This final rule has been determined to be non-significant for purposes of Executive Order (E.O.) 12866 and therefore has not been reviewed by the Office of Management and Budget (OMB).

The affected programs are listed in the Catalog of Federal Domestic Assistance (CFDA) Program under 10.850, Rural Electrification Loans and Loan Guarantees. This catalog is available electronically through the free CFDA website on the internet at https://www.cfda.gov/. The print edition may be purchased by calling the Superintendent of Documents at (202) 512-1800 or toll free at (866) 512-1800, or by ordering online at https://bookstore.gpo.gov/.

This rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require a consultation with State and local officials. See the final rule related notice entitled, “Department Programs and Activities Excluded from Executive Order 12372” (50 FR 47034) advising that RUS loans and loan guarantees were not covered by Executive Order 12372.

The Agency has determined that this final rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian tribes. Thus, this final rule is not subject to the requirements of Executive Order 13175. Consequently, the Agency will not conduct tribal consultation sessions. If a Tribe determines that this rule has implications of which RUS is not aware and would like to request government-to-government consultation on this rule, please contact USDA Rural Development's Native American Coordinator at (720) 544-2911 or AIAN@wdc.usda.gov.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. In accordance with this final rule: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) No retroactive effect will be given to this rule; and (3) Administrative proceedings of the National Appeals Division (7 CFR part 11) must be exhausted before bringing suit in court challenging action taken under this rule.

The final rule has been reviewed in accordance with 7 CFR part 1970, Environmental Policies and Procedures. The Agency has determined that this action does not constitute a major Federal action significantly affecting the quality of the human environment and, in accordance with the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321 et seq., an Environmental Impact Statement is not required. Loan and grant applications will be reviewed individually to determine compliance with Agency environmental regulations and with NEPA.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, RUS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires RUS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This final rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The Regulatory Flexibility Act (5 U.S.C. 601-602) (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This final rule; however, is not subject to the APA under 5 U.S.C. 553(a)(2) and 5 U.S.C. 553(b)(3)(A) nor any other statute.

It has been determined, under E.O. 13132, Federalism, that the policies contained in this final rule do not have any 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. Nor does this final rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with the states is not required.

The Agency is committed to complying with the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible and 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.

The information collection and record-keeping requirements contained in this rule are approved by the Office of Management and Budget (OMB) under OMB Control Numbers 0572-0020, 0572-0032, 0572-0100, and 0572-0123. There is a total burden reduction of 10,571 hours associated with this rulemaking. The agency will submit a revision of the above referenced control numbers to OMB for review and approval.

In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion , sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information ( e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by:

(1) Mail: U.S. Department of Agriculture Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410;

(2) Fax: (202) 690-7442; or

(3) Email: program.intake@usda.gov.

USDA is an equal opportunity provider, employer, and lender.

Rural Development is a mission area within the U.S. Department of Agriculture (USDA) comprising the Rural Utilities Service, Rural Housing Service, and Rural Business-Cooperative Service. Rural Development's mission is to increase economic opportunity and improve the quality of life for all rural Americans. Rural Development meets its mission by providing loans, loan guarantees, grants, and technical assistance through numerous programs aimed at creating and improving housing, business, and infrastructure throughout rural America. The Rural Utilities Service (RUS) loan, loan guarantee, and grant programs act as a catalyst for economic and community development. By financing improvements to rural electric, water and waste, and telecommunications and broadband infrastructure, RUS also plays a significant role in improving other measures of quality of life in rural America, including public health and safety, environmental protection and culture and historic preservation.

RUS Electric Program loans, loan guarantees and grants finance the construction of improvement of rural electric infrastructure. In an effort by the RUS Electric Program to provide its program in an efficient and effective manner while improving its customer service and experience, and in response to requests from the RUS Electric Program borrowers, the Electric Program undertook a systematic review of regulations and procedures in place to administer its program. After review conclusion, RUS determined that pre- and post-loan procedures could be made more efficient and regulatory burden could be reduced on Electric Program borrowers while still ensuring RUS loans remain adequately secured and ensuring that loan funds will be repaid in the time agreed upon. This rulemaking will streamline Electric Program procedures and revise regulations. This includes removing unnecessary and outdated regulations and removing burdensome requirements imposed on borrowers and applicants.

To implement this change, the Agency will publish this as a final rule. The Administrative Procedure Act exempts from prior notice rules, “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts” (5 U.S.C. 553(b)(A)).

Changes to the Electric Program regulations are as follows:

(A) The Agency is removing numerous requirements for Board of Director resolutions for electric borrower actions in 7 CFR parts 1710-1730. Also, a new paragraph will be added to 7 CFR 1710.154 to identify five specific actions that will require Board Resolutions.

(B) The Agency is removing 7 CFR 1710.106(c)(4), which placed restrictions on loan funds for facilities or other specific purposes that were previously rescinded. Currently, the use of loan funds for projects included in a loan that was rescinded, excluded those projects from receiving loan funds in a subsequent loan even if no loan funds were made available for that project prior to rescission. RUS believes it has sufficient funds available to allow us to include these types of projects provided they had not received loan funds previously. This will make more loan funds available for rural electric infrastructure.

(C) The Agency is removing 7 CFR 1710.112(c) because it is outdated. It required a borrower's electric system to be year 2000 compliant.

(D) The Agency is revising 7 CFR 1710, Subpart E, Load Forecasts. RUS has previously required routine and periodic review and approval of up-to-date load forecasts. Load forecasts demonstrate system-wide growth and the need for generation. We are amending 7 CFR 1710 to require load forecasts only in connection with a loan made or guaranteed by RUS to reduce burden on borrowers while still giving RUS confidence that the borrower is adequately managing anticipated system-wide load growth. We are amending 7 CFR 1710.206 to remove RUS approval of a load forecast work plan. Routine and periodic submittal and approval by RUS is an unnecessary and costly burden on the Electric Program borrowers. We are amending 7 CFR 1710.202-208 to remove the requirements for borrowers to maintain an approved load forecast on an ongoing basis. We are amending 7 CFR 1710.202-208 to clarify the timing of the load forecast preparation in relation to the loan application and clarify that approval of a loan will constitute approval of the load forecast. We are amending 7 CFR 1710.209 to increase the total utility plant amount requiring the load forecast work plan.

(E) The agency will revise 7 CFR 1710, Subpart F, Construction Work Plans and Related Studies. We are amending 7 CFR 1710.250(a) to require a construction work plan (CWP) be prepared for a 4-year term (increased from the current 2-3 year requirement). This change will reduce the frequency and of review of the CWP for both the electric borrowers' and for the Electric Program staff. We are amending 7 CFR 1710.250-255 and 7 CFR 1717.604 to remove all references to long range engineering plans (LRP), except for the definition in 7 CFR 1710.250 and the requirement to maintain a LRP. The term of LRPs will be changed from 10 years to 10-20 years. We are amending 7 CFR 1710.250(j) to require that engineering services must be reviewed by a licensed professional engineer. This will provide consistency between all borrowers as the existing language in regulation language is too vague. We are removing 7 CFR 1710.254, Alternative sources of power, in its entirety. The concepts are duplicative of 7 CFR 1710.253. We are amending 7 CFR 1710.253(b) to remove the reference to 7 CFR 1710.254 and remove the last sentence and replace. We are amending 7 CFR 1710.250(g) to remove the 45-day notice of storm or natural disaster requirement.

(F) The Agency is revising 7 CFR 1710.501 to simplify the information and documents required to apply for a loan made or guaranteed by RUS. Borrowers will be divided into three categories: Current borrower, new/returning borrower, and generation and transmission borrower. The categories will determine the required documents needed to apply. Several application documents will no longer be required and in some cases information within application documents may be consolidated. This includes removing the requirement for a Transmittal Letter, § 1710.501(1), and amending § 1710.501 to require one Loan Application Letter. § 1710.501(a) has been amended to show that borrowers may be eligible to submit their loan application via RUS' electronic application intake system instead of submitting a paper submission. The Agency is revising § 1710.501(a)(5) to remove the requirement to submit a current Operating Report with the loan application and will rely on the year end form filed by many borrowers known as the Financial and Operating Report Electric Distribution. The Agency will also remove §§ 1710.501(a)(14), Articles of incorporation and bylaws, 1710.501(c), Primary support documents, and 1710.501(a)(6), Pending litigation statement. All required documents, forms and necessary information will be clearly set forth for the applicant in the revised § 1710.501; only the information needed by RUS to make feasibility and security determinations will be required. This change should improve customer experience and customer service and facilitate lending for electric infrastructure.

(G) The Agency is amending 7 CFR 1714.56 to delete references to automatic termination of loan advances at the end of the fund advance period. The fund advance period is actually governed by the terms of the applicable loan note and not the regulation. These requirements will be replaced by a reference to the terms of the particular loan note in determining the fund advance period. This change will alleviate any confusion and clarify that the loan note governs the advance period.

(H) The Agency is removing 7 CFR 1717, Subparts G and H, § 1717.300-356, in its entirety. However, the Wholesale Power Contract requirement is moved to a new § 1717.618 of Subpart M. RUS does not exercise federal preemption in ratemaking in connection with its electric power supply borrowers or in bankruptcy due to federal court decisions. Additionally, there are some clarifications to various requirements related to Lien Accommodations in Subpart R—Lien Accommodations and Subordinations for 100 Percent Private Financing in § 1717.850-860.

(I) Currently, 7 CFR 1724.51 requires RUS approval of electric system design regardless of the source of financing and 7 CFR 1724.54 requires approval of plans and specifications for RUS financed electric system facilities. These requirements assure RUS that the electric system it is financing is valuable and enhances its security. These sections are being amended to allow a licensed professional engineer to certify that the design data, plans and profile drawings for the electric system facilities meets all applicable RUS electric design requirements, specifications, local, state and national requirements and that RUS listed materials and equipment was used. This will benefit the borrower by allowing it to provide a certification in lieu of the actual system design and await review and approval. This will permit RUS staff to focus on more complex and non-compliant system designs.

(J) RUS requires the use of its form of contracts for RUS financed facilities, as required by 7 CFR 1724.1(c), 1724.10-1724.74 and 7 CFR 1726.24-1726.304. The Agency is amending 7 CFR 1724.1(c) to allow the borrowers three options: 1. Submit the actual contract used for review and approval, 2. submit a certification that the required contract was used for the electric project or 3. submit a certification that the contract was not used but the essential and identical provisions specifically listed in the certification were used in the contract for constructing the electric facilities. This change will facilitate electric system construction and advances of loan funds to borrowers. Certifications routinely are used throughout the government as a means of compliance with requirements. RUS will be authorized to review the underlying contracts, if requested.

For the reasons set forth in the preamble, RUS amends 7 CFR parts 1710, 1714, 1717, 1721, 1724, 1726, and 1730 as follows:

This rule amends PBGC's regulation on Disclosure and Amendment of Records Pertaining to Individuals under the Privacy Act (29 CFR part 4902) to exempt from disclosure information contained in a new system of records for PBGC's insider threat program. The exemption is needed because records in this system include investigatory material compiled for law enforcement purposes.

Authority for this rule is provided by section 4002(b)(3) of the Employee Retirement Income Security Act of 1974 (ERISA) and 5 U.S.C. 552a(k)(2).

The Pension Benefit Guaranty Corporation (PBGC) administers the pension plan insurance programs under title IV of the Employee Retirement Income Security Act of 1974 (ERISA). As a Federal agency, PBGC is subject to the Privacy Act of 1974, 5 U.S.C. 552a (Privacy Act), in its collection, maintenance, use, and dissemination of any personally identifiable information that it maintains in a “system of records.” A system of records is defined under the Privacy Act as “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.”  1

PBGC is proposing to establish a new system of records, “PBGC-26, PBGC Insider Threat and Data Loss Prevention—PBGC.” This system of records is published in the “Notice” section of this issue of the Federal Register .

Executive Order 13587, issued October 7, 2011, requires Federal agencies to establish an insider threat detection and prevention program to ensure the security of classified networks and the responsible sharing and safeguarding of classified information consistent with appropriate protections for privacy and civil liberties. While PBGC does not have any classified networks, it does maintain a significant amount of Controlled Unclassified Information (CUI) that, under law, it is required to safeguard from unauthorized access or disclosure. One method utilized by PBGC to ensure that only those with a need-to-know have access to CUI is a set of tools to minimize data loss, whether inadvertent or intentional. This system will collect and maintain Personally Identifiable Information (PII) in the course of scanning traffic leaving PBGC's network and blocking traffic that violates PBGC's policies to safeguard PII.

This system covers “PBGC insiders,” who are individuals with access to PBGC resources, including facilities, information, equipment, networks, and systems. This includes Federal employees and contractors. Records from this system will be used on a need- to-know basis to manage insider threat matters; facilitate insider threat investigations and activities; identify threats to PBGC resources, including threats to PBGC's personnel, facilities, and information assets; track tips and referrals of potential insider threats to internal and external partners; meet other insider threat program requirements; and investigate/manage the unauthorized or attempted unauthorized disclosure of PII.

Under section 552a(k) of the Privacy Act, PBGC may promulgate regulations exempting information contained in certain systems of records from specified sections of the Privacy Act including the section mandating disclosure of information to an individual who has requested it. Among other systems, PBGC may exempt a system that is “investigatory material compiled for law enforcement purposes.”  2 Under this provision, PBGC has exempted, in § 4209.11 of its Privacy Act regulation, records of the investigations conducted by its Inspector General and contained in a system of records entitled “PBGC-17, Office of Inspector General Investigative File System—PBGC.”

The PBGC-26, PBGC Insider Threat and Data Loss Prevention—PBGC system contains: (1) Records derived from PBGC security investigations, (2) summaries or reports containing information about potential insider threats or the data loss prevention program, (3) information related to investigative or analytical efforts by PBGC insider threat program personnel, (4) reports about potential insider threats obtained through the management and operation of the PBGC insider threat program, and (5) reports about potential insider threats obtained from other Federal Government sources. The records contained in this new system include investigative material of actual, potential, or alleged criminal, civil, or administrative violations and law enforcement actions. These records are within the material permitted to be exempted under section 552a(k)(2) of the Privacy Act.

PBGC is amending its Privacy Act regulation to add a new § 4902.12 that exempts PBGC-26, PBGC Insider Threat and Data Loss Prevention—PBGC, from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f). Exemption from these sections of the Privacy Act means that, with respect to records in the system, PBGC will not be required to: (1) Disclose records to an individual upon request, (2) keep an accounting of individuals who request records, (3) maintain only records as necessary to accomplish an agency purpose, or (4) publish notice of certain revisions of the system of records.

This is a rule of “agency organization, procedure, or practice” and is limited to “agency organization, management, or personnel matters.” The exemption from provisions of the Privacy Act provided by the interim final rule affects only PBGC insiders described above. Accordingly, this rule is exempt from notice and public comment requirements under 5 U.S.C. 553(b) and the requirements of Executive Order 12866 and Executive Order 13771. 3 Because no general notice of proposed rulemaking is required, the Regulatory Flexibility Act does not apply to this rule. See 5 U.S.C. 601(2), 603, 604.

PBGC finds good cause exists for making the amendments set forth in this interim final rule effective less than 30 days after publication because the amendments support PBGC's new system of records for insider threat detection and data loss prevention, which is effective July 9, 2019.

In consideration of the foregoing, PBGC is amending 29 CFR part 4902 as follows:

On July 18, 2017, we published a notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulation; Shrewsbury River, Sea Bright, New Jersey” in the Federal Register (82 FR 32777). We received 129 comments from the NPRM. Further, Commander (dpb), First Coast Guard District also published a Public Notice 1-155 dated July 28, 2017. The notice requested comments and directed those comments be added to the docket. In response to the 129 comments received, additional data was gathered, including follow-up meetings with Monmouth County officials and review of bridge logs and traffic counts. Subsequently, the Coast Guard tested a temporary deviation with an alternate schedule for the 2018 boating season. On May 22, 2018 the Coast Guard published a temporary deviation from the operating schedule entitled, “Drawbridge Operation Regulation; Shrewsbury River, Sea Bright, New Jersey” in the Federal Register (83 FR 23581). The 2018 proposed change to the bridge operating schedule was tested to determine whether a permanent change was warranted to allow the draw to open as follows:

The draw shall open on signal at all times; except that, from the Friday before Memorial Day through Labor Day, on Friday, Saturday, Sunday, and holidays, between 9 a.m. and 7 p.m., the draw need only open on the hour.

One-hundred-twelve comments were received in response to the test deviation. This number includes the comments received directly to U.S. Coast Guard District One, Bridge Branch. We received a total of 241 comments from the 2017 NPRM and the 2018 test deviation.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register . This final rule lessens prior restrictions for notice requirements on the weekends and holidays during the summer months, and provides set schedules for bridge openings. The public comments in response to the test deviation and the NPRM support the promulgation of the modified regulation to reduce the notice required for bridge openings and set hourly openings for a specific period of time during the summer months. Making this rule effective as soon as possible within the timeframe most impacted (Memorial Day to Labor Day) will serve the needs of the community while continuing to meet the reasonable needs of navigation.

The Coast Guard is issuing this rule under authority 33 U.S.C. 499. The Monmouth County Highway Bridge, mile 4.0, across the Shrewsbury River at Sea Bright, New Jersey, has a vertical clearance of 15 feet at Mean High Water and 17 feet at Mean Low Water when the span is in the closed position. Vertical clearance is unlimited when the draw is open. Horizontal clearance is 75 feet. Waterway users include recreational vessels and a limited number of commercial vessels including tug/barge combinations.

The existing drawbridge regulation, 33 CFR 117.755, requires the draw of the Monmouth County Highway Bridge to open as follows: The draw shall open on signal at all times; except that, from May 15 through September 30, Saturday, Sunday and holidays, between 9 a.m. and 7 p.m., the draw need open only on the hour and half hour. This regulation has been in effect since July 6, 2010. Monmouth County, the owner of the bridge, requested a change to the drawbridge operating regulations given the increased volume of vehicular traffic crossing the bridge associated with the summer months. The increase of vehicular traffic resulted in significant traffic congestion on either side of the bridge during peak travel hours. The owner of the bridge asserted that traffic congestion will be improved or relieved through reduction of required bridge openings for vessels. In the summer of 2018, a deviation from the operating regulation was tested, from the Friday before Memorial Day through Labor Day. The operating regulations presently encompassing Saturdays, Sundays, and holidays was expanded to include Fridays as well, between 9 a.m. and 7 p.m., the draw was open only on the hour to allow for more efficient and economical operation of the bridge, given the volume of vehicular traffic crossing the bridge at the beginning of the weekend.

Density patterns were recorded from the Monmouth County 2018 bridge logs for the Friday, Saturday, Sunday, and Holiday timeframes. In June, from the first through the fifth weekends, boats requiring bridge openings numbered: 42, 50, 59, 52, and 76 respectfully. In July, from the first through the fourth weekends, including the July 4th holiday, boats requiring bridge openings numbered: 101, 41, 29, and 66, respectively. In August through September 3, 2018, from the first through the fifth weekend, boats requiring bridge openings numbered: 53, 40, 40, 77, and 22 respectively. The vessels that utilize the waterway are primarily recreational power boats, as well as sailboats and occasional commercial vessels including tugs and barges.

