abbreviations used in the following paragraphs include: AK (Alaska), CA (California), DE (Delaware), FL (Florida), GMX (Gulf of Mexico), HI (Hawaii), MA (Massachusetts), ME (Maine), NC (North Carolina), NY (New York), OR (Oregon), RI (Rhode Island), SC (South Carolina), VA (Virginia), WA (Washington), and WNA (Western North Atlantic).

NMFS reclassifies the “CA thresher shark/swordfish drift gillnet” fishery from Category II to Category I.

NMFS reclassifies the “Alaska Bering Sea and Aleutian Islands Rockfish trawl” fishery from Category III to Category II.

NMFS reclassifies the “Alaska Bering Sea/Aleutian Islands Pacific cod longline” fishery from Category II to Category III.

NMFS reclassifies the “Alaska Bering Sea sablefish pot fishery” from Category II to Category III.

NMFS determined that the “Hawaii charter vessel” and “Hawaii trolling, rod and reel” fisheries should remain classified as Category III fisheries.

NMFS updates the estimated number of persons/vessels operating in the Pacific Ocean as follows:

NMFS adds sperm whales (CA/OR/WA stock) and bottlenose dolphins (CA/OR/WA offshore stock) to the list of species or stocks incidentally killed or injured in the Category I “CA thresher shark/swordfish drift gillnet” fishery. NMFS, further, adds a superscript “1” after sperm whale (CA/OR/WA stock), indicating that this stock is a driver for the Category I classification of this fishery. NMFS, also, removes the superscript “ 1 ” from the humpback whale (CA/OR/WA stock).

NMFS adds bottlenose dolphins (CA/OR/WA offshore stock) to the list of species or stocks incidentally killed or injured in the Category III “WA/OR/CA groundfish, bottomfish longline/set line” fishery.

NMFS makes several changes to the list of species or stocks incidentally killed or injured in the Category II “HI shallow-set (swordfish target) longline” fishery. NMFS adds short-finned pilot whales (Hawaiian stock), removes Bryde's whales (Hawaiian stock), and adds a superscript “ 1 ” following false killer whale (Hawaii pelagic stock), to indicate the stock is driving the fishery's Category II classification. NMFS removes the superscript “ 1 ” following bottlenose dolphin (Hawaii pelagic stock), to indicate the stock is no longer driving the fishery's Category II classification.

NMFS removes humpback whales (Central North Pacific stock) and Blainville's beaked whales (Hawaiian stock) from the list of species or stocks incidentally killed or injured in the Category I “Hawaii deep-set (tuna target) longline” fishery.

NMFS adds pantropical spotted dolphins (Hawaii stock) to the list of species or stocks incidentally injured or killed in the Category III “Hawaii trolling, rod and reel” and “Hawaii charter vessel” fisheries.

NMFS makes several changes to the list of species or stocks incidentally killed or injured in the Category II “Alaska Bering Sea and Aleutian Islands Flatfish trawl” fishery. NMFS adds gray whales (Eastern North Pacific stock), humpback whales (Western North Pacific stock), killer whales (Gulf of Alaska, Aleutian Islands, and Bering Sea transient stock), and ringed seals (Alaska stock).

NMFS makes several changes to the list of species or stocks incidentally killed or injured in the Category II “Alaska Bering Sea and Aleutian Islands Pollock trawl” fishery. NMFS adds ringed seals (Alaska stock), bearded seals (Alaska stock), and Northern fur seals (Eastern Pacific stock). NMFS removes killer whales (Eastern North Pacific, Gulf of Alaska, Aleutian Islands, and Bering Sea transient stock) and minke whales (Alaska stock).

NMFS makes several changes to the list of species or stocks incidentally injured or killed by the Category III “Alaska Bering Sea and Aleutian Islands Pacific Cod longline” fishery. NMFS adds Northern fur seals (eastern Pacific stock) and Dall's Porpoise (Alaska stock), and removes Steller sea lions (Western United States stock), ribbon seals (Alaska stock), and killer whales (Alaska Resident stock).

NMFS adds Steller sea lions (Western United States stock) to the list of species or stocks incidentally injured or killed by the Category III “Gulf of Alaska Pacific Cod longline” fishery.

NMFS removes Steller sea lions (Eastern United States stock) from the list of species or stocks incidentally injured or killed by the Category III “Gulf of Alaska Sablefish longline” fishery.

NMFS removes Steller sea lions (Eastern United States stock) from the list of species or stocks incidentally injured or killed by the Category III “Alaska Halibut longline” fishery.

NMFS adds ribbon seal (Alaska stock) to the list of species or stocks incidentally injured or killed by the Category III “Atka Mackerel trawl” fishery.

NMFS removes harbor seals (Bering Sea stock) from the list of species or stocks incidentally injured or killed by the Category III “Bering Sea/Aleutian Islands Pacific Cod trawl” fishery.

NMFS removes humpback whales (Western North Pacific stock) and (Central North Pacific stock) from the list of species or stocks incidentally injured or killed by the Category III “Alaska Bering Sea sablefish pot” fishery.

NMFS updates the estimated number of vessels/persons in commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean.

NMFS removes bottlenose dolphin (Northern Gulf of Mexico continental shelf stock) from the list of species or stocks incidentally injured or killed in the Category I “Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline” fishery.

NMFS removes bottlenose dolphin (Eastern Gulf of Mexico coastal stock) from the list of species or stocks incidentally injured or killed in the Category II “Gulf of Mexico gillnet” fishery.

NMFS removes Atlantic spotted dolphins (Western North Atlantic stock) from the list of species or stocks incidentally injured or killed in the Category II “Southeastern U.S. Atlantic shark gillnet” fishery.

NMFS removes bottlenose dolphins (Eastern Gulf of Mexico coastal stock) from the list of species or stocks incidentally injured or killed in the Category II “Gulf of Mexico menhaden purse seine” fishery.

NMFS removes dwarf sperm whales (Western North Atlantic stock) from the list of species or stocks incidentally injured or killed in the Category III “Caribbean gillnet” fishery.

NMFS adds bottlenose dolphin (Southern South Carolina/Georgia coastal stock) to the list of species or stocks incidentally injured or killed in the Category III “Georgia cannonball jellyfish trawl” fishery.

NMFS adds minke whales (Canadian East Coast stock) to the list of species or stocks incidentally killed or injured in the Category II “Northeast bottom trawl” fishery.

NMFS adds Risso's dolphins (Western North Atlantic stock) to the list of species or stocks incidentally killed or injured in the Category I “Mid-Atlantic gillnet” fishery.

NMFS adds long-finned pilot whales (Western North Atlantic stock) and short-finned pilot whales (Western North Atlantic stock) to the list of species or stocks incidentally killed or injured in the Category I “Northeast sink gillnet” fishery.

NMFS adds common dolphins (Western North Atlantic stock) and gray seals (Western North Atlantic stock) to the list of species or stocks incidentally killed or injured in the Category II “Northeast mid-water trawl” fishery.

NMFS adds gray seals (Western North Atlantic stock) to the list of species stocks incidentally killed or injured in the Category II “Mid-Atlantic bottom trawl” fishery.

NMFS updates the estimated number of HSFCA permits in multiple high seas fisheries for multiple gear types (Table 3). The updated numbers of HSFCA permits reflect the current number of permits in the NMFS National Permit System database.

NMFS removes humpback whales (Central North Pacific stock) and Blainville's beaked whales (Hawaiian and unknown stocks) from the list of species or stocks incidentally killed or injured in the “Western Pacific Pelagic (HI Deep-set component)” fishery.

NMFS removes Bryde's whales (Hawaiian and unknown stocks) and adds short-finned pilot whales (Hawaiian and unknown stocks) to the list of species or stocks incidentally killed or injured in the “Western Pacific Pelagic (HI Shallow-set component)” fishery.

NMFS updates the list of fisheries affected by take reduction teams and plans found in Table 4 of the LOF.

In the Atlantic, Gulf of Mexico, and Caribbean region, two updates are made: The Atlantic portion of the “Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery” is subject to the Bottlenose Dolphin Take Reduction Plan (BDTRP), and the “Chesapeake Bay inshore gillnet fishery” is also subject to the BDTRP.

In the Pacific Ocean region, NMFS adds “False Killer Whale Take Reduction Plan (FKWTRP)—50 CFR 229.37” to the list of take reduction plans. Affected fisheries include the Category I “Hawaii deep-set (tuna target) longline/set line” and Category II “Hawaii shallow-set (swordfish target) longline/set line” fisheries.

The following tables set forth the list of U.S. commercial fisheries according to their classification under section 118 of the MMPA. Table 1 lists commercial fisheries in the Pacific Ocean (including Alaska); Table 2 lists commercial fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean; Table 3 lists commercial fisheries on the high seas; and Table 4 lists fisheries affected by TRPs or TRTs.

In Tables 1 and 2, the estimated number of vessels/persons participating in fisheries operating within U.S. waters is expressed in terms of the number of active participants in the fishery, when possible. If this information is not available, the estimated number of vessels or persons licensed for a particular fishery is provided, which represents a measure of potential effort. If no recent information is available on the number of participants, vessels, or persons licensed in a fishery, then the number from the most recent LOF is used for the estimated number of vessels/persons in the fishery. NMFS acknowledges that, in some cases, these estimations may be inflations of actual effort, such as for many of the Mid-Atlantic and New England fisheries. However, in these cases, the numbers represent the potential effort for each fishery, given the multiple gear types several state permits may allow for. Changes made to Mid-Atlantic and New England fishery participants will not affect observer coverage or bycatch estimates as observer coverage and bycatch estimates are based on vessel trip reports and landings data. For additional information on fishing effort in fisheries found on Table 1 or 2, NMFS refers the reader to contact the relevant regional office (contact information included above in SUPPLEMENTARY INFORMATION ).

For high seas fisheries, Table 3 lists the number of currently valid HSFCA permits held. Although this likely overestimates the number of active participants in many of these fisheries, the number of valid HSFCA permits is the most reliable data on the potential effort in high seas fisheries at this time.

Tables 1, 2, and 3 also list the marine mammal species or stocks incidentally killed or injured in each fishery based on observer data, logbook data, stranding reports, disentanglement network data, and MMAP reports. This list includes all species or stocks known to be injured or killed in a given fishery but also includes species or stocks for which there are anecdotal records of an injury or mortality. Additionally, species identified by logbook entries, stranding data, or fishermen self-reports (i.e., MMAP reports) may not be verified. In Tables 1 and 2, NMFS has designated those stocks driving a fishery's classification (i.e., the fishery is classified based on serious injuries and mortalities of a marine mammal stock that are greater than 50 percent [Category I], or greater than 1 percent and less than 50 percent [Category II], of a stock's PBR) by a “ 1 ” after the stock's name.

In Tables 1 and 2, there are several fisheries classified as Category II that have no recent documented injuries or mortalities of marine mammals, or fisheries that did not result in a serious injury or mortality rate greater than 1 percent of a stock's PBR level based on known interactions. NMFS has classified these fisheries by analogy to other Category I or II fisheries that use similar fishing techniques or gear that are known to cause mortality or serious injury of marine mammals, as discussed in the final LOF for 1996 (60 FR 67063, December 28, 1995), and according to factors listed in the definition of a “Category II fishery” in 50 CFR 229.2 (i.e., fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and distribution of marine mammals in the area). NMFS has designated those fisheries listed by analogy in Tables 1 and 2 by a “ 2 ” after the fishery's name.

There are several fisheries in Tables 1, 2, and 3 in which a portion of the fishing vessels cross the EEZ boundary and therefore operate both within U.S. waters and on the high seas. These fisheries, though listed separately between Table 1 or 2 and Table 3, are considered the same fishery on either side of the EEZ boundary. NMFS has designated those fisheries in each table by a “*” after the fishery's name.