I. Discussion

The ETE is a calculation of the time to evacuate the plume exposure pathway emergency planning zone (EPZ), an area around a nuclear power plant for which planning is needed to ensure that prompt and effective actions can be taken in the event of a radiological emergency. The ETE is primarily used to inform protective action strategies within the EPZ and may be used to assist in the development of traffic management plans to support an evacuation. In November 2011, the NRC issued NUREG/CR-7002, “Criteria for Development of Evacuation Time Estimate Studies” (ADAMS Accession No. ML113010515), as guidance to support compliance with ETE provisions added to the NRC's regulations in title 10 of the Code of Federal Regulations, part 50, appendix E, section IV, in a final rule issued on November 23, 2011 (76 FR 72560). The initial release of this guidance was based on previous advancements in the development of ETE modeling and knowledge gained through research of large scale evacuations and staged evacuations.

The revised NUREG/CR-7002 is based on an applied research study to examine, through modeling and simulation, technical subjects associated with the use of traffic simulation models for ETE studies, documented in NUREG/CR-7269, “Enhancing Guidance for Evacuation Time Estimate Studies” (ADAMS Accession No. ML20070M158). Specific areas of research included the impact of shadow evacuations, evacuation model boundary conditions, the use of manual traffic control, and the sensitivity of various model parameters important to ETE studies. The study provided a technical basis for revisions to NUREG/CR-7002 to reflect current practices in transportation modeling and an enhanced understanding of evacuation dynamics. The NRC's intent in revising NUREG/CR-7002 is to ensure consistency in the development and review of ETE studies.

Following development of the revised guidance, the NRC posted the draft NUREG/CR-7002, Rev. 1 to the Federal Rulemaking website at https://www.regulations.gov for a 45-day public comment period (85 FR 52930; August 27, 2020). The NRC held a public meeting on September 16, 2020, to discuss the scope of the proposed revisions. The comment period closed on October 13, 2020. In total, the NRC received, reviewed, and considered 10 comments during the development of this revision. Of the 10 comments, 7 were accepted ( i.e., the NRC revised the draft guidance exactly as recommended), 2 were agreed to in part, and 1 comment was rejected. In all, nine comments resulted in revisions to the draft guidance. A detailed report on the comment resolutions, including the agency's rationales for each comment's disposition, will be available for review in ADAMS under Accession No. ML21007A043 and at https://www.regulations.gov/, under Docket ID NRC-2008-0122, within 30 days after issuance of the final NUREG/CR-7002, Rev. 1. Additionally, in response to EPFAQ 2020-01 (ADAMS Accession No. ML20206L127), the NRC revised the draft guidance to clearly define the decennial period as it applies to the ETE updates required by 10 CFR part 50, appendix E, sections IV.5 and IV.6.

Issuance of NUREG/CR-7002, Rev. 1 does not constitute backfitting as defined in 10 CFR 50.109, “Backfitting,” and as described in NRC Management Directive (MD) 8.4, “Management of Backfitting, Forward Fitting, Issue Finality, and Information Requests”; affect issue finality of any approval issued under 10 CFR part 52, “Licenses, Certificates, and Approvals for Nuclear Power Plants”; or constitute forward fitting as defined in MD 8.4, because, as explained in NUREG/CR-7002, Rev. 1, licensees are not required to comply with the positions set forth in that document.

NUREG/CR-7002, Rev. 1, does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing collections of information were approved by the Office of Management and Budget, approval numbers 3150-0011 and 3150-0151.

The NUREG/CR-7002, Rev. 1, is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

We are making technical amendments to correct § 210.2-01. Specifically, this document amends Instruction 2 published in the Adopting Release. Instruction 2.c is amended to correct a citation to § 210.2-01.

In document FR doc. 2020-23364, which was published in the Federal Register on Friday, December 11, 2020, at 85 FR 80508, the following correction is made:

On December 14, 2020, OWCP published a direct final rule entitled Longshore and Harbor Workers' Compensation Act: Electronic Filing, Settlement, and Civil Money Penalty Procedures, 85 FR 80601. This rule would revise the LHWCA regulations governing electronic filing and settlements, and establish new procedures for assessing and adjudicating penalties under the LHWCA. The comment period for the rule expires on February 12, 2021, and the rule will become effective March 15, 2021, unless OWCP withdraws it prior to then. OWCP stated that it would withdraw the rule if it received significant adverse public comment on either the direct final rule or a simultaneously published companion notice of proposed rulemaking. See 85 FR 80698 (Dec. 14, 2020).

A new administration assumed office on January 20, 2021. On that same date, the Assistant to the President and Chief of Staff issued a memorandum entitled “Regulatory Freeze Pending Review” to the Heads of Executive Departments and Agencies. 86 FR 7424 (Jan. 28, 2021). The purpose of the memorandum was “to ensure that the President's appointees or designees have the opportunity to review any new or pending rules.” Id. The memorandum directs agencies to consider pausing or delaying certain regulatory actions for the purpose of reviewing questions of fact, law, and policy raised therein. OWCP believes that the most efficient way to implement the memorandum in this instance is to withdraw the rule rather than delay the effective date. The comment period is still open and if OWCP receives any significant adverse comment, it would have to withdraw the rule anyway. Withdrawing the rule will also give the new administration time to review the rule and consider the policies it implements. OWCP is simultaneously withdrawing the companion notice of proposed rulemaking. OWCP intends to offer the public an opportunity to comment on the topics addressed at a later time.

DOL is making the following corrections to the final rule, as published in the Federal Register on Monday, January 11, 2021 (86 FR 1772).

DOL is adding amendatory instructions to change the section headings of two sections of the Code of Federal Regulations.

At 86 FR 1781, third column, 29 CFR part 22, amendatory instruction 43 revised § 22.39, paragraphs (a), (b)(3), (c), (f), and (h) through (l). The text of § 22.39 as written in the final rule also included a revised section heading; however, amendatory instruction 43 did not specify that the section heading should be revised in addition to the text of the above-listed paragraphs. In this action, amendatory instruction 43 is corrected to clarify that the section heading of § 22.39 should be revised as well. Amendatory instruction 43 is corrected to read: “43. In § 22.39, revise the section heading and paragraphs (a), (b)(3), (c), (f), and (h) through (l) to read as follows:”. The section heading is being revised to read “Appeal to ARB” instead of “Appeal to authority head.” This change is in keeping with the Department's clearly expressed intent in the preamble of the final rule to revise references in the regulations to an “authority head” to references to the “ARB” in order to clarify the responsibilities of the Administrative Review Board.

At 86 FR 1793, third column, 29 CFR part 1986, amendatory instruction 133 revised § 1986.110, paragraph (c). The text of § 1986.110 as written in the final rule also included a revised section heading; however, amendatory instruction 133 did not specify that the section heading should be revised in addition to the text of paragraph (c). In this action, amendatory instruction 133 is corrected to clarify that the section heading of § 1986.110 should be revised, as well. Amendatory instruction 133 is corrected to read: “133. In § 1986.110, revise the section heading and paragraph (c) to read as follows:”. The section heading is being revised to read “Decision and orders of the Administrative Review Board” instead of “Decisions and order of the Administrative Review Board.” The change to § 1986.110 is intended to make the section heading consistent with other similar section headings in the chapter of Title 29 that are titled “Decision and orders of the Administrative Review Board.”

In the final rule published at 86 FR 1772 in the issue of January 11, 2021, the following corrections are made:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. Immediate action is needed to protect persons and property from the potential safety hazards associated with the bank grading and mat sinking operations performed by the USACE on the Lower Mississippi River (LMR). The NPRM process would delay the establishment of the safety zone until after the date of the event and compromise public safety. We must establish this temporary safety zone immediately and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the the bank grading and mat sinking operations performed by the USACE.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Lower Mississippi River (COTP) has determined that potential hazards associated with the bank grading and mat sinking operations will be a safety concern for anyone within a 300 yard radius of USACE equipment. This rule is needed to protect persons and property, within the safety zone while USACE operations are being conducted.

This rule establishes a temporary safety zone from February 8, 2021 through March 15, 2021. The safety zone will cover all navigable waters of the LMR from mile marker (MM) 330.0 to MM 360.0. The duration of this safety zone is intended to ensure the safety of waterway users on these navigable waters during USACE operations.

Entry of persons or vessels into this safety zone is prohibited unless authorized by the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Lower Mississippi River. Persons or vessels seeking to enter the safety zones must request permission from the COTP or a designated representative on VHF-FM channel 16 or by telephone at 901-521-4822. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public of the enforcement times and date for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

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. 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).

This regulatory action determination is based on the size, location, and duration of the safety zone. This emergency safety zone will temporarily restrict navigation on the LMR from MM 330 through MM 360, from February 8, 2021 through March 15, 2021. Moreover, the Coast Guard will issue Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate. The rule allows vessels to seek permission to enter the zone.