Recorded from the Monmouth County vehicle traffic counts transiting east and west bound over the bridge from the first through the fifth weekends, July through September 3, 2018 range from 11,000 to over 15,000 vehicle crossings.

One-hundred and ninety-three comments of the 241 comments received supported the modified and expanded bridge operating schedule; the majority of comments citing an improved difference in the vehicle traffic congestion or no difference in marine navigation, and recommended making the regulation permanent. Additionally, comments stated that emergency vehicles (including Fire Department/EMS and Law Enforcement) are better able to respond to emergency calls. Some comments indicated that switching to hourly weekend openings between 9 a.m. and 7 p.m. (as opposed to openings on the hour and the half-hour) would likely mitigate (if not eliminate entirely) the worst aspects of recurrent traffic jams through reduced bridge openings.

Thirty-one comments of the 241 comments received did not support the proposed hourly weekend opening schedule. These comments suggested that the modified bridge operation schedule either did not make a difference in the level of vehicular traffic congestion and actually created even more vehicular traffic or that hourly openings created marine safety issues or were inconvenient for boaters. Some commenters additionally note that a backup in marine traffic could pose an environmental issue, due to increased diesel exhaust in the area from boats idling awaiting the bridge opening. In addition, some commenters stated bridge tenders tend to leave bridge open too long. While this may be the case, the Coast Guard believes on-site bridge tenders have a clear view of the waterway and are the best persons to determine safe situations for vessel transits.

Some commenters suggested instead of changing the bridge opening schedule that unnecessary bridge openings could be avoided by training bridge tenders to demand antennas and outriggers be lowered. The Coast Guard disagrees with this suggestion, as the regulations found in 33 CFR 117.11 discuss the unnecessary openings of drawbridge, including vessels who have not lowered all appurantances that can be lowered. Any complaints of non-compliance of these regulations shall be reported to the Coast Guard.

Other comments stated when the bridge is open every hour and half hour, boat traffic moves through more quickly and road traffic is not delayed as long as during the hourly openings. While the Coast Guard agrees that boat traffic would be faster with the half hour openings compared to hourly openings, = we disagree with the assertion that road traffic is not effected. After review of the vessel and traffic counts presented in Section III above and follow-up discussions with Monmouth County engineers, the Coast Guard concluded that there is an improvement to land traffic with little effect to marine traffic. Lastly, some commenters stated the test deviation created more hazardous conditions, including increased congestion on the water and a higher risk for accidents due to inexperienced boaters, currents, and difficulty maneuvering. While the Coast Guard agrees the waterway is narrow and challenging to maneuver during tidal cycles, mariners should be knowledgeable of the waterway “Rules of the Road” and be able to plan their voyages accordingly under this modified regulation to enable safe transits through the bridge. In response to the additional comments summarized that a new, higher bridge should be built, Monmouth County is in the pre-application phase of concept development for a new bridge and the public will have an opportunity to comment.

Some comments expressed either no clear preference or alternate suggestions to the proposed rule change. The suggested alternatives offered by commenters included: 1. Curtailing the bridge openings on the weekends further to every two hours or not at all; 2. Opening the bridge every 45 minutes within the specific hour window in the proposed rule; 3. Shrinking the hourly opening window to between 11:00 and 4:00 p.m. The agency considered all options presented by commenters. As stated, the agency feels that the proposed rule strikes the correct balance between relieving traffic congestion issues and boater safety, and declines to adopt the proposed suggestions.

It is the Coast Guard's opinion that this rule meets the reasonable needs of marine navigation with a positive effect on vehicular and pedestrian traffic. The rule allows for more efficient and economical operation of the bridge. Further, the new schedule balances the seasonally high volume of roadway traffic crossing the bridge during peak hours, with the existing needs of marine traffic.

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

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

The Coast Guard believes this rule is not a significant regulatory action. The bridge will open on the hour from 9 a.m. to 7 p.m., during Friday, Saturday, Sunday, and holidays, throughout the summertime boating season, while still opening on signal during evening hours as well as through the autumn, winter and spring months. The minimum 15 foot vertical clearance available while the bridge is in the closed position is sufficient to allow a significant number of recreational vessels to safely and expeditiously pass through the draw without opening.

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

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The Coast Guard received no comments on this section. 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. The Coast Guard received no comments on this section.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule simply promulgates the operating regulations or procedures for drawbridges. This action is categorically excluded from further review, under Figure 2-1, paragraph (32)(e), of the Instruction.

A preliminary Record of Environmental Consideration and a Memorandum for the Record are not required for this rule.

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

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

Background

The Washington Monument is located on the National Mall and honors our Nation's first President. Completed in 1884 through a combination of military and civilian efforts, the Monument stood taller than any structure in the world. It has become an indelible symbol of the Nation and its capital.

On July 20, 1969, the Nation reached even farther into the sky when the Apollo 11 Mission, another combination of military and civilian efforts, succeeded in landing the first humans on the surface of the moon. On June 18, 2019, in anticipation of the fiftieth anniversary of this momentous event, Congress passed H.J. Res. 60, a joint resolution that “requests the Secretary of the Interior to authorize unique and one-time arrangements for the display of NASA and Smithsonian artifacts, digital content, film footage, and associated historic audio and imagery, in and around the vicinity of the National Mall, including projected onto the surface of the Washington Monument for five nights of public display during the period beginning on July 16, 2019 and ending on July 20, 2019”. H.J. Res. 60. To effectuate this resolution, the National Aeronautics and Space Administration (NASA), the Smithsonian National Air and Space Museum, and the Department of the Interior (DOI) now seek to express the Nation's continued admiration of American courage, sacrifice, and vision that has led this Nation from its founding to the unimaginable new heights reached by Apollo 11.

In response to H.J. Res 60, the Secretary of the Interior has directed the National Park Service (NPS), from July 16 through July 20, 2019, to allow a once-in-a-lifetime commemorative event to project film footage and associated imagery of the Apollo 11 Mission onto the façade of the Washington Monument. The film footage and imagery will be selected and provided by NASA and the Smithsonian National Air and Space Museum.

Due to ongoing renovations, traditional public use and enjoyment of the Washington Monument will continue to be limited through August 2019. This commemorative event will enhance the public's experience and enjoyment of the Washington Monument, even when required to remain outside the renovation's construction zone barriers.

Under an existing regulation at 36 CFR 7.96(g)(3)(ii)(A), the Washington Monument is surrounded by a restricted zone which consists of the area enclosed within the inner circle that surrounds the Monument's base. The restricted zone includes the sides of the Washington Monument itself, on which film footage and associated imagery of the Apollo 11 Mission would be projected. Demonstrations and special events are not allowed within the restricted zone, except for the official annual commemorative Washington birthday ceremony. This restricted zone is similar to restricted zones at the Lincoln Memorial, Thomas Jefferson Memorial, and Vietnam Veterans Memorial, where demonstrations and special events also are prohibited by NPS regulations. These restricted zones are intended to maintain the memorials in an atmosphere of calm, tranquility, and reverence, as well as protect legitimate security and park value interests. 41 FR 12880 (1976) (Final Rule).

There has always been a regulatory exception for the restricted zone at the Washington Monument that allows for the official annual commemorative Washington birthday celebration. Because Congress has passed a joint resolution requesting that the Secretary of the Interior hold a singular event to celebrate the tenacity of the American spirit represented by the moon landing, and to hold it specifically at the Washington Monument with images projected on its surface, and because there is no operational impact to the Washington Monument, the NPS will temporarily revise its regulations to allow for this unique, one-time use. This temporary rule establishes an exception to the prohibition on demonstrations and special events within the restricted area of the Washington Monument that will allow for the Apollo 11 event. This temporary rule will be effective on July 12, 2019 and expire on July 23, 2019, to allow for the setup and take-down of equipment related to the event. The official commemorative event will begin on July 16, 2019 and end on July 20, 2019. After the temporary rule expires on July 23, 2019, the NPS regulation at 36 CFR 7.96(g)(3)(ii)(A) will revert to its former wording.

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

E.O. 13563 reaffirms the principles of E.O. 12866, while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 further emphasizes that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The NPS has developed this rule in a manner consistent with these requirements.

Enabling regulations are considered deregulatory under guidance implementing E.O. 13771 (M-17-21). This rule allows a special event to take place that would otherwise be prohibited.

Because this temporary rule is necessary to carry out the request of Congress to begin the official Apollo 11 celebration on July 16, 2019, and because of the limited time remaining before setup will need to begin to meet that deadline, the NPS is publishing this temporary rule as a final rule. In accordance with the requirements of the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)), the NPS has determined that publishing a proposed rule would be impractical because of the short time period available. The NPS also believes that publishing this temporary rule 30 days before it becomes effective would be impractical because of the limited time remaining before July 16, 2019. A 30-day delay in this instance would be unnecessary and contrary to the public interest. Therefore, under the Administrative Procedure Act (5 U.S.C. 553(d)(3)), the NPS has determined that this temporary rule will be effective on the date published in the Federal Register .

This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act is not required.

This rule does not effect a taking of private property or otherwise have takings implications under E.O. 12630. A takings implication assessment is not required.

Under the criteria in section 1 of E.O. 13132, the rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rule only affects use of federally administered lands and waters. It has no outside effects on other areas. A federalism summary impact statement is not required.

This rule complies with the requirements of E.O. 12988. This rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. The NPS has evaluated this rule under the criteria in E.O. 13175 and under the Department's Tribal consultation policy and has determined that Tribal consultation is not required because the rule will not have a substantial direct effect on federally recognized Indian Tribes.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. The NPS may not conduct or sponsor and the public is not required to respond to a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required because the rule is covered by a categorical exclusion. NPS Handbook 2015 Section 3.3.A.8. We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under the NEPA.

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects in not required.

In consideration of the foregoing, the National Park Service amends 36 CFR part 7 as set forth below.

On April 11, 2019 (84 FR 14640), EPA published a notice of proposed rulemaking (NPRM) for the State of Delaware. In the NPRM, EPA proposed approval of Delaware's negative declaration for the 2016 Oil and Gas CTG. On October 27, 2016, EPA published in the Federal Register the “Release of Final Control Techniques Guidelines for the Oil and Natural Gas Industry.” 81 FR 74798. The CTG provided information to state, local, and tribal air agencies to assist them in determining reasonably available control technology (RACT) for volatile organic compounds (VOC) emissions from select oil and natural gas industry emission sources. Section 182(b)(2)(A) of the CAA requires that for ozone nonattainment areas classified as Moderate, states must revise their SIPs to include provisions to implement RACT for each category of VOC sources covered by a CTG document issued between November 15, 1990, and the date of attainment. Section 184(b)(1)(B) of the CAA extends this requirement to states in the Ozone Transport Region (OTR). The state of Delaware is in the OTR and therefore is subject to this CTG. States with no applicable sources for a specific CTG may submit as a SIP revision a negative declaration stating that there are no applicable sources in the state.

On June 28, 2018, Delaware's Department of Natural Resources and Environmental Control (DNREC) submitted to EPA a SIP revision concerning a negative declaration for the 2016 Oil and Gas CTG. In its submittal, DNREC stated that the State has no sources subject to this CTG. The rationale for EPA's proposed action is explained in the NPRM and will not be restated here. No adverse public comments were received on the NPRM.

EPA is approving Delaware's negative declaration for the 2016 Oil and Gas CTG, which was submitted on June 28, 2018 as a revision to the Delaware SIP.

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 9, 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 which is a negative declaration for the 2016 Oil and Gas CTG for the State of Delaware may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at 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-2018-0736 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 September 9, 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-2018-0736, 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 13, 2019 (84 FR 20843) (FRL-9991-99), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-11242) filed by Arkema Inc. c/o Lewis & Harrison, 2461 South Clark Street, Arlington, VA 22202. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of 2-propenoic acid, methyl ester, polymer with ethene and 2,5-furandione (CAS Reg. No. 88450-35-5). That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency received one comment in response to the Notice of Filing associated with this action; however, the comment was unrelated to 2-propenoic acid, methyl ester, polymer with ethene and 2,5-furandione and is not relevant to this action.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(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 use 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 an exemption from the requirement of 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 . . .” and specifies factors EPA is to consider in establishing an exemption.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information 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. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). 2-Propenoic acid, methyl ester, polymer with ethene and 2,5-furandione conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.

1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. The polymer does contain as an integral part of its composition at least two of the atomic elements carbon, hydrogen, nitrogen, oxygen, silicon, and sulfur.

3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

7. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF 3 - or longer chain length as listed in 40 CFR 723.250(d)(6).

Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

8. The polymer's number average MW of 10,500 is greater than or equal to 10,000 daltons. The polymer contains less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000.

Thus, 2-propenoic acid, methyl ester, polymer with ethene and 2,5-furandione meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to 2-propenoic acid, methyl ester, polymer with ethene and 2,5-furandione.

For the purposes of assessing potential exposure under this exemption, EPA considered that 2-propenoic acid, methyl ester, polymer with ethene and 2,5-furandione could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of 2-propenoic acid, methyl ester, polymer with ethene and 2,5-furandione is 10,500 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since 2-propenoic acid, methyl ester, polymer with ethene and 2,5-furandione conform to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

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 found 2-propenoic acid, methyl ester, polymer with ethene and 2,5-furandione to share a common mechanism of toxicity with any other substances, and 2-propenoic acid, methyl ester, polymer with ethene and 2,5-furandione does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that 2-propenoic acid, methyl ester, polymer with ethene and 2,5-furandione does not have 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 EPA's website at http://www.epa.gov/pesticides/cumulative.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold 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 data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of 2-propenoic acid, methyl ester, polymer with ethene and 2,5-furandione, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of 2-propenoic acid, methyl ester, polymer with ethene and 2,5-furandione.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

Accordingly, EPA finds that exempting residues of 2-propenoic acid, methyl ester, polymer with ethene and 2,5-furandione from the requirement of a tolerance will be safe.

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). 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:

States that have received final authorization from the EPA under RCRA Section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, states must change their programs and ask the EPA to authorize their changes. Changes to state programs may be necessary when federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to the EPA's regulations codified in title 40 of the Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273, and 279.

Idaho State's hazardous waste management program was initially approved on March 26, 1990 and became effective on April 9, 1990. As explained in Section E in this document, it has been revised and reauthorized numerous times since then. On March 18, 2018, Idaho submitted a program revision application to the EPA requesting authorization for all delegable Federal hazardous waste regulations codified as of July 1, 2016, incorporated by reference in IDAPA 58.01.05.000 et seq., which were adopted and effective in the State of Idaho on March 29, 2017. This authorization revision request includes the following federal rules for which Idaho is being authorized for the first time: Conditional Exclusions from Solid and Hazardous Waste for Solvent Contaminated Wipes (78 FR 46448, July 31, 2013) ; Conditional Exclusion for Carbon Dioxide Streams in Geologic Sequestration Activities (79 FR 350, January 3, 2014); Modification of the Hazardous Waste Manifest System- Electronic Manifests (79 FR 7518, February 7, 2014); Identification and Listing of Hazardous Waste- CFR Correction (79 FR 35290, June 20, 2014); Revisions to the Export Provisions of Cathode Ray Tube Rule (79 FR 36220, June 26, 2014); Definition of Solid Waste (80 FR 1694, January 13, 2015); Response to Vacaturs of the Comparable Fuels Rule and the Gasification Rule (80 FR 18777, April 8, 2015); Disposal of Coal Combustion Residuals from Electric Utilities (80 FR 21302, April 17, 2015); Disposal of Coal Combustion Residuals from Electric Utilities- Correction of the Effective Date (80 FR 37988, July 2, 2015); and Transboundary Shipments of Hazardous Wastes Between OECD Member Countries—Revisions to the List of OECD Member Countries (80 FR 37992, July 2, 2015).

The EPA is authorizing Idaho's revised hazardous waste program in its entirety through July 1, 2016, as described above.

The EPA has reviewed Idaho's application to revise its authorized program and has determined that it meets the statutory and regulatory requirements established by RCRA. Therefore, the EPA is granting Idaho final authorization to operate its hazardous waste management program with the changes described in the authorization application. Idaho will continue to have responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian country (18 U.S.C. 1151)) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates under the authority of HSWA, and which are not less stringent than existing requirements, take effect in authorized States before the States are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in Idaho, including issuing permits, until Idaho is granted authorization to do so.

A person in Idaho subject to RCRA must comply with the authorized State requirements in lieu of the corresponding Federal requirements. Additionally, such persons will have to comply with any applicable Federal requirements, such as HSWA regulations issued by the EPA for which the State has not received authorization and RCRA requirements that are not supplanted by authorized State requirements. Idaho continues to have enforcement authorities and responsibilities under its State hazardous waste management program for violations of its program. However, the EPA retains authority under RCRA sections 3007, 3008, 3013, and 7003, which includes, among others, the authority to:

• Conduct inspections, which may include but is not limited to requiring monitoring, tests, analyses, and/or reports;

• Abate conditions that may present an imminent and substantial endangerment to human health and the environment;

• Enforce RCRA requirements, which may include but is not limited to suspending, terminating, modifying, and/or revoking permits; and

• Take enforcement actions regardless of whether Idaho has taken its own actions.

The action to approve these revisions will not impose additional requirements on the regulated community because the regulations for which Idaho is requesting authorization are already effective under State law and are not changed by the act of authorization.

The EPA published a proposed rule under Docket ID No. EPA-R10-2018-0298 on September 5, 2018 (83 FR 45068), prior to taking this final action to authorize these changes. The EPA received five comments during the public comment period of this action. All of the comments received are included in the docket for this action. One of the comments received was supportive of Idaho updating its hazardous waste program to continue its alignment with the federal hazardous waste program. The remaining four comments covered a variety of topics, including: A comparison between American regulations and Chinese regulations; hydroelectric powerplants; waste altering marine life in the ocean; and alleged violations of RCRA at the Department of Energy's Idaho National Laboratory. We do not consider these comments to be germane or relevant to this action and therefore not adverse to this action. The comments lack the required specificity to the proposed hazardous waste program regulatory revision and the relevant requirements of RCRA. Moreover, none of these four comments addressed a specific regulation or provision in question or recommended a different action on this authorization revision from what EPA proposed.

Idaho initially received final authorization for its hazardous waste management program effective April 9, 1990 (55 FR 11015, March 26, 1990). Subsequently, the EPA authorized revisions to the State's program effective June 5, 1992 (57 FR 11580, April 6, 1992), August 10, 1992 (57 FR 24757, June 11, 1992), June 11, 1995 (60 FR 18549, April 12, 1995), January 19, 1999 (63 FR 56086, October 21, 1998), July 1, 2002 (67 FR 44069, July 1, 2002), March 10, 2004 (69 FR 11322, March 10, 2004), July 22, 2005 (70 FR 42273, July 22, 2005), February 26, 2007 (72 FR 8283, February 26, 2007), December 23, 2008 (73 FR 78647, December 23, 2008), July 11, 2012 (77 FR 34229, June 11, 2012) and September 21, 2015 (80 FR 20726, August 20, 2015).

