The TASC is authorized by Section 203 of the Agricultural Trade Act of 1978 (7 U.S.C. 5623), as amended. The TASC regulations appear at 7 CFR part 1487.

The Agriculture Improvement Act of 2018 (Pub. L. 115-334), which reauthorized the program for fiscal years 2019-2023, introduced legislative changes to the program that improve the program's flexibility and usefulness to stakeholders, such as making work on potential barriers to trade eligible for funding under the program and eliminating the five-year limit on program funding. In addition, this rule updates the regulations to bring the operation of the program into conformance with the requirements in the Uniform Guidance. Additional changes are desirable to bring the administration of the program into line with the current best practices in Federal grantmaking.

This rule is being issued as a final rule without prior notice and opportunity for comment. The Administrative Procedure Act (5 U.S.C. 553) exempts rules “relating . . . to public property, loans, grants, benefits, or contracts” from the statutory requirements for prior notice and opportunity for comment and publication of the rule not less than 30 days before its effective date (5 U.S.C. 553(a)(2)). Accordingly, this final rule is effective when published in the Federal Register.

The program covered by this regulation is listed in the Catalog of Federal Domestic Assistance (CFDA) under the following FAS CFDA number: 10.604, Technical Assistance for Specialty Crops Program.

The Foreign Agricultural Service (FAS) is committed to complying with the E-Government Act of 2002 (44 U.S.C. chapter 36), to promote the use of the internet and other information technologies to provide increased opportunities for citizens' access to Government information and services, and for other purposes.

This rule has been reviewed in accordance with Executive Order 12988, “Civil Justice Reform.” This rule does not preempt State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. This rule will not be retroactive.

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with officials of State and local governments that would be directly affected by the proposed Federal financial assistance. The objectives of the Executive order are to foster an intergovernmental partnership and a strengthened federalism by relying on State and local processes for the State and local government coordination and review of proposed Federal financial assistance and direct Federal development. This rule will not directly affect State or local governments, and, for this reason, it is excluded from the scope of Executive Order 12372.

Executive Orders 12866 and 13563 direct agencies to assess all 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 final rule has been determined to be not significant and was not reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs has designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

This rule has been reviewed for compliance with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments, proposed legislation, and other policy statements or actions that have substantial direct effects 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. FAS has assessed the impact of this rule on Indian tribes and determined that this rule does not, to the knowledge of FAS, have tribal implications that require tribal consultation under Executive Order 13175. If a tribe requests consultation, FAS will work with USDA Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified herein are not expressly mandated by Congress.

Executive Order 13771 directs agencies to reduce regulation and control regulatory costs and provides that for every new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

I. Background

In November 1980, the NRC and FEMA issued “Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants; Rev. 1” (NUREG-0654/FEMA-REP-1, Rev. 1) as a joint interagency guidance document (45 FR 85862; December 30, 1980). NUREG-0654/FEMA-REP-1, Rev. 1 provides guidance on the 16 Planning Standards referenced in the NRC's regulations in § 50.47 of title 10 of the Code of Federal Regulations (10 CFR), and in FEMA's regulations at 44 CFR 350.5. Both agencies use these Planning Standards, and the associated Evaluation Criteria contained in NUREG-0654/FEMA-REP-1, Rev. 1, to evaluate the adequacy of emergency plans and preparedness of commercial nuclear power plant owners and operators, and state, local, and tribal government jurisdictions located near commercial nuclear power plant sites.

Since the publication of NUREG-0654/FEMA-REP-1, Rev. 1, there have been substantial changes to NRC and FEMA regulations, guidance, and policies and advances in emergency preparedness planning and technology. As a result, the NRC and FEMA have issued four supplementary documents and one addendum to update and expand upon the guidance in NUREG-0654/FEMA-REP-1, Rev 1. This revision consolidates the four supplementary documents and one addendum, and provides updates and additional guidance reflective of over 35 years of improvements and lessons learned in the radiological emergency preparedness community.

The NRC and FEMA held two public meetings on August 22, 2012, and September 13, 2012, to discuss the scope of the proposed revision to NUREG-0654/FEMA-REP-1, Rev. 1 (77 FR 46766; August 6, 2012). To assist in further defining the scope, the NRC and FEMA solicited public comments on specific issues related to NUREG-0654/FEMA-REP-1, Rev. 1 (77 FR 65700; October 30, 2012). Additionally, stakeholder and public engagement sessions were held during staff development of the revised guidance on October 29-31, 2013 and June 25, 2014.

Following development of the revised guidance, the draft NUREG-0654/FEMA-REP-1, Rev. 2 was posted to the Federal Rulemaking website at https://www.regulations.gov for public comment (80 FR 30697; May 29, 2015). The original 90-day comment period was scheduled to conclude on August 27, 2015; however, in response to requests from the public for an extension based on the broad scope of the revision and the extensive review necessary to develop comments, the NRC and FEMA granted a 45-day extension to the original comment period (80 FR 50862; August 21, 2015). The comment period closed on October 13, 2015. In total, the agencies received, reviewed, and considered 609 comments during development of this revision. Of the 609 comments, 64 were accepted (draft guidance was revised exactly as recommended), 154 were agreed to in part, and the remaining 391 were either noted or rejected. In all, 218 comments resulted in revisions to the draft guidance. A detailed report on the comment resolutions, including the agencies' rationales for each comment's disposition, will be available online for review in ADAMS under Accession No. ML19350A378 and at https://www.regulations.gov/, under Docket ID NRC-2018-0261, within 30 days after issuance of the final NUREG-0654/FEMA-REP-1, Rev. 2.

The NUREG-0654/FEMA-REP-1, Rev. 2 is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

The NRC published three direct final rules in the Federal Register on December 12, 2018 (83 FR 63794), February 26, 2019 (84 FR 6055), and October 3, 2019 (84 FR 52747), amending its regulations in part 72 of title 10 of the Code of Federal Regulations (10 CFR) by revising the “List of approved spent fuel storage casks” to add Amendment Nos. 11 and 12, 13, and 14, respectively, to Certificate of Compliance No. 1014 for the Holtec International HI-STORM 100 Multipurpose Canister Cask System listing. Amendment Nos. 11 and 12 became effective on February 25, 2019; Amendment No. 13 became effective on May 13, 2019; and Amendment No. 14 became effective on December 17, 2019. The technical specifications for these direct final rules contained minor editorial and non-substantive errors. Specifically, Table 3-2 refers to Tables 3-3 and 3-4 for per cell decay heat load limits for the multi-purpose canisters (MPCs) MPC-68/68F/68FF/68M, but Tables 3-3 and 3-4 omitted the MPC-68M.

The NRC previously reviewed and approved the use of model MPC-68M in Amendment No. 8 to Certificate of Compliance No. 1014. In Amendment No. 9, the NRC added Tables 3-3 and 3-4 and, in Table 3-2, added a reference to decay heat loads in Tables 3-3 and 3-4. The reference in Appendix A, Table 3-2, refers to Table 3-3 and 3-4 for the per cell heat load limits for the MPC-68/68F/68FF/68M. However, Tables 3-3 and 3-4 only have rows for MPC-68/68F/68FF and do not specifically include the MPC-68M. Since the decay heat load, whether uniform or regionalized, for all 68 cell MPCs are identical, and the NRC previously reviewed and approved this heat load, it is evident that the omission of MPC-68M in Tables 3-3 and 3-4 was an editorial error. Although this error is editorial and has no impact on the loading of MPCs, it is still appropriate to correct the error. Correcting this error would not change the substantive responsibilities of any person or entity regulated by the NRC. This error has been corrected in Amendment No. 9, Revision 1, and Amendment No. 10 on August 31, 2017 (82 FR 41321).

The NRC is correcting the typographical error in Amendment Nos. 11, 12, 13, and 14 by adding MPC-68M to Appendix A, Tables 3-3 and 3-4. The NRC also is revising Amendment Nos. 11, 12, 13, and 14 to Certificate of Compliance No. 1014 of the Holtec International HI-STORM 100 Multipurpose Canister Cask System listings within 10 CFR 72.214 to note the corrections.

Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. As authorized by 5 U.S.C. 553(b)(3)(B), the NRC finds good cause to waive notice and opportunity for comment on this correction because it will have no substantive impact and is of a minor and administrative nature dealing with a correction to a CFR section. Specifically, this amendment is to correct a minor editorial and non-substantive error. This correction does not require action by any person or entity regulated by the NRC. Also, this final rule does not change the substantive responsibilities of any person or entity regulated by the NRC. Accordingly, for the reasons stated in this document, the NRC finds, pursuant to 5 U.S.C. 553(d)(3), that good cause exists to make this rule effective upon publication.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is making the following correcting amendment to 10 CFR part 72:

Section 5(a)(1) of the Mercury Export Ban Act, as amended (MEBA), 42 U.S.C. 6939f(a)(1), provides that the Department of Energy (DOE) shall designate a facility for the purpose of long-term management and storage of elemental mercury generated within the United States.1 MEBA section 5(b)(1), 42 U.S.C. 6939f(b)(1), further provides that DOE shall assess and collect a fee at the time of delivery for providing such management and storage based on the pro rata cost of long-term management and storage of elemental mercury delivered to the facility. MEBA provides that the fee shall be made publicly available by October 1, 2018. MEBA section 5(b)(1)(B)(i), 42 U.S.C. 6939f(b)(1)(B)(i). The fee may be adjusted annually and shall be set in an amount sufficient to cover costs described in MEBA section 5(b)(2), 42 U.S.C. 6939f(b)(2), subject to certain adjustments. MEBA section 5(b)(1)(B)(ii)-(iv), 42 U.S.C. 6939f(b)(1)(B)(ii)-(iv).

In accordance with MEBA section 5(b), 42 U.S.C. 6939f(b), DOE establishes this fee after consultation with persons who are likely to deliver elemental mercury to a designated facility, and with other interested persons. DOE convened teleconferences from May 2017 through July 2019 and held a meeting on August 1-2, 2018, in Washington, DC, to discuss considerations for the basis of the fee for long-term management and storage of elemental mercury including length of time in storage, the cost of eventual treatment and disposal technology, and different operational scenarios. Participants included representatives of generators producing elemental mercury incidentally from the beneficiation or processing of ore, or related pollution control activities. DOE also consulted with members of the Environmental Technology Council, a private organization whose members include persons likely to deliver elemental mercury to the designated DOE storage facility, on January 23, 2019.

