The Risk Management Agency (RMA) and FCIC (terms used interchangeably) serve America's agricultural producers through effective, market-based risk management tools to strengthen the economic stability of agricultural producers and rural communities. RMA is committed to increasing the availability and effectiveness of Federal crop insurance as a risk management tool. Approved Insurance Providers (AIP) sell and service Federal crop insurance policies in every state and in Puerto Rico through a public-private partnership with RMA. RMA reinsures the AIPs who share the risks associated with catastrophic losses due to major weather events. RMA's vision is to secure the future of agriculture by providing world class risk management tools to rural America.

Federal crop insurance policies typically consist of the Basic Provisions, the Crop Provisions, the Special Provisions, the Commodity Exchange Price Provisions, if applicable, other applicable endorsements or options, the actuarial documents for the insured agricultural commodity, the Catastrophic Risk Protection Endorsement, if applicable, and the applicable regulations published in 7 CFR chapter IV.

FCIC amends the Catastrophic Risk Protection Endorsement, the Area Risk Protection Insurance (ARPI) Basic Provisions, and the Common Crop Insurance Policy (CCIP) Basic Provisions to implement the changes mandated by the 2018 Farm Bill (Pub. L. 115-334). The changes to the policy made in this rule are applicable for the 2020 crop year for crops with a contract change date on or after June 30, 2019. For all crops the changes to the policy made in this rule are applicable for the 2021 and succeeding crop years.

On February 14, 2019, the Farm Service Agency (FSA), Natural Resources Conservation Service (NRCS), and RMA published a notice in the Federal Register (84 FR 4041-4044) announcing a listening session for initial public input on the changes to existing programs implemented by the agencies. The purpose of the listening session was for each agency to take into account stakeholder input when making discretionary decisions on program implementation. The agencies also announced an opportunity for the public to make written statements through March 1, 2019. The listening session was held on February 26, 2019. The Commodity, Credit, and Crop Insurance titles, and parts of the Conservation, Energy, and Miscellaneous titles were covered during the listening session.

FSA, NRCS, and RMA received 183 written comments from individuals, trade groups, other organizations, and State entities. All written comments are available to the public for review at: https://www.regulations.gov/document?D=USDA-2019-0001-0001. In addition to program-specific comments, there were recurring overarching comments about placing a priority on information sharing between agencies for data collection regarding soil health and conservation practices. The issue raised in comments about native sod are discussed below in the section on the native sod changes. Comments included suggestions for the commercialization of industrial hemp, further research of industrial hemp, and the need to implement the 2018 Farm Bill quickly for the industrial hemp industry to thrive.

Statements regarding RMA issues outside the scope of this rule that are not addressed include those about Whole Farm Revenue Protection, yield data for Agriculture Risk Coverage (ARC) and Price Loss Coverage (PLC) programs, Dairy Margin Coverage and Livestock Gross Margin-Dairy programs, specialty crop insurance, and the USDA interagency workgroup for cover crops. While not related to this rule, the comments will be considered by RMA when implementing 2018 Farm Bill sections that do not require regulatory changes.

In general, RMA related listening session comments focused on the timing of when the 2018 Farm Bill requirements would go into effect. RMA was urged to issue rules and information as quickly as possible.

Provisions in the 2018 Farm Bill that require revisions in the FCIC regulations are discussed below.

Section 11110 of the 2018 Farm Bill increased the Catastrophic Risk Protection Endorsement Administrative Fee from $300 to $655. The Federal Crop Insurance Act mandates that FCIC offer a catastrophic risk protection plan to indemnify producers for crop loss due to loss of yield or prevented planting when the producer is unable to plant other crops for harvest on the acreage for the crop year due to drought, flood, or other natural disaster. Catastrophic risk protection offers a producer coverage for a 50 percent loss in yield, on an individual yield or area yield basis, indemnified at 55 percent of the expected market price. FCIC will pay a premium subsidy equal to the premium established for the coverage provided under this endorsement. However, producers will pay an administrative fee of $655 for each crop in the county unless otherwise specified in the Special Provisions. The administrative fee will be updated in the regulation in 7 CFR 402.4, in section 6(b).

Section 11112 of the 2018 Farm Bill added the regulatory authority to provide producers with an election to limit the decrease in APH to not more than 10 percent of the prior crop year's APH (cup), provided that the production decline was the result of drought, flood, natural disaster, or other insurable loss; and that FCIC establish actuarially sound premiums to cover the additional risk. The cup option was implemented procedurally in FCIC—18010 Crop Insurance Handbook on December 2017 for 2018 crops with a Contract Change Date of November 30, 2017, or later.

FCIC is adding the cup option in 7 CFR 457.8 section 36(c) in the CCIP Basic Provisions.

Section 11114 of the 2018 Farm Bill revised the crop production on native sod provisions related to crop insurance. Most provisions (such as the penalties, de minimis acreage, applicable States) for native sod from the Agricultural Act of 2014 (Pub. L. 113-79, 2014 Farm Bill) remain the same. The 2014 Farm Bill provisions were in effect for native sod acreage tilled from February 8, 2014, until December 20, 2018, which was the duration of the 2014 Farm Bill. For native sod acreage tilled after the date of enactment of the 2018 Farm Bill, the native sod reduction in benefits will apply to any insurable crop instead of only to annual crops. The reductions will apply for 4 cumulative crop years on the acreage when a crop is insured, with a limitation of the first 10 years after initial tillage of the acreage. This means that if the acreage has not met the 4 cumulative crop years of an insured crop on the acreage within 10 crop years after initially tilling the native sod acreage, after the 10th crop year the acreage is no longer subject to the native sod reduction in benefits.

FCIC is revising the definition of “tilled” in the regulation in 7 CFR 407.9 in section 1 and in 7 CFR 457.8 in section 1 to remove the reference to “annual crops” as the native sod provisions are now applicable to any insurable crop rather than just annual crops. FCIC is revising 7 CFR 407.9 section 5(d) and adding a new section 5(f) and 7 CFR 457.8 section 9(e) and adding a new section 9(g) to specify the section applies to native sod acreage that has been tilled and planted during the timeframe of the 2014 Farm Bill until that native sod acreage has reached 4 crop years of planting. The changes also specify the section applies to native sod acreage that has been tilled and planted to an insured crop during 4 cumulative crop years within the first 10 crop years after initial tillage on native sod acreage beginning after December 20, 2018 (the date of enactment of the 2018 Farm Bill).

Section 12306 of the 2018 Farm Bill added a definition of “veteran farmers or ranchers” to the Federal Crop Insurance Act and provided for veteran farmers or ranchers to receive the same benefits as beginning farmers or ranchers. The definition of “veteran farmers or ranchers” is being added in the regulation in 7 CFR 407.9 in section 1 and in 7 CFR 457.8 in section 1. The benefits for a veteran farmer or rancher include:

• Waiving all CAT and additional coverage policy's administrative fees as added in the regulation in 7 CFR 402.4 section 6(c), 7 CFR 407.9 section 7(a)(6)(i), and 7 CFR 457.8 section 7(e)(4)(i);

• Providing additional premium subsidy 10 percentage points greater than the premium subsidy identified in the actuarial documents as added in the regulation in 7 CFR 407.9 section 7(h) and 7 CFR 457.8 section 7(g);

• Allowing use of another person's production history of the specific acreage transferred to the veteran farmer or rancher where the veteran farmer or rancher was previously involved in the decision making or physical activities of a farm or ranch operation insured under CCIP Basic Provisions policies, specifically, FCIC is revising 7 CFR 457.8 section 3(l) to add that notwithstanding any other provision in section 3, if the insured is a veteran farmer or rancher who was previously involved in a farming or ranching operation, including involvement in the decision-making or physical involvement in the production of the crop or livestock on the farm, for any acreage obtained by the veteran farmer or rancher, the veteran farmer or rancher will receive a yield that is the higher of:

○ The actual production history of the previous producer of the crop or livestock on the acreage in which the veteran farmer or rancher was involved; or

○ The applicable transitional yield (T-yield) of the veteran farmer or rancher; and

• Increasing, from 60 to 80 percent of the applicable T-yield, in the substituted yield for yield adjustment when replacing a low actual yield due to an insured cause of loss under CCIP Basic Provisions policies as specified in 7 CFR 457.8 section 36(a)(2).

In addition to changes statutorily mandated by the 2018 Farm Bill mentioned above, FCIC is making discretionary changes to the ARPI Basic Provisions and CCIP Basic Provisions. These changes are described below.

The changes to the policy made in this rule are applicable for the 2020 crop year for crops with a contract change date on or after June 30, 2019. For all crops the changes to the policy made in this rule are applicable for the 2021 and succeeding crop years.

The additional changes to the ARPI Basic Provisions (7 CFR part 407) and the CCIP Basic Provisions (7 CFR part 457) are as follows:

FCIC is revising 7 CFR 407.9 section 2(j) of the ARPI Basic Provisions and 7 CFR 457.8 section 2(e) of the CCIP Basic Provisions to clarify the provision is only applicable to another crop policy with unbilled administrative fees and premium and that loss credits must first be applied to the policy and crop with the associated claim.

FCIC published a final rule on November 24, 2017, (82 FR 55723-55734) that revised section 2(j) of the ARPI Basic Provisions and section 2(e) of the CCIP Basic Provisions to clarify that with the policyholder's consent the premium and administrative fees can be offset from any prevented planting or indemnity due the policyholder even if the offset occurs before the fees are billed. That allowed insurance providers the latitude to contact the policyholder and inquire as to whether the policyholder would agree to have the “unbilled” administrative fees and premium offset from the remaining amount of the loss. In response to the 2017 final rule, FCIC received input from the industry.

Industry input: Comments FCIC received suggested the rule reversed the longstanding position of allowing pre-billing date claim offsets without consent for the same crop. AIPs stated the industry has consistently taken the view that a policyholder's consent is not required in order to perform a claim offset prior to the billing date for the same crop. Additionally, AIPs raised concerns that if consent is required for the same (or any) crop to offset premium, the insured could push to have the claim paid prior to the billing date and file for bankruptcy after the claim is paid, which could prevent AIPs from collecting the premium for the same crop on which it had just paid out a claim.

Response: The provision as currently written could have unintended consequences that could negatively impact producers if we interpret this provision as consent is required for the same (or any) crop to offset premium. This is because the producers have an expectation that their premium will be automatically offset from indemnities for the same crop and may not anticipate paying premium when it is due. If premium is not received timely, producers are placed on the Ineligible Tracking System, which is an electronic system to identify persons who are ineligible to participate in any program as specified in 7 CFR part 400, subpart U.

Therefore, FCIC is revising the provisions as only applicable to another crop policy with unbilled administrative fees or premium and that loss credits must first be applied to the policy or crop with the associated claim.

The specific changes to the Common Crop Insurance Regulations, Basic Provisions (7 CFR part 457) are as follows:

FCIC is revising the provisions in sections 3(f) and (g) regarding assigned yields. The industry has expressed concern regarding assigned yields applying to all units of the crop policy. The assigned yield is a policy-level penalty that occurs when an insured's supporting production records do not match their production certification even when the error only applies to one, or an isolated number of actual production history databases.

Currently, an assigned yield reduces an insured's annual yields for the entire crop year, for all units on the policy, to an assigned yield when any annual yield certified by the insured is incorrect. The assigned yield will not exceed 75 percent of the insured's prior year's approved yield. FCIC is revising the language to limit the assigned yield penalty to only those basic unit(s) effected by the incorrect certification.

FCIC is revising section 3(g)(2) to allow an insured to correct, without penalty, inadvertent errors when certifying production. Inadvertent errors include clear numerical transpositions and similar errors made by an insured when certifying their production reports. There are existing regulatory exceptions for inadvertent errors made by an insured for the application, as well as, exceptions for errors made by USDA or AIPs for production reporting. This change also allows an exception for inadvertent producer errors that occur when a producer certifies their production reports.

FCIC is adding a new section 4(d) and revising section 33 to allow that when changes are made to the policy provisions, AIPs will send the changes electronically to the policyholder rather than as a hard copy. Currently a policyholder may individually elect to receive these documents electronically. FCIC is revising the provisions to state all policy provisions, notices, and communications required to be sent by the AIP to the policyholder will be provided by electronic means, unless the AIP does not have the ability to transmit such information to the policyholder by electronic means or the policyholder elects to receive a paper copy of such information. Therefore, FCIC is adding a new section 4(d) to specify that not later than 30 days prior to the cancellation date for the insured crop that the policyholder will be provided, in accordance with section 33, a copy of the changes to the Basic Provisions, Crop Provisions, Commodity Exchange Price Provisions, if applicable, and Special Provisions. In addition, FCIC is adding a new section 4(e) to specify that acceptance of the changes will be conclusively presumed in the absence of notice from the policyholder to change or cancel insurance coverage. FCIC will also make changes accordingly to the notices required in section 33. These changes will reduce the burden of excess distribution of paper policy materials while still allowing policyholders the option to elect to receive a paper copy.

FCIC is removing the provisions in section 5 regarding exclusion of yields and moving the provisions to section 36 of the revised CCIP Basic Provisions.

Because of the various changes to section 36, FCIC is changing the section heading to “Changes to Yields” as this section will now contain provisions regarding substitution of yields, exclusion of yields, and yield cups. FCIC is moving the provisions regarding exclusion of yields that were previously contained in section 5 to section 36(b).

In general, the Administrative Procedure Act (APA, 5 U.S.C. 553) requires that a notice of proposed rulemaking be published in the Federal Register for interested persons to be given an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation and requires a 30-day delay in the effective date of rules, except when the rule involves a matter relating to public property, loans, grants, benefits, or contracts. This rule involves matters relating to contracts and therefore the requirements in section 553 do not apply.

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) normally requires that an agency delay the effective date of a major rule for 60 days from the date of publication to allow for Congressional review. This rule is not a major rule under SBREFA (Pub. L. 104-121). Therefore, RMA is not required to delay the effective date for 60 days from the date of publication to allow for Congressional review.

This final rule is effective June 30, 2019. Although not required by APA, RMA has chosen to request comments on this rule.

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” 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 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” established a federal policy to alleviate unnecessary regulatory burdens on the American people.

The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866, “Regulatory Planning and Review,” and therefore, OMB has not reviewed this rule.

Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” requires that in order to manage the private costs required to comply with Federal regulations that for every new significant or economically significant regulation issued, the new costs must be offset by the elimination of at least two prior regulations. As this rule is designated as not significant, it is not subject to Executive Order 13771.

Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on this rule, we invite your comments on how to make the rule easier to understand. For example:

• Are the requirements in the rule clearly stated? Are the scope and intent of the rule clear?

• Does the rule contain technical language or jargon that is not clear?

• Is the material logically organized?

• Would changing the grouping or order of sections or adding headings make the rule easier to understand?

• Could we improve clarity by adding tables, lists, or diagrams?

• Would more, but shorter, sections be better? Are there specific sections that are too long or confusing?

• What else could we do to make the rule easier to understand?

The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by SBREFA, generally requires an agency to prepare a regulatory analysis of any rule whenever an agency is required by APA or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is not subject to the Regulatory Flexibility Act because as noted above, this rule is exempt from APA and no other law requires that a proposed rule be published for this rulemaking initiative.

In general, the environmental impacts of rules are to be considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347) and the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508). FCIC conducts programs and activities that have been determined to have no individual or cumulative effect on the human environment. As specified in 7 CFR 1b.4, FCIC is categorically excluded from the preparation of an Environmental Analysis or Environmental Impact Statement unless the FCIC Manager (agency head) determines that an action may have a significant environmental effect. The FCIC Manager has determined this rule will not have a significant environmental effect. Therefore, FCIC will not prepare an environmental assessment or environmental impact statement for this action and this rule serves as documentation of the programmatic environmental compliance decision.

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by 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 State and local government coordination and review of proposed Federal financial assistance and direct Federal development. For reasons specified in the final rule related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities in this rule are excluded from the scope of Executive Order 12372.

This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. Before any judicial actions may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR part 11 are to be exhausted.

This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government, except as required by law. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

This rule has been reviewed in accordance with the requirements of 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 or 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.

FCIC has assessed the impact of this rule on Indian Tribes and determined that this rule does not, to our knowledge, have Tribal implications that require Tribal consultation under E.O. 13175. The regulation changes do not have Tribal implications that preempt Tribal law and are not expected have a substantial direct effect on one or more Indian Tribes. If a Tribe requests consultation, FCIC will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided where changes and additions identified in this rule are not expressly mandated by the 2018 Farm Bill.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions of State, local, and Tribal governments or the private sector. Agencies generally must prepare a written statement, including cost benefits analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates, as defined in Title II of UMRA, for State, local, and Tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

The title and number of the Federal Domestic Assistance Program listed in the Catalog of Federal Domestic Assistance to which this rule applies is No. 10.450—Crop Insurance.

In accordance with the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, subchapter I), the rule does not change the information collection approved by OMB under control numbers 0563-0053 and 0563-0083.

FCIC is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

For the reasons discussed above, FCIC amends 7 CFR parts 402, 407, and 457, effective for the 2020 crop year for crops with a contract change date on or after June 30, 2019, and for the 2021 and succeeding crop years for all other crops, as follows:

This action makes corrections to Marketing Order 989, as amended, (7 CFR part 989) (referred to as the “marketing order”). The amendments will have no substantive impact and are of a minor and administrative nature dealing with deletion of a duplicate occurrence of a word and standardizing the use of hyphenation. The amendments are effective July 1, 2019. These amendments do not require action by any person or entity regulated by the marketing order.

For the reasons set forth in the preamble, 7 CFR part 989 is corrected by making the following correcting amendments:

Discussion

On November 19, 2018 at 83 FR 58191, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Model MBB-BK 117 C-2 helicopters with certain parts installed. The NPRM proposed to require establishing and reducing the life limit of the following parts: Main rotor head—nut, upper and lower quadruple nut, bolts, and inner sleeve; swash plate control ring assembly; rotor flight control collective bellcrank-K; cyclic control rod tube; and upper control forked lever. The proposed requirements were intended to prevent a part remaining in service beyond its fatigue life, which could result in failure of a part and loss of control of the helicopter.

The NPRM was prompted by EASA AD No. 2017-0174, dated September 12, 2017 (EASA AD 2017-0174), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Model MBB-BK 117 C-2 helicopters. EASA advises that recalculation by Airbus Helicopters has resulted in new or reduced life limits for certain parts. EASA AD 2017-0174 states the life limits are mandatory for continued airworthiness and failing to replace life-limited parts as specified could result in an unsafe condition. To address this condition, EASA AD 2017-0174 requires replacing the affected parts before exceeding their new or reduced life limit.

We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to our bilateral agreement with the European Union, EASA has notified us of the unsafe condition described in its AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type designs and that air safety and the public interest require adopting the AD requirements as proposed except for minor editorial changes. “Bellcrank-K (collective) (4)” was listed in Table 1 to paragraph (e) of this AD, but should have been “Bellcrank-K (collective)” instead. The cost of the parts listed in the Costs of Compliance section have also been updated to reflect current market prices. The updated costs are considered non-substantial. These minor editorial changes are consistent with the intent of the proposals in the NPRM and will not increase the economic burden on any operator nor increase the scope of this AD.

We reviewed Airbus Helicopters Alert Service Bulletin ASB MBB-BK117 C-2-04A-008, Revision 0, dated April 27, 2017, for Model MBB-BK 117 C-2 and C-2e helicopters. This service information specifies entering into the helicopter records the reduced and new airworthiness life limits for certain part-numbered main rotor head, swash plate, rotor flight controls, cyclic controls, and upper controls parts.

We estimate that this AD affects 128 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. Labor costs average $85 per work-hour.

Replacing a nut takes about 5 work-hours and parts cost about $3,736 for an estimated replacement cost of $4,161.

Replacing a quadruple nut upper takes about 5 work-hours and parts cost about $3,682 for an estimated replacement cost of $4,107.

Replacing a quadruple nut lower takes about 5 work-hours and parts cost about $3,819 for an estimated replacement cost of $4,244.

Replacing a bolt takes about 2 work-hours and parts cost about $418 for an estimated replacement cost of $588.

Replacing an inner sleeve takes about 2 work-hours and parts cost about $20,826 for an estimated replacement cost of $20,996.

Replacing a control ring assembly takes about 5 work-hours and parts cost about $11,500 for an estimated replacement cost of $11,925.

Replacing a bellcrank-K (collective) takes about 4 work-hours and parts cost about $3,400 for an estimated replacement cost of $3,740.

Replacing a control rod tube takes about 4 work-hours and parts cost about $1,197 for an estimated replacement cost of $1,537.

Replacing a forked lever takes about 3 work-hours and parts cost about $6,138 for an estimated replacement cost of $6,393.

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.

We are 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 helicopters identified in this rulemaking action.

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 above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We 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:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Leonardo S.p.A. Model AB139 and AW139 helicopters. The NPRM published in the Federal Register on July 19, 2018 (83 FR 34072). The NPRM was prompted by a report that some screws may have been manufactured without meeting specifications. The NPRM proposed to require replacing screws installed on the left and right MLG shock absorber assembly.

We are issuing this AD to address an MLG shock absorber screw that does not meet specifications. This condition could result in failure of the MLG shock absorber, collapse or retraction of the MLG, and subsequent damage to the helicopter.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2016-0077, dated April 19, 2016, to correct an unsafe condition for Finmeccanica S.p.A. (previously Agusta) Model AB139 and AW139 helicopters if equipped with kit “Increased Gross Weight 6800 kg” part number (P/N) 4G0000F00111 (kit). EASA advises of a manufacturing issue with the standard screws (P/N NAS1351-5H12P) installed on MLG shock absorber assembly P/N 1652B0000-01. According to EASA, a material analysis shows that the MLG shock absorber screws may have a lower fatigue life than the screws used during the certification fatigue tests. EASA states the affected MLG units have been identified by serial number (S/N). EASA also advises that this unsafe condition, if not detected and corrected, could result in failure of the MLG shock absorber, collapse or retraction of the MLG, and subsequent damage to the helicopter and injury to occupants.

To correct this condition, the EASA AD requires replacing each standard screw with a new screw P/N 1652A0001-01 and re-identifying the S/N of each MLG shock absorber assembly that has the new screw installed, and prohibits installing any affected MLG shock absorber assembly unless the screw has been replaced.

We gave the public the opportunity to participate in developing this final rule, but we did not receive any comments on the NPRM.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to our bilateral agreement with the European Union, EASA has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed except for a minor editorial change to meet current publishing requirements. In the Required Actions paragraph, instances of “Figure 1 to paragraph (a)” have been changed to “Figure 1 to paragraphs (a) and (e)(2).” This minor editorial change is consistent with the intent of the proposals in the NPRM and will not increase the economic burden on any operator nor increase the scope of this AD.

We reviewed Finmeccanica Bollettino Tecnico No. 139-397, dated April 7, 2016, which contains procedures for replacing the standard screws installed on the left and right MLG assembly and for re-identifying the MLG shock absorber assembly P/N and the MLG assembly S/N.

We estimate that this AD affects 111 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD, based on an average labor rate of $85 per work-hour.

Replacing the screws on the left and right MLG assemblies requires about 16 work-hours and $200 for parts, for a total cost of $1,560 per helicopter and $173,160 for the U.S. fleet.

According to Finmeccanica's service information, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage by Finmeccanica. Accordingly, we have included all costs in our cost estimate.

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.

We are 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.

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 above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

Electronic Availability

This document and additional information concerning OFAC are available from OFAC's website ( www.treasury.gov/ofac ).

On March 5, 2018, OFAC amended and reissued in their entirety the North Korea Sanctions Regulations, 31 CFR part 510 (the “Regulations”) (83 FR 9182, March 5, 2018). Since that time, for clarity, OFAC has made two technical changes to certain text that appears on OFAC's website and that is referenced in the Regulations. This rule conforms the corresponding references in the Regulations to accurately reflect the amended website text.

First, this rule updates references to descriptive text that appears in certain entries on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List). This descriptive text provides additional information concerning secondary sanctions related to Executive Order 13810 of September 20, 2017 (“Imposing Additional Sanctions With Respect to North Korea”) (82 FR 44705, September 25, 2017) (E.O. 13810). Section 4 of E.O. 13810 authorizes the Secretary of the Treasury, in consultation with the Secretary of State, to impose certain sanctions (often referred to as secondary sanctions) on any foreign financial institution determined by the Secretary of the Treasury, in consultation with the Secretary of State, to meet certain specified criteria. With respect to a foreign financial institution determined to meet any of the relevant criteria, the Secretary of the Treasury, in consultation with the Secretary of State, may: (i) Prohibit the opening and prohibit or impose strict conditions on the maintenance of correspondent accounts or payable-through accounts in the United States with respect to such foreign financial institution; or (ii) block all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any U.S. person of such foreign financial institution. These prohibitions are implemented in §§ 510.210 and 510.201(a)(3)(vi) of the Regulations, respectively.

Sections 510.201(a)(3)(vi)(A)( 1 ) and 510.210(b)(1) provide that the Secretary of the Treasury, in consultation with the Secretary of State, may impose such sanctions on any foreign financial institution determined by the Secretary of the Treasury, in consultation with the Secretary of State, to have, on or after September 21, 2017, knowingly conducted or facilitated any significant transaction on behalf of (1) any person whose property and interests in property are blocked pursuant to Executive Order 13551 (“Blocking Property of Certain Persons With Respect to North Korea”) (75 FR 53837, September 1, 2010) (E.O. 13551), Executive Order 13687 (“Imposing Additional Sanctions With Respect to North Korea”) (80 FR 819, January 6, 2015) (E.O. 13687), Executive Order 13722 (“Blocking Property of the Government of North Korea and the Workers' Party of Korea, and Prohibiting Certain Transactions With Respect to North Korea”) (81 FR 14943, March 18, 2016) (E.O. 13722), or E.O. 13810, or (2) any person whose property and interests in property are blocked pursuant to Executive Order 13382 (“Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters”) (70 FR 38567, July 1, 2005) (E.O. 13382) in connection with North Korea-related activities. Note 3 to paragraph (a) of § 510.201 and Note 1 to paragraph (b) of § 510.210 explain that the names of persons listed in or designated or identified pursuant to E.O. 13382 in connection with North Korea-related activities are published in the Federal Register and incorporated into OFAC's SDN List with the identifier “[NPWMD]” and descriptive text “Executive Order 13810 Information: Subject to blocking in connection with North Korea-related activities.”

Since the publication of the Regulations, however, OFAC has revised this descriptive text and included it in each SDN List entry that meets the criteria contained in sections 510.201(a)(3)(vi)(A)( 1 ) and 510.210(b)(1) in order to more clearly alert foreign financial institutions to attendant secondary sanctions risks. The revised descriptive text is “Secondary sanctions risk: North Korea Sanctions Regulations, §§ 510.201 and 510.210.” On October 4, 2018, by separate action, OFAC incorporated this new descriptive text in the relevant entries on the SDN List of 371 persons whose property and interests in property are blocked pursuant to E.O.s 13551, 13687, 13722, or 13810 and 91 persons whose property and interests in property are blocked pursuant to E.O. 13382.

This rule amends the Regulations to conform corresponding references in the two specified notes to the new descriptive text language. This rule also corrects an incorrect regulatory citation in Note 3 to paragraph (a) of § 510.201.