The EPA is authorizing revisions to Idaho's authorized program described in Idaho's official program revision application, submitted to the EPA on March 29, 2018, and deemed complete by the EPA on April 4, 2018. The EPA has determined that Idaho's hazardous waste management program revisions as described in the March 29, 2018 State's authorization revision application satisfy the requirements necessary to quality for final authorization. Regulatory revisions that are less stringent than the Federal program requirements are not authorized. Idaho's authorized hazardous waste management program, as amended by these provisions, remains equivalent to, consistent with, and is no less stringent than the Federal RCRA program. Therefore, the EPA is authorizing the State for the following program changes: Conditional Exclusions from Solid and Hazardous Waste for Solvent Contaminated Wipes (78 FR 46448, July 31, 2013) ; Conditional Exclusion for Carbon Dioxide Streams in Geologic Sequestration Activities (79 FR 350, January 3, 2014); Modification of the Hazardous Waste Manifest System—Electronic Manifests (79 FR 7518, February 7, 2014); Identification and Listing of Hazardous Waste—CFR Correction (79 FR 35290, June 20, 2014); Revisions to the Export Provisions of Cathode Ray Tube Rule (79 FR 36220, June 26, 2014); Definition of Solid Waste (80 FR 1694, January 13, 2015); Response to Vacaturs of the Comparable Fuels Rule and the Gasification Rule (80 FR 18777, April 8, 2015); Disposal of Coal Combustion Residuals from Electric Utilities (80 FR 21302, April 17, 2015); Disposal of Coal Combustion Residuals from Electric Utilities—Correction of the Effective Date (80 FR 37988, July 2, 2015); and Transboundary Shipments of Hazardous Wastes Between OECD Member Countries—Revisions to the List of OECD Member Countries (80 FR 37992, July 2, 2015).

Under RCRA section 3009, the EPA may not authorize State rules that are less stringent than the Federal program. Any State rules that are less stringent do not supplant the Federal regulations. State rules that are broader in scope than the Federal program requirements are allowed but are not authorized. State rules that are equivalent to, and State rules that are more stringent than the Federal program may be authorized, in which case those provisions are enforceable by the EPA.

This section discusses certain rules in this action where the EPA has made the finding that Idaho's program is more stringent, and also discusses certain portions of the Federal program that are not delegable to the State because of the Federal government's special role in foreign policy matters and because of national concerns that arise with certain decisions.

Idaho is currently more stringent than the Federal program in its adoption of 40 CFR 260.43 (2015) and 40 CFR 261.4(a)(24) (2015) at IDAPA 58.01.05.004 and 58.01.05.005. Both of these regulations include provisions from the 2015 Definition of Solid Waste (DSW) Rule that has been vacated and replaced with the less stringent requirements found at 40 CFR 260.43 (2018) and 40 CFR 261.4(a)(24) and (25) (2018), which were reinstated from the 2008 DSW Rule. Idaho will be revising its regulations to include this update as required by the vacatur to be equivalent to the Federal program.

The EPA cannot delegate certain Federal requirements associated with the following rules: Modification of the Hazardous Waste Manifest System—Electronic Manifests (79 FR 7518, February 7, 2014), Revisions to the Export Provisions of Cathode Ray Tube Rule (79 FR 36220, June 26, 2014), and Transboundary Shipments of Hazardous Wastes Between OECD Member Countries—Revisions to the List of OECD Member Countries (80 FR 37992, July 2, 2015). Idaho has adopted these requirements and appropriately preserved EPA's authority to implement them.

Idaho will continue to issue permits for all the provisions for which it is authorized and will administer the permits it issues. If the EPA issued permits prior to authorizing Idaho for these revisions, these permits would continue in force until the effective date of the State's issuance or denial of a State hazardous waste permit, at which time the EPA would modify the existing EPA permit to expire at an earlier date, terminate the existing EPA permit for cause, or allow the existing EPA permit to otherwise expire by its terms, except for those facilities located in Indian country. The EPA will not issue new permits or new portions of permits for provisions for which Idaho is authorized. The EPA will continue to implement and issue permits for HSWA requirements for which Idaho is not authorized.

The EPA's decision to authorize the Idaho hazardous waste management program does not include any land that is, or becomes after the date of this authorization, “Indian Country,” as defined in 18 U.S.C. 1151. Indian country includes:

1. All lands within the exterior boundaries of Indian reservations within or abutting the State of Idaho;

2. Any land held in trust by the U.S. for an Indian tribe; and

3. Any other land, whether on or off an Indian reservation, that qualifies as Indian country.

Therefore, this program revision does not extend to Indian country where the EPA will continue to implement and administer the RCRA program.

This final rule revises the State of Idaho's authorized hazardous waste management program pursuant to Section 3006 of RCRA and imposes no requirements other than those currently imposed by State law. This rule complies with applicable executive orders and statutory provisions as follows:

Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993), Federal agencies must determine whether the regulatory action is “significant”, and therefore subject to OMB review and the requirements of the E.O.. The E.O. defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O.. The EPA has determined that this final authorization is not a “significant regulatory action” under the terms of E.O. 12866 and is therefore not subject to OMB review.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., because this final authorization does not establish or modify any information or recordkeeping requirements for the regulated community and only seeks to finalize authorization for the pre-existing requirements under State law and imposes no additional requirements beyond those imposed by State law.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing, and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in title 40 of the CFR are listed in 40 CFR part 9.

The Regulatory Flexibility Act generally requires Federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this authorization on small entities, small entity is defined as: (1) A small business defined by the Small Business Administration's size regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. I certify that this final authorization will not have a significant economic impact on a substantial number of small entities because the final authorization will only have the effect of authorizing pre-existing requirements under State law and imposes no additional requirements beyond those imposed by State law.

Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under Section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, Section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of Section 205 do not apply when they are inconsistent with applicable law. Moreover, Section 205 allows the EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the rule an explanation why the alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under Section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of the EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. This final authorization contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local, or tribal governments or the private sector. It proposes to impose no new enforceable duty on any state, local or tribal governments or the private sector. Similarly, the EPA has also determined that this final authorization contains no regulatory requirements that might significantly or uniquely affect small government entities. Thus, this final authorization is not subject to the requirements of Sections 202 and 203 of the UMRA.

This final authorization does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among various levels of government, as specified in E.O. 13132 (64 FR 43255, August 10, 1999). This document authorizes pre-existing State rules. Thus, E.O. 13132 does not apply to this final authorization. In the spirit of E.O. 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicited comment on this authorization from State and local officials.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (59 FR 22951, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final authorization does not have tribal implications, as specified in E.O. 13175 because the EPA retains its authority over Indian Country. Thus, E.O. 13175 does not apply to this final authorization.

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under Section 5-501 of the E.O. has the potential to influence the regulation. This action is not subject to E.O. 13045 because it approves a state program.

This final authorization is not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a “significant regulatory action” as defined under E.O. 12866, as discussed in detail above.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), (Pub. L. 104-113, 12(d)) (15 U.S.C. 272), directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the Federal agency decides not to use available and applicable voluntary consensus standards. This authorization does not involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. The EPA has determined that this final authorization will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. This final authorization does not affect the level of protection provided to human health or the environment because this document authorizes pre-existing State rules which are equivalent to and no less stringent than existing Federal requirements.

The Congressional Review Act, 5 U.S.C. 801-808, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document 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 in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

This final action is issued under the authority of sections 1006, 2002(a), 3006, and 3024 of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6905, 6912(a), 6926, and 6939g.

I. Executive Summary A. Does this action apply to me?

You may be potentially affected by this action if you conduct LBP activities in accordance with 40 CFR 745.227, if you operate a training program required to be accredited under 40 CFR 745.225, if you are a firm or individual who must be certified to conduct LBP activities in accordance with 40 CFR 745.226, or if you conduct rehabilitations in accordance with 24 CFR part 35. You may also be affected by this action if you operate a laboratory that is recognized by EPA's National Lead Laboratory Accreditation Program (NLLAP) in accordance with 40 CFR 745.90, 745.223, 745.227, 745.327. You may also be affected by this action, in accordance with 40 CFR 745.107 and 24 CFR 35.88, as the seller or lessor of target housing, which is most pre-1978 housing. See 40 CFR 745.103 and 24 CFR 35.86. For further information regarding the authorization status of states, territories, and tribes, contact the National Lead Information Center at 1-800-424-LEAD (5323). 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:

• Building construction (NAICS code 236), e.g., single-family housing construction, multi-family housing construction, residential remodelers.

• Specialty trade contractors (NAICS code 238), e.g., plumbing, heating, and air-conditioning contractors, painting and wall covering contractors, electrical contractors, finish carpentry contractors, drywall and insulation contractors, siding contractors, tile and terrazzo contractors, glass and glazing contractors.

• Real estate (NAICS code 531), e.g., lessors of residential buildings and dwellings, residential property managers.

• Child day care services (NAICS code 624410).

• Elementary and secondary schools (NAICS code 611110), e.g., elementary schools with kindergarten classrooms.

• Other technical and trade schools (NAICS code 611519), e.g., training providers.

• Engineering services (NAICS code 541330) and building inspection services (NAICS code 541350), e.g., dust sampling technicians.

• Lead abatement professionals (NAICS code 562910), e.g., firms and supervisors engaged in LBP activities.

• Testing laboratories (NAICS code 541380) that analyze dust wipe samples for lead.

• Federal agencies that own residential property (NAICS code 92511, 92811).

• Property owners, and property owners that receive assistance through federal housing programs (NAICS code 531110, 531311).

EPA is finalizing this rule under sections 401, 402, 403, and 404 of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2601 et seq., as amended by Title X of the Housing and Community Development Act of 1992 (also known as the Residential Lead-Based Paint Hazard Reduction Act of 1992 or “Title X”) (Pub. L. 102-550) (Ref. 1). TSCA section 403 (15 U.S.C. 2683) mandates EPA to identify LBP hazards for purposes of administering Title X and TSCA Title IV. Under TSCA section 401 (15 U.S.C. 2681), LBP hazards are defined as conditions of LBP and lead-contaminated dust and soil that “would result in adverse human health effects,” and lead-contaminated dust is defined as “surface dust in residential dwellings” that contains lead in excess of levels determined “to pose a threat of adverse health effects. . . .” As defined in TSCA section 401 (15 U.S.C. 2681(9)), LBP means paint or other surface coatings that contain lead in excess of 1.0 milligrams per centimeter squared or 0.5 percent by weight or (1) in the case of paint or other surface coatings on target housing, such lower level as may be established by HUD, as defined in 42 U.S.C. 4822(c), or (2) in the case of any other paint or surface coatings, such other level as may be established by EPA.

The amendments to the regulations on LBP activities are promulgated pursuant to TSCA section 402 (15 U.S.C 2682). The amendments to the regulations on the authorization of state and tribal Programs are finalized pursuant to TSCA section 404 (15 U.S.C. 2684).

This final rule is being issued in compliance with the December 27, 2017 decision (“Opinion”) of the Ninth Circuit Court of Appeals, and the subsequent March 26, 2018 order that directed the EPA “to issue a proposed rule within ninety (90) days from the filed date of this order,” and to “promulgate the final rule within one year after the promulgation of the proposed rule” (Refs. 2 and 3).

EPA established DLHS of 40 μg/ft 2 for floors and 250 μg/ft 2 for window sills in a final rule entitled, “Identification of Dangerous Levels of Lead,” also known as the 2001 LBP Hazards Rule (Ref. 4). On July 2, 2018, EPA proposed to amend the DLHS and to make no change to the definition of LBP (Ref. 5). EPA is finalizing its proposal to lower the DLHS set by the LBP Hazards Rule from 40 μg/ft 2 to 10 μg/ft 2 for floors, and from 250 μg/ft 2 to 100 µg/ft 2 for window sills.

EPA and HUD adopted the statutory definition of LBP in a joint final rule entitled, “Requirements for Disclosure of Known Lead-Based Paint and/or Lead-Based Paint Hazards in Housing,” also known as the Disclosure Rule (Ref. 6). EPA is finalizing its proposal to make no change to the current definition of LBP because, as further explained in Unit III.B, insufficient information exists to support such a change at this time.

Reducing childhood lead exposure is an EPA priority, and EPA continues to collaborate with our federal partners to reduce lead exposures and to explore ways to strengthen our relationships and partnerships with states, tribes, and localities. In December 2018, the President's Task Force on Environmental Health Risks and Safety Risks to Children released the Federal Action Plan to Reduce Childhood Lead Exposures and Associated Health Impacts (Lead Action Plan) (Ref. 7 ) which will enhance the federal government's efforts to identify and reduce lead exposure while ensuring children impacted by such exposure are getting the support and care they need. The Lead Action Plan will help federal agencies work strategically and collaboratively to reduce exposure to lead and improve children's health. This final rule is a component of EPA's prioritizing the important issue of childhood lead exposure because dust is a significant exposure route for young children because of their mouthing behavior and proximity to the floor.

In the 2001 LBP Hazards Rule under TSCA section 403, EPA modeled the health implications of various dust-lead loadings and analyzed those values against issues of practicality to determine the appropriate standards, in accordance with the statute. At that time, the Centers for Disease Control and Prevention (CDC) identified a test result of 10 μg/dL of lead in blood or higher in children as a “level of concern”. Based on the available science at the time, EPA explained that health effects at blood lead levels (BLLs) lower than 10 µg/dL were “less well substantiated.” Further, the Agency acknowledged that the standards were “based on the best science available to the Agency,” and if new data were to become available, EPA would “consider changing the standards to reflect these data.” (Ref. 4)

New data have become available since the 2001 LBP Hazards Rule that indicates that health risks exist at lower BLLs than previously recognized. The CDC now considers that no safe BLL in children has been identified (Ref. 8), is no longer using the term “level of concern,” and is instead using the blood lead reference value (BLRV) to identify children who have been exposed to lead and who should undergo case management (especially assessment of sources of lead in their environment and follow up BLL testing) (Ref. 8). The BLRV is based on the 97.5th percentile of the U.S. population distribution of BLLs in children ages 1-5 from the 2007-2008 and 2009-2010 National Health and Nutrition Examination Surveys (Ref. 9).

Current best available science, which, as indicated above, has evolved considerably since 2001, informs EPA's understanding of the relationship between exposures to dust-lead loadings, blood lead levels, and risk of adverse human health effects. This is summarized in the Integrated Science Assessment for Lead, (“Lead ISA”) (Ref. 10), which EPA released in June 2013, and the National Toxicology Program (NTP) Monograph on Health Effects of Low-Level Lead, which was released by the Department of Health and Human Services in June 2012 (Ref. 11). The Lead ISA is a synthesis and evaluation of scientific information on the health and environmental effects of lead, including health effects of BLLs lower than 10 μg/dL. These effects include cognitive function decrements in children (Ref. 10).

The NTP, in 2012, completed an evaluation of existing scientific literature to summarize the scientific evidence regarding potential health effects associated with low-level lead exposure as indicated by BLLs less than 10 μg/dL. The evaluation specifically focused on the life stage (childhood, adulthood) associated with these potential health effects, as well as on epidemiological evidence at BLLs less than 10 μg/dL, because health effects at higher BLLs are well-established. The NTP concluded that there is sufficient evidence for risk of adverse health effects in children and adults at BLLs less than 10 μg/dL, and less than 5 μg/dL as well. In children, there is sufficient evidence that BLLs less than 5 μg/dL are associated with increased diagnoses of attention-related behavioral problems, greater incidence of problem behaviors, and decreased cognitive performance. There is limited evidence that BLLs less than 5 μg/dL are associated with delayed puberty and decreased kidney function in children 12 years of age and older. Additionally, the NTP concluded that there is sufficient evidence that BLLs less than 10 μg/dL are associated with delayed puberty, decreased hearing, and reduced post-natal growth (Ref. 11).

Furthermore, the Children's Health Protection Advisory Committee (CHPAC), a Federal Advisory Committee for EPA, has recommended “that EPA, in coordination with HUD, make strengthening the Lead-Based Paint Hazards Standards for paint, dust, and soil one of its highest priorities in the efforts to reduce children's blood lead levels.” (Refs. 12 and 13).

Based on EPA's evaluation of the best available science, the Agency's careful review of public comments received on the proposal, as well as consideration of the potential for risk reduction, including whether such actions are achievable, EPA is finalizing its proposal to revise the DLHS to 10 µg/ft 2 for floors and 100 µg/ft 2 for window sills. This final action is informed by the achievability of these standards in relation to their application in lead risk reduction programs, whether lower dust-lead loadings can be reliably detected by laboratories, resources for addressing LBP hazards, and consistency across the federal government.

EPA did not propose to change post-abatement clearance levels in 40 CFR part 745, subpart L. In this regard, EPA believes it has reasonably focused this rulemaking on the DLHS and the definition of LBP, which are the two actions EPA agreed to undertake in response to the 2009 citizen petition. They were also the two actions expressly addressed in the Ninth Circuit Court of Appeals Opinion discussed above. Nonetheless, while this final rule does not address clearance levels, EPA appreciates the points raised by commenters about the relationship between the DLHS and clearance levels and EPA has initiated action on this issue under a separate rulemaking, entitled “Review of Post-Abatement Clearance Levels for Dust-lead” (RIN 2070-AK50), as noted in the Spring 2019 Unified Agenda of Regulatory and Deregulatory Actions. The Spring 2019 Unified Agenda also presents EPA's anticipated publication timelines for the rulemaking that will address the clearance levels.

To update the dust-lead clearance levels, EPA must take a number of steps including health, exposure, and economic analyses. An analysis estimating the health implications of possible revisions of applicable dust-lead clearance levels will be conducted, taking into account factors such as the locations where clearance samples are collected for each of the various candidate clearance levels under consideration. An economic analysis of candidate dust-lead clearance levels will be conducted for purposes of evaluating the potential costs and benefits of possible revisions to the clearance levels. EPA's economic analysis will involve establishing a baseline lead hazard profile for facilities affected by the rule based on knowledge of any applicable existing rules and standards and levels of compliance with those rules and standards. Candidate clearance levels will then need to be analyzed with reference to this baseline. For this purpose, economic modeling will be performed to link each candidate clearance level to the associated scenario of health endpoints and their associated aggregated “benefit” valuations for the whole affected population. On the cost side, using assumptions about the scope of interventions, scenarios will be developed to measure aggregate costs of compliance for each candidate clearance level. In addition, the economic analysis is required in order to comply with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531-1538), and the Congressional Review Act (CRA) (5 U.S.C. 801 et seq. ).

EPA has prepared an Economic Analysis (EA), which is available in the docket, of the potential incremental impacts associated with this rulemaking (Ref. 14). The analysis focused specifically on the subset of target housing and child-occupied facilities affected by this rule. The analysis estimates incremental costs and benefits for two categories of events: (1) Where dust-lead testing occurs to comply with HUD's Lead-Safe Housing Rule and (2) where dust-lead testing occurs in response to testing that detects an elevated blood lead level in a child. The following is a brief outline of the estimated incremental impacts of this rulemaking.

