Discussion

The FAA issued AD 2012-22-05, Amendment 39-17241 (77 FR 68052, November 15, 2012) (“AD 2012-22-05”), and AD 2018-19-03, Amendment 39-19403 (83 FR 46859, September 17, 2018) (“AD 2018-19-03”), which applied to certain Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. AD 2012-22-05 required inspecting for cracks of the pistons on the MLG, and replacing the affected pistons if necessary. AD 2012-22-05 also required modifying the MLG, and revising the airplane maintenance program. AD 2018-19-03 required an inspection of the MLG, and replacement if necessary. The FAA issued these ADs to address MLG failure during the landing roll-out, which could result in damage to the airplane and injury to occupants.

Since ADs 2012-22-05 and 2018-19-03 were issued, the FAA has received a report of a crack found in the lower portion of a left-hand MLG piston; one possible factor was hydrogen-assisted cracking. The FAA determined that the cracked piston was part of a batch of six MLG pistons on which the required heat treatments may not have been applied during overhaul. Another possible contributing factor is that the wire harness port of the MLG piston is a highly stressed area, prone to high-rate crack growth if small surface imperfections are present.

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0224, dated September 6, 2019 (“EASA AD 2019-0224”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. EASA AD 2019-0224 supersedes EASA ADs 2011-0159 and 2017-0163 (which correspond to FAA ADs 2012-22-05 and 2018-19-03).

This AD was prompted by a report of a crack found in the lower portion of a left-hand MLG piston, and a determination that the required heat treatment may not have been applied to certain MLG pistons. See the MCAI for additional background information.

Although this AD does not explicitly restate the requirements of AD 2012-22-05 this AD retains all of the requirements of AD 2012-22-05. Those requirements are referenced in EASA AD 2019-0224, which, in turn, is referenced in paragraph (g) of this AD. This AD retains none of the requirements of AD 2018-19-03.

EASA AD 2019-0224 describes procedures for repetitive inspections of the MLG pistons for cracks, replacing cracked MLG pistons, and modifying the MLG by replacing each affected part (MLG piston or MLG unit) with a serviceable part or replacing each affected MLG unit with a serviceable unit.

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

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to a bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD because the agency evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

This AD requires accomplishing the actions specified in EASA AD 2019-0224 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2019-0224 is incorporated by reference in this AD. This AD, therefore, requires compliance with EASA AD 2019-0224 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2019-0224 that is required for compliance with EASA AD 2019-0224 will be available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0105 after the FAA final rule is published.

Since there are currently no domestic operators of these products, notice and opportunity for public comment before issuing this AD are unnecessary. In addition, for the reasons stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and the FAA did not precede it by notice and opportunity for public comment. The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2020-0105; Product Identifier 2019-NM-172-AD” at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this AD. The FAA will consider all comments received by the closing date and may amend this AD based on those comments.

The FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The FAA will also post a report summarizing each substantive verbal contact received about this AD.

Currently, there are no affected U.S.-registered airplanes. If an affected airplane is imported and placed on the U.S. Register in the future, the FAA provide the following cost estimates to comply with this AD:

The FAA has received no definitive data that would enable the agency to provide cost estimates for the on-condition actions specified in this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

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

The FAA has determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

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

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

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 747-400 series airplanes. The NPRM published in the Federal Register on November 26, 2019 (84 FR 65034). The NPRM was prompted by a report of a certain modification that causes interference with inspections that are intended to detect fatigue cracks. The NPRM proposed to require repetitive LFEC inspections of a certain fuselage upper skin lap splice for cracks, repetitive HFEC inspections of a certain fuselage upper skin lap splice for cracks, and applicable on-condition actions.

The FAA is issuing this AD to address undetected fatigue cracks, which could result in sudden decompression and loss of structural integrity of the airplane.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comment received. Boeing indicated its support for NPRM.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. The FAA has determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

The FAA reviewed Boeing Alert Requirements Bulletin 747-53A2901 RB, dated July 25, 2019. This service information describes procedures for repetitive LFEC inspections of a certain fuselage upper skin lap splice for cracks, repetitive HFEC inspections of a certain fuselage upper skin lap splice for cracks, and applicable on-condition actions. On-condition actions include repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD would affect 3 airplanes of U.S. registry. The agency estimates the following costs to comply with this AD:

The FAA has received no definitive data that would enable the agency to provide cost estimates for the on-condition actions specified in this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

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

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

Authority for This Rulemaking

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

The FAA published a notice of proposed rulemaking for Docket No. FAA-2019-0688 in the Federal Register (84 FR 52049; October 1, 2019), amending VOR Federal airways V-11 and V-275 due to the planned decommissioning of the VOR portion of the Waterville, OH, VOR/DME NAVAID. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11D dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document will be subsequently published in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

This document amends FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying VOR Federal airways V-11 and V-275. The planned decommissioning of the Waterville, OH, VOR has made this action necessary. The VOR Federal airway changes are outlined below.

V-11: V-11 extends between the Brookley, AL, VORTAC and the intersection of the Fort Wayne, IN, VORTAC 038° and Waterville, OH, VOR/DME 273° radials (EDGEE fix). The EDGEE fix in the airway description is amended to describe it as the intersection of the existing Fort Wayne VORTAC 038° radial and the Flag City, OH, VORTAC 308° radial. The unaffected portions of the existing airway remain as charted.

V-275: V-275 extends between the Cincinnati, KY, VORTAC and the intersection of the Dayton, OH, VOR/DME 007° and the Waterville, OH, VOR/DME 246° radials (KLOEE fix). The KLOEE fix in the airway description is amended to describe it as the intersection of the existing Dayton, OH, VOR/DME 007° radial and the Flag City, OH, VORTAC 313° radial. Additionally, an editorial correction changes the state abbreviation for the Cincinnati VORTAC listed in the description from “OH” to “KY”. The unaffected portions of the existing airway remain as charted.

All radials in the route descriptions are stated in True degrees.

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

The FAA has determined that this airspace action of amending the EDGEE fix and KLOEE fix NAVAID radial computations in VOR Federal airways V-61 and V-275, respectively, has no potential to cause any significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment. Therefore, this airspace action has been categorically excluded from further environmental impact review in accordance with the National Environmental Policy Act (NEPA) and its implementing regulations at 40 CFR parts 1500-1508, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

The FAA published a notice of proposed rulemaking for Docket No. FAA-2019-0677 in the Federal Register (84 FR 46905; September 6, 2019) removing VOR Federal airway V-61 and extending RNAV route T-286 in its place. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

VOR Federal airways are published in paragraph 6010(a) and RNAV T-routes are published in paragraph 6011 of FAA Order 7400.11D dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airway and RNAV T-route listed in this document will be subsequently published in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

This document amends FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 by removing VOR Federal airway V-61 and extending RNAV route T-286 to overlay the V-61 routing being removed. The planned decommissioning of the VOR portion of the Robinson, KS, VOR/DME has made this action necessary. The air traffic service (ATS) route actions are described below.

V-61: V-61 extends between the Grand Island, NE, VOR/DME and the intersection of the Robinson, KS, VOR/DME 141° and St. Joseph, MO, VOR Tactical Air Navigation (VORTAC) 211° radials (BOWLR fix). The airway is removed in its entirety.

T-286: T-286 extends between the Rapid City, SD, VORTAC and the Grand Island, NE, VOR/DME. The route is extended southeast between the Grand Island VOR/DME and the BOWLR fix. Additionally, the Rapid City VORTAC “RAP” identifier is added to the first line of the route description; the type of fix for the EFFEX fix and the type of NAVAID facility for Grand Island, NE, are corrected; and the geographic coordinates of each route point are updated to be expressed in degrees, minutes, seconds, and hundredths of a second.

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

The FAA has determined that this airspace action of removing VOR Federal airway V-61 and extending RNAV route T-286 in its place has no potential to cause any significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment. Therefore, this airspace action has been categorically excluded from further environmental impact review in accordance with the National Environmental Policy Act (NEPA) and its implementing regulations at 40 CFR parts 1500-1508, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

The Department of State maintains the Email Archive Management Records system of records, designated as STATE-01. The primary purpose of this system of records is to capture emails and attachments that interact with a Department of State email account and to store them in a secure repository that allows for search, retrieval, and view when necessary.

For additional background, see the notice of proposed rulemaking published on February 4, 2019 (84 FR 1419), and the system of records notice published on December 12, 2017 (82 FR 58477). The Department received no public comment on these documents.

For the reasons stated in the preamble, 22 CFR part 171 is amended as follows:

The final regulations (TD 9630) that are the subject of this correction are issued under section 1.482-7 of the Internal Revenue Code.

As published August 27, 2013 (78 FR 52854), the final regulations (TD 9630) contain an error that needs to be corrected.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendment:

This rule finalizes a proposed rule, DNA-Sample Collection from Immigration Detainees (OAG 164; RIN 1105-AB56) (published October 22, 2019, at 84 FR 56397), to amend regulations requiring DNA-sample collection from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States. Specifically, the rule removes 28 CFR 28.12(b)(4), which authorizes the Secretary of Homeland Security to exempt certain detained aliens from the DNA-sample collection requirement. As a result, the rule restores the Attorney General's plenary authority to authorize and direct all relevant Federal agencies, including the Department of Homeland Security (“DHS”), to collect DNA samples from such individuals.

The DNA Fingerprint Act of 2005, title X of Public Law 109-162, authorizes the Attorney General to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States. See 34 U.S.C. 40702(a)(1)(A). The statute further authorizes the Attorney General to delegate the function of collecting DNA samples to other agencies, and to direct their discharge of this function, thereby empowering the Attorney General to establish and administer a government-wide sample-collection program for persons in the covered classes. See id. In 2008, the Attorney General issued an implementing rule for 34 U.S.C. 40702(a)(1)(A) that amended 28 CFR 28.12. See 73 FR 74932 (Dec. 10, 2008).

The existing rule generally requires DNA-sample collection from individuals in these categories if they are fingerprinted. Consequently, Federal agencies now collect DNA samples from persons they take into custody as a regular identification measure in booking, on a par with fingerprinting and photographing. The rule requires DNA-sample collection both for persons arrested on Federal criminal charges and for non-United States persons in detention for immigration violations because DNA identification serves similar purposes and is of similar value in both contexts. See 28 CFR 28.12(b) (“Any agency of the United States that arrests or detains individuals . . . shall collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States.”); 73 FR at 74933-34, 74938-39. The rule defines “non-United States persons” for this purpose to mean persons who are not U.S. citizens and who are not lawfully admitted for permanent residence as defined in the relevant regulation (8 CFR 1.1(p), which has since been redesignated 8 CFR 1.2). 28 CFR 28.12(b).

The rule allows exceptions to the sample-collection requirement with the approval of the Attorney General. 28 CFR 28.12(b) (third sentence); 73 FR at 74934. As currently formulated, the rule also recognizes specific exceptions with respect to four categories of aliens, as provided in paragraphs (1) through (4) of 28 CFR 28.12(b).

The first exception, appearing in § 28.12(b)(1), is for aliens lawfully in, or being processed for lawful admission to, the United States. This reflects that the rule's objectives in relation to non-U.S. persons generally concern those implicated in illegal activity (including immigration violations) and not lawful visitors from other countries. See 73 FR at 74941.

The second exception, appearing in § 28.12(b)(2), is for aliens held at a port of entry during consideration of admissibility and not subject to further detention or proceedings. The second exception overlaps with the first and its rationale is similar. Lawful entrants from other countries may be regarded as detained when, for example, they are briefly held up at airports during routine processing or taken aside for secondary inspection. As with the first exception, when such entrants are not subject to further detention or proceedings, categorically requiring DNA-sample collection is not necessary to realize the rule's objectives.

The third exception, appearing in § 28.12(b)(3), is for aliens held in connection with maritime interdiction, because collecting DNA samples in maritime interdiction situations may be unnecessary and practically difficult or impossible.

This rule does not affect these three exceptions because the considerations supporting them have not changed since the issuance of the original rule in 2008.

The fourth exception, appearing in § 28.12(b)(4), is for other aliens, with respect to whom the Secretary of Homeland Security, in consultation with the Attorney General, determines that the collection of DNA samples is not feasible because of operational exigencies or resource limitations. This aspect of the current regulation is at odds with the treatment of all other Federal agencies, which may adopt exceptions to DNA-sample collection based on operational exigencies or resource limitations only with the Attorney General's approval. See 28 CFR 28.12(b). Nevertheless, the rule granted the Secretary of Homeland Security authority to make exceptions for certain aliens, recognizing that it might not be feasible to implement the general policy of DNA-sample collection immediately in relation to the whole class of immigration detainees, including the hundreds of thousands of illegal entrants who are taken into custody near the southwest border of the United States each year.

Then-Secretary of Homeland Security Janet A. Napolitano advised in a March 22, 2010, letter to then-Attorney General Eric H. Holder, Jr., that categorical DNA collection from aliens in this class was not feasible, on the grounds described in § 28.12(b)(4). However, subsequent developments have resulted in fundamental changes in the cost and ease of DNA-sample collection. DNA-sample collection from persons taken into or held in custody is no longer a novelty. Rather, pursuant to the mandate of § 28.12(b), it is now carried out as a routine booking measure, parallel to fingerprinting, by Federal agencies on a government-wide basis. The established DNA-collection procedures applied to persons arrested or held on criminal charges can likewise be applied to persons apprehended for immigration violations.

Accordingly, this rule removes the exemption authority of the Secretary of Homeland Security appearing in paragraph (b)(4) of § 28.12. The removal of that exemption authority does not preclude limitations and exceptions to the regulation's requirement to collect DNA samples, because of operational exigencies, resource limitations, or other grounds. But all such limitations and exceptions, beyond those appearing expressly in the regulation's remaining provisions, will require the approval of the Attorney General.

The Attorney General—exercising his plenary authority under the DNA Fingerprint Act of 2005 to authorize and direct DNA-sample collection by Federal agencies, and to permit limitations and exceptions thereto—will review DHS's capacity to implement DNA-sample collection from non-U.S. person detainees as required by the regulation. The Department of Justice will work with DHS to develop and implement a plan for DHS to phase in that collection over a reasonable timeframe.

The situation parallels that presented by the initial implementation of DNA-sample collection by other Federal agencies pursuant to 28 CFR 28.12. The regulatory requirements were not understood or applied to impose impossible obligations on the agencies to immediately collect DNA samples from all persons in their custody covered by the rule. Rather, the Department of Justice worked with the various agencies to implement the regulation's requirements in their operations without unnecessary delay, but in a manner consistent with the need to adjust policies and procedures, train personnel, establish necessary relationships with the Federal Bureau of Investigation (“FBI”) Laboratory regarding DNA-sample collection and analysis, and take other measures required for implementation.

Many considerations support the decision to repeal the § 28.12(b)(4) exception. As an initial observation, the original rulemaking recognized that distinguishing the treatment of criminal arrestees and immigration detainees with respect to DNA identification is largely artificial, in that most immigration detainees are held on the basis of conduct that is itself criminal. Aliens who are apprehended following illegal entry have likely committed crimes under the immigration laws, such as 8 U.S.C. 1325(a) and 1326, for which they can be prosecuted. “Hence, whether an alien in such circumstances is regarded as an arrestee or a (non-arrested) detainee may be a matter of characterization, and the aptness of one description or the other may shift over time, depending on the disposition or decision of prosecutors concerning the handling of the case.” 73 FR at 74939. The practical difference between criminal arrestees and immigration detainees, for purposes of DNA-sample collection, has been further eroded through policies favoring increased prosecution for immigration violations.

The underlying legal and policy considerations support consistent DNA identification of individuals in the two classes. At the broadest level, “[t]he advent of DNA technology is one of the most significant scientific advancements of our era,” having an “unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.” Maryland v. King, 569 U.S. 435, 442 (2013) (quotation marks omitted). DNA analysis “provides a powerful tool for human identification,” which “help[s] to bring the guilty to justice and protect the innocent, who might otherwise be wrongly suspected or accused.” 73 FR at 74933. “[T]hrough DNA matching,” it enables “a vast class of crimes [to] be solved.” 73 FR at 74934. The need for consistent application of DNA identification measures may be particularly compelling “in relation to aliens who are illegally present in the United States and detained pending removal,” because “prompt DNA-sample collection could be essential to the detection and solution of crimes they may have committed or may commit in the United States . . . before the individual's removal from the United States places him or her beyond the ready reach of the United States justice system.” 73 FR at 74934.

Regardless of whether individuals are deemed criminal arrestees or immigration detainees, the use of collected DNA samples is the same and has similar value. The DNA profiles the government derives from arrestee or detainee samples amount to sanitized “genetic fingerprints”—they can be used to identify an individual uniquely, but they do not disclose the individual's traits, disorders, or dispositions. The profiles are searched against the Combined DNA Index System (CODIS), which includes DNA profiles derived from biological residues left at crime scenes—for example, the DNA of a rapist secured in a sexual assault examination kit, or the DNA of a murderer found on an item he left or touched in committing the crime. A match to CODIS identifies the arrestee or detainee as the source of the crime-scene DNA and likely perpetrator of the offense. Equally for criminal arrestees and immigration detainees, the operation of the DNA identification system thereby furthers the interests of justice and public safety without compromising the interest in genetic privacy. See King, 569 U.S. at 442-46, 461-65; 73 FR at 74933, 74937-38.

For criminal arrestees and immigration detainees, the specific governmental interests supporting the use of the DNA technology are implicated in similar, if not identical, ways. One such interest is simply that of identification—“the need for law enforcement officers in a safe and accurate way to process and identify the persons . . . they must take into custody,” King, 569 U.S. at 449, which includes connecting the person “with his or her public persona, as reflected in records of his or her actions,” id. at 451. DNA is a “metric of identification” used to connect the individual to his “CODIS profile in outstanding cases,” which is functionally no different from the corresponding use of fingerprints, except for “the unparalleled accuracy DNA provides.” King, 569 U.S. at 451-52; see 73 FR at 74933-34, 74936-37.

A second governmental interest is the responsibility “law enforcement officers bear . . . for ensuring that the custody of an arrestee does not create inordinate risks for facility staff, for the existing detainee population, and for a new detainee.” King, 569 U.S. at 452 (quotation marks and citation omitted); see 73 FR at 74934 (noting use of DNA information in ensuring proper security measures for detainees). For example, a match between the DNA profile of a person in custody and DNA left by the apparent perpetrator at the site of a murder is important information that officers and agencies responsible for the person's custody should have, a consideration that applies equally whether the detention is premised on a criminal law violation or an immigration law violation.

Third, DNA identification informs the decision concerning continued detention or release, in the interest of ensuring that the individual will appear for future proceedings. In the criminal context this includes ensuring that an arrestee will appear for trial if released, and in the immigration context it includes ensuring that a detainee will appear for future proceedings relating to his immigration status if released. If DNA matching has shown or will show a connection between the person in custody and a crime for which he may be held to account if he has further contact with the justice system, the person's incentive to flee must be considered in deciding whether to continue the detention pending further proceedings. See King, 569 U.S. at 452-53 (“A person who . . . knows he has yet to answer for some past crime may be more inclined to flee.”).

Fourth, DNA identification informs the decision concerning continued detention or release, and necessary conditions if release is granted, in the interest of public safety. See King, 569 U.S. at 453 (“an arrestee's past conduct is essential to an assessment of the danger he poses to the public, and this will inform a . . . determination whether the individual should be released”); 73 FR at 74934 (DNA information “helps authorities to assess whether an individual may be released safely to the public . . . and to establish appropriate conditions for his release”). The results of DNA identification have the same significance for this purpose whether the person has been detained for criminal or immigration law reasons.

Fifth, DNA identification furthers the fundamental objectives of the criminal justice system, clearing innocent persons who might otherwise be wrongly suspected or accused by identifying the actual perpetrator, and helping to bring the guilty to justice. See King, 569 U.S. at 455-56; 73 FR at 74933-34. Here, too, it makes no difference whether the basis of the detention is suspected criminality or an immigration violation.

In this connection, consider the case of Raphael Resendez-Ramirez, the “Railway Killer,” who was executed in Texas in 2006. Resendez is believed to have committed numerous murders in the United States, including at least seven in the 1997-99 period, as well as additional murders in Mexico. Resendez was repeatedly taken into custody and repatriated to Mexico, including eight times between January 5, 1998 and June 1, 1999, and on earlier occasions going back to the 1970s. See U.S. Department of Justice, Office of the Inspector General, Special Report on the Raphael Resendez-Ramirez Case (March 20, 2000), https://oig.justice.gov/special/0003 (“Resendez Report”).

Suppose it had been possible on any occasion when Resendez was apprehended to take a DNA sample from him and match it to DNA evidence derived from any of his murders. The officers responsible for his custody would have been put on notice of his dangerousness upon receipt of the information, and he would have been held in custody for criminal proceedings rather than being released, thereby saving the lives of the victims he claimed thereafter.

This rule's removal of the authorized exception to DNA collection for certain detained aliens appearing in 28 CFR 28.12(b)(4) will help to ensure that future avoidable tragedies of this nature will in fact be avoided, and that DNA technology will be consistently utilized to further public safety and the interests of justice in relation to immigration detainees, as has long been the case in relation to criminal arrestees, defendants, and convicts in the Federal jurisdiction.

In addition to removing § 28.12(b)(4), the rule updates a citation in § 28.12(b), replacing “8 CFR 1.1(p)” with “8 CFR 1.2.”

The Department of Justice received over 41,000 comments on this rulemaking, most of which appear to derive from a website that solicited the submission of 40,000 comments (a number later increased to 50,000) and provided readers with suggested text. See American Civil Liberties Union, Forced DNA Collection, https://action.aclu.org/petition/no-forced-dna-collection (last visited Dec. 30, 2019). Comments were also received from other organizations and individuals. Having considered all comments, the Department of Justice has concluded that the amendments to the regulation in this rulemaking should be promulgated without change. The ensuing discussion summarizes the principal issues that were raised in the public comments.

Some comments supported broadened DNA collection from immigration detainees as furthering public safety, and some stated that detainees who are not involved in criminal activities have nothing to fear from such collection. A comment further stated that the benefits of the initiative should be maximized by using Rapid DNA technology, which allows DNA collection and analysis, and immediate CODIS entry and searching, to be carried out at the booking station.

The Rapid DNA Act of 2017, Public Law 115-50, which provides the legal basis for use of the Rapid DNA technology in CODIS, is being implemented by the FBI, currently as a pilot program. See 34 U.S.C. 12591(a)(5), 12592(b)(2)(B), 40702(b); see also King, 569 U.S. at 460 (noting progress toward more rapid DNA analysis). Once the Rapid DNA technology is ready for general use, the benefits will be realized with respect to both criminal arrestees and immigration detainees.

Many of the comments criticized this rulemaking as creating a new requirement of “forced” or involuntary DNA collection from migrants, including children over the age of 13 or even younger. Some of the comments broadly characterized the class of aliens who would be subject to this allegedly new requirement, claiming, for example, that it encompasses all migrants entering the United States at legal ports of entry and taken into custody, or claiming that it includes lawful foreign visitors and immigrants as well as persons detained for immigration violations.

This rulemaking does not contain any new DNA-sample collection mandate. As discussed above, the existing DNA regulation—which implements 34 U.S.C. 40702(a)(1)(A), and which has been in effect since January 9, 2009—has always required DNA-sample collection from non-U.S. persons detained under Federal authority, in addition to persons arrested, facing charges, or convicted. See 28 CFR 28.12; 73 FR at 74932. This rulemaking only strikes paragraph (b)(4) in the regulation, which affects the allocation of authority between the Attorney General and the Secretary of Homeland Security to allow exceptions to the DNA-sample collection requirement for certain aliens.

Neither the existing regulation nor the amendment made by this rulemaking prescribes age criteria for DNA-sample collection. The regulation generally allows Federal agencies to limit the collection of DNA samples to persons whom the agency fingerprints. See 28 CFR 28.12(b). If an agency limits fingerprinting to detainees above a certain age, DNA-sample collection may be correspondingly limited.

Neither the existing regulation nor the amendment made by this rulemaking require DNA-sample collection from the broad classes of persons suggested by some commenters. The requirement is generally limited to individuals who are detained and fingerprinted, and, in addition, paragraphs (b)(1) and (b)(2) in the regulation generally exempt lawful foreign visitors and immigrants from the DNA-sample collection requirement. The classes of persons subject to the regulation's DNA-sample collection requirement are further discussed below.

The commenters' reference to DNA-sample collection under the regulation as being “forced,” involuntary, or nonconsensual establishes no difference from other booking information. It is not left to the discretion of arrestees and detainees whether fingerprints, photographs, and biographical information are taken in booking. The same is true of taking a cheek swab for DNA. There is little substance to concerns about the use of force in this context because persons taken into custody generally cooperate in providing the required booking information—including fingerprints, photographs, and DNA samples—and because means other than the use of force normally suffice to secure cooperation in the rare instances involving recalcitrance. In relation to DNA-sample collection, in particular, 18 U.S.C. 3142(b), (c)(1)(A), makes cooperation in sample collection a mandatory condition of pretrial release, and 34 U.S.C. 40702(a)(5) makes refusal to cooperate in sample collection itself a criminal offense. Moreover, the Attorney General has issued directions to the U.S. Attorney's Offices, relating to situations in which an agency brings an individual to court without having collected a DNA sample because of non-cooperation by the individual, which further reduce the possibility that “forced” collection will be needed in any case. See Memorandum from Attorney General Eric H. Holder, Jr., DNA Sample Collection from Federal Arrestees and Detainees, at 2-3 (Nov. 18, 2010) (Attorney General DNA Memorandum), available at www.justice.gov/sites/default/files/ag/legacy/2010/11/19/ag-memo-dna-collection111810.pdf.

Some comments argued that the deletion of paragraph (b)(4) in 28 CFR 28.12 will sacrifice the unique expertise of DHS regarding its resources and operations in determining the scope of DNA-sample collection. However, as discussed above, the Attorney General will work with DHS, as he has done with other Federal agencies, in implementing the DNA-sample collection requirement of the regulation in a reasonable time frame and in a manner consistent with DHS's capacities. The expertise of DHS is fully available to the Attorney General in this collaboration. Some comments asserted that broader DNA-sample collection from immigration detainees will overburden DHS's already-strained resources. It should be understood that DNA-sample collection involves a modest expansion of booking procedures—taking a cheek swab for DNA in addition to the traditional biometrics of fingerprints and photographs. Since the existing regulation took effect in 2009, Federal agencies have successfully integrated this additional biometric into their standard booking procedures on a government-wide basis, without heavy budgetary impact or undue strain on their resources. The remaining major gap in implementation of the DNA Fingerprint Act of 2005 and the existing regulation is incomplete DNA-sample collection by DHS components from non-U.S.-person detainees. The Attorney General will work with DHS, as he has done with other Federal agencies that have implemented the regulation's DNA-sample collection requirement with respect to persons in their custody, to ensure that any expansion of DNA-sample collection from non-U.S. persons in DHS's custody will be effected in an orderly manner consistent with DHS's capacities.

Some comments asserted that the change made by this rulemaking will immediately require DHS to collect DNA from all persons in its custody who have previously been exempted pursuant to paragraph (b)(4) of the existing regulation. This concern is not well founded because the Attorney General retains the authority to allow exceptions from and limitations to the DNA-sample collection requirement, see 28 CFR 28.12(b), and the Attorney General will work with DHS in implementing any expansion of DNA-sample collection in a reasonable time frame and in a manner consistent with DHS's capacities, as he has done with other Federal agencies.

Some comments suggested that DHS personnel, and U.S. Customs and Border Protection (CBP) agents in particular, are incompetent to collect DNA samples in an effective and safe manner. The comments also argued that U.S. Border Patrol agents should have made better use of other identification systems (including fingerprints) in the Resendez case, which is discussed above to illustrate the potential benefits of DNA identification measures.

The collection of cheek swabs for DNA from persons in custody, utilizing sample collection kits provided by the FBI, requires no extraordinary skills beyond the capacity of Federal agents, including CBP agents, who book persons in custody. The point is demonstrated by the numerous agencies throughout the Federal government that have collected DNA samples from persons in custody as a routine booking measure for many years. See, e.g., Attorney General DNA Memorandum at 1-2 (noting that the “principal investigative agencies of the Department of Justice” had implemented DNA-sample collection as of 2010); see also U.S. Department of Defense, Instruction No. 5505.14 (Dec. 22, 2015) (reissuing Instruction of May 27, 2010) (directing DNA-sample collection in criminal investigations). The FBI will provide training assistance to CBP as needed, as it has done for other Federal agencies that have implemented DNA-sample collection.

The availability of fingerprint-based identification systems does not obviate the need for or value of DNA-sample collection. Many crimes can be solved or prevented through the use of DNA identification that cannot be solved or prevented through the use of fingerprints alone. See 73 FR at 74933-34. As discussed above, DNA identification measures, had they been available, could have saved the lives of victims of Resendez, who did not leave the fingerprints that ultimately led to his apprehension until a murder committed in December 1998, but who left DNA evidence in a number of his other crimes, including a murder and sexual assault committed in August 1997. See Resendez Report at Chapter IV.A, App'x E; Resendiz v. State, 112 SW3d 541, 543-44 (Tex. Crim. App. 2003); Holly K. Dunn, Sole Survivor: The Inspiring True Story of Coming Face to Face with the Infamous Railroad Killer 8, 39-40, 98, 139-46, 174-76 (2017); DNA Tests Reportedly Link Suspect to Railway Killer Slayings, CNN, July 20, 1999, http://www.cnn.com/US/9907/20/railway.killings/.

Some comments objected that CBP line agents will be vested with discretion regarding DNA-sample collection. The regulation and this rulemaking create no such discretion. To the extent that agents exercise discretion or judgment in deciding who to detain on immigration grounds, that affects who will have booking information taken incident to detention—a point that applies equally to all types of booking information, including fingerprints and photographs as well as DNA. This is not a reason to refrain from the lawful collection of fingerprints and photographs, and it is not a reason to refrain from the lawful collection of DNA samples.