The proposed rule would have established the fee for long-term management and storage of elemental mercury at the designated DOE storage facility as $55,100 per metric ton (MT),2 plus a receiving charge of $3,250 per shipment. In response to comments received regarding the proposed rule, DOE has adjusted the fee downward to $37,000 per MT. In accordance with MEBA section 5(b)(1)(B)(ii), 42 U.S.C. 6939f(b)(1)(B)(ii), this fee may be adjusted annually according to the factors described in Section II, Discussion of Fee Basis.

The fee per metric ton is the sum of (1) the net present value of elementary mercury storage for fifteen years using the 15-year real interest rate from Office of Management and Budget (OMB) Circular A-94; (2) the pro-rated cost of materials required for storage of elemental mercury; (3) the present value of the cost of transporting elemental mercury from the storage facility to a treatment facility in the sixteenth year using the 15-year real interest rate from OMB Circular A-94; and (4) the present value of the cost of treatment and disposal in the sixteenth year using the 15-year real interest rate from OMB Circular A-94. While there is no current regulatory framework to treat and dispose of elemental mercury in the U.S., DOE is assuming a scenario in which there is treatment and disposal capacity for high-concentration elemental mercury waste in the future.

In accordance with 42 U.S.C. 6939f(b)(1)(B), because the designated facility was not operational on January 1, 2019, DOE will adjust the fee adopted in this final rule and assessed for elemental mercury delivered to the designated facility to subtract the cost of the temporary accumulation for those generators accumulating elemental mercury in a facility pursuant to 42 U.S.C. 6939f(g)(2)(B) and (D)(iv) during the period in which the designated facility is not operational. The subtraction will occur after receipt and approval of invoices outlining acceptable costs.

In accordance with 42 U.S.C. 6939f(b)(1)(B)(ii), DOE may adjust the fee annually. As stated in the proposed rule, DOE will adjust the fee by adjusting the parameters used in calculating the fee. If this adjustment results in a significant adjustment of the fee, DOE will provide an opportunity for public participation. The parameters subject to adjustment are as follows:

• Number of years that elemental mercury will reside in storage at the DOE designated facility.

• Cost to store 1 MT of elemental mercury for the number of years that elemental mercury will reside in storage at the DOE designated facility.

• Pro-rated cost of materials required for storage of elemental mercury.

• Cost of transportation from the elemental mercury storage facility to a treatment facility.

• Cost of treatment of elemental mercury, and disposal of the treated waste form.

• Real interest rate from OMB Circular A-94.

The breakdown of the storage cost per metric ton is given by the following table:

The cost of storage from the table above is $12,900. The net present value of this total, using the 15-year real interest rate from OMB Circular A-94 (1.45%), is $11,500. DOE has used 6 hours of labor at $95/hour for receipt of each metric ton of elemental mercury for unloading from transportation vehicles, verifying compliance with waste acceptance criteria, logging receipt and placement in storage. Storage costs are $300.84/MT-year for management, and DOE has allocated $30,234.42 lease costs across an initial contracted inventory of 1,206 MT, resulting in $300.84/MT in lease costs. State taxes are computed at 20% beginning 1 year after incurring the management and lease expense. Oversight expenses are computed at 10% of total annual costs for monitoring of program performance and performing audit functions to assure integrity of the waste acceptance process. Finally, DOE has used 6 hours of labor at $95/hour for removal of elemental mercury from racks, logging shipment and placing on transportation vehicles awaiting shipment to a treatment facility. DOE has allocated the cost of acquiring racks and other required materials for storage across an initial contracted inventory of 1,206 MT, resulting in a per metric ton cost for materials of $200/MT. Adding the cost per metric ton of materials to the net present value of the table above results in a total cost of storage of $11,700/MT.

The present value of the cost of transportation in the sixteenth year using the 15-year real interest rate from OMB Circular A-94 (1.45%) is $800. The current year cost basis is $1,000, assuming approximately 1,800 miles traveled.

The present value of the cost of treatment and disposal of elemental mercury in the sixteenth year using the 15-year real interest rate from OMB Circular A-94 (1.45%) is $24,500.

The resulting fee per metric ton is given by the following table:

DOE published the proposed rule to establish the fee for the management and storage of elemental mercury on October 4, 2019. (84 FR 53066). DOE received comments from interested parties that are available at the following link https://www.regulations.gov/docket?D=DOE-HQ-2019-0037. DOE responds to the comments received on the proposal in this section, including changes made to reduce the proposed fee that were made in response to those comments.

Comment: DOE must withdraw the proposed rule.

Response: As discussed in the paragraphs that follow, DOE has addressed the comments received on the proposed rule that form the basis for the commenters' withdrawal request and has revised it accordingly. As a result, DOE declines to withdraw the proposed rule.

Comment: DOE failed to provide information in an accompanying administrative record that would allow sufficient public review of the proposed rule.

Response: As required by the Mercury Export Ban Act, as amended (MEBA), DOE consulted with persons likely to deliver elemental mercury to the designated facility on the fee prior to publication of the proposed rule. Beginning in 2016, DOE contacted the operators of facilities that had made the certification provided for in 42 U.S.C. 6939f(g)(2)(B) to collect information on elemental mercury storage and who was using the storage. This led representatives of the Department to reach out to members of the mining community and to the Nevada Mining Association.

Consultation took the form of meetings and teleconferences, from May 2017 through July 2019, with representatives from Newmont Mining Corporation, Barrick Gold Corporation, Coeur Rochester, Inc., and members of the Environmental Technology Council, some of which had made the certification provided for in 42 U.S.C. 6939f(g)(2)(B) and were storing elemental mercury for clients until the DOE facility opens.3

As noted by commenters, DOE engaged in extensive discussions with stakeholders. During these discussions, the basis for the fee calculation (i.e., storage for an unspecified, but limited, time followed by treatment and disposal at another location) was presented. Stakeholders provided information to DOE that was evaluated as part of development of the proposed rule. DOE shared its concerns with some of the scenarios suggested by stakeholders during consultation.

In developing the proposed fee and the fee established in this final rule, with respect to storage costs, DOE used source selection sensitive information in accordance with Federal Acquisition Regulation (FAR) 2.101 and FAR 3.104 and is not approved for release to the public. DOE received information on preliminary pricing for treatment and disposal that it determined was business confidential information. DOE estimated expected pricing for treatment and disposal using publicly available pricing for similar treatment and disposal in accordance with the DOE Cost Estimating Guide (DOE-G-413.3-21) and found a reasonable expected price range of $24,000/MT to $34,600/MT. Since the preliminary pricing fell within the expected cost range, DOE has adopted $30,900/MT as the cost of treatment and disposal. DOE used information provided during the consultation process as the basis for an estimate for the costs to transport elemental mercury from the storage facility to a future treatment facility. DOE used publicly available information from OMB Circular A-94 as a source for relevant interest rates.

Given the level of consultation and engagement with persons likely to deliver elemental mercury to the facility, as well as, the straightforward fee basis, DOE believes sufficient information was provided to allow the public to meaningfully comment on the proposed rule and to support the fee established in this final rule.

Comment: DOE failed to consider alternatives to the scenario presented in the proposed rule, including scenarios presented during consultation.

Response: During consultation, DOE discussed and considered scenarios suggested by the meeting participants. These discussions included the scenario that ultimately became the basis for the proposed fee.

The scenarios discussed included indefinite storage (including storage at Hawthorne Army Depot (HWAD)), and storage for a relatively short period of time until a regulatory framework for treatment and disposal in the U.S. becomes available, and subsequent treatment and disposal in the United States.

Commenters indicated that storage at HWAD is significantly less expensive than the basis for the proposed rule. On multiple occasions since MEBA was passed DOE discussed the use of HWAD for storage of elemental mercury with the Department of Defense (DoD), including as recently as December 2018 and January 2019. During these discussions DOE and DoD noted that 10 U.S.C. 2692 generally prohibits the storage of non-defense toxic and hazardous materials. The Secretary of Defense may grant exceptions to this prohibition when essential to protect the health and safety of the public from imminent danger if the Secretary otherwise determines the exception is essential, and if the storage or disposal authorized does not compete with private enterprise. However, neither of these conditions can be met because elemental mercury is currently being stored safely at privately owned facilities that made the certification provided for in 42 U.S.C. 6939f(g)(2)(B), and DOE has evaluated reasonable alternative locations for storage of elemental mercury.

Comment: The use of a leased facility is not permitted under MEBA.

Response: The phrase “facility or facilities of [DOE]” is not defined in MEBA. DOE operates at both DOE-owned and -leased facilities, and DOE has construed the term “DOE facility” to refer to an assortment of ownership and lease relationships. MEBA Section 5(f) authorizes DOE to establish such terms, conditions, and procedures as are necessary to carry out MEBA Section 5. As noted in the Long-Term Management and Storage of Elemental Mercury Environmental Impact Statement (EIS) at page 1-3 fn. 2, DOE has interpreted MEBA Section 5 to authorize DOE to designate existing and/or new storage facilities at property owned or leased by DOE.

Comment: DOE has included costs in the fee basis that are not recoverable under MEBA.

Response: MEBA section 5(b)(1)(B)(iii), 42 U.S.C. 6939f(b)(1)(B)(iii), provides that fees shall be set in an amount sufficient to cover costs set forth in MEBA section 5(b)(2), 42 U.S.C. 6939f(b)(2). Such costs are costs to DOE of providing management and storage, including operation and maintenance, security, monitoring, reporting, personnel, administration, inspections, training, fire suppression, closure, and other costs required for compliance with applicable law.

In accordance with MEBA, the costs associated with land acquisition or permitting of the facility under the Solid Waste Disposal Act or other applicable law are not recoverable. The DOE lease agreement for elemental mercury storage only includes a leasehold interest in the portion of the buildings used only; therefore, the lease arrangement does not qualify as land acquisition. DOE has received a cost estimate of necessary permit modifications but has not included them in the fee basis. No building design or construction costs have been incurred and included in the basis for the fee calculation.

In summary, DOE did not include any non-recoverable costs in the basis for the proposed fee. In addition, DOE plans to fulfill its elemental mercury storage mission by hiring a contractor to operate the facility; therefore, DOE believes the inclusion of contractors' profit is a recoverable cost under MEBA.

Comment: DOE failed to consult with persons likely to deliver elemental mercury as required by MEBA. DOE should provide summaries of the meetings and teleconferences.