• Benefits. This rule would reduce exposure to lead, resulting in benefits from avoided adverse health effects. For the subset of adverse health effects where the results were quantified, the estimated annualized benefits are $268 million to $2.3 billion per year using a 3% discount rate, and $58 million to $509 million using a 7% discount rate. These benefits calculations are highly sensitive to the discount rate used and to the range in the estimated number of lead hazard reduction events triggered by the blood lead levels in children who have had their blood lead levels tested. With respect to the latter, the wide range is driven by uncertainty about specifics of state and local regulations and about the blood lead levels at which action might be taken. There are additional unquantified benefits due to other avoided adverse health effects in children, including attention-related behavioral problems, greater incidence of problem behaviors, decreased cognitive performance, reduced post-natal growth, delayed puberty and decreased kidney function (Ref. 11).

• Costs. This rule is estimated to result in costs of $32 million to $117 million per year using either a 3% or 7% discount rate. The cost calculations are highly sensitive to the range in the estimated number of lead hazard reduction events triggered by children with elevated blood lead levels.

• Small entity impacts. This rule would impact approximately 15,400 small businesses of which 96% have cost impacts less than 1% of revenues, 4% have impacts between 1% and 3%, and less than 1% have impacts greater than 3% of revenues.

• Environmental Justice and Protection of Children. This rule would increase the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population or children.

• Effects on State, local, and Tribal governments. The rule would not have any significant or unique effects on small governments, or federalism or tribal implications.

Lead exposure has the potential to impact individuals of all ages, but it is especially harmful to young children (Refs. 15, 16 and 17). Exposure to lead is associated with increased risk of a number of adverse health effects in children, including decreased cognitive performance, greater incidence of problem behaviors, and increased diagnoses of attention-related behavioral problems (Ref. 11). Furthermore, floor dust in homes and child-care facilities is a significant route of exposure for children given their mouthing behavior and proximity to the floor. Therefore, the environmental health or safety risk addressed by this action may have a disproportionate effect on children (Ref. 18).

Consistent with the Agency's Policy on Evaluating Health Risks to Children, EPA has evaluated the health effects in children of decreased lead exposure. EPA prepared a Technical Support Document (TSD) for this rulemaking which models the risk of adverse health effects associated with dust-lead exposures at 19 potential candidate standards for dust-lead levels (Ref. 18). It is important to note that the model and input parameters have been the subject of multiple Science Advisory Board Reviews, workshops and publications in the peer reviewed literature. The TSD shows that health risks to young children decrease with decreasing dust-lead levels but that no non-zero lead level, including background levels, can be shown to eliminate health risk entirely.

Therefore, EPA considered additional factors beyond health effects when selecting a new standard, including achievability of the standards in lead risk reduction programs, whether lower dust-lead loadings can be reliably detected by laboratories, resources for addressing LBP hazards, and consistency across the federal government. Additional information on EPA's evaluation can be found in Unit III.A.2 of this preamble. On the basis of all these factors (including health effects), EPA is finalizing its proposal to lower the DLHS set by the LBP Hazards Rule to 10 μg/ft 2 for floors and 100 µg/ft 2 for window sills.

Lead exposure has the potential to impact individuals of all ages, but it is especially harmful to young children (Refs. 15, 16 and 17). Ingestion of lead-contaminated soil and dust is a major contributor to BLLs in children, particularly those who reside in homes built prior to 1978 (Refs. 19 and 20). Infants and young children can be more highly exposed to lead through floor dust at home and in child-care facilities because they often put their hands and other objects that can have lead from dust or soil on them into their mouths (Ref. 17). As mentioned elsewhere in this final rule, data evaluated by the NTP demonstrates that there is sufficient evidence to conclude that there are adverse health effects associated with low-level lead exposure; there is sufficient evidence that, in children, BLLs less than 5 µg/dL are associated with increased diagnoses of attention-related behavioral problems, greater incidence of problem behaviors, and decreased cognitive performance (Ref. 11). For further information about health effects and lead exposure, see the Lead ISA (Ref. 10).

In 1992, Congress enacted Title X of the Housing and Community Development Act (also known as the Residential Lead-Based Paint Hazard Reduction Act of 1992 or Title X) (Ref. 1) in an effort to eliminate LBP hazards. Section 1018 of Title X required EPA and HUD to promulgate joint regulations for disclosure of any known LBP or any known LBP hazards in target housing offered for sale or lease (known as the Disclosure Rule) (Ref. 6). (“Target housing” is defined in section 401(17) of TSCA, 15 U.S.C. 2681(17)). On March 6, 1996, the Disclosure Rule was codified at 40 CFR part 745, subpart F, and requires information disclosure activities before a purchaser or lessee is obligated under a contract to purchase or lease target housing. Title X amended TSCA to add a new subchapter entitled “Title IV—Lead Exposure Reduction.” As defined in TSCA section 401 (15 U.S.C. 2681(9)), LBP means paint or other surface coatings that contain lead in excess of 1.0 milligrams per centimeter squared or 0.5 percent by weight or (1) in the case of paint or other surface coatings on target housing, such lower level as may be established by HUD, as defined in 42 U.S.C. 4822(c), or (2) in the case of any other paint or surface coatings, such other level as may be established by EPA.

This definition was codified as part of the Disclosure Rule (Ref. 6) at 40 CFR part 745, subpart F, and as part of the LBP Activities Rule (Ref. 21) at 40 CFR part 745, subpart L. TSCA section 402(a) directs EPA to promulgate regulations covering LBP activities to ensure persons performing these activities are properly trained, that training programs are accredited, and that contractors performing these activities are certified. On August 29, 1996, EPA published final regulations under TSCA section 402(a) that govern LBP inspections, risk assessments, and abatements in target housing and child occupied facilities (COFs) (also referred to as the LBP Activities Rule, codified at 40 CFR part 745, subpart L) (Ref. 21). The definition of “child-occupied facility” is codified at 40 CFR 745.223 for purposes of LBP activities. Regulations promulgated under TSCA section 402(a) contain standards for performing LBP activities, taking into account reliability, effectiveness, and safety.

TSCA section 402(c)(3) directs EPA to promulgate regulations covering renovation or remodeling activities in target housing, public buildings constructed before 1978, and commercial buildings that create LBP hazards. EPA promulgated final regulations for target housing and COFs in the Lead Renovation, Repair and Painting Rule, under TSCA section 402(c)(3) on April 22, 2008 (also referred to as the RRP Rule, codified at 40 CFR part 745, subpart E) (Ref. 22). The rule was amended in 2010 (75 FR 24802) (Ref. 23) to eliminate a provision for contractors to opt-out of prescribed work practices and in 2011 (76 FR 47918) (Ref. 24) to affirm the work practice requirements for cleaning verification of renovated or repaired spaces, among other things. For further information regarding lead and its health effects, and federal actions taken to eliminate LBP hazards in housing, see the background section of the RRP Rule.

TSCA section 403 is a related authority to carry out responsibilities for addressing LBP hazards under the Disclosure and LBP Activities Rules. Section 403 required EPA to promulgate regulations that “identify . . . lead-based paint hazards, lead-contaminated dust, and lead-contaminated soil” for purposes of TSCA Title IV and the Residential Lead-Based Paint Hazard Reduction Act of 1992. LBP hazards, under TSCA section 401, are defined as conditions of LBP and lead-contaminated dust and soil that “would result” in adverse human health effects (15 U.S.C. 2681(10)). TSCA section 401 defines lead-contaminated dust as “surface dust in residential dwellings” that contains lead in excess of levels determined “to pose a threat of adverse health effects” (15 U.S.C. 2681(11)). The standards established in today's final rule under TSCA section 403 are used to calibrate activities carried out under TSCA section 402. As such, the utility of these standards should be considered in the context of the activities to which they are applied.

Pursuant to TSCA section 404, provisions were made for interested states, territories, and tribes to apply for and receive authorization to administer their own LBP Activities and RRP programs. Requirements applicable to state, territorial, and tribal programs are codified in 40 CFR part 745, subpart Q. As stated elsewhere in this document, EPA's regulations are intended to reduce exposures and to identify and mitigate hazardous levels of lead. Authorized programs must be “at least as protective of human health and the environment as the corresponding federal program,” and must provide for “adequate enforcement.” See 40 CFR 745.324(e)(2).

HUD's Lead Safe Housing Rule (LSHR) is codified in 24 CFR 35, subparts B through R. The LSHR implements sections 1012 and 1013 of Title X. Under Title X, HUD has specific authority to control LBP and LBP hazards in federally-assisted target housing (including COFs that are part of an assisted target housing property covered by the LSHR, because they are part of the common area of the property). The LSHR aims in part to ensure that federally-owned or federally-assisted target housing is free of LBP hazards (Ref. 25). Under the LSHR, when a child under age six (6) with an elevated blood lead level (EBLL) is identified, the “designated party” and/or the housing owner shall undertake certain actions.

HUD amended the LSHR in 2017, lowering its standard for identifying children with EBLLs from 20 µg/dL to 5 µg/dL, aligning its standard with CDC's BLRV. The amendments also included revising HUD's “Environmental Investigation Blood Lead Level” (EIBLL) to the EBLL, changing the level of investigation required for a housing unit of a child with an EBLL to an “environmental investigation” and adding a requirement for testing in other covered units when a child is identified in a multiunit property. HUD may revisit and revise the agency's EBLL via the notice and comment process, as provided by the definition of EBLL in the amended rule, if it is appropriate to do so in order to align with future changes to the blood lead level at which CDC's BLRV recommends that an environmental intervention be conducted. (Ref. 25).

The DLHS reviewed in this regulation support the Lead-based Paint Activities and Disclosure programs, and apply to target housing ( i.e., most pre-1978 housing) and COFs (pre-1978 non-residential properties where children under the age of 6 spend a significant amount of time such as daycare centers and kindergartens). Apart from COFs, no other public and commercial buildings are covered by this final rule. For further background on the types of buildings to which lead program rules apply, refer to the proposed and final LBP Hazards Rule (Ref. 4).

Within the scope of Title X, the DLHS support and implement major provisions of the statute. They were incorporated into the requirements and risk assessment work practice standards in the LBP Activities Rule. The relationship between post-abatement clearance and the DLHS is discussed in further detail elsewhere in this final rule. The DLHS provide the basis for risk assessors to determine whether dust-lead hazards are present. A risk assessment may be required where dust-lead testing occurs to comply with the LSHR or where dust-lead testing occurs in response to discovery of a child with a blood lead level exceeding a federal or state threshold.

The objective of a risk assessment is to determine, and then report the existence, nature, severity, and location of LBP hazards in residential dwellings and COFs through an on-site investigation. If LBP hazards are found, the risk assessor will also identify acceptable options for controlling the hazards in each property. These options should allow the property owner to make an informed decision about what actions should be taken to protect the health of current and future residents. Risk assessments can only be performed by certified risk assessors.

The risk assessment entails both a visual assessment and collection of environmental samples. The environmental samples include, among other things, dust samples from floors and window sills which are sent to a laboratory recognized by EPA's National Lead Laboratory Accreditation Program (NLLAP), as discussed in section III.A.2 for analysis for lead. When the lab results are received, the risk assessor compares them to the DLHS. If the dust-lead loadings from the samples are at or above the applicable DLHS, then a dust-lead hazard is present. Any LBP hazards found are listed in a report prepared for the property owner by the risk assessor.

For the Disclosure Rule under section 1018 of Title X (42 U.S.C. 4852d), EPA and HUD jointly developed regulations requiring a seller or lessor of most pre-1978 housing to disclose the presence of any known LBP and LBP hazards to the purchaser or lessee (24 CFR part 35, subpart A; 40 CFR part 745, subpart F). Under these regulations, the seller or lessor also must provide the purchaser or lessee any available records or reports “pertaining to” LBP, LBP hazards and/or any lead hazard evaluation reports available to the seller or lessor (40 CFR 745.107(a)(4) and 24 CFR 35.88(a)(4)). Accordingly, if a seller or lessor has a report showing lead is present in levels that would not constitute a hazard, that report must also be disclosed. Thus, disclosure is required under section 1018 even if dust and soil levels are less than the applicable LBP hazard standard. EPA notes, however, that with respect only to leases of target housing, disclosure is not required in the limited circumstance where the housing has been found to be LBP free by a certified inspector (24 CFR 35.82; 40 CFR 745.101).

The DLHS are intended to identify dust-lead hazards when LBP risk assessments are performed. These standards, as were those established in 2001, are for the purposes of Title X and TSCA Title IV, and therefore they do not apply to housing and COFs built during or after 1978, nor do they apply to pre-1978 housing that does not meet the definition of target housing. See 40 CFR 745.61. These standards cannot be used to identify housing that is free from risks from exposure to lead, as risks are dependent on many factors. For instance, the physical condition of a property that contains LBP may change over time, resulting in an increased risk of exposure. If one chooses to apply the DLHS to situations beyond the scope of Title X, care must be taken to ensure that the action taken in such settings is appropriate to the circumstances presented in that situation, and that the action is adequate to provide any necessary protection for children exposed.

The DLHS do not require the owners of properties covered by this final rule to evaluate their properties for the presence of dust-lead hazards, or to take action if dust-lead hazards are identified. Although these regulations do not compel specific actions to address identified LBP hazards, these standards are incorporated into certain requirements mandated by state, federal, tribal, and local governments. An important concern for EPA is that if the DLHS were set too low, the resources for LBP hazard mitigation would be distributed more broadly, diverting them from situations that present more serious risks. However, EPA does not believe that the levels in this final rule constrict these programs, considering the demonstrated achievability of these levels (Ref. 26). As such, these standards are appropriate for incorporation into the various assessment and LBP hazard control activities to which they apply.

On August 10, 2009, EPA received an administrative petition from several environmental and public health advocacy groups requesting that EPA amend regulations issued under Title IV of TSCA (Ref. 27). The petitioners requested that EPA lower the Agency's DLHS issued pursuant to section 403 of TSCA, and the dust-lead clearance levels issued pursuant to section 402 of TSCA, from 40 μg/ft 2 to 10 μg/ft 2 or less for floors, and from 250 μg/ft 2 to 100 μg/ft 2 or less for window sills; and to lower the definition of LBP pursuant to section 401 of TSCA from 1 mg/cm 2 and 0.5 percent by weight, to 0.06 percent by weight with a corresponding reduction in units of mg/cm 2 .

On October 22, 2009, EPA responded to this petition pursuant to section 553(e) of the Administrative Procedure Act (5 U.S.C. 553(e)) (EPA 2009) (Ref. 28). EPA agreed to commence an appropriate proceeding on the DLHS and the definition of LBP in response to the petition, but stated that it did not commit to a particular schedule or to a particular outcome.

In August 2016, administrative petitioners—joined by additional citizen groups—filed a petition for writ of mandamus in the Ninth Circuit Court of Appeals, seeking a court order finding that EPA had unreasonably delayed in promulgating a rule to update the DLHS and the definition of LBP under TSCA and directing EPA to promulgate a proposed rule within 90 days, and to finalize a rule within six months. On December 27, 2017, a panel majority of the Ninth Circuit granted the writ of mandamus and ordered that EPA (1) issue a proposed rule within ninety days of the date the decision becomes final and (2) issue a final rule one year thereafter (Ref. 2). On March 26, 2018, the Panel granted EPA's Motion for Clarification, specifying that the proposed rule was due ninety days from the date of that order (Ref. 3). On June 22, 2018, the EPA Administrator signed and EPA announced its proposed rule to lower the DLHS to 10 μg/ft 2 for floors and 100 μg/ft 2 for window sills and to make no change to the definition of lead-based paint due to a lack of sufficient information to support such a change. (Ref. 29). The proposed rule was published in the July 2, 2018 edition of the Federal Register .

EPA is issuing this final rule in compliance with the Court's order. Notably, the Court's majority decision suggested that EPA had already determined that amending these regulations was necessary pursuant to TSCA (15 U.S.C. 2687). However, EPA stated in its 2009 petition response that “the current hazard standards may not be sufficiently protective” (Ref. 28) (emphasis added). With regard to the definition of LBP, EPA had not even opined that the definition may not be sufficiently protective. Rather, throughout the litigation, EPA maintained that it would consider whether revision of the definition was appropriate. Also, the sufficiency of the standards was not at issue, as this mandamus petition was about timing, not substance and EPA had not previously conducted the analyses required to reach a conclusion under the statutory standard. It was not until EPA conducted its own analyses—during this rulemaking process—that it was in a position to express the conclusions that are set forward in this final rule.

The proposed rule provided a 45-day public comment period, ending on August 16, 2018. EPA received 67 comments during the public comment period. After the close of the public comment period, EPA received an additional 13,376 comments nearly all of which were submitted as part of a mass mail campaign. Comments were received from private citizens, state governments, potentially affected businesses, academics, trade associations, and environmental and public health advocacy groups. Many commenters, including states, LBP businesses, lead poisoning prevention advocacy groups, individuals, and academics, supported revising the DLHS as proposed. A number of commenters suggested that EPA should promulgate DLHS lower than the proposed levels at 10 μg/ft 2 for floors, and 100 μg/ft 2 for window sills. Several commenters specifically suggested that EPA should revise the DLHS for floors to 5 μg/ft 2 , and/or 40 μg/ft 2 for window sills. One commenter suggested that EPA should revise the DLHS only if the clearance levels are revised as well. Other commenters suggested that EPA either not revise the DLHS or revise them to levels higher than those in today's final rule. Another commenter expressed concern with a DLHS of 10 μg/ft 2 for floors, contending that this would increase the cost of the HUD Lead Hazard Control (LHC) grant program due to an increase in clearance failures. Several commenters sought clarity in terms of how a potential revision to the DLHS would affect LBP-related activities that had already taken place or were in the process of conducting lead hazard control activities. In this preamble, EPA has responded to the major comments relevant to this final rule. In addition, the more comprehensive version of EPA's response to comments related to this final action can be found in the Response to Comments document (Ref. 30).

EPA carefully considered all public comments related to the proposal. EPA is finalizing its proposal to lower the DLHS for floors from 40 μg/ft 2 to 10 μg/ft 2 and its proposal to lower the DLHS for window sills from 250 μg/ft 2 to 100 μg/ft 2 .

This rule finalizes EPA's proposal to make no change to the definition of LBP because insufficient information exists to support such a change at this time.

1. Approach for reviewing the dust-lead hazard standards. As EPA explained in the 2001 LBP Hazards Rule (Ref. 4) (66 FR 1206, 1207), one of the underlying principles of Title X is to move the focus of public and private sector decision makers away from the mere presence of LBP, to the presence of LBP hazards, for which more substantive action should be undertaken to control exposures, especially to young children. Since there are many sources of lead exposure ( e.g. air, water, diet, background levels of lead), and since, under TSCA Title IV, EPA may only account for risks associated with paint, dust and soil, EPA continues to believe that non-zero LBP hazard standards are appropriate.

In the 2001 LBP Hazards Rule, EPA explained the issues and inherent discretion involved when the Administrator identifies LBP hazards ( i.e., those conditions that cause exposure to lead “that would result in adverse human health effects as established by the Administrator under this subchapter” (TSCA section 401(10))). Of particular note, EPA explained that the challenge to the Agency is how to deal with the statutory criterion, “would result in adverse human health effects.” This is especially problematic because the statutory mandated activity that requires EPA to choose a cutoff for when this risk exists does not lend itself to a straightforward empirical analysis that provides bright lines for decision makers. Even if the science and environmental-lead prevalence data were perfect, there would likely be no agreement on the level, or certainty, of risk that is envisioned in the phrase “would result in adverse human health effects.” Thus, it would not be appropriate to base a lead-based paint hazard standard on any specific probability of exceeding any specific blood-lead level. (Ref. 4).