Another comment asserted that the proposed rule was deficient because it did not take into account a letter of August 21, 2019, from U.S. Special Counsel Henry J. Kerner to the President. However, that letter contained nothing that calls into question the basis for the amendment made by this rulemaking. Rather, it criticized DHS for failing to implement DNA-sample collection as authorized by the DNA Fingerprint Act of 2005. When this rulemaking was undertaken, the Special Counsel released a public statement of support, stating that the rule “will bring more expeditious justice for victims and will help get criminals off the streets.” U.S. Office of Special Counsel, Special Counsel Applauds Rule To Initiate DNA Collection from Undocumented Criminal Detainees (Oct. 2019), https://osc.gov/News/Pages/20-01-Initiate-DNA-Collection.aspx.

Some comments argued that DNA-sample collection from immigration detainees will have adverse consequences because it will deter migration to the United States, and some comments argued that it will not realize expected benefits because it will not deter migration to the United States. The comments on both sides misconceive the nature and purposes of the DNA identification system. The DNA-sample-collection requirement of 28 CFR 28.12 for non-U.S.-person detainees was not adopted as a deterrent to immigration. As discussed above, it serves governmental interests paralleling those served by DNA-sample collection from arrestees, including identification of persons in custody, facilitating safe and secure custody, informing decisions concerning detention and release pending further proceedings, clearing the innocent, and bringing the guilty to justice. As with fingerprinting and photographing of detainees, there is no deterrent purpose, or likely deterrent effect, with respect to persons lawfully entering or remaining in the United States. Paragraphs (b)(1) and (b)(2) of the regulation, which this rulemaking does not change, generally exclude lawful foreign visitors and immigrants from the DNA-sample-collection requirement.

Some comments argued that there is no benefit to DNA sample collection from non-U.S.-person detainees because they are subject to fingerprinting and other (non-DNA) identification measures. The objection is specious because “DNA analysis offers a critical complement to fingerprint analysis in the many cases in which perpetrators of crimes leave no recoverable fingerprints but leave biological residues at the crime scene.” 73 FR at 74933-34. Consequently, “there is a vast class of crimes that can be solved through DNA matching that could not be solved . . . if the biometric identification information collected from individuals were limited to fingerprints.” Id. at 74934.

Some comments asserted that DNA-sample collection from immigration detainees is unjustified because crime rates among immigrants generally, or among illegal immigrants in particular, are lower than those for citizens. Whatever may be assumed about the crime rate of persons subject to the regulation's DNA-sample collection requirement, it does not follow that DNA-sample collection from this class is unjustified. The regulation does not attempt to divide arrestees and detainees into subclasses, and limit DNA collection to subclasses found to have a statistical probability of criminality above some threshold. Rather, paralleling the policy for fingerprinting and photographing, the regulation categorically requires DNA-sample collection from persons in the covered classes, which maximizes its value in promoting public safety and the other governmental interests supporting DNA-sample collection.

Some comments objected to the fiscal costs of expanded DNA-sample collection from immigration detainees, expressing concern that the detainees would bear the cost of DNA-sample collection, and pointing to cost estimates for certain potential expenditures in this rulemaking and other costs involved in the operation of the DNA identification system.

Arrestees and detainees subject to the regulation do not bear the cost of DNA-sample collection. As with the collection of other forms of booking information, including fingerprints and photographs, the cost is borne by the Federal government.

As discussed above, this rulemaking does not require DHS to expand DNA-sample collection. It reallocates authority from the Secretary of Homeland Security to the Attorney General with respect to adopting exceptions for certain aliens from the DNA-sample collection requirement. As such, it does not impose any costs. Future implementation decisions to collect DNA samples more broadly from non-U.S.-person detainees would entail certain costs, but that is equally true whether those decisions are made under the existing regulation or under the regulation as amended by this rulemaking.

A regulatory certification in this rulemaking, appearing below, discusses hypothetically costs that could result from future implementation decisions, including detailing projected costs on the assumption that collection of about 748,000 additional samples annually would be phased in over a 3-year period. The projected costs for DHS on this assumption, based on additional work hours, would be about $5.1 million in that 3-year period. Actual costs will depend on future implementation decisions and, as noted above, the Attorney General would work with DHS to phase in any expanded DNA-sample collection in a reasonable timeframe and in a manner consistent with DHS's capacities. The regulatory certification also projects FBI costs for providing additional DNA-sample collection kits on the same assumptions, which would include $4,024,240 to collect 748,000 samples in a year. The comments note additional costs that would be borne by the FBI, rather than DHS, including postage to send the collected DNA samples to the FBI for analysis, the costs of storing and analyzing the samples, and the costs of operating the DNA database. The Department of Justice is cognizant of these potential costs and the FBI is prepared to expand its operations as needed for these purposes.

Some comments argued that DNA sample collection from immigration detainees will have little or no benefit because initial entrants to the United States cannot have previously committed crimes within the United States, so there could not be crime-scene DNA evidence that would match to their DNA profiles. However, the DNA-sample collection requirement for non-U.S.-person detainees is not limited to initial entrants. It includes as well immigration detainees who have previously been in the United States or who have had a continuing presence in the United States for some time. Nor is there any consistent means of determining reliably at the time an immigration detainee is booked that he has not been in the United States before and hence could not have committed a crime here in the past. Regardless of whether an immigration detainee, at the time he is booked, has previously committed a crime in the United States, the benefits of DNA-sample collection include the creation of a permanent DNA record that may match to DNA evidence from a later crime, if the detainee remains in or later reenters the United States and commits such a crime. The function of CODIS in this regard with respect to immigration detainees is the same as its function with respect to criminal arrestees, who may not have committed a crime solvable through DNA matching when initially booked but who may commit such crimes in the future. It also parallels the use of fingerprints, which may solve subsequent crimes through database matching to crime-scene evidence, regardless of whether there is an immediate hit upon the fingerprints' initial entry into the system.

Some comments asserted that funds expended for DNA-sample collection from immigration detainees would more productively be applied to other uses, such as analysis of backlogged rape kits, providing better services or amenities for immigration detainees, or eliminating the poverty that causes crime. Analysis of the perpetrator's DNA in a rape kit will not solve the crime unless the perpetrator's DNA profile has been entered into CODIS. The effective operation of CODIS requires that the DNA database be well populated on both ends— DNA profiles of arrestees and detainees, and DNA profiles from crime-scene evidence. The Attorney General has committed to implementing any expansion of DNA-sample collection from immigration detainees in a manner consistent with DHS's capacities, which will ensure that there will be no diversion of funds necessary for the custody and care of immigration detainees. Diversion of the funding needed for the collection and use of biometric information from arrestees and detainees, such as fingerprints and DNA information, would not go far towards eliminating poverty or other social ills, but it would impair public safety and the effective operation of the justice system by depriving it of important information needed for these purposes.

Some comments asserted that DNA-sample collection from immigration detainees will stigmatize and vilify migrants and treat them as threats and criminals. There is no such purpose or effect. DNA-sample collection, like fingerprinting and photographing, is simply a biometric information collection measure serving legitimate law enforcement identification purposes. Nor is there any reason to believe that taking a cheek swab for DNA is stigmatizing in a way that taking other biometric information is not. See King, 569 U.S. at 464 (“a swab of this nature does not increase the indignity already attendant to normal incidents of arrest”).

A comment asserted that issuance of this final rule must be delayed pending the preparation of a federalism assessment, because expanding DNA collection from immigration detainees may indirectly affect some States' interaction with CODIS. However, this rulemaking only adjusts the allocation of authority within the Executive Branch of the Federal government regarding the exemption of certain aliens from the DNA-sample collection requirement. The Executive Order 13132 regulatory certification below accurately states that this rulemaking 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.

A comment suggested striking paragraph (b)(3) of 28 CFR 28.12, relating to maritime interdiction situations, on the ground that DNA-sample collection may now be feasible in such situations using Rapid DNA technology. The recommendation is not addressed in the present rulemaking because the Rapid DNA technology is not yet ready for general use and because the comment did not persuasively establish that paragraph (b)(3) should be stricken, even if the Rapid DNA technology becomes widely available. Notwithstanding paragraph (b)(3), the Secretary of Homeland Security has authority to direct DNA-sample collection in maritime interdiction situations, should he deem that to be warranted. See 28 CFR 28.12(b).

Some comments asserted that collection of DNA samples from non-U.S.-person detainees in conformity with the regulation will adversely affect certain rights or interests of such persons. We address the comments according to the particular right or interest they allege that this rulemaking implicates.

Privacy: Comments relating to privacy rights often stated that DNA-sample collection will harm detainees by disclosing sensitive genetic information, through the storage of DNA information in insecure databases or in some other manner. The comments asserted that this will result in discrimination, immigration enforcement actions, and violence against the detainees and their relatives. These concerns are not well founded because the DNA information obtained from detainees is subject to the privacy and use restrictions of CODIS. The DNA samples are kept in secure storage by the FBI. See 73 FR at 74938. The DNA profiles are kept separately in a secure FBI database. Even if it were possible to gain unauthorized access to the DNA profile database, that database contains “[n]o personally identifiable information relating to the donor, such as name, date of birth, social security number, or criminal history record number” that would enable linking included DNA profiles to individuals. See FBI Laboratory, National DNA Index System (NDIS) Operational Procedures Manual, sec. 3.1.3 (Apr. 8, 2019), available at https://www.fbi.gov/file-repository/ndis-operational-procedures-manual.pdf. The authorized use of individuals' DNA profiles in the database is matching to forensic (crime-scene) DNA profiles. The information is not used, and cannot be used, to discriminate against any person or class, to target individuals for immigration enforcement action for reasons other than CODIS matches implicating them in criminal activity, or to target individuals for violence. Some comments' projection of adverse effects on relatives of detainees may reflect misunderstandings of the nature of, and the policies regarding, “familial searching” and partial matches, a matter that was explained in the rulemaking for the existing regulation. See 73 FR at 74938.

Fourth Amendment: Some comments argued that categorically collecting DNA samples from immigration detainees violates the constitutional prohibition of unreasonable searches and seizures. As discussed above, however, DNA-sample collection from immigration detainees is, like fingerprinting, a reasonable search under the Fourth Amendment. This is so because the governmental interests served by such collection parallel those adequate to support DNA-sample collection from arrestees, and because the privacy protections and other safeguards of CODIS are equally applicable. The method of collection for DNA samples—a cheek swab—is a non-injurious and minor imposition. See King, 569 U.S. at 461, 463-64. The Supreme Court's Fourth Amendment analysis in King is not a good-for-this-case-only analysis, limited to DNA identification programs that track the specific characteristics of the Maryland system at issue in that case. Rather, as courts have recognized, King provides a more generally applicable analysis. See, e.g., Haskell v. Brown, 317 F.Supp.3d 1095, 1103-11 (N.D. Cal. 2018) (rejecting argument that King does not apply with respect to arrestee in California because of differences between California law and Maryland law); People v. Buza, 413 P.3d 1132, 1139-45 (Cal. 2018) (same); State v. Lancaster, 373 P.3d 655, 660-61 (Colo. App. 2015) (rejecting argument that King does not apply with respect to arrestee in Colorado because of differences between Colorado law and Maryland law). King' s analysis likewise confirms the consistency of DNA-sample collection from non-U.S.-person detainees with the Fourth Amendment, as authorized by the statute and regulation, for the reasons discussed above.

Fifth Amendment: Some comments argued that DNA-sample collection from non-U.S.-person detainees in conformity with the regulation is inconsistent with the constitutional right against compelled self-incrimination. This objection is not well-founded because, like fingerprinting, photographing, and other “act[s] of exhibiting . . . physical characteristics,” DNA-sample collection is non-testimonial in character. United States v. Hubbell, 530 U.S. 27, 34-35 (2000); see Pennsylvania v. Muniz, 496 U.S. 582, 591-92 (1990); Holt v. United States, 218 U.S. 245, 252-53 (1910); see also Kammerling v. Lappin, 553 F.3d 669, 686 (D.C. Cir. 2008) (“a DNA sample is not a testimonial communication subject to the protections of the Fifth Amendment”); Wilson v. Collins, 517 F.3d 421, 431 (6th Cir. 2008) (same); United States v. Reynard, 473 F.3d 1008, 1021 (9th Cir. 2007) (same); United States v. Hook, 471 F.3d 766, 773-74 (7th Cir. 2006) (same); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1996) (same).

Due Process: Commenters who raised due process objections appeared to believe that a DNA sample cannot be collected from an arrestee or detainee without an adjudicatory or quasi-adjudicatory process, or some quantum of suspicion, regarding the individual's involvement in criminal activity. However, the DNA Fingerprint Act of 2005 and its implementing regulation provide for the collection of DNA samples from persons in the relevant classes on a categorical basis, not dependent on an individualized assessment of dangerousness or propensity for crime. Since questions of individual criminal propensity are “not material to the . . . statutory scheme” as implemented by the regulation, there is no valid due process objection to the system's operation. Connecticut Dep't of Public Safety v. Doe, 538 U.S. 1, 7-8 (2003).

Presumption of Innocence: The presumption of innocence is the principle that a person cannot be convicted for a crime except upon proof through evidence presented at trial. See, e.g., Bell v. Wolfish, 441 U.S. 520, 533 (1979). DNA-sample collection does not conflict with this principle because it does not relate to the trial process and does not convict or punish anyone for anything. Nor does it presuppose or imply that a person from whom DNA is collected is a criminal. Rather, like fingerprinting and photographing, it is a biometric identification measure that is justified when the standards for arrest or detention are satisfied. See 73 FR at 74936-37, 74938-39.

Equal Protection: Some comments asserted that DNA-sample collection from immigration detainees in conformity with the regulation constitutes invidious discrimination based on national origin or alienage, or that it is objectionable because racial and ethnic minorities are overrepresented in DNA databases and collecting DNA samples from immigration detainees will aggravate the disproportion. However, the regulation neutrally requires DNA-sample collection from non-U.S.-person detainees without regard to national origin, race, or other demographic characteristics. Regarding alienage, aliens are necessarily treated differently from citizens in some respects, because aliens do not have the unqualified right of citizens to enter and remain in the United States. Hence, aliens may be detained for reasons relating to their eligibility to enter or stay in the country, and identification information, such as fingerprints and photographs, may lawfully be taken incident to the detention. The point applies equally to DNA-sample collection. The ethnic and racial proportions in the DNA databases parallel the representation of demographic groups among the persons from whom DNA samples are collected, just as the ethnic and racial proportions in the fingerprint databases parallel the representation of demographic groups among the persons from whom fingerprints are collected. “The resulting proportions in either case provide no reason to refrain from taking biometric information” from individuals in any demographic group. 73 FR at 74937. Rather, consistent with Congress's purposes in the DNA Fingerprint Act of 2005, and the purposes of its implementing regulation, a uniform policy of DNA-sample collection provides valuable information “whose use for law enforcement identification purposes will help to protect individuals in all racial, ethnic, and other demographic groups from criminal victimization.” Id.

Cruel and Unusual Punishment: Another comment asserted that DNA-sample collection is cruel and unusual punishment. However, DNA-sample collection from arrestees and detainees as required by the regulation is not cruel and unusual punishment under the Eighth Amendment because it is not punishment at all. It is a non-punitive biometric identification measure, like fingerprinting and photographing. As noted above, taking a cheek swab for DNA is a non-injurious and minor imposition. See King, 569 U.S. at 461, 463-64.

Prolonged Detention: Some comments asserted that DNA-sample collection from immigration detainees will result in their being quarantined while in custody, because they will not be housed with the general detainee population until CODIS searches of their DNA profiles are carried out, and that DNA-sample collection from immigration detainees will prolong their detention, because they will not be released until CODIS searches of their DNA profiles are carried out. No such policies or practices have been adopted by the Federal agencies that have for many years collected DNA samples from persons in their custody, however, and none are expected with respect to immigration detainees from whom DNA samples may be collected by DHS.

Effect on Innocent Persons: Some comments argued that DNA-sample collection will wrongly implicate innocent persons in crimes because, for example, a person's DNA left at the scene of a crime he did not commit may be mistaken for DNA from the perpetrator. But fingerprint identification may likewise implicate an innocent person in a crime committed by another because he left fingerprints at the scene of the crime. The possibility of such mishaps does not warrant eschewing the use of either fingerprints or DNA, but rather is outweighed by the great value of biometric identification information, including fingerprints and DNA, in bringing the guilty to justice and in clearing the innocent by identifying the actual perpetrator. Moreover, both fingerprint and DNA matches are not taken as conclusive evidence of guilt. Rather, they are used as investigative leads, and the need remains to establish guilt by proof beyond a reasonable doubt. There were also comments opposing expanded DNA collection on the view that enlarging the DNA database will impair its operation and increase the likelihood of false matches. However, the DNA database maintained by the FBI is constantly expanding through the flow of additional profiles from DNA samples collected by Federal, State, and local agencies. The design of the DNA identification system is sufficiently discriminating that an increase in the number of profiles “does not create a risk to the innocent of the sort that concerns these commenters, just as the increase in the number of fingerprints in criminal justice databases does not create a significant risk of innocent persons being implicated in crimes.” 73 FR at 74937.

Effects on Citizens: Some comments argued that DNA samples should not be collected from immigration detainees because citizens may be detained on the mistaken assumption that they are aliens without lawful immigration status. In such a case, the citizen may be subjected to the normal booking procedure, including fingerprinting and photographing. The possibility of such mishaps does not warrant eschewing the fingerprinting and photographing of immigration detainees, however, and the same point applies to collecting DNA samples. See 73 FR at 74938-39.

Medical Privacy and Ethics: Some comments asserted that DNA-sample collection in conformity with 28 CFR 28.12 violates medical privacy laws and medical ethics standards requiring informed consent. These comments are not well-founded because collection of DNA information from arrestees and detainees and its use in CODIS are not measures of medical diagnosis or treatment. They are law enforcement identification measures, comparable to fingerprints and photographs taken in booking, whose collection is not contingent on whether the person from whom they are collected wishes to provide them. The legal standards and design of CODIS provide other adequate assurances against compromises of genetic privacy, as discussed above.

Some comments argued that DNA samples should not be collected from immigration detainees based on international law and experience in other countries. We address the comments according to the particular concerns they express.

Refugee Convention: Some comments asserted that DNA-sample collection from immigration detainees would violate an international convention's strictures against punishing or denying admission to refugees. The claim of treaty violations is groundless because DNA-sample collection, like fingerprinting and photographing, does not punish anyone for anything and does not prevent anyone from lawfully entering the United States.

Foreign Misuse of DNA: Some comments objected to DNA-sample collection based on misuse of biometric information databases, including DNA information, in other countries. However, misuse of biometric information databases by foreign governments is irrelevant to the United States' collection and use of DNA information in conformity with the legal standards and design of CODIS, which adequately protect against misuse of such information.

S. and Marper v. United Kingdom: Some comments argued against DNA-sample collection based on the decision of the European Court of Human Rights in S. and Marper v. United Kingdom, 48 Eur. Ct. H.R. 50 (2008). The decision in Marper overruled well-reasoned United Kingdom precedent upholding the retention of fingerprint and DNA records and required the United Kingdom to adopt more restrictive policies regarding the retention of such records. Marper is irrelevant to the subject of this rulemaking because it concerned the retention of fingerprint and DNA information, not the question whether and from whom fingerprint and DNA information can be collected in the first place. It is also not germane to the interpretation of U.S. law, but rather is contrary to the laws of the United States, which impose no comparable restrictions on the retention of criminal history records, including fingerprint and DNA records.

Decriminalizing Immigration Violations: Some comments argued against DNA-sample collection from immigration detainees based on a recommendation under United Nations auspices to decriminalize immigration violations. This recommendation is irrelevant to the subject of this rulemaking because DNA-sample collection from immigration detainees does not criminalize any immigration violation. Also, 28 CFR 28.12(b) generally requires DNA-sample collection from non-U.S.-person detainees, regardless of whether the immigration violations for which they are detained are crimes or only civil violations.

Interpol Requests: Some comments objected that foreign governments may seek DNA information, through Interpol requests, for oppressive purposes. One could say just as well that foreign governments may seek through Interpol other types of information, such as fingerprints and photographs, for oppressive purposes. The United States does not comply with such requests if it believes that they are made for oppressive or improper purposes. The possibility of such requests does not imply that DNA samples should not be collected from immigration detainees or others, just as it does not imply that fingerprints and photographs should not be collected from immigration detainees or others.

Some comments objected that this rulemaking is not sufficiently clear about what persons are subject to DNA-sample collection. Some even claimed that it is unclear whether lawful permanent resident aliens are included in the DNA-sample collection requirement for non-U.S.-person detainees, though the regulation explicitly says that they are not. See 28 CFR 28.12(b). These comments are not well founded because the existing regulation, 28 CFR 28.12, identifies the classes subject to DNA-sample collection. The only change made by this rulemaking is an adjustment in the allocation of authority between the Attorney General and the Secretary of Homeland Security to adopt exceptions from the DNA-sample collection requirement with respect to certain aliens.

Some comments objected to the potential collection of DNA samples from asylum-seekers, some of whom will ultimately be found eligible for admission to the United States, and asked why such persons are not categorically excluded from the DNA-sample collection requirement by paragraph (b)(1) of the regulation, which exempts “[a]liens lawfully in, or being processed for lawful admission to, the United States.” 28 CFR 28.12(b)(1). Paragraphs (b)(1) and (b)(2) generally exclude lawful foreign visitors and immigrants from the DNA-sample collection requirement. They do not exclude detained aliens whose legal eligibility to enter or stay in the United States remains to be determined in future proceedings. Such aliens fully implicate the governmental interests supporting DNA-sample collection, including identification of persons in custody, the interest in safe and secure custody for detained persons, and informing decisions concerning release or detention pending further proceedings. See King, 569 U.S. at 450-56.

Some commenters claimed that DNA-sample collection from immigration detainees would lead to mass surveillance or surveillance of the whole population. Collection of DNA samples from immigration detainees would not lead to collection of DNA samples from the whole population, just as collection of fingerprints from such persons has not led to the collection of fingerprints from the whole population. Collecting DNA samples from persons within the scope of the rule would serve governmental interests going beyond those applicable to the general population, including identification of persons in custody, the interest in safe and secure custody for detained persons, and informing decisions concerning release or detention pending further proceedings. The use of DNA information collected from arrestees and detainees that is entered into CODIS is matching to forensic (crime-scene) DNA profiles. The information is not used, and cannot be used, for “surveillance.”

Some comments objected that DNA samples will be collected from individuals whose underlying offenses are too minor to warrant DNA-sample collection, or whose detention is based on civil immigration violations, such as visa overstays, rather than any criminal activity. Again, this rulemaking only reallocates authority within the Executive Branch to recognize exemptions from the existing DNA-sample collection requirement. The existing regulation does not limit DNA-sample collection to persons whose underlying offenses exceed some threshold of seriousness, but rather parallels the categorical approach of fingerprinting all arrestees and detainees in the affected classes, which maximizes its value in solving crimes and furthering the other governmental interests supporting DNA-sample collection. See 73 FR at 74937. There is also no valid objection based on the fact that detainees may be held on the basis of civil immigration violations rather than suspected criminal activity. As discussed above, the governmental interests supporting DNA-sample collection from such persons parallel those supporting DNA-sample collection from criminal arrestees, and they equally enjoy the protection of the legal standards and design of CODIS in safeguarding their privacy and precluding misuse of the information.

Some of the commenters complained that this rulemaking is unclear about matters of DNA identification procedure, such as storage of, access to, and retention, disposal, and expungement of DNA samples and profiles. In some instances, the comments proposed specific measures, such as disposing of DNA samples once a profile has been derived, and disposing of DNA profiles if there is not an immediate hit in CODIS.

The matters these comments raise are fully and adequately addressed in the existing legal standards and design of CODIS, which are beyond the scope of this rulemaking and are not changed in any manner by this rulemaking. The specific new measures proposed in the comments are not well founded and would undermine the system. For example, there are legitimate reasons for retaining DNA samples after the profiles have been derived. See 73 FR at 74938. Likewise, the functions of CODIS are not limited to determining, when an arrestee or detainee's profile is initially searched against CODIS, whether he is the source of DNA found at the scene of a past crime. CODIS's functions, parallel to those of the fingerprint databases, also include creating a permanent DNA record for the individual, to which a match may result if he later commits a murder, rape, or other crime and DNA from that offense is searched against CODIS. The latter critical function would be lost if DNA profiles were expunged whenever there is not a hit upon their initial entry into CODIS.

Some comments criticized DHS's use of DNA testing to confirm or rule out family relationships in other contexts, where such relationships may bear on individuals' eligibility to enter or remain in the United States. The referenced uses of DNA testing by DHS have nothing to do with 28 CFR 28.12 and this rulemaking, which concern a different type of analysis and use of DNA information that is unrelated to ascertaining family relationships, i.e., the use of DNA information in CODIS for law enforcement identification purposes. Consequently, these comments' criticisms of unrelated uses of DNA testing for different purposes are irrelevant to this rulemaking.

Some comments criticized the 20-day period provided for public comment in this rulemaking, stating that it provided inadequate notice and opportunity for comment, and inadequate time for consultation and planning with DHS.

A 20-day comment period was deemed adequate because the change effected by this rulemaking is limited. The rulemaking affects only the allocation of authority within the Executive Branch of the Federal government regarding the exemption of certain aliens from the regulation's DNA-sample collection requirement. Specifically, by removing paragraph (b)(4) of 28 CFR 28.12, the rulemaking vests fully in the Attorney General authority that was previously shared between the Attorney General and the Secretary of Homeland Security. As discussed above, this does not create any new DNA-sample collection requirement. That requirement has been present in the existing rule since it took effect on January 9, 2009, including the requirement to collect DNA samples from non-U.S. persons detained under Federal authority. See 28 CFR 28.12(b). Public comments were solicited and received when the existing regulation was issued. See 73 FR at 74936-41.

The volume and substance of the comments received on the current rulemaking confirm that the 20-day comment period was adequate. The comments received do not indicate that interested members of the public lacked sufficient notice or an adequate opportunity to express their views regarding this rulemaking. Nor do the comments indicate that commenters could have provided significant additional input or information affecting this rulemaking had the comment period been longer.

Some commenters mistakenly believed that the 20-day comment period was unlawful, on the view that 5 U.S.C. 553(c)-(d) requires a public comment period of at least 30 days. The cited statutory provision, however, requires that the effectiveness of a rule be delayed for 30 days after its publication, a requirement that is complied with in this final rule. The provision does not concern the duration of public comment periods.

The objection concerning inadequate time for consultation and planning with DHS misunderstands the collaboration between the Department of Justice and DHS. That collaboration is ongoing and will continue after the issuance of this final rule, just as the Department of Justice continued to work with other Federal agencies on implementation of the existing regulation after it took effect on January 9, 2009.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation would not have a significant economic impact on a substantial number of small entities because it concerns Federal agencies' collection of DNA samples from certain aliens.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation, and Executive Order 13563, “Improving Regulation and Regulatory Review.” The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f).

This rule strikes paragraph (b)(4) of 28 CFR 28.12, which authorizes the Secretary of Homeland Security to exempt certain aliens from DNA-sample collection based on operational exigencies or resource limitations. Following the change, the decision regarding limitations and exceptions to DNA-sample collection from persons in the affected class will be fully vested in the Attorney General.

This rulemaking is not subject to the requirements of Executive Order 13771 because any future costs of DNA-sample collection following this change in decision-making authority will be the same as the costs of DNA-sample collection pursuant to the existing regulation, subject to whatever limitations or exceptions the decision-maker chooses to allow. In other words, while future implementation decisions under 28 CFR 28.12 to collect DNA more broadly may entail costs, these costs could equally be realized under the current text of the regulation and do not result from this rulemaking's change in the regulation. Fully vesting the authority regarding limitations and exceptions to the regulation's DNA-sample collection requirement in the Attorney General does not determine whether or to what extent limitations or exceptions will be adopted, and does not dictate any time frame for implementation of DNA-sample collection with respect to aliens in the affected class. The Attorney General will work with DHS, as he has done with other Federal agencies that have heretofore implemented DNA collection from persons in their custody, to ensure that any expansion of DNA-sample collection from such aliens will be effected in an orderly manner consistent with DHS's capacities.

For example, if DNA-sample collection were implemented in full with respect to aliens in the category implicated by 28 CFR 28.12(b)(4), pursuant either to the Secretary of Homeland Security's direction under the current text of the regulation, or the Attorney General's direction following the amendment of the regulation by this rulemaking, there would be the same implementation costs. The Department of Justice assumes in analyzing these costs that any such expansion of DNA-sample collection would be phased in over the first three years and that DHS would utilize the Electronic Data Capture Project (EDCP). EDCP is a project designed to improve efficiencies by reducing the number of duplicate DNA samples collected by Federal agencies and by eliminating the manual collection of biographical data and inked fingerprints at the time of booking, by utilizing the information already electronically collected at the time of booking. This capability is estimated to reduce the time of DNA collection from approximately 15 minutes to less than 5 minutes. To obtain the EDCP technology, integrate it into their booking software, and create a training program for their staff, DHS would incur a total one-time cost of $500,000.

Approximately 743,000 people fell into the category implicated by 28 CFR 28.12(b)(4) in a recent 12-month period, which is equivalent to approximately 755,000 samples, once repeated samples (due to rejection of initial samples) are considered. DHS submitted nearly 7,000 samples in FY2018. Therefore, assuming the population subject to DNA-sample collection under the rule remains at this level, DHS would be expected to submit an additional 748,000 samples annually.

Utilizing EDCP, DHS would require approximately 20,778 additional work hours in the first year, 41,556 hours in the second year, and 62,333 hours in the third year to collect the additional samples. Using average compensation for CBP employees stationed along the southern border, the total cost to DHS with the EDCP software would be about $5.1 million in the first three years. If future implementation decisions or changes in the volume of apprehensions ultimately resulted in annual submission of a number of additional DNA samples less than or greater than 748,000, required work hours and resulting costs would be reduced or increased correspondingly.