Response: As required by MEBA, DOE consulted with persons likely to deliver elemental mercury to the designated facility on the fee prior to publication of the proposed rule. This included meetings and teleconferences conducted between May 2017 and July 2019 with persons representing Newmont Mining Corporation, Barrick Gold Corporation, and Coeur Rochester, Inc., and members of the Environmental Technology Council, some of which had made the certification provided for in 42 U.S.C. 6939f(g)(2)(B) and are storing elemental mercury for clients until the DOE facility opens.

During consultation, DOE discussed and considered scenarios suggested by the meeting participants. These discussions included the scenario that ultimately became the basis for the proposed fee.

The scenarios discussed included indefinite storage (including storage at Hawthorne Army Depot (HWAD)), and storage for a relatively short period of time until a regulatory framework for treatment and disposal in the U.S. becomes available, and subsequent treatment and disposal in the United States.

As noted above, DOE evaluated the use of HWAD with DoD. During consultation, DOE kept participants informed of the results of its investigations.

During a meeting in Washington, DC, on January 23, 2019, DOE presented information to members of the Environmental Technology Council (ETC), some of which had made the certification provided for in 42 U.S.C. 6939f(g)(2)(B) and are storing elemental mercury for clients until the DOE facility opens. Additionally, DOE spoke with a representative of ETC on multiple occasions to apprise ETC of the status of preparing the proposed rule and the development of the fee basis.

DOE also has maintained a dialog with appropriate personnel from the Nevada Department of Environmental Protection and the Texas Commission on Environmental Quality during the development of the proposed rule.

DOE believes the level of outreach and consultation that the agency engaged in meets the requirements of MEBA. DOE provided further opportunities for input from interested parties and the public through publication of the proposed rule and solicitation of comments.

Comment: DOE provided insufficient time for the public to comment on the proposed rule and should extend the public comment period.

Response: Given the extensive discussions with stakeholders, the straightforward fee basis, and the fact that the proposed fee was based on a scenario discussed multiple times during the consultations, DOE did not believe extension of the public comment period was necessary.

Comment: DOE failed to consider less expensive options.

Response: DOE based the proposed fee on information received from a U.S. vendor in response to a solicitation in preparing the proposed rule. In 2017, DOE compared the response to the price for elemental mercury storage by companies engaged in elemental mercury storage that had made certifications in accordance with 42 U.S.C. 6939f(g)(2)(B). Among those companies that responded, the only company that provided specific pricing information indicated $1,200/MT-year was their price for this service. This price information was confirmed by stakeholders that are users of these facilities during consultation. In 2019, DOE also reviewed the responses to a Request for Expressions of Interest received from multiple potential offerors before the solicitation was issued. This led DOE to the conclusion that a reasonable market price for storage of elemental mercury was in a range of approximately $1,000/MT-year to $2,200/MT-year. Since the average annual cost of storage in the scenario used as the basis for the fee is $780/MT, DOE considers this basis to represent a cost-efficient approach.

Several comments were received suggesting that the price for storage should be more on the order of $80/MT-year, some suggesting that this is the cost of storage at HWAD. HWAD storage of elemental mercury is not subject to the Resource Conservation and Recovery Act (RCRA), nor is it required to accept shipments from sources as varied as those expected at the DOE designated facility. DOE is unable to verify the components of the suggested HWAD costs in order to appropriately make a direct comparison to HWAD.

DOE contacted DoD regarding the possibility of using HWAD as the DOE facility for long-term management and storage of elemental mercury and found that, in accordance with 10 U.S.C. 2692, the facility was prohibited from accepting non-defense related hazardous waste. As discussed in response to an earlier comment, to waive the prohibition, two conditions must be met: (1) There must be an imminent danger to public health and safety; and (2) the storage must not compete with private enterprise. Since neither of these conditions could be met, DOE determined that use of HWAD as the DOE facility for long-term management and storage of elemental mercury was not viable.

DOE has not proposed to treat elemental mercury in the United States and dispose of the resulting mercury compound in Canada. DOE notes, however, that treatment of elemental mercury in the United States and subsequent disposal of the resulting mercury compound in Canada is an option for generators of elemental mercury.

Comment: DOE is using an escalation rate for storage costs that is too high.

Response: DOE has revised the fee basis to use discounted funds and has eliminated the escalation rate used in the proposed rule. Consistent with discussions with participants during consultation, OMB Circular A-94 rates are used. The fee basis has been revised using the 15-year real rate from OMB Circular A-94 (1.45%).

Comment: DOE should have used discount rates rather than escalating all costs.

Response: DOE has revised the calculation of the proposed fee to use discounted funds and has eliminated the escalation rate used in the proposed rule. The resulting fee basis has been reduced from $55,100 per MT plus a receiving charge of $3,250 per shipment, to $37,000 per MT.

Comment: DOE failed to provide an explanation for the receiving charge.

Response: The receiving charge is the cost of purchasing required materials, unloading the elemental mercury from the truck, moving it to its storage location, checking compliance with the Waste Acceptance Criteria and logging the shipment.

In response to comments received on the proposed fee, DOE has revised the fee basis to allocate the receiving charge on a per MT basis. As a result, the additional per shipment charge has been deleted.

Comment: DOE failed to provide an explanation for the removal charge.

Response: The removal charge is the cost of removing elemental mercury from storage, loading it onto a truck and logging the shipment. This charge is allocated on a per MT basis.

Comment: DOE failed to provide an explanation for the transportation cost.

Response: As described in the preamble of the proposed rule, the transportation cost is the cost to transport elemental mercury accepted for storage at the DOE facility to an assumed treatment facility after the storage period.

During consultation, DOE learned that generators of elemental mercury in Nevada were paying approximately $1,000 for a shipment of up to 15 MT of elemental mercury from Nevada to Alabama for storage. DOE assumed a similar mileage of approximately 1,800 miles for shipment from the DOE designated storage facility to a future treatment facility. The mileage is based on transportation from Andrews County, TX to Hellertown, PA. DOE considered Hellertown, PA to be a reasonable hypothetical location for treatment of elemental mercury prior to eventual disposal.

The fee has been revised to reflect payment of $1,000 for transportation in year 16 using discounted funds (now, $800/MT).

Comment: DOE failed to provide an explanation for the treatment and disposal cost.

Response: DOE is assuming a treatment and disposal technology similar to that which is currently available for disposal in Canada (i.e., conversion to red mercury sulfide and disposal in a regulated landfill).

DOE has kept apprised of developments in the private sector associated with the development of treatment and disposal technologies and adjusted the fee basis accordingly. As described in the proposed rule, the pricing is based on preliminary pricing from a U.S. vendor and DOE is treating the source as business sensitive. DOE compared the preliminary pricing to treatment and disposal in Canada, making appropriate adjustments using the guidance from the DOE Cost Estimating Guide (DOE-G-413.3-21) for a Class 2 cost estimate and found that the preliminary pricing fell within the range for such an estimate. DOE noted that the technical approach under consideration includes additional encapsulation relative to the currently available disposal in Canada and that no current actions to gain regulatory approval are in progress.

This is included only as a cost basis for an assumed treatment and disposal capability in the U.S. at some future date. It does not imply a commitment on the part of the Environmental Protection Agency (EPA) to promulgate a regulatory framework for treatment and disposal.

Comment: Why did DOE not consider disposal in Canada?

Response: MEBA directs DOE to designate a facility for long-term management and storage of elemental mercury generated within the United States. DOE notes, however, that treatment of elemental mercury in the United States and subsequent disposal of the resulting mercury compound in Canada is an option for generators of elemental mercury.

Comment: The proposed fee is too high.

Response: DOE based the proposed fee on information received from a U.S. vendor in response to a solicitation in preparing the proposed rule. DOE reviewed the response and compared it to market information provided by companies engaged in elemental mercury storage that had made certifications in accordance with 42 U.S.C. 6939f(g)(2)(B). This price information was confirmed by stakeholders that are users of these facilities during consultation. In 2019, DOE also reviewed the responses to a Request for Expressions of Interest received from multiple potential offerors before the solicitation was issued. This led DOE to the conclusion that a reasonable market price for storage of elemental mercury was in a range of $1,000/MT-year to $2,200/MT-year.

The receiving charge is the cost of purchasing required materials, unloading the elemental mercury from the truck, moving it to its storage location, checking compliance with the Waste Acceptance Criteria and logging the shipment.

In response to comments received on the proposed fee, DOE has revised the fee basis to properly allocate the receiving charge on a per MT basis. As a result, the additional per shipment charge has been deleted.

The removal charge is the cost of removing elemental mercury from storage, loading it onto a truck and logging the shipment. This charge is allocated on a per MT basis.

During consultation, DOE learned that generators of elemental mercury in Nevada were paying approximately $1,000 for a shipment of up to 15 MT of elemental mercury from Nevada to Alabama for storage. DOE assumed a similar mileage of approximately 1,800 miles for shipment from the DOE designated storage facility to a future treatment facility. The mileage is based on transportation from Andrews County, TX to Hellertown, PA. DOE considered Hellertown, PA to be a reasonably hypothetical location for treatment of elemental mercury prior to eventual disposal.

The fee has been revised to reflect payment of $1,000 for transportation in year 16 using discounted funds (now, $800/MT). DOE has kept apprised of developments in the private sector associated with the development of treatment and disposal technologies and adjusted the basis accordingly. As described in the proposed rule, the pricing is based on preliminary pricing from a U.S. vendor and DOE is treating the source as business sensitive. DOE compared the preliminary pricing to treatment and disposal in Canada, making appropriate adjustments using the guidance from the DOE Cost Estimating Guide (DOE-G-413.3-21) for a Class 2 cost estimate and found that the preliminary pricing fell within the range for such an estimate. DOE noted that the technical approach under consideration includes additional encapsulation relative to the currently available disposal in Canada and that no current actions to gain regulatory approval are in progress. DOE has also revised the calculation of the proposed fee to use discounted funds. The resulting fee basis has been reduced from $55,100 per MT plus a receiving charge of $3,250 per shipment, to $37,000 per MT. The cost breakdown is given by the following schedule:

Comment: Why is DOE using 15 years of storage as a basis for the fee?

Response: MEBA requires DOE to designate and operate a facility or facilities for the long-term management and storage of elemental mercury per 42 U.S.C. 6939f. Under the Resource Conservation and Recovery Act, EPA is responsible for promulgating regulations for storage, treatment, and disposal of elemental mercury (and other mercury wastes) in the United States. Currently no treatment standard exists or has been proposed that would allow land disposal of high-purity elemental mercury waste, waste mercury compounds, or other high-concentration mercury wastes. Although it is reasonable to assume that this situation may change in the future—as reflected by DOE's estimate of 15 years of storage—it does not imply a commitment on the part of EPA to promulgate a regulatory framework for treatment and disposal. Following consultations with EPA, DOE selected 15 years of storage in recognition of DOE's and EPA's respective roles. DOE believes this amount of time is reasonable given the uncertainty associated with the timing of establishing a regulatory framework for the treatment and disposal of high-purity elemental mercury.