As further explained in that 2001 LBP Hazards Rule, EPA first determined the lowest candidate DLHS by using a 1-5% probability of an individual child developing a BLL of 10 μg/dL. EPA then took a pragmatic approach by looking at numerous factors affected by the candidate standards and prioritized protection from the greatest lead risks so as not to dilute intervention resources.

To develop the DLHS proposal in 2018 (Ref. 5), EPA evaluated the relationship between dust-lead levels and children's health, and considered the achievability of the DLHS given the relationship between standards established under TSCA section 403 and the application of those standards in lead risk reduction programs. Additional factors that the Agency considered include whether lower dust-lead loadings can be reliably detected by laboratories, resources for addressing LBP hazards, and consistency across the federal government.

The TSD presents models to determine the risk of adverse health effects associated with dust-lead exposures at 19 levels (Ref. 18). Section 6.4 of the TSD summarizes the results of the metrics of interest, including the probability that an individual exposed to each potential candidate standard would have a BLL above 5 μg/dL.

Consistent with the establishment of the 2001 DLHS, EPA believes national standards are still an appropriate regulatory approach because they facilitate implementation and decrease uncertainty within the regulated community. Furthermore, national standards are appropriate because legacy lead paint remains in homes in most, if not all, parts of the country. For further information, see the LBP Hazards Rule (Ref. 4).

Based on the language of sections 401, 402, and 403 of TSCA and the purposes of Title X and its legislative history, EPA continues to believe that it is a reasonable exercise of its discretion to set hazard standards based on consideration of the potential for risk reduction, including whether such actions are achievable, and with consideration given to the existing programs aimed at achieving such reductions. This final rule revising the DLHS to 10 μg/ft 2 for floors and 100 μg/ft 2 for window sills is informed by the achievability of these standards in relation to their application in lead risk reduction programs, whether lower dust-lead loadings can be reliably detected by laboratories, resources for addressing LBP hazards, and consistency across the federal government. In this final rule, the Administrator is exercising his Congressionally delegated function to identify LBP hazards, which the statute defines as those conditions that cause exposure to lead “that would result in adverse human health effects as established by the Administrator,” in light of the data and associated uncertainties and the statutory purpose of targeting intervention resources towards protection against the greatest lead risks.

EPA's hazard standards should not be considered in isolation, but must be contemplated along with the Agency's actions to address lead in other media. It is anticipated that this final rule, especially in conjunction with other federal actions, will result in better health outcomes for children. As described in the DLHS proposal in 2018 (Ref. 5), scientific advances made since the promulgation of the 2001 rule clearly demonstrate that exposure to low levels of lead result in adverse health effects. Moreover, since CDC has stated that no safe level of lead in blood has been identified, the reductions in children's BLLs as a result of this rule will help reduce the risk of adverse cognitive and developmental effects in children.

2. Selection of final DLHS. Reducing childhood lead exposure is an EPA priority, and today's final rule is one component of EPA's broad effort to reduce children's exposure to lead. While no safe level of lead in blood has been identified (Ref. 8), the reductions in children's blood-lead levels resulting from this rule are expected to reduce the risk of adverse cognitive and developmental effects in children. TSCA Section 403 required EPA to promulgate regulations that “identify . . . lead-based paint hazards, lead-contaminated dust, and lead-contaminated soil” for purposes of TSCA Title IV and the Residential Lead-Based Paint Hazard Reduction Act of 1992. LBP hazards, under TSCA section 401, are defined as conditions of LBP and lead-contaminated dust and soil that “would result” in adverse human health effects (15 U.S.C. 2681(10)). TSCA section 401 defines lead-contaminated dust as “surface dust in residential dwellings” that contains lead in excess of levels determined “to pose a threat of adverse health effects” (15 U.S.C. 2681(11)).

In selecting the DLHS, EPA gave significant weight to health outcomes identified in the TSD. As the TSD shows, health risks to young children decrease with decreasing dust-lead levels; incremental decreases to BLL and adverse health effects are seen at all points below the original DLHS established in 2001. Although health risks to young children decrease with decreasing dust-lead levels, no non-zero lead level, including background levels, can be shown to eliminate health risk entirely. Therefore, it is appropriate for EPA to consider factors beyond health effects when selecting new standards. Additional factors that the Agency considered include achievability of the standards in lead risk reduction programs, whether lower dust-lead loadings can be reliably detected by laboratories, resources for addressing LBP hazards, and consistency across the federal government.

EPA is concerned that if DLHS were set too low, the limited resources for hazard mitigation would be distributed more broadly, diverting them from vulnerable communities or situations that present more serious risks to those that present lower risks. As described in the Key Federal Programs to Reduce Childhood Lead Exposures and Eliminate Associated Health Impacts document, as well as the Lead Action Plan, national data suggest disparities persist among and within communities due to factors such as race, ethnicity, and income (Ref. 20). In 2013-2016, the 95th percentile BLL of children ages 1 to 5 years in families with incomes below poverty level was 3.0 μg/dL (median is 0.9 μg/dL,) and among those in families at or above the poverty level it was 2.1 μg/dL (median is 0.7 μg/dL), a difference that is statistically significant. In 2011-2016, 2.2% of children in families below the poverty level had a BLL at or above 5 μg/dL, compared to 0.6% of children in families at or above the poverty level, a difference that is statistically significant. The 97.5th percentile in 2013-2016 is 3.3 μg/dL, a slight decrease from the value for 2011-2014 (Ref. 31).

As noted earlier in the preamble, EPA continues to believe that it is a reasonable exercise of its discretion to set hazard standards based on consideration of the potential for risk reduction, including whether such actions are achievable, and with consideration given to the existing programs aimed at achieving such reductions. Additional factors that the Agency considered include whether lower dust-lead loadings can be reliably detected by laboratories, resources for addressing LBP hazards, and consistency across the federal government. As discussed in Units I.D. and II.A.2. of the proposal, EPA worked with HUD's Office of Lead Hazard Control and Healthy Homes (OLHCHH) to survey the office's LHC grantees to assess the achievability of candidate DLHS (Ref. 26). Survey results showed that reductions in dust-lead levels to 10 μg/ft 2 on floors and to 100 μg/ft 2 on window sills were shown to be technically achievable using existing cleaning practices, even though, at the time, the reductions had to be just down to 40 and 250 μg/ft 2 , respectively. As explained in the survey's final report, testing results were collected from 1,552 housing units treated by 98 grantees, and included 7,211 floor and 4,893 window sill dust samples. The data were analyzed to determine the percentage of samples with dust-lead loadings at or below various levels. For floors, 72% of samples showed dust-lead levels at or below 5 μg/ft 2 , 85% were at or below 10 μg/ft 2 , 90% were at or below 15 μg/ft 2 , and 94% were at or below 20 μg/ft 2 . For window sills, 87% of samples showed dust-lead levels at or below 40 μg/ft 2 , 91% were at or below 60 μg/ft 2 , 96% were at or below 80 μg/ft 2 , and 97% were at or below 100 μg/ft 2 (Ref. 26). This final rule revising the DLHS to 10 μg/ft 2 for floors and 100 μg/ft 2 for window sills is informed by the achievability of these standards in relation to their application in lead risk reduction programs. These standards will complement other federal actions aimed at reducing lead exposures for all children. EPA also believes that the standards will continue to inform where intervention resources should be directed for children with higher exposures. These are the lowest levels that EPA believes are reliably achievable using existing lead-hazard control practices and that are aligned with the clearance levels required under certain HUD grant programs. As such, these levels provide greater uniformity across the federal government than other options suggested by commenters and provide consistency for the regulated and public health communities.

EPA received a number of comments during the public comment period suggesting that EPA promulgate DLHS lower than the proposed levels at 10 μg/ft 2 for floors and 100 μg/ft 2 for window sills. Several commenters specifically suggested DLHS for floors at 5 μg/ft 2 , and/or 40 μg/ft 2 for window sills. In the TSD, EPA models the risk of adverse health effects associated with dust-lead exposures at differing potential candidate standards (19 options) in children living in pre-1940 and pre-1978 housing, as well as associated potential health effects in this subpopulation. As explained in the EPA's proposal and section 3.2.3 of the TSD, floors have a larger impact on children's exposure to dust lead than sills because they take up more square footage of the housing unit and children spend more of their time in contact with the floor rather than the sills. Consequently, candidate standards that reduce floor dust-lead loadings more than sill dust-lead loadings have the biggest impact on exposure because of the greater likelihood and magnitude of children's exposure to floor dust-lead. For example, a candidate standard of 40 μg/ft 2 for floors and 100 μg/ft 2 for window sills is likely to be less effective than a standard of 10 or 20 μg/ft 2 for floors and 250 μg/ft 2 for window sills.

In addition, at least one study suggests that dust-lead may reaccumulate after LHC activities, especially when cleaning and interim controls are used, and therefore DLHS levels lower than 100 μg/ft 2 for window sills ( e.g., 40 μg/ft 2 ) may not be maintained over time, and would therefore render a lower DLHS to be a less effective indication of what property owners and residents can do to achieve a reduction in lead exposure (Ref. 32).The study shows that after cleaning the geometric mean dust-lead level was 45 μg/ft 2 and the median dust-lead level was 57 μg/ft 2 , both of which are slightly above commenters' suggested window sill dust-lead level of 40 μg/ft 2 . But from six months through six years post-intervention, the window sill dust-lead levels were well above this level. At six months the geometric mean dust level was 105 μg/ft 2 and the median was 104 μg/ft 2 , which is much closer to a DLHS for window sills at 100 μg/ft 2 , rather than 40 μg/ft 2 . These results call into question whether window sill levels at or below 40 μg/ft 2 can be maintained over time with routine cleaning practices, particularly interim controls. These inconsistencies, along with the other concerns discussed in this preamble, are why EPA has declined to select a lower DLHS for window sills as suggested by the commenters.

Dust sampling is a critical element of the lead-based paint program because it is how members of the public learn whether dust-lead hazards are present in their homes and properties. Dust sampling is conducted by wiping a representative surface of known area with a wet wipe and sending the wipe to a laboratory for analysis. The laboratory that conducts the analysis must be recognized by EPA's NLLAP. See TSCA section 405(b), 15 U.S.C. 2685(b); 40 CFR 745.90(c)(1); 40 CFR 745.223; 40 CFR 745.227(f); 40 CFR 745.327(c). EPA's NLLAP defines the minimum requirements and abilities that a laboratory must meet to attain EPA recognition as an accredited lead testing laboratory in the Laboratory Quality System Requirements (LQSR) (Ref. 33).

Several commenters expressed concern about laboratories' ability to meet lower limits resulting from a revision to the DLHS, and one commenter went further to recommend that EPA thoroughly examine laboratories' ability to accurately measure at lower levels. Several commenters specifically requested DLHS for floors at 5 μg/ft 2 and/or 40 μg/ft 2 for window sills. EPA agrees that a thorough understanding of laboratories' ability to meet lower LQSR limits as a result of revised DLHS is important, especially in consideration of commenters' suggestions for lower DLHS than were proposed and finalized in this rule. As indicated in the proposed rule (Ref. 5), EPA continues to believe in the importance of being able to assess whether the dust-lead loadings reflected in the revised DLHS can be reliably measured by laboratories. If NLLAP-recognized laboratories were unable to demonstrate meeting the LQSR requirements, then stakeholders would be unable to use those laboratories in conducting activities required by EPA's LBP program. Those laboratories would either take actions to meet the lower LQSR limits or discontinue analysis of lead dust wipe samples from their portfolio of services. If too many laboratories were to discontinue lead dust wipe analysis from their portfolios, it could be problematic for the regulated community that conducts the sampling (as well as residents, property owners, and other stakeholders), in the form of increased cost of analysis per sample, increased waiting periods that make testing for dust-lead hazards untenable, or a combination of both. As the number of NLLAP-recognized labs decrease, the potential for risk reduction is diminished.

In order to obtain a better understanding of laboratories' capabilities and capacity for dust wipe analysis, EPA conducted teleconferences with two accrediting organizations (Refs. 34; 35; and 36), five federally funded laboratories (Refs. 37; 38; 39; 40; and 41), and nine state or privately funded laboratories (Refs. 42; 43; 44; 45; 46; 47; 48; 49; and 50). The clientele of the two accrediting organizations represent 99% of the laboratories recognized by NLLAP for dust-lead testing. Fourteen teleconferences with NLLAP-recognized laboratories represent approximately 13% of the NLLAP-recognized laboratories, and one of the privately funded laboratory contacts with whom EPA spoke is a parent company of sixteen (or approximately 15%) NLLAP-recognized laboratories (Ref. 45). EPA believes the accrediting organizations and laboratories with which teleconferences were held are representative of NLLAP-recognized laboratories. These teleconferences further informed the discussion below, which examines laboratory requirements and laboratories' ability to meet those requirements, various approaches by which laboratories can meet the lower LQSR limits, and how the viability of those approaches changes according to the DLHS in this final rule and why revised DLHS below those levels would impair the potential for risk reduction.

EPA established NLLAP to recognize laboratories that demonstrate the ability to accurately analyze paint chips, dust, or soil samples for lead. NLLAP-recognized laboratories must follow EPA's LQSR which identifies the limits laboratories must achieve (Ref. 33). All NLLAP-recognized laboratories are required to demonstrate they can achieve a quantitation limit and a method detection limit (Ref. 33), and accrediting organizations must use the LQSR when evaluating laboratories performing environmental testing activities under NLLAP. A quantitation limit, also known as a reporting limit (Ref. 5) or minimum reporting limit (Ref. 51), is the minimum level or quantity of lead “that can be quantified to a specified accuracy.” (Ref. 33) A method detection limit is “[t]he minimum concentration of [lead] that . . . has a 99% probability of being identified, qualitatively or quantitatively measured, and reported to be greater than zero.” (Ref. 33) NLLAP-recognized laboratories that analyze dust wipe samples for lead must show they can achieve a quantitation limit “equal to or less than . . . 50% of the lowest action level [ i.e., regulatory limit] for dust wipe samples.” (Ref. 33) The quantitation limit must also be “at least 2 times but no greater than 10 times the method detection limit.” (Ref. 33) When this final rule becomes effective, the “lowest action level for dust wipe samples” will be the DLHS for floors at 10 µg/ft 2 . Therefore, as a result of this rulemaking, laboratories that wish to maintain or obtain NLLAP recognition must be able to demonstrate a quantitation limit equal to or less than 5 µg/ft 2 , and a method detection limit no less than 0.5 µg/ft 2 and no greater than 2.5 µg/ft 2 .

In the proposed rule, EPA requested comment on the achievability of lower standards, including the ability of laboratories to accurately test to lower levels, in part to gain information on how the rule would affect the status of NLLAP-recognized laboratories. One commenter claimed that EPA found that the proposed DLHS are “detectable among the labs used by” the HUD grantees that are already subject to the lower levels. Another commenter asserted that “100% of the labs that conduct lead tests are already equipped to test lead dust with lower standards than [are] currently being used.” EPA agrees that the final DLHS are achievable by HUD LHC grantees but disagrees with the commenter's assertion that “100% of the labs that conduct lead tests are already equipped to test” for dust-lead at lower dust-lead levels than the previous DLHS. As mentioned in the proposed rule, HUD's policy guidance revision has already required its OLHCHH's LHC grantees to use clearance levels of 10 µg/ft 2 for floors and 100 µg/ft 2 for window sills when conducting LHC activities (Ref. 51). Therefore, 100% of the laboratories used by these grantees were using laboratories with a reporting limit equal to or less than 5 μg/ft 2 . Although this means that “there is no technological barrier to reducing the current standard to the” revised DLHS, and the laboratories used by the grantees are able to do so (Ref. 5), it does not mean that all of the NLLAP-recognized laboratories are already able to meet the lower LQSR limits associated with the revised DLHS. Based on EPA's additional research, the agency believes a little less than half of NLLAP-recognized laboratories are already able to meet the lower LQSR limits associated with the revised DLHS. In addition, the other laboratories that wish to maintain or obtain NLLAP recognition will need to take actions to meet the lower LQSR limits as a result of this rulemaking (Ref. 14). EPA also notes that if the DLHS were revised to levels lower than this final rule, the Agency is not confident based on available data that the laboratories used by the HUD grantees could meet the lower LQSR limits.

There are a number of approaches by which laboratories can meet the lower LQSR limits. These approaches, in order of increasing burden for doing so (including financial, time, and personnel resources), are: Instruct their customers to increase the wipe area; modify sample preparation and revise accreditation; or acquire new instrumentation, modify sample preparation, and revise accreditation. Through EPA's research on laboratories' capability and capacity, EPA believes that most if not all of the laboratories that will need to take actions to meet the lower LQSR limits will be able to do so by instructing customers to increase the wipe area, modifying the sample preparation and revising accreditation, or executing some combination of those approaches with a revised DLHS at 10 µg/ft 2 for floors and 100 µg/ft 2 for window sills (Ref. 14).

However, if EPA were to revise the DLHS to levels lower than the levels in this final rule, the viability of those less burdensome approaches diminishes sharply. With DLHS levels suggested by commenters at 5 µg/ft 2 for floors, EPA estimates that a little over 40% of the NLLAP-recognized laboratories would either have to acquire new instrumentation, modify sample preparation, and revise accreditation, or discontinue dust wipe analysis for lead from their portfolio (Ref. 14). As further explained in the following paragraphs, EPA is concerned that laboratories that are faced with the decision of whether to meet lower LQSR limits may end up discontinuing dust wipe analysis for lead from their business models. This diminished capacity for laboratories that perform dust wipe analysis could in turn be problematic for the regulated community that conducts the sampling, either in the form of increased cost of analysis per sample, increased waiting periods that make testing for dust-lead hazards untenable, or a combination of both. As the number of NLLAP-recognized labs decrease, this could inadvertently put more children at risk of prolonged lead exposure.

Increasing the wipe area is a less burdensome, acceptable way that many laboratories can meet the lower LQSR limits associated with revisions to the DLHS in this final rule of 10 µg/ft 2 for floors and 100 µg/ft 2 for window sills. Dust wipes are typically used to sample a floor area of 1 ft 2 (Ref. 52). Increasing the wipe area will increase the amount of lead collected, making it more likely that the dust wipe sample will be measurable above the new quantitation limit without incurring additional expense. Some laboratories have indicated that they are able to test such samples by instructing their customers to wipe an area of 2 ft 2 (Ref. 14). In addition, several commenters relayed that samples have been taken using a 2 ft 2 wipe area, and some laboratories have indicated that this is how they are meeting the HUD grant policy requirements. The commenters declare that a laboratory using less sensitive instrumentation will have difficulty meeting the lower requirements associated with the revised DLHS without the expansion of the wipe area. Commenters also note there have not been any problems reported by HUD grantees concerning the increased wipe area. Additionally, using a 2 ft 2 wipe area satisfies EPA's LQSR limits. A laboratory that modifies its sample preparation or instrumentation for dust wipe analysis would have to incur the additional burden of modifying or acquiring a new accreditation (Ref. 36), but an increase in the wipe area does not necessarily alter the sample preparation or instrumentation. Therefore, a laboratory that only requires increased wipe areas may not incur that additional burden. EPA agrees with the commenters that expanding the wipe area to 2 ft 2 can be an acceptable way for laboratories to meet the lower requirements associated with revisions to the DLHS in this final rule.