The FBI would also need to provide additional DNA-sample collection kits, at a per-kit cost of $5.38, in sufficient numbers to collect samples at the volumes described above. For example, assuming a 3-year phase-in period with an additional third of the eligible population added in each successive year, the additional sample-collection kit costs to the FBI would be $1,341,413 to collect 249,333 samples in the first year, $2,682,827 to collect 498,667 samples in the second year, and $4,024,240 to collect 748,000 samples in the third year. The FBI will provide to DHS, without charge, the same services that it provides to other Federal agencies that collect DNA samples, including assistance with regard to training, DNA-sample collection kits, postage to return the collected samples, analysis of samples, inclusion in CODIS, and handling resulting matches.

This regulation 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. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

Accordingly, for the reasons stated in the preamble, part 28 of chapter I of title 28 of the Code of Federal Regulations is amended as follows:

Table of Contents for Preamble I. Abbreviations II. Basis and Purpose, and Regulatory History III. Executive Summary IV. Discussion of Comments and Developments A. Confusion Relating to the Difference Between “CDC Facilities” and “Facilities That Handle CDC in Bulk” B. Concerns Relating to the Effectiveness of Electronic TWIC Inspection C. Concerns Regarding Partial Implementation of the TWIC Reader Rule D. Problems Estimating the Total Cost of Implementation of the Electronic TWIC Inspection Requirement E. Use of Electronic TWIC Inspection at Passenger Facilities and Vessels F. Miscellaneous Comments G. Comments on the Regulatory Analysis 1. Comments on the Total Cost of the TWIC Reader Rule 2. Comments on the Economic Impact of the Rules 3. Comments on the Use of the TWIC Pilot Program Data 4. Comments on Collecting New Cost Data H. Conclusion V. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates Reform Act G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment I. Abbreviations ANPRM Advanced notice of proposed rulemaking CDC Certain Dangerous Cargoes CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security GDP Gross Domestic Product FSO Facility Security Officer FSP Facility Security Plan FR Federal Register GAO Government Accountability Office HSI Homeland Security Institute HSOAC Homeland Security Operational Analysis Center MSRAM Maritime Security Risk Analysis Model MTSA Maritime Transportation Security Act of 2002 NPRM Notice of proposed rulemaking OIG Office of the Inspector General OMB Office of Management and Budget PAC Policy Advisory Council PACS Physical access control system RA Regulatory analysis SAFE Port Act Security and Accountability for Every Port Act of 2006 § Section symbol TSA Transportation Security Administration TSI Transportation Security Incident TWIC Transportation Worker Identification Credential USCG United States Coast Guard II. Basis and Purpose, and Regulatory History

Pursuant to the Maritime Transportation Security Act of 2002 (MTSA), 1 and in accordance with section 104 of the Security and Accountability for Every Port Act of 2006 (SAFE Port Act), 2 Congress requires the electronic inspection of Transportation Worker Identification Credential (TWIC®) cards (“electronic TWIC inspection”) upon entry to secure areas on vessels and in facilities in the United States. Specifically, the SAFE Port Act mandates that the Secretary promulgate final regulations that require the deployment of electronic transportation security card readers. 3 To implement this requirement in an effective manner, the Coast Guard undertook a series of regulatory actions culminating in a requirement to implement electronic TWIC inspection at certain high-risk vessels and facilities regulated under MTSA. Beginning in 2006, the Coast Guard and the Transportation Security Administration (TSA) conducted a variety of rulemaking actions to implement the requirements. This culminated in the 2016 publication of a final rule implementing the requirement for electronic TWIC inspection (the “TWIC Reader rule”). 4 A detailed summary of these actions is available in the preamble to the notice of proposed rulemaking (NPRM) (the “TWIC Delay NPRM”) for this rule. 5

Existing regulations require all eligible persons who require unescorted access to secure areas of MTSA-regulated facilities to possess a TWIC card. However, while the TWIC card contains sophisticated authentication, validation, and verification capabilities using biographic and biometric information, operators of vessels and facilities are not required to use these features in ascertaining whether persons are authorized to enter secure areas. Instead, security personnel must inspect the card visually ( i.e., printed name, facial photograph, expiration date, and overt security features) to allow entry. The TWIC reader rule changed this requirement for a subset of high-risk MTSA-regulated facilities (called “Risk Group A facilities”), requiring that they conduct an “electronic TWIC inspection” before allowing access to secure areas. This involves electronic authentication using the TWIC card's Card Holder Unique Identifier (CHUID), validating that the credential has not been revoked by comparing it to a TSA-maintained canceled card list, and verifying a person's biometric ( e.g., fingerprint) to the biometric template stored on the card's chip. Because electronic TWIC inspection requires either purchasing TWIC readers, integration into an existing physical access control system (PACS), or other solutions, and electronic inspection may take longer than visually inspecting the card, the TWIC reader rule applied the electronic TWIC inspection requirement only to a high-risk subset of MTSA vessels and facilities.

After the publication of the TWIC reader rule, the Coast Guard received a variety of communications from persons affected by the rule concerning the scope and cost of the rule. Most significantly, numerous parties took issue with how the Coast Guard defined some of the high-risk facilities that were subject to the electronic TWIC inspection requirement. While the Coast Guard had proposed and finalized text that applied the electronic TWIC inspection requirement to “facilities that handle certain dangerous cargoes (CDC) in bulk,” various parties expressed confusion with that phrase. After the rule published, they stated that they had interpreted that phrase to mean that the regulation applied only to facilities where bulk CDC was transferred from a facility to a vessel (or vice versa), instead of the interpretation utilized by the Coast Guard. 6 Because of this confusion, various parties stated that they had not been aware of the full scope of the proposed requirements in the NPRM, and thus not had an adequate opportunity to comment on the rule. In response to these inquiries, the Coast Guard published an informal enforcement guidance document in the “Maritime Commons” blog, stating that it would not enforce the electronic TWIC inspection requirements on facilities that did not transfer bulk CDC to or from a vessel. 7

On May 15, 2017, several parties petitioned the Coast Guard to amend the TWIC reader rule. 8 The petitioners specifically requested that the Coast Guard promulgate a new rule that would limit the scope of the TWIC Reader rule to apply only to facilities that transfer bulk CDC to or from a vessel, and that facilities where bulk CDC was otherwise transferred, stored, produced, or used be excluded from the requirements. 9 They also requested that the Coast Guard delay implementation of the TWIC Reader rule immediately, until we promulgated the new rule. 10 The Coast Guard denied this petition, stating, “[w]hile you suggest that bulk CDC is only dangerous if it is being transferred to or from a vessel, nothing in our analysis of target or attack scenarios would indicate that such a distinction would be relevant.”  11 In addition to the petition, the parties also sued the Coast Guard, seeking to have the TWIC Reader rule vacated on the basis that the plaintiffs had not had adequate opportunity to comment on the rule. 12 However, the court dismissed the lawsuit on ripeness grounds, without a decision on the merits of the plaintiffs' claims. 13

Congress also passed several laws that impacted implementation of the TWIC reader program. On December 16, 2016, the President signed the bill entitled “Transportation Security Card Program Assessment.”  14 This law required, among other things, the Secretary of Homeland Security to commission a report reviewing the security value of the TWIC program by: (1) Evaluating the extent to which the TWIC program addresses known or likely security risks in the maritime and port environments; (2) evaluating the potential for a non-biometric credential alternative; (3) identifying the technology, business process, and operational impact of the TWIC card and readers in maritime and port environments; (4) assessing the costs and benefits of the Program, as implemented; and (5) evaluating the extent to which the Department of Homeland Security (DHS) has addressed the deficiencies of the TWIC program previously identified by the Government Accountability Office (GAO) and the DHS Office of the Inspector General (OIG). On August 2, 2018, the President followed up by signing the “Transportation Worker Identification Credential Accountability Act of 2018,” which prohibited the Coast Guard from implementing the TWIC Reader rule until at least 60 days after it submits the above report to Congress.”  15

In response to the petition for rulemaking and other actions taken by private parties and Congress, the Coast Guard proposed to delay implementation of the TWIC Reader rule for some facilities subject to the electronic TWIC inspection requirement. In doing so, we took note of concerns raised in the original analytical works that formed the basis for the TWIC Reader rule, namely the question of “asset categorization” that had been raised by the original Homeland Security Institute (HSI) report on the Coast Guard's risk methodology. That report specifically “suggested that further analysis on risk grouping of asset categories . . . could help to ensure that the results were more defensible.”  16 The purpose of the NPRM was to allow for time to better assess the risk methodology and conduct this refinement. Accordingly, we stated that “delaying the implementation of the TWIC Reader final rule requirements for certain facilities could allow us to develop a more precise risk-analysis methodology that would better identify which of these facilities . . . would benefit from the electronic TWIC inspection requirements.”  17

We note that the NPRM did not seek to delay the rule for all facilities covered under Risk Group A. In drawing a distinction between the facilities that would be subject to the proposed delay (the non-transfer facilities), and those we believed should comply on the original 2018 start date, we noted that “unlike situations where CDC is not transferred to or from a vessel, [the categories of facilities covered by the delay NPRM] present a clear risk of a Transportation Security Incident (TSI).”  18 While we continue to believe this to be the case, as shown in the discussion below, additional information related to the incurred expenses of partial implementation of the rule, as well as the findings of new studies on TWIC effectiveness, has influenced the scope of this final rule. The reasons for changes between the TWIC Delay NPRM and final rule are discussed below in Section IV, “Discussion of Comments and Developments.”

This final rule finalizes and expands on the proposal in the NPRM to delay the implementation of the TWIC Reader rule for certain facilities. While the NPRM proposed limiting the delay only to those facilities that handle CDC in bulk, but do not transfer it to or from a vessel and facilities that receive vessels that carry bulk CDC but do not transfer bulk CDC to or from the vessel, this final rule delays implementation of the electronic TWIC inspection requirement for all that handle bulk CDC and facilities that receive vessels carrying CDC, including faciltiies that transfer bulk CDC to or from a vessel. The TWIC reader requirement will only go into effect for facilities that receive large passenger vessels and passenger vessels certificated to carry 1000 or more passengers and more than 20 TWIC-credentialed crewmembers. We based this change on comments received, discussed in further detail below, showing that the cost of implementing electronic TWIC inspection will be lower if facility operators can implement the procedure on an enterprise-wide level, rather than in a piecemeal fashion. We believe that this delay best balances the need for security with the economic realities of the affected population. Facilities that receive large passenger vessels will have 60 days from the date of publication in the Federal Register to implement the TWIC reader requirements. 33 CFR 104.263, which covers vessels, is not being amended at this time. Presently, there are no U.S. flagged vessels that carry bulk CDC, and the one passenger vessel certificated to carry more than 1000 passengers and more than 20 TWIC-credentialed crew members is already complying with the 2016 TWIC reader rule, so providing the 60 day delay is unnecessary.

Delaying implementation of TWIC reader requirements at facilities that handle CDC in bulk while implementing the requirements at passenger vessels and facilities carries several benefits. The delay for facilities that handle CDC in bulk will provide DHS time to further analyze the results of the Congressionally-mandated TWIC program assessment and continue the Coast Guard's study of CDC risk. Furthermore, implementation at passenger vessel facilities will improve the security at these public-facing facilities, which handle 60-plus million passengers per year. Finally, it will allow facilities that handle CDC in bulk operators more time to plan their implementation of electronic TWIC inspection requirements, an opportunity to assess new, more flexible reader solutions and technology, and the opportunity to implement a solution(s) on a larger, enterprise-wide scale, improving efficiency.

We note that because DHS only received the results of the TWIC “comprehensive security assessment” (titled “The Risk-Mitigation Value of the Transportation Worker Identification Credential: A Comprehensive Security Assessment of the TWIC Program”) in early August 2019, and the Coast Guard is still analyzing the assessment, this final rule is only one step in our further evaluation of the TWIC reader requirements. The Congressional requirement to implement electronic TWIC inspection requirements in 46 U.S.C. 70105 still stands, and while we still believe that electronic validation of TWIC cards provides valuable security benefits, we also believe the implementation of the electronic TWIC inspection requirement will be improved by additional data and further evaluation.

As a result of this delay, regulated facilities and vessels should not infer that readers, access control systems, or other electronic inspection solutions provide no security value. While certain reader requirements are delayed, facilities or vessels may choose to incorporate such inspection solutions into their Facility or Vessel Security Plans. Specifically, the use of the electronic inspection solutions and the TWIC Canceled Card List (CCL) may enhance security and minimize the risk of an ineligible transportation worker entering a secure area.

Overall, we estimate that delaying the implementation of the TWIC Reader rule for the estimated 370 facilities that handle CDC in bulk will result in cost savings to both industry and the government of $23.74 million (discounted at 7 percent) over a 10-year period of analysis, and an annualized cost savings of $3.38 million (discounted at 7 percent). 19   20 Using a perpetual period of analysis, we estimated the total annualized cost savings to industry and the government of the rule to be $1.53 million in 2016 dollars, discounted back to 2016. For the purpose of this economic analysis, we use a 10-year period of analysis in order to properly compare the costs of this final rule and the TWIC reader rule, where we also estimated the costs and benefits using a 10-year period of analysis.

In response to the publication of the NPRM, the Coast Guard received 13 public comments. All commenters supported the Coast Guard's proposal to delay implementation of the TWIC reader rule, and most urged the Coast Guard to expand that delay in implementation to the class of facility represented by the commenter. Commenters also made a wide variety of statements about their understanding of the electronic TWIC inspection rulemaking documents demonstrating substantial confusion about numerous aspects of the TWIC reader rule, which are addressed extensively below. Finally, commenters provided additional information relating to the costs and implementation concerns surrounding the electronic TWIC inspection requirement that the Coast Guard has, where applicable, integrated into its analysis.

In this document, the Coast Guard has grouped together issues from various commenters into five broad categories, as laid out below. When possible, we have attempted to identify the specific comment to which we are responding. Where applicable, we have included a citation to the comment and page of a statement to which we are responding.

Many commenters expressed confusion about the scope of the population affected by the TWIC reader rule, specifically those that are required to implement electronic TWIC inspection because they meet the requirements in title 33 Code of Federal Regulations (CFR) 105.253(a)(1) for “facilities that handle Certain Dangerous Cargoes (CDC) in bulk.”  21 Those commenters argued that they believe this phrase should only attach to facilities where bulk CDC is transferred from a vessel to facility or vice versa. These individuals stated that, if a facility received bulk CDC by other means, or the facility produces, stores, or uses it in its processes, it should not be described as “handling” bulk CDC.

The primary source of this argument is an unrelated requirement in 33 CFR 105.295, which sets forth additional security requirements for “CDC Facilities.” This requirement was established in 2003, and, while the term “CDC Facility” was not defined in regulation, a subsequently-issued policy document from the Policy Advisory Council (PAC 20-04) stated that “in order for a facility to classify as a CDC Facility, a vessel-to-facility interface must occur, or be capable of occurring, and involve the transfer of CDC's in bulk.”  22 PAC 20-04 also stated that facilities receiving CDC from entities other than vessels, such as rail cars and tanker trucks, would not be considered CDC Facilities, but that the Facility Security Plan (FSP) for these facilities “must address the fact that they handle such cargoes.”  23 This explanation of the meaning of “CDC Facility” contrasted markedly with the elucidation of the phrase “facilities that handle Certain Dangerous Cargoes in bulk” provided in the 2016 TWIC Reader final rule. In that document, we stated that, in the situation where a facility stored or used CDC, or the facility was used to transfer CDC in bulk through rail or other non-maritime means, “such a facility would be considered to `handle CDC in bulk' and would be classified as Risk Group A.”  24 We went on to say that “this is because the bulk CDC would be on the premises of a MTSA-regulated facility, and thus the facility's access control system would need to be used to mitigate the risk of a TSI.”  25

While the terms “CDC Facilities” and “facilities that handle CDC in bulk” sound similar, they are not identical, and the Coast Guard did not intend to conflate the two terms or use them interchangeably. The Coast Guard never used the term “CDC Facilities” in any of the TWIC Reader rulemaking documents, and has been using consistent language since the publication of the Advance Notice of Proposed Rulemaking (ANPRM) in 2009 (74 FR 13360). We also note substantial differences in the rationales for the different requirements associated with the two terms. Various elements in 33 CFR 105.295 specifically relate to maritime-specific issues, such as searching waterfront areas for dangerous devices  26 and a requirement to release cargo only in the presence of the Facility Security Officer (FSO) or designated representative, 27 and form the basis for a maritime-based interpretation of the applicability of that section. Such requirements would not make sense for a facility that did not transfer bulk CDC across a dock. Conversely, the attack scenarios that electronic TWIC identification is designed to mitigate are all exclusively land-based, specifically limited attacks from truck bombs, passersby, and (land-based) assault squads, 28 and there is no reason a maritime nexus should be assumed.

Despite the Coast Guard's use of distinct language and an exclusively land-based rationale in the NPRM, many commenters asserted or implied their belief that the terms were interchangeable, and the Coast Guard's interpretation of the term “facilities that handle CDC in bulk” in the final rule, therefore, contradicted its guidance in PAC 20-04. One commenter submitted a copy of PAC 20-04 with scenarios in which a facilitiy would not be classified as a CDC facility highlighted, and statement “here are several reasons why there are several contradictions.”  29 One commenter stated that “the scope of the Final Rule was expanded beyond what was initially proposed and departed from established Coast Guard policy (PAC 20-04),”  30 while another requested that the Coast Guard revise the scope of the final rule to make it consistent with PAC 20-04. Yet another commenter stated that applying electronic TWIC inspection requirements to “facilities without a maritime nexus or where there is no transfer of CDC over a dock was unanticipated and unusual based on historical actions taken by the Coast Guard,”  31 and while the commenter did not elaborate on what those “historical actions” were, we assume they are referring to the issuance of PAC 20-04. A fifth commenter referred to the application of the term “facilities that handle CDC in bulk” to include facilities that don't transfer CDC over a dock as “a mistake in the August 23, 2016 publication,”  32 but did notcomment on the rationale provided in that document.

One commenter stated that “in the proposed versions of the reader rule, Risk Group A included . . . those that exchange [CDC] between the facility and a vessel.”  33 The commenter provided various pinpoint citations with this statement, which we examined. The first citation, from the 2009 ANPRM, uses the phrase “Facilities that handle CDC in bulk”  34 to describe the facilities that we expected would be included in Risk Group A, without any indication that we meant anything other than the plain meaning of those words. The second citation, from the NPRM (78 FR 17785-86), is unclear. The section of the document that spans these two pages, entitled “Summary of the Major Provisions of the TWIC Reader Advanced Notice of Proposed Rulemaking and This NPRM,” mainly discusses the decision to not propose the ANPRM's suggestion of separate requirements for Risk Group B vessels and facilities. With regard to the issue of Risk Group A facilities, the only relevant text we could find is in Table ES-1, which summarizes the proposal for Risk Group A facilities using identical language to that described in the ANPRM, “Facilities that handle CDC in bulk.” The third citation the commenter provides, 78 FR at 17811, does not appear to contain any relevant textual information, containing only discussions of the HSI report relied upon in the rulemaking and information on additional data sources used in the rulemaking. While the commenter goes on to state that, “in the final rule, other facilities were included, specifically those that contain CDCs and those that transfer CDCs only via non-maritime means, such as by truck, rail, or pipeline,”  35 the commenter's citations provide no basis to conclude any differences between the language in the ANPRM, NPRM, and final rule or any basis to conclude that the same phrasing used in each of the documents referred to anything other than the plain meaning of the words.

One commenter expressed confusion regarding the applicability of the electronic TWIC inspection requirement, specifically in regard to how they would implement the requirement if they determined they were a Risk Group A facility. 36 The regulatory text states that “prior to each entry into a secure area of the facility, all persons must pass an electronic TWIC inspection before being granted unescorted access to secure areas of the facility.” The definition of “secure area” reads, in part, “the area . . . at a facility . . . over which the owner/operator has implemented security measures for access control in accordance with a Coast Guard approved security plan.” This was described at length in the TWIC Reader final rule, and has been clear for some time, such as when stated by the GAO in 2011, 37 “[f]or most maritime facilities, the secure area is generally any place inside the outer-most access control point.” Nonetheless, one commenter asserted that it had based its planning on “the assumption that electronic TWIC inspections will only be required in those locations where bulk CDC is actually transferred to or from a vessel.” Based on that assumption, the commenter suggested that its current planning processes could lead to unforeseen costs if the Coast Guard does not change its regulations to meet those expectations. We note that the TWIC Delay NPRM did not propose or contemplate the commenter's theory that facilities that handle CDC and transfer it to or from a vessel would only be required to implement electronic TWIC inspection in the “maritime nexus” areas of their facility. If such a transfer facility also handled CDC in other parts of the facility, under the proposed TWIC Delay rule, it would still be required to implement electronic TWIC inspection “at each entry to a secure area” according to the regulatory text.

This confusion, and the potential impact, is also discussed in the August 2019 “comprehensive security assessment” mandated by Public Law 114-278, titled The Risk-Mitigation Value of the Transportation Worker Identification Credential: A Comprehensive Security Assessment of the TWIC Program. The authors of the assessment, the Homeland Security Operational Analysis Center (HSOAC), anticipated that this confusion could “potentially increase the number of facilities . . . subject to the TWIC Reader Rule to an even larger population of facilities.” HSOAC estimates that up to three times as many facilities as estimated in the TWIC Reader final rule may fall under the broader definition of a facility that handles CDC in bulk, driving the estimate from 525 facilities to 1,500. 38

Based on the comments received, and the information presented in the HSOAC assessment, we recognize the similarity between the phrases “CDC facilities” and “Facilities that handle CDC in bulk,” which contributed to some confusion among commenters. While we do not believe that the confusion affects the purpose of electronic TWIC inspection or should be the cause for delaying implementation of the rule as a whole, we do understand it may have affected the ability of some facility operators to effectively comment on the full costs of the rule. Accordingly, we are expanding on the proposal in the NPRM to delay the implementation of the TWIC Reader rule at facilities that handle CDC in bulk and transfer such cargoes from or to a vessel.

Since the TWIC Reader rule was published Congress and stakeholders have questioned the extent to which electronic TWIC inspection, compared to visual TWIC inspection, improves security and mitigates the possibility of a TSI. As described above, the TWIC Accountability Act of 2018 delayed implementation of the TWIC Reader rule until after an assessment of its effectiveness. 39 The HSOAC assessment “review[ed] the security value of the [TWIC] program,” including “evaluating the extent to which the program . . . addresses known or likely security risks in the maritime and port environments” and the extent to which the “deficiencies in the program” identified by the GAO and DHS OIG have been addressed. 40 The results of this assessment, which are discussed in more detail below and are being considered by the Coast Guard in the decision to delay the TWIC reader requirements, and will be taken in to account in our consideration of follow-up actions to be taken during the delay period provided by this final rule. While this TWIC Reader delay was proposed in order for the Coast Guard to reassess the risk anaylsis methodology for electronic TWIC inspection, questions about the effectiveness of electronic TWIC inspection, and the TWIC program generally, have been raised by various entities over the years. In the comments to this rulemaking, several commenters raised concerns about the effectiveness of TWIC, and we have responded to and contextualized those comments here.

In the TWIC Reader NPRM and final rule, the Coast Guard set forth the security rationale for the electronic TWIC inspection procedure, and explained how it could help mitigate specific terrorist attacks and lessen the possibility of a TSI. The Coast Guard emphasized three particular “attack scenarios”—an attack by a truck bomb, a terrorist assault team, and a passerby/passenger explosive device situation. These were considered the “attack scenarios that are most likely to be mitigated by the . . . enhanced access control afforded by TWIC readers, as they require would-be attackers gaining access to the target in question . . . to inflict maximum damage.”  41 Similarly, in the final rule, we noted that we “limited our consideration to attack scenarios that require physical proximity to the intended target and for which access control would affect the ability to conduct an attack.”  42 In the response to comments during that rulemaking process, we acknowledged that there were other ways to attack vessels and facilities (for example, by secreting an explosive device in cargo) that would not be mitigated by electronic TWIC inspection. We noted that “[f]or this reason, our analysis in this final rule focuses on threats that could be prevented or mitigated through the use of electronic TWIC inspection.”  43

Many commenters raised questions about the efficacy of the TWIC program in preventing attacks. One commenter stated that a TWIC reader would not prevent the three identified attack scenarios, and that, if it did, “we should be using them in Syria and Iraq.”  44 While we cannot speak on the particular security measures used in overseas military bases, we do note that many U.S. government facilities around the world indeed do use some form of access control measures for security purposes.

Another commenter questioned the utility of electronic TWIC inspection in the three identified scenarios, asserting that “an individual or group intent on executing such an attack would not be deterred simply because the targeted facility requires electronic TWIC inspections rather than visual TWIC inspections.” (emphasis in original)  45 We disagree that electronic TWIC inspection would offer no additional security value over visual inspection in such a case. Visual inspection cannot detect if a card has been revoked, cancelled, or stolen. It is also less effective at determining if a card is counterfeit or if the person presenting the card is the person to whom the card was issued. In short, it would be likelier for an adversary to gain unescorted access to the target—the secure area of the facility—if the facility relied only on visual TWIC inspection. The commenter went on to assert that “terrorists generally use brute force when attacking a target— particularly when carrying out the types of attacks identified by [the Coast Guard's Maritime Security Risk Analysis Model] MSRAM, . . . or blow up a checkpoint or other barrier rather than stop to use false credentials to gain access.” (emphasis in original). 46 We agree that the inability to infiltrate a facility could cause a terrorist group to employ additional means to initiate a full-scale attack on a facility, if electronic inspection were used. However, we would consider this an issue of electronic TWIC inspection “mitigating” an attack, as the latter scenarios may be more difficult to mount, easier to detect, provide more time for responders to arrive, or give potential targets advance warning of an attack and time to clear the targeted area, among many other considerations. We also note that the measures taken to mitigate these sorts of brute-force attacks, such as bollards, fences, or other barriers, are generally ineffective at preventing the infiltrations mitigated by electronic TWIC inspection. The two types of security measures are complementary, not mutually exclusive.

Several commenters  47 raised concerns that the Coast Guard had not adequately addressed concerns raised by the GAO in its 2013 report on the TWIC program. 48 While the 2013 GAO report raised some concerns about the TWIC program, we do not believe that report exposed specific problems with the electronic TWIC inspection requirement. Instead, it noted concerns about the TWIC program that are outside the scope of the electronic TWIC inspection requirement ( e.g., unreliable cards and readers used in the TWIC pilot program, or the ability of GAO operatives to obtain genuine TWIC cards at enrollment centers using fraudulent means), and noted that the Coast Guard had not conducted an effectiveness assessment of the TWIC program as GAO had recommended in 2011. 49 Many of the GAO findings, for example, noting that “the use of TWIC with readers would not stop terrorists from detonating a truck at the perimeter of a facility, . . . or obtaining a TWIC card using fraudulent documents as we did through covert means” are in fact identical to the Coast Guard's analysis of these same facts, where we noted that electronic TWIC inspection does not prevent every conceivable security threat. 50 Furthermore, we note that the Coast Guard and TSA addressed many of the issues that GAO raised, such as questions about the appropriateness of a single TWIC credential versus state and local credentials, improved fraud detection techniques, the establishment of internal and quality controls, or data collection questions regarding the TWIC program, programmatically, and they no longer presented an issue by the time we issued the TWIC Reader final rule.

Several commenters asserted that the Coast Guard's failure to heed GAO's recommendation to perform an effectiveness study render the final rule flawed. One commenter stated that “the Coast Guard's insistence on promulgating a TWIC Reader Rule while refusing to substantively respond to the GAO's and HSI's  51 critiques was arbitrary and capricious, and was contrary to the obvious intent of the SAFE Port Act that the rule be based on empirical cost-benefit data. Although the Coast Guard admits TWIC reader utility requires further study . . . it nevertheless insists on partial implementation.”  52

We believe the commenter here has conflated several ideas. First, we note that while the GAO report stated that an effectiveness study should be performed, the report was directed at Congress, which declined to act on the recommendation until after the Coast Guard promulgated the final rule. 53 The HSI study, on the other hand, expressed concerns about the use of asset categorization and, separately, the mechanism by which the Coast Guard integrated the “TWIC utility” factor in determining risk assessments to inform asset categorization. 54 Those topics, while important, are not the same thing as effectiveness. Furthermore, we disagree with the commenter's assertion that promulgating the rule despite the concerns in these reports renders the rule legally invalid. We note that the HSI report, despite expressing concerns, did validate the Coast Guard's risk analysis methodology and endorse the asset groupings the Coast Guard suggested. In addressing the public comments on the TWIC rule, written after the GAO report was released, we noted that the overwhelming majority of the commenters supported the electronic TWIC inspection requirements in general based on the security analysis conducted by the Coast Guard, the lack of a generalized “effectiveness” study notwithstanding. While the issues raised by stakeholders after the final rule was promulgated merited consideration regarding implementation of the electronic TWIC inspection requirement, we did not then and do not now believe that they invalidate the fundamental principles upon which Congress and the Coast Guard based the analysis.