Comment: Will there be any other costs at a future time?

Response: Once the fee has been paid and the elemental mercury has been accepted, there will be no other costs imposed on generators.

Comment: Will DOE take ownership of the elemental mercury received?

Response: MEBA directs DOE to take custody of elemental mercury delivered to the facility for long-term management and storage of elemental mercury and to hold harmless, defend and provide indemnification to persons who deliver elemental mercury to the facility. Once the fee has been paid and the elemental mercury is accepted at the facility, DOE assumes responsibility for its storage and disposition.

Comment: Will there be an opportunity for public participation for future fee increases?

Response: As provided for by MEBA, DOE may adjust the fee annually. If this adjustment results in a significant alteration of the fee, DOE will provide an opportunity for public participation. The parameters that are subject to adjustment, as revised in response to public comments, are as follows:

• Number of years that elemental mercury will reside in storage at the DOE designated facility.

• Cost to store 1 MT of elemental mercury for the number of years that elemental mercury will reside in storage at the DOE designated facility.

• Pro-rated cost of materials required for storage of elemental mercury

• Cost of shipment from the elemental mercury storage facility to a treatment facility.

• Cost of treatment of elemental mercury, and disposal of the treated waste form.

• Real interest rate from OMB Circular A-94.

Comment: Why does elemental mercury delivered to the DOE facility need to be 99.5% pure?

Response: The requirement for 99.5% purity is consistent with the guidance published by DOE in 2009 and has been chosen based on the need to store the elemental mercury for an indefinite period. As noted in the Long-Term Management and Storage of Elemental Mercury EIS at page 2-1 fn. 3, the treatment standard for wastes containing high concentrations of mercury (greater than 260 parts per million) is recovery through roasting or retorting, which is performed at various commercial waste recovery facilities. This process yields high-purity elemental mercury (e.g., elemental mercury that is at least 99.5 percent pure by volume) that is generally acceptable for reintroduction back into commerce and is analogous to the materials to be stored in a DOE designated storage facility.

Comment: The Supplement Analysis (SA) notes that Waste Control Specialists (WCS) existing buildings will have to be redesigned, even though no new buildings will have to be built. Again, such costs cannot be included in the fee proposal.

Response: The Supplement Analysis EIS-0423-SA-01 makes no such statement.

The WCS facility is permitted to receive elemental mercury currently and no structural upgrades are anticipated. Consequently, no design or construction costs are included in the fee basis for the proposed fee.

Comment: Will the receiving charge be reduced for shipments under 15 MT?

Response: DOE has revised the fee basis to allocate the receiving charge on a per MT basis. As a result, the additional per shipment charge has been deleted.

Comment: The facility should have been designated/proposed prior to publishing the proposed fee.

Response: DOE acknowledges that the language of MEBA envisions designation of a facility prior to the establishment of the fee. DOE has designated a facility for long-term management and storage of elemental mercury since publication of the proposed rule.

Comment: DOE should consider investing funds in non-U.S. securities for a better return.

Response: MEBA requires DOE to asses and collect the fee, but it does not authorize DOE to retain fee proceeds and invest or otherwise use them. Absent a DOE authority to retain the funds, they will be deposited in the Treasury pursuant to 31 U.S.C. 3302 (Miscellaneous Receipts Act).

Comment: If costs end up lower than the fee basis, will there be a rebate?

Response: DOE will not provide rebates if the actual costs end up lower than the fee basis. Similarly, if costs end up higher than the fee basis, DOE will not invoice generators that have previously delivered elemental mercury to the DOE designated facility for such additional costs.

Comment: Will DOE petition EPA to change the RCRA standard to allow treatment and disposal in U.S.?

Response: This comment is outside the scope of the rulemaking to establish a fee for the long-term management and storage of elemental mercury.

Comment: Mercury collected from recycling should not be subject to fees.

Response: MEBA directs DOE to assess and collect a fee at the time of delivery of elemental mercury to the facility for long-term management and storage of such elemental mercury. MEBA does not include exceptions for elemental mercury collected from recycling.

Comment: Mercury collected from recycling should not be defined as hazardous waste.

Response: This comment is outside the scope of the rulemaking to establish a fee for the long-term management and storage of elemental mercury.

Comment: The proposed fee will substantially reduce recycling.

Response: MEBA directs DOE to conduct a study, in consultation with EPA, on the impact of the long-term management and storage program for elemental mercury on mercury recycling, and include proposals, if necessary, to mitigate any negative impacts. DOE continues to gather empirical information to assess these impacts.

Comment: The proposed fee will promote exportation of elemental mercury.

Response: To export elemental mercury, a person must petition the Administrator of EPA, who may grant an exemption provided that the conditions of 15 U.S.C. 2611 (c)(4)(A)(i)-(vii) are met. To date EPA has not granted any exemptions under this part of the MEBA (for more information, see: https://www.epa.gov/mercury/questions-and-answers-mercury-export-ban-act-meba-2008).

DOE has not received any information to suggest the proposed fee will result in a significant increase in such petitions.

Comment: Landfilling of mercury is not condoned.

Response: For purposes of estimating the fee, DOE has assumed a scenario in which elemental mercury is disposed in a regulated landfill following treatment by conversion to red mercury sulfide. This method of treatment of elemental mercury and subsequent disposal of the resulting mercury compound is used safely in Canada.

Although there is no current regulatory framework that allows this practice in the U.S., in order to establish a fee basis, as required by MEBA, DOE considered it reasonable to assume that such a framework may exist in the future.

Comment: What happens after 15 years?

Response: The fee was calculated estimating 15 years of storage followed by treatment and disposal. DOE acknowledges that in the absence of a regulatory framework for such treatment and disposal, elemental mercury in storage at the DOE facility would continue to be stored beyond 15 years.

Comment: What about Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) liability?

Response: MEBA directs DOE to take custody of elemental mercury delivered to the facility for long-term management and storage of elemental mercury and to hold harmless, defend and provide indemnification to persons who deliver elemental mercury to the facility.

Comment: What are the acceptance criteria at the DOE facility for long-term management and storage of elemental mercury?

Response: The Waste Acceptance Criteria (DOE/EM-0007) is available at https://www.energy.gov/sites/prod/files/2019/12/f69/Waste-Acceptance-Criteria-Final-12-12-2018.pdf.

Comment: DOE failed to consider the environmental impact of the fee.

Response: The EIS evaluated seven government and commercial sites and the supplemental environmental impact statement (SEIS) evaluated additional alternatives for a facility at and in the vicinity of the Waste Isolation Pilot Plant (WIPP) for long-term management and storage of elemental mercury. The EIS and SEIS noted the relevant statutory provision regarding assessment and collection of a fee. The assessment and collection of the fee is part of the implementation of the proposed action. Elemental mercury that is not delivered to the long-term management and storage site would continue to be managed and stored by the current holder of the elemental mercury. While DOE cannot determine which specific elemental mercury would continue to be managed by the current holder at a given fee basis, such elemental mercury would have impacts similar to those analyzed under the no action alternative in the EIS and SEIS.

Comment: The Council on Environmental Quality (CEQ) regulations require cost-benefit analyses to be appended to or incorporated into an EIS because they are relevant to the choices among environmentally different alternatives.

Response: CEQ National Environmental Policy Act (NEPA) Regulations (40 CFR 1502.23) require that a cost-benefit analysis be incorporated by reference or appended only “[i]f a cost-benefit analysis relevant to the choice among environmentally different alternatives is being considered for the proposed action.” As discussed in the Record of Decision, DOE's decision was “[b]ased on consideration of the analysis in the Final Elemental Mercury Storage EIS, SEIS, and recently prepared SA” and “on other programmatic, policy, logistic, and cost considerations.”

Comment: The EIS/SEIS/SA did not discuss potential environmental impacts of treatment and disposal of elemental mercury, or of transportation of elemental mercury for treatment and disposal.

Response: DOE has not proposed to treat and dispose of elemental mercury, or to transport elemental mercury for treatment and disposal. Thus, DOE has not analyzed the potential environmental impacts of such a proposal. Nonetheless, DOE has used treatment, disposal, and related transportation costs to calculate the fee for long-term elemental mercury management and storage. Although commenters have provided feedback regarding the components of a fee calculation based on this scenario, comments have not supported basing the fee on indefinite storage of elemental mercury.

This final rule has been determined not to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993), as amended by Executive Order 13258, 67 FR 9385 (February 26, 2002). Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget.

In accordance with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.), the Council on Environmental Quality regulations and the DOE regulations implementing NEPA, DOE prepared the following documents analyzing the potential environmental impacts of long-term management and storage of elemental mercury: Long-Term Management and Storage of Elemental Mercury Environmental Impact Statement (DOE/EIS-0423, January 2011); Long-Term Management and Storage of Elemental Mercury Supplemental Environmental Impact Statement (DOE/EIS-0423-S1, September 2013); and Supplement Analysis of the Final Long-Term Management and Storage of Elemental Mercury Environmental Impact Statement (DOE/EIS-423-SA-01). The environmental impact statement (and the supplemental environmental impact statement) noted the relevant statutory provision regarding assessment and collection of a fee. The assessment and collection of the fee is part of the implementation of the action.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of General Counsel's website: https://www.energy.gov/sites/prod/files/gcprod/documents/eo13272.pdf.

DOE has reviewed this rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. For the reasons explained below, DOE has determined that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities.

In 2019, DOE published Supplement Analysis of the Final Long-Term Management and Storage of Elemental Mercury Environmental Impact Statement (DOE/EIS-423-SA-01) that updated the expected inventory during the next 40 years to 6,800 MT. DOE expects approximately 35-50 entities to pay the fee established in this final rule. DOE expects that the majority of the fees paid will be paid by less than 10 of these entities. The Nevada Mining Association (NMA) membership includes the generators of elemental mercury that are expected to deliver the majority of elemental mercury to the DOE facility. DOE contacted NMA for information to help determine how many of its membership qualify as small entities under NAICS codes 212221 (Gold ore mining, 1500 employees), 212222 (Silver ore mining, 250 employees), 212230 (Copper, nickel, lead and zinc mining, 750 employees) and 212299 (All other metal ore mining, 750 employees). The information received showed that there are 31 entities that fall below the small business standards versus 2 entities that exceeded the standard. DOE estimates that the largest impact would be to entities engaged in mining that do not qualify as small entities under NAICS codes. This impact will vary based on ore grade and price fluctuations in the precious metals market.