There are several potential issues, however, with expanding the sampling area to 4 ft 2 (Refs. 35 and 44). First, although one laboratory EPA contacted felt that it would be able to use its currently less sensitive instrumentation by instructing its customers to wipe a 4 ft 2 area (Ref. 45), there was no consensus among the laboratories with whom EPA spoke as to whether it is practical to increase the sampling area to 4 ft 2 in order to demonstrate compliance with the LQSR if the DLHS for floors was decreased to 5 μg/ft 2 (Ref. 14). The larger wipe area could interfere with the effectiveness of the sampling method and cause problems with preparation procedures and laboratory instrumentation (Ref. 14). Therefore, EPA does not believe that increasing the wipe area to 4 ft 2 would be a good approach for laboratories faced with the decision of how to meet the lower LQSR limits with less sensitive instrumentation, for a DLHS level lower than 10 µg/ft 2 for floors.

In addition, in some cases, window sills do not have enough surface area to allow for a sampling area that is large enough to collect a sufficient amount of dust-lead to meet all laboratories' quantitation limits with their existing analytical equipment.

Thus, EPA believes that setting the DLHS at 10 µg/ft 2 for floors and 100 µg/ft 2 for window sills is the best way to maintain the current number of NLLAP-recognized laboratories by ensuring the requirements can be implemented, which in turn helps to maximize the potential of this rule for continued risk reduction.

With DLHS at 10 µg/ft 2 for floors, laboratories that are not able to meet the LQSR limits by simply increasing the wipe area, due to their own variable processes and equipment, should be able to do so by modifying the sample preparation and revising their accreditation to meet new testing limits. There are several potential changes laboratories can make to modify their sample preparation that might allow a laboratory to lower its quantitation limit and method detection limit while using the same analytical instrumentation. To analyze dust wipe samples, laboratories take the dust wipe, heat it in a solution, and then analyze that solution for lead. Hence, increasing the concentration of lead in the digestate will facilitate achieving measurements above the quantitation limit without acquiring new instrumentation. This can be accomplished by reducing the final volume by using a higher acid concentration or evaporating the digestate and thereby the final concentration of lead for analysis. Additionally, laboratories may be able to use different equipment for heating the solution that would allow use of a lower volume of the digestate. Laboratories that institute these modifications would not need to start from scratch with an entirely new accreditation, but would have to modify their existing accreditation to maintain NLLAP recognition. However, these modifications to sample preparation have their limits. Several of the laboratories that EPA talked to indicated that these modifications would become less viable if the DLHS were to decrease below the levels in this final rule.

If the DLHS were set to levels lower than 10 µg/ft 2 for floors and 100 µg/ft 2 for window sills, EPA believes that an increasing number of the laboratories that need to take actions to meet the lower LQSR limits will have to use a different type of analytical instrument that is more sensitive, especially if the DLHS were set to 5 µg/ft 2 for floors and 40 µg/ft 2 for window sills, as some commenters requested. The majority of the laboratories that would have to use a different type of analytical instrument would have to purchase new instrumentation and revise their accreditation. This accreditation revision would likely have to include an on-site inspection from an accreditation body (Ref. 36). One commenter mentioned that if new instrumentation were required, such an upgrade could cost between $80,000-$250,000, “not including many consumable materials and retrofitting the laboratory for the equipment.” EPA agrees with the commenter that the expense of new instrumentation can be significant, and notes that from its own research, the time required to purchase the new equipment, have it installed, run validation studies, optimize the methods and train personnel on its use, and then to revise the accreditation with an on-site inspection can be quite disruptive to a laboratory's operations. This is especially true for smaller laboratories with more limited resources. As more laboratories conclude that they must acquire new instrumentation and revise their accreditation with an on-site inspection, the likelihood of more laboratories discontinuing dust wipe analysis from their portfolios increases.

After the promulgation of this final rule lowering the DLHS, laboratories that need to take actions to meet the lower LQSR limits will have to take time to review their situation, determine the changes they need to make, decide whether they want to continue in the NLLAP program, and select among the approaches previously described. For DLHS lower than 10 µg/ft 2 for floors, the number of laboratories that would need to acquire new instrumentation, modify sample preparation, and revise their accreditation with an on-site inspection increases, which would take the most time and resources to accomplish. Laboratories that are faced with the decision to either take these actions or discontinue dust wipe analysis for lead from their portfolios, are much more likely to discontinue the analysis from their portfolios if they cannot simply increase the wipe area or modify their sample preparation. Based on EPA's research on laboratories' capabilities and capacity, EPA believes more laboratories may discontinue dust wipe analysis for lead from their portfolios if the DLHS were set lower than in this final rule. For these reasons, in addition to those discussed earlier in section III.A.(2), EPA believes it is within its discretion to set the DLHS at 10 µg/ft 2 for floors and 100 µg/ft 2 for window sills in consideration of the potential for risk reduction, including whether such actions are achievable in relation to their application in lead risk reduction programs.

3. Effect of this change on EPA and HUD Programs. a. EPA Risk Assessments. As stated earlier in this preamble, EPA's risk assessment work practice standards provide the basis for risk assessors to determine whether LBP hazards are present in target housing and COFs. As part of a risk assessment, dust samples are taken from floors and window sills to determine if dust-lead levels exceed the DLHS. Results of the sampling, among other things, are documented in a risk assessment report which is required under the LBP Activities Rule (Ref. 21). In addition to the sampling results, the report must describe the location and severity of any dust-lead hazards found and describe interim controls or abatement measures needed to address the hazards. Under the LBP Activities Rule, risk assessors will compare dust sampling results for floors and window sills to the new, lower DLHS from this rule. Sampling results above the new hazard standard will indicate that a dust-lead hazard is present on the surfaces tested. EPA expects that this will result in more hazards being identified in a portion of target housing and COFs that undergo risk assessments. The final rule does not change any other risk assessment requirements.

b. EPA-HUD Disclosure Rule. Under the Disclosure Rule (Ref. 6), prospective sellers and lessors of target housing must provide purchasers and renters with a federally approved lead hazard information pamphlet and disclose known LBP and/or LBP hazards. The information disclosure activities are required before a purchaser or renter is obligated under a contract to purchase or lease target housing. Records or reports pertaining to LBP or LBP hazards must be disclosed, including results from dust sampling regardless of whether the level of dust-lead is below the hazard standard. For this reason, the lower dust-lead hazard standard will not result in more information being disclosed because property owners would already be disclosing results that show dust-lead below the original DLHS of 40 µg/ft 2 on floors or below 250 µg/ft 2 on window sills. However, a lower dust-lead hazard standard may prompt a different response on the lead disclosure form, i.e., that a lead-based paint hazard is present rather than not, which will occur when a dust-lead level is below the original standard but at or above the standard in this final rule.

c. Renovation, Repair and Painting (RRP) Rule. To avoid confusion about the applicability of this final rule, EPA notes that revising the DLHS will not trigger new requirements under the existing RRP Rule. The existing RRP work practices are required where LBP is present (or assumed to be present), and are not predicated on dust-lead loadings exceeding the hazard standards. The existing RRP regulations do not require dust sampling prior to or at the conclusion of a renovation and, therefore, will not be directly affected by this change to the DLHS.

d. HUD Requirements for Federally-assisted or Federally-owned housing. Under sections 1012 and 1013 of Title X, HUD established LBP hazard notification, evaluation, and reduction requirements for certain pre-1978 HUD-assisted and federally-owned target housing, known as the Lead Safe Housing Rule (LSHR). See 24 CFR part 35, subparts B through R. The programs covered by these requirements range from supportive housing services to foreclosed HUD-insured single-family insured housing to public housing. For programs where hazard evaluation is required, the DLHS provide criteria to risk assessors for identifying LBP hazards in residences covered by these programs. For programs that require abatement of LBP hazards, the DLHS are used to identify residences that contain dust-lead hazards as part of determining where abatement will be necessary.

e. HUD Guidelines. The HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing were developed in 1995 under section 1017 of Title X. They provide detailed, comprehensive, technical information on how to identify LBP hazards in residential housing and COFs, and how to control such hazards safely and efficiently. The Guidelines were revised in 2012 to incorporate new information, technological advances, and new federal regulations, including EPA's LBP hazard standards. Based on EPA's changes in this final rule, HUD plans to revise Chapter 5 of the Guidelines on risk assessment and reevaluation and Chapter 15 on clearance based on those changes.

f. LSHR Clearance Requirements. While this final rule does not change the clearance levels under EPA's regulations, it will have the effect of changing the clearance levels that apply to hazard reduction activities under HUD's LSHR. The LSHR requires certain hazard reduction activities to be performed in certain federally-owned and assisted target housing including abatements, interim controls, paint stabilization, and ongoing LBP maintenance. Hazard reduction activities are required in this housing when LBP hazards are identified or when maintenance or rehabilitation activities disturb paint known or presumed to be LBP. The LSHR's clearance regulations, 24 CFR 35.1340, specify requirements for clearance of these projects (when they disturb more than de minimis amounts of known or presumed lead-based painted surfaces, as defined in 24 CFR 35.1350(d)), including a visual assessment, dust sampling, submission of samples for analysis for lead in dust, interpretation of sampling results, and preparation of a report. Clearance testing of abatements and non-abatements is required by 24 CFR 35.1340(a) and (b), respectively.

The LSHR's clearance regulations cross-reference regulatory provisions to establish clearance levels for abatements that are different than those for non-abatement activities. The LSHR clearance regulations for both abatements and non-abatement activities, at 24 CFR 35.1340(d), cross-reference the standards, at 24 CFR 35.1320(b), to be used by risk assessors for conducting clearance; in turn, the standards at 24 CFR 35.1320(b) cross-reference EPA's DLHS at 40 CFR 745.227(h). In addition, the LSHR clearance regulations for abatements, at 24 CFR 35.1340(a), which set forth that clearance must be performed in accordance with EPA regulations, cross-reference EPA's clearance standards for abatements at 40 CFR 745.227(e). Because the EPA's DLHS and dust-lead clearance standards for abatements were the same, cross-referencing different EPA regulatory provisions, at 40 CFR 745.227(e) and (h), had no effect on hazard reduction activities under the LSHR.

The LSHR clearance regulations for non-abatement activities, at 24 CFR 35.1340(b) do not cross-reference EPA's clearance standards at 40 CFR 745.227(e). Only EPA's DLHS at 40 CFR 745.227(h) are referenced at 24 CFR 1340(d) as the clearance standards for non-abatement activities, because EPA does not have its own clearance standards for them. Accordingly, as explained in the proposed rule, non-abatement activities under the LSHR must be cleared using the EPA's DLHS when this final rule becomes effective.

EPA's LBP activities regulations on work practice requirements, at 40 CFR 745.65(d), specify that clearance requirements applicable to LBP hazard evaluation and hazard reduction activities are found in both the LSHR, at 24 CFR part 35, subpart R, and EPA regulations at 40 CFR part 745, subpart L. For abatements covered by both agencies' regulations, the LSHR regulations, at 24 CFR 35.145 and 35.1340(a), require clearance levels following abatement of LBP or LBP hazards to be at least as protective as EPA's clearance levels for abatements at 40 CFR 745.227(e).

This final rule revises the DLHS from 40 µg/ft 2 and 250 µg/ft 2 to 10 µg/ft 2 and 100 µg/ft 2 on floors and window sills, respectively. As a result of this final action, EPA's DLHS will be lower than EPA's clearance standards for abatements, and according to HUD, abatements under HUD's LSHR will be cleared using the EPA's DLHS.

g. Effects of a Revision on Previous LBP-related Activities. Since the DLHS do not compel specific actions, revisions to the DLHS would not in and of themselves retroactively compel actions. Inspection reports and risk assessments describe conditions at a specific time. A report that indicates no presence of LBP and/or a LBP hazard should not imply the absence of those conditions in perpetuity. In addition, this rulemaking by itself does not impose retroactive requirements to regulated entities that have previously complied with the disclosure rule. A seller or lessor must properly disclose any available records or reports pertaining to LBP, LBP hazards and/or any lead hazard evaluative reports “before the purchaser or lessee is obligated under any contract to purchase or lease target housing that is not otherwise an exempt transaction pursuant to § 745.101” (40 CFR 745.107). The seller or lessor is not required to disclose reports or records that may be created in the future, after the close of that transaction, in perpetuity. Additionally, any LBP-free certification that was issued by a certified inspector, based on the previous DLHS, and was issued before the effective date of this rulemaking, is still valid going forward and may continue to be used for exemption to the disclosure rule. However, the DLHS are incorporated into requirements mandated by state, federal, tribal, and other programs that may require actions based on the revised DLHS. Those other authorities may want to consider guidance or other communications with their regulated communities, so those entities understand how to comply with the various programs that reference the DLHS. A more comprehensive version of EPA's response on these issues can be found in section 2.c. of the response to comments document. (Ref. 30).

As noted in the preamble, EPA has neither opined nor concluded that the definition of LBP may not be sufficiently protective. In response to the administrative petition (Ref. 28) and throughout the litigation, EPA maintained that it necessarily would first consider whether revision to the definition of LBP was appropriate. In the proposed rule, EPA requested comment on making no change to the definition of LBP.

The definition of LBP is incorporated throughout EPA's LBP regulations, and application of this definition is central to how EPA's LBP program functions. EPA believes that accounting for feasibility and health effects would be appropriate when considering a revision. Given the current, significant data gaps presented below and the new approaches that would need to be devised to address them, EPA continues to lack sufficient information to conclude that the current definition requires revision or to support any specific proposed change to the definition of LBP. Some commenters in support of changing the definition of LBP discussed paint itself as a hazard, advocating for analysis separate and distinct from the causal relationship between LBP and dust-lead hazards. One commenter declared that, given examples of an independent paint-lead hazard, the current definition is “clearly inadequate.” EPA reviewed these comments and has expanded the discussion of data gaps elsewhere in the preamble to include direct ingestion of paint. EPA did not receive any data during the public comment period to further inform whether a revision to the current definition of LBP is warranted or even possible at this time.

Evaluating whether revising the definition of LBP is appropriate requires analyzing levels of lead in paint that are lower than what was examined previously by EPA and other federal agencies. In the proposal, EPA requested any new available data or analyses of the relationship among levels of lead in paint, dust and risk of adverse health effects. Although some commenters supported updating the definition of LBP and/or said that the current level is inadequate, EPA did not receive data or analyses that would further inform whether a revision to the definition is warranted at this time. More information is needed to establish a statistically valid causal relationship between concentrations of lead in paint (lower than the current definition) and dust-lead loadings which cause lead exposure. Additionally, information is still needed to quantify the direct ingestion of paint through consumption of paint chips or through teething on painted surfaces. Finally, it is important to understand how capabilities among various LBP testing technology would be affected under a possible revision to the definition.

1. Relationship among lead in paint, environmental conditions, and exposure. EPA would need to further explore the availability and application of statistical modeling approaches that establish robust linkages between the concentration of lead in paint below the current definition and dust-lead on floors before EPA could develop a technically supportable proposal to revise the definition of LBP based on this route of exposure. To that end, EPA is coordinating with HUD to evaluate available data and approaches. Efforts suggest that most available empirical data and modeling approaches are only applicable at or above the current LBP definition (0.5% and 1 mg/cm 2 ). The highest dust-lead loadings from LBP are expected to be a result of paint removal activities during renovation. During renovation, LBP may be disturbed and abraded, leading to elevated dust-lead loading available for incidental ingestion. EPA developed a model to estimate lead-based dust loadings from renovation activities in various renovation scenarios in 2014 and a similar model was developed in 2011 by Cox et al. However, the underlying data that supported EPA's 2014 model for LBP was EPA's 2007 dust study, which included concentrations of lead in paint ranging from 0.8% to 13% by weight. The data that supported Cox et al. 2011 ranged from 0.7 to 13.2 mg/cm 2 (converted to approximately 0.6% to 31% by weight) of lead in paint (Refs. 53; 54; and 55). Given that the range of concentrations that support these models are well above the petitioners' requested concentration of lead in paint, there would be significant uncertainty associated with using these models to make predictions regarding lead in paint at concentrations an order of magnitude below the current definition.

In an attempt to address this uncertainty and build a modeling approach, EPA conducted a literature search for studies that co-report lead concentrations in paint and dust in order to identify available data (Ref. 53). Among other things, EPA looked to the literature to establish statistically valid associations between low concentrations of LBP and lead in dust, but was unable to find sufficient information to estimate concentrations of lead in household dust from paint concentrations below 0.8% by weight. Thus, EPA still needs to consider generation of new data, since, as discussed elsewhere in this document, EPA believes there is significant uncertainty associated with estimating dust-lead loadings for levels of lead in paint up to an order of magnitude lower than levels in the current definition using the existing models (Ref. 53), Cox et al. (Ref. 54). Such data is needed for EPA to develop an approach to estimate dust-lead from lower levels of lead in paint so that EPA could estimate incremental blood lead changes and associated health effects changes as described in the existing dust-lead approach. This may involve conducting laboratory or field studies to characterize the relationship between LBP and dust-lead at lower levels of lead in paint (<0.5%) (Ref. 53).

2. Quantify exposure from direct paint ingestion. EPA would need to understand and develop an approach for estimating the amount of direct paint consumption and subsequent exposure by children before EPA could develop a technically supportable proposal to revise the definition of LBP based on ingestion of paint chips and direct teething of painted surfaces. Past studies have documented pica behavior as a risk factor for exposure to lead from LBP, however these studies have not provided a quantitative estimate of paint ingestion. Epidemiological studies generally rely on caregiver observations to classify whether a child has ever been known to consume paint chips. As described further in the Definition of Lead-Based Paint Considerations (Ref. 53), past studies estimate that a fraction of young children are known to have directly ingested paint, and published case studies of individual children provide radiographic evidence of paint chip ingestion. However, neither provide quantitative estimates of the amount of LBP ingested over time by children, information which is needed to quantify exposure.

3. Feasibility. In the proposal, EPA requested any new available data on the technical feasibility of a revised definition of LBP. EPA lacks sufficient information to support a change to the definition of LBP with respect to feasibility. Significant data gaps prevent the Agency from evaluating and subsequently determining that a change to the existing definition is warranted. EPA did not receive any comments with substantive information about whether portable field technologies utilized in EPA's LBP Activities and RRP programs, as well as HUD's LSHR, perform reliably at significantly lower concentrations of lead in paint.