Nonetheless, as recommended by GAO, and mandated by Congress, DHS has provided the HSOAC assessment of the security value of the TWIC program. While many of the assessment's conclusions concern areas outside of the particular security effectiveness of the electronic TWIC inspection requirement, the assessment found that there were some security benefits to electronic inspection of TWIC cards and that readers may be a beneficial investment for facilities and vessels. Specifically, the assessment found that “the TWIC program is strongest in reducing the risk presented by individuals who are known or suspected terrorists and who seek to conduct an attack on a maritime facility that would require persistent insider access via possession of a TWIC credential.”  55 The assessment determined that “TWIC does impose costs on the adversary,” and “likely contributes to pushing threatening actors toward simpler and potentially less harmful attacks.”  56 Furthermore, the assessment found that the TWIC card reader could “increase the likelihood that invalid TWIC cards are detected, and biometrics provide a robust mechanism for identity verification.”  57 Moreover, some existing users have found that the use of biometric, electronic readers can be both cost saving and security enhancing. However, the assessment reiterated that the value of TWIC is directly related to the quality of security that a vessel or facility has overall, including having other security mechanisms in place, such as security guards, PACS, and deployable security barriers. Ultimately, the assessment found that adversaries are capable of gaining unauthorized access via other means and that “threats TWIC is best intended to mitigate are . . . not the most pressing.”  58

The cost effectiveness analysis on the electronic inspection requirements in the TWIC Reader rule provided by the HSOAC assessment was less favorable, stating that “one would be hard-pressed to state the benefits of TWIC reader rule outweigh the costs.”  59 In making this determination, the assessment examined the Coast Guard's methodology for determining the costs and benefits in the regulatory analysis of the 2016 final rule. HSOAC then conducted their own analysis using the same methodology with new cost data, when available. The assessment found that the Coast Guard underestimated the costs of the programs and overestimated the benefits by using the highest maximum consequence scores. The “break-even” analysis used by the Coast Guard to determine the benefits of the rule was found to be appropriate, because it is well-established in the cost-benefit literature, and has been widely used in previous DHS rulemaking projects. However, the assessment found the Coast Guard overestimated the benefits by using the average maximum consequence of a successful terrorist attack, as provided by MSRAM, as the “worst case” scenario in the analysis. 60 The assessment suggests the use of a range of consequence scores or the average consequence score would be more appropriate. 61 However, as noted in the report, the use of MSRAM data is limited due to classification restrictions on the data, and in the 2016 analysis, the Coast Guard was only able to use the maximum consequence for this reason.

The assessment also provided several suggestions and alternatives to the existing program to improve the cost-effectiveness, including limiting the facilities subject to the regulation by using a narrower definition, or using different readers (such as portable readers that can be used intermittently, access control systems or other inspection solutions). Despite the reservations regarding the cost effectiveness and benefits surrounding the TWIC readers, the assessment found that approximately 50 percent of facilities HSOAC visited and examined have implemented electronic inspection for TWIC, either in a PACS or portable reader, and that in some cases those PACS also verify identity using biometric systems. 62 Also, nearly 20 percent of facilities sampled by the assessment used more technologically sophisticated biometric readers. During this delay period, USCG will be looking at various means of implementing the use of TWICs at maritime facilities including more efficient and cost effective electronic validation modes and methods.

The facilities interviewed in the HSOAC assessment that effectively integrated readers or access control solutions into operations have had largely positive experiences. 63 Perceptions were mixed on the degree of enhanced security that the readers added, with over half of the facilities interviewed finding some benefit. Those facilities found specifically that “if the readers are working properly, they are an effective tool and provide an additional level of comfort and security.”  64 While the HSOAC assessment favors a system approach to risk-mitigation and does not advocate the use of TWIC as a sole means of security for vessels and facilities, the Coast Guard is encouraged by positive feedback provided by those facilities that preemptively use TWIC readers, particularly the satisfaction with the program as a whole. The Coast Guard is further analyzing the suggestions and comments provided in the assessment, and determining if modifications should be made to the program during the delay period.

In the delay NPRM, the Coast Guard cited concerns about the risk analysis methodology for electronic TWIC inspection as the chief reason for proposing a partial delay of the TWIC Reader final rule. Specifically, we highlighted concerns about “asset categorization,” the practice of grouping and analyzing facilities by class, as a basis for the application of the electronic TWIC inspection requirement. For example, the Coast Guard treats all facilities that “handle CDC in bulk” as being in the same class, regardless of the geographical location of the facility ( e.g., whether it is near a large population center) or the specific types and quantities of the bulk CDC handled at the facility ( e.g., whether it is a few thousand gallons of propane or several thousand tons of chlorine). While questions about how the Coast Guard would consider particular situations where the presence of bulk CDC did not pose a threat above a particular threshold were addressed in the TWIC Reader final rule, concerns raised after its publication caused us to re-evaluate whether the risk analysis methodology was adequate or satisfactory. 65 Furthermore, we began the process of reconsidering whether asset categorization was an appropriate means by which to evaluate the risk potential of facilities, as opposed to a more individualized methodology that incorporates factors such as local population, environmental considerations, and similar factors. The possibility of inadvertently capturing low-risk facilities in the mix of Risk Group A facilities was the reason we proposed to delay the TWIC Reader rule for “non-transfer” facilities. However, because “transfer” facilities and passenger facilities are high risk due to the targets inside the facilities themselves, irrespective of exogenous considerations, we declined to propose delaying the electronic TWIC inspection requirements for those classes of facilities. 66

Several commenters responded negatively to the Coast Guard's proposal to implement the electronic TWIC inspection requirement in only some Risk Group A facilities. One commenter urged the Coast Guard to delay the requirement for all Risk Group A facilities “rather than work piecemeal.”  67 Another commenter asserted that a delay for all facilities is necessary because “manufacturers need regulatory certainty to make appropriate, economically justifiable long-term investments to protect facilities' threat and vulnerability conditions,” and that a partial delay will “continue to create regulatory uncertainty.”  68 A third commenter asserted that “Coast Guard personnel offered that delays for implementation for the Final Rule were likely,” and that “it was expected that any delay for the implementation would apply to all facilities.”  69

We take seriously concerns that Coast Guard statements and actions taken subsequent to the issuance of the final rule, including the passage of legislation that postponed the implementation of the rule, could create regulatory uncertainty. One commenter noted that “the regulated community and equipment manufacturers had reason to believe the compliance deadline would be extended and the scope of the rule possibly narrowed,” leading to “equipment manufacturers [delaying] production until there is more certainty on the rule.”  70 Similarly, one commenter noted that compliance with the reader rule would take significant preparation, including “restructuring access points, training security operators, [and] testing the security interplay between the TWIC readers and our existing access controls,”  71 which it had not begun to implement due to belief that the rule would be postponed.

Several commenters expressed concern about additional costs associated with partial implementation of the electronic TWIC inspection requirement. In addition to concerns regarding delayed production mentioned above, 72 “manufacturers remain concerned that they lack the required lead time to sufficiently plan and install new equipment, infrastructure, software, and to train new employees,”  73 and asserted that partial delay of the final rule would create “logistical and financial challenges for facilities that are already in compliance with the TWIC visual inspection requirements.”  74 These sentiments are echoed in the TWIC HSOAC assessment, where some interviewees from Risk Group A facilities have experienced increased costs and have found the number of vendors shrinking. 75

One commenter suggested that an option set forth in the TWIC rulemaking to limit electronic TWIC inspection to discrete areas of a facility where it handles bulk CDC—originally intended to be an option designed to reduce costs—could end up creating problems if the delay is limited to CDC transfer facilities only. The commenter laid out two scenarios to show how this could happen, as described below.

In the first scenario, the facility expends resources to isolate the discrete bulk CDC area to the maritime transfer area. The commenter writes that “[i]f after the three-year delay period, the USCG determines the bulk CDC handled by non-maritime means in many locations throughout the facility does require electronic TWIC inspections, then the facility will have no choice but to expand electronic TWIC inspections to its perimeter fence-line (which also defines its secure area). In this [scenario], the time effort, resources, and money spent now isolating the discrete area(s) where bulk CDC is transferred to or from a vessel will have been wasted.” (emphasis in original)  76 This commenter is confusing the 2016 final rule, and the proposed changes in the TWIC Delay NPRM. The NPRM did not propose to limit electronic TWIC inspections to the areas of the facility where bulk CDC is transferred to or from a vessel. Instead, it proposed to limit the requirement to “[f]acilities that handle Certain Dangerous Cargoes (CDC) in bulk and transfer such cargoes from or to a vessel.”  77 Such facilities would still have been subject to the general requirement that they conduct electronic TWIC inspection pursuant to 33 CFR 101.535(b), which requires electronic TWIC inspection before being granted unescorted access to secure areas of the facility. The option to isolate electronic TWIC inspection to discrete areas of the facility where bulk CDC is handled still required electronic TWIC inspection at all locations within the applicable facilities where CDC is handled, regardless of whether that was the location it was being transferred to or from a vessel. There was never a proposal to limit the requirement to maritime transfer areas, and, thus, we would not expect this scenario to occur.

In the second scenario, the commenter imagines that “rather than isolating the discrete area(s) where bulk CDC is transferred to or from a vessel, a facility chooses to conduct electronic TWIC inspections of all personnel seeking unescorted access into its secure area ( i.e., at the perimeter fence line. . . . If after the three-year delay period, the USCG determines the bulk CDC handled by non-maritime means at the facility does not require electronic TWIC inspections, then the facility will have wasted significant time, effort, resources, and money.”  78 While the Coast Guard has not ever proposed limiting electronic TWIC inspection criteria to the maritime area, we realize that if we were to change the regulation in that way after promulgating a wider regulation, it could result in significant unnecessary expenditures. While the commenter's analysis mischaracterizes the proposal in the TWIC Delay NPRM, we believe this demonstrates that there remains significant confusion regarding the scope of the rule. This is a valid point and one that we have considered in promulgating this delay.

In the TWIC Reader rulemaking, the Coast Guard limited the electronic TWIC inspection to high-risk facilities for purposes of producing an efficient regulatory scheme. While we acknowledged that electronic TWIC inspection would improve security at all MTSA-regulated facilities, we concluded that, for many facilities, the cost of implementing such measures would be too high relative to the security benefits achieved. For that reason, we conducted extensive analysis as to which types of facilities posed the greatest threat to persons and key infrastructure targets, as well as which types of facilities would reap the greatest benefits from the proposed countermeasures. We determined that applying electronic TWIC inspection requirements only to Risk Group A facilities provided the most efficient security measures. The TWIC Reader rule final regulatory analysis (RA) estimated that the rule would require compliance actions by 525 facilities and 1 vessel, for a total cost of $153.8 million (discounted at 7-percent) over a 10-year period. 79

In response to the TWIC Delay NPRM, several commenters challenged the underlying assumptions that the Coast Guard used in developing this figure. Commenters first argued that the Coast Guard's analysis undercounted the number of facilities by including both transfer facilities and non-transfer facilities in its total estimate of 525 estimated facilities. Secondly, commenters argued that the inclusion of the phrase “and receive vessels carrying CDC” in the text of the final rule added additional regulated facilities, which were not included in the RA. We address each of these issues below. We note that specific comments relating to the Coast Guard's economic analysis are addressed below in Section IV. G., “Comments on the Regulatory Analysis.”

One major issue raised by commenters concerned the number of facilities subject to the electronic TWIC inspection requirements, specifically the idea that the Coast Guard had underestimated the number of facilities that would be characterized as Risk Group A under the new regulations. In the 2013 TWIC Reader NPRM, the Coast Guard estimated that 532 facilities would be classified as Risk Group A, 80 a number that was modified in the 2016 final rule due to the exclusion of 7 barge fleeting facilities. 81 In the TWIC Delay NPRM, we broke down the nature of these 525 facilities, indicating that they consisted of 122 “non-transfer” facilities, as well as 403 passenger and “transfer” facilities combined. 82 One commenter stated “neither the [2013 TWIC Reader NPRM RA] nor the [2016 TWIC Reader final rule RA] ever discusses this class of facilities.”  83 This commenter is correct: both the TWIC Reader NPRM and final rule applied the requirement to “facilities that handle CDC in bulk,” and did not draw a distinction between those that transfer it to/from vessels and those that do not, and so never separated the types of facilities for the purposes of economic analysis. Because the TWIC Delay NPRM was the first instance in which the Coast Guard considered different requirements for transfer and non-transfer facilities, we included a separate count of the non-transfer facilities.

The commenter also suggested that the Coast Guard had dramatically underestimated the number of non-transfer facilities. The commenter states, “it is likely that approximately 525 (or more) facilities handle bulk CDC by non-maritime means.” It is unclear if the commenter is suggesting that there are a total of 525 facilities that handle bulk CDC by non-maritime means (in line with our estimates), or if there are 525 facilities that handle bulk CDC by non-maritime means exclusively, which would exceed the Coast Guard's estimates. The commenter also cited the 2017 Petition for Rulemaking, 84 noting, “the Petition estimated that there are closer to 1,500 Non-Transfer Facilities nationwide, most of which handle bulk CDC by non-maritime means.”  85 (The use of the phrase “most of which” does appear to imply that the number of facilities is a total count, in line with Coast Guard estimates.) This figure is cited in the TWIC assessment report also, as mentioned above. Based on the information provided by both the commenter and HSOAC, we will attempt to get a much fuller estimate of the population in future studies, as described in the TWIC Delay NPRM.

Commenters expressed concern about the inclusion, in the TWIC Reader final rule, of regulatory text that the Coast Guard did not originally propose in the TWIC Reader NPRM. Specifically, while the proposed regulatory text in the TWIC Reader NPRM (and the associated text discussed in the TWIC Reader ANPRM) applied the Risk Group A requirements to “Facilities that handle Certain Dangerous Cargoes (CDC) in bulk,”  86 the TWIC Reader final rule added the phrase “or receive vessels carrying CDC in bulk” to that sentence. 87 In the final rule, we explained the rationale for the additional language. In explaining our interpretation of the word “handle” in § 105.253(a), the TWIC Reader final rule stated that the purpose of the additional language at issue was to “clarify risk groups.”  88 The Coast Guard explained that a facility that receives vessels carrying CDC bulk, even if the CDC is not transferred to the facility, is functionally the same as a facility that creates, stores, processes, or transfers ( i.e., “handles”) bulk CDC, insofar as there is bulk CDC present and it is the responsibility of the facility to restrict access to those CDCs to valid TWIC-holders. We reasoned that, “[w]hile moored at a facility, a vessel must rely on the facility's security program to adequately secure the interface between the facility and vessel and mitigate the threat of a TSI.”  89 Thus, the Coast Guard does not consider the phrase “or receives vessels carrying CDC in bulk” to be a new class of facilities subject to the electronic TWIC inspection requirements, but merely clarification of the original proposed text of § 105.253(a).

Because the Coast Guard did not consider the new language to add new requirements to the rule, we did not list “facilities that receive vessels carrying CDC in bulk” as a separate category of facilities in the regulatory text, nor did we consider that it would change the number of facilities affected by the electronic TWIC inspection rule in the delay NPRM. Furthermore, based on the information available at the time, the Coast Guard did not believe there were any facilities that received vessels carrying CDC, but did not in any other way store, use, process, or transfer bulk CDC on the facility (even if some vessels carrying bulk CDC did not unload their cargo at the facility), and so we did not add them to the affected population. However, after the publication of the final rule, various parties informed the Coast Guard, without presenting data, that they believed there was a population of facilities that received vessels carrying CDC bulk without otherwise handling bulk CDC on their facilities. The Coast Guard took such statements in good faith, and thus, in the TWIC Delay NPRM, we stated, “we cannot determine the number of [facilities that receive vessels carrying CDC in bulk] at this time.”  90

One commenter argued that because the number of affected facilities remained consistent between the NPRM and final rule despite the addition of the new language to § 105.253(a), the Coast Guard's “accounting for Non-Transfer facilities are so suspect that they should be ignored.”  91 We disagree. As explained above, the affected population remained consistent between the TWIC reader NPRM and final rule because the policy in the documents was consistent. Furthermore, we note that despite its assertion that the lack of a separate accounting for this class of facility renders the Coast Guard's calculations moot, the commenter affirms the Coast Guard's original logic, noting in a parenthetical that “relatively few facilities that receive vessels carrying CDC without transferring them do not also handle bulk CDC by non-maritime means.”  92 Similarly, one commenter argues, “the methodology defining the risk categories does not include lay-berth  93 or other cargoes contained or not transferred.”  94 For the reasons described above, the Coast Guard disagrees, and notes the 2016 TWIC Reader rule methodology explicitly accounts for these situations.

Unlike facilities that handle CDC in bulk, the Coast Guard did not propose to delay the final rule for any passenger facilities, and based upon comments to this rulemaking, is not extending the delay to those facilities at this time. We believe that implementing the electronic TWIC inspection requirement at passenger facilities and vessels will provide improved security benefits for these facilities, which include large ferry and cruise terminals that handle 60 plus million passengers per year.

We received only one comment specific to the treatment of passenger vessels and facilities, which contained several major arguments. First, the commenter argued that passenger facilities that do not receive vessels subject to electronic TWIC inspection requirements should also be exempt from the requirements, regardless of how many passengers use the facility. More specifically, the commenter suggested that facilities receiving vessels with less than 20 crewmembers should be exempt from the electronic TWIC inspection requirement. Finally, the commenter suggested that electronic TWIC inspection does not substantially enhance security at passenger facilities. 95 We address each of these arguments below.

The commenter raised an issue, also raised in the TWIC Reader rulemaking, that facilities that receive vessels be exempted from the electronic TWIC inspection requirement due to low numbers of crew. The comment noted that vessels with 20 or fewer TWIC-holding crewmembers are exempt from the electronic TWIC inspection requirement, but that this exemption does not apply to facilities. It stated that, if a Coast Guard-approved vessel security plan for a larger ferry designates certain portions of the vessel as off-limits to a passenger and requires a person to possess a valid TWIC to have unescorted access secure areas, the same standard should apply to a terminal that receives such a vessel. The commenter asserted that it was an “anomaly” that certain passenger vessels are not required to carry and deploy TWIC readers, but a facility that receives such a vessel is required to have and use TWIC readers. 96 We do not believe this is an anomaly, and would refer the commenter back to the logic underpinning the requirement. In the TWIC final rule, in a section entitled, “The Crewmember Exemption Does Not Apply to Facilities,”  97 we explained that “the rationale that justifies an exemption for vessels with a low crew count does not transfer to facilities,”  98 noting that while at sea, few persons board or depart a vessel, while persons constantly do so at facilities. We continue to stand by the reasoning laid out in that section of the TWIC final rule. The Coast Guard also reiterated that the statutory provision in 46 U.S.C. 70105(m)(1) mandates an exemption from the electronic TWIC inspection requirement for vessels with a low crew count, and noted that there was no such provision for facilities.

The commenter also suggested that the value of electronic TWIC inspection at passenger facilities is minimal, and that the current level of security is adequate. The commenter stated that “One [Passenger Vessel Association] ferry operator subject to the current rule reports that its facility security plan designated only the office of the facility security officer (FSO) as a secure space and that only the FSO works in the office. Under the current rule, there will need to be a TWIC reader installed in this space so the FSO can validate his own TWIC each time he enters his office.”  99 While we cannot speak to individual circumstances, we note that the definition of a “secure area” is, in part, “the area . . . at a facility over which the owner/operator has implemented security measures for access control in accordance with a Coast Guard approved security plan. It does not include passenger access areas, employee access areas, or public access areas.”  100 While it is possible that a facility could have no access control measures outside of the FSO's office, we note that many passenger facilities do contain substantial secure areas.

We do agree with the commenter that there are differences in the layouts and security profiles of passenger facilities and other Risk Group A facilities (that handle CDC in bulk), and note that these differences are paramount in the Coast Guard's decision not to delay the electronic TWIC inspection for passenger facilities. We stated the differences explicitly in the final rule, highlighting the differences between chemical cargo facilities where the entire facility may be considered a “secure area” and facilities that have public access areas, like parking lots with TWIC inspection conducted at a secure access point would be outside of the public access area. 101 For passenger facilities, the majority of the areas may be designated “public access areas,” “passenger access areas,” or “employee access areas” (such as break rooms). In such an instance, electronic TWIC inspection points may only be located at entrances to secure areas such as the pier or FSO's office. 102

While we agree with the commenter that the secure area footprint of a passenger facility may be small, we disagree that this constitutes a rationale for delaying or eliminating the electronic TWIC inspection requirements at passenger facilities. Unlike a facility that handles CDC in bulk, where the targets of a potential terrorist attack would be located exclusively inside the secure area, at passenger facilities the potential target—the passengers themselves—would be almost exclusively located outside the area secured by a TWIC, as passengers are not escorted, nor do they generally hold TWICs. However, vital parts of the facility, including waterside access to the vessel, baggage handling and security areas, storage areas for equipment such as vessel fuel or cleaning supplies, and administrative offices, are all secured by electronic TWIC inspection. These security measures help to ensure that access to those targeted areas is restricted to persons who have been granted unescorted access to these areas. By implementing TWIC inspection for waterside access to the vessel and baggage handling and storage area, and the like, the potential for a TSI is decreased. For these reasons, the Coast Guard believes it is imperative that we begin implementation of this part of the electronic TWIC inspection requirement as soon as possible.

The Coast Guard received several comments that do not fit into any of the above categories. One commenter asked why some Captains of the Port (COTPs) are authorized to grant waivers to facilities and some are not, as well as under what conditions waivers are authorized. 103 We note that all COTPs are authorized to permit facilities to continue to operate in the event of non-compliance pursuant to 33 CFR 105.125, which is different than authority to grant waivers. Waivers can be authorized under the provisions of 33 CFR 105.130. The regulatory text in 33 CFR part 105 contains explanations of noncompliance and waivers and when they will be granted. The commenter also asked whether the existence of waivers implied that the TWIC delay final rule should include all facilities subject to the electronic TWIC inspection. For the reasons discussed above, the answer is no.

One commenter stated that the proposed rule does not define “bulk storage.”  104 We note that the term “bulk” is defined in 33 CFR 101.105, and we apply the plain meaning to the term “storage.” The commenter also suggested that, to avoid confusion, the rule should list the CDC chemicals, and asked about the treatment of a mixture of chemicals listed as CDCs. We agree with the commenter that a list of CDCs would be helpful, and to that end, are publishing such a list concurrently with this rule, in accordance with 33 CFR 160.202. The list is published in the docket and will be maintained in Homeport. With regard to “mixtures,” we note it could depend on the particular chemistry at issue; therefore, we do not have enough information to provide an answer.

The Coast Guard did not receive any comments on the costs and benefits associated with delaying the implementation of the TWIC Reader final rule. However, we received several comments regarding the costs and benefits associated with the requirement for electronic TWIC inspection, as published in the 2016 TWIC Reader final rule RA. 105 As the 2016 TWIC Reader final rule RA is the main data source for the RA published in the TWIC Delay NPRM, we address these comments below.

One commenter stated that the Coast Guard underestimated the total cost of the final TWIC Reader rule, citing the declaration of a Dow chemical employee. 106 The employee estimated the TWIC Reader Rule would result in an annual productivity loss resulting from the delay time of using the TWIC readers of $3.65 million for one Dow facility, and a $10 million cost to all Dow facilities including productivity losses, and hardware, infrastructure, installation, and maintenance costs. The commenter states that Dow's costs alone are almost half of the $22.5 million in annualized costs as estimated by the final rule.

The cost estimates provided in the final TWIC Reader rule represent the average burden across all facilities subject to that rulemaking, and therefore the estimates may not reflect the individual circumstances of each facility or firm. In addition, the $10 million value provided by the commenter is an annual value and is not comparable to the $22.5 million annualized cost estimate provided in the final rule. An annualized value accounts for the fact that the costs of the rule will differ over time and provides an estimate that spreads these costs equally over the analysis period, taking a discount rate into account. This value accounts for years where a facility may have larger costs associated with implementing the rule due to one time or infrequent costs such as purchasing hardware, installation, and infrastructure costs, as well as years where the facility will have much smaller ongoing costs. During the first two years of the cost analysis, the Coast Guard accounted for these large onetime costs and estimated a much larger total annual cost of approximately $56 million per year. The $10 million value provided by the commenter includes onetime costs such as hardware and, therefore, is not directly comparable to the $22.5 million annualized cost estimate, which smooths these costs over time.

Furthermore, we note that the majority of the measured costs the commenter cites are operational losses due to “average daily loss in productivity of $10,000 per day.” The TWIC Reader rule provided facility operators flexibility with regard to the purchase, installation, and use of electronic readers, allowing facilities to adjust their operations to reduce large delay times. The RA for the TWIC Reader rule accounted for the fact that some facilities may have to make modifications to business operations to accommodate electronic TWIC inspection requirements, such as increasing the number of access points for vehicles. Thus, we believe most facilities would be able to adjust their operations to ensure the most efficient use of the readers rather than incurring large delay costs.

We received one comment on the potential “significant economic impact” of the TWIC Reader rule. 107 The commenter believes the TWIC Reader rule will disrupt the efficient transportation of goods, which, in turn, may result in “very high economic costs.” As evidence, the commenter provided information on the contribution of Louisiana's oil and gas and chemical sectors to the Gross Domestic Product (GDP), employment numbers, and household earnings, information on the amount of cargo shipped through ports located in Louisiana, as well as information on the tank truck industry. The commenter also asserts that the Coast Guard did not regulate container facilities not otherwise categorized in Risk Group A because of the “significant levels” of ”delay costs,” and states this is evidence of the high economic costs of transportation delays.

While the economic data presented by the commenter provides information on the oil and gas industry in Louisiana and on the tank truck industry, it does not provide any information on how the TWIC Reader rule may impact these industries, or the cost of the TWIC Reader rule to these industries. We do note the commenter provides context to the enormous importance of securing these facilities from terrorist attack, given their large role in the local, as well as national, economy.

Further, the Coast Guard disagrees that we did not regulate container facilities that would not otherwise be categorized in Risk Group A because of significant delay costs associated with the TWIC Reader rule, and this is evidence of the high economic costs of delays. Rather, the Coast Guard did not regulate these container facilities because, upon review, we found that many of the high-risk threat scenarios at container facilities would not be mitigated by electronic TWIC inspection. Therefore, the costs of electronic TWIC inspection for container facilities not in Risk Group A would not be justified by the amount of potential risk reduction at these facilities. This is keeping with the requirements of Executive Order 12866, which directs agencies to select approaches which maximize the net benefits to society.

The Coast Guard received two comments on the 2016 RA's use of cost information from the TWIC Reader pilot program. 108 One commenter stated that the data from the TWIC Pilot Program is too out-of-date to be used, and that the pilot program failed to accurately evaluate delay times associated with the 2016 TWIC Reader rule. Both commenters cite the May 2013 GAO report “Transportation Worker Identification Credential: Card Reader Pilot Results Are Unreliable; Security Benefits Need to Be Reassessed,” (GAO-13-198) as evidence the pilot data is inaccurate, and believe the Coast Guard's reliance on this data contravenes the GAO's findings. Issues with the pilot data were also raised in the HSOAC assessment. The assessment stated that the use of the pilot study data in generating the 2015 regulatory analysis was flawed in that it made faulty assumptions of the number of readers required at facilities. 109

While the Coast Guard acknowledges there were many challenges in the implementation of the TWIC reader pilot program, we believe the considerable data obtained were of sufficient quantity and quality to support the general findings and conclusions of the TWIC reader Pilot Report. The pilot program obtained sufficient data to evaluate TWIC reader performance and assess the impact of using TWIC readers at maritime facilities. Furthermore, the Coast Guard supplemented the information from the TWIC Pilot Program with other sources of information. For example, in the 2016 RA, the Coast Guard estimated the number of access points per facility type through the use of an independent data source (Facility Security Plans), and estimated the costs of TWIC readers through published pricing information. The Coast Guard did not use this data from the pilot program for the exact reasons the commenters suggest.

One commenter stated that the TWIC Delay NPRM gave no indication the Coast Guard would use the three-year delay period to gather new economic data, and thus any economic analysis supporting future rule makings would be based on the same “faulty” cost data as the previous rulemakings. 110

While the Coast Guard did not explicitly state it would gather new cost information to support future rulemaking efforts, that does not mean we would not gather additional cost information to support future rulemakings. If the Coast Guard chooses to implement a new rulemaking, the supporting RA would use the best reasonably available economic information, as required by OMB circular A-4. Depending on the information available, this cost data may or may not be new.

Based on the concerns of commenters regarding implementation problems, particularly involving confusion regarding the final rule and delay NPRM, delays in undertaking compliance action, and difficulty acquiring equipment, a delay for all facilities that handle CDC in bulk represents the best path forward. In doing so, we can give facilities that handle CDC in bulk additional time to acquire and install equipment, train personnel, make operational adjustments, and update FSPs to account for use of electronic TWIC inspection in areas that contain bulk CDC. We also note that, as described in this document and in the TWIC Delay NPRM, we are studying the distribution of bulk CDC at MTSA-regulated facilities, with the goals of determining the exact population of affected facilities and the properties of the particular chemicals stored at these facilities. We believe that delaying the implementation of the rule for facilities that handle CDC in bulk will allow those facilities to reduce costs by providing adequate time to implement the requirements under conditions of more regulatory certainty and equipment availability. We also believe that the implementation of electronic TWIC inspection requirements at passenger facilities, and for the one large passenger vessel, will provide immediate security benefits at those facilities and vessel in protecting vital parts of the facility from potential TSI. Overall, we estimate that this policy implements the electronic TWIC inspection requirement at 155 facilities, primarily cruise and large ferry terminals that handle 60 plus million passengers per year and 1 vessel, in furtherance of enhanced security measures to protect passengers and the public. In order to comply with this immediate security need, facilities and vessels will have 60 days to implement the TWIC reader requirement. It also provides the Coast Guard time to analyze the suggestions and comments relating to the TWIC program provided in the assessment, and determine what modifications should be made during the delay period.

This final rule will delay implementation of the TWIC Reader rule for 3 years for all facilities that handle CDC in bulk, which are comprised of three types of Risk Group A facilities: (1) Facilities that handle certain dangerous cargoes in bulk, but do not transfer these cargoes to or from a vessel; (2) facilities that handle certain dangerous cargoes in bulk, and do transfer these cargoes to or from a vessel; and (3) facilities that receive vessels carrying certain dangerous cargoes in bulk, but do not, during that vessel-to-facility interface, transfer these bulk cargoes to or from those vessels. This rule will delay the implementation of the TWIC Reader rule for 370 of the 525 affected Risk Group A facilities. The remaining 155 facilities (which are all facilities that receive large passenger vessels), and 1 vessel will have to implement the requirements of the TWIC reader rule by June 8, 2020.

Below, we provide an updated regulatory analysis of the TWIC Reader rule that presents the impacts of delaying the effective date of the TWIC Reader rule for the three types of Risk Group A facilities defined in the preceding paragraph. We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on these statutes or Executive orders.