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

While some owners or operators of vessels intending to transit the temporary safety 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.

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, Rev. 1, associated implementing instructions, 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 temporary emergency safety zone on the LMR from MM 330 through MM 360, that will prohibit entry into this zone. The safety zone will only be enforced while operations preclude the safe navigation of the established channel. It is categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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:

I. Background

On September 3, 2020 (85 FR 54954), EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the NPRM, EPA proposed approval of Pennsylvania's plan for maintaining the 1997 ozone NAAQS in the Harrisburg-Lebanon-Carlisle Area through July 25, 2027, in accordance with CAA section 175A. The formal SIP revision was submitted by PADEP on February 27, 2020.

On July 25, 2007 (72 FR 40749 effective July 25, 2007), EPA approved a redesignation request (and maintenance plan) from PADEP for the Harrisburg-Lebanon-Carlisle Area. In accordance with section 175A(b), at the end of the eighth year after the effective date of the redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional 10 years, and in South Coast Air Quality Management District v. EPA, 1 the D.C. Circuit held that this requirement cannot be waived for areas, like the Harrisburg-Lebanon-Carlisle Area, that had been redesignated to attainment for the 1997 8-hour ozone NAAQS prior to revocation and that were designated attainment for the 2008 ozone NAAQS.

CAA section 175A sets forth the criteria for adequate maintenance plans. In addition, EPA has published longstanding guidance that provides further insight on the content of an approvable maintenance plan, explaining that a maintenance plan should address five elements: (1) An attainment emissions inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan. 2 PADEP's February 27, 2020 submittal fulfills Pennsylvania's obligation to submit a second maintenance plan and addresses each of the five necessary elements.

As discussed in the September 3, 2020 NPRM, EPA allows the submittal of a less rigorous, limited maintenance plan (LMP) to meet the CAA section 175A requirements by demonstrating that the area's design value  3 is well below the NAAQS and that the historical stability of the area's air quality levels shows that the area is unlikely to violate the NAAQS in the future. EPA evaluated PADEP's February 27, 2020 submittal for consistency with all applicable EPA guidance and CAA requirements. EPA found that the submittal met CAA section 175A and all CAA requirements, and proposed approval of the LMP for the Harrisburg-Lebanon-Carlisle Area as a revision to the Pennsylvania SIP. The effect of this action makes certain commitments related to the maintenance of the 1997 ozone NAAQS Federally enforceable as part of the Pennsylvania SIP.

Subsequent to the publication of the September 3, 2020 NPRM, EPA discovered a minor computational error in the data presented in Table 1: “Typical Summer Day NO X and VOC Emissions for the Harrisburg-Lebanon-Carlisle Area.” While the data are correct, the total NO X emissions were summed incorrectly in Table 1. The correct total is 73.13 tons/day, not 81.03 tons/day as presented in the table. See 85 FR 54954. However, since the actual data are correct, and since the incorrect total over-reports rather than under-reports the emissions, EPA believes this to be a harmless error which does not impact the rationale in the NPRM for our approval of Pennsylvania's submittal. Other specific requirements of PADEP's February 27, 2020 submittal and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here.

EPA received one comment which was not relevant to this action or to air quality.

EPA is approving the 1997 8-hour ozone NAAQS limited maintenance plan for the Harrisburg-Lebanon-Carlisle Area as a revision to the Pennsylvania SIP.

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because it is not a significant regulatory action under Executive Order 12866;

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 12, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to Pennsylvania's limited maintenance plan for the Harrisburg-Lebanon-Carlisle Area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

On September 16, 2020 (85 FR 57810), EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the NPRM, EPA proposed approval of Pennsylvania's plan for maintaining the 1997 ozone NAAQS in the Johnstown Area through August 1, 2027, in accordance with CAA section 175A. The formal SIP revision was submitted by PADEP on February 27, 2020.

On August 1, 2007 (72 FR 41903), EPA approved a redesignation request (and maintenance plan) from PADEP for the Johnstown Area. In accordance with section 175A(b), at the end of the eighth year after the effective date of the redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional 10 years, and in South Coast Air Quality Management District v. EPA   1 the D.C. Circuit held that this requirement cannot be waived for areas, like Johnstown, that had been redesignated to attainment for the 1997 8-hour ozone NAAQS prior to revocation and that were designated attainment for the 2008 ozone NAAQS. CAA section 175A sets forth the criteria for adequate maintenance plans. In addition, EPA has published longstanding guidance that provides further insight on the content of an approvable maintenance plan, explaining that a maintenance plan should address five elements: (1) An attainment emissions inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan. 2 PADEP's February 27, 2020 submittal fulfills Pennsylvania's obligation to submit a second maintenance plan and addresses each of the five necessary elements.

As discussed in the September 16, 2020 NPRM, EPA allows the submittal of a less rigorous, limited maintenance plan (LMP) to meet the CAA section 175A requirements by demonstrating that the area's design value  3 is well below the NAAQS and that the historical stability of the area's air quality levels shows that the area is unlikely to violate the NAAQS in the future. EPA evaluated PADEP's February 27, 2020 submittal for consistency with all applicable EPA guidance and CAA requirements. EPA found that the submittal met CAA section 175A and all CAA requirements, and proposed approval of the LMP for the Johnstown Area as a revision to the Pennsylvania SIP. The effect of this action makes certain commitments related to the maintenance of the 1997 ozone NAAQS Federally enforceable as part of the Pennsylvania SIP. Other specific requirements of PADEP's February 27, 2020 submittal and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here.

EPA received one comment in support of this action.

EPA is approving the 1997 8-hour ozone NAAQS limited maintenance plan for the Johnstown Area as a revision to the Pennsylvania SIP.

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because it is not a significant regulatory action under Executive Order 12866.

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 12, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to Pennsylvania's limited maintenance plan for the Johnstown Area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On March 13, 2020, EPA published a notice of proposed rulemaking (NPRM) (85 FR 14605) proposing to approve and a direct final rule (DFR) (85 FR 14578) approving a SIP submission from the Commonwealth of Massachusetts to address the infrastructure requirements of the Clean Air Act for the 2015 ozone NAAQS. When EPA promulgates a new or revised NAAQS, each state must submit a SIP submission, known as an “infrastructure SIP”, in order to ensure that the state's SIP provides for implementation, maintenance, and enforcement of the new or revised NAAQS. The Massachusetts Department of Environmental Protection (MassDEP) submitted the infrastructure SIP submission to EPA as a formal SIP submission on September 27, 2018. In the DFR, EPA stated that, if it received an adverse comment on the direct final proposal by April 13, 2020, then the agency would withdraw that direct final and issue a final rule based on the NPRM. EPA received one adverse comment prior to the close of the comment period. Therefore, EPA withdrew the DFR on May 12, 2020 (85 FR 27927). This action is a final rule based on the NPRM.

A detailed discussion of the Massachusetts September 27, 2018, infrastructure SIP submission, and EPA's rationale for proposing approval of the SIP submission appear in the DFR and we will not restate that here, except to the extent relevant to our response to the public comment on the proposal. EPA also received two requests to extend the public comment period for the NPRM until after the COVID-19 pandemic is over. EPA is denying these extension requests, and the reasons for this denial can be found in the docket for this rulemaking.

EPA received one adverse comment on the March 13, 2020, notice of proposed rulemaking.

Comment: “EPA is also approving the state's SIP as having adequate resources, how was EPA able to identify whether the state had adequate resources before the COVID-19 outbreak and how can the outbreak not affect the state's ability to continue having adequate resources? And how is EPA sure the state has adequate enforcement abilities to carry out its mission to protect environmental and human health after Trump's EPA issued a BLANKET waiver to all environmental rules??? EPA can't possibly think a state is able to enforce the state's rules in addition to EPA's rules that Trump has declined to persecute [sic]. EPA can't approve the state's ability to have adequate resources or adequate funding or adequate enforcement if EPA's review is predicated on the belief of pre-COVID-19 conditions will continue now.”

Response: The comment provides little detail, but it appears to raise three general issues. First, it asks how EPA was “able to identify whether the state had adequate resources” before the COVID-19 pandemic. Second, it questions any conclusion that Massachusetts has “adequate resources” and “adequate enforcement abilities” in light of the pandemic. And third, it asks how EPA can be sure that Massachusetts has “adequate enforcement abilities” in light of what the comment refers to as an EPA-issued “BLANKET waiver to all environmental rules.” On the third issue, the comment does not specifically identify an EPA “waiver,” but EPA assumes the commenter refers to EPA's March 26, 2020, memorandum entitled “COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program” (hereinafter, “March 2020 memorandum” or “EPA Enforcement Memo”). The comment does not identify a particular section (or sections) of the Clean Air Act that it believes Massachusetts failed to satisfy but it is reasonable to assume that the commenter is referring to the requirements of sections 110(a)(2)(C) (pertaining to enforcement) and section 110(a)(2)(E) (pertaining to state resources).