Portable X-ray fluorescence (XRF) LBP analyzers are the primary analytical method for inspections and risk assessments in housing because they can be used to quickly, non-destructively and inexpensively determine if LBP is present on many surfaces. These measurements do not require destructive sampling or paint removal. Renovation firms may also hire inspectors or risk assessors to conduct XRF testing to identify the presence of LBP. When using XRF technology, the instrument exposes the substrate being tested to electromagnetic radiation in the form of X-rays or gamma radiation. In response to radiation, the lead present in the substrate emits energy at a fixed and characteristic level. The emission is called “X-Ray Fluorescence,” or XRF (Ref. 52).

XRF Performance Characteristic Sheets (PCS) have been developed by HUD and/or EPA for most commercially available XRF analyzers (XRFs). In order to comport with the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, an XRF instrument that is used for testing paint in target housing or pre-1978 COFs must have a HUD-issued XRF PCS. XRFs must be used in accordance with the manufacturer's instructions and the PCS. The PCS contains information about XRF readings taken on specific substrates, calibration check tolerances, interpretation of XRF readings, and other aspects of the model's performance. For every XRF analyzer evaluated by EPA and/or HUD, the PCS defines acceptable operating specifications and procedures. The ranges where XRF results are positive, negative or inconclusive for LBP, the calibration check tolerances, and other important information needed to ensure accurate results are also included in the PCS. An inspector and risk assessor must follow the XRF PCS for all LBP activities, and only devices with a posted PCS may be used for LBP inspections and risk assessments (Ref. 52).

XRF analyzers and their corresponding PCS sheets were developed to be calibrated with the current definition of LBP. Therefore, these instruments would need to be re-evaluated to determine the capabilities of each instrument model available in the market to meet a potentially revised definition of LBP, and the corresponding PCS would need to be amended accordingly. If, as a result of a revised definition of LBP, the use of XRFs suddenly became unavailable, the effectiveness of the LBP activities programs would be severely harmed. Since these instruments are the primary analytical method for inspections and risk assessments performed pursuant to the LBP activities regulations, EPA would need to understand how a potential revision to the definition of LBP would affect the ability of the regulated community to use this technology.

When conducting renovations, contractors must determine whether or not their project will involve LBP, and thus fall under the scope of the RRP regulations under 40 CFR part 745, subpart E, or in certain jurisdictions, authorized state and Indian tribal programs under subpart Q (see Unit III.C). Under the RRP rule, renovators have the flexibility to choose among four strategies: Use (1) a lead test kit, (2) an XRF instrument, (3) paint chip sampling to indicate whether LBP is present; or (4) assume that LBP is present and follow all the work-practice requirements. For those using lead test kits, only test kits recognized by the EPA can be used for this purpose. EPA-recognized lead test kits used for the RRP program were evaluated through EPA's Environmental Technology Verification (ETV) Program or by the National Institute of Standards and Technology. ETV was a public-private partnership between EPA and nonprofit testing and evaluation organizations that verified the performance of innovative technologies. ETV evaluated the reliability of the technology used for on-site testing of LBP at the regulated level, under controlled conditions in a laboratory. ETV ended operations in early 2014. EPA would need to evaluate lead test kits using ETV-equivalent testing for a potential revision of the definition of LBP. This would allow EPA to evaluate the reliability of test kits for testing LBP under controlled conditions at levels lower than the current LBP definition, so contractors could continue to use this important tool in compliance with the RRP regulations.

The regulated community uses XRF analyzers for inspections and risk assessments and uses lead test kits to determine the presence of LBP during renovations. In consideration of any potential revised definition of LBP, EPA would need to fully understand the repercussions of such a revision on these portable field technologies in order to ensure the technological feasibility of any new revision. The methods EPA would need to employ to do so would involve complex processes that include evaluating the potential ability of XRF analyzers to detect LBP at lower levels than the current definition, the ability to recalibrate performance characteristic sheets for each available model of XRF analyzer, and re-evaluating lead test kits under controlled conditions in a laboratory. EPA currently lacks sufficient information to support such an undertaking.

Pursuant to TSCA section 404, a provision was made for interested states, territories and tribes to apply for and receive authorization to administer their own LBP activities programs, as long as their programs are at least as protective of human health and the environment as the Agency's program and provides adequate enforcement. The regulations applicable to state, territorial and tribal programs are codified at 40 CFR part 745, subpart Q. As part of the authorization process, states, territories and tribes must demonstrate to EPA that they meet the requirements of the LBP Activities Rule. Over time, the Agency may make changes to these requirements. To address the changes in this final rule and future changes to the LBP Activities Rule, the Agency is requiring states, territories and tribes to demonstrate that they meet any new requirements imposed by this rulemaking in order to maintain or obtain authorization. Under this requirement, authorized states, territories and tribes have up to two years to demonstrate that their programs include any new requirements that EPA promulgates. A state, territory or tribe must indicate that it meets the requirements of the LBP Activities program in its application for authorization or, if already authorized, in a report it must submit in accordance with 40 CFR 745.324(h) no later than two years after the effective date of the new requirements. If an application for authorization has been submitted but not yet approved, the state, territory or tribe must demonstrate that it meets the new requirements by either amending its application, or in a report it submits under 40 CFR 745.324(h) no later than two years after the effective date of the new requirements. The Agency believes that this requirement allows sufficient time for states, territories and tribes to demonstrate that their programs contain requirements at least as protective as any new requirements that EPA may promulgate.

EPA has considered the impacts of the revised DLHS on NLLAP-recognized laboratories. This rule will become effective on January 6, 2020 in order to provide a reasonable amount of time for NLLAP-recognized laboratories to take actions to meet the lower LQSR limits so they can continue providing dust wipe testing services to the regulated community at the time the rule becomes effective.

In order to obtain a better understanding of laboratories' capability and capacity for dust wipe analysis, EPA conducted teleconferences with two accrediting organizations (Refs. 34; 35; and 36), five federally funded laboratories (Refs. 37; 38; 39; 40; and 41), and nine state or privately funded laboratories (Refs. 42; 43; 44; 45; 46; 47; 48; 49; and 50). Based on these conversations, EPA estimated that over half of accredited laboratories would have to take actions to meet the lower LQSR limits. They can accomplish this by asking their customers to increase the wipe area sampled and/or revising their operating procedures, validating the changes, and revising their accreditation accordingly. Such actions can take months to complete. EPA therefore believes that the effective date provides needed flexibility for laboratories while ensuring that the revised DLHS become effective in a timely manner.

The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is an economically significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). Any changes made in response to OMB recommendations have been documented in the docket. The Agency prepared an analysis of the potential costs and benefits associated with this action, which is available in the docket (Ref. 14).

This action is considered an Executive Order 13771 regulatory action (82 FR 9339, February 3, 2017). Details on the estimated costs of this final rule can be found in EPA's analysis of the potential costs and benefits associated with this action.

This action does not directly impose an information collection burden under the PRA, 44 U.S.C. 3501 et seq. Under 24 CFR part 35, subpart A, and 40 CFR part 745, subpart F, sellers and lessors must already provide purchasers or lessees any available records or reports “pertaining to” LBP, LBP hazards and/or any lead hazard evaluative reports available to the seller or lessor. Accordingly, a seller or lessor must disclose any reports showing dust-lead levels, regardless of the value. Thus, this action would not result in additional disclosures. Because there are no new information collection requirements to consider under the proposed rule, or any changes to the existing requirements that might impact existing information collection request burden estimates, additional OMB review and approval under the PRA is not necessary.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. In making this determination, the impact of concern is any significant adverse economic impact on small entities. The small entities subject to the requirements of this action are small businesses that are landlords who may incur costs for lead hazard reduction measures in compliance with the HUD Lead Safe Housing Rule (LSHR); residential remodelers (who may incur costs associated with additional cleaning and sealing in houses undergoing rehabilitation subject to the HUD LSHR); and abatement firms (who may also incur costs associated with additional cleaning and sealing under the LSHR). The Agency has determined that approximately 15,000 small businesses would be subject to this rule, of which 96% have cost impacts less than 1% of revenues, 4% have impacts between 1% and 3% of revenues, and less than 1% have impacts greater than 3% of revenues. Details of the analysis of the potential costs and benefits associated with this action are presented in EPA's Economic Analysis, which is available in the docket (Ref. 14).

The rule sets health-based hazard standards for dust lead loadings on floors and window sills. The DLHS do not require the owners of properties covered by this final rule to evaluate their properties for the presence of dust-lead hazards, or to take action if dust-lead hazards are identified. Although these regulations do not compel specific actions to address identified LBP hazards, these standards are directly incorporated by reference into certain requirements mandated by HUD in housing subject to the LSHR. Aside from the HUD regulations, this rule does not impose new federal requirements on small entities.

EPA's Economic Analysis estimates potential costs for activities in two types of target housing—those subject to the HUD LSHR and those where a child with a blood lead level exceeding a federal or state threshold lives. The analysis presents low and high scenarios for the number of housing units where a child with a blood lead level exceeding a federal or state threshold lives. For the low scenario, environmental investigations are assumed to be conducted when a child's blood lead level exceeds the threshold set by that child's state. These thresholds vary from 5 µg/dL to 20 µg/dL, depending on the state. For the high scenario, environmental investigations are assumed to be conducted when a child's blood lead level exceeds the CDC's reference level of 5 µg/dL.

In order to estimate the broader potential impacts of the rule, EPA assumed that environmental investigations triggered by a child with a blood lead level exceeding a federal or state threshold include dust wipe testing of the child's home and that a clean-up occurs whenever the investigation indicates that dust-lead levels exceed a hazard standard. As previously indicated, the rule does not require these actions. Where dust-lead levels are below the standards in the 2001 rule but above the standards in this final rule, the potential clean-up costs are also included in the economic analysis. The low and high scenarios for the number of housing units affect the estimated number of small business that might incur costs for cleaning and additional dust wipe testing once the hazard standards in this final rule are in effect. Based on the two scenarios, a total of 22,000 to 48,000 small businesses are considered in the analysis (this total includes those firms mentioned above in the discussion of the HUD LSHR). About 7,000 to 33,000 are lessors leasing housing where a child with a blood lead level exceeding a federal or state threshold resides.

When considering this broader set of firms, EPA's analysis indicates that nearly 300 landlords that are small businesses may have cost impacts over 3% under the low scenario, and almost 1,500 may have such impacts under the high scenario. However, the high scenario makes a series of assumptions that are likely to overstate costs and impacts. The high scenario assumes that in all instances where a child's blood lead level is between the threshold set by that child's state and the CDC reference value, the dust lead levels are tested in the residence even when not required; that in all cases where the loadings are above the hazard standard in a rental unit the landlord takes action, and incurs costs, to reduce the dust lead levels even when that is not required. The analysis further assumes that in all those cases the costs are borne entirely by the landlord (as opposed to being passed through or recouped in whole or in part through increased rent). As a result of this series of conservative assumptions, the high scenario functions as a bounding estimate. A more realistic assessment of the potential impacts is that they are between the high and low scenarios. In light of these considerations, even if the broader set of firms were to be considered, EPA would certify that this action would not have a significant economic impact on a substantial number of small entities.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The total estimated annual cost of the proposed rule is $32 million to $117 million per year (Ref. 14), which does not exceed the inflation-adjusted unfunded mandate threshold of $156 million.

This action does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. States that have authorized LBP Activities programs must demonstrate that they have DLHS at least as protective as the standards at 40 CFR 745.227. However, authorized states are under no obligation to continue to administer the LBP Activities program, and if they do not wish to adopt new DLHS they can relinquish their authorization. In the absence of a state authorization, EPA will administer these requirements. Thus, Executive Order 13132 does not apply to this action.

This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). Tribes that have authorized LBP Activities programs must demonstrate that they have DLHS at least as protective as the standards at 40 CFR 745.227. However, authorized tribes are under no obligation to continue to administer the LBP Activities program, and if they do not wish to adopt new DLHS they can relinquish their authorization. In the absence of a Tribal authorization, EPA will administer these requirements. Thus, Executive Order 13175 does not apply to this action.

This action is subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is economically significant as defined in Executive Order 12866, and because the environmental health or safety risk addressed by this action may have a disproportionate effect on children. (Ref. 18)

The primary purpose of this rule is to reduce exposure to dust-lead hazards in target housing where children reside and in target housing or COFs. EPA's analysis indicates that there will be approximately 50,000 to 200,000 children per year affected by the rule (Ref. 14).

This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy.

Since this rulemaking does not involve technical standards, NTTAA section 12(d) (15 U.S.C. 272 note) does not apply to this action.

This action is not expected to have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The documentation for this decision is contained in the Economic Analysis, which is available in the docket (Ref. 14). EPA's Economic Analysis estimates that the average baseline blood lead levels of children who are affected by the rule (particularly children in minority and low-income households) are higher than the nationwide average. The revised hazard standards would reduce exposure to lead for all residents of affected housing. Therefore, EPA has determined that the regulatory options will not have disproportionately high and adverse human health or environmental effects on any population, including any minority population or low-income population.

This action is subject to the CRA, 5 U.S.C. 801 et seq., and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I, subchapter R, is amended as follows:

The snapper-grouper fishery of the South Atlantic includes lesser amberjack, almaco jack, and banded rudderfish, which combined are the Other Jacks Complex. The Other Jacks Complex is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The commercial ACL for the Other Jacks Complex is 189,422 lb (85,920 kg), round weight. Under 50 CFR 622.193(l)(1)(i), NMFS is required to close the commercial sector for the Other Jacks Complex when the commercial ACL has been reached, or projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial sector for this complex is projected to reach its ACL by July 16, 2019. Therefore, this temporary rule implements an AM to close the commercial sector for the Other Jacks Complex in the South Atlantic, effective at 12:01 a.m., local time, on July 16, 2019.

The operator of a vessel with a valid commercial permit for South Atlantic snapper-grouper having lesser amberjack, almaco jack, or banded rudderfish on board must have landed and bartered, traded, or sold such species prior to 12:01 a.m., local time, on July 16, 2019. During the commercial closure, the recreational bag limit specified in 50 CFR 622.187(b)(8) and the possession limits specified in 50 CFR 622.187(c) apply to all harvest or possession of lesser amberjack, almaco jack, or banded rudderfish in or from the South Atlantic EEZ, while the recreational sector is open. These recreational bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, regardless of whether such species were harvested in state or Federal waters. During the commercial closure, the sale or purchase of lesser amberjack, almaco jack, or banded rudderfish taken from the South Atlantic EEZ is prohibited.

The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of the fish in the Other Jacks Complex, a component of the South Atlantic snapper-grouper fishery, and is consistent with the FMP, the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.193(l)(1)(i) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and public comment.

This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the commercial sector for the Other Jacks Complex constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the AM itself has been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect the species in the Other Jacks Complex, since the capacity of the fishing fleet allows for rapid harvest of the commercial ACL. Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial ACL.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

The recreational fishery for Gulf of Maine (GOM) cod and haddock is managed under the Northeast Multispecies Fishery Management Plan (FMP). The multispecies groundfish fishery opens on May 1 each year and runs through April 30 of the following calendar year. The FMP sets recreational sub-annual catch limits (sub-ACL) for GOM cod and haddock for each fishing year. These sub-ACLs are a fixed proportion of the overall catch limit for each stock. The FMP also includes proactive recreational accountability measures (AM) to prevent the recreational sub-ACLs from being exceeded and reactive AMs to correct the cause or mitigate the effects of an overage if one occurs.

The proactive AM provision in the FMP requires the Regional Administrator, in consultation with the New England Fishery Management Council, to develop recreational management measures for the upcoming fishing year to ensure that the recreational sub-ACL is achieved, but not exceeded. The provisions authorizing this action can be found in 50 CFR 648.89(f)(3) of the Northeast Multispecies FMP's implementing regulations.

According to the most recent stock assessments, conducted in 2017, the GOM cod and haddock stocks are increasing, although cod remains overfished and subject to a rebuilding plan. Framework Adjustment 57 (83 FR 18985; May 1, 2018) set 2018 and 2019 ACLs and sub-ACLs based on the 2017 stock assessments. Framework 58, a pending action, does not adjust the fishing year 2019 recreational sub-ACLs for GOM cod or haddock, and the 2019 sub-ACLs remain at the same level as in 2018. The 2019 recreational sub-ACL for GOM cod is 220 mt, the 2019 recreational sub-ACL for GOM haddock is 3,358 mt. Recreational catch and effort data are estimated by the Marine Recreational Information Program (MRIP). Preliminary estimates of GOM cod and haddock catch for fishing year 2018 indicate that the recreational fishery did not achieve the 2018 sub-ACL of either stock. The development of the proposed measures was detailed in the proposed rule, and that discussion is not repeated here (84 FR 20609; May 10, 2019; also see the correction of one number in table 2 on page 20610 of the proposed rule at 84 FR 22104; May 16, 2019).

The Groundfish Committee and Executive Committee on behalf of the Council recommended more conservative measures than the Recreational Advisory Panel (RAP), while still allowing a limited directed cod fishery (Table 1). We proposed the Council's recommended measures: For GOM cod, two 2-week open seasons (September 15-30 and April 15-30), 1 fish per person per day, with a minimum size of 21 inches (53.3 cm); and for GOM haddock, an increase in the possession limit from 12 to 15 fish per person per day, opening the fall closure, resulting in open seasons of May 1-February 28/29 and April 15-30, and a 17-inch (43.2-cm) minimum size. However, for the reasons described below, we are not implementing the April 15-30 cod open season.

In light of the comments we received on the proposed rule, the degree of uncertainty in the model's projections (as described in the proposed rule), condition of the GOM cod stock, and recent history of recreational management performance, we have determined that we cannot approve the GOM cod measures as proposed. For GOM cod, we are implementing more conservative measures than recommended by the Council, to better account for uncertainty in the bioeconomic model's predictions, minimize impacts on cod spawning, and reduce the chance of the recreational fishery exceeding its GOM cod sub-ACL. We proposed the Council's recommendation of two 2-week open seasons for GOM cod, April 15-30 and September 15-30. However, the majority of public comments were not in favor of the proposed open seasons for GOM cod. We received public comments opposed to the April open season due to the potential adverse impacts on spawning cod relative to the limited opportunity to catch cod during only two weeks in the spring. In addition, April 15-30 is the same timing as the Massachusetts Bay Spring Spawning Closure for commercial groundfish vessels, which was implemented to protect spawning cod. We reconsidered the April open season for GOM cod in the proposed rule in response to comments that highlighted the potential risk of this open season relative to the limited benefits to anglers. Additionally, comments were received on the poor status of the GOM cod stock, inadequate rebuilding progress, and recent history of significant recreational overages. Overall, these comments revealed that the risks of opening this season outweighed perceived potential benefits to a degree that required reconsidering its suitability. Considering these comments, coupled with the significant uncertainty in the projected catch estimates, we are only approving the September 15-30 open season for GOM cod, a time when cod spawning is not known to occur. This open season will enable recreational anglers from all adjacent states to access the GOM cod stock, while minimizing the risk of exceeding the GOM cod sub-ACL. During this season, anglers will be able to retain one fish per person per day, with a minimum size of 21 inches.