For this updated analysis, we estimated the impact of delaying the TWIC Reader rule by calculating the 10-year cost of this final rule, where only certain facilities will incur costs starting in Years 1 and 2 and other facilities will incur no costs in the first 2 years, and compare it to the 10-year cost presented in the RA for the TWIC Reader rule. 111 We then calculated the difference between the two costs to estimate the impact of this final rule. To properly compare the costs and benefits of this final rule and the TWIC reader rule, we first updated the costs of the TWIC Reader rule from 2012 dollars to 2016 dollars.

Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

This rule is a significant regulatory action under section 3(f) of Executive Order 12866. The Office of Management and Budget has reviewed it under that Order. It requires an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866. DHS considers this rule to be an Executive Order 13771 deregulatory action. See the OMB Memorandum titled “Guidance Implementing Executive Order 13771, titled `Reducing Regulation and Controlling Regulatory Costs'” (April 5, 2017). Details on the estimated cost savings of this rule can be found in the rule's regulatory analysis (RA) that follows.

I. Background, Purpose, and Legal Basis

The Milwaukee River is approximately 104 miles long. Beginning in Fond du Lac County the river flows easterly to a low head dam just above the Humboldt Avenue Bridge at mile 3.22 in downtown Milwaukee, WI. From here the river flows south to Lake Michigan. This southerly course of the Milwaukee River divides the lakefront area from the rest of the city. The Menomonee River joins the Milwaukee River at Mile 1.01 with the Kinnickinnic River joining the Milwaukee River at Mile 0.39. 21 bridges cross the Milwaukee River from mile 0.19 to mile 3.22. In the early 20th Century, the Milwaukee River was heavily used to support the industries in and around the Great Lakes. Today, the river has been redeveloped as a tourist and recreational destination. From its confluence with the Milwaukee River the Menomonee River flows west for 33 miles. The lower three miles of the Menomonee River is passable by vessels over 600 feet in length. Seven bridges cross the navigable portion of the Menomonee River.

The South Menomonee Canal and the Burnham Canal were both excavated during a waterways improvement project in 1864. Both man-made canals are tributaries of the Menomonee River branching just above its mouth. The South Menomonee Canal is crossed by two bridges and the Burnham Canal is crossed by three bridges. The Kinnickinnic River flows north through the southern portion of the City of Milwaukee connecting with the Milwaukee River near Lake Michigan. Only the lower 2.30 miles of the river have been improved for vessel use. Five bridges cross the river with the Lincoln Avenue Bridge at the head of navigation. Freighters up to 1,000 feet in length transfer cargoes at the confluence of the Kinnickinnic and Milwaukee Rivers. Most of the recreational vessels in Milwaukee moor in the lake front marinas and only transit the rivers. Boat yards on the Menomonee and Kinnickinnic rivers haul out and store most of the recreational vessels in the fall and winter months and launch the vessels in the spring. This action contributes to a considerable surge in drawbridge openings in the fall and spring.

The following bridges will be included in the test deviation: The Union Pacific Railroad Bridge, mile 0.59, over the Milwaukee River with a vertical clearance in the closed position of 7 feet above internet Great Lakes Datum of 1985 (IGLD85). The Broadway Street Bridge, mile 0.79, over the Milwaukee River with a vertical clearance in the closed position of 14 feet above IGLD85. The Water Street Bridge, mile 0.94, over the Milwaukee River with a vertical clearance in the closed position of 14 feet above IGLD85. The St. Paul Avenue Bridge, mile 1.21, over the Milwaukee River with a vertical clearance in the closed position of 14 feet above IGLD85. The Clybourn Street Bridge, mile 1.28, over the Milwaukee River with a vertical clearance in the closed position of 14 feet above IGLD85. Michigan Street Bridge, mile 1.37, over the Milwaukee River with a vertical clearance in the closed position of 12 feet above IGLD85. The Wisconsin Avenue Bridge, mile 1.46, over the Milwaukee River with a vertical clearance in the closed position of 12 feet above IGLD85. The Wells Street Bridge, mile 1.61, over the Milwaukee River with a vertical clearance in the closed position of 12 feet above IGLD85. The Kilbourn Avenue Bridge, mile 1.70, over the Milwaukee River with a vertical clearance in the closed position of 14 feet above IGLD85. The State Street Bridge, mile 1.79, over the Milwaukee River with a vertical clearance in the closed position of 14 feet above IGLD85. The Highland Avenue Pedestrian Bridge, mile 1.97, over the Milwaukee River with a vertical clearance in the closed position of 12 feet above IGLD85. The Juneau Avenue Bridge, mile 2.06, over the Milwaukee River with a vertical clearance in the closed position of 14 feet above IGLD85. The Knapp Street/Park Freeway Bridge, mile 2.14, over the Milwaukee River with a vertical clearance in the closed position of 16 feet above IGLD85. The Cherry Street Bridge, mile 2.29, over the Milwaukee River with a vertical clearance in the closed position of 14 feet above IGLD85. The Pleasant Street Bridge, mile 2.58, over the Milwaukee River with a vertical clearance in the closed position of 14 feet above IGLD85. The Canadian Pacific Railroad Bridge, mile 1.05, over the Menomonee River with a vertical clearance in the closed position of 8 feet above IGLD85. The North Plankinton Avenue Bridge, mile 1.08, over the Menomonee River with a vertical clearance in the closed position of 14 feet above IGLD85. The North Sixth Street Bridge, mile 1.37, over the Menomonee River with a vertical clearance in the closed position of 23 feet above IGLD85. The Ember Lane Bridge, mile 1.95, over the Menomonee River with a vertical clearance in the closed position of 12 feet above IGLD85. The Sixteenth Street Bridge, mile 2.14, over the Menomonee River with a vertical clearance in the closed position of 35 feet above IGLD85. The South Sixth Street Bridge, mile 1.51, over the South Menomonee Canal with a vertical clearance in the closed position of 8 feet above IGLD85. The Union Pacific Railroad Bridge, mile 1.19, over the Kinnickinnic River with a vertical clearance in the closed position of 8 feet above IGLD85. The Kinnickinnic Avenue Bridge, mile 1.67, over the Kinnickinnic River with a vertical clearance in the closed position of 8 feet above IGLD85. The Canadian Pacific Railroad Bridge, mile 1.67, over the Kinnickinnic River with a vertical clearance in the closed position of 15 feet above IGLD85. Finally, the South First Street Bridge, mile 1.78, over the Kinnickinnic River with a vertical clearance in the closed position of 14 feet above IGLD85. These bridges currently operate under Title 33 of the Code of Federal Regulations (33 CFR) section 117.1093.

In response to downtown Milwaukee residents' concerns regarding a pronounced increase in vehicular traffic in the area, the City of Milwaukee has requested a complete review of the bridge regulations in this area.

Over the years these regulations have been amended considerably. This has had the effect of making them difficult to comprehend to the average person. Additionally, the cyclic higher water levels over the past 3 years and increased number of passenger vessels in the downtown area have resulted in significantly more bridge openings. Finally, the conversion of older business buildings into condominiums have increased the evening vehicle traffic causing major traffic delays when the bridges are lifted. While the Milwaukee River is the primary concern with residents and mariners, this rulemaking proposes changes to the language governing bridges in the entire Milwaukee Harbor area, for the purpose of updating these regulations to accurately reflect the current operational needs of these bridges and make them easier to understand by the general public.

Currently, the Canadian Pacific Railroad Bridge at Mile 1.74 over the Burnham Canal and the Sixth Street Bridge at Mile 1.37 over the Menomonee River are closed by regulation and do not need to open for the passage of vessels. The City of Milwaukee has requested that the Sixteenth Street Bridge, mile 2.14, over the Menomonee River remain closed and not open by regulation. No vessels have requested a bridge opening in at least 10 years and the bridge provides a horizontal clearance of 120 feet and a vertical clearance of 35 feet above IGLD85, allowing most vessels to pass under the bridge without an opening. The Coast Guard is working with the city of Milwaukee to convert the Sixteenth Street Bridge to a fixed structure.

Ice has historically hindered or prevented navigation during the winter months. For the last eight years the Coast Guard has authorized the drawbridges to open on signal with a 12-hour advance notice of arrival for vessels from November 19th to April 16th. After careful review of the drawtender logs provided by the City of Milwaukee, the Coast Guard proposes to allow all bridges to require a 12-hour advance notice for openings from November 1st to April 15th each year.

The City of Milwaukee requested that from 11 p.m. to 7 a.m. daily, the bridges would open on signal with a 2-hour advance notice. During these hours the bridges would not be manned and roving drawtenders would open the bridges for vessels. After reviewing the 2016, 2017, and 2018 drawtender logs it was found that for those hours between April and November of each year an average of 45 vessels requested openings. Of these requests an average of 32 openings were between the hours of 11 p.m. and midnight. From midnight to 7 a.m. there were only 13 vessels that requested openings. After reviewing the data we have concluded that due to a lack of openings from midnight to 7 a.m. that a two-hour advance notice of arrival for a bridge opening meets the reasonable needs of navigation.

The City of Milwaukee also reported receiving several complaints from residents in the downtown area concerning the noise associated with the waterfront. To improve the quality of downtown living we propose to remove the special sound signals listed in the CFR for each bridge. Mariners would request openings by using the standard sound signal of one prolonged blast followed by one short blast or by agreement on VHF-FM Marine Radio or by telephone. From Midnight to 7 a.m. the bridges would require a 2-hour advance notice of arrival provided by VHF-FM Marine Radio or by telephone, thus reducing some of the noise associated with the waterfront.

The City of Milwaukee requests to operate the following bridges remotely: North Plankinton Avenue, mile 1.08, North Sixth Street, mile 1.37, and North Ember Lane, mile 1.95, all over the Menomonee River. Each remotely operated bridge will have sufficient equipment to operate as if a drawtender is in attendance at the bridge. No drawtender will be responsible for monitoring or operating more than 3 drawbridges at any time. At a minimum each remotely operated drawbridge will have the capabilities to communicate by 2-way public address system, equipment capable of making appropriate sound signals as required, and have adequate camera systems in place to safely operate the bridge.

The current regulation allows for no openings from 7:30 a.m. to 8:30 a.m. and from 4:30 p.m. to 5:30 p.m. for vehicular rush hours. The city has requested to start the evening rush hour at 4 p.m. instead of 4:30 p.m. to help relieve vehicle congestion. The city of Milwaukee provided the following vehicle data compiled by the Wisconsin Department of Transportation to support the additional 30 minutes of evening rush hour times. We have averaged the data into the following table:

Additionally, at the time when the original regulation was being written the stipulating regulation regarding the opening of bridges for public safety vessels had not yet been promulgated. An exception was included for vessels carrying U.S. mail and vessels that carry over 50 passengers for hire. The mail service no longer arrives by vessel. Limiting the exclusion by passenger count excludes other commercial vessels from transiting the river. This exclusion is only for the times the bridges do not need to open during high traffic times. During the test deviation, which is planned for the summer of 2020, the intent is to modify this exception to read: “vessels documented at 10 tons or more.” This prevents tug and barge, cement boats, some passenger vessels, and other large vessels (commercial or recreational) from getting trapped between bridges, which creates an especially unsafe condition.

The new exemption only prevents vessels from being trapped between bridges and does not exempt vessels from any times the bridges are not required to open. In other Great Lakes ports exemptions are allowed for safety reasons, it prevents a large vessel from station keeping in a restricted area with other smaller craft that could be damaged from the larger vessel. Additionally, if all commercial vessels were given a complete exemption to the periods where no bridge openings are required, also known as “Rush Hours,” then there would be no relief for the traffic congestion the downtown area is experiencing.

The two-hour advance notice requirement for all other bridges as noted in the ANPRM, has been in place since 1965 with no request to amend it. Most of these bridges have a clearance of 14 feet above IGLD85 or have limited requests for openings.

The test deviation will start at midnight on April 15, 2020 and end at midnight on November 1, 2020.

The operating schedule authorized:

The draws of the bridges over the Milwaukee River shall operate as follows:

(1) The draws of the North Broadway Street bridge, mile 0.5, and North Water Street bridge, mile 0.6, and Michigan Street bridge, mile 1.1, shall open on signal; except that, from April 16th through November 1st, from 7:30 a.m. to 8:30 a.m. and from 4 p.m. to 5:30 p.m. Monday through Friday, except Federal holidays, the draws need not be opened, and from midnight to 7 a.m. Monday through Saturday, except Federal holidays, the bridges will open on signal if a 2-hour advance notice is provided.

(2) The draws of all other bridges across the Milwaukee River shall open on signal if at least 2-hours' notice is given except that, from April 16th through November 1st, from 7:30 a.m. to 8:30 a.m. and from 4 p.m. to 5:30 p.m. Monday through Friday, except Federal holidays, the draws need not be opened.

(3) The following bridges are remotely operated, are required to operate a radiotelephone, and shall open as noted in this section; St Paul Avenue, mile 1.21, Clybourn Street, mile 1.28, Wells Street, mile 1.61, Kilbourn Street, mile 1.70, State Street, mile 1.79, Highland Avenue, mile 1.97, and Knapp Street, mile 2.14.

(4) No vessel documented 10 tons or greater shall be held between any bridge at any time and must be passed as soon as possible.

(5) From November 2nd through April 15th, all drawbridges over the Milwaukee River will open on signal if a 12-hour advance notice is provided. The draws of bridges across the Menomonee River and South Menomonee Canal operate as follows:

(1) The draw of the North Plankinton Avenue bridge across the Menomonee River, mile 1.08, shall open on signal; except that, from April 16th through November 1st, from 7:30 a.m. to 8:30 a.m. and from 4 p.m. to 5:30 p.m. Monday through Friday, except Federal holidays, the draws need not be opened, and from midnight to 7 a.m. Monday through Friday, except Federal holidays, the bridges will open on signal if a 2-hour advance notice is provided.

(2) The draws of all other bridges across the Menomonee River and South Menomonee Canal shall open on signal if at least 2-hours' notice is given except that, from April 16th through November 1st, from 7:30 a.m. to 8:30 a.m. and from 4 p.m. to 5:30 p.m. Monday through Friday, except Federal holidays, the draws need not be opened.

(3) The following bridges are remotely operated, are required to operate a radiotelephone, and shall open as noted in this section; North Plankinton Avenue, mile 1.08, North Sixth Street, mile 1.37, and North Ember Lane, mile 1.95, all over the Menomonee River and South Sixth Street, mile 1.51, over the South Menomonee Canal.

(4) No commercial vessel over 50 tons shall be held between any bridge at any time and must be passed as soon as possible.

(5) From November 2nd through April 15th, all drawbridges over the Menomonee River and South Menomonee Canal will open on signal if a 12-hour advance notice is provided.

The draws of bridges across the Kinnickinnic River operate as follows:

(1) The draw of the Kinnickinnic Avenue bridge, mile 1.5, shall open on signal; except that, from April 16th through November 1st, from 7:30 a.m. to 8:30 a.m. and from 4 p.m. to 5:30 p.m. Monday through Friday, except Federal holidays, the draws need not be opened, and from midnight to 7 a.m. Monday through Friday, except Federal holidays, the bridges will open on signal if a 2-hour advance notice is provided.

(2) The draws of all other bridges across the Kinnickinnic River shall open on signal if at least 2-hours' notice is given except that, from April 16th through November 1st, from 7:30 a.m. to 8:30 a.m. and from 4 p.m. to 5:30 p.m. Monday through Friday, except Federal holidays, the draws need not be opened.

(3) The following bridges are remotely operated, are required to operate a radiotelephone, and shall open as noted in this section; The South First Street Bridge, mile 1.78.

(4) No commercial vessel over 50 tons shall be held between any bridge at any time and must be passed as soon as possible.

(5) From November 2nd through April 15th, all drawbridges over the Kinnickinnic River will open on signal if a 12-hour advance notice is provided.

The Canadian Pacific Railroad Bridge at Mile 1.74 over the Burnham Canal, and the Sixteenth Street Bridge, mile 2.14, over the Menomonee River are closed by regulation and do not need to open for the passage of vessels.

During non-special event weekdays the owners of all affected bridges will provide records showing the dates and times of bridge openings and the type of vessels the bridge opened for. The city of Milwaukee will also provide information on the vehicle congestion caused or improved by the temporary deviation by providing the number of vehicles waiting for the bridge to close after a vessel passes.

Because we took into consideration the comments from the ANPRM, vehicle counts, and past three years of vehicle counts, we believe the test deviation will have a limited impact on vessels.

The city of Milwaukee held public discussions about the potential rule change through public works meetings conducted throughout the summer of 2018. Prior to asking for our review, this office reached out to several commercial vessels which operate on the affected waterways prior to the release of the ANPRM. These actions were aimed at developing a test deviation that took all pertinent comments and concerns under consideration.

Vessels that can safely pass under the bridge without an opening may do so at any time. The Coast Guard will also inform the users of the waterways of the change in operating schedule for the bridges through our Local and Broadcast Notices to Mariners.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. Should you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. Documents mentioned in this NPRM as being available in this docket and all public comments, will be in our online docket at http://www.regulations.gov, and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

The Coast Guard will enforce the safety zone located in 33 CFR 165.845 for the River Center Fireworks Display event. The regulations will be enforced from 9:00 p.m. through 10:00 p.m. on March 18, 2020. This action is being taken to provide for the safety of life on navigable waterways during this event, which will be located between MM 95.7 and MM 96.7 above Head of Passes, Lower Mississippi River, LA. During the enforcement periods, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard Ensign.

In addition to this notice of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via a Marine Safety Information Bulletin and Broadcast Notice to Mariners.

The COTP has determined reduced or restricted visibility and tropical storm force winds, which may occur during tropical storms, hurricanes and other disasters, constitutes a safety concern for vessels within the Miami COTP zone. As a result, the Coast Guard published a notice of proposed rulemaking (NPRM) on June 5, 2017  1 to establish a temporary safety zone over certain navigable waters in the Miami River and Ports of Miami, Everglades, Palm Beach and Fort Pierce. Since a considerable amount of time passed and a final rule was not published, the Coast Guard published a supplemental notice of proposed rulemaking (SNPRM) on October 3, 2019.  2 During the comment period that ended November 4, 2019, the Coast Guard received two comments.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The COTP Miami has determined reduced or restricted visibility and tropical storm force winds, which may occur during tropical storms, hurricanes and other disasters, constitutes a safety concern. The purpose of this rule is to ensure safety of certain vessels and navigable waters in the safety zone before, during, and after tropical storms, hurricanes and other disasters.

As noted above, the Coast Guard received two comments on the SNPRM in support of the proposed rule. In the regulatory text of this rule, we made one change by changing the section number of regulation from § 165.785 to § 165.706. We are making this change because § 165.785 is already being used for another regulation.

This rule establishes a safety zone that restricts certain vessels from entering or transiting through certain navigable waters in the Miami River and Ports of Miami, Everglades, Palm Beach and Fort Pierce during periods of reduced or restricted visibility due to tropical storm force winds (39-73 mph/34-63 knots), hurricanes and/or other disasters. The duration of the regulation is intended to ensure the safety of vessels and these navigable waters before, during, and after periods of tropical storm force winds.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Certain vessels will be affected by this rule only when heavy weather is forecast to make imminent landfall within the Sector Miami COTP zone. In addition, vessel traffic would be secured only during port conditions Yankee and Zulu, and only in ports potentially affected by tropical storm force winds. The Coast Guard will issue updates on https://homeport.uscg.mil/port-directory/miami, via broadcasts on VHF-FM marine channel 16, and during Severe Weather Advisory Team meetings.

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

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

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

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

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

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

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

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

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

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

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

We invite you to submit comments on the Policy Statement. See ADDRESSES for instructions on how to submit comments.

During and after the comment period, you may inspect all public comments about this proposed interpretation by accessing Regulations.gov . You may also inspect the comments in person in Room 5008 between the hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday of each week except Federal holidays. If you want to schedule time to inspect comments, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Assistance to Individuals with Disabilities in Reviewing the Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public record for this notice. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Background: On October 29, 2019, OSERS first published the Policy Statement that granted prior approval for two direct cost categories under the Department's authority in the OMB's Uniform Guidance, codified in 2 CFR 200.407(f) and (t), 200.439(b), and 200.456.

The prior approval applies to two direct cost categories, participant support costs and equipment, in the following State formula grant programs administered by OSEP and RSA:

1. Individuals with Disabilities Education Act (IDEA) Part B Section 611 Grants to States;

2. IDEA Section 619 Preschool Grants; and

3. IDEA Part C Grants for Infants and Families.

1. State Vocational Rehabilitation (VR) Services under the Rehabilitation Act of 1973 (Rehabilitation Act);

2. State Supported Employment (Supported Employment) Services;

3. Independent Living Services for Older Individuals Who Are Blind (OIB);

4. Protection and Advocacy of Individual Rights (PAIR); and

5. Client Assistance Program (CAP).

When we released the Policy Statement last October, we did so on an interim basis to provide grantees with immediate information to assist them in meeting their obligations under the Uniform Guidance for the listed RSA and OSEP programs. We noted that, “[w]e intend to publish this further and invite public comments,” and we are doing so now. We will consider these comments in determining whether to take any future action with respect to the Policy Statement. The Policy Statement is available on the Federal eRulemaking portal, www.regulations.gov, under docket no. ED-2020-OSERS-0022.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format ( e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT .

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register , in text or portable document format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

Preamble acronyms and abbreviations. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

Background information. On April 12, 2019, the EPA proposed the RTR for the Stationary Combustion Turbines NESHAP as well as amendments addressing periods of SSM and requiring electronic reporting. In this action, we are finalizing certain decisions and revisions for the rule. We summarize some of the more significant comments we timely received regarding the proposed rule and provide our responses in this preamble. A summary of all other public comments on the proposal and the EPA's responses to those comments is available in the National Emission Standards for Hazardous Air Pollutants from Stationary Combustion Turbines (40 CFR part 63, subpart YYYY), Residual Risk and Technology Review, Final Amendments, Summary of Public Comments and Responses on Proposed Rule, Docket ID No. EPA-HQ-OAR-2017-0688. A “track changes” version of the regulatory language that incorporates the changes in this action is available in the docket.

At this time, the EPA is not finalizing the proposed removal of the administrative stay of the effectiveness of the standards for new lean premix and diffusion flame gas-fired turbines to allow for additional time to review the public comments on the proposed removal of the stay, as well as a petition to delist the Stationary Combustion Turbines source category that was filed in August 2019. This final rule does not include responses to comments on lifting the stay. The EPA is still reviewing the comments on lifting the stay and will respond to them in any subsequent action.

Organization of this document. The information in this preamble is organized as follows:

Regulated entities. Categories and entities potentially regulated by this action are shown in Table 1 of this preamble.

Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source category listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

In addition to being available in the docket, an electronic copy of this final action will also be available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this final action at: https://www.epa.gov/stationary-sources-air-pollution/stationary-combustion-turbines-national-emission-standards. Following publication in the Federal Register , the EPA will post the Federal Register version and key technical documents at this same website.

Additional information is available on the RTR website at https://www.epa.gov/stationary-sources-air-pollution/risk-and-technology-review-national-emissions-standards-hazardous. This information includes an overview of the RTR program and links to project websites for the RTR source categories.

Under Clean Air Act (CAA) section 307(b)(1), judicial review of the final actions is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit (the court) by May 8, 2020. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.

Section 307(d)(7)(B) of the CAA further provides that only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. This section also provides a mechanism for the EPA to reconsider the rule if the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within the period for public comment or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule. Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, EPA WJC South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

Section 112 of the CAA establishes a two-stage regulatory process to address emissions of hazardous air pollutants (HAP) from stationary sources. In the first stage, we must identify categories of sources emitting one or more of the HAP listed in CAA section 112(b) and then promulgate technology-based NESHAP for those sources. “Major sources” are those that emit, or have the potential to emit, any single HAP at a rate of 10 tons per year (tpy) or more, or 25 tpy or more of any combination of HAP. For major sources, these standards are commonly referred to as maximum achievable control technology (MACT) standards and must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). In developing MACT standards, CAA section 112(d)(2) directs the EPA to consider the application of measures, processes, methods, systems, or techniques, including, but not limited to those that reduce the volume of or eliminate HAP emissions through process changes, substitution of materials, or other modifications; enclose systems or processes to eliminate emissions; collect, capture, or treat HAP when released from a process, stack, storage, or fugitive emissions point; are design, equipment, work practice, or operational standards; or any combination of the above.

For these MACT standards, the statute specifies certain minimum stringency requirements, which are referred to as MACT floor requirements, and which may not be based on cost considerations. See CAA section 112(d)(3). For new sources, the MACT floor cannot be less stringent than the emission control achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than floors for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources). In developing MACT standards, we must also consider control options that are more stringent than the floor under CAA section 112(d)(2). We may establish standards more stringent than the floor, based on the consideration of the cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements.

In the second stage of the regulatory process, the CAA requires the EPA to undertake two different analyses, which we refer to as the technology review and the residual risk review. Under the technology review, we must review the technology-based standards and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every 8 years, pursuant to CAA section 112(d)(6). Under the residual risk review, we must evaluate the risk to public health remaining after application of the technology-based standards and revise the standards, if necessary, to provide an ample margin of safety to protect public health or to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. The residual risk review is required within 8 years after promulgation of the technology-based standards, pursuant to CAA section 112(f). In conducting the residual risk review, if the EPA determines that the current standards provide an ample margin of safety to protect public health, it is not necessary to revise the MACT standards pursuant to CAA section 112(f). 1 For more information on the statutory authority for this rule, see 84 FR 15046.

The EPA promulgated the Stationary Combustion Turbines NESHAP on March 5, 2004 (69 FR 10512). The standards are codified at 40 CFR part 63, subpart YYYY, and apply to stationary combustion turbines at major sources of HAP. The stationary combustion turbine industry consists of facilities that own and operate stationary combustion turbines. The source category covered by this MACT standard currently includes 243 facilities. Stationary combustion turbines are typically located at power plants, compressor stations, landfills and industrial facilities such as chemical plants.

Stationary combustion turbines have been divided into the following eight subcategories: (1) Emergency stationary combustion turbines, (2) stationary combustion turbines which burn landfill or digester gas equivalent to 10 percent or more of the gross heat input on an annual basis or where gasified municipal solid waste is used to generate 10 percent or more of the gross heat input to the stationary combustion turbine on an annual basis, (3) stationary combustion turbines of less than 1 megawatt rated peak power output, (4) stationary lean premix combustion turbines when firing gas and when firing oil at sites where all turbines fire oil no more than an aggregate total of 1,000 hours annually (also referred to herein as “lean premix gas-fired turbines”), (5) stationary lean premix combustion turbines when firing oil at sites where all turbines fire oil more than an aggregate total of 1,000 hours annually (also referred to herein as “lean premix oil-fired turbines”), (6) stationary diffusion flame combustion turbines when firing gas and when firing oil at sites where all turbines fire oil no more than an aggregate total of 1,000 hours annually (also referred to herein as “diffusion flame gas-fired turbines”), (7) stationary diffusion flame combustion turbines when firing oil at sites where all turbines fire oil more than an aggregate total of 1,000 hours annually (also referred to herein as “diffusion flame oil-fired turbines”), and (8) stationary combustion turbines operated on the North Slope of Alaska (defined as the area north of the Arctic Circle (latitude 66.5 degrees North)).

The sources of emissions are the exhaust gases from combustion of gaseous and liquid fuels in a stationary combustion turbine. The HAP that are present in the exhaust gases from stationary combustion turbines include formaldehyde, toluene, benzene, and acetaldehyde. Metallic HAP are present in the exhaust from distillate oil-fired turbines; these metallic HAP are generally carried over from the fuel constituents.

The NESHAP requires new or reconstructed stationary combustion turbines in the lean premix gas-fired, lean premix oil-fired, diffusion flame gas-fired, and diffusion flame oil-fired subcategories to meet a formaldehyde limit of 91 parts per billion by volume, dry basis (ppbvd) at 15-percent oxygen (O 2 ). Compliance is demonstrated through initial and annual performance testing and continuous monitoring of operating parameters. The requirements of the rule are currently under a stay of effectiveness for new lean premix and diffusion flame gas-fired turbines.

On April 12, 2019, the EPA published a proposed rule in the Federal Register for the Stationary Combustion Turbines NESHAP, 40 CFR part 63, subpart YYYY, that took into consideration the RTR analyses. In the proposed rule, we proposed to find that risks from the Stationary Combustion Turbines source category due to emissions of air toxics are acceptable and that the existing NESHAP provides an ample margin of safety to protect public health. No new cost-effective controls were identified in the technology review for the proposed rule. The EPA also proposed to eliminate the exemption for periods of SSM, and our risk analysis assumed removal of that exemption. We proposed a new requirement to electronically submit performance test results and semiannual compliance reports. Finally, we proposed to remove the stay of the standards for new lean premix and diffusion flame gas-fired turbines. We did not propose any revisions to the emission standards based on our RTR.

This action finalizes the EPA's determinations pursuant to the RTR provisions of CAA section 112 for the Stationary Combustion Turbines source category. This action also finalizes other changes to the NESHAP, including amendments to the SSM provisions and the addition of electronic reporting requirements. This action reflects changes to the April 19, 2019, proposal in consideration of comments received during the public comment period described in section IV of this preamble.