Second, this rule updates references to the name of one of OFAC's sanctions lists. As noted above, § 510.210 of the Regulations provides for the imposition of strict conditions or prohibitions on the opening or maintaining of correspondent accounts or payable-through accounts in the United States for a foreign financial institution that the Secretary of the Treasury, in consultation with the Secretary of State, determines knowingly engaged in specified activities. When the Regulations were reissued on March 5, 2018, Note 2 to § 510.210 explained that the names of foreign financial institutions for which the opening or maintaining of a correspondent account or a payable-through account in the United States is prohibited or for which the maintenance of a correspondent account or payable-through account is subject to one or more strict conditions will be, among other things, added to the “Correspondent Account or Payable-Through Account Sanctions (CAPTA) List” on OFAC's website ( www.treasury.gov/ofac ). Section 510.519, which authorizes U.S. financial institutions to engage in certain limited transactions related to closing correspondent accounts for foreign financial institutions on the CAPTA List, also contains a full reference to the “Correspondent Account or Payable-Through Account Sanctions (CAPTA) List.”

Since March 5, 2018, however, for additional consistency and clarity, OFAC has revised the name of the Correspondent Account or Payable-Through Account Sanctions (CAPTA) List as follows: “List of Foreign Financial Institutions Subject to Correspondent Account or Payable-Through Account Sanctions (CAPTA List).” This rule amends the Regulations to update the two specified references to the CAPTA List to correspond to the revised name.

Because the amendment of the Regulations involves a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, as well as the provisions of Executive Order 13771, are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control amends 31 CFR part 510 follows:

We did not publish a notice of proposed rulemaking for this rule. Under Title 5 of the United States Code (U.S.C.), Section 553(b)(A), the Coast Guard finds that this final rule is exempt from notice and public comment rulemaking requirements because these changes involve rules of agency organization, procedure, or practice. In addition, the Coast Guard finds that notice and comment procedures are unnecessary for this final rule under 5 U.S.C. 553(b)(B), as this rule consists of only technical and editorial corrections and these changes will have no substantive effect on the public. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same reasons, good cause exists for making this final rule effective upon publication in the Federal Register .

This final rule, which becomes effective on June 28, 2019, makes technical and editorial corrections throughout titles 33 and 46 of the Code of Federal Regulations (CFR). These changes are necessary to correct errors, change addresses, and make other non-substantive amendments that improve the clarity of the CFR. This rule does not create or change any substantive requirements.

This final rule is issued under the authority of 5 U.S.C. 552(a) and 553; 14 U.S.C. 102 and 503; 33 U.S.C. 151, 499, 521, 2071, and 2735; 46 U.S.C. 2103, 3306, 3703, 5104, 6101, 7701, 70001, 70034, 70041(a), and 70114; and Department of Homeland Security Delegation No. 0170.1.

The Coast Guard periodically issues technical, organizational, and conforming amendments to existing regulations in titles 33 and 46 of the CFR. These “technical amendments” provide the public with more accurate and current regulatory information, but do not change the effect on the public of any Coast Guard regulations.

This rule amends § 1.08-1(a)(11) by replacing an incorrect cross-reference to “33 CFR 88.05(h)” with the correct citation “33 CFR 83.01(g),” which contains the requirement that certain vessels carry a copy of the inland navigation rules. The 2014 “Changes to the Inland Navigation Rules” (79 FR 37898, July 2, 2014) amended § 88.05 so that it contains the rules for lights on law enforcement vessels. The 2014 “Changes to Inland Navigation Rules” also moved the “Copy of the Rules” requirement previously housed in § 88.05 to § 83.01(g), which states that operators of self-propelled vessels 12 meters or more in length must carry on board a copy of the inland navigation rules in part 83.

This rule corrects the authority citation for part 26 and also revises § 26.08(a) to reflect the organizational change in office name from Assistant Commandant for “Marine Safety, Security and Environmental Protection” to Assistant Commandant for “Prevention Policy.”

In § 80.750(b) and (f), this rule removes references to La Costa Test Pile North Light and Big Sarasota Pass Light 14, respectively, because these lights no longer exist. The Coast Guard replaces these references with exact coordinates to clarify the demarcation lines for the 72 International Regulations for Preventing Collisions at Sea (COLREGS) navigation rules.

The changes in § 80.753(a) and (d) include edits to the descriptions of the landmarks used in the COLREGS demarcation lines. These changes will align this section's descriptions of the lines with the rest of the section's descriptions by describing each demarcation as a line heading from south to north. In addition, the edits to this section clarify the points of demarcation by adding descriptive words like “jetty.” The Coast Guard also replaces a reference to “Light 7” in § 80.753(d) to “Light 3” because Light 7 was renamed Light 3. The final change in § 80.753(d) replaces the demarcation point, the Anclote River Cut B Range Rear Light, with the exact coordinates of that location on Anclote Key because the Anclote River Cut B Range Rear Light no longer exists for our demarcation purposes.

This rule deletes the demarcation points in § 80.810(c) and (d) because a National Oceanic Atmospheric Administration cartographer notified the Coast Guard that the “northernmost extremity” on Crooked Island and Shell Island no longer exist due to water movement over the land. The water moved over the landmasses so that the COLREGS waters in this location are closed off from the inland waters. The Coast Guard is deleting the references to these two demarcation points that no longer exist to provide accurate information to the public and to conform the regulations to fit the geography of the area as it currently exists.

The changes in §§ 81.3, 81.5(a), 81.9, 89.3, 89.5, and 89.9 replace all references to the “Marine Safety Division” to reflect an organizational change to its current office name, which is “Prevention Division.”

In § 83.24(h), this rule adds “shapes” to the inland navigation rule for towing vessels to align the regulations with the 72 COLREGS, which is implemented in this part. This section refers the reader to § 83.24(e) and (g) for certain light and shape display requirements and both referenced paragraphs include light and shape display requirements for towing vessels to indicate the presence of a vessel or object. The 72 COLREGS allow exceptions for both lights and shapes display requirements when compliance with the rules is impossible, and this section implements that exception. Although we inadvertently omitted references to the shapes, we have always applied these regulations to both lights and shapes.

In §§ 83.26(f)(1), and 83.27(d)(iv)(1)(B) and (2)(A), this rule replaces “all around” with “all round” to match the spelling to the 72 COLREGS, which are implemented in these sections.

In § 83.26(f)(ii)(2)(B), this rule updates an incorrect cross-reference to the appropriate paragraph. The cross-reference this rule updates is for the light signal that fishing vessels must display when shooting or hauling their nets, or when their nets come upon an obstruction. These lighting requirements are listed in paragraph (f)(ii)(1) of this section, instead of paragraph (a).

This rule amends § 89.27(a) and (b) and the header to § 89.27 by updating all cross-references to “Inland Rule 24(i)” to the correct citation, “Inland Rule 24(j).” This edit comes as a result of the 2017 Technical Amendments final rule (82 FR 35073, 35080, July 28, 2017) that changed the citation in 33 CFR 83.24 (Inland Rule 24).

This rule adds subparts A through J to 33 CFR part 100 to organize the permanent and temporary special local regulations (SLRs) by their Coast Guard district. We are adding subparts with the districts' titles to improve the organization and readability of this section. When the Coast Guard issues a permanent SLR within District 17 in 33 CFR part 100, we will add sections to subpart J for District 17 at that time. The following table shows the organizational changes:

Previously, the SLRs' section number was the mechanism that organized the SLRs in part 100 by district number. However, part 100 did not explicitly call attention to the fact that the section number correlated with the Coast Guard district, making it an ineffective organization tool for the public to use. In the “General” provisions subpart, this rule also adds § 100.35(d), which contains a description of how 33 CFR part 100 is organized by district.

This rule corrects the names of the drawbridges in §§ 117.149 and 117.163(b) from 3rd Street and 4th Street drawbridges to Third Street and Fourth Street drawbridges.

In § 117.175(b), we put the word “counties” in lowercase to fix a capitalization errors.

Also in § 117.193, we change the words “highway” and “bicycle” to lowercase to fix capitalization errors.

In § 117.523, this rule corrects the name and mile marker for the Barter's Island Bridge on the Back River in Maine from “Maine Department of Transportation highway bridge, mile 4.6” to “Barter's Island Bridge, mile 2.0.”

This rule assigns the content that was in § 117.622 into § 117.621. This rule also reassigns content that was in § 117.621 into § 117.622 and renames the section header of § 117.622 to “Weymouth Fore River.” These revisions restore alphabetical order to part 117 after “Fore River” was renamed as “Weymouth Fore River.”

This rule amends § 117.755 by updating the bridge name from “Monmouth Country highway bridge” to its new name “Sea Bright Bridge.” In § 117.791(c) this rule updates the name of the “CSX Transportation bridge” to its new name, “Livingston Ave (Amtrak) Bridge.” In § 117.791(d) this rule updates the name of the “state highway bridge” to its new name, “Troy-Menands Bridge.” In § 117.791(e), this rule updates the name of the “highway bridge” to its new name, “Troy-Green Bridge.”

In § 151.1021(b)(1), this rule updates the title of the Assistant Commandant for Prevention Policy because the text omitted “Policy” from the command's name.

This rule revises §§ 151.1513 and 151.2036 by providing an email address to accommodate email delivery of extension requests for ballast water management systems under those sections.

This rule amends § 151.2005 by removing the definition of “International Maritime Organization (IMO) ballast water management guidelines” because it is no longer used in part 151 nor in practice. The Coast Guard stopped using the IMO ballast water standards because the standards were replaced by the International Convention for the Control and Management of Ships' Ballast Water and Sediments on September 8, 2017, and the United States is not a party to the Convention. In order to avoid confusion and conform with the updated standards, we are deleting the IMO ballast water management guidelines definition in this part.

This rule updates a Coast Guard website address in § 151.2005, within the definition of Shipboard Technology Evaluation Program (STEP), where the public can view the STEP guidance and applications.

In § 151.2026(b) we added an email address as an alternate way for the public to submit requests for determinations to the Marine Safety Center.

In § 151.2065, this rule updates the office names for Environmental Standards Division from “CG-05224” to “(CG-OES-3)” and also updates the title of the Assistant Commandant for Prevention Policy (CG-5P) from its previous title, “Assistant Commandant for Maritime Safety, Security, and Stewardship (CG-5)” to conform with organizational name changes.

This rule revises the definition sections in both §§ 154.1020 and 155.1020 by replacing the definition for “Dispersant Mission Planner 2 or (DMP2)” with the definition for “Estimated Dispersant System Potential Calculator (EDSP).” The Estimated Dispersant System Potential Calculator was developed as revision 1 of the DMP2 because the DMP2 programming environment was outdated and was no longer supported on any system. DMP2 is no longer available for use, and the EDSP is the current program used by the industry. The basic algorithms used in the DMP2 are the same in the EDSP, so there is no change in the public's expectations or requirements. We are updating these definition sections to conform to the technology currently used by industry and accepted by the Coast Guard. For the same reasons, this rule replaces all references to “Dispersant Mission Planner 2” or “DMP2” with “Estimated Dispersant System Potential Calculator” and “EDSP” in § 154.1045(i)(2)(ii); Appendix C to part 154, paragraphs 8.2.1.2 and 8.2.3(i); § 155.1050; and Appendix B to part 155, paragraphs 8.2.1.2 and 8.2.3(i).

In § 156.210(b), this rule replaces the out-of-date office contact “CG-5” with “CG-ENG” because CG-ENG is the correct office for the public to submit requests to use lighter hazardous materials other than oil.

In § 161.2, titled “Definitions”, this rule inserts the definitions for “Center” and “Published” that were previously located in a second separate definitions section in § 161.17. We are moving these two definitions into § 161.2 so that all the definitions for this part can be found in the same place. The definitions are unchanged. The Coast Guard also corrects a capitalization error in § 161.2.

In §§ 161.2, 161.12, Note 6 to Table 1 to § 161.12(c), Table 161.70(d), and Table 161.70(f), the Coast Guard is replacing all references to “sector” with “zone” to avoid confusion with sector commands and conform with the current practice to call these areas “zones”. In addition, in Table 1 to § 161.12, this rule replaces the reference to the “Strait of Juan de Fuca” with “Salish Sea,” which is the new name for that body of water.

In § 161.4, this rule provides a web address to access the Vessel Traffic Services User Manual.

In § 161.5(b) we remove the text “Vessel Traffic Center” and leave only the acronym, “VTC” because we moved the definition and initial introduction to the acronym to § 161.2, which precedes this reference.

This rule corrects a typographical error in line 12 of Table 1 to § 161.12(c) by removing the apostrophe in “St. Mary's.” The name of the river, St. Marys River, has been without a possessive apostrophe since 1982.

The Coast Guard deletes § 161.17 and moves the section's definitions for “Center” and “Published” to § 161.2 where all the other definitions applicable to this part are listed.

The Coast Guard is correcting an erroneous edit made to § 161.55(c)(3) by a technical and conforming amendment final rule in 2014 (79 FR 38421). The 2014 technical amendment final rule unintentionally changed the type of vessel exempted from the regulations from vessels of less than 100 meters to vessels greater than 100 meters in length, while saying the “changes are editorial and do not alter the VTS Special Area Operating Requirements prescribed in 33 CFR 161.55(c)” (79 FR 38424). This provision's original purpose was, and is, to exempt smaller vessels from the regulations intended to help the larger commercial vessel industry safely navigate the narrow and tricky waters of Puget Sound. It was never the Coast Guard's intent to exempt larger vessels from the precautions put in place for their benefit. Therefore, the Coast Guard is revising the text in § 161.55(c)(3) from exempting vessels greater than 100 meters in length to how it was written before the 2014 Technical Amendment final rule, in order to exempt only vessels of less than 100 meters from certain requirements in that part. The inaccurately edited rule has not been enforced according to how it was rewritten. Instead, the Coast Guard acknowledged the mistake and continued its exemptions for vessels less than 100 meters only. This clarifying technical amendment will not result in a change in expectations or obligations based on how § 161.55(c)(3) has always been enforced.

In § 164.72(b)(2)(ii)(C), the text “the ACOE or” is removed as a source for river current tables because the United States Army Corps of Engineers (ACOE) no longer issues river current tables. The alternate river current issuing authority already listed in this section is “a river authority.” We are removing the ACOE as a river authority to reduce confusion. The requirements of the section are unchanged. This rule also corrects a punctuation error in § 164.72(b)(2)(ii)(C).

In § 2.01-7, Table 2.01-7(a), under the fourth column covering “Vessels inspected and certificated under Subchapter I—Cargo and Miscellaneous Vessels,” on line (2) entitled “Motor, seagoing motor vessels ≥300 gross tons”, the Coast Guard is removing a comma that was erroneously added by a technical amendment so that it is clearer that these regulations apply to the regulated vessels even when they are not engaged in trade. This rule removes the second comma in the following sentence in Table 2.01-7(a): “All vessels, including recreational vessels, not engaged in trade.” In 2009, we issued a rule that was intended to only make non-substantive changes related to the definition of “ferry” in 46 CFR, but in the process, that technical and conforming amendment rule (74 FR 63617, December 4, 2009) inserted an extra comma in the sentence quoted above. The comma unintentionally altered the meaning of the sentence, so that in both tables instead of covering all vessels “including recreational vessels not engaged in trade,” the sentence with two commas now may be read to include a vessel only if it was not engaged in trade—regardless of the nature of the vessel, recreational or commercial. This erroneous comma introduced by the 2009 technical amendment went unnoticed again in 2013, when we included the comma in Table 2.01-7(a) in a final rule titled “Seagoing Barges” (78 FR 53285, August 29, 2013). Neither the 2009 technical amendment nor the 2013 “Seagoing Barges” final rule mentioned any intention of substantively changing column 4 of Table 2.01.7(a) to cover vessels only when they were engaged in trade, nor did the Coast Guard ever enforce it that way.

This rule updates the delivery mailing addresses for payment by check in § 2.10-20(d)(1)(ii) through (iii) and 2.10-20(d)(2)(ii) through (iii).

In § 10.203(a), this rule deletes paragraph (a), and redesignates paragraphs (b) through (d) as (a) through (c). Section 10.203(a) stated that until April 15, 2014, mariners with a merchant mariner document or similar license with a restriction on it did not have to carry a merchant mariner credential (MMC), as required by this chapter. Since April 15, 2014 has passed, all mariners required to hold a license or endorsement must hold an MMC. As a result, the Coast Guard is deleting the obsolete grandfathering clause in § 10.203(a) to conform to the current regulations and to avoid confusion.

In § 10.209(d), this rule adds a cross-reference that was inadvertently left out of the initial rulemaking. Section 10.209(d) describes the methods of submitting an MMC application and points the public to various sections that describe a complete MMC application. This rule adds § 10.223 to the list of sections that describe a complete MMC package. Section 10.223 contains the requirements for an application to modify or remove limitations on MMC endorsements, such as tonnage limitations or geographical route restrictions. We are adding this section to the list of references describing complete applications to be comprehensive in pointing to all types of complete applications, which was the intent of this section. In the supplemental notice of proposed rulemaking titled “Consolidation of Merchant Mariner Qualification Credentials” (72 FR 3605, January 25, 2007), we describe why we did not include the reference originally in § 10.209(d). For that section, we decided to separate the original application requirements from the renewal requirements because “[w]hen we attempted to list all of the requirements for originals that renewals, duplicates and/or raises in grade are exempted from, we found the maze of cross-references to be needlessly confusing” (72 FR 3631, January 25, 2007). We unintentionally omitted the reference to § 10.223 for modifying the scope or limitations and adding the reference to § 10.209(d) will not change the requirements for modifying or removing limitations or the scope of a MMC.

This rule amends § 10.221(b) by removing the reference dates, “Beginning April 15, 2009,” and “Until April 15, 2009, proof of citizenship or alien status must be submitted by appearing at a Regional Exam Center” because these provisions are no longer applicable after the referenced date. What remains in § 10.221(b) after this amendment is the longstanding requirement that proof of citizenship must be submitted to the Transportation Security Administration with the applicant's Transportation Worker Identification Credential application in accordance with 49 CFR 1572.17(a)(11). The requirements of this section remain unchanged by this amendment.

In § 10.229(b), this rule deletes the second and third sentences because they reference what the Coast Guard will issue for duplicate credentials up until April 15, 2014. Because the provision is no longer applicable after the referenced date, the Coast Guard is removing this obsolete provision.

In §§ 10.232(e)(1), 10.232(e)(2)(i), 11.211(c)(2), 11.301(b)(1), 11.430(e), and 11.465(a), this rule removes all references in the text to “upgrade,” “raise-of-grade,” or “raise in grade” and replaces them with the text “raise of grade” to standardize the terminology through these sections and eliminate any ambiguity that could result from having three references with an identical meaning. In Table 1 to § 10.239, the Coast Guard is replacing all references to “§ 12.601(c)” with “§ 12.602(a)” within the “First aid and CPR” column to revise an incorrect cross-reference. Section 12.602(a) contains the standards of competence for basic training, including first aid training, that STCW endorsement applicants must meet for the listed STCW endorsements in Table 1 to § 10.239.

This rule removes from title 46 the grandfathering provisions in § 10.301(g)(1), (2), (3), and (5) because the delayed implementation date or final date for using these provisions as alternate means of compliance expired on January 1, 2017. Section 10.301(g)(1) stated that all candidates who apply for a MMC with seagoing service or training performed on or after March 24, 2014 or who apply for the MMC after January 1, 2017 have to comply with the requirements of this section. Since the date for when the section became applicable to all applicants passed on January 1, 2017, the grandfathering provision has not been available. All applicants must meet the requirements of this section and the grandfathering provision is obsolete because any new applicant will not be able to invoke the provision. Enough time has passed that the Coast Guard believes that the provision is no longer applicable to any mariner or Coast Guard-approved courses, programs, or training. To avoid misunderstanding on the requirements of this section, we are removing these obsolete provisions from the regulations.

In § 10.305(a)(2), the Coast Guard is removing the qualifier for “After January 1, 2017” because the referenced date has passed and all applicants for STCW endorsements under this part should be in compliance with this section. The grandfathering deadline is no longer relevant to this part since all are required to meet the vision requirements outlined in this section. Additional changes made by this rule to § 10.305(a)(2) include replacing “meets” with “previously met” because it is unlikely that a mariner meets the vision requirements and suffers vision loss at the same time. The Coast Guard is changing the language to past tense to undo this anomaly and avoid confusion. There is no change in the vision requirements in § 10.305(a)(2) as a result of this technical amendment.

Moreover, in § 10.305(c) this rule replaces an outdated reference to the “MMC” with “medical certificate” to conform with the National Maritime Center's actual practice to place the vision waiver limitation on the medical certificate, rather than the MMC. The misalignment between the inaccurate regulation and actual practice caused confusion for the affected population, so we are conforming the text to correctly state that the vision waiver limitation should be placed on the medical certificate.

This rule removes from title 46 the grandfathering provision in § 10.410(f) because the delayed implementation date or final date for using them as means for alternate compliance expired on January 1, 2017. Section 10.410(f) stated that all Coast Guard-approved STCW endorsement courses, programs, and training had to meet the requirements of part 10 by January 1, 2017. This reference date has passed and all courses must be in compliance. These provisions are no longer applicable to any mariner or Coast Guard-approved courses, programs, or training. To avoid misunderstandings on the requirements of this section, we are removing these obsolete provisions from the regulations.

In § 10.402(b), this rule updates the subject office name from “Office of Vessel Activities (CG-CVC)” to “Office of Merchant Mariner Credentialing” to reflect organizational changes. Within this same section, this rule edits the final sentence to say “and include the following:” to start the list of items that must be included in a curriculum package.

This rule corrects a cross-reference in § 11.201(b) by replacing § 11.467(i) with 11.467(h) as the exception to the requirement that mariners must be proficient in the English language. Section 11.467(i) does not exist. The correct paragraph (h) states that applicants for operator of uninspected passenger vessels of less than 100 GRT who speak Spanish, but not English, may operate in the vicinity of Puerto Rico.

This rule removes the grandfathering provisions from § 11.301(g)(1) through (5) because the established date has already passed and all renewals and new candidates for mariner credentials must now meet the requirements of part 11. Paragraphs (g)(1) through (5) in § 11.301 permitted the Coast Guard to issue STCW endorsements that met the older requirements of this part before it was amended on March 24, 2014, until January 1, 2017. Because January 1, 2017, has passed, the Coast Guard can no longer issue the certifications under previous versions of the rules. The grandfathering provisions in § 11.301(g)(1) exempted candidates who started training and sea service before March 24, 2014 from certain requirements in part 11 until January 1, 2017. Paragraph (g)(1) explicitly states that all mariner applications for credentials under part 11 must comply with the requirements of this part after January 1, 2017. Also, this final rule removes the second grandfathering provision in § 11.301(g)(2) that exempted seafarers holding an STCW endorsement prior to March 24, 2014, from having to complete any additional training until January 1, 2017. Because the referenced date has passed, mariners can no longer use this training exemption. The removal of these grandfathering provisions will have no effect on any mariner because, according to the text, all mariners applying for, renewing, or upgrading credentials after January 1, 2017 must comply with the current requirements of part 11.

In §§ 11.305, 11.307, 11.311, and 11.313, this rule replaces all references to “shiphandling” with “ship handling” to conform to how it is spelled in other regulations and international standards.

In Table 1 to § 11.309(e), this rule replaces the reference to “A-II/2” with “A-II/1” in the “Competence” column heading to correct the location of the standards of competency. Section 11.309 contains the requirements for an STCW endorsement as an Officer in charge of navigational watch on vessels of 500 gross tonnage (GT) or more. The updated STCW table reference, A-II/1, also contains the requirements for this rating.

In Table 1 to § 11.311(d), this rule replaces the reference to “A-II/3” with “A-II/2” in the “Competence” column heading to correct the location of the standards of competency. Section 11.311 contains the requirements for an STCW endorsement as a master of vessels of 500 GT or more and less than 3,000 GT. The updated STCW table reference, A-II/2, also contains the requirements for this rating.

In § 11.315(c) and Table 1 to § 11.315(d), this rule replaces the references to STCW Table “A-II/3” with “A-II/2” to correctly reference the standards of competency for an STCW endorsement as a master of vessels of less than 500 GT in § 11.315. The updated STCW Table reference, A-II/2, also contains the requirements for this rating.

In § 11.319(c) and Table 1 to § 11.319(d), this rule replaces both STCW table citations “A-II/3” with the correct Table “A-II/1.” Section 11.319 contains the requirements for an endorsement as an officer in charge of a navigational watch of vessels of less than 500 GT operational level. In § 11.319(a), it states that an “officer in charge of a navigational watch serving on a seagoing ship of less than 500 GT not engaged on near-coastal voyages shall hold a certificate of competency for ships of 500 GT or more.” The previous STCW table reference to A-II/3 contains the requirements for officers in charge of navigational watch and for masters on ships of less than 500 GT limited to near-coastal voyages. Since the regulations in § 11.319 are not limited to near coastal voyages, STCW Table A-II/1, which is titled “Specification of minimum standard of competence for officers in charge of a navigational watch on ships of 500 GT or more,” contains the correct and intended competencies for this requirement. This correction conforms the section to the regulations as written and consistently interpreted without affecting the mariner's obligations under this section.

Also within § 11.319, this rule fixes two incorrect cross-references in footnotes 2 and 3 to Table 1 to § 11.319(d) to their correct paragraphs within this section. These footnotes reiterate that Table 1 to § 11.319(d) is illustrative and not all-inclusive, but that the mariner must complete the items in the referenced paragraphs of this section as well. There is no change in the obligations of the public by correcting these cross-references.

In the “Competence” column heading of Table 1 to § 11.331(e), this rule corrects a reference to the STCW table. This section, § 11.331, is for chief engineer officer competence on ships powered by main propulsion machinery of less than 3,000 kW. The incorrect reference to STCW Table A-III/2 contains the competencies for chief engineer officers on ships powered by main propulsion machinery of 3,000 kW propulsion power or more. The correct STCW table reference is A-III/3, which contains the minimum competencies to qualify as a chief engineer officer on ships powered by main propulsion machinery of less than 3,000 kW. This change aligns the table with the references in the regulatory text.

For similar reasons, this rule also corrects the “Competence” column heading of Table 1 to § 11.333(d), to the correct STCW table. Section 11.333 is for second engineer officer competence on ships powered by main propulsion machinery of less than 3,000 kW. The incorrect reference to STCW Table A-III/2 contains the competencies for chief and second engineer officers on ships powered by main propulsion machinery of 3,000 kW propulsion power or more. The correct STCW table reference is A-III/3, which contains the minimum competencies to qualify as a second engineer officer on ships powered by main propulsion machinery of less than 3,000 kW. This change aligns the table with the STCW references in the regulatory text.

This rule revises § 11.464(g)(1) by replacing an erroneous cross-reference to paragraph (f) with a corrected cross-reference to paragraph (e) as the source of the exception to having a minimum of 30 days of training and observation on towing vessels. Paragraph (f) of this section contains the requirement that companies maintain evidence that the vessel operator is properly qualified, which is not relevant to the 30 days of training minimum mentioned in paragraph(g)(1). Paragraph (e) in § 11.464 contains the requirement that mariners applying for the Master of towing vessels on the Western Rivers endorsement must possess a minimum 90 days of observation and training, instead of the 30 day minimum in paragraph in (g)(1). In the supplemental notice of proposed rulemaking (SNPRM) preceding the final rule that implemented this section, this section (previously § 11.464(i)(1)) correctly cross referenced the western river exception that is currently in paragraph (e) (76 FR 45908, 46010, Aug. 1, 2011). However, the Coast Guard's 2013 final rule that implemented these sections mentions that three paragraphs in § 11.464 of the SNPRM's proposed text were left out of the final rule for more consideration and the cross-reference was not updated accordingly (78 FR 77796, 77829 and 77937, Dec. 24, 2013).

This rule corrects the reference in § 11.480(b)(2) to “Gulf Intercoastal waterways (GIWW)” to its accurate reference, “Gulf Intracoastal waterways (GIWW).”

In § 11.603 titled, “Requirements for radio officers' endorsements,” this rule updates the name of licenses issued by the Federal Communications Commission (FCC) for radio telegraph operator licenses because on May 20, 2013, the FCC consolidated the First and Second class Radiotelegraph Operator Certificates into a one single license class called the Radiotelegraph Operator License (T). To conform to the updated FCC license structure, this rule removes the references to “first or second class,” so that the section reflects the current name of the same licenses. This rule adds a “(T)” to the end of the license name to reflect the FCC's abbreviation for the license name.

This rule corrects a cross-reference to the definition of “near-coastal voyage” in § 11.1105(d) from § 11.301(h) to § 10.107. Section 11.301(h) contains regulations for mariners holding both a STCW and national endorsements on small vessels in domestic, near-coastal voyages, but does not contain a definition of near coastal voyages. This technical amendment changes the citation to “§ 10.107,” the definition section for subchapter B, which does contain the definition of “near-coastal voyage.”

This rule amends § 12.603 by removing paragraph (b), which refers to a provision that was applicable only until January 1, 2017. Because the referenced deadline has passed and this provision is no longer applicable to any qualifications for the STCW endorsement as able seafarer-deck, we are removing it to avoid confusion as to its applicability. To account for the deletion of § 12.603(b), this rule also renumbers the subsections and corrects a cross-reference. In the title of Table 1 to § 12.603(e), we update the cross-reference to § 12.603(d) to reflect the renumbering.

This rule removes the grandfathering clauses for STCW rating endorsements located in § 12.603(c)(1) through (4) because all four of the provisions have not been applicable to any merchant mariner since January 1, 2017, according to the regulatory text and practice. This rule also removes § 12.601(c)(1), which states that after January 1, 2017 the merchant mariner applicant must meet the provisions of part 12. Removing these provisions will have no effect on any mariner because all mariners applying for, renewing, or upgrading credentials after January 1, 2017 must comply with the current requirements in part 12. In order to conform to the requirements part 12 of title 46 and to improve the clarity of the regulations, the Coast Guard is removing the out-of-date grandfathering provisions listed in these sections.

Similarly in § 12.607, this rule deletes paragraph (b), which refers to a provision that was applicable only until January 1, 2017. Because the referenced deadline has passed and this provision is no longer applicable to any qualifications for the STCW endorsement for able seafarer-engine, we are removing it to avoid confusion as to its applicability. To account for the deletion of § 12.607(b), this rule also renumbers the subsections and corrects a cross-reference. In the title of Table 1 to § 12.607(e) we update the cross-reference to § 12.607(d) to reflect the renumbering.

In § 12.613(a)(3), the text “§ 12.601(c)” is replaced with the text “§ 12.602” to correct a longstanding error in the cross-reference. Section 12.601(c) does not address basic training requirements, which is the subject of § 12.613(a)(3). Section 12.602 addresses the standard of competence for basic training.

This rule updates an incorrect cross-reference to subpart J in § 15.530(b)(4)(iv) to subpart I, because the training for non-resident alien crewmembers is contained in subpart I of the referenced subchapter.

In paragraphs (c)(1), (d)(1), and (e)(1) of § 15.860, this rule corrects the spelling of “and” and “or.”

Also in § 15.860, this rule adds a period to the end of each of the following paragraphs: (b)(3), (c)(2), (d)(2), (e)(2), (f)(1), (f)(2), (f)(3), (f)(4), (g), and (h)(1).

In both § 15.860(f) and (h), this rule adds colons to the end of the paragraph to correct missing punctuation.

In § 15.1101(a)(2), this rule adds the missing term “near coastal” between “domestic” and “voyages” to correct an omission of language that was inadvertently left out of this subparagraph. Adding the term aligns the text with the terminology used in the international standards and other regulations within this subchapter, which refer to “domestic, near-coastal voyages.” There will not be any change in the obligations of the public by conforming the language to the international standards and regulations.

In the periodic drug testing requirements for § 16.220(a), this rule replaces an incorrect cross-reference to § 10.227(e) with a corrected cross-reference to § 10.227(g). Paragraph (g) is the proper reference here because it contains the provisions for those who are unwilling or unable to pass drug tests for the purpose of renewing a credential. Section 10.227(e) contains the unrelated professional requirements for renewing a credential.

This rule amends the authority citation for part 26 by removing a repealed Title 46 U.S.C. statutory authority and replacing it with the correct Title 46 statutory authorities for regulating uninspected passenger vessels.

In § 28.210(b)(1)(ii), this rule corrects an incorrect cross-reference to another section within this chapter for the courses approved by the Coast Guard for first aid equipment and training.

In §§ 162.060-14(b) and 162.060-42(a)(3), this rule adds the email addresses for the Marine Safety Center as an alternate method of contact.

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

Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs) directs agencies to reduce regulation and control regulatory costs and provides that “for every one 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.”

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. Because this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See the OMB Memorandum titled “Guidance Implementing Executive Order 13771, titled `Reducing Regulation and Controlling Regulatory Costs' ” (April 5, 2017). This rule involves non-substantive changes and internal agency practices and procedures; it will not impose any additional costs on the public. The benefit of the non-substantive changes is increased clarity of regulations.

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

This rule is not preceded by a notice of proposed rulemaking. Therefore, it is exempt from the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The Regulatory Flexibility Act does not apply when notice and comment rulemaking is not required. This rule consists of technical, organizational, and conforming amendments and does not have any substantive effect on the regulated industry or small businesses. Therefore, 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.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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 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 Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A final Record of Environmental Consideration supporting this determination is available in the docket where indicated in the ADDRESSES section of this preamble. This final rule involves non-substantive technical, organizational, and conforming amendments to existing Coast Guard regulations. Therefore, this rule is categorically excluded under paragraph L54 in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. Paragraph L54 pertains to regulations which are editorial or procedural.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 1, 26, 80, 81, 83, 89, 100, 117, 151, 154, 155, 156, 161, and 164 and 46 CFR parts 2, 10, 11, 12, 15, 16, 26, 28, and 162 as follows:

The Coast Guard will enforce the following special local regulations listed in 33 CFR part 100, Safety of Life on Navigable Waters, on the following dates and times:

(1) Bay City River Roar (formerly known as Grand Prix), Bay City, MI. The special local regulation listed in 33 CFR 100.911, Table 1(7), will be enforced from 8 a.m. on July 12, 2019 through 7 p.m. on July 14, 2019. In the case of inclement weather on any of the previous dates, this safety zone will be enforced from 8 a.m. through 7 p.m. on July 15, 2019.

In accordance with the general regulations in 33 CFR 100.35, the Coast Guard will patrol the regatta area under the direction of a designated Coast Guard patrol commander (PATCOM). The PATCOM may be contacted on Channel 16 (156.8 MHz) by the call sign “Coast Guard Patrol Commander.”

Entry into, transiting, or anchoring within these regulated areas is prohibited unless authorized by the PATCOM. The PATCOM may restrict vessel operation within the regulated area to vessels having particular operating characteristics.

Vessels permitted to enter this regulated area must operate at a no-wake speed and in a manner that will not endanger race participants or any other craft.

The PATCOM may direct the anchoring, mooring, or movement of any vessel within this regulated area. A succession of sharp, short signals by whistle or horn from vessels patrolling the area under the direction of the PATCOM shall serve as a signal to stop. Vessels so signaled shall stop and shall comply with the orders of the PATCOM. Failure to do so may result in expulsion from the area, a Notice of Violation for failure to comply, or both.

If it is deemed necessary for the protection of life and property, the PATCOM may terminate the marine event or the operation of any vessel within the regulated area.

Under the provisions of 33 CFR 100.928, vessels transiting within the regulated area shall travel at a no-wake speed and remain vigilant for event participants and safety craft. Additionally, vessels shall yield right-of-way for event participants and event safety craft and shall follow directions given by the Coast Guard's on-scene representative or by event representatives during the event.

The “on-scene representative” of the Captain of the Port Detroit is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port Detroit to act on his behalf. The on-scene representative of the Captain of the Port Detroit will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port Detroit or his designated on scene representative may be contacted via VHF Channel 16.

The rules in this section shall not apply to vessels participating in the event or to government vessels patrolling the regulated area in the performance of their assigned duties.

This document is issued under authority of 33 CFR 100.35 and 5 U.S.C. 552(a). If the Captain of the Port determines that any of these special local regulations need not be enforced for the full duration stated in this document, he may suspend such enforcement and notify the public of the suspension via a Broadcast Notice to Mariners.

The Coast Guard published an NPRM on March 18, 2019 (84 FR 9724), proposing to establish a special local regulation for the Thunder on the Choptank, on July 27, 2019, and July 28, 2019. The Coast Guard received two comments. The Coast Guard published an SNPRM on May 16, 2019 (84 FR 22079), to amend the proposed special local regulation to increase the size of the regulated area and make minor corrections to the designated spectator area coordinates for the Thunder on the Choptank, on July 27, 2019, and July 28, 2019, and reopen the comment period to account for these changes. The comment period closed June 17, 2019. The Coast Guard received no additional comments during the second request for comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Due to the date of the event, it would be impracticable to make the regulation effective 30 days after publication in the Federal Register . Delaying the effective date of this rule is impracticable and contrary to public interest because it would delay the safety measures necessary to respond to potential safety hazards associated with this marine event. Immediate action is needed to protect participants, spectators, and other persons and vessels during the high-speed race event on these navigable waters.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041. The Captain of the Port Maryland-National Capital Region (COTP) has determined that potential hazards associated with these power boat races will be a safety concern for anyone intending to operate in or near the race area. The purpose of this rule is to protect event participants, spectators, and transiting vessels on specified waters of the Choptank River before, during, and after the scheduled event.

As noted above, we received two comments to the docket responding to our NPRM published March 18, 2019. Both comments were in support of the Coast Guard's rulemaking. However, one commenter questioned why the regulation was needed, and wondered if instead waterway users could be directed safely away from the event site or if there could be stated times when waterway users could transit through the regulated area. The COTP Maryland-National Capital Region is issuing this special local regulation to ensure that all vessels are operated within the regulated area at a safe speed that minimizes wake near the event area. A COTP order, by comparison, would apply to only a single vessel. The Coast Guard issues special local regulations under authority of 46 U.S.C. 70041(a), which grants the Commandant authority to issue regulations to promote the safety of life on navigable waters during regattas or marine parades. The Coast Guard issues such regulations in accordance with the Administrative Procedure Act's rulemaking requirements.

Vessel traffic will be able to safely transit the regulated area once the PATCOM deems it safe to do so. Patrol vessels will be present to monitor the event and enforce the special local regulation. In addition, Broadcast Notice to Mariners will also be made for this event, to begin prior to that start of the scheduled event, and to continue to notify the public, until immediately after its completion.

There are no changes in the regulatory text of this rule from the proposed rule in the SNPRM.

This rule establishes a special local regulation to be enforced from 9:30 a.m. to 6:30 p.m. on July 27, 2019, and from 9:30 a.m. to 6:30 on July 28, 2019. The regulated area will cover all navigable waters of the Choptank River and Hambrooks Bay bounded by a line connecting the following coordinates: Commencing at the shoreline at Long Wharf Park, Cambridge, MD, at position latitude 38°34′30″ N, longitude 076°04′16″ W; thence east to latitude 38°34′20″ N, longitude 076°03′46″ W; thence northeast across the Choptank River along the Senator Frederick C. Malkus, Jr. (US-50) Memorial Bridge, at mile 15.5, to latitude 38°35′30″ N, longitude 076°02′52″ W; thence west along the shoreline to latitude 38°35′38″ N, longitude 076°03′09″ W; thence north and west along the shoreline to latitude 38°36′42″ N, longitude 076°04′15″ W; thence southwest across the Choptank River to latitude 38°35′31″ N, longitude 076°04′57″ W; thence west along the Hambrooks Bay breakwall to latitude 38°35′33″ N, longitude 076°05′17″ W; thence south and east along the shoreline to and terminating at the point of origin.

The duration of the special local regulations and size of the regulated area are intended to ensure the safety of life on these navigable waters before, during, and after these power boat races, scheduled from 10 a.m. until 6 p.m. on July 27, 2019, and July 28, 2019. Except for participants and vessels already at berth, a vessel or person will be required to get permission from the COTP or PATCOM before entering the regulated area while the rule is being enforced. Vessel operators can request permission to enter and transit through the regulated area by contacting the PATCOM on VHF-FM channel 16. Vessel traffic will be able to safely transit the regulated area once the PATCOM deems it safe to do so. A person or vessel not registered with the event sponsor as a participant or assigned as Official Patrols will be considered a spectator. Official Patrols are any vessel assigned or approved by the Commander, Coast Guard Sector Maryland-National Capital Region with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign. If permission is granted by the COTP or PATCOM, a person or vessel will be allowed to enter the regulated area or pass directly through the regulated area as instructed. Vessels will be required to operate at a safe speed that minimizes wake while within the regulated area. Official Patrol vessels will direct spectator vessels while within the regulated area. Vessels will be prohibited from loitering within the navigable channel. Only participant vessels and Official Patrols will be allowed to enter the race area.

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

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

This regulatory action determination is based on the size, duration and time of year of the racing event, which will impact a small designated area of the Choptank River for 18 total enforcement hours. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the special local regulation. Moreover, the rule will allow vessels to seek permission to enter the regulated area, and vessel traffic will be able to safely transit the regulated area once the COTP or PATCOM deems it safe to do so.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of a temporary special local regulation for certain navigable waters of the Choptank River. This action is necessary to provide for the safety of life on these waters located at Cambridge, MD, on July 27, 2019, and July 28, 2019, during a high-speed power boat racing event. The temporary regulated area will be enforced for 18 hours during the power boat races. It is categorically excluded from further review under paragraph L61 in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Memorandum For the Record for Categorically Excluded Actions supporting this determination is available in the docket where indicated under ADDRESSES .

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

Swim events, fireworks displays, and marine events are held on an annual recurring basis on the navigable waters within the Coast Guard Sector Northern New England Captain of the Port (COTP) Zone. The Coast Guard has established special local regulations and safety zones for some of these annual recurring events on a case by case basis to ensure the protection of the maritime public and event participants from potential hazards. In the past, the Coast Guard has not received public comments or concerns regarding the impact to waterway traffic from regulations associated with these annually recurring events. Events were either added or deleted to the table of annual events based on their likelihood to recur in subsequent years. Additionally, minor changes to existing events such as position, date, or title, were made to ensure the accuracy of event details.

On May 09, 2019 the Coast Guard published a notice of proposed rulemaking (NPRM) titled Special Local Regulations and Safety Zones; Recurring Marine Events and Fireworks Displays and Swim Events Held in the Coast Guard Sector Northern New England Captain of the Port Zone (84 FR 20307). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action. During the comment period that ended on June 10, 2019, we received no comments.

We are issuing this rule under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register . The comment period for the NPRM associated with the Special Local Regulations and Safety Zones; Recurring Marine Events and Fireworks Displays and Swim Events held in the Coast Guard Sector Northern New England Captain of the Port Zone expired on June 10, 2019. The first events are scheduled to occur June 15, 2019. Thus, there is now insufficient time for a 30- day effective period before the need to enforce safety zones and special local regulations that begin on June 15, 2019. Delaying the enforcement of this safety zone and special local regulations to allow a 30-day effective period will be impractical and contrary to the public interest because it would inhibit the Coast Guard's ability to fulfill its mission to keep the maritime public, ports, and waterways safe.

The Coast Guard issues this rulemaking under authority in 33 U.S.C. 1231. This rule updates the tables of annual recurring events in the existing regulation for the Coast Guard Sector Northern New England COTP Zone. The tables provide the event name, sponsor, and type, as well as approximate times, dates, and locations of the events. Advanced public notification of specific times, dates, regulated areas, and enforcement periods for each event will be provided through appropriate means, which may include the Local Notice to Mariners, Broadcast Notice to Mariners, and a Notice of Enforcement published in the Federal Register at least 30 days prior to the event date. If an event does not have a date and time listed in this regulation, then the precise dates and times of the enforcement period for that event will be announced through a Local Notice to Mariners and, if time permits, a Notice of Enforcement in the Federal Register .

As noted above, we received no comments on our NPRM published May 10, 2019. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

The Coast Guard amends 33 CFR 100.120 “Special Local Regulations; Marine Events Held in the Coast Guard Sector Northern New England Captain of the Port Zone” by updating the details of three events, deleting two events, and adding on to the TABLE § 100.120. The updates to the TABLE to § 100.120: (1) 5.1 Tall Ships Visiting Portsmouth will become a one day event rather than a four day event; (2) 6.3 Windjammer Days Parade of Ships will become 6.3 Gathering of the Fleet; and (3) updates position for 8.6 Multiple Sclerosis Regatta. The events deleted from the TABLE to § 100.120 will be: (1) 7.7 Yarmouth Clam Festival Paddle Race and (2) 7.8 Maine Windjammer Lighthouse Parade. The event added to the table is the 7.8 Harpswell Lobster Boat Races.

The Coast Guard amends 33 CFR 165.171 “Safety Zones for fireworks displays and swim events held in Coast Guard Sector Northern New England Captain of the Port Zone” by updating the details of seven events from the TABLE to § 165.171. This rule proposes the following updates: (1) 7.3 Camden 3rd of July Fireworks will become 7.3 Camden 4th of July Fireworks; (2) 9.1 Windjammer Festival Fireworks will become 9.1 Camden Windjammer Festival Fireworks; (3) updates position of 7.8 Ellis Short Sand Park Trustee Fireworks; (4) updates position of 7.9 Hampton Beach 4th of July Fireworks; (5) updates position of 7.13 Portland Harbor 4th of July Fireworks; (6) updates date of 8.9 Lake Champlain Swimming Race and the safety area around swimmers; and (7) changes name and location of event 8.8 from Challenge Maine Triathlon to Ironman 70.3 Maine.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of each regulated area. We are not adding any new special local regulations, rather we are updating existing regulations and removing obsolete events which have not been held for the past three years or which the sponsors indicate they have no intention to continue. Dates and coordinates have been updated to more accurately reflect the event. While we are primarily updating and removing safety zones, t we are adding one safety zone for a swim event. However, this new swim event is only one day long in August and will only impact a small designated area of the waterway for a few hours. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves special local regulations for various one day marine events and safety zones for fireworks displays and one day swimming events. Normally such actions are categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 100 and 165 as follows:

The Coast Guard will enforce the Safety Zones; Annual Events in the Captain of the Port Buffalo Zone listed in 33 CFR 165.939 for the following events:

1. July 3rd Fireworks Spectacular—Under the Gun and Country Swag formerly known as Island Festival Fireworks, Baldwinsville, NY; The safety zone listed in Table 165.939 as (b)(21) will be enforced within a 420-foot radius of position 43°09′23.4″ N, 076°20′16.6″ W, from 10 p.m. through 11 p.m. on July 3, 2019.

2. Olcott Fireworks, Olcott, NY; The safety zone listed in Table 165.939 as (b)(24) will be enforced from 9:45 p.m. through 10:45 p.m. on July 3, 2019. In the case of inclement weather, the zone will be enforced from 9:45 p.m. through 10:45 p.m. on July 12, 2019.

Pursuant to 33 CFR 165.23, entry into, transiting, or anchoring within the safety zones during an enforcement period is prohibited unless authorized by the Captain of the Port Buffalo or a designated representative. Those seeking permission to enter the safety zones may request permission from the Captain of the Port Buffalo via channel 16, VHF-FM. Vessels and persons granted permission to enter the safety zones shall obey the directions of the Captain of the Port Buffalo or a designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

This notice of enforcement is issued under authority of 33 CFR 165.939 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this enforcement period via Broadcast Notice to Mariners or Local Notice to Mariners. If the Captain of the Port Buffalo determines that the safety zone need not be enforced for the full duration stated in this notice of enforcement he or she may use a Broadcast Notice to Mariners to grant general permission to enter the respective safety zone.

On April 10, 2019, the Patriots Point Naval and Maritime Museum notified the Coast Guard that it would be conducting a fireworks display from 8 p.m. to 9 p.m. on July 4, 2019. The fireworks will be launched from a barge along the bank of the Cooper River at Patriot's Point in Charleston, SC. Hazards from fireworks displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. In response to their request, on June 4, 2019, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; Fourth of July Fireworks Patriots Point, Charleston, SC” (84 FR 25723). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended June 19, 2019, we received no comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to public interest because we must establish this safety zone by July 4, 2019 to ensure the protection of the general public from the dangers associated with the event.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041 (previously U.S.C. 1231) The COTP Charleston has determined that potential hazards associated with the fireworks display will be a safety concern for anyone within 500-yards of the barge from which fireworks will be launched. The purpose of the rule is to ensure the safety of participants, spectators, the general public, vessels and the navigable waters in the safety zone before, during and after the scheduled event.

As noted above, we received no comments on our NPRM that published on June 4, 2019. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a safety zone from 7:45 p.m. to 9:15 p.m. on July 4, 2019. The safety zone will cover certain navigable waters within 500 yards of the fireworks barge located at Patriot's Point on the Cooper River in Charleston, SC. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 8 p.m. to 9 p.m. fireworks display. No vessel or person will be permitted to enter, transit through, anchor in or remain within the safety zone without obtaining permission from the COTP or a designated representative. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the COTP or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, or by on-scene designated representatives.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone: The safety zone will only be enforced for an hour and a half, and although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Charleston or a designated representative, vessel traffic will be able to safely operate in the surrounding area during the enforcement period and the rule would allow vessels to seek permission to enter the zone. Moreover, the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners via VHF-FM marine channel 16.

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only one and a half hours that will prohibit entry within 500 yards of a barge from which fireworks will be launched. It is categorically excluded from further review under paragraph L60(A) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

The Coast Guard will enforce the safety zones listed in 33 CFR 165.1191, Table 1, Item numbers 3, 4, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, and 28. Dates, times, and locations are indicated in the table below and will be published in the Local Notice to Mariners at least 20 days prior to the date of each of the events.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM or other Official Patrol defined as a Federal, state, or local law enforcement agency on scene to assist the Coast Guard in enforcing the safety zones. During the enforcement period, if you are the operator of a vessel in one of the safety zones you must comply with directions from the Patrol Commander or other Official Patrol.

In addition to this notice of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice of enforcement, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

The Coast Guard will enforce Safety Zones; Annual Events in the Captain of the Port Detroit Zone listed in 33 CFR 165.941, LAZ Trommler fireworks, Table 1(50), from 8:30 p.m. through 10 p.m. on July 5, 2019, and in the event of inclement weather from 8:30 p.m. through 10 p.m. on July 6, 2019.

Entry into, transiting, or anchoring within this safety zone during the enforcement period is prohibited unless authorized by the Captain of the Port Detroit or a designated representative.

Vessels that wish to transit through the safety zone may request permission from the Captain of the Port Detroit or his designated representative. Requests must be made in advance and approved by the Captain of Port before transits will be authorized. Approvals will be granted on a case by case basis.

This notice of enforcement is issued under authority of 33 CFR 165.941 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the Federal Register , the Coast Guard will provide the maritime community with advance notification of the above-specified enforcement periods of this safety zone via VHF Broadcasts and Local Notice to Mariners. If the Captain of the Port determines that this safety zones need not be enforced for the full duration stated in this document, he may suspend such enforcement and notify the public of the suspension via a Broadcast Notice to Mariners. The Captain of the Port may be contacted via U.S. Coast Guard Sector Detroit on channel 16, VHF-FM or by calling (313) 568-9564.

On April 23, 2019, the City of North Charleston notified the Coast Guard that it would be conducting a fireworks display from 9 p.m. to 10 p.m. on July 4, 2019. The fireworks are to be launched from a barge along the bank of the Cooper River at River Front Park in North Charleston, SC. Hazards from fireworks displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. In response to their request, on June 4, 2019, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; City of North Charleston Fireworks, North Charleston, SC” (84 FR 25721). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended June 19, 2019, we received no comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to public interest because we must establish this safety zone by July 4, 2019 to ensure the protection of the general public from the dangers associated with the event.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041 (previously U.S.C. 1231). The COTP Charleston (COTP) has determined that potential hazards associated with the fireworks display will be a safety concern for anyone within 500-yards of the barge launching the fireworks. The purpose of the rule is to ensure the safety of participants, spectators, the general public, vessels and the navigable waters in the safety zone before, during and after the scheduled event.

As noted above, we received no comments on our NPRM published June 4, 2019. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a safety zone from 8:45 p.m. to 10:15 p.m. on July 4, 2019. The safety zone will cover certain navigable waters within 500 yards of the fireworks barge located at River Front Park on the Cooper River in North Charleston, SC. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9 p.m. to 10 p.m. fireworks display. No vessel or person will be permitted to enter, transit through, anchor in or remain within the safety zone without obtaining permission from the COTP or a designated representative. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the COTP or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, or by on-scene designated representatives.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. The safety zone will only be enforced for an hour and a half, and although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Charleston or a designated representative, vessel traffic will be able to safely operate in the surrounding area during the enforcement period and the rule would allow vessels to seek permission to enter the zone. Moreover, the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners via VHF-FM marine channel 16.

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only one and a half hours that will prohibit entry within 500 yards of a barge from which fireworks will be launched. It is categorically excluded from further review under paragraph L60(A) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

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

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

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying this rule would be contrary to the public interest because immediate action is necessary to respond to the safety hazards associated with high water and flooding on this area of the Mississippi River.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with high water starting June 2, 2019, will be a safety concern for personnel, vessels, and the marine environment. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during high water.

This rule establishes a safety zone from June 2, 2019 through July 2, 2019. The rule will be enforced from June 2, 2019 through July 2, 2019 or until the Cape Girardeau river gauge falls below 45 feet, whichever occurs first. The safety zone will cover all navigable waters of the Upper Mississippi River from mile marker (MM) 109.9 to MM 33.0. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during high water. A broadcast notice to mariners will be issued to inform the public when the safety zone is being enforced. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. The safety zone will only impact a relatively small portion of the waterway for about 30 days, and will only be in effect during the duration of high water.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone on the Upper Mississippi River from MM 109.9 to MM 33.0. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor did not submit notice to the Coast Guard with sufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be contrary to the public interest by inhibiting the Coast Guard's ability to protect spectators and vessels from the hazards associated with a maritime fireworks display.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date would be contrary to the rule's objectives of protecting safety of life on the navigable waters in the vicinity of the fireworks display.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Buffalo determined that a fireworks display presents significant risks to the public safety and property. Such hazards include premature and accidental detonations, dangerous projectiles, and falling or burning debris. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks display takes place.

This rule establishes a safety zone from 9:45 p.m. through 10:45 p.m. on July 4, 2019. The safety zone will cover all navigable waters of Lake Erie, Lakewood, OH contained within 420 feet of the fireworks launch site located at: 41°29′50″ N, 081°47′52″ W.

The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the fireworks event takes place. No vessel or person will be permitted to enter the safety zone without obtaining permission from the Captain of the Port Buffalo or a designated representative.

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

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

This regulatory action determination is based on the conclusion that this rule is not a significant regulatory action. We anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short time. Also, the safety zone is designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 1 hour that will prohibit entry within 420 feet of position 41°29′50″ N, 081°47′52″ W, Lakewood, OH. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

I. Table of Abbreviations COTP Captain of the Port San Francisco CFR Code of Federal Regulations DHS Department of Homeland Security § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. Since the Coast Guard received notice of this event on April 24, 2019, notice and comment procedures would be impracticable in this instance.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For similar reasons as stated above, notice and comment procedures would be impractical in this instance due to the short notice provided for this event.

The Coast Guard is issuing this rule under authority 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The COTP has determined that potential hazards associated with the San Francisco Waterfront Celebration Fireworks Display on July 4, 2019, will be a safety concern for anyone within a 100-foot radius of the fireworks barges during loading, staging, and transit, and anyone within a 700-foot radius of the fireworks barges starting 30 minutes before the fireworks display is scheduled to commence and ending 30 minutes after the conclusion of the fireworks display. For this reason, safety zones are needed to protect personnel, vessels, and the marine environment in the navigable waters around the fireworks barges during the fireworks display.

This rule establishes safety zones from 9 a.m. on July 3, 2019 until 10:30 p.m. on July 4, 2019 during the loading, staging, and transit of the four fireworks barges, until approximately 30 minutes after completion of the fireworks display. From 9 a.m. on July 3, 2019 to 9 p.m. on July 4, 2019, during the loading, staging, and transit of the fireworks barges until 30 minutes prior to the start of the fireworks display, the safety zones will encompass the navigable waters around and under the four fireworks barges, from surface to bottom, within a circle formed by connecting all points 100 feet out from each of the fireworks barges. Loading the pyrotechnics onto the fireworks barges is scheduled from 9 a.m. on July 3, 2019 to 7:30 p.m. on July 4, 2019, at Pier 50 in San Francisco, CA. From 7:30 p.m. to 8:15 p.m. on July 4, 2019, the fireworks barges will be towed from Pier 50 to the two display locations, where they will remain until the conclusion of the fireworks display.

At 9 p.m. on July 4, 2019, 30 minutes prior to the commencement of the 30-minute San Francisco Waterfront Celebration Fireworks Display, the safety zones will increase in size and encompass the navigable waters around and under the fireworks barges, from surface to bottom, within the circles formed by connecting all points 700 feet from the circle centers at approximate positions 37°48′49″ N, 122°24′46″ W (NAD 83) and 37°48′45″ N, 122°25′39″ W (NAD 83). The safety zones will terminate at 10:30 p.m. on July 4, 2019.

The effect of the safety zones is to restrict navigation in the vicinity of the fireworks loading, staging, transit, and firing sites. Except for persons or vessels authorized by the COTP or the COTP's designated representative, no person or vessel may enter or remain in the restricted areas. These regulations are needed to keep spectators and vessels away from the immediate vicinity of the fireworks firing sites to ensure the safety of participants, spectators, and transiting vessels.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves safety zones of limited size and duration. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

The Coast Guard will enforce the safety zone in 33 CFR 165.801, Table 4, Line 3, for the City of Port Aransas Fourth of July Fireworks Display from 8:30 p.m. through 9:15 p.m. on July 4, 2019, with a rain date set for July 5 and 6, 2019. This action is being taken to provide for the safety of persons, vessels, and the marine environment on navigable waterways during this event. Our regulation for marine events within the Eighth Coast Guard District, § 165.801, specifies the location of the safety zone for the Port Aransas Fourth of July Fireworks Display, which encompasses portions of Corpus Christi Ship Channel, Port Aransas, TX. As reflected in §§ 165.23 and 165.801(a), if you are the operator of a vessel in the regulated area you must comply with directions from the Captain of the Port Sector Corpus Christi (COTP) or any designated representative. Persons or vessels desiring to enter the zonemust request permission from the COTP or a designated representative. They can be reached on VHF FM channel 16 or by telephone at (361) 939-0450.

If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. In addition to this notice of enforcement in the Federal Register , the COTP or a designated representative will inform the public through Broadcast Notice to Mariners (BNM), Local Notices to Mariners (LNM), Marine Safety Information Broadcasts (MSIBs), and/or through other means of public notice as appropriate at least 24 hours in advance of each enforcement.

Pyrotechnico Fireworks notified the Coast Guard that it will be conducting a fireworks display near Pleasant Hill Park in Philadelphia, PA, from 9:15 p.m. to 10 p.m. on July 4, 2019. The display will be launched from a barge in the Delaware River. In response, on May 30, 2019, the Coast Guard published a notice of proposed (NPRM) titled Safety Zone; Fireworks Display, Delaware River, Philadelphia, PA, 84 FR 25022. There we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended June 10, 2019, we received one comment.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and contrary to the public interest. The rule needs to be in place by July 4, 2019, to mitigate the potential safety hazards associated with a fireworks display in this location.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Delaware Bay (COTP) has determined that potential hazards associated with the fireworks to be used in this July 4, 2019, display will be a safety concern for anyone within a 200-yard radius of the barge. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled event.

As noted above, we received one comment on our NPRM published May 30, 2019. The comment was supportive of the establishment of a safety zone for the fireworks display. Thus, there are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a temporary safety zone on the waters of the Delaware River near Pleasant Hill Park in Philadelphia, PA, during a fireworks display scheduled to take place between 9:15 p.m. and 10 p.m. on July 4, 2019. The fireworks will be set off from a barge in the river, which will be anchored at approximate position latitude 40°02′22.54″ N, longitude 074°59′22.03″ W. The safety zone will extend 200 yards around the barge. No person or vessel will be permitted to enter, transit through, anchor in, or remain within the safety zone without obtaining permission from the COTP Delaware Bay or a designated representative. If the COTP Delaware Bay or a designated representative grants authorization to enter, transit through, anchor in, or remain within the safety zone, all persons and vessels receiving such authorization must comply with the instructions of the COTP Delaware Bay or a designated representative. The Coast Guard will provide public notice of the safety zone by Local Notice to Mariners and Broadcast Notice to Mariners.

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

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

The impact of this rule is not significant for the following reasons: (1) The enforcement period will last less than one hour when vessel traffic is usually low; (2) although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the COTP Delaware Bay or a designated representative, they may operate in the surrounding area during the enforcement period; (3) persons and vessels will still be able to enter, transit through, anchor in, or remain within the regulated area if authorized by the COTP Delaware Bay; and (4) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and 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 involves a temporary safety zone that prohibits persons and vessels from entering, transiting through, anchoring in, or remaining within a limited area on the navigable water in the Delaware River, during a fireworks display lasting approximately one hour. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

I. Table of Acronyms COTP Captain of the Port San Francisco CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. Since the Coast Guard received final details of this event on April 18, 2019, notice and comment procedures would be impracticable in this instance.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For similar reasons as stated above, notice and comment procedures would be impractical in this instance due to the short notice provided for this event.

The Coast Guard is issuing this rule under authority 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port San Francisco (COTP) has determined that potential hazards associated with the Benicia Fourth of July Fireworks Display on July 4, 2019, will be a safety concern for anyone within a 420-foot radius of the fireworks firing site. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters around the safety zone during the fireworks display.

This rule establishes a temporary safety zone around the fireworks firing site for the Benicia Fourth of July Fireworks Display. At 9:15 p.m. on July 4, 2019, 30 minutes prior to the commencement of the 20-minute fireworks display, the safety zone will encompass the navigable waters of the Carquinez Strait, from surface to bottom, within a circle formed by connecting all points 420 feet out from the fireworks firing site located on the Benicia 1st Street public pier at approximate position 38°02′40″ N, 122°09′55″ W (NAD 83). The safety zone will terminate at approximately 10:35 p.m. on July 4, 2019.

The effect of the safety zone is to restrict navigation in the vicinity of the fireworks firing site. Except for persons or vessels authorized by the COTP or the COTP's designated representative, no person or vessel may enter or remain in the restricted area. This regulation is needed to keep spectators and vessels away from the immediate vicinity of the fireworks firing site to ensure the safety of participants, spectators, and transiting vessels.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone of limited size and duration. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. Since the Coast Guard received notice of this event on May 1, 2019, notice and comment procedures would be impracticable in this instance.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For similar reasons as stated above, notice and comment procedures would be impractical in this instance due to the short notice provided for this event.

The Coast Guard is issuing this rule under authority 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port San Francisco (COTP) has determined that potential hazards associated with the Vallejo Independence Day Fireworks Display on July 4, 2019, will be a safety concern for anyone within a 100-foot radius of the fireworks barge during loading, staging, and transit, and anyone within a 420-foot radius of the fireworks barge starting 30 minutes before the fireworks display is scheduled to commence and ending 30 minutes after the conclusion of the fireworks display. For this reason, a safety zone is needed to protect personnel, vessels, and the marine environment in the navigable waters around the fireworks barge during the fireworks display.

This rule establishes a safety zone from 8 a.m. until 10:18 p.m. on July 4, 2019 during the loading, staging, and transit of the fireworks barge, until approximately 30 minutes after completion of the fireworks display. From 8 a.m. to 9 p.m. on July 4, 2019, during the loading, staging, and transit of the fireworks barge until 30 minutes prior to the start of the fireworks display, the safety zone will encompass the navigable waters around and under the fireworks barge, from surface to bottom, within a circle formed by connecting all points 100 feet out from the fireworks barge. Loading the pyrotechnics onto the fireworks barge is scheduled from 8 a.m. to 4 p.m. on July 4, 2019, at the Mare Island Waterfront in Vallejo, CA. From 4 p.m. until 8:50 p.m. on July 4, 2019, the barge will remain at the Mare Island Waterfront. From 8:50 p.m. to 9 p.m. on July 4, 2019, the fireworks barge will be towed from the Mare Island Waterfront to the display location, where it will remain until the conclusion of the fireworks display.

At 9 p.m. on July 4, 2019, 30 minutes prior to the commencement of the 18-minute Vallejo Independence Day Fireworks Display, the safety zone will increase in size and encompass the navigable waters around and under the fireworks barge, from surface to bottom, within a circle formed by connecting all points 420 feet from the circle center at approximate position 38°06′03″ N, 122°16′00″ W (NAD 83). The safety zone will terminate at 10:18 p.m. on July 4, 2019.

The effect of the safety zone is to restrict navigation in the vicinity of the fireworks loading, staging, transit, and firing site. Except for persons or vessels authorized by the COTP or the COTP's designated representative, no person or vessel may enter or remain in the restricted areas. These regulations are needed to keep spectators and vessels away from the immediate vicinity of the fireworks firing sites to ensure the safety of participants, spectators, and transiting vessels.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone of limited size and duration. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

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

In a notice of proposed rulemaking (NPRM) published on March 28, 2019 (84 FR 11711), EPA proposed to approve Oklahoma's (the State's) Regional Haze Five Year Progress Report. 1 On September 28, 2016, Oklahoma submitted its progress report in the form of a SIP revision under 40 CFR 51.308, which, among other things, detailed the progress made in the first planning period toward implementation of the long-term strategy (LTS) outlined in the State's regional haze plan. The progress report also included a summary of the visibility improvement measured at the Wichita Mountains Wilderness Area (WMWA), the only Class I area within Oklahoma, an assessment of whether Class I areas outside of the State are potentially impacted by emissions from Oklahoma, and a determination of the adequacy of the existing implementation plan. The details of Oklahoma's submittal and the rationale for EPA's action are further explained in the NPRM. EPA did not receive any relevant adverse comments on the proposed action. We received one comment letter from the Texas Commission on Environmental Quality (TCEQ) that discussed issues outside the scope of this particular rule making. 2

EPA is approving Oklahoma's regional haze five-year progress report SIP revision, finding it meets the applicable regional haze requirements under the CAA and set forth in 40 CFR 51.308(g), (h) and (i). Because the SIP and Federal Implementation Plan (FIP)  3 will ensure the control of SO 2 and NO X emissions reductions relied upon by Oklahoma and other states in setting their reasonable progress goals, EPA concurs with the State's finding that there is no need for revision of the existing implementation plan to achieve the reasonable progress goals for the Class I areas in Oklahoma and in nearby states impacted by Oklahoma sources.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action approves a State's determination that their current regional haze plan is 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 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 EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 27, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Table of Contents I. Background and Purpose II. Response to Comments III. Incorporation by Reference IV. Final Action V. Statutory and Executive Order Reviews I. Background and Purpose

On June 22, 2010, EPA promulgated a new 1-hour primary SO 2 NAAQS of 75 parts per billion (ppb), which is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour average concentrations does not exceed 75 ppb, as determined in accordance with appendix T of 40 CFR part 50. See 75 FR 35520, codified at 40 CFR 50.17(a) and (b). On August 5, 2013, EPA designated a first set of 29 areas of the country as nonattainment for the 2010 SO 2 NAAQS, including the Jefferson County nonattainment area within the Commonwealth of Kentucky. See 78 FR 47191, codified at 40 CFR part 81, subpart C. These “round one” area designations were effective October 4, 2013. Section 191(a) of the CAA directs states to submit SIPs for areas designated as nonattainment for the SO 2 NAAQS to EPA within 18 months of the effective date of the designation, i.e., by no later than April 4, 2015, in this case. These SIPs are required to demonstrate that their respective areas will attain the NAAQS as expeditiously as practicable, but no later than 5 years from the effective date of designation, which is October 4, 2018, in accordance with CAA sections 191-192.

Section 172(c) of part D of the CAA lists the required components of a nonattainment plan submittal. The base year emissions inventory (section 172(c)(3)) is required to show a “comprehensive, accurate, current inventory” of all relevant pollutants in the nonattainment area. The nonattainment plan must identify and quantify any expected emissions from the construction of new sources to account for emissions in the area that might affect RFP toward attainment, or that might interfere with attainment and maintenance of the NAAQS, and it must provide for a NNSR program (section 172(c)(5)). The attainment demonstration must include a modeling analysis showing that the enforceable emissions limitations and other control measures taken by the state will provide for RFP and expeditious attainment of the NAAQS (section 172(c)(2), (4), (6), and (7)). The nonattainment plan must include an analysis and provide for implementation of the RACM considered, including RACT (section 172(c)(1)). Finally, the nonattainment plan must provide for contingency measures (section 172(c)(9)) to be implemented either in the case that RFP toward attainment is not made, or in the case that the area fails to attain the NAAQS by the attainment date.

On April 23, 2014, EPA issued a guidance document entitled, “Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions.” This guidance provides recommendations for the development of SO 2 nonattainment SIPs to satisfy CAA requirements ( see, e.g., sections 172, 191, and 192). An attainment demonstration must also meet the requirements of 40 CFR part 51, subparts F and G, and 40 CFR part 51, appendix W (the Guideline on Air Quality Models; “the Guideline” or “Appendix W”), and include inventory data, modeling results, and emissions reduction analyses on which the state has based its projected attainment. The guidance also discusses criteria EPA expects to use in assessing whether emission limits with longer averaging times of up to 30 days ensure attainment of the SO 2 NAAQS.

For a number of areas, including the Jefferson County nonattainment area, EPA published a document on March 18, 2016, that certain states had failed to submit the required SO 2 nonattainment plan by the submittal deadline. See 81 FR 14736. This finding initiated a deadline under CAA section 179(a) for the potential imposition of new source review and highway funding sanctions, and for EPA to promulgate a federal implementation plan (FIP) under section 110(c) of the CAA. In response to the requirement for SO 2 nonattainment planning submittals, Kentucky submitted SIP revisions for the Jefferson County nonattainment area on June 23, 2017. Pursuant to Kentucky's June 23, 2017, attainment SIP revisions and EPA's subsequent completeness determination letter dated October 10, 2017, the sanctions under section 179(a) were not (and will not be) imposed as a result of Kentucky's having missed the April 4, 2015, submission deadline. Furthermore, with this current action issuing final approval of Kentucky's SIP revisions, EPA's FIP obligation under CAA section 110(c) no longer applies, and therefore no FIP will be imposed to address SO 2 nonattainment planning requirements for the Jefferson County nonattainment area.

On November 9, 2018 (83 FR 56002) (hereafter NPRM), EPA proposed to approve Kentucky's June 23, 2017, SIP revisions which included the nonattainment plan, and SO 2 attainment demonstration, among other SO 2 nonattainment planning requirements. The Commonwealth's SIP revisions included all the specific attainment elements mentioned above, including new SO 2 emission limits found to be comparably stringent to a 1-hour critical emissions value that would ensure attainment of the primary SO 2 NAAQS. Specifically, Kentucky's June 23, 2017, SIP revisions include enforceable SO 2 emission limits for Mill Creek and compliance parameters (monitoring and reporting) established at Plant-wide Specific conditions S1-Standards, S2-Monitoring and Record Keeping and S3-Reporting established in title V permit 145-97-TV(R3). Please refer to EPA's proposed approval notice which contains a detailed discussion of the CAA requirements applicable to SO 2 nonattainment SIPs, along with a comprehensive analysis and rationale for its proposed approval of the Commonwealth's attainment SIP. See 83 FR at 56003-14.

Comments on EPA's November 9, 2018, proposed rulemaking were due on or before December 10, 2018. EPA received two sets of relevant comments on the proposed approval of Kentucky's SIP revisions for the Jefferson County nonattainment area. These comments are available in the docket for this final rulemaking action. EPA's summary of the relevant comments and EPA's responses are provided below.

The remainder of this preamble summarizes EPA's final approval of Kentucky's SIP revisions and attainment demonstration for the Jefferson County nonattainment area and contains EPA's response to public comments.

EPA received two sets of comments which are included in the docket for this final rulemaking. Generally, the comments related to the following topics: (1) The use of a longer-term average in emissions limits; (2) the modeling's treatment of the Kosmos Cement Facility (a source that is outside the nonattainment area and also hereafter referred to as Kosmos); and (3) other comments related to the timing and development of the emissions inventory.

Comment 1: A Commenter has made several comments related to the use of the 30-day rolling average SO 2 emission limit for the attainment demonstration. Some of the comments can be viewed as general to the use of a longer-term average limit, which are being responded to here, and some are more specific to the specific permit limit for the Mill Creek facility, which will be addressed in a following comment response. Regarding the general use of a longer-term average limit, the Commenter asserts that the 720-hour rolling emissions standard that the proposed approval purports to justify is unlawful and jeopardizes the public health and that a 720-hour averaging period is an inadequate proxy for the 1-hour standard required under the CAA because very brief spikes in SO 2 emissions pose serious health harms. The Commenter also cites to the Sierra Club's Petition To The EPA Administrator To Object To Issuance Of The Revised Title V Operating Permit For The Mill Creek Power Plant In Louisville, Kentucky (June 2, 2017) (Docket ID # EPA-R04-OAR-2017-0625-0009) (hereafter “Title V Petition”), and Sierra Club comments to LMAPCD re: Notice of Action on a Title V Operating Permit O-0127-16-V: LG&E Mill Creek Generating Station (Jan. 25, 2017) (Docket ID # EPA-R04-OAR-2017-0625-0011) (hereafter “Permit Comments”). In these documents, Sierra Club provided information about health effects of SO 2 exposure and also explained its position that the 1-hour SO 2 NAAQS requires short-term limits to effectively protect human health. 1

Response 1: EPA appreciates the Commenter's concerns about the appropriateness of approving attainment plans with emission limitations that apply over a longer period than the 1-hour form of the 2010 SO 2 NAAQS. However, as EPA explained in the November 9, 2018, NPRM, and as is further explained below, EPA believes that long-term averaging periods can be appropriate for purposes of attainment planning for the SO 2 NAAQS. EPA also acknowledges the Commenter's concerns regarding health effects of SO 2 exposure. EPA agrees that the NAAQS is crucial for protecting public health around SO 2 emission sources. As such, EPA established the 1-hour SO 2 NAAQS based on such health effects information and will continue to implement the NAAQS to protect public health and welfare based on the authority granted to EPA in the CAA. However, EPA disagrees with the Commenter's implication that the protection against short term SO 2 concentrations, which EPA sought by establishing this 1-hour NAAQS, cannot be achieved with, for example, comparably stringent 30-day average emission limits in appropriate cases.

The following explanation of EPA's guidance with respect to longer-term average limits was provided in its November 9, 2018, NPRM. EPA's “Guidance for 1-hour SO 2 Nonattainment Area SIP Submissions,” (April 2014 guidance) recommends that the emission limits be expressed as short-term average limits ( e.g., addressing emissions averaged over one or three hours), but also describes the option to utilize emission limitations with longer averaging times of up to 30 days, so long as the state meets various suggested criteria. See EPA's April 2014 guidance, pp. 22 to 39. The guidance recommends that the longer-term average limit should be set at an adjusted level that reflects a stringency comparable to the 1-hour average limit at the critical emission value (CEV) shown to provide for attainment that the plan otherwise would have set.

EPA's April 2014 guidance provides an extensive discussion of EPA's rationale for concluding that appropriately set comparably stringent limitations based on averaging times as long as 30 days can be found to provide for attainment of the 2010 primary SO 2 NAAQS. In evaluating this option, EPA considered the nature of the standard, conducted detailed analyses of the impact of the use of 30-day average limits on the prospects for attaining the standard, and carefully reviewed how best to achieve an appropriate balance among the various factors that warrant consideration in judging whether a state's attainment plan provides for attainment. April 2014 guidance at pp. 22 to 39; and also at Appendices B, C, and D.

As specified in 40 CFR 50.17(b), the 1-hour primary SO 2 NAAQS is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour average concentrations is less than or equal to 75 ppb. In a year with 365 days of valid monitoring data, the 99th percentile would be the fourth highest daily maximum 1-hour value. The 2010 SO 2 NAAQS, including this form of determining compliance with the standard, was upheld by the U.S. Court of Appeals for the District of Columbia Circuit in Nat'l Envt'l Dev. Ass'n's Clean Air Project v. EPA, 686 F.3d 803 (D.C. Cir. 2012). Because the standard has this form, a single exceedance of the level of the standard (75 ppb) does not constitute a violation of the standard. Instead, at issue is whether a source operating in compliance with a properly set longer-term average could cause exceedances, and if so the resulting frequency and magnitude of such exceedances. What matters is whether EPA can have reasonable confidence that a properly set longer-term average limit will provide that the 3-year average of the annual fourth highest daily maximum 1-hour value will be at or below 75 ppb. A synopsis of EPA's review of how to judge whether such plans provide for attainment, based on modeling of projected allowable emissions and considering the form of the NAAQS for determining attainment at monitoring sites, follows.

For SO 2 attainment plans based on 1-hour emission limits, the standard approach is to conduct modeling using fixed emission rates. The maximum emission rate that would be modeled to result in attainment is labeled the CEV. The modeling process for identifying the CEV considers the numerous variables that affect ambient concentrations of SO 2 , such as meteorological data, background concentrations, and topography. In the standard approach, the state would then provide for attainment by setting a continuously applicable 1-hour emission limitation at the CEV.

EPA recognizes that some sources may have highly variable emissions that can make it extremely difficult to ensure in practice that emissions for any given hour do not exceed the CEV. EPA also acknowledges the concern that longer-term emission limits can allow short periods with emissions above the CEV, which, if coincident with meteorological conditions conducive to high SO 2 concentrations, could create the possibility of an exceedance of the NAAQS level occurring on a day when an exceedance would not have occurred if emissions were continuously controlled at the level corresponding to the CEV. However, for several reasons, EPA believes that the approach recommended in its April 2014 guidance document suitably addresses this concern.

First, from a practical perspective, EPA expects the actual emission profile of a source subject to an appropriately set longer-term average limit to be similar to the emission profile of a source subject to an analogous 1-hour average limit. EPA expects this similarity because it has recommended that the longer-term average limit be set at a level that is comparably stringent to the otherwise applicable 1-hour limit (reflecting a downward adjustment from the CEV) and that takes the source's emissions profile into account. As a general matter, EPA would expect that any emission limit with an averaging time longer than 1-hour would need to reflect a downward adjustment to compensate for the loss of stringency inherent in applying a longer-term average limit. This expectation is based on the idea that a limit based on the 30-day average of emissions, for example, at a given level is likely to be a less stringent limit than a 1-hour limit at the same level, since the control level needed to meet a 1-hour limit every hour is likely to be greater than the control level needed to achieve the same limit on a 30-day average basis. EPA's approach for downward adjustment is to account for the expected variability in emissions over the averaging period (up to 30 days) to achieve comparable stringency to the emissions and expected air quality impacts for a 1-hour period. As a result, EPA expects either form of emission limit to yield comparable air quality and protect the NAAQS.

Second, from a more theoretical perspective, EPA has compared the likely air quality with a source having maximum allowable emissions under an appropriately set longer-term limit, as compared to the likely air quality with the source having maximum allowable emissions under the comparable 1-hour limit. In this comparison, in the 1-hour average limit scenario, the source is presumed always to emit at the CEV, and in the longer-term average limit scenario, the source is presumed occasionally to emit more than the CEV but, on average, to emit well below the CEV. In an average year, compliance with the 1-hour limit is expected to result in three exceedance days ( i.e., three days with maximum hourly values above 75 ppb) and a fourth day with a maximum hourly value at 75 ppb. By comparison, with the source complying with a longer-term limit, it is possible that additional exceedances of the NAAQS level would occur that would not occur in the 1-hour limit scenario (if emissions exceed the CEV at times when meteorology is conducive to poor air quality). However, this comparison must also factor in the likelihood that exceedances that would be expected in the 1-hour limit scenario would not occur in the longer-term limit scenario. This result arises because the longer-term limit requires lower emissions most of the time (because the limit is set below the CEV), so a source complying with an appropriately set longer-term limit is likely to have lower emissions at critical times than would be the case if the source were emitting as allowed with a 1-hour limit.

As described in Appendix B of EPA's April 2014 guidance, EPA conducted a statistical analysis of various scenarios using actual plant data. In doing so, EPA found that the requirement for lower average emissions is highly likely to yield better air quality than is required with a comparably stringent 1-hour limit. Based on analyses described in Appendix B, EPA expects that an emission profile with maximum allowable emissions under an appropriately set comparably stringent 30-day average limit is likely to have the net effect of having a lower number of exceedances of the NAAQS level and better air quality than an emission profile with maximum allowable emissions under a 1-hour emission limit at the CEV. This result provides a compelling policy rationale for allowing the use of a longer averaging period, in appropriate circumstances where the facts indicate this result can be expected to occur.

The question then becomes whether this approach—which is likely to produce a lower net number of overall exceedances of 75 ppb even though it may produce some unmodeled exceedances on occasions when emissions are above the CEV—meets the requirement in sections 110(a) and 172(c) for state implementation plans to provide for attainment of the NAAQS. For SO 2 , as for other pollutants, it is generally impossible to design a nonattainment plan in the present that will guarantee that attainment will occur in the future. A variety of factors can cause a well-designed attainment plan to fail and unexpectedly not result in attainment, for example if meteorology occurs that is more conducive to poor air quality than was anticipated in the plan. Therefore, in determining whether a plan meets the requirement to provide for attainment, EPA's task is commonly to judge not whether the plan provides absolute certainty that attainment will in fact occur, but rather whether the plan provides an adequate level of confidence of prospective NAAQS attainment. From this perspective, in evaluating use of a longer-term limit up to 30-days, EPA must weigh the likely net effect on air quality. Such an evaluation must consider the risk that occasions with meteorology conducive to high concentrations will have elevated emissions leading to exceedances of the NAAQS level that would not otherwise have occurred and must also weigh the likelihood that the requirement for lower emissions on average will result in days not having exceedances that would have been expected with emissions at the critical emission value. Additional policy considerations, such as in this case the desirability of accommodating real world emissions variability without significant risk of violations, are also appropriate factors for EPA to weigh in judging whether a plan provides a reasonable degree of confidence that the plan will lead to attainment. Based on these considerations, especially given the high likelihood that a continuously enforceable limit, averaged over a period as long as 30 days, determined in accordance with EPA's April 2014 guidance, will result in attainment, EPA believes as a general matter that such limits, if appropriately determined, can reasonably be considered to provide for attainment of the 2010 SO 2 NAAQS.

EPA's April 2014 guidance offers specific recommendations for determining an appropriate longer-term average limit. The recommended method starts with determination of the 1-hour emission limit that would provide for attainment ( i.e., the critical emission value), and applies an adjustment factor to determine the (lower) level of the longer-term average emission limit that would be estimated to have a stringency comparable to the otherwise necessary 1-hour emission limit. The recommended method involves using these data to compute a complete set of emission averages, computed according to the averaging time and averaging procedures of the prospective emission limitation. In this recommended method, the ratio of the 99th percentile among these longer-term averages to the 99th percentile of the 1-hour values represents an adjustment factor that may be multiplied by the candidate 1-hour emission limit ( i.e., the critical emission value) to determine a longer-term average emission limit that may be considered comparably stringent. The April 2014 guidance also addresses a variety of related topics, such as the potential utility of setting supplemental emission limits, such as mass-based limits, to reduce the likelihood and/or magnitude of elevated emission levels that might occur under the longer-term emission rate limit.

The Commenter objected in principle to EPA's proposed approval of the use of longer-term average limits in the Commonwealth's attainment plan, but the Commenter does not provide any critique of the specific elements of the above rationale for EPA's proposed views. Nor does the Commenter explain why EPA should revise its views as to the suitability of longer-term average limits in principle as appropriate elements of attainment plans, subject to case-specific reviews as to whether the specific limits in specific cases satisfy EPA's recommended criteria and whether, as a result, the specific plans may be considered to provide for attainment. Therefore, EPA continues to believe in principle that longer-term average limits, such as the 30-day limits applicable here, if appropriately determined, are a suitable element of an attainment plan that may be judged to provide for attainment.

In this action, EPA is not changing its position regarding the sufficiency in meeting the NAAQS of the 1-hour emissions limitations to which other facilities are subject; EPA is merely reaffirming that properly set longer-term average limits can also provide for attainment, and concluding that the Commonwealth's limits, including 30-day average limits for Mill Creek, in fact provide for attainment of the 1-hour SO 2 standard.

Comment 2: In addition to general concern with the use of a longer-term average for compliance with the 2010 1-hour SO 2 standard (see Comment 1), the Commenter expresses specific concerns with how the emissions limits were established for Mill Creek. Those specific comments can be subdivided into the following topics: (a) Mill Creek's emissions are not steady-state enough to make the 720-hour limit interchangeable with a 1-hour standard; (b) the 0.20 lb/MMBtu [pounds per one million British Thermal Units] 720-hour average emission limit for Mill Creek is too lax, as it was calculated opaquely and based on a 1-hour CEV that LMAPCD and an independent expert found to be too high to meet the NAAQS; (c) the adjustment factors to establish the longer-term limit were inappropriately based on operations of Mill Creek before the controls were installed (2009-2013 operations, instead of 2014-2016 for the installation of the controls—in the Commenter's opinion, the limits were based on variability of facility operations that are no longer valid (since new controls are in place)); and (d) the data used to demonstrate that emissions would rarely be above the CEV (limits established using 2009-2013 operations) were from April 2016-March 2018, after the new controls became operational. In the Commenter's opinion, the demonstration that those limits are effective is invalid since the demonstration is based on operations that were not used to set the limits in the first place.

Response 2: For clarity, EPA will respond separately to each of the above 4 subdivided comments.

Response 2a: EPA does not agree with the Commenter that it is necessary to have steady state emissions in order to establish a longer-term emission limit that will demonstrate attainment with a 1-hour NAAQS. The Commenter implies that unless emissions are steady state, a 720-hour limit is not “interchangeable” with a 1-hour limit. EPA disagrees. EPA's policy is designed to address situations with variable emissions, and to offer the option for agencies to adopt a longer-term limit that is “interchangeable” with a 1-hour limit in the sense of providing comparable assurances that the standard will be attained, notwithstanding this accommodation of variable emissions. As we explained in our April 2014 guidance, as a general matter, EPA would expect that any emission limit with an averaging time longer than 1-hour would need to reflect a downward adjustment to compensate for the loss of stringency inherent in applying a longer-term average limit. This is why the April 2014 guidance describes a procedure for establishing a longer-term limit that is designed to have comparably stringency to a 1-hour average limit at the CEV. In the case of Mill Creek, the 1-hour CEV is 0.29 lb/MMBtu, but the proposed 720-hour limit is well below this value at 0.20 lb/MMBtu.

The Commenter also referenced pages of the Title V Petition with a chart described as depicting Mill Creek's SO 2 emissions for nine months in 2016 and concludes that this chart shows that a 30-day average for Mill Creek smooths out instances of excessive 1-hour emissions, which the Commenter contends are relatively frequent and substantial. The Commenter's chart on page 5 of the Title V Petition largely relies on emissions prior to the installation of the improved flue gas desulfurization (FGD) controls and therefore does not reliably depict the potential of Mill Creek, in compliance with its limit, to emit above the CEV. As further explained in Response 2d below, EPA performed an analysis of 3-1/2 years of post-control upgrade emissions and found emissions periods above the CEV to be rare.

Response 2b: EPA disagrees with the Commenter that the 0.20 lb/MMBtu emission limit is too “lax.” First, the Commenter asserts that the limit was calculated opaquely. As described in detail in EPA's November 9, 2018, NPRM (see 83 FR 56010-11), LMAPCD and the Commonwealth performed modeling to determine an appropriate CEV for each unit, which demonstrates compliance with the 1-hour SO 2 NAAQS. After this, an adjustment factor was calculated and used to determine the appropriate 720-hour emission limit of 0.20 lb/MMBtu. As explained in the NPRM, Kentucky used the procedures in EPA's guidance to determine a compliance ratio (adjustment factor) of 0.69, which when multiplied by 0.29 lbs/MMBTU yields a 30-day average limit of 0.20 lbs/MMBTU. The detailed calculations yielding this adjustment factor were provided in a spreadsheet that Kentucky included as an appendix to the June 23, 2017 attainment SIP (see Appendix 4), as well as in the supporting documents of EPA's November 9, 2018, NPRM ( See Docket ID: EPA-R04-OAR-2017-0625).

Second, the Commenter asserts that the limit was based on a CEV that was too high to satisfy the NAAQS. EPA disagrees with the Commenter's assertion that the CEV in the modeling performed by LMAPCD and the Commonwealth are too high to demonstrate compliance with the NAAQS. As discussed below, EPA continues to believe that the modeling provided in Kentucky's 2017 attainment demonstration is acceptable and appropriate for demonstrating that Mill Creek's emissions limit will provide for attainment of the NAAQS.

The Commenter cited to an independent expert report and previous comments by LMAPCD, which were included in the Title V Petition. EPA has evaluated the independent expert report and has found aspects of the modeling that deviate from EPA's recommended procedures in the Modeling Guidance for SO 2 Nonattainment Areas (Nonattainment Modeling Guidance), 2 the Guideline on Air Quality Models (Guideline) in 40 CFR part 51, Appendix W, and common modeling practices. These deviations from EPA's recommended procedures create uncertainty in the results and the conclusions presented in the report. Areas where the modeling deviates from EPA's recommended procedures include: (1) Three years (2010-2012) of meteorology data were used to perform the modeling, whereas Kentucky's SIP attainment modeling used five years of meteorology (2011-2015) as recommended in Section 7.2 of the Nonattainment Modeling Guidance and Section 8.4 of the Guideline to ensure that worst-case meteorological conditions are adequately represented in the model results; (2) actual stack heights of 182.9 meters (600 feet) for Mill Creek's boilers were used in the modeling, whereas the Commonwealth's attainment SIP modeling more appropriately used the Good Engineering Practice (GEP) stack heights of 142.88 meters (469 feet) that were determined in accordance provisions of EPA's stack height regulations in 40 CFR 51.100; (3) an older version of the AERMOD modeling system (version 12345) was used, whereas the attainment SIP modeling used the most recent version of AERMOD (version 15181) that was available at the time the attainment demonstration (developed in 2016-2107); and (4) flagpole heights of 1.5 meters were used for all modeled receptors to reflect a representative inhalation level, whereas the Commonwealth's SIP attainment modeling followed common AERMOD modeling practice of placing receptors at ground level, which EPA believes is more appropriate.

The Commenter asserts that LMAPCD previously recognized that the 720-hour emission limit of 0.20 lb/MMBtu was too high, citing to the Title V Petition. It appears that the Commenter is referencing a discussion on pages 8-9 that references an October 12, 2015 letter from LG&E to LMAPCD. 3 The letter states LG&E's understanding, based on information and data provided by LMAPCD to LG&E, that the modeled CEV translates to a one-hour limit of 0.24 lbs/MMBtu (and a 0.17 lbs/MMBtu 30-day limit). EPA is uncertain of the basis of this limit, and the information and data referred to in this letter. It appears that Commenter is referencing this limit to suggest that LMAPCD, at one time, contemplated a more stringent limit, but LMAPCD is making no such contention in the context of the attainment SIP that EPA is approving today. To the extent that LMAPCD previously considered a different limit, it is not uncommon for state and local technical analyses to evolve during the development of plans and permitting such changes do not, standing alone, lend support to a contention that the state or local final plan is inadequate. Regardless, as discussed in the NPRM and the Responses to Comment 2, EPA has evaluated the 0.20 lb/MMBtu 30-day rolling average limit and is determining that the limit is sufficient to demonstrate attainment of the standard.

Response 2c: The commenter correctly notes that the adjustment factor was determined based on the emissions data from the years 2009-2013. Furthermore, the commenter correctly observes that this period precedes the upgrades in the Mill Creek control systems needed to comply with the SIP limits, and the Commenter accurately notes statements in the April 2014 guidance indicating that installation of control equipment is prone to increase the variability of emissions.

For this attainment SIP, as for most SIP submittals addressing a need for additional emission control, the adequacy of the SIP depends on the adequacy of the projection of the future. At issue here in particular is the adequacy of the projection of future variability of emissions at Mill Creek. The April 2014 guidance addresses a number of factors to be considered in order to make the best feasible projection of the variability of emissions once the SIP is implemented. The November 9, 2018, NPRM ( See 83 FR 56010) addresses how EPA weighed these factors. Kentucky preferred to use data from Mill Creek to evaluate Mill Creek emissions variability, and the data from 2009 to 2013 were the most robust data available for a period with stable operation ( i.e., for a period without changes in the applicable control system or instability associated with the startup of the improved control system). The period from 2014 to 2016 included some operations before the control upgrades  4 and some post-upgrade, so that use of these data could be more of an assessment of the variability between the existing and improved control systems rather than an assessment of variability of emissions within the improved control system. Furthermore, the national average data provided in Appendix D of the April 2014 guidance suggest that plants that already have controls comparable to those being required for Mill Creek have variability comparable to the variability projected for Mill Creek. That is, if Kentucky had chosen to project variability at Mill Creek based on variability of another already well controlled plant, it likely would have found a similar adjustment factor as it found with the pre-upgrade emissions data for pre-upgrade Mill Creek emissions data. Consequently, EPA continues to believe that these data were the best data available at the time to estimate the variability of the emissions to be expected at Mill Creek and calculate the adjustment factor needed to establish a longer-term emission limit.

An additional pertinent factor is that during 2009 to 2013, Mill Creek did have existing wet-FGD scrubbers. The typical effect of control on variability can be inferred from Appendix D of the April 2014 guidance, showing national average adjustment factors for uncontrolled facilities and for facilities with a few types of control. EPA would expect that upgrading a control would have less effect on variability than installing a fully new control system. Therefore, EPA would expect Mill Creek to experience less change in variability than facilities that went from no control to full control; indeed, EPA believes that the 2009 to 2013 data should be reasonably indicative of variability following implementation of the control upgrades.

Nevertheless, additional data are now available for a period after the completion of the control upgrades at Mill Creek. EPA analyzed these data, to obtain further insight into how well Kentucky's assessment served as a forecast of post-control emissions variability. For each unit, this analysis used emissions data after completion of the control upgrade until the end of 2018, which at the time of the analysis was the most recent available data. (Specifically, the first data point was taken 30 days after completion of the upgrade, to avoid being influenced by any potential instability in operation of the newly upgraded equipment.) On average, these data sets comprise 3-1/2 years for each unit, which is less than the 5 years that Kentucky analyzed but sufficient to likely be adequately robust. In addition, while this analysis generally used hourly emissions data reported to EPA for emissions trading program purposes, EPA excluded a handful of data points reflecting data substitution, where missing parameter data result in the reporting of extreme emission rates. 5 EPA analyzed these data in accordance with the data handling procedures that it understands that Kentucky will be using to assess compliance with these limits. The results of this analysis, as expected, indicated that the upgrading of control systems had only a relatively modest effect on variability. A spreadsheet providing the full details of EPA's analysis is included in the docket for this rulemaking ( See Docket ID: EPA-R04-OAR-2017-0625). 6

The modeling provided by Kentucky showed a modeled design value somewhat below the NAAQS, specifically at 190.1 micrograms per cubic meter (µg/m 3 ) as compared to the NAAQS at 196.4 µg/m 3 . Thus, even if a modestly lower adjustment factor were applied (suggesting that a modestly higher hourly limit would correspond to a 30-day average limit of 0.20 lb/MMBtu), the plan would still provide for attainment.

In summary, Kentucky used the most appropriate data available at the time it was preparing the attainment SIP. Kentucky applied an adjustment factor slightly more restrictive than the pertinent national average adjustment factor provided in EPA's guidance, suggesting that development of an adjustment factor based on data from another plant would have yielded a similar adjustment factor. The fact that the facility had existing wet-FGD scrubbers during the period Kentucky analyzed would be expected to improve its suitability for assessing variability following implementation of the SIP. The plan provides a modest margin for uncertainties for example in the appropriate adjustment factor. For this set of reasons, EPA concludes that, notwithstanding the upgrade of emission controls since the time used for determining an adjustment factor, Kentucky has applied an adjustment factor that is likely to be sufficiently reliable to warrant a conclusion that the adjusted limit Kentucky established is comparably stringent to the modeled 1-hour CEV and therefore provides for attainment of the 1-hour SO 2 standard.

Response 2d: Contrary to the Commenter's stated view, EPA believes that our own analysis of the post-upgrade 2016-2018 data, as summarized in the EPA's November 9, 2018, NPRM is valid. At issue here is whether the establishment of a 30-day average limit is likely to provide a sufficient constraint on 1-hour emission levels for EPA to anticipate that occasions of emissions above the CEV will be infrequent. The best data for assessing the likely frequency of 1-hour emissions higher than the CEV during periods of compliance with the longer-term limit are data during periods of compliance with the longer-term limit. Thus, EPA's analysis, using recent data during which the facility met the longer-term limit, provides the most valid assessment of the pertinent question, and indeed provides a substantially more valid analysis than would have been obtained following the commenter's suggestion to use data from a period with routine long-term average values above the 30-day average limit.

Regardless of whether the Commenter agrees with how the 720-hour permit limit was set, the analysis of the newer emissions data demonstrates, based on the current operation after the control upgrades, that the frequency of time the emissions are over the CEV is expected to be minimal. In addition to the analysis of post-control data that was summarized in EPA's November 9, 2018, NPRM, the Agency has further evaluated the data with the addition of the most recent 9 months of emissions data. In summary, EPA has now looked at post-upgrade data through December 2018. 7 This analysis confirms our belief as proposed that the frequency of time that emissions are over the CEV is minimal. 8 In this current analysis, during periods that the units met the 30-day average limit of 0.20 lb/MMBtu, the frequencies with which emissions from Unit 1, Unit 2, Unit 3, and Unit 4 were higher than the 1-hour critical emission rate were 0.1 percent, 0.2 percent, 0.1 percent, and 0.5 percent, respectively. This analysis supports EPA's conclusion that the 30-day average limit of 0.20 lb/MMBtu in title V permit 145-97-TV(R3) for EGU U1, U2, U3 and U4 for Mill Creek is sufficient to demonstrate attainment without additional conditions to limit the frequency of elevated emissions or the imposition of shorter-term averaging periods ( e.g., 24 hours).

Comment 3: A Commenter expresses concern about EPA's November 9, 2018, NPRM and the treatment of emissions from Kosmos in relation to the attainment demonstration for the Jefferson County nonattainment area. Generally, the Commenter believes that Kosmos should be considered a source to evaluate for an emission limit as part of the SIP, and not treated as either a “nearby” source or an “other” source considered in the background. Specifically, the Commenter claims that considering Kosmos as a background source is unsound and unlawful, in conflict with EPA's guidance at 40 CFR part 51 Appendix W. The Commenter references air dispersion modeling performed by LMAPCD to site a monitor in the vicinity of Kosmos (proposed Kosmosdale monitor) using the AERMOD model to support its claim that Kosmos should be explicitly modeled to have its emissions impact characterized. The Commenter indicates that the results of this modeling appear to show violations of the 1-hour SO 2 NAAQS both inside and outside the nonattainment area boundary and appear to show that Kosmos causes a significant concentration gradient inside the nonattainment area, which is demonstrated using either normalized or not normalized emissions.

Response 3: Since EPA continues to believe that Kentucky's attainment modeling is appropriate, in which Kosmos' emissions impacts are adequately represented by modeling accounting for Kosmos as a background source, the Agency does not agree with the Commenter's assertion that Kosmos should be evaluated for an emissions limit to be included in the SIP or treated as a “nearby source,” as defined in Section 8.3.1 of EPA's Guideline on Air Quality Models contained in 40 CFR part 51, Appendix W (Appendix W). EPA's rationale for finding that Kentucky's treatment of Kosmos as an “other source” and addressing its impacts with a representative ambient background concentration to be appropriate is fully discussed in Section IV.B.5 of EPA's November 9, 2018, NPRM. The following discussion briefly summarizes EPA's independent analysis, presented in the November 9, 2018, NPRM, that was done to assess the Commonwealth's conclusion that the Green Valley background monitor adequately represents background concentrations of SO 2 within this nonattainment area, and any impact from Kosmos. In accordance with Section 8.3.1.a.i of Appendix W, EPA evaluated whether Kosmos would cause a significant concentration gradient in the vicinity of the Mill Creek source. EPA applied the rule of thumb criterion discussed in Section 8.3.3.b.ii of Appendix W, which provides that the magnitude of a concentration gradient will be greatest in the proximity of the source and will generally not be significant at distances greater than 10 times the height of the stack(s) at that source without consideration of terrain influences. The height of the cement kiln stack at Kosmos is 75 feet (approximately 23 meters), and there are no significant terrain features located near Kosmos or within the nonattainment area boundary. Therefore, concentration gradients should be comparatively modest beyond 230 meters from the stack. The closest edge of the nonattainment boundary is approximately 480 meters from the stack, which is more than twice the distance of this general rule of thumb. Therefore, EPA determined that the SO 2 emissions from Kosmos would not result in a significant concentration gradient within the nonattainment area boundary and therefore can be treated as an “other source” in the attainment demonstration modeling. EPA also evaluated whether the Green Valley background monitor data is appropriate to represent the potential SO 2 concentration impacts from Kosmos within the nonattainment area. Based upon an assessment of wind patterns in the Louisville area, the SO 2 emissions sources in the vicinity of the Green Valley monitor, and comparing those sources to the Kosmos source, EPA determined that the Green Valley monitor reasonably indicates the impact of Kosmos on the nonattainment area. 9

Additionally, EPA considered whether Kosmos should be evaluated for an emission limit to include in the SIP as recommended by the Commenter, and ultimately concluded that the Commonwealth's treatment of Kosmos is acceptable and Kosmos did not need to be a “Source Subject to SIP Emissions Limit Evaluation for Compliance with Ambient Standards” as specified in Table 8-1 of Appendix W. SO 2 is a source-oriented pollutant and concentrations are often due to a single large industrial source or group of sources with localized impacts that usually have a limited number of sources affecting areas of air quality which are relatively well defined. Emissions control measures for such sources result in swift and dramatic improvement in air quality. In 2013, EPA designated those areas that were determined to be impacting or contributing to a violation at an ambient air quality monitor (known as round 1 designations). At the time of designations for Jefferson County, Kentucky, it was determined that Mill Creek was the primary cause and contributor to the violation at the Watson Lane monitor (AQS ID: 21-111- 0051) based on best available ambient air quality data, emissions and other information that informed EPA's final designation of nonattainment around the Mill Creek facility and the Watson Lane monitor. EPA considered evidence of source-receptor relationships between specific emissions sources and high SO 2 values at violating monitors in determining the appropriate contributing areas and the appropriate extent of the nonattainment area boundary in round 1 designations. This included assessing meteorological data nearest to the then violating Watson Lane monitor to determine which wind vectors were associated with 1-hour SO 2 concentrations exceeding the NAAQS level. Mill Creek was the largest SO 2 emission source near the Watson Lane monitor, located approximately 1.5 kilometers (km) southwest of the monitor. EPA's review of meteorological data as well as emission data indicated that the majority of the NAAQS level-exceeding hours at the monitor occurred during times when the wind blew from the direction of Mill Creek ( i.e., from southwest of the monitor) supporting EPA's conclusion that Mill Creek was likely causing the monitored violations. Therefore, EPA established the boundary around Mill Creek and the Watson Lane monitor based on technical evidence that Mill Creek was causing violations of the SO 2 standard at the monitor. EPA considered jurisdictional boundaries for the purposes of providing a clearly defined legal boundary and to help identify the areas appropriate for carrying out the air quality planning and enforcement functions for nonattainment areas. Kosmos was not the focal point for round 1 designations. In EPA's round 1 designation Technical Support Document (TSD) for Kentucky, EPA explained that areas and sources that we were not then yet prepared to conclude are contributing to the monitored violations were not being included in initial nonattainment areas. EPA did not receive any additional information or comments during the 30-day public comment period for the 2013 round 1 designations asserting that Kosmos was causing or contributing to the violation at the monitor, nor did any petitioner timely challenge the designation for the portion of Jefferson County. That opportunity to bring such a challenge has long since passed. See EPA's response to Comment #6.

Mill Creek is the only SO 2 emitting major point source in the nonattainment area and the only emission source explicitly modeled in the attainment modeling analysis submitted by the Commonwealth for the Jefferson County nonattainment area. All minor area sources and other major point sources (located outside the nonattainment area boundary) were accounted for with the background concentration as discussed in Section IV.B.5. of the November 9, 2018, NPRM. Decreasing trends in Mill Creek SO 2 emissions and ambient monitor concentrations in the nonattainment area at the Watson Lane monitor since 2013 support the Commonwealth's focus on Mill Creek. From 2013 to 2017, actual SO 2 emissions from Mill Creek reported in EPA's Clean Air Market program database decreased from 28,150 tons per year (tpy) to 3,040 tpy due to the new Mill Creek emissions controls, while the Watson Lane ambient monitor design concentrations decreased from 148.6 ppb to 13.7 ppb during the same 5-year period. Despite the Mill Creek and Kosmos sources being in close proximity to each other, the nature of each source and their specific locations provide for distinct spatial patterns of modeled concentration impacts from Mill Creek's emissions, which are emitted from relatively tall stacks (469 feet)  10 and Kosmos' emissions, which are emitted from a relatively short stack (75 feet). The modeling to site the Kosmos monitor conducted by LMAPCD and referenced by the Commenter (in which both Kosmos and Mill Creek were modeled with allowable emissions to find the area of maximum impact from Kosmos' emissions), shows that the highest modeled concentrations were observed outside the nonattainment area southwest of Kosmos' property boundary (in the opposite direction from the nonattainment area and the Watson Lane monitor). 11 In contrast, in the attainment SIP modeling provided by the Commonwealth, where only Mill Creek emissions were explicitly modeled and other sources, including Kosmos, were addressed in the background concentration, the maximum area of impact from Mill Creek's emissions in the nonattainment area is located near the Watson Lane monitor. The results of these modeling analyses show that Mill Creek and Kosmos have different areas of impact and that Kentucky's decision to only evaluate the Mill Creek sources for control to bring the Jefferson County nonattainment area back into attainment with the 1-hour SO 2 NAAQS is appropriate.

The Commonwealth's attainment SIP demonstrates that the emissions limits for Mill Creek provides modeled and monitored attainment for the area and appropriately accounts for the contribution of Kosmos and other sources consistent with EPA's Guidelines and governing regulations (as discussed in the November 9, 2018, NPRM and supported by additional analysis by EPA within that proposal). SO 2 control measures are by definition based on what is directly and quantifiably necessary to attain the SO 2 NAAQS and it would be unlikely for an area to implement the necessary emission controls yet fail to attain the NAAQS. Attainment plans for SO 2 must meet the applicable requirements of the CAA, and specifically CAA sections 110, 172, 191, and 192. As EPA has explained in the April 2014 guidance and in numerous proposed and final SIP rulemakings implementing the SO 2 NAAQS, a key element in an approvable SIP is the required modeling demonstration showing that the remedial control measures and strategy are adequate to bring a previously or currently violating area into attainment. The Commonwealth's attainment SIP required Mill Creek, the primary SO 2 source in the area, to implement a control strategy in accordance with the CAA and EPA's technical guidance and included a modeled demonstration of attainment by the statutory attainment deadline. During round 1 designations EPA determined Mill Creek to be the primary source of violations at the Watson Lane monitor. The Commonwealth's attainment plan addressed the violations of the 2010 standard through the implementation of an emission reduction control strategy for Mill Creek, the primary SO 2 source determined to cause measured violations at the ambient air monitor that demonstrated modeled attainment of the 2010 standard. The plan accounted for other sources outside the nonattainment area, including emissions from Kosmos, in the background concentrations. As EPA explained in the November 9, 2018, NPRM and as determined through the modeled attainment demonstration submitted by Kentucky, the evaluation of controls for other sources within or outside the nonattainment area is not necessary to show compliance with 2010 standard. Therefore, in the context of considering the approvability of Commonwealth's attainment SIP including the adequacy of control measures to provide for modeled attainment of the air quality standard under sections 172 and 192, EPA believes it is reasonable to focus on the modeled results that specifically account for those control measures at Mill Creek and their resulting reductions in SO 2 emissions that demonstrate attainment in the Jefferson County nonattainment area. For the reasons described in the November 9, 2018, NPRM and elsewhere in this rule, EPA has concluded that the Commonwealth's SO 2 attainment plan meets the requirement in CAA sections 172(c) and 192(a), and 40 CFR 51.112, to include a modeling demonstration that the Mill Creek control measures included in the plan provide for attainment for the Jefferson County Area.

EPA notes that the LMAPCD's modeling referenced by the Commenter, and which was not submitted by Kentucky to support its attainment demonstration, was conducted for a different purpose than for informing the attainment SIP demonstration. Namely, it was performed to determine the best location to site a new ambient air monitor to characterize future maximum concentrations near the Kosmos facility and used Kosmos' permitted allowable emissions following procedures provided in EPA's SO 2 Designations Monitoring Technical Assistance Document (TAD). 12 As referenced by the Commenter, LMAPCD presented the results of modeling with both absolute and normalized concentrations. EPA disagrees with the Commenters assertion that LMAPCD's absolute and normalized modeling results show that Kosmos causes a significant concentration gradient inside the nonattainment area. For purposes of attainment demonstrations, modeling with allowable emissions is the type of modeling expected under Appendix W for sources being evaluated for new SIP emissions limitations and the new allowable level typically reflects a reduction in emissions from past actual emissions. As explained above and in the response to Comment 6, EPA is concluding that Kosmos is not such a source. Assuming for argument that Kosmos could not be adequately characterized as an “other source,” Section 8.2.2.b. and Table 8-1 in Appendix W provide that for “nearby sources” emissions reflective of actual operation over the most recent two years shall be used in cumulative impact modeling for attainment demonstrations or for evaluating whether nearby sources cause a significant concentration gradient in the area. LMAPCD's modeling referenced by the Commenter was performed using Kosmos' allowable emissions without accounting for recent actual operation, so it is not appropriate to assess concentration gradients or contribution to the nonattainment area since it does not reflect actual operations. EPA concludes that for the SIP attainment demonstration, Kosmos is adequately represented by background emissions in Kentucky's modeling analysis as an “other source.” As such, we reject the Commenter's view that the more conservative modeling using Kosmos' allowable emissions that is not required by EPA's rules for “nearby sources” must be viewed as a better and preferred characterization of impacts from Kosmos as an “other source.”

Furthermore, the monitoring data trends during the time period corroborate the existence of the substantial air quality benefits from the significant SO 2 reductions from Mill Creek facility. In addition to the modeling demonstrating attainment of the SO 2 standard, actual monitored 99th percentile of 1-hour daily maximum concentrations at the Watson Lane monitor do not show violations of the NAAQS. Based on technical and policy considerations, EPA believes that the Kosmos facility was adequately accounted for in the attainment demonstration modeling and was not required to be evaluated for additional controls.

Comment 4: A Commenter indicates that EPA's November 9, 2018, NPRM suggests that there is no need for an Agreed Board Order (ABO) to characterize air quality in the vicinity of Kosmos if EPA believes that the potential impacts of Kosmos are characterized by a distant monitor. Additionally, the Commenter argues that there is no logical reason for LMAPCD and the state to enter into the agreement if the option of including Kosmos as an “other,” or background, source was available for SIP approval.

Response 4: EPA does not believe that it is appropriate to draw this conclusion from the November 9, 2018, NPRM (or this final rule). The more appropriate conclusion to draw is that, for the purpose of attainment demonstration modeling for the Jefferson County nonattainment area, it is appropriate to consider Kosmos a background source. See EPA's response to Comment 3 above for EPA's response related to treating Kosmos as a background source. Although EPA believes for the purpose of attainment modeling for the Jefferson County nonattainment area it is appropriate to consider Kosmos a background source, the Agency also supports the efforts of Kentucky and LMAPCD to further characterize air quality in the area  13 near Kosmos in order to continue to verify that there are no violations of 2010 1-hour SO 2 NAAQS in either the Jefferson County nonattainment area or in other areas potentially impacted by Kosmos' emissions. As was mentioned in EPA's November 9, 2018, NPRM, LMAPCD and Kosmos have entered into an ABO to evaluate the ambient concentrations of SO 2 in the vicinity of Kosmos. That evaluation is ongoing and is separate from this action. Today's SIP approval action, however, should not be interpreted as precluding that evaluation from continuing, nor should it be interpreted as providing a conclusion regarding current SO 2 air quality outside the Jefferson County nonattainment area and, specifically, in the vicinity of the Kosmos facility.

EPA also notes that, if additional characterization of ambient concentrations of SO 2 in the vicinity of Kosmos raises concerns with continued NAAQS attainment or maintenance in either the Jefferson County area or other areas, the Commonwealth and LMAPCD have the authority to remedy any potential violation of a NAAQS through SIP-approved and statutory provisions. 14

Comment 5: A Commenter asserts that treatment of Kosmos as a background source undermines the modeling that was used to site the Kosmos monitor and implies that the significant concentration gradient shown in the 2017 Network Plan's modeling is fictitious. The Commenter noted that EPA approved the 2017 Network Plan and asserts that EPA must either determine that the concentration gradient is significant and Kosmos should be explicitly modeled (which the Commenter claims was EPA's position as of June 2018) or determine that the AERMOD model does not simulate impacts from sources with short releases such as Kosmos Cement and disregard all regulatory modeling conducted for such sources.

Response 5: As presented in the LMAPCD's 2017 Network Plan, modeling was performed using Kosmos' permitted maximum allowable emissions and operations in order to determine the best location to site a new ambient air quality monitor to characterize the future maximum 1-hour SO 2 concentrations near the Kosmos facility. This was done in accordance with the SO 2 NAAQS Designations Source-Oriented Monitoring Technical Assistance Document (TAD) which recommends the use of modeling to determine suitable monitor placement characterizing areas of maximum SO 2 concentrations. Specifically, for these purposes, the SO 2 NAAQS Designations Source-Oriented Monitoring TAD references the SO 2 NAAQS Designations Modeling TAD which in Section 5 discusses the use of allowable or potential-to-emit emissions when actual emissions are unavailable. LMAPCD appropriately followed these modeling procedures for siting a new ambient air monitor. However, as discussed in EPA's response to Comment #3, since LMAPCD's modeling was performed with maximum allowable emissions and operations and does not incorporate actual operation of the Kosmos facility, it was not performed as prescribed in Section 8.2.2.b., and Table 8-1 in Appendix W for evaluating Kosmos' concentration gradient or contribution to concentrations within the nonattainment as a nearby source.

With respect to the Commenter's suggestion that EPA must either determine that Kosmos must be explicitly modeled or determine that AERMOD is not adequate to simulate impacts from short stack releases, EPA does not agree that this action poses this dilemma. As EPA has explained, the SIP modeling appropriately treats Kosmos as a background source. Further, EPA is making no determination on the adequacy of AERMOD, generally, in the context of this action. Rather the only determination EPA is making regarding AERMOD in this action concerns its evaluation of the appropriateness of Kentucky's use of AERMOD in its attainment demonstration modeling, which EPA is concluding is appropriate.

Comment 6: A Commenter questions EPA's designation process for the 2010 SO 2 NAAQS. Specifically, the Commenter claims EPA has erroneously designated Kosmos' area as attaining the NAAQS and that Kosmos should therefore be considered a source to evaluate for an emissions limit as part of a SIP, rather than a nearby source or an “other” or background source.

Response 6: First, for the reasons previously explained, EPA concludes that it was not necessary to evaluate Kosmos for an emission limit to include in the SIP, and that Kentucky has appropriately characterized Kosmos' emissions impacts in the nonattainment area. See EPA's response to Comment #3. Second, EPA believes that the Commenter's reference to EPA's round 3 SO 2 designations signed on December 21, 2017 (83 FR 1098), is outside the scope of this action to approve the nonattainment planning SIP for the Jefferson County nonattainment area. In proposing to approve the SIP addressed in this action, EPA did not reopen either of the designations addressing Jefferson County, Kentucky, and this final action has no final effect on those designations. EPA also notes that no petitioner timely challenged the designation for Kosmos' area, and that the opportunity to bring such a challenge has long since passed. However, for informational purposes EPA notes that, generally, designations are based on the best ambient air quality data available at the time of designation to determine if an area meets or does not meet the standard. EPA's attainment/unclassifiable designation for the remaining portion of Jefferson County, in which the Kosmos facility resides, was finalized in January 2018 and became effective on April 9, 2018. See 83 FR 1098 (January 8, 2018). EPA provided a 30-day public comment period (although not required by section 107(d) of the CAA) on the Agency's intended designations published in a notice of availability requesting public comments from interested parties, other than the states, territories and tribes on September 5, 2017. See 82 FR 41903. Additionally, interested parties who had submitted comments had an opportunity to file a petition for judicial review within 60-days after the publication date of the final rule for EPA's designations. EPA received no comments on its intended attainment/unclassifiable designation for the remaining portion of Jefferson County, Kentucky nor did the Agency receive a petition for judicial review challenging the final attainment/unclassifiable designation for the remaining portion of Jefferson County, Kentucky.

Comment 7: A Commenter claims that EPA reversed its position on how to treat Kosmos from the time that EPA provided the Commonwealth preliminary comments on its submission when it was under review at the state level and prior to formal submission to EPA. The Commenter points to Louisville's March 17, 2017, prehearing SIP submittal and EPA's April 18, 2017  15 letter commenting on this prehearing submittal where EPA recommended treatment of Kosmos as a nearby source. The Commenter suggests that these previous preliminary comments show that EPA's November 9, 2018, NPRM to approve Kentucky's treatment of Kosmos as a background source constitutes an arbitrary and capricious shift in position and is not supported by the record.

Response 7: First, it is not uncommon during continuing discussions with states for EPA's positions on the manner in which states address attainment planning to evolve as technical information continues to be developed and submitted to EPA, evaluated by Agency staff, and refined. This is exactly what happened in this case, and EPA rejects the assertion that the fact of such evolution alone shows that our final approval is arbitrary and capricious. In Section IV.B.5 of the November 9, 2018 NPRM, EPA detailed its analysis of the appropriateness of treatment of Kosmos as an “other source” and addressing its impacts with a representative ambient background concentration. See also EPA's response to Comment #3 on the rationale for the treatment of Kosmos. The Commenter did not express any technical concerns with this analysis in the November 9, 2018, NPRM. EPA believes the record supports EPA's determination that the Commonwealth's treatment of Kosmos as an “other source” is appropriate and does not agree that its earlier comments on the Commonwealth's preliminary submittal show that its current approach is arbitrary and capricious and not supported by the record.

Comment 8: A Commenter asserts that EPA is establishing the monitor as a means of compliance with the attainment demonstration and expresses concerns about this assumption.

Response 8: EPA disagrees with the Commenter's characterization of the role of the Kosmosdale monitor. EPA concludes in this rulemaking that Kentucky's plan provides for attainment in the established nonattainment area, and at the same time EPA supports Kentucky's efforts to pursue additional monitoring information to characterize air quality outside the nonattainment area in the vicinity of the Kosmos facility. EPA notes that its evaluation of the Commonwealth's SIP revision is based on the CAA requirements for attainment planning and on established guidance related to attainment plans. As outlined in EPA's November 9, 2018, NPRM, the Agency's proposed approval of the SO 2 attainment SIP is solely based on the Agency's determination that the plan complies with the nonattainment planning requirements of section 172(c) of the CAA for demonstrating attainment. LMAPCD's board order does not supplement the Commonwealth's attainment SIP nor did the Commonwealth request the order be incorporated into the SIP. As indicated in EPA's April 18, 2017, comment letter, EPA and the Commonwealth and LMAPCD have discussed appropriate consideration of Kosmos. This is reflected in the discussion in Section IV.B.5 of the November 9, 2018, NPRM regarding the appropriate treatment of Kosmos in the attainment demonstration modeling.

Comment 9: A Commenter expresses concerns with connecting the timing of the deployment of the monitor near Kosmos with the attainment demonstration for the Jefferson County nonattainment area and notes that the monitoring plan is not contingent on the SIP submittal.

Response 9: EPA agrees with the Commenter that the ambient air monitoring network plan is not contingent on a SIP submittal. The network plan is a separate regulatory planning process. On February 1, 2018, EPA approved siting the Kosmosdale monitor (AQS ID: 21-111-0065) to characterize the maximum ambient1-hour SO 2 concentration near Kosmos as part of the 2017 Kentucky Ambient Air Monitoring Network Plan.

Comment 10: Based on a Commenter's review of EPA's November 9, 2018, NPRM, the Commenter asserts that EPA is in agreement or has otherwise made certain determinations that Kosmos does not constitute a source causing or contributing to 1-hour SO 2 NAAQS violation inside the nonattainment area or otherwise constitutes a source for which consideration of SO 2 emissions limitations or other controls are necessary in order for the Jefferson County nonattainment area to attain the 1-hour SO 2 NAAQS and that therefore, source-specific modeling of Kosmos emissions is not necessary under the 2014 SO 2 Nonattainment Guidance. Further, the Commenter claims that EPA had determined that Kosmos' emissions are adequately represented by ambient monitoring data from the Watson Lane monitor and that therefore, Kosmos should not be considered a “nearby” source for the purposes of modeling the Mill Creek Generating Station emissions under 40 CFR part 51, Appendix W. The Commenter also states that EPA concluded that SO 2 emissions from Kosmos would likely not result in a significant concentration gradient within the nonattainment area boundary.

Response 10: EPA has in fact concluded that Kentucky's SIP adequately shows that the nonattainment area will meet the NAAQS throughout the area's boundaries, notwithstanding emissions from Kosmos. However, EPA also believes that Kentucky has good reasons to establish a monitor near Kosmos to better characterize the ambient concentrations of SO 2 in the vicinity of the facility, in order to better understand air quality in the vicinity of Kosmos. In the separate action to approve Kentucky's monitoring network, which is a separate regulatory process and is not being re-opened or reevaluated in this SIP approval action, EPA supported Kentucky's choice. As explained in EPA's November 9, 2018, NPRM, and above in EPA's response to Comment #3, EPA observes that the analysis supplementing the Commonwealth's modeling analysis determined that the SO 2 emission from Kosmos would not result in a significant concentration gradient in the nonattainment area. As a result, Kosmos' emissions were not further characterized for purposes of consideration for SIP emission limits to demonstrate attainment for the nonattainment area or as a nearby source. See EPA's response to Comment #3. A conclusion that Kosmos should not be considered a “nearby” source or considered for a SIP emission limit for the purpose of modeling the Mill Creek Generating Station and the associated nonattainment area in no way indicates that it is unreasonable for Kentucky to choose to monitor air quality in the more immediate vicinity of from Kosmos.

Lastly, EPA does not agree with the Commenter that EPA determined that Kosmos' impacts are represented by ambient monitoring data at the Watson Lane monitor at all locations. EPA's supplemented background analysis in the November 9, 2018, NPRM supports the Commonwealth's conclusion that the Green Valley background monitor, located 27 km north of the nonattainment area in Indiana, adequately represents background concentrations of SO 2 within this nonattainment area, including the impact from Kosmos. EPA also evaluated whether Green Valley background monitor data is adequately representative of potential SO 2 concentration impacts from Kosmos within the Jefferson County nonattainment area based on an assessment of wind patterns in the Louisville area, the SO 2 emissions sources in the vicinity of the Green Valley monitor and comparing those sources to the Kosmos source. EPA's rationale for finding Kentucky's treatment of Kosmos as an “other source” and addressing it's impacts with a representative ambient background concentration is fully discussed in Section IV.B.5 of EPA's November 9, 2018, NPRM. EPA's November 9, 2018, NPRM did not indicate that Kosmos' impacts closer to the facility are represented by ambient air quality data from the Watson Lane monitor.

Comment 11a: A Commenter requests that EPA delete footnote number 22 because the Commenter states that the ABO referenced in footnote 22 is not necessary for EPA's approval of the SIP. The Commenter agrees with EPA that Kosmos is appropriately considered as a background source and no emissions limits or other controls are necessary under the SIP to bring the Jefferson County nonattainment area into attainment.

Response 11a: EPA included footnote number 22 to acknowledge information provided as part of the record respecting the attainment SIP and does not believe there is any need to delete this footnote. See EPA's November 9, 2018, NPRM, and EPA's response to Comment #3 for more information on the treatment of Kosmos in the attainment demonstration. See also EPA's response to Comment #8 as it pertains to the relevance of EPA's footnote regarding the ABO. The Agency also supports the efforts of Kentucky and LMAPCD to further characterize air quality in the area near Kosmos in order to continue to verify that there are no violations of 2010 1-hour SO 2 NAAQS in the vicinity of Kosmos.

Comment 11b: Additionally, a Commenter requests that EPA delete footnote number 22 because of the Commenter's assertion that the ABO between Kosmos and LMAPCD is not necessary because current monitoring data (presumably at the Watson Lane monitor) is attaining the NAAQS, and thus, in the Commenter's opinion the premise on which the ABO was based is no longer valid. The Commenter mentions that the ABO is “subject to change” and claims that the ABO will need to be revisited by LMAPCD and Kosmos and revised as necessary and appropriate.

Response 11b: EPA does not agree with the Commenter that footnote 22 should be deleted. EPA understands that there is continued dialog between the LMAPCD (in consultation with Kentucky) and Kosmos regarding the ABO and the status of installation and operation of the Kosmosdale SO 2 monitor which is approved in the ambient air monitoring network plan to characterize the impact of SO 2 emissions from the facility to the area surrounding the facility. EPA encourages this continued dialog and does not intend through this action to indicate that SO 2 air quality in the vicinity of Kosmos should not be further evaluated for purposes of verifying that there are no violations of 2010 1-hour SO 2 NAAQS in either the Jefferson County nonattainment area or in other areas potentially impacted by Kosmos' emissions. See EPA's response to Comment #4.

Comment 11c: A Commenter claims that footnote number 22 inaccurately summarizes the ABO and asserts that the ABO does not require Kosmos to “deploy” a monitor but instead only allows monitoring to continue until the end of [a] three-year monitoring period if a cost agreement and access agreement can be finalized and further only requires action by Kosmos if necessary to meet the SO 2 NAAQS. The Commenter concludes that the ABO is not necessary for the SIP approval and thus the footnote should be deleted.

Response 11c: EPA acknowledges that the ABO does not require Kosmos to deploy an SO 2 ambient air monitor; monitoring will be performed by LMAPCD. The ABO establishes an agreement between Kosmos and LMAPCD regarding access and cost responsibility of the monitoring. As prescribed in the ABO and approved by EPA in the Kentucky Ambient Air Monitoring Network plan, which is not being re-opened in this SIP approval action nor related to EPA's approval of the attainment SIP, LMAPCD will operate the air monitoring site as a State and Local Air Monitoring Station (SLAMS) to monitor SO 2 and meteorological data to obtain 3 years of quality-assured data. See EPA's response to Comment #8.

Comment 12: A Commenter claims that EPA's November 9, 2018, NPRM fails to meet the CAA's statutory deadline to issue a Federal Implementation Plan (FIP) and that EPA must issue a FIP and must impose sanctions on Kentucky for failing to submit a lawful SIP.

Response 12: EPA acknowledges that it did not approve a SIP revision or promulgate a FIP for the Jefferson County area by the statutory deadline under CAA 110(c)(1)(A). However, with this final action to approve Kentucky's attainment SIP, EPA is discharging the statutory obligation under CAA section 110(k)(2) to act on the SIP, and such approval terminates our FIP obligation under section 110(c)(1)(A) for the Jefferson County Area. Regarding sanctions under CAA section 179, as noted in EPA's November 9, 2018, NPRM, the Commonwealth provided the required attainment SIP submittal for the Jefferson County Area to address SO 2 nonattainment planning requirements on June 23, 2017. EPA subsequently determined the attainment SIP submittal complete on October 10, 2017, and thus that Kentucky corrected the deficiency that was the basis of EPA's March 18, 2016, finding for the Area. Because this deficiency has been corrected, section 179 sanctions are no longer applicable, and no section 179 sanctions clock was actually running or past due at the time the Commenter submitted its objections. A copy of EPA's completeness determination letter is provided in the docket for this rulemaking.

Comment 13: A Commenter asserts that the projected 2018 attainment year inventory is set artificially high and suggests that the limits should be set based on certain scrubber efficiency ( i.e., 89 percent). The Commenter also refers to the RACT/RACM portion of the November 9, 2018, NPRM and indicates a discrepancy related to the emissions for post-level control. Specifically, the Commenter argues that EPA states that the scrubber improvement is a removal rate of 98 percent, compared to 90 percent before the upgrades, which would equate to a post-control level of 6,000 tpy, not the projected 13,940 tpy.

Response 13: EPA disagrees with the Commenter that the projected emission inventory is artificially high. The projected 2018 SO 2 emissions for Mill Creek are considered conservative based on the source's expected levels or potential to emit beyond the October 4, 2018, attainment date. The projected emission inventory is an estimate of emissions from all SO 2 emission sources determined to have an impact on the affected nonattainment area for the year in which the area is expected to attain the standard, consistent with the attainment demonstration for the affected area. This inventory should reflect projected emissions for the attainment year for all SO 2 sources in the nonattainment area, taking into account emission changes that are expected after the base year. The projected inventory is not an exact measurement for post-control actual emissions and there is no one prescribed method for developing the inventory. Mill Creek's 2011 base year emissions for all four units was 29,944 tpy ( see Table 3 in the November 9, 2018, NPRM). LMAPCD derived the 13,490 tpy projected post-construction potential (projected inventory) by converting the 30-day 0.20 lb/MMBtu emission rate to tpy (by multiplying the permitted rate in lb/MMBtu times the nominal heat capacity for each unit and the total calendar year hours). Kentucky also subtracted Mill Creek's 2011 base year emissions to show the contemporaneous SO 2 decreases for each unit at Mill Creek. The 0.20 lb/MMBtu emission rate is based on the FGD SO 2 scrubber upgrades installed at Mill Creek and demonstrates modeled attainment of the 2010 standard. According to 40 CFR 51.ll0(a), a control strategy must be selected that provides the degree of emission reductions necessary for attainment and maintenance of the NAAQS. EPA believes the projected inventory is an appropriate estimation of the expected improvement in emissions within the Jefferson County nonattainment area due to the adoption and implementation of upgraded SO 2 scrubber control measures at Mill Creek. Furthermore, the Commenter's post-control calculation of 6,000 tpy is based on applying a reduction factor to the 2011 actual emissions rather than the uncontrolled potential to emit.

EPA also disagrees with the Commenter's assertion that the November 9, 2018, NPRM suggests the SO 2 removal efficiency at Mill Creek only achieved 89 percent since 2014 emission levels ( see footnote No. 23 in the November 9, 2018, NPRM). The Commenter appears to confuse actual and allowable emissions and the application of control efficiencies and emission reductions regarding the change in emissions for Mill Creek post control. EPA acknowledges that the reduction in actual emissions since 2014 mathematically equates to an 89 percent reduction in SO 2 emissions but the Agency's purpose for footnote #24 ( See 83 FR 56002 at 56013) was to show the decrease in actual emissions since 2014 and not to make a definitive determination of the efficiency of the SO 2 scrubbers since installation of upgrades at Mill Creek. Additionally, EPA notes that the reduction in actual emissions discussed in the November 9, 2018, NPRM is considered a snapshot of the level of actual emissions since the installation of controls and is not considered a definitive indication of the SO 2 removal capability of the scrubber upgrades.

EPA notes that since completion of the control installations at Mill Creek in 2016, the facility's actual SO 2 emissions have decreased from 28,149 tons in 2014 to 3,040 tons in 2017. EPA believes the control strategy implemented at Mill Creek provides for the attainment of the standard, which is supported by the modeled attainment demonstration, and the steady decline in actual annual SO 2 emissions since controls were installed in 2016. The 2015-2017 design value is the latest three year average available and Watson Lane monitor has a reading of 31 ppb, well below the 75 ppb SO 2 standard.

In this rule, EPA is finalizing rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference into the Jefferson County portion of the Kentucky SIP, a SO 2 emission limit and specified compliance conditions established in title V permit 145-97-TV(R3) for each coal-fired emissions unit at the LG&E Mill Creek Generating station in Jefferson County nonattainment area. Specifically, EPA is incorporating into the Jefferson County portion of the Kentucky SIP Plant-wide Specific conditions S1-Standards, S2-Monitoring and Record Keeping and S3-Reporting in title V permit 145-97-TV(R3) for EGU U1, U2, U3 and U4. These conditions include a 0.20 lb/MMBtu 30-day SO 2 emission limit for each EGU, U1, U2, U3 and U4, and associated operating and compliance conditions (monitoring, recordkeeping and reporting) for these units and are the basis for the attainment demonstration. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at EPA Region 4 office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 16

EPA is approving Kentucky's SO 2 nonattainment SIP submissions, which the Commonwealth submitted to EPA through a letter dated June 23, 2017, for attaining the 2010 1-hour SO 2 NAAQS for the Jefferson County nonattainment area and for meeting other nonattainment area planning requirements. EPA has determined that Kentucky's nonattainment SIPs meet the applicable requirements of sections 110, 172, 191 and 192 of the CAA and nonattainment regulatory requirements at 40 CFR part 51. Kentucky's June 23, 2017, SIP revisions include an attainment demonstration for the Jefferson County nonattainment area and other nonattainment requirements for RFP, RACT/RACM, NNSR, base-year and projection-year emission inventories, enforceable emission limits and control measures and compliance parameters, and contingency measures. Additionally, EPA is approving into the Jefferson County portion of the Kentucky SIP, Mill Creek's enforceable SO 2 emission limits and compliance parameters (monitoring, recordkeeping and reporting) established at Plant-wide Specific condition S1-Standards, S2-Monitoring and Record Keeping and S3-Reporting established in title V permit 145-97-TV(R3).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 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 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 27, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

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 EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 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-2009-0493 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 August 27, 2019. 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-2009-0493, by one of the following methods:

• Federal eRulemaking Portal: http://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 http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of October 24, 2018 (83 FR 53594) (FRL-9983-46), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 7E8586) by Bayer CropScience LP, P.O. Box 12014, 2 T.W. Alexander Dr., Research Triangle Park, NC 27709-2014. The petition requested that 40 CFR 180.652 be amended by establishing tolerances for residues of the insecticide ethiprole, 5-amino-1-[2,6-dichloro-4-(trifluoromethyl)phenyl]-4-(ethylsulfinyl)-1 H -pyrazole-3-carbonitrile, in or on coffee (green beans) and roasted coffee and instant coffee at 0.1 parts per million (ppm). That document referenced a summary of the petition prepared by Bayer CropScience LP, the registrant, which is available in the docket, http://www.regulations.gov. These tolerances were requested to cover residues of ethiprole in or on coffee resulting from uses of this pesticide on coffee outside the United States. There is no current U.S. registration for use of ethiprole on coffee. The only comment submitted to this docket supported this rulemaking.

Based upon review of the data supporting the petition, EPA has concluded that tolerances are not needed for the processed coffee commodities since available data demonstrate that residues of ethiprole did not concentrate in these processed commodities.

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 . . . .”

Consistent with FFDCA section 408(b)(2)(D), and 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 for ethiprole including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with ethiprole follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Ethiprole has a low acute toxicity via the oral, dermal, and inhalation routes of exposure, and is not a skin sensitizer nor a skin or eye irritant. In the mammalian toxicology database, the critical effects of ethiprole are liver toxicity and thyroid toxicity. The rat was the most sensitive species overall after administration of ethiprole. Evidence of hepatotoxicity is seen in the rat, dog, and mouse and was manifested as increased liver weight and hepatocellular hypertrophy and changes in clinical chemistry such as increased alanine transaminase and alkaline phosphates activities; increased cholesterol and triglycerides levels; and increased total protein concentration. Thyroid toxicity was observed in the rat and was manifested as increased thyroid weight, thyroid follicular hypertrophy along with higher TSH plasma levels, and reduced T4 (thyroxine) plasma levels. Mechanism studies of thyroid toxicity suggested that ethiprole acts by disrupting thyroid hormone homeostasis and indirectly influences the thyroid by inducing the hepatic microsomal enzyme T4- glucuronyl transferase.

Ethiprole is neither a reproductive nor a developmental toxicant. Although no teratogenic effects were observed in the existing database, there is uncertainty regarding the potential impact of ethiprole on thyroid hormone homeostasis in the developing organism.

In the acute neurotoxicity study, clinical signs showed consistent effects that might be anticipated for a chemical interacting with neurotransmitter chloride channels, including low arousal levels, increased eye closure, increased incidence of body tremors, and decreased rearing counts in females at the mid dose. However, no neurotoxicity effects were noted in the subchronic neurotoxicity study up to and including the highest dose of 400 ppm (33.0 mg/kg/day). There were no effects on neuropathology in any of the studies.

Based on a battery of mutagenicity studies, ethiprole is not considered to be genotoxic. In accordance with the EPA's Final Guidelines for Carcinogen Risk Assessment (March 2005), ethiprole is classified as “Suggestive Evidence of Carcinogenicity, but Not Sufficient to Assess Human Carcinogenicity Potential” based on increased incidences of hepatocellular adenomas in females at the highest dose tested in the carcinogenicity study in mice. While the evidence from animal data is suggestive of carcinogenicity, a cancer risk to humans from dietary exposure to ethiprole is of low concern, and a nonlinear approach is appropriate for assessing potential cancer risk based on the following weight-of-evidence considerations:

1. The liver tumors in mice were benign with no progression to malignancy;

2. The thyroid tumors in rats were also benign (with no progression to malignancy), and the increase in the tumor incidences at the high dose did not reach statistical significance when compared to controls;

3. In both species (mice and rats), tumors were observed only at the high dose level ( i.e., there was a lack of evidence of a dose-response relationship);

4. There is no concern for mutagenicity/genotoxicity;

5. The no-observed-adverse-effect level (NOAEL) of 0.85 milligrams/kilograms/day (mg/kg/day) used for deriving the cRfD is approximately 86-fold lower than the dose (73 mg/kg/day) that induced benign tumors in mice; and

6. The reduction of the Food Quality Protection Act Safety Factor (FQPA SF) to 1x yields a chronic Population Adjusted Dose (cPAD) of 0.03 mg/kg/day. The Agency has determined that the cPAD will adequately account for all chronic effects, including carcinogenicity, likely to result from exposure to ethiprole.

More detailed information on the studies received and the nature of the adverse effects caused by ethiprole as well as the NOAEL and the LOAEL from the toxicological studies can be found in the document entitled, “Ethiprole: Human Health Risk Assessment for a Proposed Tolerance without U.S. Registration in/on Imported Coffee, Green Bean,” dated April 29, 2019, by going to http://www.regulations.gov. The referenced document is available in the docket established by this action, which is described under ADDRESSES . Locate and click on the hyperlink for docket ID number EPA-HQ-OPP-2009-0493. Double-click on the document to view the referenced information.

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 http://www.epa.gov/pesticides/factsheets/riskassess.htm.

A summary of the toxicological endpoints for ethiprole used for human risk assessment is shown in Table 1 of this unit.

More detailed information on the toxicological endpoints for ethiprole can be found in the document entitled, “Ethiprole: Human Health Risk Assessment for a Proposed Tolerance without U.S. Registration in/on Imported Coffee, Green Bean,” dated April 29, 2019, by going to http://www.regulations.gov. The referenced document is available in the docket established by this action, which is described under ADDRESSES . Locate and click on the hyperlink for docket ID number EPA-HQ-OPP-2009-0493. Double-click on the document to view the referenced information.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to ethiprole, EPA considered exposure under the petitioned-for tolerances as well as all existing ethiprole tolerances in 40 CFR 180.652 as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. In estimating acute dietary (food and drinking water) exposure, EPA used food consumption information from the Dietary Exposure Evaluation Model—Food Commodity Intake Database (DEEM-FCID TM , Version 3.18), which incorporates 2003-2008 consumption data from the United States Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). An unrefined, acute dietary exposure assessment was conducted assuming tolerance-level residues and assuming 100 percent crop treated (PCT).

ii. Chronic exposure. In conducting the chronic dietary exposure assessment, EPA used DEEM-FCID TM , Version 3.18, which incorporates 2003-2008 consumption data from the USDA's NHANES/WWEIA. An unrefined chronic dietary risk analysis was conducted assuming tolerance-level residues and 100 PCT.

iii. Cancer. As explained in unit III.A., quantification of risk using a non-linear approach ( i.e., a cPAD) will adequately account for all chronic toxicity, including carcinogenicity, that could result from exposure to ethiprole. No separate exposure assessment pertaining to cancer risk was performed for ethiprole; rather, EPA relied on the chronic exposure assessment described in this Unit for assessing the risk of all chronic effects, including cancer.

iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue information in the dietary assessment for ethiprole. Tolerance-level residues and/or 100% CT were assumed for all food commodities.

More detailed information on the acute and chronic dietary (food only) exposure and risk assessment for ethiprole can be found in the document entitled, “Ethiprole: Human Health Risk Assessment for a Proposed Tolerance without U.S. Registration in/on Imported Coffee, Green Bean,” dated April 29, 2019, by going to http://www.regulations.gov. The referenced document is available in the docket established by this action, which is described under ADDRESSES . Locate and click on the hyperlink for docket ID number EPA-HQ-OPP-2009-0493. Double-click on the document to view the referenced information.

2. Dietary exposure from drinking water. Ethiprole and its degradates were not considered for drinking water assessment because ethiprole is not registered for use in the U.S.; therefore, exposure to residues of ethiprole in drinking water is not expected.

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). Ethiprole 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 http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

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.” EPA has not made a common mechanism of toxicity finding as to ethiprole and any other substances, and ethiprole does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action; therefore, EPA has not assumed that ethiprole has a common mechanism of toxicity with other substances.

For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity, and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at http://www.epa.gov/pesticides/cumulative/.

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 safety factor when reliable data are available to EPA support the choice of a different safety factor.

2. Prenatal and postnatal sensitivity. Although no teratogenic effects were observed in the existing toxicology database, there is uncertainty regarding the potential impact of ethiprole on thyroid hormone homeostasis in the developing organism. Observations demonstrated that thyroid hormones were affected in several studies throughout the ethiprole database. Thyroid hormones may play a critical role in the development of the nervous system.

3. Conclusion. EPA has determined that reliable hazard and exposure data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x. That decision is based on the following findings:

i. The toxicology database for ethiprole is complete for establishing tolerances without U.S. registration purposes. Previously the Agency determined that a CTA is required based on the weight-of-evidence. Subsequently, the registrant submitted a request for a CTA waiver. Based on a weight-of-evidence approach that considered the relatively low exposure to the highest exposed populations and the fact that had the 10x been retained, the exposure levels would still result in estimated risks below the levels of concern, the Agency concludes that a CTA in pregnant animals, fetuses, postnatal animals, and adult animals is not required for ethiprole at this time.

ii. In mammals, no neurotoxic effects were observed during the subchronic neurotoxicity study in which adverse effects of increased thyroid and liver weights were observed in males and females, respectively. The acute neurotoxicity study showed decreased locomotor activity (both sexes, day 1) and the FOB findings in both sexes on the day of treatment (4 hours after dosing). The FOB findings included increased tremors (females), decreased grooming (both sexes), decreased arousal alert (females), increased number of animals for which no assessment of gait was possible (females), increased eye closure (females), increased standing/sitting hunched (females), decreased activity and rearing counts (females), increased hindlimb and forelimb grip strength (males), decreased splay (females, day 1), and increased splay (males, day 8). The similarity in the NOAELs from the acute neurotoxicity and subchronic neurotoxicity studies are consistent with the metabolism data that suggesting that ethiprole is not accumulated in the system. Therefore, a developmental neurotoxicity (DNT) study is not required for ethiprole.

iii. There is no evidence that ethiprole results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure database for ethiprole. The dietary assessment is based on high end assumptions, assuming tolerance-level residues and 100 PCT. The assessment will not underestimate the exposure and risk posed by ethiprole.

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). Since there are no registered or proposed uses of ethiprole that result in residential exposure, the acute and chronic aggregate exposure and risk assessments are equal to the acute and chronic dietary exposure and risk estimates (food only), respectively. 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. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. Using the exposure assumptions described in this Unit for dietary and non-dietary acute exposures, EPA has concluded that acute dietary exposure to ethiprole from food only will utilize <1% of the aPAD for the general U.S. population. The most highly-exposed population subgroup, all infants (<1 year old), utilized 2.1% of the aPAD.

2. Chronic risk. Using the exposure assumptions described in this Unit for chronic exposure, EPA has concluded that chronic dietary exposure to ethiprole from food only will utilize 2.0% of the cPAD for the general U.S. population. The most highly-exposed population subgroup, all infants (<1 year old), utilized 5.7% of the cPAD. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of ethiprole is not expected.

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, ethiprole is not registered for any use patterns that would result in short-term residential exposure. Short-term risk is assessed based on short-term residential exposure plus chronic dietary exposure. Because there is no short-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (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 chronic dietary risk assessment for evaluating short-term risk for ethiprole.

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

5. Aggregate cancer risk for U.S. population. As discussed in Unit III.A., EPA concluded that the nonlinear approach for assessing potential cancer risk from exposure to ethiprole is appropriate. As noted in this Unit, the chronic risk aggregate exposure to ethiprole is below the Agency's level of concern; therefore, the Agency concludes that there is not a cancer risk of concern from exposure to ethiprole.

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 U.S. population, or to infants and children from aggregate exposure to ethiprole residues.

The HPLC/MS-MS enforcement method, Method 01128, is acceptable for determination of residues of ethiprole and its sulfone metabolite RPA 097973 for data collection in plant commodities. The GC-ECD method (Report No. B003572) is suitable for determining residues of parent ethiprole and RPA in milk, eggs and tissues. The FDA multiresidue method testing study for ethiprole is adequate and indicates that PAM multiresidue methods are not suitable for enforcing tolerances for residues of ethiprole.

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. Codex has not established maximum residue limits (MRLs) for residues of ethiprole in coffee commodities; therefore, there are no harmonization issues at this time.

Therefore, a tolerance is established for residues of the insecticide ethiprole, 5-amino-1-[2,6-dichloro-4-(trifluoromethyl)phenyl]-4-(ethylsulfinyl)-1 H -pyrazole-3-carbonitrile, including its metabolites and degradates, in or on coffee, green bean at 0.1 ppm. EPA is also amending the footnote in the table in paragraph (a) to accommodate the coffee commodity.

This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. 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, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “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, entitled “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 on the basis of a petition under FFDCA section 408(d), 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:

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 EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 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-2018-0002 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 August 27, 2019. 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-2018-0002, by one of the following methods:

• Federal eRulemaking Portal: http://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 http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of May 18, 2018 (83 FR 23247) (FRL-9976-87), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 7F8612) by BASF Corporation, 26 Davis Drive, P.O. Box 13528, Research Triangle Park, North Carolina 27709-3528. The petition requested to establish tolerances in 40 CFR part 180 for residues of the fungicide mefentrifluconazole (BAS 750 F); 2-[4-(4-chlorophenoxy)-2-(trifluoromethyl)phenyl]-1-(1 H -1,2,4-triazole-1-yl)propan-2-ol] in or on the following raw agricultural commodities: almond, hulls at 4 parts per million (ppm); barley, hay at 15 ppm; barley, straw at 30 ppm; cattle, fat at 0.3 ppm; cattle, kidney at 0.2 ppm; cattle, liver at 0.5 ppm; cattle, meat at 0.09 ppm; cattle, muscle at 0.04 ppm; cereal grains crop group 15, except wheat and corn at 3 ppm; cherry subgroup 12-12A at 4 ppm; citrus, oil at 30 ppm; corn, aspirated grain fractions at 0.3 ppm; corn, field, grain at 0.01 ppm; corn, field, stover at 9 ppm; corn, sweet, forage at 6 ppm; corn, sweet, grain at 0.02 ppm; corn, sweet, stover at 6 ppm; foliage of legume vegetables, except soybean, crop subgroup 7A at 20 ppm; forages of cereal grains, crop group 16 at 4 ppm; goat, fat at 0.3 ppm; goat, kidney at 0.2 ppm; goat, liver at 0.5 ppm; goat, meat at 0.09 ppm; goat, muscle at 0.04 ppm; grape, raisin at 4 ppm; grapefruit subgroup 10-10C at 1 ppm; horse, fat at 0.3 ppm; horse, kidney at 0.2 ppm; horse, liver at 0.5 ppm; horse, meat at 0.09 ppm; horse, muscle at 0.04 ppm; legume vegetables (succulent or dried) crop group 6, except lentil at 0.1 ppm; lemon/lime subgroup 10-10B at 2 ppm; lentil, dry at 2 ppm; milk at 0.03 ppm; orange subgroup 10-10A at 1 ppm; peach subgroup 12-12B at 2 ppm; peanut at 0.01 ppm; peanut, hay at 30 ppm; plum prune, fresh at 4 ppm; plum subgroup 12-12C at 2 ppm; pome fruit crop group 11-10 at 1.5 ppm; poultry, eggs at 0.01 ppm; poultry, fat at 0.01 ppm; poultry, liver at 0.01 ppm; poultry, meat at 0.01 ppm; poultry, muscle at 0.01 ppm; poultry, skin at 0.01 ppm; rapeseed subgroup 20A at 1 ppm; rice, straw at 9 ppm; sheep, fat at 0.3 ppm; sheep, kidney at 0.2 ppm; sheep, liver at 0.5 ppm; sheep, meat at 0.09 ppm; sheep, muscle at 0.04 ppm; small fruit vine climbing, except fuzzy kiwifruit subgroup 13-07F at 1.5 ppm; sorghum, stover at 9 ppm; soybean, aspirated grain fractions at 5 ppm; soybean, forage at 4 ppm; soybean, hay at 15 ppm; soybean, seed at 0.3 ppm; sugar beet at 0.6 ppm; sugar beet, top at 9 ppm; swine, fat at 0.01 ppm; swine, liver at 0.01 ppm; swine, meat at 0.01 ppm; swine, skin at 0.01 ppm; tree nut crop group 14-12 at 0.06 ppm; tuberous and corm vegetables subgroup 1C at 0.02 ppm; wheat, aspirated grain fractions at 20 ppm; wheat, grain at 0.4 ppm; wheat, hay at 8 ppm; and wheat, straw at 30 ppm. That document referenced a summary of the petition prepared by BASF, the registrant, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing; however, they were not related to mefentrifluconazole.

Following revisions to that petition, EPA published another notice of filing, which supersedes the May 18, 2018 document. That document was published in the Federal Register of March 18, 2019 (84 FR 9735) (FRL-9989-90). The tolerances requested were the same, except for the following: (1) The new petition sought two new tolerances, one for residues on corn, pop, grain at 0.01 ppm and one for residues on grain, cereal, forage, fodder, and straw, group 16, stover at 9 ppm; and (2) the new petition dropped the request for the separate stover tolerances for corn, field, stover at 9 ppm; corn, sweet, stover at 6 ppm; and sorghum, stover at 9 ppm, as those would be subsumed in the group 16, stover tolerance. The amended summary of the petition prepared by BASF, the registrant, and referenced in that document, is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing; however, they were not related to mefentrifluconazole.

Based upon review of the data supporting the petition and under its authority in FFDCA section 408(d)(4)(A)(i), EPA is establishing tolerances that vary slightly from what the petitioner sought. The reason for these changes are explained in Unit IV.C.

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. . . .”

Consistent with FFDCA section 408(b)(2)(D), and 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 for mefentrifluconazole including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with mefentrifluconazole follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The liver was the most consistent target organ across species, with mice being the most sensitive species. Following subchronic and chronic exposures, increased absolute and relative liver weights, and histopathological liver findings (subchronic: hypertrophy, cytoplasmic alteration, and necrosis in males; fatty change in females; chronic: diffuse and macrovesicular fatty changes) were observed in both sexes. Decreased cholesterol was also observed in the mouse subchronic toxicity studies (cholesterol was not measured in the mouse carcinogenicity study). Following oral exposures to rats, there were effects on liver function as evidenced by increased alkaline phosphatase (ALP), gamma-glutamyl transferase (GGT), and cholesterol, increased absolute and relative liver weights, and histopathological findings (hepatocellular hypertrophy (subchronic and chronic), multifocal necrosis (females; subchronic)). In dogs, liver effects included increased ALP, increased liver weights, and histopathological findings in the liver (hepatocellular hypertrophy, eosinophilic change, and subcapsular fibrosis). In the 90-day oral toxicity study in dogs, males were more sensitive than females; however, in the 1-year toxicity study, effects were observed at the same dose for both sexes. The toxicity was also shown to progress, with greater increases in ALP along with fibrosis being observed in the chronic study. Other effects included increased white blood cell (WBC) counts in mice following subchronic exposures. In addition, increased adrenal gland weights were noted in male rats following subchronic exposures and in female rats, dogs, and mice following chronic exposures; however, corresponding histopathological findings (eosinophilic cytoplasmic change) were only noted in the adrenal glands of female mice in the carcinogenicity study. An in vitro human recombinant aromatase assay conducted with mefentrifluconazole indicates that it has the potential to interact with the aromatase enzyme.

There was no evidence of increased quantitative or qualitative fetal susceptibility in the developmental toxicity studies in rats and rabbits or offspring susceptibility in the two-generation reproduction toxicity studies in rats. In the developmental toxicity study in rats, fetal effects (increased placental weight, decreased fetal weight, increased incidence of dilated renal pelvis) occurred at the same dose as maternal effects (increased placental weight). In the developmental toxicity study in rabbits, no maternal or developmental effects were seen up to the highest dose tested (25 mg/kg/day); 50 mg/kg/day was established as the maximum tolerable dose (MTD) for non-pregnant female rabbits in the range-finding studies. In the two-generation reproduction study in rats; offspring effects (decreased pup body weight, increased total litter loss and litters containing pup death during post-natal day (PND) 1-4, and increased incidence of dilated renal pelvis) occurred at the same dose as those eliciting parental toxicity (changes in clinical chemistry parameters (increased ALP, GGT, triglycerides, cholesterol), increased relative liver weights, histopathological findings in the liver, and increased total litter loss and litters containing pup death during PND 1-4). Reproductive toxicity (decreased implantation sites per dam in the F1 generation maternal animals) was observed at the same dose causing parental and offspring effects.

In the acute neurotoxicity study in rats, unsteady gait, increased foot splay, and decreased motor activity were observed at 2,000 mg/kg (no-observed-adverse-effect-level (NOAEL) = 600 mg/kg) for both sexes. However, there is no other evidence of neurotoxicity in the database. In addition, there were no treatment-related histopathological findings in the central or peripheral nervous system in the toxicological database.

Mefentrifluconazole was categorized as having low acute toxicity via the oral, dermal, and inhalation routes (Toxicity Categories III-IV). It is a not an eye or skin irritant (Toxicity Category IV), but it is a dermal sensitizer.

M750F022 is a metabolite that was identified as a residue of concern in the livestock metabolism studies and has a hydroxyl group instead of the triazole ring as a result of cleavage. In the available rat metabolism data, M750F022 was not found at significant amounts; however, it is a proposed intermediate for several metabolites that were observed in the study. Additional toxicological studies were performed, which demonstrated that M750F022 was of low acute toxicity by the oral route in rats. There was no genotoxic concern identified in three in vitro genotoxicity assays. In a 28-day oral toxicity study in mice, the liver was identified as the target organ. M750F022 showed considerably lower potential for aromatase inhibition than the parent, mefentrifluconazole, in an in vitro aromatase inhibition assay. Based on these studies, M750F022 is not considered to be a greater toxicological concern than mefentrifluconazole.

Specific information on the studies received and the nature of the adverse effects caused by mefentrifluconazole as well as the NOAEL and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document titled “ Mefentrifluconazole. Human Health Risk Assessment for the Section 3 Registration Action of the New Active Ingredient on Non-Residential Turf, Sod Farms, Ornamentals, Commercial and On-Farm Seed Treatment; and Pome Fruit, Crop Group 11-10; Stone Fruit, Crop Group 12-12; Tree Nuts, Crop Group 14-12; Cereal Grains, Crop Group 15; Legume Vegetables, Crop Group 6; Foliage of Legume Vegetables, Crop Group 7; Citrus Fruit, Crop Group 10-10; Small Fruit Vine Climbing, Except Fuzzy Kiwifruit Subgroup 13-07F; Soybeans; Peanuts; Sugar Beet; Rapeseed Subgroup 20A; and Tuberous and Corm Vegetables Subgroup 1C” on pages 50-57 in docket ID number EPA-HQ-OPP-2018-0002.

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 http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

A summary of the toxicological endpoints for mefentrifluconazole used for human risk assessment is shown in the Table of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to mefentrifluconazole, EPA considered exposure under the petitioned-for tolerances. EPA assessed dietary exposures from mefentrifluconazole in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

No such effects were identified in the toxicological studies for the general population for mefentrifluconazole; therefore, a quantitative acute dietary exposure assessment for the general population is unnecessary.

However, such effects were identified for mefentrifluconazole for females 13 to 49 years old. In estimating acute dietary exposure, EPA used 2003-2008 food consumption information from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA conducted an unrefined acute dietary exposure and risk assessment assuming 100 percent crop treated (PCT), default processing factors, and tolerance-level residues for all food commodities.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used 2003-2008 food consumption data from the USDA's NHANES/WWEIA. As to residue levels in food, EPA conducted a partially refined chronic dietary exposure and risk assessment assuming 100 PCT, empirical processing factors (when available), and average field-trial residues for some commodities.

iii. Cancer. A cancer dietary exposure and risk assessment was not conducted for mefentrifluconazole as it was classified as “Not likely to be Carcinogenic to Humans” based on the absence of treatment-related tumors in two adequate rodent carcinogenicity studies.

iv. Anticipated residue and 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.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for mefentrifluconazole in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of mefentrifluconazole. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

Based on the Pesticide in Water Calculator (PWC), the estimated drinking water concentrations (EDWCs) of mefentrifluconazole for acute exposures are estimated to be 42.3 parts per billion (ppb) for surface water and 30.3 ppb for ground water, and for chronic exposures are estimated to be 18.4 ppb for surface water and 5.1 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the acute dietary risk assessment, the water concentration value of 42.3 ppb was used to assess the contribution to drinking water and for the chronic dietary risk assessment, the water concentration of value 18.4 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).

Mefentrifluconazole is proposed to be registered for the following uses that could result in residential exposures: non-residential turf ( i.e., golf courses). EPA assessed residential exposure using the following assumptions: Residential handler exposures are not anticipated based on the proposed use sites and therefore have not been quantitatively assessed. There is the potential for post-application exposure for individuals exposed as a result of being in an environment that has been previously treated with mefentrifluconazole. Short-term dermal exposures were assessed for adults, youth 11 to less than 16 years old, and children 6 to less than 11 years old.

The residential exposure scenario used in both the adult aggregate assessment and the children 6 to <11 years old aggregate assessment is from post-application dermal exposure after applications to golf courses from golfing activities. These scenarios for aggregation, adults and children (6 to <11 years old), represent the worst-case risk estimates and are protective of all other lifestages and exposure scenarios.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.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.”

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to mefentrifluconazole and any other substances; the Agency's previous statements regarding the potential for a common mechanism among the conazoles noted that the underlying data available at the time were inconclusive. Although the conazole fungicides (triazoles) produce 1,2,4 triazole and its acid-conjugated metabolites (triazolylalanine and triazolylacetic acid), 1,2,4 triazole and its acid-conjugated metabolites do not contribute to the toxicity of the parent conazole fungicides (triazoles). The agency has assessed the aggregate risks from the 1,2,4 triazole and its acid-conjugated metabolites (triazolylalanine and triazolylacetic acid) separately. The supporting risk assessment concludes that aggregate risks are below the Agency's level of concern and can be found at http://www.regulations.gov in the document titled “ Common Triazole Metabolites: Updated Aggregate Human Health Risk Assessment to Address New Section 3 Registrations For Use of Difenoconazole and Mefentrifluconazole” in docket ID number EPA-HQ-OPP-2018-0002. Mefentrifluconazole does not appear to produce any other toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has not assumed that mefentrifluconazole has a common mechanism of toxicity with other substances.

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 safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. There was no evidence of increased quantitative or qualitative fetal susceptibility in the developmental toxicity studies in rats and rabbits or offspring susceptibility in the two-generation reproduction toxicity studies in rats.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The existing toxicological database for mefentrifluconazole is adequate for FQPA evaluation. Developmental toxicity studies in rats and rabbits as well as a two-generation reproduction study in rats are available for FQPA consideration. The Agency has determined, using a weight-of-evidence approach, that the subchronic neurotoxicity, subchronic inhalation toxicity, and immunotoxicity studies are not required at this time.

ii. In the acute neurotoxicity study in rats, unsteady gait, increased foot splay, and decreased motor activity were considered adverse at 2,000 mg/kg (NOAEL = 600 mg/kg). However, concern is low since the effects are characterized by clear NOAEL and LOAEL values, there is no other evidence of neurotoxicity in the database, there were no corroborating histopathological findings in the central or peripheral nervous system, and the effects were seen at a dose that is not considered relevant for human health risk assessment.

iii. There is no evidence that mefentrifluconazole results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the two-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The dietary assessment is based on high-end assumptions, assuming 100 PCT, and average field trial residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to mefentrifluconazole in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children. These assessments will not underestimate the exposure and risks posed by mefentrifluconazole.

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 mefentrifluconazole will occupy 2.2% of the aPAD for females 13 to 49 years old, the only population group of concern.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to mefentrifluconazole from food and water will utilize 19% of the cPAD for children 1 to 2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of mefentrifluconazole is not expected.

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).

Mefentrifluconazole is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to mefentrifluconazole.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 2,600 for adults and 1,900 for children 6 to less than 11 years old. Because EPA's level of concern for mefentrifluconazole is a MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

An intermediate-term adverse effect was identified; however, mefentrifluconazole is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for mefentrifluconazole.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, mefentrifluconazole 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 mefentrifluconazole residues.

The registrant, BASF, has proposed a Quick Easy Cheap Effective Rugged and Safe (QuEChERS) multi-residue method (BASF method L0295/01) for the determination of mefentrifluconazole residues in plant matrices. BASF Analytical Method No. L0272/01 is proposed as the enforcement method for the determination of residues of mefentrifluconazole in livestock commodities by liquid chromatography coupled with tandem mass spectrometry (LC-MS/MS).

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 any MRLs for mefentrifluconazole.

Under FFDCA section 408(d)(4)(A)(i), EPA may establish tolerances that vary from those sought by the petition. For consistency in nomenclature, EPA has used the Agency's preferred commodity terms for the commodities for which tolerances were requested. In addition, the levels at which several tolerances are being established vary from the original petition due to differences in how tolerance values were calculated. Finally, EPA is establishing tolerances for processed commodities where residues concentrate in commodities for which tolerances are being established. A summary and rationale behind these modifications can be found at http://www.regulations.gov in the document titled “ Mefentrifluconazole. Human Health Risk Assessment for the Section 3 Registration Action of the New Active Ingredient on Non-Residential Turf, Sod Farms, Ornamentals, Commercial and On-Farm Seed Treatment; and Pome Fruit, Crop Group 11-10; Stone Fruit, Crop Group 12-12; Tree Nuts, Crop Group 14-12; Cereal Grains, Crop Group 15; Legume Vegetables, Crop Group 6; Foliage of Legume Vegetables, Crop Group 7; Citrus Fruit, Crop Group 10-10; Small Fruit Vine Climbing, Except Fuzzy Kiwifruit Subgroup 13-07F; Soybeans; Peanuts; Sugar Beet; Rapeseed Subgroup 20A; and Tuberous and Corm Vegetables Subgroup 1C” on pages 10-13 in docket ID number EPA-HQ-OPP-2018-0002.

Therefore, tolerances are established for residues of mefentrifluconazole, including its metabolites and degradates, in or on Almond, hulls at 4 ppm; Beet, sugar, dried pulp at 2 ppm; Beet, sugar, leaves at 9 ppm; Beet, sugar, roots at 0.6 ppm; Cattle, fat at 0.2 ppm; Cattle, meat at 0.03 ppm; Cattle, meat byproducts at 0.3 ppm; Cherry subgroup 12-12A at 4 ppm; Corn, field, grain at 0.01 ppm; Corn, milled byproducts at 0.03 ppm; Corn, pop, grain at 0.01 ppm; Corn, sweet, kernel plus cob with husks removed at 0.03 ppm; Egg at 0.01 ppm; Fruit, citrus, group 10-10, dried pulp at 2 ppm; Fruit, citrus, group 10-10, oil at 15 ppm; Fruit, pome, group 11-10 at 1.5 ppm; Fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 1.5 ppm; Goat, fat at 0.2 ppm; Goat, meat at 0.03 ppm; Goat, meat byproducts at 0.3 ppm; Grain, aspirated grain fractions at 6 ppm; Grain, cereal, forage, fodder, and straw, group 16, forage at 6 ppm; Grain, cereal, forage, fodder, and straw, group 16, hay at 15 ppm; Grain, cereal, forage, fodder, and straw, group 16, stover at 9 ppm; Grain, cereal, forage, fodder, and straw, group 16, straw at 30 ppm; Grain, cereal, group 15, except wheat and corn at 4 ppm; Grape, raisin at 4 ppm; Grapefruit subgroup 10-10C at 0.5 ppm; Hog, fat at 0.015 ppm; Hog, meat at 0.01 ppm; Hog, meat byproducts at 0.03 ppm; Horse, fat at 0.2 ppm; Horse, meat at 0.03 ppm; Horse, meat byproducts at 0.3 ppm; Lemon/lime subgroup 10-10B at 1 ppm; Lentil, dry, seed at 2 ppm; Milk at 0.03 ppm; Milk, fat at 0.8 ppm; Nut, tree, group 14-12 at 0.06 ppm; Orange subgroup 10-10A at 0.6 ppm; Peach subgroup 12-12B at 1.5 ppm; Peanut at 0.01 ppm; Peanut, hay at 30 ppm; Plum prune, dried at 4 ppm; Plum subgroup 12-12C at 2 ppm; Poultry, fat at 0.015 ppm; Poultry, meat at 0.01 ppm; Poultry, meat byproducts at 0.01 ppm; Rapeseed subgroup 20A at 1 ppm; Sheep, fat at 0.2 ppm; Sheep, meat at 0.03 ppm; Sheep, meat byproducts at 0.3 ppm; Soybean, seed at 0.4 ppm; Vegetable, foliage of legume, group 7 at 20 ppm; Vegetable, legume, group 6, except lentil and soybean seed at 0.15 ppm; Vegetable, tuberous and corm, subgroup 1C at 0.04 ppm; and Wheat, grain at 0.3 ppm.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. 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, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “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, entitled “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 on the basis of a petition under FFDCA section 408(d), 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:

I. Background

This final rule amends the provision at DFARS 252.204-7007, Annual Representations and Certifications—Alternate A, and the prescription for this provision at DFARS 204.1202. DFARS 252.204-7007 provides alternate paragraphs (d) and (e), to replace paragraph (d) of the provision at Federal Acquisition Regulation (FAR) 52.204-8, Annual Representations and Certifications, in order to include DoD-unique representations and certifications.

Paragraph (b) of FAR provision 52.204-8 includes a reference to paragraph (d) of the FAR provision. When the DFARS alternate is used, this reference to paragraph (d) creates an inconsistency. To correct the inconsistency, this final rule amends DFARS 252.204-7007 to include an alternate to paragraph (b) of FAR 52.204-8 that references paragraph (e) of the DFARS alternate, instead of paragraph (d) of FAR 52.204-8.

In addition, the prescription at DFARS 204.1202(1) is restructured so that the lead-in tying the prescription to the use of FAR 52.204-8 applies to both paragraphs (1) and (2), as originally intended. DFARS 204.1202(1) previously stated that the DFARS provision 252.204-7007 is only used when using FAR 52.204-8, Annual Representations and Certification. FAR 52.204-8 is not used in solicitations for the acquisition of commercial items, so DFARS 252.204-7007 is also not used in solicitations for the acquisition of commercial items. Paragraph (2) of the prescription states that the following provisions listed in 204.1202 do not need to be separately listed in the solicitation, because they are included in the provision at DFARS 252.204-7007. Although this prescription is in part 204, not part 212, and has probably been correctly interpreted to apply only to acquisition of noncommercial items, paragraph (2) could technically be misinterpreted in a way that could lead to an inconsistency. Since DFARS 252.204-7007 only applies to noncommercial acquisitions, the provisions listed in 204.1202 would only be included in the solicitation through inclusion of the provision at DFARS 252.204-7007 when acquiring noncommercial items. By restructuring the prescription, the limitation of paragraph (2) to noncommercial acquisitions is unambiguous.

The statute that applies to the publication of the FAR is 41 U.S.C. 1707 entitled “Publication of Proposed Regulations.” Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it only makes minor administrative corrections. These requirements affect only the internal operating procedures of the Government.

This rule makes a minor correction to an existing provision at DFARS 252.204-7007, Alternate A, Annual Representations and Certifications, and clarifies the prescription for use of the provision, which applies below the simplified acquisition threshold but does not apply to the acquisition of commercial items.

Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This final rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866.

Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 204 and 252 are amended as follows:

DoD published a proposed rule in the Federal Register at 83 FR 30656 on June 29, 2018, to partially implement section 822 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328) to: (1) Address the potential requirement for additional cost or pricing data when only one offer is received in response to a competitive solicitation; and (2) make prime contractors responsible for determining whether a subcontract qualifies for an exception from the requirement for submission of certified cost based on adequate price competition. This DFARS rule supplements the Federal Acquisition Regulation (FAR) final rule published under FAR Case 2017-006, which modified the standards for adequate price competition at FAR 15.403-1(c) for DoD, National Air and Space Administration (NASA), and the Coast Guard (FAC 2019-03, 84 FR 27494). Section 822 excludes from the standard for adequate price competition the situation in which there was an expectation of competition, but only one offer is received. Three respondents submitted public comments in response to the proposed rule.

DoD reviewed the public comments in the development of the final rule. A discussion of the comments is provided, as follows:

There are no significant changes from the proposed rule in the final rule in response to the public comments. However, changes were required at 252.215-7010, in order to conform to changes in the FAR final rule relating to elimination of the terms “responsive” and “viable.”

Comment: Several respondents indicated that the requirement for certification of cost or pricing data and potential submission of additional data when only one offer is received in response to a competitive solicitation would burden the effectiveness and efficiency of the acquisition process and delay timely execution. This may also delay subcontract competitions, requiring restart of the procurement process when only one offer is received for a subcontract.

Response: This rule is implementing the requirements of section 822 of the NDAA for FY 2017. DoD has no flexibility to remove the certification requirement from the rule, since it is required by statute.

Comment: One respondent noted that it is the expectation of offers that produces the competitive environment.

Response: This rule is implementing the requirements of section 822 of the NDAA for FY 2017. The Government cannot project with certainty which solicitations will receive multiple offers or only one offer. Furthermore, even though a solicitation is issued competitively, the Government does not know whether the single offeror expected competition.

Comment: One respondent was concerned that contractors may take on more evaluation risks to avoid finding suppliers unacceptable, in order to avoid a situation in which only one viable and responsible offer is received.

Response: DoD has no flexibility to change the basic requirements of the rule, since it is required by statute. Furthermore, such behavior would indicate poor business judgment. If the contract contains the clause at FAR 52.244-2, Subcontracts, then the contractor must also comply with the clause at DFARS 252.244-7001, Contractor Purchasing System Administration, which includes the following requirements:

• Paragraph (c)(10) requires timely and adequate cost or price analysis and technical evaluation for each subcontractor and supplier proposal or quote to ensure fair and reasonable subcontract prices.

• Paragraph (c)(20) requires that the contractor provide for an organizational and administrative structure that ensures effective and efficient procurement of required quality materials and parts at the best value from responsible and reliable sources.

Comment: One respondent stated that paragraph (3) of the clause at DFARS 252.215-7010 should also state that the offeror is responsible for determining the commercial item exception at FAR 15.403-1(c)(3), because the Conference Report for section 822 stated that the Senate Bill contained a provision that would clarify the definition of competition and the role of the prime contractor in determining whether a subcontract meets the competitive or commercial test under the section.

Response: DoD has fully implemented the law as enacted. Section 822 does not address determinations with regard to commercial items.

Comment: Another respondent stated that the proposed rule should apply to contracts and subcontracts for commercial item acquisitions.

Response: Both the provisions at DFARS 252.215-7009 and 252.215-7010, are prescribed for use in solicitations using FAR part 12 procedures for the acquisition of commercial items. However, the changes required in this rule will not affect acquisition of commercial items, because 10 U.S.C. 2306a(b)(1)(B) provides that submission of certified cost or pricing data shall not be required in the case of a contract, a subcontract, or modification of a contract or subcontract for the acquisition of a commercial item. Determination of whether items are commercial items is outside the scope of this rule.

Comment: One respondent stated that the rule was a step in the right direction, but considered that the rule did not implement the statutory language stating that certified cost or pricing data must be supplied by contractors in circumstances where DoD “only expected to receive one bid.” The respondent was concerned that shifting the focus of the rule to “if only one offer is received” could prevent DoD from obtaining that vital information during the award phase and could create obstacles to obtaining the information at a later date.

Response: Section 822 added the phrase “that is only expected to receive one bid” at 10 U.S.C. 2306a(a)(1)(A), which now reads as follows: “An offeror for a prime contract under this chapter to be entered into using procedures other than sealed-bid procedures that is only expected to receive one bid shall be required to submit cost or pricing data before the award of a contract if—. . .” [followed by cost or pricing data thresholds]. The exceptions at 10 U.S.C. 2306a(b) still apply, including the exception for adequate price competition. Section 822 also modified the standard for adequate price competition, an exception to the requirement for certified cost or pricing data, to require that the agreed upon price is based on adequate competition that results in at least two or more responsive and viable competing bids.

This DFARS rule must be read in conjunction with the changes made under FAR Case 2017-006, Exception from Certified Cost or Pricing Data Requirements—Adequate Price Competition. That final FAR rule made amendments to the standards for adequate price competition at FAR 15.403-1(b), stating first what is common to all agencies, and then making the standard relating to expectation of competition applicable only to agencies other than DoD, NASA, and Coast Guard. In stating the common requirements, the final FAR rule also did not use the terms “responsive” and “viable,” but expressed the requirements using the existing FAR terminology, i.e., “Two or more responsible offerors, competing independently, submit priced offers that satisfy the Government's expressed requirement.”

FAR 15.403-4 requires as follows: “Unless an exception applies, certified cost or pricing data are required before accomplishing any of the following actions expected to exceed the current threshold . . . The award of any negotiated contract. . .”. Adding “If the contracting officer only expects one bid, unless an exception applies. . .” would be without effect, because whether or not the contracting officer expects one bid or multiple bids, if only one bid is received, that is determinative of the requirement for submission of certified cost or pricing data. If multiple bids were received from two or more responsible offerors, competing independently, that satisfy the Government's expressed requirement in accordance with FAR 15.403-1(c)(i), despite an erroneous expectation to the contrary, then that would constitute an exception (on the basis of adequate price competition) and no certified cost or pricing data would be required. The offeror does not provide the certificate of current cost or pricing data until agreement on price is reached, at which time it would be known how many offers had been received. According to FAR 15.406-2(e), if certified cost or pricing data are requested by the Government and submitted by an offeror, but an exception is later found to apply, the data shall not be considered certified cost or pricing data and shall not be certified.

This final DFARS rule has made changes from the proposed rule at DFARS 252.215-7010(c)(3) in both the basic clause and Alternate I. For simplicity, the final FAR rule does not use the terms “responsive” and “viable,” but expresses the requirements of section 822 using existing FAR terminology, as a requirement that is applicable to all agencies at 15.403-1(c)(1)(i)(A), i.e., “Two or more responsible offerors, competing independently, submit priced offers that satisfy the Government's expressed requirement.” In addition, due to the restructuring of FAR 15.403-1(c)(1), the FAR reference at both cites was changed to FAR 403-1(c)(1)(i).

This rule does not create a new provision, but amends the existing provisions at DFARS 252.215-7008 and 252.215-7010. Although the existing provisions apply to solicitations for the acquisition of commercial items, including commercially available off-the-shelf (COTS) items, the changes due to this rule do not impact the acquisition of commercial item, including COTS items, because the rule retains the exceptions to the requirements for certified cost or pricing data relating to acquisition of commercial items. In addition, DFARS 252.215-7010 already applies to contracts valued at or below the simplified acquisition threshold, while DFARS 252.215-7008 does not.

Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This final rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866.

A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

The reason for this rule is to further implement section 822 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328) to address the potential requirement for certified cost or pricing data when only one offer is received in response to a competitive solicitation, if no other exception to the requirements for certified cost or pricing data applies. This DFARS rule supplements the final rule published under FAR Case 2017-006 (FAC 2019-03, 84 FR 27494), which modified the standards for adequate price competition at FAR 15.403-1(c) for DoD, NASA, and the Coast Guard.

The objective of this rule is to implement the new more restrictive standard for “adequate price competition” as the basis for an exception to the requirement to provide certified cost or pricing data. The statutory basis is 10 U.S.C. 2306a, as amended by section 822 of the NDAA for FY 2017.

There were no significant issues raised by the public in response to the initial regulatory flexibility analysis.

According to data for FY 2016 from the Federal Procurement Data System, for DoD, there were 918 noncommercial, competitive new awards valued at greater than $750,000 (the certified cost or pricing data threshold) that were awarded on the basis of a solicitation that received only one offer. Of the 918 awards, 549 were awarded to small businesses and 369 were awarded to other than small businesses. DoD estimated the number of small entities to which the rule will apply as follows:

• Of these awards, all will require certification, but only 75 percent (277) may require additional data.

• When additional certified cost or pricing data are requested from the prime contractor, it will impact 1,836 subcontract awards; 1,505 to small businesses.

• 75 percent of the subcontract awards to small business (1,129) will be required to provide new certified cost or pricing data, and 25 percent (376) will only be required to certify the cost or pricing data previously provided.

DoD will now be required to obtain certified cost or pricing data from an offeror when only one offer is received, and no other exception applies. DoD estimates 1.3 responses per respondent, with an average of 55.5 hours per response. The average level of the entities completing these responses is estimated as equivalent to a Government General Schedule 12, step 5 employee.

DoD was unable to identify any alternatives that would reduce burden on small business and still meet the requirements of the statute. Impact on small businesses is lessened, because the requirement for certified cost or pricing data only applies to acquisitions that exceed $750,000 and there is an exception for the acquisition of commercial items, including COTS items.

This rule contains information collection requirements that have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. chapter 35). This information collection requirement has been assigned OMB Control Number 0704-0574, entitled “Defense Federal Acquisition Regulation Supplement (DFARS) Part 215; Only One Offer and Related Clauses at 252.215.”

Therefore, 48 CFR parts 215 and 252 are amended as follows:

(3) Use the provision at 252.215-7008, Only One Offer, in competitive solicitations that exceed the simplified acquisition threshold, including solicitations using FAR part 12 procedures for the acquisition of commercial items.

I. Background

The following DFARS provisions and clauses are included in solicitations and contracts for services to prepare personal property for movement or storage, or perform intra-city of intra-area movement of personal property—

• 252.247-7008, Evaluation of Bids, which provides offerors with information on how the Government will evaluate bids received in response to a solicitation;

• 252.247-7009, Award, which provides offerors with the basis upon which the Government will make a contract award;

• 252.247-7010, Scope of Contract, which identifies the scope of the contractor's responsibility to provide supplies and services under the contract;

• 252.247-7011, Period of Contract, which identifies the period of performance for the contract and the timeframes in which new orders may be placed or completed when the contract is close to its expiration date.

• 252.247-7013, Contract Areas of Performance, which identifies the area of performance for the contract;

• 252.247-7017, Erroneous Shipments, which identifies procedures for the contractor to follow in the event an incorrect shipment occurs under the contract;

• 252.247-7018, Subcontracting, which requires the contractor to obtain written approval from the Government prior to subcontracting work under the contract; and,

• 252.247-7019, Drayage, which identifies the scope and applicable schedule for inbound and outbound drayage that occurs in connection with the contract.

In reviewing these provisions and clauses, along with current practices for acquiring these transportation services, DoD subject matter experts in transportation services advised that the information contained in these provisions and clauses is specific to the requirement and/or within the contracting officer's discretion. When applicable, the information more appropriately belongs in solicitation instructions or a performance work statement to ensure offerors and contractors receive cohesive set of instructions and performance requirements. As such, these provisions and clauses are no longer necessary and can be removed.

DFARS provision 252.247-7022, Representation of Extent of Transportation By Sea, is included in solicitations and requires an offeror to represent whether it anticipates that supplies will or will not be transported by sea in performance of the contract. The provision advises offerors that if a negative response is received to the representation, DFARS clause 252.247-7024 will be included in the subsequent contract. On February 15, 2019, DoD published a final rule (84 FR 4370) to repeal DFARS clause 252.247-7024, Notification of Transportation By Sea, and incorporate the text of the clause into DFARS clause 252.247-7023, Transportation of Supplies By Sea. As DFARS 252.247-7024 has been repealed, the DFARS provision 252.247-7022 is being revised to remove the reference to the repealed clause.

The removal of this DFARS text supports a recommendation from the DoD Regulatory Reform Task Force. On February 24, 2017, the President signed Executive Order (E.O.) 13777, “Enforcing the Regulatory Reform Agenda,” which established a Federal policy “to alleviate unnecessary regulatory burdens” on the American people. In accordance with E.O. 13777, DoD established a Regulatory Reform Task Force to review and validate DoD regulations, including the DFARS. A public notice of the establishment of the DFARS Subgroup to the DoD Regulatory Reform Task Force, for the purpose of reviewing DFARS provisions and clauses, was published in the Federal Register at 82 FR 35741 on August 1, 2017, and requested public input. No public comments were received on these provisions and clauses. The DoD Task Force reviewed the requirements of the transportation related DFARS provisions and clauses and determined that the DFARS coverage was unnecessary and recommended removal.

This rule only removes obsolete transportation related DFARS provisions and clauses. The rule does not impose any new requirements on contracts at or below the simplified acquisition threshold and for commercial items, including commercially available off-the-shelf items.

The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because DoD is not issuing a new regulation; rather, this rule is merely removing obsolete provisions and clauses from the DFARS and making one editorial change to a clause to remove a reference to an obsolete clause.

Executive Order (E.O.) 12866, Regulatory Planning and Review; and E.O. 13563, Improving Regulation and Regulatory Review, 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Management and Budget, Office of Information and Regulatory Affairs, has determined that this is not a significant regulatory action as defined under section 3(f) of E.O. 12866 and, therefore, was not subject to review under section 6(b). This rule is not a major rule as defined at 5 U.S.C. 804(2).

This rule is not subject to Executive Order (E.O.) 13771, because this rule is not a significant regulatory action under E.O. 12866.

Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 247 and 252 are amended as follows:

I. Background

DoD is amending the DFARS to remove DFARS clause 252.247-7001, Price Adjustment, and the associated clause prescription at DFARS 247.270-4. Included in solicitations and contracts for stevedoring services when using sealed bidding, this clause: Requires a contractor to warrant that the prices in the contract apply to, based upon, and exclude certain criteria; requires a contractor to notify the Government of any changes to collective bargaining agreements that apply to its direct labor employees and will impact the contractor's cost to perform; limits the upward adjustment of prices to a stated percentage and clarifies the terms and process for making such adjustments; and, requires a contractor to provide a statement pertaining to rates of pay for labor with its final invoice under the contract.

DoD subject matter experts on the acquisition of stevedoring services across DoD advise that sealed bidding is not used to procure such services and, as such, this clause is not included in stevedoring contracts. Federal Acquisition Regulation (FAR) clauses 52.222-41, Service Contract Labor Standards; 52.222-43, Fair Labor Standards Act and Service Contract Labor Standards—Price Adjustment (Multiple Year and Option Contracts); and 52.222-44, Fair Labor Standards Act and Service Contract Labor Standards—Price Adjustment; as well as DFARS clause 252.247-7002, Revision of Prices, adequately address price adjustments resulting from changes in wage rates or benefits and are currently included in stevedoring contracts, as applicable.

Since DFARS clause 252.247-7001 is not used and other FAR and DFARS clauses can be used to provide the necessary information to contractors performing on stevedoring contracts, this DFARS clause is no longer necessary and can be removed. The removal of this DFARS text supports a recommendation from the DoD Regulatory Reform Task Force. On February 24, 2017, the President signed Executive Order (E.O.) 13777, “Enforcing the Regulatory Reform Agenda,” which established a Federal policy “to alleviate unnecessary regulatory burdens” on the American people. In accordance with E.O. 13777, DoD established a Regulatory Reform Task Force to review and validate DoD regulations, including the DFARS. A public notice of the establishment of the DFARS Subgroup to the DoD Regulatory Reform Task Force, for the purpose of reviewing DFARS provisions and clauses, was published in the Federal Register at 82 FR 35741 on August 1, 2017, and requested public input. No public comments were received on this clause. The DoD Task Force reviewed the requirements of DFARS clause 252.247-7001, Pricing Adjustments, and determined that the DFARS coverage was unnecessary and recommended removal.

This rule only removes obsolete DFARS clause 252.247-7001, Pricing Adjustments. Therefore, the rule does not impose any new requirements on contracts at or below the simplified acquisition threshold and for commercial items, including commercially available off-the-shelf items

The statute that applies to the publication of the FAR is Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because DoD is not issuing a new regulation; rather, this rule is merely removing an obsolete clause from the DFARS.

Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866.

Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. This rule affects the information collection requirements in DFARS clause 252.241-7001, Price Adjustment, currently approved under OMB Control Number 0704-0245, entitled “Defense Federal Acquisition Regulation Supplement (DFARS) Part 247, Transportation, and associated clauses at DFARS 252.247.” However, the reduction in burden and savings is negligible.

Therefore, 48 CFR parts 247 and 252 are amended as follows:

This final rule amends the DFARS to provide direction to contracting officers at DFARS 249.109-70 to see DFARS Procedures, Guidance, and Information (PGI) 249.109-70 for additional information and guidance for limitation on pricing of the terminated effort for settlement agreements.

Therefore, 48 CFR part 249 is amended as follows:

Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006) and amendments.

NMFS is required, under § 635.28(a)(1), to file a closure notice with the Office of the Federal Register for publication when a BFT quota is reached or is projected to be reached. On and after the effective date and time of such notification, for the remainder of the fishing year or for a specified period as indicated in the notification, retaining, possessing, or landing BFT under that quota category is prohibited until the opening of the subsequent quota period or until such date as specified in the notice.

The 2019 BFT fishing year, which is managed on a calendar-year basis and subject to an annual calendar-year quota, began January 1, 2019. The Angling category season opened January 1, 2019, and continues through December 31, 2019. The currently codified Angling category quota is 232.4 mt, of which 5.3 mt is allocated for the harvest of large medium and giant (trophy) BFT by vessels fishing under the Angling category quota, with 1.8 mt allocated for each of the following areas: North of 39°18′ N lat. (off Great Egg Inlet, NJ) (the “northern area”); south of 39°18′ N lat. and outside the Gulf of Mexico (the “southern area”); and in the Gulf of Mexico. Trophy BFT measure 73 inches (185 cm) curved fork length or greater.

Based on reported landings from the NMFS Automated Catch Reporting System, NMFS has determined that the codified Angling category northern area trophy BFT subquota has been reached and exceeded and that a closure of the northern area trophy BFT fishery is warranted. Therefore, retaining, possessing, or landing large medium or giant BFT north of 39°18′ N lat. by persons aboard vessels permitted in the HMS Angling category and the HMS Charter/Headboat category (when fishing recreationally) must cease at 11:30 p.m. local time on June 27, 2019. This closure will remain effective through December 31, 2019. This action is intended to prevent further overharvest of the Angling category northern area trophy BFT subquota, and is taken consistent with the regulations at § 635.28(a)(1). NMFS previously closed the 2019 trophy BFT fishery in the southern area on March 14, 2019 (84 FR 9719, March 18, 2019) and in the Gulf of Mexico on May 31, 2019 (84 FR 25707, June 4, 2019). Therefore, with this closure of the northern area trophy BFT fishery as of June 27, 2019, the Angling category trophy BFT fishery will be closed in all areas for 2019.

If needed, subsequent Angling category adjustments will be published in the Federal Register . Information regarding the Angling category fishery for Atlantic tunas, including daily retention limits for BFT measuring 27 inches (68.5 cm) to less than 73 inches and any further Angling category adjustments, is available at hmspermits.noaa.gov or by calling (978) 281-9260. HMS Angling and HMS Charter/Headboat category permit holders may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. Anglers are also reminded that all BFT that are released must be handled in a manner that will maximize survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at https://www.fisheries.noaa.gov/resource/outreach-and-education/careful-catch-and-release-brochure.

HMS Charter/Headboat and Angling category vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov, using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30).

The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. The closure of the northern area Angling category trophy fishery is necessary to prevent any further overharvest of the northern area trophy fishery subquota. NMFS provides notification of closures by publishing the notice in the Federal Register , emailing individuals who have subscribed to the Atlantic HMS News electronic newsletter, and updating the information posted on the Atlantic Tunas Information Line at (978) 281-9260 and on hmspermits.noaa.gov.

These fisheries are currently underway and delaying this action would be contrary to the public interest as it could result in excessive trophy BFT landings that may result in future potential quota reductions for the Angling category, depending on the magnitude of a potential Angling category overharvest. NMFS must close the northern area trophy BFT fishery before additional landings of these sizes of BFT occur. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

This action is being taken under 50 CFR 635.28(a)(1), and is exempt from review under Executive Order 12866.