Some entities that have either accepted elemental mercury for storage, in accordance with 42 U.S.C. 6939f(g)(2)(B) or have placed elemental mercury in storage in accordance with 42 U.S.C. 6939f(g)(2)(B) or (D), awaiting the start of operation at the DOE facility will be required to pay the fee for storage at the DOE site. These entities would be classified under the NAICS codes in the previous paragraph or NAICS code 562112 (Hazardous Waste Collection, $41.5M). The largest of these impacts are likely be a one-time expense shortly after the start of operations at the DOE facility. DOE determined, however, that none of these entities are likely to be small entities.

As a result of MEBA, with the exception of elemental mercury that has been placed in storage in accordance with 42 U.S.C. 6939f(g)(2)(B) or (D), generators of elemental mercury can either send elemental mercury that is being discarded to the DOE designated facility for long- term management and storage, or treat the elemental mercury to form a mercury compound and then export the mercury compound for environmentally sound disposal in accordance with 15 U.S.C. 2611(c)(7)(A)-(B) and (D). Export of mercury compounds for environmentally sound disposal in another country may also be subject to that country's obligations under the Basel Convention, if applicable, and that country's applicable domestic laws and regulations. While international sales generally are prohibited by MEBA's export ban, 42 U.S.C. 2611(c)(1), non-Federal generators may also consider domestic sales of elemental mercury.4 Although domestic sale of elemental mercury is an option without a negative economic impact, it is likely that the supply would exceed demand and thus that option may not be viable for some non-Federal generators. As stated above, for those non-Federal generators for whom sale is not a viable option, the available options are sending the elemental mercury to the DOE designated facility or environmentally sound disposal of certain mercury compounds in accordance with 15 U.S.C. 2611(c)(7)(D). Treatment and disposal is available at a cost of approximately $26,500 (USD) per metric ton in Canada, for example, and generators can choose this option if it is more cost effective for them.

Because DOE has determined that entities currently storing elemental mercury who will be required to pay the fee established by DOE for storage in the DOE facility are not likely to be small entities, and because those entities not required to pay the fee established by DOE for storage in the DOE facility can choose another disposal option if that option is more cost effective for them, DOE has determined that this rule does not have a significant economic impact on a substantial number of small entities.

DOE's certification and supporting statement of factual basis was provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b). The Department did not receive any comments on the certification and has responded to comments regarding the economic impacts of the rule in Section III of this final rule.

This rulemaking would impose no new information or recordkeeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.).

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written assessment of the effects of any Federal mandate in a proposed or final agency regulation that may result in the expenditure by States, tribal or local governments, in the aggregate, or by the private sector, of $100 million in any one year. The Act also requires Federal agencies to develop an effective process to permit timely input by elected officials of State, tribal, or local governments on a proposed significant intergovernmental mandate, and requires an agency plan for giving notice and opportunity to provide timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. DOE has determined that this rule does not contain any Federal mandates exceeding $100 million in any one year affecting States, tribal, or local governments, or the private sector, and, thus, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform” 61 FR 4779 (February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988, specifically requires that Federal agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting the clarity and general draftsmanship under guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 10, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. (65 FR 13735). DOE has examined this rule and has determined that it would not preempt State law and would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibility among the various levels of government. No further action is required by Executive Order 13132.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well-being. This rule would have no impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy, Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires preparation and submission to OMB of a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1)(i) Is a significant regulatory action under Executive Order 12866, or any successor order; and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. DOE has determined that this rule would not have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of OIRA has also not determined that this rule is a significant energy action. Thus, the requirement to prepare a Statement of Energy Effects does not apply.

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most dissemination of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

This rule is not subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this rule is considered to be a “transfer rule.”

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is a “major rule” as defined by 5 U.S.C. 804(2).

The Secretary of Energy has approved publication of this final rule.

I. Background

Section 129D of the Truth in Lending Act (TILA) contains a general requirement that an escrow account be established by a creditor to pay for property taxes and insurance premiums for certain first-lien higher-priced mortgage loan transactions. TILA section 129D also generally permits an exemption from the higher-priced mortgage loan escrow requirement for a creditor that meets certain requirements, including any asset-size threshold the Bureau may establish.

In the 2013 Escrows Final Rule,1 the Bureau established such an asset-size threshold of $2 billion, which would adjust automatically each year, based on the year-to-year change in the average of the CPI-W for each 12-month period ending in November, with rounding to the nearest million dollars.2 In 2015, the Bureau revised the asset-size threshold for small creditors and how it applies. The Bureau included in the calculation of the asset-size threshold the assets of the creditor's affiliates that regularly extended covered transactions secured by first liens during the applicable period and added a grace period to allow an otherwise eligible creditor that exceeded the asset limit in the preceding calendar year (but not in the calendar year before the preceding year) to continue to operate as a small creditor with respect to transactions with applications received before April 1 of the current calendar year.3 For 2019, the threshold was $2.167 billion.

During the 12-month period ending in November 2019, the average of the CPI-W increased by 1.6 percent. As a result, the exemption threshold is increased to $2.202 billion for 2020. Thus, if the creditor's assets together with the assets of its affiliates that regularly extended first-lien covered transactions during calendar year 2019 are less than $2.202 billion on December 31, 2019, and it meets the other requirements of § 1026.35(b)(2)(iii), it will be exempt from the escrow-accounts requirement for higher-priced mortgage loans in 2020 and will also be exempt from the escrow-accounts requirement for higher-priced mortgage loans for purposes of any loan consummated in 2021 with applications received before April 1, 2021. The adjustment to the escrows asset-size exemption threshold will also increase the threshold for small-creditor portfolio and balloon-payment qualified mortgages under Regulation Z. The requirements for small-creditor portfolio qualified mortgages at § 1026.43(e)(5)(i)(D) reference the asset threshold in § 1026.35(b)(2)(iii)(C). Likewise, the requirements for balloon-payment qualified mortgages at § 1026.43(f)(1)(vi) reference the asset threshold in § 1026.35(b)(2)(iii)(C). Under § 1026.32(d)(1)(ii)(C), balloon-payment qualified mortgages that satisfy all applicable criteria in § 1026.43(f)(1)(i) through (vi) and (f)(2), including being made by creditors that have (together with certain affiliates) total assets below the threshold in § 1026.35(b)(2)(iii)(C), are also excepted from the prohibition on balloon payments for high-cost mortgages.

Under the Administrative Procedure Act (APA), notice and opportunity for public comment are not required if the Bureau finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). Pursuant to this final rule, comment 35(b)(2)(iii)-1 in Regulation Z (12 CFR part 1026) is amended to update the exemption threshold. The amendment in this final rule is technical and merely applies the formula previously established in Regulation Z for determining any adjustments to the exemption threshold. For these reasons, the Bureau has determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. Therefore, the amendment is adopted in final form.

Section 553(d) of the APA generally requires publication of a final rule not less than 30 days before its effective date, except (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. 5 U.S.C. 553(d). At a minimum, the Bureau believes the amendments fall under the third exception to section 553(d). The Bureau finds that there is good cause to make the amendments effective on January 1, 2020. The amendment in this final rule is technical and non-discretionary, and it applies the method previously established in the agency's regulations for automatic adjustments to the threshold.

Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis.4

The Bureau has determined that this final rule does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring approval by the Office of Management and Budget under the Paperwork Reduction Act.5

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the Bureau will submit a report containing this rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to the rule taking effect. The Office of Information and Regulatory Affairs (OIRA) has designated this rule as not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons set forth above, the Bureau amends Regulation Z, 12 CFR part 1026, as set forth below:

After a comprehensive review of FDIC Statements of Policy and following publication of notice 1 and a 30-day comment period which ended on October 30, 2019, during which no comments were received, the FDIC is rescinding the following four Statements of Policy effective December 31, 2019:

Applicability of the Glass-Steagall Act to Securities Activities of Subsidiaries of Insured Nonmember Banks;

Treatment of Collateralized Letters of Credit After Appointment of the FDIC as Conservator or Receiver;

Treatment of Collateralized Put Obligations After Appointment of the FDIC as Conservator or Receiver; and

Contracting with Firms that have Unresolved Audit Issues with the FDIC.

Although these Statements of Policy were not subject to public comment prior to their adoption, the FDIC Board, on a discretionary basis, elected to provide a period for public comment on the proposed rescission of these Policy Statements. The FDIC did not receive any comments regarding the proposed rescissions and therefore is rescinding the Statements of Policy effective December 31, 2019.

This 1982 Statement of Policy addresses the applicability of sections 20 and 32 of the Banking Act of 1933 (Glass Steagall Act) to the securities activities of subsidiaries of insured nonmember banks.2 The Statement of Policy states the opinion of the FDIC Board that the Glass Steagall Act does not prohibit an insured nonmember bank from establishing an affiliate relationship with, or organizing or acquiring, a subsidiary corporation that engages in the business of issuing, underwriting, selling, or distributing stocks, bonds, or other securities. The 1982 Statement of Policy was superseded in its entirety by the enactment of the Gramm-Leach-Bliley Act (GLBA).3 GLBA allowed commercial banks, investment banks, securities firms, and insurance companies to consolidate and operate as financial conglomerates. Therefore, the information and guidance contained in the 1982 Statement of Policy is out-of-date. For this reason, the FDIC is rescinding the 1982 Statement of Policy effective December 31, 2019.

This Statement of Policy was adopted by the FDIC on May 19, 1995, in order to clarify how the FDIC as conservator or receiver of a failed insured depository institution (IDI) would treat certain capital markets financing transactions using collateralized letters of credit (CLOCs) issued by IDIs prior to August 9, 1989, the date on which the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 4 (FIRREA) was signed into law.5 The Statement of Policy applies only to CLOCs (i) utilized in capital markets financing transactions originally issued by IDIs prior to August 9, 1989, and any subsequent renewal, replacement or extension of such CLOCs; and (ii) where the security interest in collateral pledged by the IDI was both perfected and legally enforceable under applicable law. The Statement of Policy does not apply to trade letters of credit or letters of credit issued for any other purpose.

The Statement of Policy provides that after its appointment as conservator or receiver of a failed IDI, the FDIC may either (i) continue any CLOCs as enforceable under the terms of the contract during the pendency of the conservatorship or receivership, or (ii) call, redeem or prepay any CLOC by its statutory power to repudiate or disaffirm contracts entered into by the IDI.

Based on market research, the FDIC has concluded, to the best of its knowledge, that it is unlikely that any public or privately issued transactions of the type covered by the Statement of Policy remain outstanding at this time. Therefore, the FDIC is rescinding the Statement of Policy effective December 31, 2019.

This Statement of Policy was adopted by the FDIC on July 9, 1991, in order to explain how the FDIC as conservator or receiver of a failed IDI would treat certain capital markets financing transactions using collateralized put obligations—also referred to as “collateralized put options” (CPOs)—issued by IDIs prior to August 9, 1989, the date on which FIRREA was signed into law.6 The Statement of Policy applies only to CPOs (i) issued by IDIs in connection with capital markets financing transactions, including the formation of publicly offered unit investment trusts and other sales of an IDI's portfolio securities, prior to August 9, 1989, and any subsequent renewal, replacement or extension of such CPOs; and (ii) collateralized by property owned and pledged by the IDI, and in which the security interest granted is both perfected and legally enforceable.

This AD is a final rule that involves requirements affecting flight safety, and the FAA did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, the FAA invites you to participate in this rulemaking by submitting written comments, data, or views. The FAA also invites comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. The FAA will file in the docket all comments received, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. The FAA will consider all the comments received and may conduct additional rulemaking based on those comments.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2019-0019, dated January 30, 2019 (EASA AD 2019-0019) to correct an unsafe condition for Leonardo S.p.A. (formerly Finmeccanica S.p.A., AgustaWestland S.p.A.) Model AW169 and AW189 helicopters with T/R actuator part number (P/N) 6F6730V00331 and a serial number (S/N) up to 489 inclusive, except those marked with “SB 67-0007,” installed. EASA advises of reports of non-conformities of the T/R actuator back-end input lever, indicating incorrect orientation of the lever with its trunnion locking pin.

EASA states this condition could lead to de-bonding and slippage of one of the two redundant lever bearings and possibly affect the functionality of the T/R actuator. A batch of T/R actuators was identified that may be also affected. Accordingly, EASA AD 2019-0019 requires one-time conformity checks of certain T/R actuator input levers, sending information and photos to Leonardo S.p.A., and depending on inspection findings, marking a part, inspecting the bonding of each bearing, and replacing the T/R actuator. EASA AD 2019-0019 also prohibits installation of the affected parts.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA of the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all information provided by EASA and determining the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.

UTC Aerospace Systems (Collins Aerospace) has issued Service Bulletin 67-0007, Basic Issue, dated January 17, 2019 (SB 67-0007). SB 67-0007 specifies verifying that the width of the bearing circular collar of the input lever is within the allowable limits of 4 ±0.3 mm, and checking the input lever pin head, and the nut and cotter pin of the intermediate bolt for proper installation. Depending on the inspection results, SB 67-0007 specifies replacing the T/R actuator, or marking the input lever and sending its completed registration form and photos of each side of the input lever to Leonardo Helicopters. SB 67-0007 is incorporated by reference in this AD.

SB 67-0007 is attached as Annex A to Leonardo Helicopters Alert Service Bulletin (ASB) No. 169-129, dated January 30, 2019 (ASB 169-129), for Model AW169 helicopters, and Leonardo Helicopters ASB No. 189-220, dated January 30, 2019 (ASB 189-220), for Model AW189 helicopters. ASB 169-129 and ASB 189-220 are not incorporated by reference in this AD.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Leonardo Helicopters has issued ASB 169-129 and ASB 189-220. This service information refers to SB 67-0007 for instructions to inspect certain part-numbered and serial-numbered T/R actuator input lever assemblies. Depending on findings, this service information specifies marking the input lever, inspecting the bonding of each bearing, and replacing the T/R actuator on a specified compliance time schedule based on findings. This service information also specifies sending information, photos, and certain T/R actuators to Leonardo Helicopters.

For Model AW169 and AW189 helicopters with a T/R actuator P/N 6F6730V00331 and an S/N up to 489 inclusive, except those marked with “SB 67-0007,” installed, this AD requires inspecting the T/R actuator input lever assembly by determining if the width of the bearing circular collar of the input lever is within allowable limits, and inspecting for proper installation of the pin and of the intermediate bolt's nut and cotter pin. This AD requires reporting certain information and photos to Leonardo S.p.A. Based on the inspection outcome, this AD requires marking “SB 67-0007” on the input lever, inspecting each bearing for correct bonding, and removing the T/R actuator from service at different compliance times. This AD also prohibits installation of affected T/R actuators.

The EASA AD requires returning a removed T/R actuator to Leonardo Helicopters, whereas this AD does not. Depending on the inspection results of the T/R actuator input lever assembly, one of the compliance times to replace the T/R actuator in the EASA AD is 200 hours TIS or 2 months, whichever occurs first. This AD requires removing the T/R actuator from service within 60 hours TIS for the same inspection results instead.

The FAA estimates that this AD affects 10 helicopters of U.S. Registry. Labor costs are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs in order to comply with this AD.

Inspecting the T/R actuator input lever assembly takes about 1 work-hour, and reporting information and photos to Leonardo S.p.A. takes about 1 work-hour, for an estimated cost of $170 per helicopter and $1,700 for the U.S. fleet. Marking a part takes a minimal amount of time for a nominal cost. Replacing a T/R actuator takes about 6 work-hours and parts cost about $20,000, for an estimated cost of $20,510 per helicopter.

According to Leonardo Helicopter's service information, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage by Leonardo Helicopters. Accordingly, the FAA has included all costs in the cost estimate.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C.) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because the initial inspection requirements must be completed within 30 hours time-in-service. Therefore notice and opportunity for prior public comment are impracticable and contrary to public interest pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the reason stated above, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have 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.

For the reasons discussed, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866, and

2. Will not affect intrastate aviation in Alaska.

The FAA prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

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. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

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. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

On November 21, 2016, the National Labor Relations Board amended one of its systems of records, NLRB-17, Personnel Security Records, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a. Pursuant to subsections (k)(1), (2), (3), (5), (6), and (7) of the Privacy Act, the Board included within Section 102.119, additional paragraphs (o) and (p), exempting portions of the amended system of records (NLRB-17) from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f) of the Privacy Act. This amendment was published in the Federal Register on November 21, 2016. Three months later, on February 24, 2017, the National Labor Relations Board published in the Federal Register a comprehensive amendment of its procedural regulations that replaced § 102.119 in its entirety. In the comprehensive amendment, the Board inadvertently failed to include § 102.119, paragraphs (o) and (p). This document corrects the regulations that were published February 24, 2017, to include the paragraphs that were inadvertently repealed.

Accordingly, 29 CFR part 102 is corrected by making the following amendments:

On August 20, 2019, the Coast Guard published a notice of proposed rulemaking entitled “Drawbridge Operation Regulation; Niantic River, Niantic, CT” in the Federal Register (84 FR 43093). In the NPRM, incorrect clearances for the bridge were provided. The correct clearances are provided below in Section III. No comments were received in response to the NPRM and no comments were made concerning the more constrictive clearances in the NPRM.

The Coast Guard is issuing this rule under the authority of 33 U.S.C. 499. The S156 Bridge at mile 0.1 over the Niantic River at Niantic, Connecticut, has a vertical clearance of 32 feet at mean high water and 34 feet at mean low water. Vertical clearance is unlimited when the draw is open. Horizontal clearance is approximately 100 feet. Waterway users include recreational and small commercial vessels.

The existing regulation, 33 CFR 117.215(b), requires that from December 1 through March 31, from 8 p.m. to 4 a.m., the draw shall open on signal if at least six hours notice is given. CT DOT requested that the start of the winter schedule begin one month sooner and end one month later than presently allowed by the regulation. This rule change will align the winter operation and staffing of the three CT DOT drawbridges located in the same operational area by extending the range of months during which six hours notice is required to include November and April. This rule change will allow for more efficient and economic operation of the bridge while meeting the reasonable needs of navigation.

The bridge logs show that during the last three years only three requests to open occurred between 8 p.m. and 4 a.m. in November and no request to open were received between 8 p.m. and 4 a.m. in April. None of the requests were from commercial vessels. CT DOT and the Coast Guard conducted outreach to stakeholders with no objections received.

The Coast Guard provided 60 days for comment and no comments were received. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

The final rule provides that from November 1 through April 30, between the hours of 8:00 p.m. and 4:00 a.m., the draw shall open on signal if at least six hours notice is given. It is our opinion that the proposed rule meets the reasonable needs of marine traffic.

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

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

This regulatory action determination is based on the fact that only three vessel transits would have been affected over the past three years. We believe that this change to the drawbridge operation regulation at 33 CFR 117.215(b) will meet the reasonable needs of navigation.

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

The bridge will continue to open on signal with six hours notice between the hours of 8 p.m. and 4 a.m. during the months of November and April. Based on the last three years of records, an average of one vessel annually will be affected by the change. While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). We have made a determination 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 promulgates the operating regulations or procedures for drawbridges. This action is categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

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

On October 25, 2018, the Alaska Department of Environmental Conservation (ADEC) made a submission addressing the infrastructure requirements of CAA section 110(a)(1) and (2) for the 2015 ozone NAAQS.1 On October 15, 2019, we proposed to approve Alaska's infrastructure SIP submission (84 FR 55094). The reasons for our proposed approval are included in the proposal and will not be restated here. The public comment period for the proposal closed on November 14, 2019, and we received one supportive comment. The full text of the comment may be found in the docket for this action.

We are approving the Alaska SIP as meeting the following CAA section 110(a)(2) infrastructure elements for the 2015 ozone NAAQS: (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). This action is being taken under section 110 of the CAA.

Under the CAA, 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, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, 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 the 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 SIP is not approved to apply on any Indian reservation land or in any other area where the 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 it 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. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 21, 2020. 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).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at https://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to https://www.epa.gov/aboutepa/about-office-chemical-safety-and-pollution-prevention-ocspp and select “Test Guidelines for Pesticides and Toxic Substances.”

Under section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0358 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before February 21, 2020. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2019-0358, by one of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/dockets.

EPA, on its own initiative, in accordance with FFDCA sections 408(e) and 408(l)(6) of, 21 U.S.C. 346a(e) and 346a(1)(6), is establishing a time-limited tolerance for residues of fenpropathrin, (alpha-cyano-3-phenoxy-benzyl 2,2,3,3 tetramethylcyclopropanecarboxylate), in or on fuzzy kiwifruit at 5 parts per million (ppm). This time-limited tolerance expires on December 31, 2022.

Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on FIFRA section 18 related time-limited tolerances to set binding precedents for the application of FFDCA section 408 and the safety standard to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

According to the Alabama Department of Agriculture and Industries (ADAI), in 2017 brown marmorated stink bug (BMSB) damage was observed in a small block of nursery stock plants. This observation alerted the staff at the kiwi nursery to the potential of BMSB for the 2018 crop season. ADAI claimed that in 2018, BMSB severely damaged the kiwifruit crop, making it unmarketable. ADAI estimated losses as high as 50% for 2018 and projected 2019 losses to be over $1.6 million without the use requested under the section 18 emergency exemption. After having reviewed the submission, EPA determined that an emergency condition exists for this State, and that the criteria for approval of an emergency exemption are met.

As part of its evaluation of the emergency exemption application, EPA assessed the potential risks presented by residues of fenpropathrin in or on fuzzy kiwifruit. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent, non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in FFDCA section 408(l)(6). Although this time-limited tolerance expires on December 31, 2022, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amount specified in the tolerance remaining in or on fuzzy kiwifruit after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this time-limited tolerance at the time of that application. EPA will take action to revoke this time-limited tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because this time-limited tolerance is being approved under emergency conditions, EPA has not made any decisions about whether fenpropathrin meets FIFRA's registration requirements for use on fuzzy kiwifruit or whether a permanent tolerance for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerance decision serves as a basis for registration of fenpropathrin by a State for special local needs under FIFRA section 24(c), nor does this tolerance by itself serve as the authority for persons in any State other than Alabama to use this pesticide on the applicable crops under FIFRA section 18, absent the issuance of an emergency exemption applicable within that State. For additional information regarding the emergency exemption for fenpropathrin, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT.

Consistent with the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of, and to make a determination on, aggregate exposure expected as a result of this emergency exemption request and the time-limited tolerance for residues of fenpropathrin on fuzzy kiwifruit at 5 ppm. EPA's assessment of exposures and risks associated with establishing the time-limited tolerance follows.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks.

A summary of the toxicological endpoints for fenpropathrin used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of November 28, 2012 (77 FR 70904) (FRL-9366-1).

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to fenpropathrin, EPA considered exposure under the time-limited tolerance established by this action as well as all existing fenpropathrin tolerances in 40 CFR 180.466. EPA assessed dietary exposures from fenpropathrin in food as follows:

i. Acute exposure. Acute effects were identified for fenpropathrin. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, EPA used tolerance level residues for some commodities and refined the assessment by incorporating distributions of field trial values and Pesticide Data Program (PDP) monitoring data for other commodities. EPA translated data from some commodities to other commodities according to EPA's guidance documents for translating monitoring data and field trial data. EPA also included estimates of percent crop treated in the assessment. For most processed commodities, EPA used the Agency's 2018 default processing factors for those commodities for which they were available. In some cases, EPA used empirical processing factors.

ii. Chronic exposure. Based on the available data for fenpropathrin, use of the acute endpoint and dose for risk assessment is protective for repeated dose exposure and risk. Therefore, only an acute dietary assessment was performed, which is considered protective of chronic dietary exposure.

iii. Cancer. Based on the data cited in Unit IV.A., EPA has concluded that fenpropathrin does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and percent crop treated (PCT) information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area, and the exposure estimate does not understate exposure for the population in such area.

In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency estimated the PCT for existing uses as follows: Apples, 15%; apricots 2.5%; blueberries, 2.5%; broccoli, 2.5%; Brussels sprouts, 10%; cabbage, 2.5%; cauliflower, 2.5%; cherries, 21%; cotton, 2.5%; cucumbers, 2.5%; grapefruit, 35%; grapes, 10%; nectarines, 9%; oranges, 35%; peaches, 9%; pears, 10%; plums, 2.5%; prune plums, 2.5%; squash, 2.5%; strawberries, 50%; tangerines, 15%; tomatoes, 10%; and watermelons, 2.5%.

In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6 to 7 years. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.

The Agency estimated the PCT for new uses as follows: 100% for fuzzy kiwifruit.

The Agency believes that the three conditions discussed in Unit IV.B1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which fenpropathrin may be applied in a particular area.

2. Dietary exposure from drinking water. The Agency used water solubility limit at 25 °C in the dietary exposure analysis and risk assessment for fenpropathrin in drinking water. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

The water solubility limit of fenpropathrin at 25 °C is 10.3 parts per billion (ppb). The limit of solubility was directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 10.3 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Fenpropathrin is not registered for any specific use patterns that would result in residential exposure.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at: https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

The agency is required to consider the cumulative risks of chemicals sharing a common mechanism of toxicity. The agency has determined that the pyrethroids and pyrethrins share a common mechanism group (see https://www.regulations.gov; Docket ID EPA-HQ-OPP-2008-0489-0006). The members of this group share the ability to interact with voltage-gated sodium channels ultimately leading to neurotoxicity. The cumulative risk assessment for the pyrethroids/pyrethrins was published on Nov. 9, 2011 (USEPA, 2011a) and is available at https://www.regulations.gov; Docket ID EPA-HQ-OPP-2011-0746. No cumulative risks of concern were identified. This assessment was conservative and appropriate to address use expansions, such as this use on kiwifruit. For information regarding the EPA's efforts to evaluate the risk of exposure to pyrethroids, refer to https://www.epa.gov/oppsrrd1/reevaluation/pyrethroids-pyrethrins.html. After all of the chemical-specific interim decisions have been completed for the pyrethroid class of pesticides, an update of the cumulative risk assessment may be performed in association with registration review.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional SF when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. Evidence of increased qualitative or quantitative susceptibility of the offspring was not observed in any of the available animal testing guideline toxicity studies, including the developmental neurotoxicity study (DNT).

3. Conclusion. EPA has determined that reliable data show that the safety of infants and children would be adequately protected if the required 10X FQPA SF were reduced to 3X for children less than 6 years old. For the general population, and including children greater than 6 years old, EPA is reducing the FQPA SF to 1X. That decision is based on the following findings:

i. While the database is considered to be complete with respect to the guideline toxicity studies for fenpropathrin, EPA lacks additional data to fully characterize the potential for juvenile sensitivity to neurotoxic effects of pyrethroids. In light of the literature studies indicating a possibility of increased sensitivity in juvenile rats at high doses, EPA identified a need, and requested proposals for, additional non-guideline studies to evaluate the potential for sensitivity in juvenile rats. A group of pyrethroid registrants is currently conducting those studies. Pending the results of those studies, however, the available toxicity studies for fenpropathrin can be used to characterize toxic effects including potential developmental and reproductive toxicity, immunotoxicity, and neurotoxicity. Acceptable developmental toxicity studies in rats and rabbits, reproduction studies in rats, neurotoxicity studies (acute, subchronic, and developmental) in rats, and immunotoxicity studies in rats are available. In addition, a route-specific dermal toxicity study is available, and the inhalation study has been waived.

ii. After reviewing the extensive body of data and peer-reviewed literature on pyrethroids, the Agency has reached a number of conclusions regarding fetal and juvenile sensitivity for pyrethroids. Based on an evaluation of over 70 guideline toxicity studies for 24 pyrethroids submitted to the Agency, including prenatal developmental toxicity studies in rats and rabbits, and pre- and postnatal multi-generation reproduction toxicity studies and DNTs in rats in support of pyrethroid registrations, there is no evidence that pyrethroids directly impact developing fetuses. None of the studies show any indications of fetal toxicity at doses that do not cause maternal toxicity.

iii. Increased susceptibility was seen in offspring animals in the DNT study with the pyrethroid zeta-cypermethrin (decreased pup body weights) and DNT and reproduction studies with another pyrethroid, beta-cyfluthrin (decreased body weights and tremors). However, the reductions in body weight and the other non-specific effects occur at higher doses than neurotoxicity, the effect of concern for pyrethroids. The available developmental and reproduction guideline studies in rats with zeta-cypermethrin did not show increased sensitivity in the young to neurotoxic effects. Overall, findings of increased sensitivity in juvenile animals in pyrethroid studies are rare. Therefore, the residual concern for the postnatal effects is reduced. High-dose LD50 studies (studies assessing what dose results in lethality to 50% of the tested population) in the scientific literature indicate that pyrethroids can result in increased quantitative sensitivity to juvenile animals. Examination of pharmacokinetic and pharmacodynamic data indicates that the sensitivity observed at high doses is related to pyrethroid age-dependent pharmacokinetics—the activity of enzymes associated with the metabolism of pyrethroids. Furthermore, a rat physiologically-based pharmacokinetic (PBPK) model predicts a 3-fold increase of pyrethroid concentration in juveniles' brains compared to adults at high doses. In vitro pharmacodynamic data and in vivo data indicate that adult and juvenile rats have similar responses to pyrethroids at low doses and therefore juvenile sensitivity is not expected at relevant environmental exposures. Further, data also show that the rat is a conservative model compared to the human based on species-specific pharmacodynamics of homologous sodium channel isoforms. The Agency has retained a 3X uncertainty factor to protect for exposures of children less than 6 years of age based on increased quantitative susceptibility seen in literature studies on pyrethroid pharmacokinetics (PKs), and the increased quantitative juvenile susceptibility observed in high dose studies in the literature.

iv. There are no residual uncertainties identified in the exposure databases. The Agency used tolerance level residues for some commodities and refined the assessment by incorporating distributions of field trial values and Pesticide Data Program (PDP) monitoring data for other commodities. EPA translated data from some commodities to other commodities according to EPA's guidance documents for translating monitoring data and field trial data. EPA also included estimates of percent crop treated in the assessment. For most processed commodities, EPA used the Agency's 2018 default processing factors for those commodities for which they were available. In some cases, EPA used empirical processing factors.

For this kiwifruit section 18 request, EPA updated the 2016 dietary exposure assessment by including kiwifruit. As residue data are not available for kiwifruit, the Agency translated grape PDP data to kiwifruit. For section 18 requests, the Agency assumes the proposed commodity will be treated to a level of 100% across the country. As a result, 100% crop treated was assumed for kiwifruit. EPA also made refinements to the residue data for dried cranberry, dried mango, and dried papaya. In the 2016 assessment, EPA used tolerance level residues for these commodities. For this section 18 request, EPA translated strawberry PDP data to dried cranberries, avocado field trial data to dried mango, and avocado field trial data to dried papaya. The Agency assumed 100% crop treated for the three dried commodities: Cranberry, mango, and papaya.