As stated previously, the EPA is not finalizing the proposed removal of the stay of the effectiveness of the standards for new lean premix and diffusion flame gas-fired turbines at this time. The EPA received numerous comments on the proposed stay indicating that 180 days is not sufficient time for owners and operators to conduct all of the activities that are needed for their turbines to come into compliance with the standards, which include the design, procurement, and installation of emission controls and parametric monitoring equipment that can fit within existing sites (as compared to new facilities where the controls are incorporated into the facility design), performance testing, and implementation of procedures for monitoring, recordkeeping, and reporting. More time is needed to review these comments on the removal of the stay. In addition, the EPA received a petition to delist the Stationary Combustion Turbines source category from regulation under CAA section 112 in August 2019. As discussed in more detail in the April 12, 2019, proposal, the EPA proposed to delist certain subcategories of stationary combustion turbines in 2004 under CAA section 112(c)(9)(B) and stayed the effectiveness of the standards for those subcategories, pending the outcome of the proposed delisting. A subsequent 2007 decision by the court  2 held that the EPA has no authority to delist subcategories under CAA section 112(c)(9)(B). Consequently, the EPA proposed to remove the stay in the April 12, 2019, proposal. In recognition of the EPA's inability to delist subcategories under CAA section 112(c)(9)(B), the new August 2019 petition requests delisting of the entire Stationary Combustion Turbines source category and provides an assessment of the risks for the entire source category. A copy of the petition is in the docket for this rulemaking (Docket ID No. EPA-HQ-OAR-2017-0688). The EPA is in the process of reviewing the petition and has not made a determination regarding whether the information included in the petition supports delisting the entire source category, but notes that the petitioners provided an analysis of the risks from the source category and, based on their analysis, the petitioners concluded that a demonstration can be made that delisting is appropriate under CAA section 112(c)(9)(B). The EPA has determined that it would be reasonable to delay taking final action on the stay until we have made a determination regarding the source category delisting petition, so that turbine owners and operators do not make expenditures on emission controls and performance testing that will not be required if the source category is delisted. Such expenditures would be wasteful and unwarranted if the source category is delisted. Moreover, the EPA has no legal obligation to lift the stay in this RTR rulemaking. Although the EPA often uses the RTR rulemaking vehicle to revise or update various aspects of a NESHAP, as it did here with respect to its proposal to eliminate a stay provision in the rule, the EPA did not do so nor is the EPA required to do so under CAA section 112(d)(6) or (f)(4).

We are finalizing our proposed finding that risks remaining after implementation of the existing MACT standards for this source category (as revised in this action to remove the SSM exemption) are acceptable. We are also finalizing our proposed determination that the current NESHAP (as revised in this action to remove the SSM exemption) provides an ample margin of safety to protect public health. Therefore, we are not finalizing any revisions to the numerical emission limits based on these analyses conducted under CAA section 112(f).

We determined that there are no developments in practices, processes, and control technologies that warrant revisions to the MACT standards for this source category. Therefore, we are not finalizing revisions to the MACT standards under CAA section 112(d)(6).

In its 2008 decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), the court vacated portions of two provisions in the EPA's CAA section 112 regulations governing the emissions of HAP during periods of SSM. Specifically, the court vacated the SSM exemption contained in 40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), holding that under section 302(k) of the CAA, emissions standards or limitations must be continuous in nature and that the SSM exemption violates the CAA's requirement that some CAA section 112 standards apply continuously.

We have eliminated the SSM exemption in this rule. Consistent with Sierra Club v. EPA, the EPA has established standards in this rule that apply at all times. We have also revised Table 7 (the General Provisions applicability table) in several respects as is explained in more detail in the proposal. For example, we have eliminated the incorporation of the General Provisions' requirement that the source develop an SSM plan. We have also eliminated and revised certain recordkeeping and reporting requirements that are related to the SSM exemption as described in detail in the proposed rule and in section IV.C of this preamble.

The EPA is requiring owners and operators of stationary combustion turbine facilities to submit electronic copies of certain required performance test results and semiannual compliance reports through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). The final rule requires that performance test results collected using test methods that are supported by the EPA's Electronic Reporting Tool (ERT) as listed on the ERT website  3 at the time of the test be submitted in the format generated through the use of the ERT and that other performance test results be submitted in portable document format using the attachment module of the ERT. The test methods required by 40 CFR part 63, subpart YYYY that are currently supported by the ERT are EPA Methods 3A and 4 of 40 CFR part 60, appendix A. For periodic compliance reports, the final rule requires that owners and operators use the appropriate spreadsheet template to submit information to CEDRI. The final version of the template for these reports is located on the CEDRI website. 4

The electronic submittal of the reports addressed in this rulemaking will increase the usefulness of the data contained in those reports, is in keeping with current trends in data availability and transparency, will further assist in the protection of public health and the environment, will improve compliance by facilitating the ability of regulated facilities to demonstrate compliance with requirements and by facilitating the ability of delegated state, local, tribal, and territorial air agencies and the EPA to assess and determine compliance, and will ultimately reduce burden on regulated facilities, delegated air agencies, and the EPA. Electronic reporting also eliminates paper-based, manual processes, thereby saving time and resources, simplifying data entry, eliminating redundancies, minimizing data reporting errors, and providing data quickly and accurately to the affected facilities, air agencies, the EPA, and the public. For a more thorough discussion of electronic reporting, see the memorandum, Electronic Reporting Requirements for New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) Rules, available in Docket ID No. EPA-HQ-OAR-2017-0688.

The revisions to the MACT standards being promulgated in this action are effective on March 9, 2020. The compliance date for affected sources to comply with the amendments pertaining to SSM and electronic reporting is 180 days after the effective date of the final rule. As discussed elsewhere in this preamble, we are adding a requirement that performance test results and semiannual compliance reports be submitted electronically, and we are changing the requirements for periods of SSM by removing the exemption from the requirement to meet the emission standards during periods of SSM and promulgating an operational standard for startup. Our experience with similar industries that are required to convert reporting mechanisms to install necessary hardware and software, become familiar with the process of submitting performance test results and compliance reports electronically through the EPA's CEDRI, test these new electronic submission capabilities, and reliably employ electronic reporting shows that a time period of a minimum of 90 days and, more typically, 180 days, is generally necessary to successfully accomplish these revisions. Our experience with similar industries further shows that this sort of regulated facility generally requires a time period of 180 days to read and understand the amended rule requirements; to evaluate their operations to ensure that they can meet the standards during periods of startup and shutdown as defined in the rule and make any necessary adjustments; and to update their operation, maintenance, and monitoring plans to reflect the revised requirements. The EPA recognizes the confusion that multiple different compliance dates for individual requirements would create and the additional burden such an assortment of dates would impose. From our assessment of the timeframe needed for compliance with the entirety of the revised requirements, the EPA considers a period of 180 days to be the most expeditious compliance period practicable and, thus, is requiring that affected sources must be in compliance with all of the revised requirements within 180 days of the regulation's effective date. All affected facilities would have to continue to meet the current requirements of 40 CFR part 63, subpart YYYY, until the applicable compliance date of the amended rule.

For each issue, this section provides a description of what we proposed and what we are finalizing for the issue, the EPA's rationale for the final decisions and amendments, and a summary of key comments and responses. For all comments not discussed in this preamble, comment summaries and the EPA's responses can be found in the comment summary and response document available in the docket.

Pursuant to CAA section 112(f), the EPA conducted a residual risk review and presented the results of this review, along with our proposed decisions regarding risk acceptability and ample margin of safety, in the April 12, 2019, proposed rule for 40 CFR part 63, subpart YYYY (84 FR 15046). The results of the risk assessment for the proposal are presented briefly below in Table 2 of this preamble. More detail is in the residual risk technical support document, Residual Risk Assessment for the Stationary Combustion Turbines Source Category in Support of the 2019 Risk and Technology Review Proposed Rule, available in the docket for this rulemaking (Docket ID No. EPA-HQ-OAR-2017-0688).

The results of the proposal inhalation risk modeling using actual and allowable emissions data, as shown in Table 2 of this preamble, indicate that the maximum lifetime individual cancer risk (MIR) is 3-in-1 million, the maximum chronic noncancer TOSHI is 0.04, and the maximum screening acute noncancer HQ (off-facility site) is 2 (driven by acrolein). Only one facility has an HQ (REL) that exceeds 1. At proposal, the total annual cancer incidence (national) from these facilities was estimated to be 0.04 excess cancer cases per year, or one case in every 25 years. The facility-wide maximum lifetime cancer MIR was estimated to be 2,000-in-1 million at proposal, driven by ethylene oxide emissions from chemical manufacturing. At proposal, the total estimated cancer incidence from whole facility emissions was estimated to be 0.7 excess cancer cases per year, or one excess case in every 1 to 2 years. Approximately 2.8 million people were estimated to have cancer risks above 1-in-1 million from exposure to HAP emitted from both MACT and non-MACT sources at the facilities in the source category. The estimated maximum chronic noncancer TOSHI based on facility-wide emissions is 4 (respiratory), driven by emissions of chlorine from chemical manufacturing, and approximately 360 people are exposed to a TOSHI above 1.

At proposal, potential multipathway human health risks were estimated using a three-tier screening assessment of the persistent bio-accumulative HAP (PB-HAP) emitted by facilities in this source category. The only pollutants with elevated Tier 1 and Tier 2 screening values were arsenic (cancer), cadmium (noncancer), and mercury (noncancer). The Tier 3 screening values for these pollutants were low. For cancer, the Tier 3 screening value for arsenic was 4. For noncancer, the Tier 3 screening value for cadmium was less than 1, and the screening value for mercury was 1.

Several environmental HAP are emitted by sources within this source category: Arsenic, dioxins/furans, and polycyclic organic matter. Therefore, at proposal we conducted a three-tier screening assessment of the potential adverse environmental risks associated with emissions of these pollutants. Based on this assessment (through Tier 2), there were no exceedances of any of the ecological benchmarks evaluated for any of the pollutants, and we proposed that we do not expect an adverse environmental effect as a result of HAP emissions from this source category.

We weighed all health risk factors, including those shown in Table 2 of this preamble, in our risk acceptability determination and proposed that the residual risks from the Stationary Combustion Turbines source category are acceptable (section IV.B.1 of proposal preamble, 84 FR 15062, April 12, 2019). We then considered whether 40 CFR part 63, subpart YYYY provides an ample margin of safety to protect public health and prevents, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. In considering whether the standards should be tightened to provide an ample margin of safety to protect public health, we considered all health factors evaluated in the risk assessment and evaluated the cost and feasibility of available control technologies and other measures (including the controls, measures, and costs reviewed under the technology review) that could be applied to this source category to further reduce the risks (or potential risks) due to emissions of HAP identified in our risk assessment. In this analysis, we considered the results of the technology review, risk assessment, and other aspects of our MACT rule review to determine whether there are any emission reduction measures necessary to provide an ample margin of safety with respect to the risks associated with these emissions. Our risk analysis indicated the risks from the source category are low for both cancer and noncancer health effects, and, therefore, any risk reductions from further available control options would result in minimal health benefits. Moreover, as noted in our discussion of the technology review, no additional cost-effective measures were identified for reducing HAP emissions from affected sources in the Stationary Combustion Turbines source category. Thus, we determined that the current Stationary Combustion Turbines NESHAP provides an ample margin of safety to protect public health.

Our technology review focused on identifying developments in practices, processes, and control technologies that have occurred since the Stationary Combustion Turbines NESHAP was originally promulgated in 2004. Our review of the developments in technology for the Stationary Combustion Turbines source category did not reveal any changes that require revisions to the emission standards. The only add-on HAP emission control technology identified in the original NESHAP rulemaking was an oxidation catalyst. No new or improved add-on control technologies that reduce HAP emissions from turbines were identified during the technology review. Our review also did not identify any new or improved operation and maintenance practices, process changes, pollution prevention approaches, or testing and monitoring techniques for stationary combustion turbines. Therefore, we determined that no revisions are necessary pursuant to CAA section 112(d)(6).

The only change in the risk assessment for the final rule is that the EPA modeled an additional 46 turbines that were identified in a public comment (Docket ID Item No. EPA-HQ-OAR-2017-0688-0116) as subject to the Stationary Combustion Turbines NESHAP. The emissions data used to model those additional turbines and the results of the modeling are discussed in the memorandum titled Emissions Data Used in Modeling Files for Additional Turbines for Stationary Combustion Turbines Risk and Technology Review (RTR), which is in the docket for this rulemaking (Docket ID No. EPA-HQ-OAR-2017-0688). The modeling input files are also available in the docket. The risks for the additional turbines were all lower than the risks for the turbines modeled for the proposed rule, so the additional risk analysis did not result in changes to our proposed decisions on risk acceptability, ample margin of safety, and adverse environmental effect.

We received comments in support of and against the proposed residual risk review and our determination that no revisions were warranted under CAA section 112(f)(2) for the Stationary Combustion Turbines source category. Generally, the comments that were not supportive of the determination from the risk review suggested changes to the underlying risk assessment methodology. For example, some commenters stated that the EPA should lower the acceptability benchmark so that risks below 100-in-1 million are unacceptable, include emissions outside of the source categories in question in the risk assessment, and assume that pollutants with noncancer health risks have no safe level of exposure. After review of all the comments received, we determined that no changes were necessary. The comments and our specific responses can be found in the document, National Emission Standards for Hazardous Air Pollutants from Stationary Combustion Turbines (40 CFR part 63, subpart YYYY) Residual Risk and Technology Review, Final Amendments: Summary of Public Comments and Responses on Proposed Rule, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2017-0688).

As noted in our proposal, the EPA sets standards under CAA section 112(f)(2) using a two-step standard-setting approach, with an analytical first step to make a risk-acceptability determination that considers all health information, including risk estimation uncertainty, and includes a presumptive limit on MIR of approximately 1-in-10 thousand (see 54 FR 38045, September 14, 1989). We weigh all health risk factors in our risk acceptability determination, including the cancer MIR, cancer incidence, the maximum cancer TOSHI, the maximum acute noncancer HQ, the extent of noncancer risks, the distribution of cancer and noncancer risks in the exposed population, and the risk estimation uncertainties.

Since proposal, neither the risk assessment nor our determinations regarding risk acceptability, ample margin of safety, or adverse environmental effects have changed, even considering the additional 46 turbines modeled. Therefore, for the reasons explained in the proposed rule, we determined that the risks from this source category are acceptable, and the current standards provide an ample margin of safety to protect public health and prevent an adverse environmental effect. Therefore, we are not revising this subpart to require additional controls pursuant to CAA section 112(f)(2) based on the residual risk review, and we are readopting the existing standards under CAA section 112(f)(2).

Pursuant to CAA section 112(d)(6), we conducted a technology review, which focused on identifying and evaluating developments in practices, processes, and control technologies for control of HAP emissions from stationary combustion turbines. No cost-effective developments in practices, processes, or control technologies were identified in our technology review to warrant revisions to the standards. More information concerning our technology review can be found in the Technology Review for Stationary Combustion Turbines Risk and Technology Review (RTR) memorandum, which is in the docket for this action (Docket ID No. EPA-HQ-OAR-2017-0688), and in the preamble for the proposed rule (84 FR 15046).

The technology review has not changed since the proposal.

We received both supportive and adverse comments on the proposed technology review. Most commenters supported the EPA's proposed technology review determination. The summarized comments and the EPA's responses are provided in the National Emission Standards for Hazardous Air Pollutants from Stationary Combustion Turbines (40 CFR part 63, subpart YYYY), Residual Risk and Technology Review, Final Amendments, Summary of Public Comments and Responses on Proposed Rule document referenced in section IV.A.3 of the preamble. The most significant adverse comments and the EPA's responses are also provided below.

Comment: One commenter stated that the EPA reviewed only the technology used to limit formaldehyde in the technology review and does not evaluate selective catalytic reduction (SCR) or any other of the technologies identified as “developments” within the meaning of CAA section 112(d)(6), which is unlawful and arbitrary.

The commenter stated that the EPA ignored other HAP controls in the technology review—such as wet controls (water or steam injection), lean premixed combustion, and SCR—without any rational explanation. The commenter noted that the EPA is aware of evidence showing that SCR can and does reduce HAP, such as benzene. The commenter cited a 2016 study, Catalytic Destruction of a Surrogate Organic Hazardous Air Pollutant as a Potential Co-benefit for Coal-fired Selective Catalyst Reduction Systems (C.W. Lee et al.), which found that “significant destruction of benzene occurred under a broad range of SCR operating conditions, suggesting that a large number of coalfired utility boilers which are equipped with SCR for NO X control have potential to achieve reduction of organic HAP emissions as a co-benefit.”

The commenter stated that the EPA must consider ways to reduce emissions through developments such as: Methods to assure more efficient use of turbines; use of lower HAP fuels; and/or alternative energy generation altogether through renewables and/or battery storage systems. According to the commenter, the EPA must consider battery storage in particular because this has the potential to increase efficiency and reduce emissions, and to reduce all of the turbine-based risks the EPA found to zero by reducing the emissions completely if paired with a renewable energy source such as solar. The commenter stated that the EPA does not evaluate or take into account any of these developments, and this is unlawful, arbitrary, and capricious under CAA section 112(d)(6).

The commenter noted that there are also developments in volatile organic compounds, acid gas, and metal controls, leak detection and repair, and monitoring that the EPA must consider and ensure that the standards “tak[e] into account” for this source category and these facilities. The commenter stated that since the EPA finalized the original standards, the EPA has recognized such developments in other contexts. The commenter concluded that the EPA would violate CAA section 112(d)(6) by failing to consider and account for the “developments” in fenceline monitoring, leak detection and repair, and pollution controls—particularly where data show significant health risks from a range of emitted pollutants, including cancer, chronic noncancer, and acute risk. The commenter stated that refusing to consider these developments is also arbitrary. The commenter explained that many facilities that include turbines are similar to refineries, in their significant potential for leaks and emission spikes that cause health and safety threats, and in their complexity. The commenter concluded that all of the developments discussed are readily available, would improve emission control, reduce health risks and refusing to consider them and revise the standards to “account” for them would be unlawful and arbitrary.

Conversely, another commenter stated that, setting aside whether fenceline monitoring technology constitutes a “development” under CAA section 112(d)(6), it would be arbitrary and capricious to adopt fenceline monitoring requirements for stationary combustion turbines as part of this RTR. Fenceline monitoring is used to identify sources of fugitive emissions. According to the commenter, stationary combustion turbines do not have fugitive HAP emissions. According to the commenter, even if some combustion turbine facilities may also contain other equipment with the potential for fugitive emissions, such as natural gas transmission pipelines, that other equipment is not part of the source category under review here and cannot be the basis for new requirements adopted pursuant to CAA section 112(d)(6) review for combustion turbines.

Response: The EPA disagrees with the commenter that it only reviewed technologies used to limit formaldehyde emissions. As discussed in the memorandum, Technology Review for Stationary Combustion Turbines Risk and Technology Review (RTR) (Docket ID Item No. EPA-HQ-OAR-2017-0688-0066), the EPA reviewed a variety of sources of information during the technology review. Those sources of information included the EPA's RACT/BACT/LAER Clearinghouse (RBLC), construction and operating permits for stationary combustion turbines, information provided by owners and operators of stationary combustion turbines, and manufacturers of emission control technologies and testing equipment. The review was not limited to technologies that limit formaldehyde emissions, as evidenced by the RBLC search criteria documented in Appendix A of the memorandum and the questions asked of industry stakeholders described in Appendix B of the memorandum.

The 2016 study cited by the commenter as evidence that SCR reduces HAP such as benzene evaluated the HAP reductions from SCR applied to simulated coal combustion flue gases. The chemical composition of the coal combustion flue gases is very different from the chemical composition of the exhaust from stationary combustion turbines, and there is no evidence provided that the use of SCR in coal combustion exhaust and the resulting catalytic chemical reactions that cause the destruction of benzene would occur in the same way if SCR is applied to stationary combustion turbines. The information provided to the EPA regarding “dual-purpose” catalysts that include SCR for nitrogen oxides (NOx) removal and oxidation for carbon monoxide (CO) and HAP removal indicates that the HAP reduction occurs due to the oxidation and not from the SCR. 5 The commenter did not provide any evidence that water or steam injection would reduce HAP emissions, or that fuels that lead to lower HAP emissions have been developed. Lean premix combustion is not a new technology (and is one of the subcategories established in the original 2004 40 CFR part 63, subpart YYYY rulemaking) and the commenter did not provide any evidence that there have been any developments in the technology. As discussed in the memorandum cited above, the trade organization representing gas turbine manufacturers indicated that there have not been any changes in turbine design since the 2004 rulemaking. We disagree that the EPA must consider alternative energy generation altogether through renewables and/or battery storage and that the use of batteries if paired with renewable energy such as solar would reduce emissions completely. The commenter's suggested technology (renewables and batteries) is not a revision to the emissions standard for the Stationary Combustion Turbines source category, which is what the EPA is required to review and revise as appropriate, under CAA section 112(d)(6). The commenter is suggesting elimination of combustion turbines as a source category and that is beyond the scope of this rulemaking. Even if such an approach were an appropriate “revision” of the emission standards for combustion turbines under CAA section 112(d)(6), the commenter did not provide any information to show that using renewables or battery storage has been demonstrated on the scale that would be needed to replace the generation produced by the combustion turbines subject to subpart YYYY.

Regarding the comment that the EPA should consider leak detection and repair and fenceline monitoring requirements, the EPA notes that those requirements were included in the NESHAP for Petroleum Refineries (40 CFR part 63, subpart CC). Those requirements for refineries target refinery MACT-regulated fugitive emission sources ( e.g., storage tanks, equipment leaks, and wastewater). Fenceline monitoring, as discussed in the preamble to the proposed Petroleum Refinery rule (79 FR 36920), may identify significant increases in emissions, but small increases in emissions are unlikely to impact the fenceline concentrations. Fenceline monitoring would not be beneficial for the Stationary Combustion Turbines source category because stationary turbines have very low fugitive HAP emissions and their operation does not involve storage and transport of large volumes of volatile organic materials unlike the refinery sector. The potential for fugitive volatile organic HAP emissions, as a result of the reduced amount of transport and the reduced storage of volatile organic materials, is vastly lower.

We evaluated all of the comments on the EPA's technology review and determined that no changes to the review are needed based on the comments. For the reasons explained in the proposed rule, we determined that no cost-effective developments in practices, processes, or control technologies were identified in our technology review to warrant revisions to the standards. More information concerning our technology review and how we evaluate cost effectiveness can be found in the Technology Review for Stationary Combustion Turbines Risk and Technology Review (RTR) memorandum, which is in the docket for this action (Docket ID No. EPA-HQ-OAR-2017-0688), and in the preamble for the proposed rule (84 FR 15046). Therefore, pursuant to CAA section 112(d)(6), we are finalizing our technology review as proposed.

In its 2008 decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), the court vacated portions of two provisions in the EPA's CAA section 112 General Provisions regulations governing the emissions of HAP during periods of SSM. Specifically, the court vacated the SSM exemption contained in 40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), holding that under section 302(k) of the CAA, emissions standards or limitations must be continuous in nature and that the SSM exemption violates the CAA's requirement that some CAA section 112 standards apply continuously.

The EPA proposed to revise provisions related to SSM that are not consistent with the requirement that standards apply at all times. More information concerning our proposal on SSM can be found in the proposed rule (84 FR 15046). As discussed in the proposal, the EPA proposed an operational standard in lieu of a numeric emission limit during periods of startup, in accordance with CAA section 112(h). The EPA proposed that during turbine startup, owners and operators must minimize the turbine's time spent at idle or holding at low load levels and minimize the turbine's startup time to a period needed for appropriate and safe loading of the turbine, not to exceed 1 hour for simple cycle stationary combustion turbines and 3 hours for combined cycle stationary combustion turbines, after which time the formaldehyde emission limitation of 91 ppbvd at 15-percent O 2 would apply. We did not propose a different standard that would apply during shutdown.

In the final rule, we revised aspects of the operational standard for startup from the proposal based on public comments. We removed the language specifying that the owner or operator must minimize the turbine's time spent at idle or holding at low levels and minimize the turbine's startup time to a period needed for appropriate and safe loading of the turbine. We have also added a definition for startup that is specific to stationary combustion turbines, rather than using the general definition in the General Provisions (subpart A) of 40 CFR part 63. The definition specifies that startup begins at the first firing of fuel in the stationary combustion turbine.

In response to comments regarding the proposed operational standard for startup and the proposed conclusion that a standard for shutdown is not necessary, the EPA evaluated Acid Rain Program hourly emissions data for stationary combustion turbines from 2018. 6 The stabilization of NOx emissions, an indicator of stable combustion and post-combustion processes, was used to determine startup and shutdown times for turbines subject to 40 CFR part 63, subpart YYYY. Based on the Acid Rain Program emissions data, the EPA determined that the majority of turbine startup times were less than 1 hour for simple cycle turbines and the majority of startup times were less than 3 hours for combined cycle turbines. Upper prediction limits for the best performers for startup time were also determined following statistical methods used to define upper prediction limits for MACT emission standards ( e.g., methods detailed in the memorandum, CO CEMS MACT Floor Analysis August 2012 for the Industrial, Commercial, and Institutional Boilers and Process Heaters National Emission Standards for Hazardous Air Pollutants Major Source, Docket ID Item No. EPA-HQ-OAR-2002-0058-3877). Upper prediction limits were less than 1 hour for simple cycle turbines and less than 3 hours for combined cycle turbines regardless of startup type ( i.e., cold, warm, and hot starts). Additionally, the majority of shutdown times were less than 30 minutes for both simple cycle and combined cycle turbines. Finally, utilizing oxidation catalyst had minimal effect on startup and shutdown times.

Comment: Commenters stated that the proposed rule does not define what constitutes the period of startup, including the beginning and the ending. The commenters added that 40 CFR part 63 defines startup as “the setting in operation of an affected source or portion of an affected source for any purpose.” The commenters stated that this definition is vague and does not specify when startup ends. The commenters suggested that the EPA provide a definition of startup as it applies to simple cycle and combined cycle combustion turbines. A commenter also stated that some combined cycle combustion turbines can operate in simple cycle mode. Therefore, the EPA also needs to address these types of turbines in the definitions or the standard itself, according to the commenter. A commenter added that the definition used in the standard should not interfere with the definition of startup in other parts of the CAA or in operating permits, nor should it constrain normal operations. The commenter specifically suggested that the EPA revise the operational standard to apply only upon the first firing of fuel in the combustion turbine.

Response: The EPA agrees with the commenters that it would be appropriate to define startup as beginning at the first firing of fuel in the stationary combustion turbine and to specify when the startup standard ends. The EPA has specified different startup times for simple cycle and combined cycle turbines, as discussed elsewhere in this section. For simple cycle turbines, the EPA has specified in the final rule that startup ends when the stationary combustion turbine has reached stable operation or after 1 hour, whichever is less. For combined cycle turbines, startup ends when the stationary combustion turbine has reached stable operation or after 3 hours, whichever is less. If a turbine in a combined cycle configuration is operating as a simple cycle turbine, it must follow the requirements for simple cycle turbines. Regarding the comment that the definition should not interfere with the definition of startup in other parts of the CAA or in operating permits or constrain normal operations, the EPA does not anticipate any interference. As discussed elsewhere in this section, the standard is based on turbine startup times gathered from emissions data, and it also allows the turbine to take longer to start up if needed (while requiring that the turbine meet the applicable formaldehyde limit).

Comment: Many commenters expressed support for the establishment of the operational standard during startup operations but asserted that the EPA must allow more time for certain startup operations for combined cycle stationary combustion turbines. Some commenters stated that they believe the record does not demonstrate the feasibility of a 3-hour startup time for combined cycle units. They added that it appears the 3-hour limit was taken from a document from the Gas Turbine Association (Docket ID Item No. EPA-HQ-OAR-2017-0688-0033). These commenters stated that while this document discusses a period of 3 hours for startup, the document also discusses the wide range of variability in the time needed. Several commenters explained that the startup time for a combined cycle turbine is impacted by its integration with other site facilities and the type of startup. Some commenters cited specific instances when additional startup time beyond what was proposed for combined cycle turbines may be expected, including:

• Startups following extended downtime or a unit turnaround which commenters asserted may take up to 10 hours. A commenter provided a list of nine major steps for startup following a unit turnaround in their comment letter to support the need for additional startup time;

• startup involving combined heat and power units as the startup typically involves purging and setup of the heat recovery steam generator, followed by gas speed-up and loading, followed by the steam turbine speedup and loading;

• various types of startup including a “warm” start ( i.e., when the steam turbine first stage or reheat inner metal temperature is between 400 and 700 degrees Fahrenheit) and a “cold” start ( i.e., when the steam turbine first stage or reheat inner metal temperature is less than 400 degrees Fahrenheit). One commenter reviewed operating data from 2017-2019 for some of its stationary combined cycle combustion turbines, noting that 32 out of 82 “warm” startups exceeded a 3-hour duration with an average duration of 3.3-4 hours, and all 23 of the “cold” startups exceeded the 3-hour duration with an average duration of 5-6 hours. Another commenter stated that member companies will be submitting facility-specific data showing the impact of startup type on duration;

• startup involving gas fuel turbines integrated with other systems associated with multiple boilers to produce electricity and steam for a large manufacturing complex; and

• pre-startup commissioning activities and initial startup at liquid natural gas terminals.

Some commenters suggested that 4 hours be provided in the standard. Other commenters suggested that the EPA allow 5.5 hours as the baseline with provisions for site-specific requests for additional time. Some commenters suggested that the final action should provide a procedure for the EPA or state permitting authorities to provide application of an alternative standard for combined cycle turbines if an operator demonstrates that it is needed. A commenter suggested that the EPA allow between 6-8 hours in the standard. Another commenter suggested that the EPA allow up to 10 hours in the standard. One commenter suggested that, consistent with their state operating permit requirements and due to the unique nature of their operations, the EPA should allow up to 12 hours in the standard. Another commenter added that the EPA could provide different time frames if they differentiated between different startup types ( i.e., provide the most time for cold startups and the least time for hot startups).

Alternatively, other commenters suggested that the EPA could maintain the 3-hour standard for combined cycle turbines but allow a more extended startup time to facilities if they document the need for the additional startup time; maintain associated records; provide semi-annual reporting; and take steps during the startup to minimize emissions consistent with good air pollution control practices.

Commenters suggested the standard should require that owners and operators of combined cycle units minimize the time the turbines spend at idle or low load operations, and that they complete the startup process while operating the equipment in a manner consistent with good air pollution control practices for minimizing emissions, rather than having the EPA impose a one-size-fits-all hour limit. One commenter suggested that the end of the startup period should be when the unit begins to operate in “normal mode” as signaled from the turbine control system. Commenters also suggested that if the EPA maintains an hour limit, the standard should be amended to exclude malfunctions encountered during startup from the calculation of the startup time as such events could cause sources to exceed the window.