In this final rule, we are approving the GOM haddock measures as proposed. This final rule increases the possession limit from 12 to 15 fish per person per day. We are also removing the current fall (September 17-October 31) GOM haddock closure. The GOM haddock minimum size will remain 17 inches (43.2 cm). These measures are intended to increase access to the healthy GOM haddock stock. Although we expect interactions with cod to increase with the new open season, the model projects a minimal increase in cod catch, resulting in total cod removals less than the GOM cod sub-ACL. The resulting increase in GOM cod catch, due to the new haddock measures, is one of the factors we considered when deciding what measures would be appropriate for GOM cod. We are implementing more conservative directed cod measures to minimize the probability that the GOM cod sub-ACL is exceeded.

As part of Framework 57, the Council provided the Regional Administrator authority to adjust the Georges Bank (GB) cod recreational management measures for fishing years 2018 and 2019. Unlike GOM cod and haddock, there is no recreational sub-ACL for GB cod and no accountability measures for the recreational fishery when an overage occurs. The Council did not consider a recreational sub-ACL in Framework 57 but did recommend a catch target of 138 mt for us to use when considering adjustments to GB cod measures. The catch target was based on the most recent 5-year (calendar years 2012-2016) average recreational catch. The Council expects that measures designed to achieve this target amount for the recreational fishery will help the overall fishery attain, but not exceed, its overall ACL. To avoid using potentially anomalous results from the highly variable MRIP catch estimates for GB cod, we used a 3-year average catch estimate to better represent long-term trends. We then compared that catch estimate with the catch target to determine if adjustments to the management measures were needed. This year, the Council asked that we consider alternative methods to evaluate GB cod catch and examine management needs. Even if the preliminary catch estimate for 2018 was zero, the 3-year average would still be greater than the catch target of 138 mt due to an extremely high 2016 catch estimate.

Catch of GB cod was substantially less in 2017 (53 mt) compared to 2016 (477 mt). Preliminary estimates of 2018 catch (57 mt) are similar to 2017, indicating that estimated 2016 catch may have been an anomaly. Given that 2017 and 2018 catch levels are low compared to the catch target, the Groundfish Committee and Council recommended liberalizing management measures for GB cod, reducing the minimum size from 23 inches to 21 inches (58.4 to 53.3 cm). The RAP proposed a lower minimum size of 19 inches (48.3 cm). We proposed the Council's recommendations for GB cod. A 21-inch (53.3-cm) minimum fish size is consistent with the minimum size for GOM cod and is expected to increase catch by approximately 20 percent (based on size frequencies of 2018 catch). Decreasing the minimum size will allow anglers to retain some fish they would have caught and then discarded. The estimated increase in catch would still result in catch lower than the catch target, if effort in 2019 is similar to 2017 and 2018. Given the variability and uncertainty in the GB cod MRIP estimates, a precautionary approach to revising measures is warranted to ensure that the catch target and ACL are not exceeded. In addition, having consistent minimum sizes in Gulf of Maine and Georges Bank is likely to increase compliance. We are approving the GB cod measures as proposed.

We received 29 comments on the proposed rule, from 27 members of the public, the New York Recreational and For-Hire Fishing Alliance (NYRFHA), and the Conservation Law Foundation (CLF). Two of these comments were not relevant to this rulemaking and are not discussed further. Three comments supported the proposed measures for GB cod, and no comments were submitted in opposition of the proposed GB cod measures. Twenty-six comments addressed the proposed GOM measures, and some of these comments addressed both Gulf of Maine and Georges Bank proposed measures. Four individuals and the NYRFHA supported the proposed measured for GOM cod and haddock, the remaining 21 comments did not support the proposed measures for GOM cod, and six did not support some or all of the proposed changes to the GOM haddock measures.

Comment 1: Eleven individuals did not support the proposed measures for GOM cod, and suggested more liberal cod measures for recreational anglers. The majority of these individuals suggested that we allow year-round possession of one or more cod. One commenter suggested that a larger size limit might enable us to open a longer season. The remaining comments suggested that we extend and shift the open season to encompass the summer months (June, July, and August). Many of these commenters also noted that the open seasons proposed would have limited benefit for private recreational anglers due to the timing (early spring and late fall) when many people do not have their boats in the water and conditions are less favorable.

Response: The recreational fishery has exceeded its GOM cod sub-ACL in four of the last six years. These overages have contributed to two overages of the total ACL and ABC. GOM cod is overfished and subject to a rebuilding plan; overfishing is also occurring. The GOM cod stock shows a truncated size and age structure, consistent with a population experiencing high mortality. Additionally, there are no positive signs of incoming recruitment, continued low survey indices, and the current spatial distribution of the stock is considerably less than its historical range within the Gulf of Maine.

The most recent GOM cod assessment, which was conducted in 2017, suggests that the stock is increasing, but remains at a low level. If this increasing trend continues, we expect additional stock rebuilding to provide increased opportunities for recreational and commercial fishermen in the future. We will evaluate recreational measures again before the 2020 fishing year and make any necessary adjustments. However, for fishing year 2019, we could not liberalize cod measures more than what we are implementing. We are implementing more conservative measures than proposed due to comments that highlighted concerns about impacts on GOM cod spawning. Additional information on this change is provided in the response to Comment 3, below.

Using the bioeconomic model, we analyzed a wide variety of minimum fish sizes, seasons and possession limits for GOM cod and haddock. The goal of the model is to maximize opportunities while maintaining catch within the sub-ACLs. While it is difficult to predict the performance of recreational measures, the bioeconomic model has underestimated recreational catch historically. We evaluated approximately 100 different combinations of seasons, minimum sizes, and possession limits for GOM cod and haddock. Model runs that included cod access during the summer generally resulted in projected catch over the GOM cod recreational sub-ACL.

While the bioeconomic model suggests that management measures more liberal than what we are implementing would result in cod catch less than the 220-mt sub-ACL, the uncertainty associated with those projections is high. The bioeconomic model attempts to describe the impact that directed haddock fishing has on cod mortality in the Gulf of Maine, as the two stocks are often found together. The model demonstrates that proposed measures for haddock are likely to increase cod interactions, and therefore, mortality. The degree to which the new haddock measures will affect cod mortality is highly uncertain because the model is predicting behavior in months that were previously closed. Other significant sources of uncertainty have been described in the preamble of the proposed rule (84 FR 20609), and are not repeated here. Given these uncertainties, the status of the GOM cod stock, and the recent recreational overages, we are unable to liberalize GOM cod recreational management measures to the extent requested by these commenters.

We are supporting a variety of cooperative research efforts to improve our understanding of recreational fisheries so that we can increase fishing opportunities while we continue to rebuild the cod stock. Current examples include an evaluation of discard mortality, a cod bycatch avoidance program, and a study of different tackle and its impact on catch rates.

Comment 2: One individual commented specifically in support of the RAP's proposed GOM management measures, stating that the Center's bioeconomic model showed that these options would not result in the recreational fishery exceeding its sub-ACL for GOM cod.

Response: We disagree. As stated during the RAP meeting and described in the proposed rule, there is a significant amount of uncertainty, more so than in previous years, in the bioeconomic model's predictions. For this reason, coupled with the recent recreational sub-ACL overages of GOM cod, and the overall status of the stock, we cautioned the RAP that their recommendations, without additional justification, would likely not be approvable. The Groundfish Committee and Council's recommended measures were intended to balance the need to take a precautionary approach and the recreational communities' interest in gaining access to the GOM cod fishery.

Comment 3: Five individuals were not supportive of the proposed measures for GOM cod, specifically the timing of the proposed April 15-30 opening. These concerns were based on the timing of the opening relative to cod spawning.

Response: We agree, and we are not approving the April 15-30 opening for GOM cod. We reconsidered the April open season for GOM cod in the proposed rule in response to these comments that highlighted the potential risk of this open season relative to the limited benefits to anglers. Historically, the month of April has been an important time for cod spawning in the Gulf of Maine. The Omnibus Essential Fish Habitat Amendment 2 included the Spring Massachusetts Bay Spawning Protection area, which is closed from April 15-30 to protect spawning cod. Private recreational anglers may fish in the closure, and charter/party vessels may obtain a Letter of Authorization for access. Commenters noted that opening a directed cod fishery during this same period might have concentrated effort in this near-shore area, during a time that overlaps with cod spawning. The risk of promoting fishing during a spawning season outweighs the potential benefits that may have been realized from opening a short two-week season very early in the season. While recreational anglers are permitted to target haddock and other groundfish species, we agree with the commenters that opening a directed GOM cod fishery during this time would be contrary to our efforts to reduce impacts on spawning cod.

Comment 4: Three individuals, including a kayaking cod fisherman, were concerned that the timing of the proposed GOM cod seasons coupled with the short duration would create safety issues for recreational anglers. One commenter stated that the short seasons would “create an effort run,” and that limiting the opportunities to target cod would concentrate effort during these times “reducing the safety for those at sea.” Other individuals referenced the poor conditions during the early spring and late fall, and how this would be limiting or dangerous for private recreational anglers.

Response: We agree that fishing for cod from a kayak in Federal waters of the Gulf of Maine, during the early spring and late fall, is not safe and that you may need a bigger boat. Conditions during the spring and fall in the Gulf of Maine are variable, and may significantly affect the amount of effort that occurs during these seasons. We recognized that the proposed timing would have limited opportunities for many anglers to participate in the GOM cod fishery. The timing was selected because effort is generally less during these times, resulting in less potential catch of GOM cod and less risk of an overage of the recreational GOM cod sub-ACL. We are not approving the April GOM cod open season, as discussed in the responses to Comments 1 and 3, above.

Comment 5: One individual stated that we assume a 100-percent discard mortality rate for GOM cod. This statement was used to support an argument that converting these dead discards to landings would not increase mortality on the GOM cod stock.

Response: The assumed discard mortality rate for GOM cod is 15 percent. Despite the assumed 15 percent mortality rate, cod bycatch in the directed GOM haddock fishery has resulted in cod catch greater than the recreational sub-ACL in four of the last six years. Additionally, allowing possession of cod will likely result in behavioral changes because anglers are likely to target cod, which may lead to an overall increase in catch.

Comment 6: Ten individuals did not support the proposed measures for GOM cod, and suggested that we keep the recreational GOM cod fishery closed. The rationale supporting this varied. Seven individuals felt that the GOM cod stock is in poor condition and targeted fishing should be prohibited. Three individuals commented that the two 2-week openings would have limited benefit to the recreational fishery and if that is all the resource can support, we should not bother opening it at all. Several individuals were concerned about the ability to enforce these short seasons, and accurately collect data on the catch during these time periods.

Response: As stated in our response to Comment 1, we agree that the GOM cod stock is in poor condition and a conservative approach to its management is warranted. We are not opening the April season for GOM cod as proposed. We are opening a 2-week season in September to enable limited recreational access to the GOM cod stock. The proactive AM provision in the FMP requires the Regional Administrator, in consultation with the New England Fishery Management Council, to develop recreational management measures for the upcoming fishing year to ensure that the recreational sub-ACL is achieved, but not exceeded. While we agree a precautionary approach is necessary, we are approving measures that, according to the model, have a high probability of resulting catch less than the GOM cod sub-ACL. Leading up to fishing year 2020, we will have data from MRIP, as well as updated stock assessments incorporating revised MRIP estimates that will allow us to re-evaluate catch and effort from the 2019 fishing year, as well as the status of the GOM cod stock. If adjustments are necessary to ensure recreational catch does not exceed the recreational sub-ACL, they will be made in the 2020 recreational rule in consultation with the Council.

Comment 7: Five individuals questioned the data on GOM cod, specifically that the biomass of the GOM cod stock is low. Overall, these anglers cited their recent experiences catching numerous cod while fishing in the Gulf of Maine. One fishermen asked “Where are you finding this d[e]arth of cod??” These commenters felt that recreational measures should be liberalized because there are actually more cod available than indicated by the stock assessment.

Response: It is important to us that the public has confidence in the data we must rely on to manage the fishery. The significant uncertainty and variability of the data is something we consider when we utilize the best available science to inform our decisions. The most recent assessment of GOM cod suggests that the stock is increasing, but remains at a low level. If this trend continues, we expect additional stock rebuilding to provide increased opportunities for recreational and commercial fishermen in the future. The GOM cod stock assessment is scheduled to be updated this fall. This update will incorporate significant MRIP data updates. MRIP catch and effort estimates (1981-2017) based on the Coastal Household Telephone Survey (CHTS) were transitioned to the new, mail-based Fishing Effort Survey (FES). However, the most recently available stock assessments and sub-ACLs were based on the CHTS estimates. Evaluation of catch and development of management measures will continue to use data in the CHTS-equivalent until new assessments are conducted for these two stocks using FES information. That means, for fishing year 2018, FES data had to be converted back into CHTS values. The introduction of another model (back-calibration from CHTS to FES) and the associated assumptions adds a new layer of uncertainty. We will evaluate recreational measures again before the 2020 fishing year to make any necessary adjustments.

Comment 8: Two individuals commented specifically on the proposed September opening for GOM cod. These comments stated that the timing of this opening is not ideal, with respect to water and air temperature and the impact this has on discard mortality. They suggested that the opening should have been timed when the air and water temperature are highest to maximize the impact of converting dead discards into landings.

Response: The assumed discard rate for recreationally caught GOM cod is 15 percent. This rate does not vary between seasons, unlike the GOM haddock discard rate. Additional research is needed to enable us to factor in seasonally specific discard rates to the calculation of mortality and ultimately the application to management decisions.

Comment 9: Six individuals commented on the disparity between commercial and recreational access to the GOM cod stock. Specifically, they stated that commercial fishermen continue to fish for GOM cod, while recreational anglers have been prohibited from retaining them.

Response: We recognize the perceived discrepancy because the recreational fishery has not been able to target GOM cod in recent years, and in 2019, only a limited directed season will be opened. Each year, we are required to set recreational management measures designed to achieve, but not exceed, the recreational sub-ACLs. Framework 57 sets the 2019 ACLs based on updated 2017 assessments. The recreational sub-ACLs are based on a fixed percentage of the total catch limit. Management measures are set for the recreational and commercial fishery to achieve their respective sub-ACLs. While directed recreational fishing for GOM cod has been limited, the recreational fishery has still exceeded its sub-ACL for GOM cod. Although the assumed discard mortality rate for GOM cod is only 15 percent, the mortality associated with cod bycatch in the directed GOM haddock fishery has resulted in cod catch greater than the recreational sub-ACL in four of the last six years.

Comment 10: Four individuals and the NYRFHFA supported the proposed measures for GOM cod as proposed.

Response: We are partially approving the GOM cod measures we proposed. The rationale for keeping the April season closed for cod has been included in response to Comment 3, and not repeated here.

Comment 11: Six individuals did not support an increase to the haddock possession limit from 12 to 15 fish. These individuals were concerned about the potential impacts to the haddock stock, and several stated that even with the 12-fish limit, they were not “limiting out” during trips.

Response: The RAP, Groundfish Committee, and Council recommended an increase in the haddock possession limit from 12 to 15 fish per person per day. We proposed and are implementing the increased 15-fish possession limit. The GOM haddock stock is not overfished, and overfishing is not occurring. The most recent stock assessment for GOM haddock, conducted in 2017, concluded that spawning stock biomass in 2016 was estimated to be 47,821 mt, which is 706 percent of the biomass target. The bioeconomic model projects GOM haddock catch, even under the most liberal recommendations would be significantly less than the catch target. We are increasing the haddock possession limit to increase catch of this healthy stock.

Comment 12: Three individuals stated that they did not support the proposed size limit for GOM haddock. One individual stated that even the current size limit (17 inches, 43.2 cm) does not allow fish to reach maturity, and spawn, prior to being a legal-size fish to retain.

Response: When the proposed rule published, the Federal Register made an error when transcribing one of the tables. In that table, the proposed minimum size for GOM haddock was listed as 15 inches (38.1 cm). This was an error. We published a correction document (84 FR 22104) on May 16, 2019. We did not propose a reduction to the GOM haddock minimum size, and it will remain unchanged at 17 inches (43.2 cm). Additionally, haddock begin to reproduce between the ages of 1 and 4 years old and at 10.5 to 11.7 inches (26.7 to 29.7 cm) long. The selection of minimum size for both the commercial and recreational fishery considers maturity at size and age.

Comment 13: Two individuals and the New York Recreational and For-Hire Fishing Alliance supported the proposed GB cod measures. Two of these comments came from for-hire businesses that operate in the southernmost range of GB cod. They stated that the cod they encounter is smaller than their northern counterparts, and the current minimum size of 23 inches (58.4 cm), implemented in fishing year 2018, disproportionally affected their fishery.

Response: We have approved the GB cod recreational management measures as proposed, reducing the minimum size from 23 to 21 inches (58.4 to 53.3 cm). We were able to liberalize measures, as the reduced minimum size is not expected to result in catch about the recreational catch target. The reduced minimum size will also enable anglers to retain some fish that they would have otherwise discarded.

The Regional Administrator, Greater Atlantic Region, NMFS, determined that these measures are necessary for the conservation and management of the Northeast multispecies fishery and that the measures are consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator for Fisheries finds good cause to make this rule effective upon filing in the Federal Register . This final rule liberalizes recreational management measures for GB cod, GOM cod, and GOM haddock. Delaying the effective date of this rule increases the likelihood that recreational catch in the 2019 fishing year will not achieve the GB cod catch target, or the GOM cod and haddock sub-ACLs. Thus, delaying implementation of these measures would be contrary to the public interest.

The Northeast multispecies fishing year begins on May 1 of each year and continues through April 30 of the following calendar year. Altering recreational management measures in-season negatively affects business planning for the for-hire segment of the fishery, causes confusion in the fishery, and may result is less compliance with the regulations. Implementing these measures as soon as possible will reduce the negative effects associated with in-season adjustments. Because of the seasonal nature of the fishery, industry would permanently forego the revenues associated with the increase in the haddock bag limit if we further delayed implementation of this action. Thus, delaying implementation of these measures would be contrary to the public interest.

Recreational fishing participants are anticipating this action will go into effect as soon as possible. They have participated in the required Council process that has attempted to overcome delays caused by the partial government shutdown with the intent of implementing these measures as close to May 1 as possible to avoid further disruption and adverse economic impacts from further delays. The collection and processing of recreational data already creates a very compressed period for development and consideration of options, consulting with the Council, and completing proposed and final rulemaking. MRIP data is collected on a calendar-year basis in 2-month waves. Preliminary data from the summer and fall, when recreational effort is significant, is not available until December, and analyses are not ready until January at the earliest. In addition to the compressed schedule during a typical year, the partial Federal government shutdown significantly delayed the development, evaluation, and implementation of recreational measures for GOM cod and haddock and GB cod. We are required to consult with the Council before conducting rulemaking to adjust recreational management measures for these fisheries. In a typical year, this process begins in January when we prepare potential management options and consult with the Council including its Recreational Advisory Panel. We generally receive the Council's final recommendation in early February, which allows us to begin our rulemaking process. The partial shutdown disrupted this schedule, and we did not receive the Council's recommendations until early March. The Council made important accommodations to its process in order to streamline the development of recommendations, but we are still behind schedule relative to a typical year, and new management measures were not in place for the May 1 start of the fishing year. Further delaying the effectiveness of this action would be contrary to the public interest.

For the reasons outlined, NMFS finds that there is good cause to waive the requirement to provide a 30-day delay in implementation.

This final rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866.

This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: