Approval and Promulgation of Air Quality Implementation Plans; New York; Determination of Attainment of the 2008 8-Hour Ozone National Ambient Air Quality Standard for the Jamestown, New York Marginal Nonattainment Area, 49492-49495 [2018-21329]
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49492
Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Rules and Regulations
commencing at position latitude
38°16′52.1″ N, longitude 076°38′14.2″
W; thence northeast to latitude
38°16′54″ N, longitude 076°38′12.5″ W;
thence southeast to latitude 38°16′48.6″
N, longitude 076°37′59.3″ W; thence
south to latitude 38°16′47.4″ N,
longitude 076°37′59.3″ W; thence
northwest along the shoreline to point
of origin.
(ii) Spectator area B. The area is
bounded by a line commencing at
position latitude 38°16′59.1″ N,
longitude 076°37′45.6″ W; thence
southeast to latitude 38°16′57.1″ N,
longitude 076°37′40.2″ W; thence
southwest to latitude 38°16′54.3″ N,
longitude 076°37′41.9″ W; thence
southeast to latitude 38°16′51.8″ N,
longitude 076°37′36.4″ W; thence
northeast to latitude 38°16′55.2″ N,
longitude 076°37′34.2″ W; thence
northwest to latitude 38°16′59.2″ N,
longitude 076°37′37.2″ W; thence west
to latitude 38°17′01.7″ N, longitude
076°37′43.7″ W; thence south to point of
origin.
(iii) Spectator area C. The area is
bounded by a line commencing at
position latitude 38°16′47.2″ N,
longitude 076°37′54.8″ W; thence south
to latitude 38°16′43.3″ N, longitude
076°37′55.2″ W; thence east to latitude
38°16′43.2″ N, longitude 076°37′47.8″
W; thence north to latitude 38°16′44.7″
N, longitude 076°37′48.5″ W; thence
northwest to point of origin.
(c) Special local regulations. (1) The
Captain of the Port Maryland-National
Capital Region or the Coast Guard Patrol
Commander may forbid and control the
movement of all vessels and persons,
including event participants, in the
regulated area. When hailed or signaled
by an official patrol, a vessel or person
in the regulated area shall immediately
comply with the directions given.
Failure to do so may result in expulsion
from the area, citation for failure to
comply, or both.
(2) The operator of any vessel in the
regulated area shall:
(i) Stop the vessel immediately when
directed to do so by any Official Patrol
and then proceed only as directed.
(ii) All persons and vessels shall
comply with the instructions of the
Official Patrol.
(iii) When authorized to transit the
regulated area, all vessels shall proceed
at the minimum speed necessary to
maintain a safe course that minimizes
wake near the race course.
(3) The Coast Guard Patrol
Commander may terminate the event, or
the operation of any participant, at any
time it is deemed necessary for the
protection of life or property.
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(4) The Race Area is an area described
by a line bounded by coordinates
provided in latitude and longitude that
outlines the boundary of a Race Area
within the regulated area defined in
paragraph (b)(2) of this section. The
actual placement of the race course will
be determined by the marine event
sponsor but must be located within the
designated boundaries of the Race Area.
Only participants and official patrol
vessels are allowed to enter the Race
Area.
(5) The Buffer Zone is an area that
surrounds the perimeter of the Race
Area within the regulated area defined
in paragraph (b)(3) of this section. The
purpose of a Buffer Zone is to minimize
potential collision conflicts with
participants and spectators or nearby
transiting vessels. This area provides
separation between the Race Area and
Spectator Area or other vessels that are
operating in the vicinity of the regulated
area defined in paragraph (b)(1) of this
section. Only participants and official
patrol vessels are allowed to enter the
Buffer Zone.
(6) The Spectator Area is an area
described by a line bounded by
coordinates provided in latitude and
longitude that outlines the boundary of
a spectator area within the regulated
area defined in paragraph (b)(4) of this
section. Spectators are only allowed
inside the regulated area if they remain
within the Spectator Area. All spectator
vessels shall be anchored or operate at
a no-wake speed while transiting within
the Spectator Area. Spectators may
contact the Coast Guard Patrol
Commander to request permission to
either enter the Spectator Area or pass
through the regulated area. If permission
is granted, spectators must enter the
Spectator Area or pass directly through
the regulated area as instructed at safe
speed and without loitering.
(7) The Coast Guard Patrol
Commander and official patrol vessels
enforcing this regulated area can be
contacted on marine band radio VHF–
FM channel 16 (156.8 MHz) and
channel 22A (157.1 MHz). Persons and
vessels desiring to transit, moor, or
anchor within the regulated area must
obtain authorization from Captain of the
Port Maryland-National Capital Region
or Coast Guard Patrol Commander. The
Captain of the Port Maryland-National
Capital Region can be contacted at
telephone number 410–576–2693 or on
Marine Band Radio, VHF–FM channel
16 (156.8 MHz). The Coast Guard Patrol
Commander can be contacted on Marine
Band Radio, VHF–FM channel 16 (156.8
MHz).
(8) The Coast Guard will publish a
notice in the Fifth Coast Guard District
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Local Notice to Mariners and issue a
marine information broadcast on VHF–
FM marine band radio.
(d) Enforcement periods. This section
will be enforced from 7:30 a.m. to 5:30
p.m. on October 6, 2018, and from 7:30
a.m. to 5:30 p.m. on October 7, 2018.
Dated: September 26, 2018.
Joseph B. Loring,
Captain, U.S. Coast Guard, Captain of the
Port Maryland-National Capital Region.
[FR Doc. 2018–21350 Filed 10–1–18; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R02–OAR–2018–0422; FRL–9984–
81—Region 2]
Approval and Promulgation of Air
Quality Implementation Plans; New
York; Determination of Attainment of
the 2008 8-Hour Ozone National
Ambient Air Quality Standard for the
Jamestown, New York Marginal
Nonattainment Area
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is finalizing a
determination that the Jamestown, New
York Marginal Nonattainment Area
(Jamestown Area or Area) has attained
the 2008 8-hour ozone National
Ambient Air Quality Standard
(NAAQS). This determination is based
upon complete, quality-assured, and
certified ambient air monitoring data
that shows the Area has monitored
attainment of the 2008 8-hour ozone
NAAQS for both the 2012–2014 and
2015–2017 monitoring periods. This
action does not constitute a
redesignation to attainment. The
Jamestown Area will remain
nonattainment for the 2008 8-hour
ozone NAAQS until such time as EPA
determines that the Jamestown Area
meets the Clean Air Act (CAA)
requirements for redesignation to
attainment, including an approved
maintenance plan. This action is being
taken under the CAA.
DATES: This final rule is effective on
November 1, 2018.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
Number EPA–R02–OAR–2018–0422. All
documents in the docket are listed on
the https://www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
SUMMARY:
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e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available electronically through https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Kirk
J. Wieber, (212) 637–3381, or by email
at wieber.kirk@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On March 12, 2008, EPA revised both
the primary and secondary NAAQS for
ozone to a level of 0.075 parts per
million (ppm) (annual fourth-highest
daily maximum 8-hour average
concentration, averaged over three
years) to provide increased protection of
public health and the environment. 73
FR 16436 (March 27, 2008).1 The 2008
ozone NAAQS retains the same general
form and averaging time as the 0.08
ppm NAAQS set in 1997, but is set at
a more protective level. On May 21,
2012 (77 FR 30088), effective July 20,
2012, EPA designated as nonattainment
any area that was violating the 2008 8hour ozone NAAQS based on the three
most recent years (2008–2010) of air
monitoring data. The Jamestown Area
(specifically, Chautauqua County) was
designated as a marginal ozone
nonattainment area. See 40 CFR 81.333.
Marginal areas designated in the May
21, 2012 rule are required to attain the
2008 8-hour ozone NAAQS by the
applicable deadline of July 20, 2015. See
40 CFR 51.903. On May 4, 2016, EPA
determined that complete, qualityassured, and certified air quality
monitoring data from the 2012–2014
monitoring period indicated that the
Jamestown Area attained the 2008 8hour ozone NAAQS by that attainment
date. See 81 FR 26697.
Under the provisions of EPA’s ozone
implementation rule (40 CFR 51.918), if
EPA also issues a determination (as it is
doing here) that an area is attaining the
relevant standard through a rulemaking
that includes public notice and
comment (known informally as a Clean
Data Determination), the requirements
for a State to submit certain required
planning SIPs related to attainment of
the eight-hour NAAQS, such as
attainment demonstrations, reasonable
further progress plans and contingency
measures, shall be suspended. EPA’s
action only suspends the requirements
1 For a detailed explanation of the calculation of
the 3-year 8-hour average, see 40 CFR part 50,
appendix I.
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to submit the SIP revisions discussed
above.2
This suspension remains in effect
until such time, if ever, that EPA (i)
redesignates the area to attainment, at
which time those requirements no
longer apply, or (ii) subsequently
determines that the area has violated the
2008 8-hour ozone NAAQS. Although
these requirements are suspended, if the
State provides these submissions to EPA
for review and approval at any time,
EPA is not precluded from acting upon
them.
II. EPA’s Evaluation
An area may be considered to be
attaining the 2008 8-hour ozone NAAQS
if there are no violations, as determined
in accordance with 40 CFR part 50,
based on three complete, consecutive
calendar years of quality-assured
ambient air monitoring data. Under EPA
regulations at 40 CFR part 50, the 2008
8-hour ozone NAAQS is attained when
the 3-year average of the annual fourthhighest daily maximum 8-hour average
ozone concentrations at an ozone
monitor is less than or equal to 0.075
ppm. See 40 CFR part 50, appendix P.
This 3-year average is referred to as the
design value. When the design value is
less than or equal to 0.075 ppm at each
monitor within the area, then the area
is attaining the NAAQS. Also, the data
meets the regulatory completeness
requirement when the average percent
of days with valid ambient monitoring
data is greater than or equal to 90
percent (%), and no single year has less
than 75% data completeness as
determined in appendix P of 40 CFR
part 50. The data must be collected and
quality-assured in accordance with 40
CFR part 58, and recorded in the EPA
Air Quality System (AQS).
As was discussed in EPA’s July 20,
2018 (83 FR 34506) proposal, EPA has
reviewed the complete, quality-assured,
and certified ozone ambient air
monitoring data for the monitoring
periods for both 2012–2014 and 2015–
2017 for the Jamestown Area. For both
monitoring periods, the design values
for the Jamestown monitor in
Chautauqua County are less than or
equal to 0.075 ppm, and the monitor
meets the data completeness
requirements. Based on the 2012–2014
data from the AQS database and
2 For more information on the EPA’s Clean Data
Policy, see https://www.epa.gov/ozone-pollution/
redesignation-and-clean-data-policy-cdp for
documents such as the Memorandum from John S.
Seitz, Director, Office of Air Quality Planning and
Standards, ‘‘Reasonable Further Progress,
Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas
Meeting the Ozone National Ambient Air Quality
Standard’’ (May 10, 1995).
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49493
consistent with the requirements
contained in 40 CFR part 50, EPA has
concluded that this Area attained the
2008 8-hour ozone NAAQS. In addition,
complete, quality-assured, and certified
data through the 2017 ozone season
demonstrate that the area continues to
attain the standard.
III. Comments Received in Response to
EPA’s Proposed Action
On July 20, 2018 (83 FR 34506), EPA
proposed to make a determination that
the Jamestown Area has attained the
2008 8-hour ozone NAAQS. In response
to EPA’s July 20, 2018 proposed
determination for the Jamestown Area,
EPA received several comments from
the public during the 30-day public
comment period. After reviewing the
comments, EPA has determined that
most of the comments are outside the
scope of our proposed action or fail to
identify any material issue necessitating
a response. The comments do not raise
issues germane to EPA’s proposed
action. For this reason, EPA will not
provide a specific response to those
comments. Those comments may be
viewed under Docket ID Number EPA–
R02–OAR–2018–0422 on the https://
www.regulations.gov website. EPA did
however receive one comment that is
germane to EPA’s proposed action.
Comment: Please consider keeping
plans in place to monitor and follow up
with the ozone level in Jamestown.
Keeping a close eye on data and holding
people accountable for meeting a
standard of 0.075 ppm ozone may be
more likely to continue the downward
trend in ozone than if we just stop
communicating with local leadership on
this issue.
Response: This determination of
attainment is not equivalent to a
redesignation under section 107(d)(3) of
the CAA. The designation status of the
Jamestown Area will remain
nonattainment for the 2008 8-hour
ozone NAAQS until such time as EPA
determines that the Area meets the CAA
requirements for redesignation to
attainment, including an approved
maintenance plan. While this
determination of attainment for the
Jamestown Area suspends the
reasonable further progress and
attainment demonstration requirements
of section 182(b)(1) and related
requirements of section 172(c)(9) of the
CAA, it does not suspend or rescind the
requirements of CAA sections
110(a)(2)(B) and (I) for monitoring and
implementing the various ozone related
emissions reduction control strategies
that have been adopted by New York
State and approved by EPA over the
years. Therefore, the New York State
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Department of Environmental
Conservation (NYSDEC) and EPA will
continue to assess the ozone ambient air
monitoring data for the Jamestown
monitor in Chautauqua County. If
certified air quality data indicates issues
with continuing attainment of the 2008
ozone NAAQS, the EPA will, to the
extent necessary, work with NYSDEC
and use appropriate CAA authorities to
address those air quality issues.
IV. Final Action
EPA is finalizing a determination that
the Jamestown Area has attained the
2008 8-hour ozone NAAQS. This
determination (informally known as a
Clean Data Determination) is based
upon complete, quality assured, and
certified ambient air monitoring data
that show the Jamestown Area has
monitored attainment of the 2008 8hour ozone NAAQS for the 2012–2014
and 2015–2017 monitoring periods.
Complete and quality assured and
certified data for these periods
demonstrate that the area continues to
attain the standard during both time
periods. As provided in 40 CFR 51.918,
EPA’s determination that this area has
attained the 8-hour ozone standard
suspends the requirements under CAA
section 182(b)(1) for submission of a
reasonable further progress plan and
ozone attainment demonstration. In
addition, this final determination means
the requirements of CAA section
172(c)(9) concerning submission of
contingency measures and any other
planning SIP relating to attainment of
the 2008 8-hour ozone NAAQS shall be
suspended for so long as the Jamestown
Area continues to attain the 2008 8-hour
ozone NAAQS. Although these
requirements would be suspended, EPA
would not be precluded from acting
upon these elements at any time if
submitted to EPA for review and
approval.
Finalizing this determination does not
constitute a redesignation of the
Jamestown Area to attainment for the
2008 8-hour ozone NAAQS under CAA
section 107(d)(3). This determination of
attainment also does not involve
approving any maintenance plan for the
Jamestown Area and does not determine
that the Jamestown Area has met all the
requirements for redesignation under
the CAA, including that the attainment
be due to permanent and enforceable
measures. Therefore, the designation
status of the Jamestown Area will
remain nonattainment for the 2008 8hour ozone NAAQS until such time as
EPA takes final rulemaking action to
determine that such Area meets the
CAA requirements for redesignation to
attainment.
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V. Statutory and Executive Order
Reviews
This action finalizes an attainment
determination based on air quality data,
resulting in the suspension of certain
Federal requirements. The action would
not impose any additional requirements.
For that reason, this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because this action is not
significant under Executive Order
12866;
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the attainment
determination does not apply on any
Indian reservation land or in any other
area where EPA or an Indian tribe has
demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
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The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by December 3,
2018. Filing a petition for
reconsideration by the Administrator of
this final rule does not affect the finality
of this action for the purposes of judicial
review nor does it extend the time
within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. This action may not be
challenged later in proceedings to
enforce its requirements. (See CAA
section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen oxides, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 19, 2018.
Peter D. Lopez,
Regional Administrator, Region 2.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart HH—New York
2. In § 52.1683, add paragraph (q) to
read as follows:
■
§ 52.1683
Control strategy: Ozone.
*
*
*
*
*
(q) EPA is determining that the
Jamestown marginal nonattainment area
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(consisting of Chautauqua County) has
attained the 2008 8-hour ozone national
ambient air quality standard (NAAQS).
This determination (informally known
as a Clean Data Determination) is based
upon complete, quality assured, and
certified ambient air monitoring data
that show the Jamestown Area has
monitored attainment of the 2008 8hour ozone NAAQS for the 2012–2014
and 2015–2017 monitoring periods.
Under the provisions of EPA’s ozone
implementation rule (see 40 CFR
51.918), this determination suspends
the reasonable further progress and
attainment demonstration requirements
of section 182(b)(1) and related
requirements of section 172(c)(9) of the
Clean Air Act for this area as long as the
area does not monitor any violations of
the 8-hour ozone standard. If a violation
of the ozone NAAQS is monitored in
this area, this determination shall no
longer apply.
[FR Doc. 2018–21329 Filed 10–1–18; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 665
[Docket No. 180810748–8814–01]
RIN 0648–BI43
Pacific Island Fisheries; Hawaii
Shallow-Set Pelagic Longline Fishery;
Court Order
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
This final rule revises from 34
to 17 the annual number of allowable
incidental interactions that may occur
between the Hawaii shallow-set pelagic
longline fishery and North Pacific
loggerhead sea turtles, in compliance
with an order of the U.S. District Court,
District of Hawaii.
DATES: Effective January 1, 2019.
FOR FURTHER INFORMATION CONTACT: Bob
Harman, NMFS Pacific Islands Regional
Office, 808–725–5170.
SUPPLEMENTARY INFORMATION: On
January 30, 2012, NMFS completed a
biological opinion (2012 BiOp) on the
effects of the Hawaii shallow-set
longline fishery on marine species listed
as threatened or endangered under the
Endangered Species Act (ESA). The
2012 BiOp superseded a February 23,
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SUMMARY:
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2004, BiOp on the effects of Pacific
Island pelagic fisheries, including
shallow-set longline fishing, on ESAlisted marine species (2004 BiOp). In
the 2012 BiOp, NMFS concluded that
the continued operation of the Hawaii
shallow-set fishery, as managed under
the regulatory framework of the Fishery
Ecosystem Plan for Pelagic Fisheries of
the Western Pacific (FEP), was not likely
to jeopardize the continued existence of
any ESA-listed species or result in
destruction or adverse modification of
designated critical habitat.
The 2012 BiOp established an annual
incidental take statement authorizing
the fishery to interact with up to 26
leatherback sea turtles and 34 North
Pacific loggerhead sea turtles.
Consistent with the 2012 BiOp, NMFS
revised the annual limits on allowable
incidental interactions between the
fishery and leatherback and North
Pacific loggerhead sea turtles (77 FR
60637, October 4, 2012, codified at 50
CFR 665.813). If the fishery reaches
either of the interaction limits in a given
year, the regulations require NMFS to
close the fishery for the remainder of the
calendar year.
In the U.S. District Court, District of
Hawaii, several plaintiffs challenged the
NMFS final rule that revised the annual
sea turtle interaction limits, among
other things, and the Court ruled in
favor of NMFS on all claims (see Turtle
Island Restoration Network, et al. v.
U.S. Dept. of Commerce, et al., (U.S.D.C.
2013), Civil No. 12–00594). Plaintiffs
appealed the Court’s decision and, on
December 27, 2017, a U.S. Ninth Circuit
Court of Appeals panel issued a split
decision affirming the 2012 BiOp
regarding leatherback sea turtles, but
holding that NMFS was arbitrary and
capricious in its no-jeopardy
determination for North Pacific
loggerhead turtles (see Turtle Island
Restoration Network, et al. v. U.S. Dept.
of Commerce, et al., 878 F.3d 725 (9th
Cir. 2017)).
All parties agreed to settle the case
pursuant to the terms outlined in a May
4, 2018, Stipulated Settlement
Agreement and Court Order (Court
Order). As part of the agreement, the
U.S. District Court, District of Hawaii,
ordered NMFS to close the fishery for
the remainder of the 2018 fishing year.
On May 11, 2018, NMFS published a
temporary rule closing the shallow-set
longline fishery until December 31,
2018 (83 FR 21939).
The Court Order also required NMFS
to implement a new regulation that
establishes the annual interaction limit
for North Pacific loggerhead sea turtle at
17, effective on January 1, 2019. The
revised limit is consistent with the
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49495
incidental take statement from the
previous 2004 BiOp. This rule
implements the Court Order by revising
the annual limit for North Pacific
loggerhead sea turtles from 34 to 17. In
addition, as accounted for in the Court
Order, NMFS is consulting on the
potential effects of the fishery on sea
turtles, and may issue a revised
regulation in the future that adopts
different interaction limits or takes a
different approach to interactions after
that consultation is concluded.
If the fishery reaches the interaction
limit for either leatherback sea turtles or
North Pacific loggerhead sea turtles,
NMFS will close the fishery for the
remainder of the calendar year. All
other provisions applicable to the
fishery remain unchanged.
Classification
The Assistant Administrator for
Fisheries, NOAA, has determined that
this final rule is consistent with the
Court order, the Magnuson-Stevens
Fishery Conservation and Management
Act, the Endangered Species Act, and
other applicable laws.
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
NMFS has good cause to waive the
prior notice and comment requirement
under the Administrative Procedure Act
(APA, 5 U.S.C. 553(b)(B)). The Court
Order, in relevant parts, vacates the
portion of the 2012 Biological Opinion
that relates to North Pacific loggerhead
sea turtles, and requires NMFS to revise
the interaction limit for those turtles to
17. Under the ESA, NMFS may not
continue to authorize the shallow-set
longline fishery until the consultation
requirements of ESA section 7(a)(2)
have been satisfied, and a new
biological opinion and incidental take
statement are prepared. Because NMFS
has no discretion to revise and
implement the loggerhead sea turtle
interaction limit under the Court Order,
no meaningful purpose will be served
by public comment, and so providing
prior notice and comment of this rule
would be impracticable and contrary to
public interest. The 30-day delayed
effective date requirement under the
APA (5 U.S.C. 553(d)) is not waived.
Additionally, the regulatory flexibility
analysis requirements of the Regulatory
Flexibility Act (5 U.S.C. 603–605) do
not apply to this rule. Furthermore,
because the changes identified in this
rule are required by the Court Order and
are not discretionary, the National
Environmental Policy Act does not
apply to this rule.
E:\FR\FM\02OCR1.SGM
02OCR1
Agencies
[Federal Register Volume 83, Number 191 (Tuesday, October 2, 2018)]
[Rules and Regulations]
[Pages 49492-49495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21329]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2018-0422; FRL-9984-81--Region 2]
Approval and Promulgation of Air Quality Implementation Plans;
New York; Determination of Attainment of the 2008 8-Hour Ozone National
Ambient Air Quality Standard for the Jamestown, New York Marginal
Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a
determination that the Jamestown, New York Marginal Nonattainment Area
(Jamestown Area or Area) has attained the 2008 8-hour ozone National
Ambient Air Quality Standard (NAAQS). This determination is based upon
complete, quality-assured, and certified ambient air monitoring data
that shows the Area has monitored attainment of the 2008 8-hour ozone
NAAQS for both the 2012-2014 and 2015-2017 monitoring periods. This
action does not constitute a redesignation to attainment. The Jamestown
Area will remain nonattainment for the 2008 8-hour ozone NAAQS until
such time as EPA determines that the Jamestown Area meets the Clean Air
Act (CAA) requirements for redesignation to attainment, including an
approved maintenance plan. This action is being taken under the CAA.
DATES: This final rule is effective on November 1, 2018.
ADDRESSES: The EPA has established a docket for this action under
Docket ID Number EPA-R02-OAR-2018-0422. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available,
[[Page 49493]]
e.g., Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, (212) 637-3381, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On March 12, 2008, EPA revised both the primary and secondary NAAQS
for ozone to a level of 0.075 parts per million (ppm) (annual fourth-
highest daily maximum 8-hour average concentration, averaged over three
years) to provide increased protection of public health and the
environment. 73 FR 16436 (March 27, 2008).\1\ The 2008 ozone NAAQS
retains the same general form and averaging time as the 0.08 ppm NAAQS
set in 1997, but is set at a more protective level. On May 21, 2012 (77
FR 30088), effective July 20, 2012, EPA designated as nonattainment any
area that was violating the 2008 8-hour ozone NAAQS based on the three
most recent years (2008-2010) of air monitoring data. The Jamestown
Area (specifically, Chautauqua County) was designated as a marginal
ozone nonattainment area. See 40 CFR 81.333.
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\1\ For a detailed explanation of the calculation of the 3-year
8-hour average, see 40 CFR part 50, appendix I.
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Marginal areas designated in the May 21, 2012 rule are required to
attain the 2008 8-hour ozone NAAQS by the applicable deadline of July
20, 2015. See 40 CFR 51.903. On May 4, 2016, EPA determined that
complete, quality-assured, and certified air quality monitoring data
from the 2012-2014 monitoring period indicated that the Jamestown Area
attained the 2008 8-hour ozone NAAQS by that attainment date. See 81 FR
26697.
Under the provisions of EPA's ozone implementation rule (40 CFR
51.918), if EPA also issues a determination (as it is doing here) that
an area is attaining the relevant standard through a rulemaking that
includes public notice and comment (known informally as a Clean Data
Determination), the requirements for a State to submit certain required
planning SIPs related to attainment of the eight-hour NAAQS, such as
attainment demonstrations, reasonable further progress plans and
contingency measures, shall be suspended. EPA's action only suspends
the requirements to submit the SIP revisions discussed above.\2\
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\2\ For more information on the EPA's Clean Data Policy, see
https://www.epa.gov/ozone-pollution/redesignation-and-clean-data-policy-cdp for documents such as the Memorandum from John S. Seitz,
Director, Office of Air Quality Planning and Standards, ``Reasonable
Further Progress, Attainment Demonstration, and Related Requirements
for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air
Quality Standard'' (May 10, 1995).
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This suspension remains in effect until such time, if ever, that
EPA (i) redesignates the area to attainment, at which time those
requirements no longer apply, or (ii) subsequently determines that the
area has violated the 2008 8-hour ozone NAAQS. Although these
requirements are suspended, if the State provides these submissions to
EPA for review and approval at any time, EPA is not precluded from
acting upon them.
II. EPA's Evaluation
An area may be considered to be attaining the 2008 8-hour ozone
NAAQS if there are no violations, as determined in accordance with 40
CFR part 50, based on three complete, consecutive calendar years of
quality-assured ambient air monitoring data. Under EPA regulations at
40 CFR part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year
average of the annual fourth-highest daily maximum 8-hour average ozone
concentrations at an ozone monitor is less than or equal to 0.075 ppm.
See 40 CFR part 50, appendix P. This 3-year average is referred to as
the design value. When the design value is less than or equal to 0.075
ppm at each monitor within the area, then the area is attaining the
NAAQS. Also, the data meets the regulatory completeness requirement
when the average percent of days with valid ambient monitoring data is
greater than or equal to 90 percent (%), and no single year has less
than 75% data completeness as determined in appendix P of 40 CFR part
50. The data must be collected and quality-assured in accordance with
40 CFR part 58, and recorded in the EPA Air Quality System (AQS).
As was discussed in EPA's July 20, 2018 (83 FR 34506) proposal, EPA
has reviewed the complete, quality-assured, and certified ozone ambient
air monitoring data for the monitoring periods for both 2012-2014 and
2015-2017 for the Jamestown Area. For both monitoring periods, the
design values for the Jamestown monitor in Chautauqua County are less
than or equal to 0.075 ppm, and the monitor meets the data completeness
requirements. Based on the 2012-2014 data from the AQS database and
consistent with the requirements contained in 40 CFR part 50, EPA has
concluded that this Area attained the 2008 8-hour ozone NAAQS. In
addition, complete, quality-assured, and certified data through the
2017 ozone season demonstrate that the area continues to attain the
standard.
III. Comments Received in Response to EPA's Proposed Action
On July 20, 2018 (83 FR 34506), EPA proposed to make a
determination that the Jamestown Area has attained the 2008 8-hour
ozone NAAQS. In response to EPA's July 20, 2018 proposed determination
for the Jamestown Area, EPA received several comments from the public
during the 30-day public comment period. After reviewing the comments,
EPA has determined that most of the comments are outside the scope of
our proposed action or fail to identify any material issue
necessitating a response. The comments do not raise issues germane to
EPA's proposed action. For this reason, EPA will not provide a specific
response to those comments. Those comments may be viewed under Docket
ID Number EPA-R02-OAR-2018-0422 on the https://www.regulations.gov
website. EPA did however receive one comment that is germane to EPA's
proposed action.
Comment: Please consider keeping plans in place to monitor and
follow up with the ozone level in Jamestown. Keeping a close eye on
data and holding people accountable for meeting a standard of 0.075 ppm
ozone may be more likely to continue the downward trend in ozone than
if we just stop communicating with local leadership on this issue.
Response: This determination of attainment is not equivalent to a
redesignation under section 107(d)(3) of the CAA. The designation
status of the Jamestown Area will remain nonattainment for the 2008 8-
hour ozone NAAQS until such time as EPA determines that the Area meets
the CAA requirements for redesignation to attainment, including an
approved maintenance plan. While this determination of attainment for
the Jamestown Area suspends the reasonable further progress and
attainment demonstration requirements of section 182(b)(1) and related
requirements of section 172(c)(9) of the CAA, it does not suspend or
rescind the requirements of CAA sections 110(a)(2)(B) and (I) for
monitoring and implementing the various ozone related emissions
reduction control strategies that have been adopted by New York State
and approved by EPA over the years. Therefore, the New York State
[[Page 49494]]
Department of Environmental Conservation (NYSDEC) and EPA will continue
to assess the ozone ambient air monitoring data for the Jamestown
monitor in Chautauqua County. If certified air quality data indicates
issues with continuing attainment of the 2008 ozone NAAQS, the EPA
will, to the extent necessary, work with NYSDEC and use appropriate CAA
authorities to address those air quality issues.
IV. Final Action
EPA is finalizing a determination that the Jamestown Area has
attained the 2008 8-hour ozone NAAQS. This determination (informally
known as a Clean Data Determination) is based upon complete, quality
assured, and certified ambient air monitoring data that show the
Jamestown Area has monitored attainment of the 2008 8-hour ozone NAAQS
for the 2012-2014 and 2015-2017 monitoring periods. Complete and
quality assured and certified data for these periods demonstrate that
the area continues to attain the standard during both time periods. As
provided in 40 CFR 51.918, EPA's determination that this area has
attained the 8-hour ozone standard suspends the requirements under CAA
section 182(b)(1) for submission of a reasonable further progress plan
and ozone attainment demonstration. In addition, this final
determination means the requirements of CAA section 172(c)(9)
concerning submission of contingency measures and any other planning
SIP relating to attainment of the 2008 8-hour ozone NAAQS shall be
suspended for so long as the Jamestown Area continues to attain the
2008 8-hour ozone NAAQS. Although these requirements would be
suspended, EPA would not be precluded from acting upon these elements
at any time if submitted to EPA for review and approval.
Finalizing this determination does not constitute a redesignation
of the Jamestown Area to attainment for the 2008 8-hour ozone NAAQS
under CAA section 107(d)(3). This determination of attainment also does
not involve approving any maintenance plan for the Jamestown Area and
does not determine that the Jamestown Area has met all the requirements
for redesignation under the CAA, including that the attainment be due
to permanent and enforceable measures. Therefore, the designation
status of the Jamestown Area will remain nonattainment for the 2008 8-
hour ozone NAAQS until such time as EPA takes final rulemaking action
to determine that such Area meets the CAA requirements for
redesignation to attainment.
V. Statutory and Executive Order Reviews
This action finalizes an attainment determination based on air
quality data, resulting in the suspension of certain Federal
requirements. The action would not impose any additional requirements.
For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because this action is not significant under
Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the attainment determination does not apply on any
Indian reservation land or in any other area where EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 3, 2018. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See CAA section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 19, 2018.
Peter D. Lopez,
Regional Administrator, Region 2.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart HH--New York
0
2. In Sec. 52.1683, add paragraph (q) to read as follows:
Sec. 52.1683 Control strategy: Ozone.
* * * * *
(q) EPA is determining that the Jamestown marginal nonattainment
area
[[Page 49495]]
(consisting of Chautauqua County) has attained the 2008 8-hour ozone
national ambient air quality standard (NAAQS). This determination
(informally known as a Clean Data Determination) is based upon
complete, quality assured, and certified ambient air monitoring data
that show the Jamestown Area has monitored attainment of the 2008 8-
hour ozone NAAQS for the 2012-2014 and 2015-2017 monitoring periods.
Under the provisions of EPA's ozone implementation rule (see 40 CFR
51.918), this determination suspends the reasonable further progress
and attainment demonstration requirements of section 182(b)(1) and
related requirements of section 172(c)(9) of the Clean Air Act for this
area as long as the area does not monitor any violations of the 8-hour
ozone standard. If a violation of the ozone NAAQS is monitored in this
area, this determination shall no longer apply.
[FR Doc. 2018-21329 Filed 10-1-18; 8:45 am]
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