One commenter recommended that the final rule not supersede site-specific requirements with a one-size-fits-all approach. The commenter suggested that the final standard include approved procedural work practices to provide additional assurance of an efficient and expeditious startup process ( i.e., a procedural startup work practice could specify that ammonia injection would begin when the catalyst temperature meets a certain minimum temperature). According to the commenter, these procedural work practices can be maintained, submitted, and approved by the administrator outside of the air permit to minimize permit changes similar to the way quality assurance/quality control manuals are handled.

One commenter suggested that if a more generic startup requirement cannot not be implemented, the EPA should address any imposition of a time limit for startup of a reconstructed combined cycle unit on a case-by-case basis in recognition of the diverse combined cycle plant designs and how such designs impact the rate at which startup can be achieved.

As with the proposed operational standard for combined cycle turbines, several commenters expressed support for the proposed operational standard for simple cycle turbines during startup but expressed concern with the amount of time provided for startup. Commenters noted that 1 hour for a simple cycle turbine is sufficient in most cases, however, the commenter explained that the EPA should provide additional time for extenuating circumstances including the startup of associated post-combustion control technology which can take over an hour to warm-up and achieve the required destruction rate. One commenter added that initial commissioning or maintenance may require additional startup time. The commenter suggested that the EPA allow longer startup times and require facilities utilizing a longer startup time to document the circumstance in their periodic report to ensure there was a reasonable basis.

Similarly, other commenters stated that more time should be provided for simple cycle turbines and suggested that the EPA provide 2 hours consistent with some state permits. One commenter asserted that the federal requirements should not contradict state operating permit conditions already in place which provide more time than the proposed rule. Commenters stated that the final action should provide a procedure for the EPA or state permitting authority to provide application of an alternative standard if an operator demonstrates that it is needed.

Response: In the final action, the definition of startup is specified to begin at the initial combustion of fuel in the turbine. Other operations prior to this event are not included in the time period allocated for startup in this rule.

In response to the comments that the proposed time limit for startup in the operational standard for startup was not sufficient, as discussed previously in this section, the EPA reviewed continuous emission monitoring systems (CEMS) data from 2018 for 182 turbines subject to 40 CFR part 63, subpart YYYY. This includes both simple and combined cycle turbines representing a range of different designs. The analysis is documented in the memorandum titled Stationary Combustion Turbine Startups and Shutdowns Based on Acid Rain Program CEMS Data, which can be found in the rulemaking docket (Docket ID No. EPA-HQ-OAR-2017-0688). As discussed in the memorandum, the stabilization of NO X emission rates indicates stable operation ( i.e., of combustion and post-combustion controls) and was used to determine the length of startup and shutdown periods. For simple cycle turbines, 90 percent of startups were less than 1 hour for stabilization of emissions for all startup types ( i.e., “cold,” “warm,” “hot”; turbine out of operation for more than 48 hours, 8-48 hours, and 0-8 hours, respectively). For combined cycle turbines, 90 percent of “warm” and “hot” startups were less than 3 hours and 72 percent of “cold” startups were less than 3 hours.

In a second part of the analysis, the EPA reviewed CEMS data from 2018 for turbines with oxidation catalyst. For simple cycle turbines with oxidation catalyst, 80 percent of cold startups, 76 percent of warm startups, and 93 percent of hot startups were less than 1 hour. For combined cycle turbines with oxidation catalyst, at least 93 percent of startups were less than 3 hours for each startup type. Finally, in all cases the 99-percent upper prediction limits for startup of turbines were within the proposed time limits (at most 0.92 hours for cold starts for simple cycle turbines with oxidation catalyst and 2.93 hours for cold starts for combined cycle turbines subject to 40 CFR part 63, subpart YYYY). Upper prediction limits were determined for the best performing turbines in terms of startup time based on NO X emission stabilization.

As noted in the memorandum, NO X emissions were not used as a surrogate for HAP emissions. Rather, NO X emissions were only used as an indicator for when stabilization of combustion and post-combustion processes may occur. Collectively, the analyses demonstrate that time limits in the proposed operational standards for startup are justified. Furthermore, upper prediction limits for the startup time to stabilization of NO X emissions were near the startup time limits of 1 hour for simple cycle turbines and 3 hours for combined cycle turbines, suggesting that the startup time limits are generally neither too short nor too long with respect to emissions stabilization.

Based on the review of CEMS data, the EPA determined that the proposed time limits for the application of the operational standard for startup are reasonable and consistent with what the best performers achieve. Therefore, the EPA is not changing the proposed time limits based on public comments. Regarding the comments that the EPA should address time limits on a case-by-case basis, if situations occur that warrant an alternative standard, the owner/operator can request an alternative standard pursuant to the requirements specified in CAA section 112(h)(3) and 40 CFR 63.6(g).

Comment: Commenters stated that the requirement within the proposed operational standard to “minimize the turbine's time spent at idle or holding at low load levels” is problematic in their opinion.

One commenter stated that greater clarity is needed between what is termed “startup” and what is termed “idle” in the process. The commenter explained that startup by its very nature begins at “low load levels” before the turbine is safely loaded and questioned where is the dividing line between which levels are considered startup and which levels are considered idle, or, alternatively, at what point in time do low load levels of startup become idle low load levels? The commenter stated that implicit in the proposed distinction seems to be the assumption that operators would run a turbine at “idle” for unknown reasons during the startup process. The commenter asserted that this is contrary to generally accepted operating practices. See, e.g., Sierra Club v. EPA, 884 F.3d 1185, 1203 (D.C. Cir. 2018) (“Boiler operators lack incentives to combust fuel for no useful purpose, simply as a means to avoid engaging pollution controls, so presumably they do not tarry in heating their equipment to that point.”).

One commenter stated that the terms “idle” and “holding at low load levels” have not been defined. The commenter asserted that without defining these terms and how the EPA intends for units to measure compliance with the operational standard, it is unclear what standards combustion turbine operators need to meet outside of their existing permit terms. The commenter stated that the proposed language in Table 1 to 40 CFR part 63, subpart YYYY, therefore, creates confusion as to whether these combustion turbines can continue to operate as intended. Other commenters explained that combustion turbines are often designed, built, permitted, and operated to be load-following and to sometimes idle or be held at low load, when necessary, to enable faster ramping as support for intermittent renewable resources ( e.g., solar panels). A commenter stated that some operators may need to hold a combustion turbine at low load to allow the heat recovery steam generator and steam turbine associated with a combined cycle to reach normal operating temperature. According to the commenter, the metal in the steam turbine must be warmed in a controlled manner to allow the proper expansion of moving parts. The commenter stated that once the heat recovery steam generator and steam turbine metal are properly warmed and expanded, the combined cycle can, at that time, ramp up load to meet demand. The commenter contended that any artificial restrictions on the amount of minimum operating time allowed may require turbine operators to risk damaging critical equipment. The commenter added that good engineering practices require testing at low loads following a planned maintenance outage to ensure the equipment is operating safely and performing as expected. The commenter stated that some manufacturers require this type of testing as part of contractual agreement. Therefore, the commenter suggested that the operational standard be revised as follows: “During turbine startup, you must minimize the turbine's time needed to achieve the operating limitations provided in Table 2, taking into account the appropriate and safe loading of the turbine and auxiliary equipment, not to exceed 1 hour for simple cycle stationary combustion turbines and 3 hours for combined cycle stationary combustion turbines, after which time the operating limitation and continuous compliance requirements in Table 2 and 5 apply.” Another commenter provided an example of a Prevention of Significant Deterioration permit that has specifically authorized operation at low loads in order to provide fast-ramping capacity to support the integration of renewable resources ( e.g., Maricopa County Air Quality Permit Department, Title V Permit No. V95-007, “Ocotillo PSD Permit”). The commenter noted that the permit conditions clearly distinguish between “startup” and operation at low load. The commenter also noted that the EPA's Environmental Appeals Board reviewed and approved the Prevention of Significant Deterioration limits in this permit.

One commenter suggested that the EPA amend the proposed language to allow adequate time to ensure safe loading of the turbine even if it is beyond the otherwise applicable startup time limits.

Another commenter stated that, at a minimum, the standard should not be written to prohibit low loads, especially if the unit is equipped with an oxidation catalyst and can meet its 4-hour average catalyst inlet temperature operating limit during low load operation.

One commenter recommended that the EPA either eliminate the proposed requirement, “minimize the turbine's time spent at idle or holding at low load levels” or clarify the proposed language by replacing the phrase “time spent at idle or holding at low load levels” with the phrase “operating time outside normal operations.”

Other commenters concluded that the EPA should not finalize this requirement as part of the operational standard.

One commenter encouraged the EPA to revise the operational standard for startup in a manner that distinguishes between continuous, stable operation at low loads and true startup conditions.

Response: Based on these comments, the EPA is not finalizing the proposed requirement to minimize a turbine's time spent at idle or holding at low load levels. As stated by the commenters, some turbines are designed and permitted to operate at idle or low load conditions. For the final rule, there will not be an operational requirement to minimize time spent operating in an idle or low load status. Operation in such a status (except during startup) will be treated as normal operation and will not have a separate standard. As discussed elsewhere in this section, the EPA has clarified the definition for startup to distinguish the beginning and end of the startup operational standard.

Comment: One commenter noted that 40 CFR 63.6125 states, “If you are operating a stationary combustion turbine that is required to comply with the formaldehyde emission limitation and you use an oxidation catalyst emission control device, you must monitor on a continuous basis your catalyst inlet temperature in order to comply with the operating limitation in Table 2 and as specified in Table 5 of this subpart.” The commenter then pointed out that Tables 2 and 5 refer to the calculation of a 4-hour rolling average catalyst inlet temperature. The commenter explained that the catalyst must achieve a certain inlet temperature before formaldehyde emissions are controlled, so the inlet temperature monitoring should begin at the conclusion of startup. The commenter suggested that the EPA clarify that the calculation of the 4-hour rolling average begins at the start of the first full clock hour after startup.

For the same reasons ( i.e., turbines using an oxidation catalyst will need time to reach the desired temperature), other commenters suggested that the EPA clarify that the operating limitations in Table 2 do not apply during startup. These commenters also suggested that the operating limits in Table 2 not apply during shutdown as the inlet temperature may fall below the desired level as the combustion turbine transitions out of operation.

One commenter also requested that the EPA clarify that the demonstration of continuous compliance with the operating limits specified in Table 5 do not include hours containing SSM in the calculation. The commenter recommended that the EPA revise the operating limitations in Table 5 of 40 CFR part 63, subpart YYYY to include the following language, “Any hour during which the startup work practice standard is applicable or during which shutdown or malfunction occurs must not be included in the calculation to demonstrate continuous compliance with the operating limitation.”

Response: The EPA agrees with the commenter that the catalyst inlet temperature operating limitation should not apply during startup, since the catalyst needs time to heat up to the required temperature. The EPA has revised the rule to reflect this change. The EPA does not agree that the catalyst inlet temperature recorded during periods of shutdown should not be included in the 4-hour rolling average catalyst inlet temperature used for compliance with the catalyst inlet temperature operating limitation. Our information is that shutdown periods are usually brief and there is no information that the catalyst temperature would fall below the required levels while the turbine is still operating. Since compliance with the operating limitation is demonstrated on a 4-hour rolling average, factoring in brief periods of shutdown should not result in exceedances of the operating limitation.

With respect to malfunctions, the EPA is not establishing separate emission standards for periods of malfunction and the formaldehyde emission standards and the associated catalyst inlet temperature monitoring requirements apply during periods of malfunction. Therefore, we did not accept the commenter's recommendation that the catalyst inlet temperature during a malfunction should be excluded from the calculation of the 4-hour rolling average catalyst inlet temperature. The EPA also notes that catalyst inlet temperatures may not be affected by all types of malfunction. In addition, as discussed in the proposed rule, if a source fails to comply with a requirement as a result of a malfunction event, the EPA would determine an appropriate response and if the EPA determines in a particular case that an enforcement action against a source for violation of an emission standard is warranted, the source can raise any and all defenses in that enforcement action. Administrative and judicial procedures for addressing exceedances of the standards fully recognize that violations may occur despite good faith efforts to comply and can accommodate those situations. U.S. Sugar Corp. v. EPA, 830 F.3d 579, 606-610 (2016).

For the reasons explained in the proposed rule (84 FR 15046), these amendments revise provisions related to SSM that are not consistent with the requirement that the standards must apply at all times. We evaluated all of the comments received on the EPA's proposed amendments to the SSM provisions and made some changes to the proposed amendments for the reasons stated above and in the Summary of Public Comments and Responses document. We are finalizing the proposed amendments to revise provisions related to SSM, as revised based on public comments.

The April 12, 2019, proposal included requirements for owners and operators of stationary combustion turbines subject to 40 CFR part 63, subpart YYYY to submit electronic copies of required performance test results and semiannual compliance reports through the EPA's CDX using CEDRI. The original 2004 rule did not include any requirements for electronic reporting.

The proposed amendments to require owners and operators to submit performance test results and semiannual compliance reports through the EPA's CDX using CEDRI are being finalized with minor corrections and clarifications. The language at 40 CFR 63.6150(a) was amended from the proposal to specify that the electronic report submitted semiannually also incorporates the excess emissions and monitoring system performance reports. The delegation of authority provision at 40 CFR 63.6170(c) was amended to specify that the EPA does not delegate the authority to modify electronic reporting requirements to states, to ensure that the reported information is submitted to the EPA. Table 7 of 40 CFR part 63, subpart YYYY was modified to make inapplicable the requirements in 40 CFR 63.13 for submission of additional copies to the EPA Regional office for electronically submitted reports.

Comment: Commenters stated that the electronic reporting provisions should clarify the electronic reporting requirements as they relate to reports submitted to state agencies and should consider the increase in burden if owners/operators must submit reports to both entities rather than submitting one combined report to their delegated authority.

One commenter stated that as proposed, the owner/operator would be required to submit one report to the EPA through the CEDRI system and then be required to prepare a written report for state agencies such as the Texas Commission on Environmental Quality to satisfy the regulatory reporting obligation, thus creating a redundant reporting requirement. The commenter requested that the final rule clarify whether the electronic reporting requirement also applies to affected sources that are not currently required to submit copies of reports to the EPA because they are located in states like Texas that have received delegation for NESHAP under 40 CFR part 63.

One commenter stated that when developing electronic reporting provisions, the EPA should work with other regulatory authorities ( i.e., states, local agencies) to establish comparable or compatible electronic systems. The commenter noted that companies reporting electronically to the EPA will likely still have to submit hardcopy reports to other agencies that do not have electronic systems, thereby reducing or eliminating any burden savings associated with EPA electronic reporting. In one example, based on the template structure, an annual number for landfill gas fuel rate and heating values would be supplied to the EPA but monthly values would still have to be supplied to the state.

One commenter stated that if the EPA finalizes a requirement for submission of electronic reports to CEDRI, the EPA should make inapplicable the requirement in 40 CFR 63.13 for submission of additional copies to the EPA Regional office. According to the commenter, submission to CEDRI should be deemed compliance with that requirement, because EPA Regional employees can access the reports on CEDRI. The commenter recommended that the EPA also should include a procedure for state agencies to similarly opt out of receiving a paper copy.

Similarly, one commenter noted that the EPA did not add an additional burden related to the requirement to report emissions test data using the ERT within the Supporting Statement for the Information Collection Request. The commenter stated that most state or local permitting authorities will still require submittal of a paper copy of the test report, so the ERT entry and electronic submittal to the EPA does not replace the submittal of a test report to the local agency.

Response: To clarify the EPA's intent that electronic reporting is required for all sources subject to the subpart, regardless of state, local, or tribal reporting requirements, the final rule has been amended at 63.6170(c) to add (6), that the EPA does not delegate authority for electronic reporting requirements. The EPA is not delegating the authority in order to ensure that the information required to be reported is received by the EPA. The reported information is needed for several purposes, including assessing compliance, developing emission factors (in the case of emissions data), and future reviews of the NESHAP. Table 7 has been revised for the final rule to reflect that 63.13(a) is only applicable to those reports not required to be submitted electronically.

We acknowledge that certain sources may be required to submit a report electronically through CEDRI and a hard copy report to an air agency that has delegation to enforce the NESHAP. The ERT is designed to provide PDF or printed copies of reports, and these copies can be mailed to an air agency that does not wish to use the EPA's electronic reporting system. The burden associated with creating an emission test report is incorporated in the cost of the emission test presented in the Supporting Statement for the Information Collection Request (Docket ID Item No. EPA-HQ-OAR-2017-0688-0073). This includes the development of the test report through the ERT.

The EPA routinely discusses electronic reporting with air agencies and EPA Regional offices. Quarterly calls are conducted with EPA Regional offices to provide information that will be helpful in their outreach efforts to the air agencies in their regions. The EPA has performed demonstrations of the CEDRI reporting program and the ERT for EPA Regional offices and their associated air agencies, as well as for air agency groups like the Mid-Atlantic Regional Air Management Association.

Additionally, through the E-Enterprise's Combined Air Emissions Reporting (CAER) project, the EPA is working with air agencies to streamline multiple emissions reporting processes. Currently, air emissions information is collected by the EPA and air agencies through numerous separate regulations, in a variety of formats, according to different reporting schedules, and using multiple routes of data transfer. The CAER project seeks to reduce the cost to industry and government for providing and managing important environmental data. More information on CAER can be found at: https://www.epa.gov/e-enterprise/e-enterprise-combined-air-emissions-reporting-caer.

The EPA evaluated all of the comments on the proposed electronic reporting requirements for this subpart. For the reasons explained in the proposed rule and this final rule, including the document in the docket summarizing the public comments and our responses, 7 we are finalizing the amendments with minor changes.

The EPA has identified 777 turbines at 243 facilities that are currently subject to the Stationary Combustion Turbines NESHAP. We are projecting that 51 new stationary combustion turbines at 20 facilities will become subject to the NESHAP over the next 3 years. The 51 new turbines include 48 natural gas-fired units, one oil-fired unit, and two landfill gas or digester gas-fired units. More information about the number of new turbines projected over the next 3 years can be found in the Projected Number of Turbine Units and Facilities Subject to the Stationary Combustion Turbine National Emission Standards for Hazardous Air (NESHAP) memorandum in the docket for this rulemaking (Docket ID No. EPA-HQ-OAR-2017-0688).

The baseline emissions of HAP for 777 stationary combustion turbines at 243 facilities subject to 40 CFR part 63, subpart YYYY are estimated to be 5,466 tpy. The HAP that is emitted in the largest quantity is formaldehyde. The final amendments will require turbines subject to the Stationary Combustion Turbines NESHAP to operate without the SSM exemption. We were unable to quantify emission reductions associated with eliminating the SSM exemption. However, eliminating the SSM exemption will reduce emissions by requiring facilities to meet the applicable standard during periods of SSM. We are not making any other revisions to the emission limits, so there are no other air quality impacts as a result of the final amendments.

Owners or operators of stationary combustion turbines that are subject to the amendments to 40 CFR part 63, subpart YYYY, will incur costs to review the final rule. Nationwide annual costs associated with reviewing the final rule are estimated to be a total of $42,362 (2017 dollars) for the first year after the final rule only, or approximately $174 (2017 dollars) per facility. We do not expect that the amendments revising the SSM provisions and requiring electronic reporting will impose additional burden and may result in a cost savings.

Economic impact analyses focus on changes in market prices and output levels. If changes in market prices and output levels in the primary markets are significant enough, impacts on other markets may also be examined. Both the magnitude of costs needed to comply with a proposed rule and the distribution of these costs among affected facilities can have a role in determining how the market will change in response to a proposed rule. The total costs associated with reviewing the final rule are estimated to be $42,362 (2017 dollars), or $174 (2017 dollars) per facility, for the first year after the final rule. These costs are not expected to result in a significant market impact, regardless of whether they are passed on to the purchaser or absorbed by the firms.

The EPA is not making changes to the emission limits and estimates that the changes to the SSM requirements and requirements for electronic reporting are not economically significant. Because these amendments are not considered economically significant, as defined by Executive Order 12866, and because no emission reductions were projected, we did not estimate any benefits from reducing emissions.

As discussed in the preamble to the proposed rule, to examine the potential for any environmental justice issues that might be associated with the source category, we performed a demographic analysis, which is an assessment of risks to individual demographic groups of the populations living within 5 kilometers (km) and within 50 km of the facilities. In the analysis, we evaluated the distribution of HAP-related cancer and noncancer risks from the Stationary Combustion Turbines source category across different demographic groups within the populations living near facilities. The results of this analysis indicated that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples. The documentation for this decision is contained in section IV.A of the preamble to the proposed rule and the technical report titled Risk and Technology Review — Analysis of Demographic Factors for Populations Living Near Stationary Combustion Turbines Source Category Operations, which is available in the docket for this action (Docket ID No. EPA-HQ-OAR-2017-0688).

This action's health and risk assessments are contained in sections IV.A and B of this preamble and further documented in the risk report titled Residual Risk Assessment for the Stationary Combustion Turbines Source Category in Support of the 2020 Risk and Technology Review Final Rule, which is available in the docket for this action (Docket ID No. EPA-HQ-OAR-2017-0688).

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 not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0540. We do not expect that the final amendments revising the SSM provisions and requiring electronic reporting will impose additional burden not already accounted for under the existing approved burden.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are small energy companies or governmental jurisdictions. The Agency has determined that 10 small entities representing approximately 4 percent of the total number of entities subject to the final rule may experience an impact of less than 0.1 percent of revenues.

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 action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

This action 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 the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175. None of the stationary combustion turbines that have been identified as being affected by this action are owned or operated by tribal governments or located within tribal lands. Thus, Executive Order 13175 does not apply to this action.

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in sections III.A and B and sections IV.A and B of this preamble, and further documented in the risk document.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This action involves technical standards. The EPA has decided to use ANSI/ASME PTC 19.10-1981 Part 10 (1981), “Flue and Exhaust Gas Analyses” (the manual portion only) as an alternative to EPA Method 3B and to incorporate the alternative method by reference. The ANSI/ASME PTC 19.10-1981 Part 10 (1981) method incorporates both manual and instrumental methodologies for the determination of O 2 content. The manual method segment of the O 2 determination is performed through the absorption of O 2 . The method is reasonably available from the American Society of Mechanical Engineers at http://www.asme.org; by mail at Three Park Avenue, New York, NY 10016-5990; or by telephone at (800) 843-2763. The EPA has decided to use ASTM D6522-11, “Standard Test Method for the Determination of Nitrogen Oxides, Carbon Monoxide, and Oxygen Concentrations in Emissions from Natural Gas-Fired Reciprocating Engines, Combustion Turbines, Boilers and Process Heaters Using Portable Analyzers” as an alternative to EPA Method 3A for turbines fueled by natural gas and to incorporate the alternative method by reference. The ASTM D6522-11 method is an electrochemical cell based portable analyzer method which may be used for the determination of NO X , CO, and O 2 in emission streams form stationary sources. Also, instead of the current ASTM D6348-12e1 standard (“Determination of Gaseous Compounds by Extractive Direct Interface Fourier Transform Infrared (FTIR) Spectroscopy”), the Stationary Combustion Turbines NESHAP currently references ASTM D6348-03 as an alternative to EPA Method 320. We are updating the NESHAP to reference the most current version of the ASTM D6348 method as an alternative to EPA Method 320. When using this method, the test plan preparation and implementation requirements in Annexes A1 through A8 to ASTM D6348-12e1 are mandatory. The ASTM D6348-12e1 method is an extractive FTIR spectroscopy-based field test method and is used to quantify gas phase concentrations of multiple target compounds in emission streams from stationary sources. The ASTM standards are reasonably available from the American Society for Testing and Materials, 100 Barr Harbor Drive, Post Office Box C700, West Conshohocken, PA 19428-2959. See http://www.astm.org/.

The EPA identified an additional seven voluntary consensus standards (VCS) as being potentially applicable to this rule. After reviewing the available standards, the EPA determined that the seven VCS would not be practical due to lack of equivalency, documentation, validation data, and/or other important technical and policy considerations. For further information, see the memorandum titled Voluntary Consensus Standard Results for National Emission Standards for Hazardous Air Pollutants: Stationary Combustion Turbines Risk and Technology, in the docket for this rule (Docket ID No. EPA-HQ-OAR-2017-0688).

The EPA believes that this action does not 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 section IV.A of this preamble and the technical report, Risk and Technology Review Analysis of Demographic Factors for Populations Living Near Stationary Combustion Turbines Source Category Operations.

This action is subject to the CRA, 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 not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons set forth in the preamble, the EPA amends 40 CFR part 63 as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at 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(g), 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-2018-0571 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 May 8, 2020. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2018-0571, 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 December 21, 2018 (83 FR 65660) (FRL-9985-67), EPA issued a notice pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance exemption petition (PP 7F8641) by AgBiTech Pty Ltd., 8 Rocla Ct., Glenvale, Queensland 4350, Australia (c/o MacIntosh & Associates, Inc., 1203 Hartford Ave., St. Paul, MN 55116-1622). The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of the insecticide Chrysodeixis includens nucleopolyhedrovirus isolate #460 in or on all agricultural commodities. That notice referenced a summary of the petition prepared by the petitioner AgBiTech Pty Ltd. and available in the docket via http://www.regulations.gov. One comment was received on the notice of filing. EPA's response to this comment is discussed in Unit III.C.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement of 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 in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption 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. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.”

EPA evaluated the available toxicological and exposure data on Chrysodeixis includens nucleopolyhedrovirus isolate #460 and considered their validity, completeness, and reliability, as well as the relationship of this information to human risk. A summary of the data upon which EPA relied and its risk assessment based on those data can be found within the document entitled “Federal Food, Drug, and Cosmetic Act (FFDCA) Safety Determination for Chrysodeixis includens Nucleopolyhedrovirus isolate #460” (“Safety Determination Document”). This document, as well as other relevant information, is available in the docket for this action as described under ADDRESSES .

The available data demonstrated that, with regard to humans, Chrysodeixis includens nucleopolyhedrovirus isolate #460 is not toxic, pathogenic, or infective via any reasonably foreseeable route of exposure and when used in accordance with label directions and good agricultural practices. Baculoviruses, such as Chrysodeixis includens nucleopolyhedrovirus isolate #460, are ubiquitous in the environment and have been extensively studied with no adverse effects in mammals observed or known. Although there may be dietary and non-occupational exposure to residues when Chrysodeixis includens nucleopolyhedrovirus isolate #460 is used on food commodities, there is not a concern due to the lack of potential for adverse effects when used in accordance with label directions and good agricultural practices. EPA also determined that retention of the Food Quality Protection Act safety factor was not necessary as part of the qualitative assessment conducted for Chrysodeixis includens nucleopolyhedrovirus isolate #460.

Based upon its evaluation in the Safety Determination Document, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Chrysodeixis includens nucleopolyhedrovirus isolate #460 when used in accordance with label directions and good agricultural practices. Therefore, an exemption from the requirement of a tolerance is established for residues of Chrysodeixis includens nucleopolyhedrovirus isolate #460 in or on all food commodities when used in accordance with label directions and good agricultural practices.

An analytical method for enforcement purposes is not required because EPA has determined that reasonably foreseeable exposure to residues of Chrysodeixis includens nucleopolyhedrovirus isolate #460 from use of the pesticide will be safe, due to lack of toxicity, pathogenicity, and infectivity. Under those circumstances, it is unnecessary to have an analytical method to monitor for residues.

EPA received one comment on the notice of filing expressing concern about the petitioner's belief that an analytical method is not needed. The FFDCA allows EPA to establish a tolerance exemption without an analytical method if it determines that there is no need for such a method and states its reasons for such determination. 21 U.S.C. 346a(c)(3)(B). As indicated in Unit III.B., EPA has determined that such a method is not needed and explained its reasons for that determination.

This action establishes a tolerance exemption under FFDCA section 408(d) in response to a petition submitted to EPA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act, 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 exemption in this action, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (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. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA 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, EPA 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 (2 U.S.C. 1501 et seq. ).

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

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

Therefore, 40 CFR chapter I is amended as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0061 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 May 8, 2020. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP- 2019-0061, 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 9, 2019 (84 FR 20320) (FRL-9992-36), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 8E8727) by IR-4, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201W, Princeton, NJ 08540. The petition requested that 40 CFR 180.605 be amended by establishing a tolerance for residues of the herbicide penoxsulam, including its metabolites and degradates, in or on artichoke, globe at 0.01 parts per million (ppm). That document referenced a summary of the petition prepared by Dow AgroSciences, the registrant, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

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

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for penoxsulam including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with penoxsulam follows.

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

The kidney was the major target organ for penoxsulam in the rat and dog following subchronic and chronic dietary exposure. There are no mechanistic studies characterizing the mode of action for renal toxicity of penoxsulam or other triazolopyrimidine herbicides, but the presence of crystals in the urinary tract and lack of tissue bioaccumulation suggest that cellular inflammation and damage may occur secondary to their presence. Hyperplasia (rat and dog) and inflammation (rat) of the renal pelvic epithelium were observed by week 4 in dietary dose range-finding studies. The dog was the more sensitive species in studies of all durations. The rat, but not the dog, showed progression of the severity of kidney toxicity with prolonged exposure. In dogs, renal toxicity in the subchronic and chronic studies occurred at comparable dose levels and measurable effects on renal function were not observed. In the rat, effects on renal function (increased blood urea nitrogen in both sexes, urinary bladder mucosal hyperplasia, and increased severity of chronic glomerulonephropathy in males) were observed only following chronic exposure, although the doses at which kidney toxicity occurred were comparable to doses tested in the subchronic study. A consistent pattern that identified a greater sensitivity of either sex was not observed.

Other effects in the rat included decreased red blood cell parameters and decreased body weight and/or weight gain. Liver effects were observed at the higher dose levels in the dog 4-week feeding study but not in other studies in the database. The findings of liver and/or kidney effects are consistent with effects observed for other triazolopyrimidine herbicides.

No effects of toxicological significance were observed in the mouse. Penoxsulam showed no evidence of neurotoxicity or immunotoxicity in the rodent, and no effects were seen in rats following dermal exposure. The Agency waived the requirement for inhalation data based on high inhalation margins of exposure using an oral endpoint, lack of observed irritation effects, and low vapor pressure.