EPA made a conservative (protective) assumption in the water concentration used to assess exposure to fenpropathrin in drinking water. These assessments will not underestimate the exposure and risk posed by fenpropathrin.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to fenpropathrin will occupy 99.5% of the aPAD for children 1 to 2 years old, the population group receiving the greatest exposure.

2. Chronic risk. A chronic dietary exposure assessment was not conducted because the acute endpoint adequately protects against chronic effects. There are no residential uses for fenpropathrin.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). A short-term adverse effect was identified; however, fenpropathrin is not registered for any use patterns that would result in short-term residential exposure. Because there is no short-term residential exposure and acute dietary exposure has already been assessed under the appropriately protective aPAD (which is at least as protective as the POD used to assess short-term risk), no further assessment of short-term risk is necessary, and EPA relies on the acute dietary risk assessment for evaluating short-term risk for fenpropathrin.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term non-dietary, non-occupational exposure plus chronic exposure to food and water (considered to be a background exposure level). Because no intermediate-term adverse effect was identified, fenpropathrin is not expected to pose an intermediate-term risk.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, fenpropathrin is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to fenpropathrin residues, including anticipated residues on fuzzy kiwifruit.

Adequate enforcement methodology utilizing gas chromatography with electron capture detector (GC/ECD), Residue Method Numbers RM-22-4 (plants) and RM-22A-1 (animals), is available to enforce the tolerance expression.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established an MRL for fenpropathrin on fuzzy kiwifruit.

Therefore, a time-limited tolerance is established for residues of fenpropathrin, (alpha-cyano-3-phenoxy-benzyl 2,2,3,3 tetramethylcyclopropanecarboxylate), in or on kiwifruit, fuzzy at 5 ppm. This tolerance expires on December 31, 2022.

This action establishes a tolerance under FFDCA sections 408(e) and 408(l)(6). The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, titled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, titled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs,” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, titled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the National Government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

As part of the domestic licensing of commercial nuclear power plants (NPPs), the Federal Emergency Management Agency (FEMA) and the Nuclear Regulatory Commission (NRC) evaluate emergency preparedness activities at and around these facilities. Emergency preparedness activities for a radiological incident at an NPP are essential for communities that could be affected by an incident at the facility. FEMA's role in the licensing process is to review and evaluate the adequacy of the planning and preparedness activities and capabilities of State, local, and Tribal governments and provide its findings and determinations to the NRC. FEMA performs this activity before the NRC issues a license to operate a NPP and then provides ongoing findings and determinations that planning and preparedness efforts are effective and consistent with regulatory guidelines. The NRC evaluates applicants for NPP site permits, construction permits, and operating licenses. As a part of that evaluation, the NRC reviews the licensees' emergency plans and preparedness efforts. NPP licensees and State, local, and Tribal governments within the emergency planning zones surrounding commercial NPPs must show that plans are in place that provide reasonable assurance that adequate protective measures will be taken to protect public health and safety in the event of an incident at an NPP.

In November 1980, FEMA issued “Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants (NUREG-0654/FEMA-REP-1, Rev. 1)” jointly with the Nuclear Regulatory Commission (NRC). (45 FR 85862, Dec. 30, 1980). NUREG-0654/FEMA-REP-1, Rev. 1 provides guidance on the 16 Planning Standards referenced in FEMA's regulations at 44 CFR 350.5 and the NRC's regulations at 10 CFR 50.47. Both agencies use these Planning Standards, and associated Evaluation Criteria contained in NUREG-0654/FEMA-REP-1, Rev. 1, to evaluate the adequacy of emergency plans and preparedness of NPP owners and operators, and the State, local, and Tribal government jurisdictions in which NPPs are sited.

Since the publication of NUREG-0654/FEMA-REP-1, Rev. 1 in 1980, four supplementary documents and one addendum (66 FR 22270, May 3, 2001) have been issued that update and modify specific planning and procedural elements. Since publication of these documents, there have been changes to FEMA and NRC regulations, guidance, policies and advances in technology. NUREG-0654/FEMA-REP-1, Rev. 2 consolidates the four supplementary documents and one addendum, clarifies the relationship of radiological emergency planning and preparedness to the larger National Preparedness System and its components, and provides updates and additional guidance reflective of over 30 years of improvements and lessons learned in the radiological emergency preparedness community.

To begin this revision process, FEMA held two public meetings on August 22, 2012 and September 13, 2012 to discuss the scope of the proposed revision to NUREG-0654/FEMA-REP-1, Rev. 1 (77 FR 46766, Aug. 6, 2012). Based on feedback from the two public meetings, FEMA solicited comments from stakeholders and interested members of the public on the scope of future revisions to NUREG-0654/FEMA-REP-1, Rev. 1 (77 FR 65700, Oct. 30, 2012). A series of stakeholder engagement sessions were held on October 29-31, 2013 and June 25, 2014. Summaries of the stakeholder engagement sessions are posted to the Federal eRulemaking Portal at http://www.regulations.gov under Document ID: FEMA-2012-0026-0055 and FEMA-2012-0026-0053, respectively.

The NUREG-0654/FEMA-REP-1, Rev. 2 draft was posted to the Federal eRulemaking Portal for public comment (80 FR 30697, May 29, 2015). The original comment period was scheduled to conclude on August 27, 2015, however, several commenters requested an extension beyond the original 90-day comment period. Commenters cited the voluminous material put forth by the agencies for comment and that the proposed guidance document covered many policy matters that required a time consuming review by licensees and their offsite counterparts. FEMA and the NRC determined that it was in the interest of all parties to extend the comment period to October 13, 2015 (80 FR 50862, Aug. 21, 2015). Most of the changes made to the proposed guidance document are clarifying, non-substantive changes that reflect current practice.

FEMA and the NRC are issuing the final guidance document: “Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants” (NUREG-0654/FEMA-REP-1, Rev. 2). The final guidance document included adjudication of 631 comments from 32 commenters. FEMA and the NRC prepared a comment/response matrix entitled “Adjudication Report for NUREG-0654/FEMA-REP-1, Rev. 2 Public Comments Sorted by Document Order December 2019” that may be viewed at www.regulations.gov under Docket ID FEMA-2012-0026. The substantive changes in the final guidance document align with the national preparedness doctrine, as directed by the President in directives and supported by the National Preparedness System (NPS). Additionally, this final guidance document incorporates the Radiological Emergency Preparedness Program guidance into the NPS, thus ensuring that it is risk- and threat-informed and appropriate for the whole community.

The contents of this final guidance document do not have the force and effect of law and are not meant to bind the public in any way. This final guidance document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

Implementation: The timeframe for transition to the final guidance document, “Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants” (NUREG-0654/FEMA-REP-1, Rev. 2), will vary amongst State, local, and Tribal governments and will be tied to their individual exercise cycle. FEMA intends to work with each jurisdiction to determine the best timeframe for transition, taking both the level of effort and where each is within their exercise cycle into account.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council (Council) under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The final 2019 and 2020 harvest specifications for groundfish in the GOA (84 FR 9416, March 14, 2019) set the 2020 pollock TAC at 114,943 metric tons (mt) in the GOA. In December 2019, the North Pacific Fishery Management Council (Council) recommended a 2020 pollock TAC of 115,930 mt for the GOA, which is more than the 114,943 mt established by the final 2019 and 2020 harvest specifications for groundfish in the GOA. The Council's recommended 2020 TAC, and the area and seasonal apportionments, is based on the Stock Assessment and Fishery Evaluation report (SAFE), dated November 2019.

The final 2019 and 2020 harvest specifications for groundfish in the GOA (84 FR 9416, March 14, 2019) set the 2020 Pacific cod TAC at 15,709 metric tons (mt) in the GOA. In December 2019, the North Pacific Fishery Management Council (Council) recommended a 2020 Pacific cod TAC of 6,431 mt for the GOA, which is less than the 15,709 mt established by the final 2019 and 2020 harvest specifications for groundfish in the GOA. The Council's recommended 2020 TAC, and the area and seasonal apportionments, is based on the Stock Assessment and Fishery Evaluation report (SAFE), dated November 2019.

Steller sea lions occur in the same location as the pollock and Pacific cod fisheries and are listed as endangered under the Endangered Species Act (ESA). Pollock and Pacific cod are principal prey species for Steller sea lions in the GOA. The seasonal apportionment of pollock and Pacific cod harvests are necessary to ensure the groundfish fisheries are not likely to cause jeopardy of extinction or adverse modification of critical habitat for Steller sea lions. The regulations at § 679.20(a)(5)(iv) specify how the pollock TAC will be apportioned and the regulations at § 679.20(a)(6)(ii) and (a)(12)(i) specify how the Pacific cod TAC will be apportioned.

In accordance with § 679.25(a)(1)(iii), (a)(2)(i)(B), and (a)(2)(iv) the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that, based on the best available scientific information for this fishery, the current GOA pollock and Pacific cod TACs are incorrectly specified. Consequently, pursuant to § 679.25(a)(1)(iii), the Regional Administrator is adjusting the 2020 GOA pollock TAC to 115,930 mt and the 2020 Pacific cod TAC to 6,431 mt. Therefore, Tables 4 and 6 of the final 2019 and 2020 harvest specifications for groundfish in the GOA (84 FR 9416, March 14, 2019) are revised consistent with this adjustment.

Pursuant to § 679.20(a)(5)(iv), Table 4 of the final 2019 and 2020 harvest specifications for groundfish in the GOA (84 FR 9416, March 14, 2019) is revised for the 2020 TACs of pollock in the Central and Western Regulatory Area of the GOA.

Pursuant to § 679.20(a)(6)(ii) and (a)(12)(i), Table 6 of the final 2019 and 2020 harvest specifications for groundfish in the GOA (84 FR 9416, March 14, 2019) is revised for the 2020 TACs of Pacific cod in the GOA.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The most recent biological assessment available of the stock condition for Pacific cod in the GOA has determined that the spawning biomass will be below 20 percent of the projected unfished spawning biomass during 2020 (https://www.fisheries.noaa.gov/alaska/population-assessments/north-pacific-groundfish-stock-assessment-and-fishery-evaluation).

In accordance with § 679.20(d)(4), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that a biological assessment of stock condition for Pacific cod in the GOA projects that the spawning biomass will be below 20 percent of the projected unfished spawning biomass during 2020. Consequently, NMFS is prohibiting directed fishing for Pacific cod in the GOA. While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of December 6, 2019.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.