There was no evidence of increased pre- and/or post-natal susceptibility. No developmental effects were observed in the rat or rabbit. Maternal effects in the rat included decreased body weight gain and food consumption and increased kidney weights. In the rabbit, maternal effects included mortality, clinical signs of toxicity, and decreased body weight gain and food consumption. In the rat 2-generation reproductive toxicity study, delayed preputial separation and lactation body weights were observed in F1 offspring at a dose that caused kidney lesions in parental females.

Although there is evidence of an increased incidence of mononuclear cell leukemia (MNCL) in Fisher 344 rats from exposure to penoxsulam, EPA has concluded that a quantitative assessment of cancer is not necessary and that the chronic reference dose (cRfD) is considered protective of possible cancer effects.

Specific information on the studies received and the nature of the adverse effects caused by penoxsulam as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document titled “Penoxsulam: Human Health Risk Assessment for the Proposed Use on Globe Artichoke” (Penoxsulam HHRA) on pages 32-37 in docket ID number EPA-HQ-OPP-2019-0061. For further discussion of the Agency's rationale for its cancer conclusion, see page 16 of the Penoxsulam HHRA.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticide.

A summary of the toxicological endpoints for penoxsulam used for human risk assessment is discussed in Unit III.B of the final rule published in the Federal Register of March 2, 2016 (81 FR 10771) (FRL-9940-36).

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to penoxsulam, EPA considered exposure under the petitioned-for tolerance as well as all existing penoxsulam tolerances in 40 CFR 180.605. EPA assessed dietary exposures from penoxsulam in food as follows:

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

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

ii. Chronic exposure. In conducting the chronic dietary exposure assessment, EPA used the food consumption data from the United States Department of Agriculture's (USDA's) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, the chronic dietary exposure assessment was unrefined and used tolerance-level residues and 100 percent crop treated (PCT).

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that the cRfD is protective of potential cancer risk from exposure to penoxsulam.

iv. Anticipated residue and PCT information. EPA did not use anticipated residue or PCT information in the dietary assessment for penoxsulam. Tolerance-level residues and 100 PCT were assumed for all food commodities as well as contribution to the 5-OH-penoxsulam metabolite in fish.

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

Penoxsulam is registered for control of aquatic weeds. For that use pattern, the maximum application rate is 150 parts per billion (ppb) in the water column. For the chronic dietary risk assessment, the water concentration value of 150 ppb was used to assess the contribution to drinking water. This value is likely to be an overestimate of actual residues in drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Penoxsulam is currently registered for the following uses that could result in residential exposures: Residential and commercial turf (lawns and golf courses) and aquatic use sites. EPA assessed residential exposure using the following assumptions: For handlers, it is assumed that residential use will result in short-term (1 to 30 days) dermal and inhalation exposures. Residential post-application exposure is also assumed to be short-term (1 to 30 days) in duration, resulting from the following exposure scenarios:

Physical activities on turf: Adults (dermal) and children 1 to 2 years old (dermal and incidental oral);

Mowing turf: Adults (dermal) and children 11 to <16 years old (dermal);

Exposure to golf courses during golfing: Adults (dermal), children 11 to <16 years old (dermal), and children 6 to <11 years old (dermal); and

Exposure during aquatic activities (e.g. swimming): Adults (dermal, inhalation, ingestion) and children 3 to <6 years old (dermal, inhalation, ingestion).

Due to the lack of a dermal endpoint, EPA did not quantify exposure and risk estimates from dermal exposure scenarios. EPA did not combine exposure resulting from adult handler and post-application exposure resulting from treated gardens, lawns, golfing, and/or aquatic areas in residential settings because of the conservative assumptions and inputs within each estimated exposure scenario. The Agency believes that combining exposures resulting from handler and post-application activities would result in an overestimate of adult exposure. EPA selected the most conservative adult residential scenario (adult handler inhalation exposure from backpack sprayer applications to lawns/turf) as the contributing source of residential exposure to be combined with the dietary exposure for the aggregate assessment. The exposure for the aggregate assessment for children 3 to <6 years old is based on post-application combined inhalation and ingestion exposures during aquatic activities. The oral exposure for the aggregate assessment for children 1 to <2 years old is based on post-application hand-to-mouth exposures from applications to lawns/turf. To include exposure from object-to-mouth and soil ingestion in addition to hand-to-mouth would overestimate the potential for oral exposure. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to penoxsulam and any other substances and penoxsulam does not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has not assumed that penoxsulam has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

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

2. Prenatal and postnatal sensitivity. No evidence of quantitative or qualitative increased susceptibility, as compared to adults, of rat fetuses to in utero or postnatal exposure was observed in developmental toxicity studies in rats or rabbits or a reproduction study in rats. Developmental toxicity was not observed in the rat or rabbit up to doses resulting in maternal toxicity. In the rat reproductive toxicity study, slightly increased time to preputial separation in F1 males and decreased pup weight gain were observed in the presence of parental toxicity (kidney lesions in females).

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

i. The toxicity database for penoxsulam is complete.

ii. There is no indication that penoxsulam is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors to account for neurotoxicity.

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

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions by using the high-end EDWC of 150 ppb from the aquatic weed use pattern to assess exposure to penoxsulam in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by penoxsulam.

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

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, penoxsulam is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to penoxsulam from food and water will utilize 5.6% of the cPAD for all infants less than 1 year old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of penoxsulam is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Penoxsulam is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to penoxsulam.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 5,500 for adults, 1,700 for children 1 to 2 years old, and 4,500 for children 3 to 5 years old. Because EPA's level of concern for penoxsulam is a MOE of 100 or below, these MOEs are not of concern.

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

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

5. Aggregate cancer risk for U.S. population. As discussed in Unit III.A., EPA has determined that an RfD approach based on the chronic point of departure is appropriate for evaluating cancer risk. As there are not chronic aggregate risks of concern, there are no cancer aggregate risk concerns.

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

Adequate enforcement methodologies using high performance liquid chromatography with tandem mass spectroscopy (HPLC-MS/MS) are available to enforce the tolerance expression. These methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

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

The Codex has not established a MRL for penoxsulam on globe artichoke.

Two comments were received in response to the notice of filing. One was against the Agency granting the use of penoxsulam and one was against the use of pesticides in general. Although the Agency recognizes that some individuals believe that pesticides should be banned on agricultural crops, the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) authorizes EPA to establish tolerances when it determines that the tolerance is safe. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that these penoxsulam tolerances are safe. The commenters have provided no information to support an Agency conclusion that penoxsulam is not safe.

Therefore, tolerances are established for residues of penoxsulam, including its metabolites and degradates, in or on artichoke, globe at 0.01 ppm.

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

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

Regulations governing the summer flounder fishery are found in 50 CFR 648.100 through 648.110. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102 and final 2020 allocations were published on October 9, 2019 (84 FR 54041).

The final rule implementing Amendment 5 to the Summer Flounder Fishery Management Plan (FMP), as published in the Federal Register on December 17, 1993 (58 FR 65936), provided a mechanism for transferring summer flounder commercial quota from one state to another. Two or more states, under mutual agreement and with the concurrence of the NMFS Greater Atlantic Regional Administrator, can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider three criteria in the evaluation of requests for quota transfers or combinations: The transfer or combinations would not preclude the overall annual quota from being fully harvested; the transfer addresses an unforeseen variation or contingency in the fishery; and, the transfer is consistent with the objectives of the FMP and the Magnuson-Stevens Act. The Regional Administrator has determined these three criteria have been met for the transfer approved in this notice.

North Carolina is transferring 10,276 (4,661 kg) of summer flounder commercial quota to Virginia. This transfer was requested to repay landings made by a North Carolina-permitted vessel in Virginia under a safe harbor agreement. Based on the revised summer flounder, scup, and black sea bass specifications, the summer flounder quotas for 2020 are now: North Carolina, 3,154,229 lb (1,430,734 kg); and, Virginia, 2,468,098 lb (1,119,510 kg).

Federal regulations at 50 CFR part 679 implement the FMP and govern the groundfish fisheries in the BSAI. The Council prepared the FMP, and NMFS approved it, under the Magnuson-Stevens Act. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify annually the total allowable catch (TAC) for each target species category. The sum of all TAC for all groundfish species in the BSAI must be within the optimum yield (OY) range of 1.4 million to 2.0 million metric tons (mt) (see § 679.20(a)(1)(i)(A)). This final rule specifies the total TAC at 2.0 million mt for both 2020 and 2021. NMFS also must specify apportionments of TAC, prohibited species catch (PSC) allowances, and prohibited species quota (PSQ) reserves established by § 679.21; seasonal allowances of pollock, Pacific cod, and Atka mackerel TAC; American Fisheries Act allocations; Amendment 80 allocations; Community Development Quota (CDQ) reserve amounts established by § 679.20(b)(1)(ii); and acceptable biological catch (ABC) surpluses and reserves for CDQ groups and the Amendment 80 cooperative for flathead sole, rock sole, and yellowfin sole. The final harvest specifications set forth in Tables 1 through 22 of this action satisfy these requirements.

Section 679.20(c)(3)(i) further requires that NMFS consider public comment on the proposed harvest specifications and, after consultation with the Council, publish final harvest specifications in the Federal Register . The proposed 2020 and 2021 harvest specifications for the groundfish fishery of the BSAI were published in the Federal Register on December 3, 2019 (84 FR 66129). Comments were invited and accepted through January 2, 2020. As discussed in the Response to Comments section below, NMFS received one comment letter during the public comment period for the proposed BSAI groundfish harvest specifications. No changes were made to the final rule in response to the comment letter received.

NMFS consulted with the Council on the final 2020 and 2021 harvest specifications during the December 2019 Council meeting in Anchorage, AK. After considering public comments, as well as biological and socioeconomic data that were available at the Council's December meeting, NMFS implements in this final rule the final 2020 and 2021 harvest specifications as recommended by the Council.

The final ABC amounts for Alaska groundfish are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. In general, the development of ABCs and overfishing levels (OFLs) involves sophisticated statistical analyses of fish populations. The FMP specifies a series of six tiers to define OFL and ABC amounts based on the level of reliable information available to fishery scientists. Tier 1 represents the highest level of information quality available, while Tier 6 represents the lowest.

In December 2019, the Council, its Scientific and Statistical Committee (SSC), and its Advisory Panel (AP) reviewed current biological and harvest information about the condition of the BSAI groundfish stocks. The Council's BSAI Groundfish Plan Team (Plan Team) compiled and presented this information in the 2019 SAFE report for the BSAI groundfish fisheries, dated November 2019 (see ADDRESSES ). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the BSAI ecosystem and the economic condition of groundfish fisheries off Alaska. NMFS notified the public of the comment period for these harvest specifications—and of the publication of the 2019 SAFE report—in the notice of proposed harvest specifications. From the data and analyses in the SAFE report, the Plan Team recommended an OFL and ABC for each species or species group at the November 2019 Plan Team meeting.

In December 2019, the SSC, AP, and Council reviewed the Plan Team's recommendations. The final TAC recommendations were based on the ABCs as adjusted for other biological and socioeconomic considerations, including maintaining the sum of all the TACs within the required OY range of 1.4 million to 2.0 million mt. As required by annual catch limit rules for all fisheries (74 FR 3178, January 16, 2009), none of the Council's recommended 2020 or 2021 TACs exceed the final 2020 or 2021 ABCs for any species or species group. NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the preferred harvest strategy and the biological condition of groundfish stocks as described in the 2019 SAFE report that was approved by the Council. Therefore, this final rule provides notice that the Secretary of Commerce approves the final 2020 and 2021 harvest specifications as recommended by the Council.

The 2020 harvest specifications set in this final action will supersede the 2020 harvest specifications previously set in the final 2019 and 2020 harvest specifications (84 FR 9000, March 13, 2019). The 2021 harvest specifications herein will be superseded in early 2021 when the final 2021 and 2022 harvest specifications are published. Pursuant to this final action, the 2020 harvest specifications therefore will apply for the remainder of the current year (2020), while the 2021 harvest specifications are projected only for the following year (2021) and will be superseded in early 2021 by the final 2021 and 2022 harvest specifications. Because this final action (published in early 2020) will be superseded in early 2021 by the publication of the final 2021 and 2022 harvest specifications, it is projected that this final action will implement the harvest specifications for the BSAI for approximately one year.

In October 2019, the Council recommended that sculpins be reclassified in the FMP as an “ecosystem component” species, which is a category of non-target species that are not in need of conservation and management. Currently, NMFS annually sets an OFL, ABC, and TAC for sculpins in the BSAI groundfish harvest specifications. Under the Council's recommended action, OFL, ABC, and TAC specifications for sculpins would no longer be required. NMFS intends to develop rulemaking to implement the Council's recommendation for sculpins. Such rulemaking would prohibit directed fishing for sculpins, maintain recordkeeping and reporting requirements, and establish a sculpin maximum retainable amount at 20 percent when directed fishing for groundfish species to discourage sculpin retention, while allowing flexibility to prosecute groundfish fisheries. Further details (and public comment on the sculpin action) will be available on publication of the proposed rule to reclassify sculpins as an ecosystem component species in the FMP. If the FMP amendment and its implementing regulations are approved by the Secretary of Commerce, the action is anticipated to be effective in 2021. Until effective, NMFS will continue to publish OFLs, ABCs, and TACs for sculpins in the BSAI groundfish harvest specifications.

On February 8, 2019, NMFS published a final rule (84 FR 2723) that modified regulations for the AFA Program participants subject to limits on the catch of specific species (sideboard limits) in the BSAI. Sideboard limits are intended to prevent AFA Program participants who benefit from receiving exclusive harvesting privileges in a particular fishery from shifting effort to other fisheries. Specifically, the final rule established regulations to prohibit directed fishing for most groundfish species or species groups subject to sideboard limits under the AFA Program, rather than prohibiting directed fishing through the annual BSAI harvest specifications. Since the final rule is now effective, NMFS is no longer publishing in the annual BSAI harvest specifications the AFA Program sideboard limit amounts for groundfish species or species groups subject to the final rule. Those groundfish species subject to the final rule associated with sideboard limits are now prohibited from directed fishing in regulation (§ 679.20(d)(1)(iv)(D) and Tables 54, 55, and 56 to 50 CFR part 679). NMFS will continue to publish in the annual BSAI harvest specifications the AFA Program sideboard limit amounts for groundfish species or species groups that were not subject to the final rule (see Tables 20-22 of this action).

For 2020 and 2021, the Board of Fisheries (BOF) for the State of Alaska (State) established the guideline harvest level (GHL) for vessels using pot gear in State waters in the Bering Sea subarea (BS) equal to 9 percent of the Pacific cod ABC in the BS. The State's pot gear BS GHL will increase one percent annually up to 15 percent of the BS ABC, if 90 percent of the GHL is harvested by November 15 of the preceding year. If 90 percent of the 2020 BS GHL is not harvested by November 15, 2020, then the 2021 BS GHL will remain at the same percent as the 2020 BS GHL. If 90 percent of the 2020 BS GHL is harvested by November 15, 2020, then the 2021 BS GHL will increase by one percent and the 2021 BS TAC will be set to account for the increased BS GHL. Also, for 2020 and 2021, the BOF established an additional GHL for vessels using jig gear in State waters in the BS equal to 45 mt of Pacific cod in the BS. The Council and its Plan Team, SSC, and AP recommended that the sum of all State and Federal water Pacific cod removals from the BS not exceed the ABC recommendations for Pacific cod in the BS. Accordingly, the Council recommended, and NMFS approves, that the 2020 and 2021 Pacific cod TACs in the BS account for the State's GHLs for Pacific cod caught in State waters in the BS.

For 2020 and 2021, the BOF for the State established the GHL in State waters in the Aleutian Islands subarea (AI) equal to 35 percent of the 2020 AI ABC or 7,210 mt. The AI GHL will increase annually by 4 percent of the AI ABC, if 90 percent of the GHL is harvested by November 15 of the preceding year, but may not exceed 39 percent of the AI ABC or 15 million pounds (6,804 mt). For 2020, 35 percent of the AI ABC is 7,210 mt, which exceeds the AI GHL limit of 6,804 mt. The Council and its Plan Team, SSC, and AP recommended that the sum of all State and Federal water Pacific cod removals from the AI not exceed the ABC recommendations for Pacific cod in the AI. Accordingly, the Council recommended, and NMFS approves, that the 2020 and 2021 Pacific cod TACs in the AI account for the State's GHL of 6,804 mt for Pacific cod caught in State waters in the AI.

The Council's recommendations for the proposed 2020 and 2021 harvest specifications (84 FR 66129, December 3, 2019) were based largely on information contained in the 2018 SAFE report for the BSAI groundfish fisheries. Through the proposed harvest specifications, NMFS notified the public that these harvest specifications could change, as the Council would consider information contained in the 2019 SAFE report; recommendations from the Plan Team, SSC, and AP committees; and public comments when making its recommendations for final harvest specifications at the December 2019 Council meeting. NMFS further notified the public that, as required by the FMP and its implementing regulations, the sum of the TACs must be within the OY range of 1.4 million and 2.0 million mt.

Information contained in the 2019 SAFE report indicates biomass changes from the 2018 SAFE report for several groundfish species. The 2019 report was made available for public review during the public comment period for the proposed harvest specifications. At the December 2019 Council meeting, the SSC recommended the 2020 and 2021 ABCs based on the best and most recent information contained in the 2019 SAFE report. The SSC recommended slight model adjustments for Eastern Bering Sea pollock and BS Pacific cod, but accepted Plan Team recommendations for all other species, except for sablefish. The SSC's recommendation resulted in an ABC sum total for all BSAI groundfish species in excess of 2.0 million mt for both 2020 and 2021.

For sablefish, as discussed in the proposed 2020 and 2021 harvest specifications (84 FR 66129, December 3, 2019) the SSC considered the appropriateness of continuing to specify sablefish OFLs at the separate Bering Sea, Aleutian Islands, and Gulf of Alaska (GOA) management area levels. The SSC reviewed the information available regarding area apportionment of the OFL, and decided that the best scientific information available regarding stock structure for sablefish supports an Alaska-wide OFL specification. Therefore, based on biological considerations, the SSC recommended specification of a single Alaska-wide sablefish OFL, which includes the Bering Sea, Aleutian Islands, and the GOA. Also, the SSC agreed with the Plan Team that a substantial reduction in the 2020 and 2021 ABCs from the maximum permissible ABCs were warranted. However, the SSC revised the Plan Team's recommendation for the sablefish ABCs by revising the method and amount of the reduction of the sablefish ABCs from the maximum permissible ABCs.

Based on increased fishing effort in 2019, the Council recommends final BS pollock TACs increase by 4,176 mt in 2020 and 29,176 mt in 2021 compared to the proposed 2020 and 2021 BS pollock TACs. In terms of percentage, the largest increases in final 2020 TACs relative to the proposed 2020 TACs include BS “other rockfish” and BSAI northern rockfish. The increases account for anticipated higher incidental catches of these species, based on increased incidental catches in 2019. Other increases in the final 2020 TACs relative to the proposed 2020 TACs include BS Pacific cod, Aleutian Islands (AI) Pacific cod, AI Greenland turbot, BSAI arrowtooth flounder, BSAI Kamchatka flounder, BSAI flathead sole, Bering Sea and Eastern Aleutian Islands (BS/EAI) blackspotted/rougheye rockfish, Central Aleutian and Western Aleutian (CAI/WAI) blackspotted/rougheye rockfish, BSAI shortraker rockfish, Eastern Aleutian Islands and Bering Sea (EAI/BS) Atka mackerel, Western Aleutian Islands (WAI) Atka mackerel, Central Aleutian Islands (CAI) Atka mackerel, BSAI sculpins, and BSAI sharks. The 2020 increases account for higher interest in directed fishing or higher anticipated incidental catch needs.

Decreases in final 2020 TACs compared to the proposed 2020 TACs include AI sablefish, BS sablefish, BS Pacific ocean perch, CAI Pacific ocean perch, Eastern Aleutian Islands (EAI) Pacific ocean perch, BSAI yellowfin sole, BSAI rock sole, BSAI Alaska plaice, BSAI “other flatfish,” BSAI octopuses, and BSAI skates. The decreases are for anticipated lower incidental catch needs of these species relative to 2019. The changes to TACs between the proposed and final harvest specifications are based on the most recent scientific and economic information and are consistent with the FMP, regulatory obligations, and harvest strategy as described in the proposed harvest specifications, including the upper limit for OY of 2.0 million mt. These changes are compared in Table 1A.

Table 1 lists the Council's recommended final 2020 OFL, ABC, TAC, initial TAC (ITAC), and CDQ reserve allocations of the BSAI groundfish species or species groups; and Table 2 lists the Council's recommended final 2021 OFL, ABC, TAC, ITAC, and CDQ reserve allocations of the BSAI groundfish species or species groups. NMFS concurs in these recommendations. These final 2020 and 2021 TAC amounts for the BSAI are within the OY range established for the BSAI and do not exceed the ABC for any species or species group. The apportionment of TAC amounts among fisheries and seasons is discussed below.

Section 679.20(b)(1)(i) requires that NMFS reserves 15 percent of the TAC for each target species (except for pollock, hook-and-line and pot gear allocation of sablefish, and Amendment 80 species) in a non-specified reserve. Section 679.20(b)(1)(ii)(B) requires that NMFS allocate 20 percent of the hook-and-line or pot gear allocation of sablefish for the fixed-gear sablefish CDQ reserve for each subarea. Section 679.20(b)(1)(ii)(D) requires that NMFS allocate 7.5 percent of the trawl gear allocations of sablefish in the BS and AI and 10.7 percent of the Bering Sea Greenland turbot and arrowtooth flounder TACs to the respective CDQ reserves. Section 679.20(b)(1)(ii)(C) requires that NMFS allocate 10.7 percent of the TACs for Atka mackerel, Aleutian Islands Pacific ocean perch, yellowfin sole, rock sole, flathead sole, and Pacific cod to the respective CDQ reserves. Sections 679.20(a)(5)(i)(A) and 679.31(a) also require that 10 percent of the Bering Sea pollock TAC be allocated to the pollock CDQ directed fishing allowance (DFA). Sections 679.20(a)(5)(iii)(B)( 2 )( i ) and 679.31(a) require that 10 percent of the Aleutian Islands pollock TAC be allocated to the pollock CDQ DFA. The entire Bogoslof District pollock TAC is allocated as an ICA pursuant to § 679.20(a)(5)(ii) because the Bogoslof District is closed to directed fishing for pollock by regulation (§ 679.22(a)(7)(B)). With the exception of the hook-and-line or pot gear sablefish CDQ reserve, the regulations do not further apportion the CDQ allocations by gear.

Pursuant to § 679.20(a)(5)(i)(A)( 1 ), NMFS allocates a pollock ICA of 3.7 percent of the BS pollock TAC after subtracting the 10 percent CDQ DFA. This allowance is based on NMFS's examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2000 through 2019. During this 20-year period, the pollock incidental catch ranged from a low of 2.2 percent in 2006 to a high of 4.6 percent in 2014, with a 20-year average of 3 percent. Pursuant to § 679.20(a)(5)(iii)(B)( 2 )(i) and ( ii ), NMFS establishes a pollock ICA of 2,400 mt of the AI pollock TAC after subtracting the 10 percent CDQ DFA. This allowance is based on NMFS's examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2003 through 2019. During this 17-year period, the incidental catch of pollock ranged from a low of 5 percent in 2006 to a high of 17 percent in 2014, with a 17-year average of 9 percent.

Pursuant to § 679.20(a)(8) and (10), NMFS allocates ICAs of 3,000 mt of flathead sole, 6,000 mt of rock sole, 4,000 mt of yellowfin sole, 10 mt of WAI Pacific ocean perch, 60 mt of CAI Pacific ocean perch, 100 mt of EAI Pacific ocean perch, 20 mt of WAI Atka mackerel, 75 mt of CAI Atka mackerel, and 800 mt of EAI and BS Atka mackerel TAC after subtracting the 10.7 percent CDQ reserve. These ICA allowances are based on NMFS's examination of the incidental catch in other target fisheries from 2003 through 2019.

The regulations do not designate the remainder of the non-specified reserve by species or species group. Any amount of the reserve may be apportioned to a target species that contributed to the non-specified reserves during the year, provided that such apportionments are consistent with § 679.20(a)(3) and do not result in overfishing (see § 679.20(b)(1)(i)). The Regional Administrator has determined that the ITACs specified for the species listed in Table 1 need to be supplemented from the non-specified reserve because U.S. fishing vessels have demonstrated the capacity to catch the full TAC allocations. Therefore, in accordance with § 679.20(b)(3), NMFS is apportioning the amounts shown in Table 3 from the non-specified reserve to increase the ITAC for AI “other rockfish” by 15 percent of the “other rockfish” TAC in 2020 and 2021.

Section 679.20(a)(5)(i)(A) requires that the BS pollock TAC be apportioned as a DFA, after subtracting 10 percent for the CDQ program and 3.7 percent for the ICA, as follows: 50 percent to the inshore sector, 40 percent to the catcher/processor (C/P) sector, and 10 percent to the mothership sector. In the BS, 45 percent of the DFA is allocated to the A season (January 20-June 10), and 55 percent of the DFA is allocated to the B season (June 10-November 1) (§§ 679.20(a)(5)(i)(B)( 1 ) and 679.23(e)(2)). The Aleutian Islands directed pollock fishery allocation to the Aleut Corporation is the amount of pollock TAC remaining in the AI after subtracting 1,900 mt for the CDQ DFA (10 percent) and 2,400 mt for the ICA (§ 679.20(a)(5)(iii)(B)( 2 )). In the AI, the total A season apportionment of the TAC (including the AI directed fishery allocation, the CDQ DFA, and the ICA) may equal up to 40 percent of the ABC for AI pollock, and the remainder of the TAC is allocated to the B season (§ 679.20(a)(5)(iii)(B)( 3 )). Tables 4 and 5 list these 2020 and 2021 amounts.

Section 679.20(a)(5)(iii)(B)( 6 ) sets harvest limits for pollock in the A season (January 20 to June 10) in Areas 543, 542, and 541. In Area 543, the A season pollock harvest limit is no more than 5 percent of the Aleutian Islands pollock ABC. In Area 542, the A season pollock harvest limit is no more than 15 percent of the Aleutian Islands pollock ABC. In Area 541, the A season pollock harvest limit is no more than 30 percent of the Aleutian Islands pollock ABC.

Section 679.20(a)(5)(i)(A)( 4 ) also includes several specific requirements regarding BS pollock allocations. First, it requires that 8.5 percent of the pollock allocated to the C/P sector be available for harvest by AFA catcher vessels (CVs) with C/P sector endorsements, unless the Regional Administrator receives a cooperative contract that allows the distribution of harvest among AFA C/Ps and AFA CVs in a manner agreed to by all members. Second, AFA C/Ps not listed in the AFA are limited to harvesting not more than 0.5 percent of the pollock allocated to the C/P sector. Tables 4 and 5 list the 2020 and 2021 allocations of pollock TAC. Table 20 lists the AFA C/P prohibited species sideboard limits, and Tables 21 and 22 list the AFA CV prohibited species and groundfish sideboard limits. The tables for the pollock allocations to the BS inshore pollock cooperatives and open access sector will be posted on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/alaska-groundfish-fisheries-management.

Tables 4 and 5 also list seasonal apportionments of pollock and harvest limits within the Steller Sea Lion Conservation Area (SCA). The harvest of pollock within the SCA, as defined at § 679.22(a)(7)(vii), is limited to no more than 28 percent of the annual pollock DFA before 12:00 noon, April 1, as provided in § 679.20(a)(5)(i)(C). The A season pollock SCA harvest limit will be apportioned to each sector in proportion to each sector's allocated percentage of the DFA. Tables 4 and 5 list these final 2020 and 2021 amounts by sector.

Section 679.20(a)(8) allocates the Atka mackerel TACs to the Amendment 80 and BSAI trawl limited access sectors, after subtracting the CDQ reserves, ICAs for the BSAI trawl limited access sector and non-trawl gear sector, and the jig gear allocation (Tables 6 and 7). The percentage of the ITAC for Atka mackerel allocated to the Amendment 80 and BSAI trawl limited access sectors is listed in Table 33 to 50 CFR part 679 and in § 679.91. Pursuant to § 679.20(a)(8)(i), up to 2 percent of the EAI and the BS Atka mackerel ITAC may be allocated to vessels using jig gear. The percent of this allocation is recommended annually by the Council based on several criteria, including, among other criteria, the anticipated harvest capacity of the jig gear fleet. The Council recommended, and NMFS approves, a 0.5 percent allocation of the Atka mackerel ITAC in the EAI and BS to the jig gear sector in 2020 and 2021.

Section 679.20(a)(8)(ii)(A) apportions the Atka mackerel TAC into two equal seasonal allowances. Section 679.23(e)(3) sets the first seasonal allowance for directed fishing with trawl gear from January 20 through June 10 (A season), and the second seasonal allowance from June 10 through December 31 (B season). Section 679.23(e)(4)(iii) applies Atka mackerel seasons to CDQ Atka mackerel trawl fishing. The ICAs and jig gear allocations are not apportioned by season.

Section 679.20(a)(8)(ii)(C)( 1 )( i ) and ( ii ) limits Atka mackerel catch within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to 50 CFR part 679 and located west of 178° W longitude to no more than 60 percent of the annual TACs in Areas 542 and 543, and equally divides the annual TACs between the A and B seasons as defined at § 679.23(e)(3). Section 679.20(a)(8)(ii)(C)( 2 ) requires that the annual TAC in Area 543 will be no more than 65 percent of the ABC in Area 543. Section 679.20(a)(8)(ii)(D) requires that any unharvested Atka mackerel A season allowance that is added to the B season be prohibited from being harvested within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to 50 CFR part 679 and located in Areas 541, 542, and 543.

Tables 6 and 7 list these 2020 and 2021 Atka mackerel seasonal and area allowances, and the sector allocations. One Amendment 80 cooperative has formed for the 2020 fishing year. Because all Amendment 80 vessels are part of the sole Amendment 80 cooperative, no allocation to the Amendment 80 limited access sector is required for 2020. The 2021 allocations for Atka mackerel between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2020.