As an initial matter, the purpose of an infrastructure SIP submission is to demonstrate that the state's SIP contains the basic program elements needed to implement, maintain, and enforce the particular NAAQS at issue, in this case, the 2015 ozone NAAQS. If the current SIP fails to satisfy these basic program elements then the state should revise the existing SIP so that EPA may evaluate these elements and approve them into the SIP, as appropriate. A SIP is generally comprised of state regulations, statutes and other documents used by the state that the EPA has approved as meeting applicable CAA requirements. In the context of acting on infrastructure SIP submissions, EPA evaluates the state's SIP submission to determine whether the submission meets the applicable statutory requirements of CAA sections 110(a)(1) and 110(a)(2) and the appropriate regulatory requirements. EPA is not evaluating the state's implementation of its SIP in this action. See Montana Envtl. Info. Ctr. v. Thomas, 902 F.3d 971 (9th Cir. 2018). EPA has other authority to address issues concerning a state's implementation of the rules, regulations, consent orders, etc. that comprise its SIP.

EPA disagrees that it should disapprove the infrastructure SIP submission for the “enforcement” sub-element of CAA section110(a)(2)(C), the “adequate resources” requirement in CAA section 110(a)(2)(E)(i), or both. Section 110(a)(2)(E)(i) of the Act requires each SIP to provide “necessary assurances that the State . . . will have adequate personnel, funding, and authority under State . . . law to carry out such implementation plan.” Thus, under this section, EPA evaluates a state's infrastructure SIP submission for evidence that the state has provided necessary assurances that it has adequate resources to carry out the SIP. Element E does not require the EPA to conduct an audit of state resources or personnel. Nevertheless, upon receiving this comment, EPA requested supplemental information from MassDEP to provide more detail about Department staff and resources. In this supplemental document, MassDEP states, “MassDEP resources to implement the SIP include staff and managers in the Bureau of Air and Waste (BAW), including the Division of Air and Climate Programs in MassDEP's Boston office (approximately 29 staff), the Air Assessment Branch based in MassDEP's Wall Experiment Station laboratory in Lawrence (approximately 23 staff), and the permitting and compliance and enforcement (C&E) units in each of the four MassDEP regional offices (approximately 55 staff).” MassDEP further notes that these numbers do not include additional staff in the separate legal, research, and information technology units that also support the Commonwealth's efforts carrying out the SIP.

MassDEP staff and operations are funded by the Commonwealth and through EPA grants, including annual funding through CAA sections 103 and 105 to assist with the costs of implementing programs for the prevention and control of air pollution or implementation of national primary and secondary ambient air quality standards. Massachusetts also has an EPA-approved fee program under CAA title V which is used to support title V program elements such as permitting, monitoring, testing, inspections, and enforcement. MassDEP's budget has been consistent over the past number of years and over these years Massachusetts has been able to meet its statutory commitments under the Act. 1 MassDEP also reports that “There are no plans that would significantly alter these resources in the 5-year period following submission of the Certification or beyond and therefore MassDEP expects to have adequate resources to implement the SIP in the future.” The full supplemental submission from MassDEP can be found in the docket for this rulemaking.

EPA explained in the DFR that Massachusetts' infrastructure SIP submission documented that its air agency, MassDEP, has the requisite authority and resources to carry out its SIP obligations. In particular, Massachusetts General Laws c. 111, sections 142A to 142N, provide MassDEP with the authority to carry out the state's implementation plan. The Massachusetts SIP, as originally submitted in 1971 and subsequently amended, provides descriptions of the staffing and funding necessary to carry out the plan. In the original and supplemental submissions MassDEP has provided an adequate description of its resources to allow EPA to assess that MassDEP has adequate personnel and funding to carry out the SIP during the five years following infrastructure SIP submission and in future years. Thus, with respect to the first issue raised by the comment, EPA finds that MassDEP has provided an adequate description of its staffing resources and that this information, when considered together with the budget information, is sufficient for EPA to conclude that the Commonwealth has adequate personnel, funding, and authority under State law to meet its SIP obligations sufficient to justify approval of the SIP submittal for section 110(a)(2)(E)(i).

With respect to the second issue, the commenter expresses concern that the impacts of the ongoing COVID 19 pandemic can only result in the Commonwealth having inadequate resources to meet its SIP obligations. As explained above, MassDEP provides assurances in the infrastructure SIP submission and supplemental document that it has adequate personnel and funding to carry out the SIP during the five years following the submission and in future years. We also note that the Massachusetts' Governor's 2021 budget recommendation proposes a similar level of funding for MassDEP as it has received in recent years. 2 Moreover, the Commonwealth receives federal grants under CAA sections 103 and 105 to assist it in carrying out the SIP, and other funding sources include permit fees and title V fees collected by MassDEP. If the Commonwealth's implementation of its SIP is substantially affected in the future by the pandemic, EPA has the statutory authority under the CAA to address such issues through means other than disapproving the infrastructure SIP submission at this time. Based on the original SIP submission and supplemental information, EPA finds that MassDEP has provided necessary information for EPA to conclude that MassDEP has and will continue to have adequate personnel and funding to carry out the SIP. For these reasons, EPA does not agree that it must disapprove the infrastructure SIP submission for section 110(a)(2)(E)(i) in light of the pandemic.

Also, with respect to the second issue raised, the comment also expresses concern that the Commonwealth will not have “adequate enforcement abilities” in light of the pandemic. While the commenter does not identify any particular infrastructure SIP requirement with this claim, it is possible that the commenter may be objecting to EPA's approval of the ISIP submittal for the enforcement sub-element of section 110(a)(2)(C). This sub-element requires that each state's SIP “include a program to provide for the enforcement of” the emission limits and control measures that the state air agency identified in its submission for purposes of satisfying 110(a)(2)(A). In the DFR, EPA explained that the Massachusetts SIP includes such a program. In particular, EPA noted specific provisions of state law that authorize MassDEP to adopt regulations to control air pollution, to enforce such regulations and to assess penalties for non-compliance. EPA also highlighted state regulations currently in the SIP. Thus, EPA explained that the SIP includes a program to provide for the enforcement of SIP measures. EPA acknowledges the COVID-19 pandemic has the potential to impact the resources available to the state to maintain its program; however, proposed level funding for FY2021 indicates that MADEP will maintain their current program capability. EPA also notes that The Commonwealth has been a leader among all states in being proactive to address air quality concerns. Nevertheless, if an actual resources problem were to develop, EPA has the statutory authority to address such issues through means other than disapproving the infrastructure SIP submission at this time.

Finally, the commenter expresses concern that Massachusetts does not have “adequate enforcement abilities” in light of what the commenter characterizes as a “blanket waiver” by EPA of environmental rules. EPA does not agree that the March 2020 memorandum is a “blanket waiver,”  3 but in any event the memorandum applies to EPA's own enforcement activities, not a state's. See EPA Enforcement Memo at 1-2 (“Authorized states or tribes may take a different approach under their own authorities.”). Therefore, it does not affect whether Massachusetts has “adequate enforcement abilities” and does not affect Massachusetts' “program to provide for the enforcement of” SIP measures. Furthermore, on August 31, 2020, EPA terminated the temporary policy described in the March 2020 memorandum. See COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program: Addendum on Termination, EPA (June 29, 2020). For these reasons, the March 2020 memorandum is not a reason to disapprove the Massachusetts' ISIP submittal for the enforcement sub-element in section 110(a)(2)(C).

For the above reasons, EPA concludes that the comment does not justify disapproving the Commonwealth's infrastructure SIP submittal for the 2015 ozone NAAQS for compliance with the requirements of CAA sections 110(a)(2)(C) or (E)(i).

EPA is approving most portions of the Massachusetts infrastructure SIP submission for the 2015 ozone NAAQS. We are also issuing a finding of failure to submit pertaining to the various infrastructure SIP requirements that pertain to the prevention of significant deterioration (PSD) program, i.e., section 110(a)(2)(C) sub-element 2, the PSD portion of Sub-Element 2: Section 110(a)(2)(D)(i)(II)—PSD (Prong 3), section 110(a)(2)(D)(ii) with respect to the PSD-related notice of interstate pollution, section 110(a)(2)(J) sub-element 1 with respect to the FLM consultation requirement for PSD permitting, and section 110(a)(2)(J) sub-element 3 (PSD). The Commonwealth has long been subject to a Federal Implementation Plan (FIP) regarding PSD, thus the finding of failure to submit will result in no mandatory sanctions or further FIP requirements. This rulemaking also does not include any action on the interstate transport portion of the Commonwealth's infrastructure SIP submission for the 2015 Ozone NAAQS, i.e., section 110(a)(2)(D). This action is being taken in accordance with the Clean Air Act.

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

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

• Is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866;

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 12, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

I. Background

On September 3, 2020 (85 FR 54947), EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the NPRM, EPA proposed approval of Pennsylvania's plan for maintaining the 1997 ozone NAAQS in the Altoona Area through August 1, 2027, in accordance with CAA section 175A. The formal SIP revision was submitted by PADEP on February 27, 2020.

On August 1, 2007 (72 FR 41906 effective August 1, 2007), EPA approved a redesignation request (and maintenance plan) from PADEP for the Altoona Area. In accordance with section 175A(b), at the end of the eighth year after the effective date of the redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional 10 years, and in South Coast Air Quality Management District v. EPA , 1 the D.C. Circuit held that this requirement cannot be waived for areas, like Charleston, that had been redesignated to attainment for the 1997 8-hour ozone NAAQS prior to revocation and that were designated attainment for the 2008 ozone NAAQS. CAA section 175A sets forth the criteria for adequate maintenance plans. In addition, EPA has published longstanding guidance that provides further insight on the content of an approvable maintenance plan, explaining that a maintenance plan should address five elements: (1) An attainment emissions inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan. 2 PADEP's February 27, 2020 submittal fulfills Pennsylvania's obligation to submit a second maintenance plan and addresses each of the five necessary elements.

As discussed in the September 3, 2020 NPRM, EPA allows the submittal of a less rigorous, limited maintenance plan (LMP) to meet the CAA section 175A requirements by demonstrating that the area's design value  3 is well below the NAAQS and that the historical stability of the area's air quality levels shows that the area is unlikely to violate the NAAQS in the future. EPA evaluated PADEP's February 27, 2020 submittal for consistency with all applicable EPA guidance and CAA requirements. EPA found that the submittal met CAA section 175A and all CAA requirements, and proposed approval of the LMP for the Altoona Area as a revision to the Pennsylvania SIP. The effect of this action makes certain commitments related to the maintenance of the 1997 ozone NAAQS Federally enforceable as part of the Pennsylvania SIP.

Subsequent to the publication of the September 3, 2020 NPRM, EPA discovered a minor computational error in the data presented in Table 1: “Typical Summer Day NO X and VOC Emissions for the Altoona Area.” While the data are correct, the total volatile organic compounds (VOC) emissions were summed incorrectly in Table 1. The correct total is 10.90 tons/day, not 11.90 tons/day as presented in the table. See 85 FR 54948. However, since the actual data are correct, and since the incorrect total over-reports rather than under-reports the emissions, EPA believes this to be a harmless error which does not impact the rationale in the NPRM for our approval of Pennsylvania's submittal. Other specific requirements of PADEP's February 27, 2020 submittal and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here. No public comments were received on the NPRM.

EPA is approving the 1997 8-hour ozone NAAQS limited maintenance plan for the Altoona Area as a revision to the Pennsylvania SIP.

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because it is not a significant regulatory action under Executive Order 12866.

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 12, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action pertaining to Pennsylvania's second maintenance plan for the Altoona Area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

I. Background

On July 15, 2020 (85 FR 42807), EPA published a notice of proposed rulemaking (NPRM) for the State of Maryland. In the NPRM, EPA proposed approval of a negative declaration submitted by the State of Maryland for Sewage Sludge Incineration (SSI) units. This negative declaration submitted by MDE certifies that SSI units subject to sections 111(d) and 129 of the CAA do not exist within the jurisdiction of the State of Maryland. The negative declaration was submitted by MDE on January 20, 2017.

The CAA requires that state regulatory agencies implement emission guidelines and associated compliance times using a state plan developed under sections 111(d) and 129 of the CAA. The general provisions for the submittal and approval of state plans are codified in 40 Code of Federal Regulations (CFR) part 60, subpart B and 40 CFR part 62, subpart A. Section 111(d) establishes general requirements and procedures on state plan submittals for the control of designated pollutants. Section 129 requires emission guidelines to be promulgated for all categories of solid waste incineration units, including SSI units. SSI units are defined at 40 CFR 60.5250 as “an incineration unit combusting sewage sludge for the purpose of reducing the volume of the sewage sludge by removing combustible matter. Sewage sludge incineration unit designs include fluidized bed and multiple hearth. A SSI unit also includes, but is not limited to, the sewage sludge feed system, auxiliary fuel feed system, grate system, flue gas system, waste heat recovery equipment, if any, and bottom ash system. The SSI unit includes all ash handling systems connected to the bottom ash handling system. The combustion unit bottom ash system ends at the truck loading station or similar equipment that transfers the ash to final disposal. The SSI unit does not include air pollution control equipment or the stack.”

Section 129 mandates that all plan requirements be at least as protective as the promulgated emission guidelines. This includes fixed final compliance dates, fixed compliance schedules, and title V permitting requirements for all affected sources. Section 129 also requires that state plans be submitted to EPA within one year after EPA's promulgation of the emission guidelines and compliance times.

States have options other than submitting a state plan in order to fulfill their obligations under CAA sections 111(d) and 129. If a state does not have any existing SSI units for the relevant emission guidelines, a letter can be submitted certifying that no such units exist within the state ( i.e., negative declaration) in lieu of a state plan, in accordance with 40 CFR 60.5010. The negative declaration exempts the state from the requirements of subpart B that would otherwise require the submittal of a CAA section 111(d)/129 plan.

On March 21, 2011 (76 FR 15372), EPA finalized emission guidelines for SSI units at 40 CFR part 60, subpart MMMM. Following the 2011 final rule, MDE determined that there was one SSI facility in Maryland that met the applicability criteria for the Federal plan. On January 20, 2017, MDE submitted a letter to EPA requesting full delegation of authority to implement the SSI Federal plan. However, that facility has now permanently shut down and has relinquished its title V permit to operate. Accordingly, MDE sent a negative declaration for SSI units on April 3, 2020.

In this action, EPA amends 40 CFR part 62 to reflect receipt of the negative declaration letter from MDE, received April 3, 2020, certifying that there are no existing SSI units subject to 40 CFR part 60, subpart MMMM, in accordance with section 111(d) and 129 of the CAA. EPA is accepting the negative declaration in accordance with the requirements of the CAA and 40 CFR 60.23(b) and 62.06.

EPA's role with regard to negative declarations for designated facilities received by EPA from states is to notify the public of the receipt of such negative declarations and revise 40 CFR part 62 accordingly. This action approves the state's negative declaration as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 12, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, approving a negative declaration submitted by MDE stating that there are no Sewage Sludge Incineration (SSI) units in the state of Maryland subject to sections 111(d) and 129 of the CAA, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For the reasons stated in the preamble, the EPA amends 40 CFR part 62 as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2020-0568 in the subject line on the first page of your submission. All objections and requests must be in writing and must be received by the Hearing Clerk on or before April 12, 2021. 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-2020-0568, 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 https://www.epa.gov/dockets/where-send-comments-epa-dockets. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

EPA previously published final rules establishing time-limited tolerances in the Federal Register for the chemicals and commodities listed, below, under FFDCA section 408, 21 U.S.C. 346a. EPA established the tolerances because FFDCA section 408(l)(6) requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established at EPA's own initiative and without providing notice or time for public comment.

EPA received requests to extend emergency uses of clothianidin, methyl bromide, and triclopyr for this year's growing season. After having reviewed these submissions, EPA concurs that emergency conditions continue to exist. EPA assessed the potential risks presented by residues for each chemical in the pertinent commodities. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2) and decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18.

The data and other relevant material have been evaluated and were discussed in the final rules originally establishing the time-limited tolerances. Based on those data and information considered, the Agency reaffirms that extension of these time-limited tolerances will continue to meet the requirements of FFDCA section 408(l)(6). Therefore, the time-limited tolerances are extended until December 31, 2023. Although these tolerances will expire and are revoked on December 31, 2023, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on the commodities after that date will not be unlawful, provided the residue is present as a result of an application or use of a pesticide at a time and in a manner that was lawful under FIFRA, the tolerance was in place at the time of the application, and the residue does not exceed the level that was authorized by the tolerance. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations (CFR).

Time-limited tolerances for the use of the following pesticide chemicals on specific commodities are being extended:

Clothianidin. EPA has authorized under FIFRA section 18 the use of clothianidin on citrus for control of the Asian citrus psyllid in Florida and Texas. This regulation extends a time-limited tolerance for residues of the insecticide clothianidin and its metabolites and degradates in or on fruit, citrus, group 10-10 at 0.07 parts per million (ppm) for an additional 3-year period. This tolerance will expire and is revoked on December 31, 2023. The time-limited tolerance was originally published in the Federal Register of February 25, 2015 (80 FR 10003) (FRL-9919-59).

Methyl bromide. Pursuant to a request by the US Department of Agriculture, Animal and Plant Health Inspection Service, EPA has authorized under FIFRA section 18 the use of methyl bromide on certain imported and domestic commodities, post-harvest for control of invasive non-indigenous quarantine plant pests and to prevent the introduction and/or spread of any new or recently introduced foreign pests to the United States. This regulation extends time-limited tolerances for residues of the pesticide methyl bromide, including its metabolites and degradates, in or on the commodities identified in 40 CFR 180.124(b) (and listed in the regulatory text section of this document) at the levels listed for an additional 3-year period. The tolerances will expire and are revoked on December 31, 2023. The time-limited tolerances were originally published in the Federal Register of March 1, 2018 (83 FR 8758) (FRL-9971-19) and October 16, 2020 (85 FR 65729) (FRL-10014-31).

In addition to extending these tolerances, EPA is making several non-substantive revisions to 40 CFR 180.124(b). Entries for avocado, banana, longan, lychee, pomegranate, rambutan, and Spanish lime are deleted, because these commodities are included in Tropical and subtropical fruits, inedible peel, group 24. This regulation also revises certain commodity terms for consistency with current crop groups and commodity vocabulary as follows: “Tropical and subtropical fruits, edible peel, group 23” will now read “Fruit, tropical and subtropical, edible peel, group 23”; “Tropical and subtropical fruits, inedible peel, group 24” will now read “Fruit, tropical and subtropical, inedible peel, group 24”; and “Stalk, stem and leaf petiole vegetables, group 22” will now read “Vegetables, stalk, stem and leaf petiole, group 22”. None of the revisions discussed in this paragraph change the amount of methyl bromide residues permitted on any commodity.

Triclopyr. EPA has authorized under FIFRA section 18 the use of triclopyr on sugarcane for control of divine nightshade ( Solanum nigresens ) in Louisiana. This regulation extends a time-limited tolerance for residues of the herbicide triclopyr and its metabolites and degradates in or on sugarcane, cane at 40 ppm for an additional 3-year period. The tolerance will expire and is revoked on December 31, 2023. A time-limited tolerance was originally published in the Federal Register of June 8, 2017 (82 FR 26599) (FRL-9961-29).

The time-limited tolerances are being removed at 40 CFR 180.613(b) for residues of the insecticide flonicamid and its metabolites in or on prickly pear, fruit and pads at 1.5 ppm which expire on December 31, 2020. The applicant has not submitted a request for further use of flonicamid on prickly pear. The time-limited tolerances were originally published in the Federal Register of January 26, 2018 (83 FR 3610) (FRL-9971-94).

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established any MRLs for flonicamid, methyl bromide, or triclopyr on the commodities listed in this document. The Codex has established MRLs for clothianidin in or on citrus at 0.07 ppm, the same as the tolerance established for fruit, citrus, group 10-10 in the United States. Therefore, there are no harmonization issues.

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

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

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

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

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA has submitted 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, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 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 numbers EPA-HQ-OPP-2020-0066 and EPA-HQ-OPP-2019-0586 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 April 12, 2021. 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 numbers EPA-HQ-OPP-2020-0066 and EPA-HQ-OPP-2019-0586, 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 April 15, 2020 (85 FR 20910) (FRL-10006-54), 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 9E8806) by IR-4, IR-4 Project Headquarters, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201W, Princeton, NJ 08540. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of benzovindiflupyr (N-[9-(dichloromethylene)-1,2,3,4-tetrahydro-1,4-methanonaphthalen-5-yl]-3-(difluoromethyl)-1-methyl-1H-pyrazole-4-carboxamide) in or on the raw agricultural commodities Blueberry, lowbush at 2 parts per million (ppm) and Ginseng at 0.3 ppm. That document referenced a summary of the petition prepared by Syngenta, the registrant, which is available in the docket EPA-HQ-OPP-2020-0066, http://www.regulations.gov. There were no comments received in response to the notice of filing.

In the Federal Register of February 4, 2020 (85 FR 6129) (FRL-10003-17), 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 9F8772) by Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC, 27419. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of benzovindiflupyr in or on the raw agricultural commodities Beet, sugar, dried pulp at 0.15 ppm; Beet, sugar, roots at 0.08 ppm; and Beet, sugar, tops at 0.06 ppm. That document referenced a summary of the petition prepared by Syngenta, the registrant, which is available in the docket EPA-HQ-OPP-2019-0586, http://www.regulations.gov. One relevant comment was received in response to the notice of filing. EPA's response to this comment is discussed in Unit IV.C.

Based upon review of the data supporting the petition, EPA is establishing several tolerances at different levels than were petitioned for and is also modifying a commodity definition. The reason for these changes is explained in Unit IV.D.

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 benzovindiflupyr including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with benzovindiflupyr follows.

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections that repeat what has been previously published for tolerance rulemakings of the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemakings and republishing the same sections is unnecessary. EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published a number of tolerance rulemakings for benzovindiflupyr, in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to benzovindiflupyr and established tolerances for residues of that chemical. EPA is incorporating previously published sections from those rulemakings as described further in this rulemaking, as they remain unchanged.

Toxicological Profile. For a discussion of the Toxicological Profile of benzovindiflupyr, see Unit III.A. of the June 22, 2018 rulemaking (83 FR 29033) (FRL-9977-94).

Toxicological Points of Departure/Levels of Concern. For a summary of the Toxicological Points of Departure/Levels of Concern used for the safety assessment, see Unit III.B. of the October 2, 2015 rulemaking (80 FR 59627) (FRL-9933-03).

Exposure Assessment. Much of the exposure assessment remains the same, although some updates have occurred to accommodate exposures from the petitioned-for tolerances and reflect changes to the non-dietary, non-occupational exposure assessment. The updates are discussed in this section; for a description of the rest of the EPA approach to and assumptions for the exposure assessment, see Unit III.C. of the June 22, 2018 rulemaking.

EPA's dietary exposure assessments have been updated to include the additional exposure from the new uses of benzovindiflupyr on lowbush blueberry, ginseng, and sugar beet. The assessment used the same assumptions concerning 100 percent crop treated and tolerance-level residues as the June 22, 2018 final rule. Drinking water exposures are not impacted by the new uses, and thus have not changed since the last assessment.

There have been two updates to the residential exposure assessment since the June 22, 2018 final rule. The updated assessment no longer assesses risks to residential handlers, since the label requirements for handlers to wear specific clothing and to use personal protective equipment (PPE) are presumed to indicate that these products are not intended for homeowner use; thus, there is no residential handler exposure. The consideration of the new turf use does not change previous conclusions about post-application risk exposures.

EPA's conclusions concerning cumulative risk remain unchanged from the June 22, 2018 rulemaking.

Safety Factor for Infants and Children. EPA continues to conclude that there is reliable data to support the reduction of the Food Quality Protection Act (FQPA) safety factor. See Unit III.D. of the June 22, 2018 rulemaking for a discussion of the Agency's rationale for that determination.

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

Acute dietary risks are below the Agency's level of concern of 100% of the aPAD: They are 44% of the aPAD for children 1 to 2 years old, the population subgroup with the highest exposure estimate. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD: They are 19% of the cPAD for children 1 to 2 years old, the population subgroup with the highest exposure estimate. Because the chronic dietary risks are below EPA's level of concern, EPA also concludes that benzovindiflupyr will not pose a cancer risk. The short-term aggregate MOE (food, water, and residential) is 500 for children 1 to 2 years old. This MOE exceeds the target level of concern of 100, so it is not of concern. There are no intermediate or long-term residential exposures.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to benzovindiflupyr residues. More detailed information about the Agency's analysis can be found at http://www.regulations.gov in the documents titled “Benzovindiflupyr. Human Health Risk Assessment for the Proposed New Food Use on Lowbush Blueberries and Ginseng and New Non-Food Uses.” in docket ID number EPA-HQ-OPP-2020-0066 and “Benzovindiflupyr. Human Health Risk Assessment for the Proposed New Use on Sugar Beets ” in docket ID number EPA-HQ-OPP-2019-0586.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the June 22, 2018 rulemaking.

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).

There are no benzovindiflupyr Codex MRLs established for blueberries, ginseng, or sugar beets.

Although three comments were submitted to the docket in response to the February 4, 2020 Notice of Filing, only one specifically related to this tolerance action. The commenter requested that EPA deny Syngenta's request for tolerances for benzovindiflupyr on sugar beets out of a concern for the general health impacts of pesticides.

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 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 the benzovindiflupyr tolerances are safe. The commenter has provided no information indicating that a safety determination cannot be supported.

Based on available residue data and using the Organization for Economic Cooperation and Development (OECD) calculator, EPA has determined that it is appropriate to set the tolerance level for beet, sugar, dried pulp at 0.6 ppm rather than as proposed at 0.15 ppm. Also, the tolerance is being established on “Beet, sugar, leaves” rather than “Beet, sugar, tops” to be consistent with Agency nomenclature; this tolerance is being established at 0.07 ppm rather than 0.06 ppm.

Therefore, tolerances are established for residues of benzovindiflupyr in or on beet, sugar, dried pulp at 0.6 ppm; beet sugar, leaves at 0.07 ppm; beet, sugar, roots at 0.08 ppm; blueberry, lowbush at 2 ppm; and ginseng at 0.3 ppm.

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

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances and modifications 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, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 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-2016-0067 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 April 12, 2021. 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-2016-0067, 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 April 25, 2016 (81 FR 24044) (FRL-9944-86), 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 5F8427) by Geo Logic Corporation, P.O. Box 3091, Tequesta, FL 33409. The petition requested that 40 CFR 180.245 be amended by establishing tolerances for residues of streptomycin in or on citrus fruit, crop group 10-10 at 0.5 ppm and citrus, dried pulp at 3.5 ppm and by removing the existing tolerances for grapefruit.

In addition, in the Federal Register of September 5, 2014 (79 FR 53009) (FRL-9914-98), 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 4E8236) by Interregional Research Project No. 4 (IR-4), 500 College Road East, Suite 201W, Princeton, NJ 08540. The petition requested the establishment of tolerances for residues of streptomycin in or on grapefruit at 0.15 ppm, grapefruit, dried pulp at 0.63 ppm, and fruit, pome, group 11-10 at 0.25, as well as several amendments to the existing tolerances in 40 CFR 180.245 as follows: (1) Moving the existing tolerances for streptomycin on celery, pepper, and tomato from paragraph (a)(2), and potato from paragraph (a)(3) to the table in paragraph (a)(1); (2) modifying the existing tolerance for tomato from 0.25 ppm to 0.5 ppm; (3) removing the existing time-limited tolerances for grapefruit and grapefruit, dried pulp in paragraph (b) upon establishment of the permanent tolerances for grapefruit and grapefruit, dried pulp; (4) removing the existing tolerance for fruit, pome, group 11 upon establishment of the tolerance for fruit, pome, group 11-10; and (5) modifying the tolerance expression and creating a single paragraph and table under § 180.245(a) to provide that in general tolerances are established for residues of the fungicide streptomycin, including its metabolites and degradates, in or on the commodities in the table to the paragraph. Compliance with the tolerance levels specified in the table is to be determined by measuring only streptomycin (O-2-Deoxy-2-(methylamino)-a-Lglucopyranosyl-(1-2)-O-5-deoxy-3-Cformyl-a-L-lyxofuranosyl-(1-4)- N,N ′-bis(aminoiminomethyl)-D-streptamine) in or on the commodity.

The documents referenced summaries of the petitions prepared by the petitioners, which are available at http://www.regulations.gov. in the following dockets: EPA-HQ-OPP-2016-0067 for PP 5F8427 and EPA-HQ-OPP-2014-0134 for PP 4E8236. No comments were received in response to the notice of filing for PP 5F8427; eighteen comments were submitted in response to the notice of filing for PP 4E8236 although none were relevant to the streptomycin tolerance.

Based upon review of the data supporting the petitions, EPA is establishing the tolerances at different levels than requested. The reasons for these changes are explained in Unit IV.C.

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

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

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections that repeat what has been previously published for tolerance rulemakings of the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemakings and republishing the same sections is unnecessary; EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published a tolerance rulemaking for streptomycin, in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to streptomycin and established tolerances for residues of that chemical. EPA is incorporating previously published sections from those rulemakings as described further in this rulemaking, as they remain unchanged.

Toxicological Profile. There are no guideline toxicity studies available to assess pesticidal uses of streptomycin. The toxicity of streptomycin was assessed using the extensive published literature on drug use of streptomycin in humans and in animals, as well as with several toxicity summaries provided by the FDA. Injections of streptomycin as a drug (up to a gram), at doses much higher than expected from dietary or residential routes of exposure to pesticidal uses, can cause inner ear toxicity resulting in vestibular problems with loss of balance or equilibrium. Injections also sometimes cause hearing loss and mild, reversible kidney toxicity. Children born to mothers treated with streptomycin injections have sometimes had hearing loss. No teratogenic effects were noted in a non-guideline rabbit developmental study. In a non-guideline 2-year rat feeding study, the only adverse effect noted was reduced body weight in males; an increase in treatment-related tumors was not reported. The acute oral toxicity for streptomycin is very low; the LD 50 was 9,000 mg/kg in both rats and mice.

Toxicological Points of Departure/Levels of Concern. For a summary of the Toxicological Points of Departure/Levels of Concern used for the safety assessment, see Unit IV.A. of the March 15, 2017 rulemaking (82 FR 13759) (FRL-9957-65).

Exposure Assessment. EPA's dietary exposure assessments for the permanent tolerances on the citrus fruit crop group 10-10 and dried citrus pulp relied on tolerance-level residues for all crops and an assumption of 100 percent crop treated (PCT). EPA's aggregate exposure assessment incorporated this assumed dietary exposure, as well as exposure in drinking water and from residential sources, which have not changed since the last assessment. The assessment also considered aggregate risk as a result of the pharmaceutical uses of streptomycin. For a description of the rest of the EPA approach to and assumptions for the exposure assessment, see Unit IV.B. of the March 15, 2017 rulemaking.

Safety Factor for Infants and Children. EPA continues to conclude that there is reliable data to support the reduction of the Food Quality Protection Act (FQPA) safety factor. See Unit IV.C. of the March 15, 2017 rulemaking for a discussion of the Agency's rationale for that determination.

Aggregate Risks and Determination of Safety. EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute population adjusted dose (aPAD) and chronic PAD (cPAD). 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 margin of exposure (MOE) exists. For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure.

No acute effects were identified in the toxicological studies for streptomycin; therefore, acute risk is not expected. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD: They are 91% of the cPAD for all infants less than 1 year old, the population subgroup with the highest exposure estimate. The short-term MOE is greater than the Agency's level of concern of 100: It is 260 for adults, the population group of concern. Intermediate-term or long-term residential exposures are not expected. Lastly, because the pesticide exposure has no more than a minimal impact on the total dose to a pharmaceutical user, EPA believes that there is a reasonable certainty that the potential dietary pesticide exposure will result in no harm to a user being treated therapeutically with streptomycin.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to streptomycin residues. More detailed information about the Agency's analysis can be found at http://www.regulations.gov in the document titled “Streptomycin. Section 3 Registration for Citrus Fruits Crop Group 10-10” in docket ID number EPA-HQ-OPP-2016-0067.

A high-performance liquid chromatography method with tandem mass spectrometry detection (LC/MS/MS) is available for tolerance enforcement.

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

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4).

The Codex has not established any MRLs for streptomycin.

The tolerances proposed by the petitioner for the citrus fruit crop group 10-10 (0.50 ppm) and citrus dried pulp (3.5 ppm) are different from those which are being established by this document. This is primarily because the petitioner input the residue data differently into the calculation procedures for determining the proposed crop group tolerance (including all data for the representative crops into a single calculation). As a result, the tolerances are being established at 0.8 ppm for the fruit, citrus, crop group 10-10 and 3 ppm for fruit, citrus, group 10-10, dried pulp. In addition, the commodity definitions were corrected to reflect the crop group.

As a result of the IR-4 petition being withdrawn by the petitioner, EPA is not granting the request to establish the requested tolerances or to increase the tomato tolerance from 0.25 to 0.5 ppm. EPA is making the editorial changes requested by IR-4, however, including modifications to the tolerance expression and tables contained in paragraph (a) and removal of expired grapefruit tolerances from paragraph (b).

Therefore, tolerances are established for residues of streptomycin in or on Fruit, citrus, group 10-10 at 0.8 ppm and Fruit, citrus, group 10-10, dried pulp at 3 ppm. In addition, existing tolerances in 40 CFR 180.245 are amended as follows: (1) Consolidating the subparagraphs and tables in paragraph (a) into a single paragraph (a); (2) removing the time-limited tolerances for grapefruit and grapefruit, dried pulp, as they have expired; and (3) modifying the tolerance expression and creating a single paragraph and table under § 180.245(a) to provide that in general tolerances are established for residues of the fungicide streptomycin, including its metabolites and degradates, in or on the commodities in the table to the paragraph. Compliance with the tolerance levels specified in the table is to be determined by measuring only streptomycin (O-2-Deoxy-2-(methylamino)-a-Lglucopyranosyl-(1-2)-O-5-deoxy-3-Cformyl-a-L-lyxofuranosyl-(1-4)- N,N ′-bis(aminoiminomethyl)-D-streptamine) in or on the commodity.

This action establishes and modifies 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 tolerances 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, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I 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-2019-0230 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 April 12, 2021. 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-2019-0230, 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 August 2, 2019 (84 FR 37818) (FRL-9996-78), 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 9F8747) by Valent U.S.A. LLC, P.O. Box 8025, Walnut Creek, CA 94596-8025. The petition requested that 40 CFR part 180 be amended by establishing a tolerance for residues of the fungicide, ethaboxam, (N-(cyano-2-thienylmethyl)-4-ethyl-2-(ethylamino)-5-thiazolecarboxamide), in or on beet, sugar, root at 0.01 parts per million (ppm). That document referenced a summary of the petition prepared by Valent U.S.A. LLC, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing. Based upon review of the data supporting the petition, EPA has modified the commodity definitions, tolerance levels, and tolerances being established. The reasons for these changes are explained in Unit IV.C.

Section 408(b)(2)(A)(i) of the 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 the 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 ethaboxam including exposure resulting from the tolerance established by this action. EPA's assessment of exposures and risks associated with ethaboxam follows.

On August 8, 2017, EPA published in the Federal Register a final rule establishing tolerances for residues of ethaboxam in or on several commodities based on the Agency's conclusion that aggregate exposure to ethaboxam is safe for the general population, including infants and children. See (82 FR 36086) (FRL-9961-69). EPA is incorporating the following portions of that document by reference here, as they have not changed in the Agency's current assessment of ethaboxam tolerances: The toxicological profile and points of departure; description of the assumptions for assessing exposure from residues in or on food, in drinking water, and residential exposures; cancer assessment and conclusion that a nonlinear reference dose (Rfd) approach is appropriate for assessing cancer risk; conclusions about cumulative risk; Agency's determination regarding the children's safety factor; and tolerance expression, which have not changed. EPA's risk assessment, titled “Ethaboxam. Human Health Risk Assessment for Non-food Seed Treatment,” supports the tolerances established in March 9, 2012, and can be found at http://www.regulations.gov at docket ID EPA-HQ-OPP-2011-0908-0003. Although the Agency incorporated the assumptions for exposure assessment from the March 9, 2012, final rule and risk assessment, the Agency conducted a revised risk assessment to incorporate exposure to residues of ethaboxam from use as a seed treatment on sugar beets. The updated risk assessment, titled “Ethaboxam. Human Health Risk Assessment Supporting the Proposed New Use on Sugar Beet Seeds,” is in docket ID number EPA-HQ-OPP-2019-0230.

EPA's exposure assessments have been updated to include the additional exposure from use of ethaboxam on sugar beet, relied on tolerance-level residues, an assumption of 100 percent crop treated (PCT), and 2018 default processing factors for all processed commodities, except for potato, grape, and sugar beet proceeded commodities, for which the processing studies demonstrated no concentration. EPA's aggregate exposure assessment incorporated this additional dietary exposure, which includes exposure through drinking water. However, drinking water exposures are not impacted by the new use on sugar beet, and thus have not changed since the last assessment. Additionally, although sugar beet molasses and dried pulp are considered significant livestock feed items, the requested new use on sugar beets will not result in the need to establish ethaboxam tolerances in livestock commodities.

An acute dietary risk assessment was not conducted since effects attributable to a single exposure were not identified. Chronic dietary risks are below the Agency's level of concern: 36% of the chronic population adjusted dose (cPAD) for children 1 to 2 years old, the group with the highest exposure. Due to no existing registered or proposed residential uses associated with ethaboxam, there is not expected to be any residential handler exposure or post-application dermal exposures. Residential post-application oral and inhalation exposures are not expected. Since there are no residential uses, the aggregate exposure is equal to the dietary exposure and thus is not of concern.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to ethaboxam residues. More detailed information on the subject action to establish tolerances in or on beet, sugar, roots can be found in the document entitled, “Ethaboxam. Human Health Risk Assessment Supporting the Proposed New Use on Sugar Beet Seeds” by going to http://www.regulations.gov. The referenced document is available in the docket established by this action, which is described under ADDRESSES . Locate and click on the hyperlink for docket ID number EPA-HQ-OPP-2019-0230.

There are adequate residue analytical methods for enforcing tolerances for ethaboxam residues of concern in/on the registered plant commodities. The methods include high-performance liquid chromatography with tandem mass-spectrometric detection (LC-MS/MS) for determining residues in/on sugar beets.

The 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 has not established MRLs for ethaboxam in or on beet, sugar, roots; however, Canada's Pest Management Regulatory Agency (PMRA) is simultaneously evaluating the proposed use for ethaboxam on sugar beet seeds. EPA is establishing the same tolerance level for beet, sugar, roots as PMRA's proposed MRL of 0.03 ppm. Therefore, there are no harmonization issues.

The requested tolerance in “beet, sugar, root” was modified to read “beet, sugar, roots” to be consistent with Agency naming practices. The petitioned-for tolerance level of 0.01 ppm in beet, sugar, roots has been modified to 0.03 ppm based on the per-trial average residue corrected for all field trial dissipation. This is consistent with the Organization for Economic Cooperation and Development (OECD) tolerance calculation procedure when all residues are corrected for apparent storage stability decline.

Therefore, tolerances are established for residues of ethaboxam in or on beet, sugar, roots at 0.03 ppm.

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

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

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

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

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

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

On August 7, 2019, Illinois submitted a complete program revision application seeking authorization of changes to its hazardous waste program in accordance with 40 CFR 271.21. EPA published a Proposed Rule on July 30, 2020 and requested public comment. EPA received two comments which were generally supportive of this state authorization action. EPA now makes a final decision that Illinois' hazardous waste program revisions that are being authorized are equivalent to, consistent with, and no less stringent than the Federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. For a list of State rules being authorized with this Final Authorization, please see the Proposed Rule published in the July 30, 2020, Federal Register at 85 FR 45834.

Codification is the process of placing citations and references to the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by adding those citations and references to the authorized State rules in 40 CFR part 272. EPA is not codifying the authorization of Illinois' revisions at this time. However, EPA reserves the ability to amend 40 CFR part 272, subpart O for the authorization of Illinois' program changes at a later date.

This final authorization revises Illinois' authorized hazardous waste management program pursuant to Section 3006 of RCRA and imposes no requirements other than those currently imposed by State law. For further information on how this authorization complies with applicable executive orders and statutory provisions, please see the Proposed Rule published in the July 30, 2020, Federal Register at 85 FR 45834. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This final action will be effective February 9, 2021.

This is a summary of the Commission's Order on Reconsideration, FCC 21-11, adopted and released on January 11, 2021. The complete text of this document is available for public inspection on the Commission's website at https://docs.fcc.gov/public/attachments/FCC-21-11A1.pdf. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. The Order on Reconsideration dismisses two petitions for reconsideration of the Sixth Report and Order, 85 FR 53234 (Aug. 28, 2020), filed by CTIA and APCO, 85 FR 66333 (Oct. 19, 2020), as procedurally defective and, in the alternative, denies these petitions on their merits. In the Fifth Report and Order, 85 FR 2660 (Jan. 16, 2020), the Commission adopted a z-axis (vertical) location accuracy metric of plus or minus 3 meters for 80 percent of indoor wireless Enhanced 911 (E911) calls for z-axis capable handsets. The Commission also required nationwide commercial mobile radio service (CMRS) providers to deploy dispatchable location or z-axis technology that meets this metric in the top 25 markets by April 3, 2021 and in the top 50 markets by April 3, 2023. In a companion Fifth Further Notice of Proposed Rulemaking, 85 FR 2683 (Jan. 16, 2020), the Commission proposed rules to improve E911 wireless location accuracy. Among other things, the Commission sought comment on alternative methods for carriers to demonstrate z-axis technology deployment and expanding dispatchable location solutions. In the Sixth Report and Order, the Commission rejected arguments to extend the deployment timeline and added a requirement for nationwide CMRS providers to deploy z-axis location technology nationwide by April 2025. In addition, the Commission required CMRS providers, as of January 6, 2022, to provide dispatchable location for wireless 911 calls if it is technically feasible and cost-effective to do so. The Commission also allowed providers to provide dispatchable location by means other than the National Emergency Address Database (NEAD), which ceased operations subsequent to the release of the Fifth Further Notice of Proposed Rulemaking.

2. CTIA and APCO filed their petitions on September 28 and September 23, 2020, respectively. In its petition, CTIA argued that the COVID-19 pandemic has stalled any ability to validate whether z-axis location solutions can meet the Commission's vertical location accuracy requirements. CTIA also asserted that the compliance timeline adopted by the Commission was premised on vendor promises that “have not panned out” and that time is running out for meeting the April 2021 deadline. According to CTIA, reconsideration of the Sixth Report and Order would provide an opportunity for the Commission to adopt a framework based on the use of mobile OS-based solutions. CTIA asserted that this would provide a “viable path” to achieving “accurate 9-1-1 vertical location information nationwide.” In its reconsideration petition, APCO asked the Commission to require CMRS providers to deliver dispatchable location for a minimum percentage of 911 calls—an alternative that APCO had previously proposed and the Commission rejected—rather than tie the dispatchable location benchmark to the number of address reference points in a location database. In addition, APCO sought reconsideration of the requirement that CMRS providers supply dispatchable location if it is technically feasible and cost effective to do so. APCO took issue with the Commission's prior decision not to adopt its proposal to require dispatchable location for a minimum percentage of calls and disputed the conclusion that a minimum percentage threshold would go beyond what is technically feasible and cost effective.

3. The Commission determined that CTIA's petition for reconsideration of the longstanding timelines for implementing the z-axis was repetitive, untimely, and failed to offer sufficient factual details that would support grant of a waiver to a particular provider. The Commission determined that CTIA's petition was procedurally improper because it repeated arguments raised by other commenters that the Commission fully addressed in the Sixth Report and Order. While the Commission noted in the Sixth Report and Order that the pandemic had created challenges, the Commission declined to change the long-established 2021 deadline. The Commission also stated in the Sixth Report and Order that parties able to show good cause due to pandemic-related hardship could seek a waiver in accordance with the Commission's rules. CTIA failed to offer sufficient factual details about any of its individual member service providers that would support grant of a waiver to any particular provider. The Commission also determined that CTIA's petition to revise the 2021 and 2023 deadlines was untimely, as these deadlines were established in the 2015 Fourth Report and Order. In response to CTIA's argument that postponement of Stage Zb testing created an insurmountable obstacle for meeting the Commission's timelines, the Commission found that it had already determined in the Sixth Report and Order and Fifth Report and Order that compliance was feasible, and the deployment of mobile OS-based technologies had no bearing on that feasibility. In response to CTIA's argument that indoor location accuracy benchmarks are a mandate that providers use barometric sensor-based solutions, the Commission noted that the Sixth Report and Order does not require providers to use any particular technology. The Commission also disagreed with CTIA's claim that the Sixth Report and Order improperly relied on vendors' claims, as the Sixth Report and Order underscored the active role that CMRS providers would need to play in the deployment of z-axis solutions. In addition, the Commission found that, contrary to CTIA's assertions, it had adequately considered the benefits of the nationwide providers' proposed solution in the Sixth Report and Order, and the decision was consistent with Commission precedent. Further, the Commission found that it had reasonably relied on confidence and uncertainty standards in the rules.

4. Similarly, the Commission determined that APCO's petition for reconsideration of certain requirements was repetitive, untimely, and misconstrued the record of this proceeding, which affirms that a diverse array of technological approaches could be used to provide dispatchable location. The Commission determined that APCO's petition for reconsideration was repetitive, as the Commission had already considered and rejected in the Sixth Report and Order APCO's suggestion that the Commission revise its rules to require CMRS providers to provide dispatchable location for a minimum percentage of 911 calls. The Commission also determined that APCO's argument that notice was insufficient for the Commission's decision to convert the NEAD benchmark to an “any database” benchmark misconstrued the record, as the Commission anticipated the possibility of the NEAD's failure in the Fifth Further Notice and proposed allowing CMRS providers to use other databases to support dispatchable location. In addition, the Commission determined that APCO's argument asking the Commission to substitute a dispatchable location requirement based on a minimum percentage of calls was untimely, as the deployment and reference point requirements were adopted in the 2015 Fourth Report and Order. The Commission further found, contrary to APCO's arguments, that the existing reference point benchmark was reasonable and that the demise of the NEAD does not require changing it; in amending the rules to allow alternatives to the NEAD, the Commission made clear that any carrier using a non-NEAD database to support dispatchable location must meet the same technical and functional requirements that would have applied to the NEAD. The Commission affirmed its requirement adopted in the Sixth Report and Order that CMRS carriers provide dispatchable location with wireless E911 calls when it is technically feasible and cost effective to do so. The Commission also found that APCO's proposed percentage-of-calls approach was arbitrary and lacked any showing of technical feasibility or cost-effectiveness.

5. Paperwork Reduction Act Analysis. This Order on Reconsideration does not contain any new or modified information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. Thus, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

6. Congressional Review Act. The Commission will not send a copy of this Order on Reconsideration to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because no rule was adopted or amended.

7. Regulatory Flexibility Act Analysis. In the Sixth Report and Order, the Commission provided a Final Regulatory Flexibility Analysis pursuant to the Regulatory Flexibility Act of 1980, as amended (RFA). We received no petitions for reconsideration of that Final Regulatory Flexibility Analysis. In this present Order on Reconsideration, the Commission promulgates no additional final rules. Our present action is, therefore, not an RFA matter.

8. Accordingly, it is ordered that the Petition for Reconsideration filed on September 28, 2020, by CTIA is dismissed and, alternatively and independently, is denied.

9. It is further ordered that the Petition for Reconsideration filed on September 23, 2020, by the Association of Public-Safety Communications Officials-International, Inc. is dismissed and, alternatively and independently, is denied.

10. It is further ordered that this Order on Reconsideration shall be effective thirty days after publication in the Federal Register .

On January 7, 2021, we, the U.S. Fish and Wildlife Service (USFWS), published a final rule defining the scope of the Migratory Bird Treaty Act (MBTA) as it applies to conduct resulting in the injury or death of migratory birds protected by the MBTA. During the course of review, the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB), based on information provided by the USFWS, determined that the MBTA rule was economically significant under Executive Order 12866, because it was likely to have an annual effect on the economy of $100 million or more, and that it was therefore a “major rule” under subtitle E of the Small Business Regulatory Enforcement Fairness Act (the “Congressional Review Act” or “CRA”), 5 U.S.C. 804(2). See OIRA Conclusion of E.O. 12866 Regulatory Review of the MBTA, available at https://www.reginfo.gov/public/do/eoDetails?rrid=131383 (designating the MBTA rule as a major rule under the CRA). The CRA provides that major rules shall not take effect for at least 60 days after publication in the Federal Register (5 U.S.C. 801(a)(3)).

Notwithstanding this statutory requirement, the MBTA rule was published in the Federal Register without the requisite delay. This final rule corrects the effective date to March 8, 2021, in accordance with the CRA.

The statutory provisions at issue in the MBTA rule have been the subject of repeated litigation. The final rule interpreted the scope of the MBTA to exclude incidental take of migratory birds—codifying Solicitor's Opinion M-37050 and rejecting several decades of past agency practice concluding that the MBTA prohibits the incidental take of migratory birds. However, in August 2020, a court vacated Solicitor's Opinion M-37050, as contrary to the MBTA ( Natural Resources Defense Council v. U.S. Department of the Interior, No. 18-CV-4596 (VEC), 2020 WL 4605235 (S.D.N.Y. Aug. 11, 2020)). In late January 2021, two new lawsuits were filed that challenge the legal basis for the final rule: Nat'l Audubon Soc'y v. U.S. Fish and Wildlife Serv., 1:21-cv-00448 (S.D.N.Y. filed Jan. 19, 2021); State of New York v. U.S. Dep't of the Interior, 1:21-cv-00452 (S.D.N.Y. filed Jan. 19, 2021).

In addition, on January 20, 2021, the White House issued a memorandum (86 FR 7424, January 28, 2021) instructing Federal agencies to consider postponing the effective date of any rules that have published in the Federal Register but not yet taken effect, for the purpose of reviewing any questions of fact, law, and policy they may raise. The memorandum directs that, for rules postponed in this manner, where appropriate and consistent with applicable law, agencies consider opening a comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider any petitions for reconsideration involving such rules.

For the reasons explained above, in accordance with the Congressional Review Act, we are delaying the effective date of the MBTA rule we published on January 7, 2021 (86 FR 1134). The original effective date of the rule was February 8, 2021; with this document, we are changing the effective date of the rule to March 8, 2021, 60 days from its initial publication.

Immediate implementation of the MBTA rule on March 8, 2021, significantly impacts the public interest. Specifically, the public has a strong interest in conserving the migratory bird resource and fulfilling shared objectives and obligations with a treaty partner, Canada. These interests could be harmed by allowing this regulation to take effect on its current effective date.

First, as noted in the environmental impact statement (EIS) developed to analyze the impacts of the MBTA rule (85 FR 76077, November 27, 2020), its implementation may have significant impacts on migratory bird species and other resources. The EIS concluded that implementing the MBTA rule may have significant impacts on migratory birds, vegetation, other wildlife, and associated ecosystem services and other economic activities, but admitted that data are not readily quantifiable and available to determine the magnitude of those impacts. Neither the EIS nor the associated record of decision (“ROD”) set forth a monitoring plan to ascertain the magnitude of those impacts after implementation of the final rule. Thus, there is a high likelihood that the public interest in these resources will be harmed given that the magnitude of the impacts is likely significant but unknown and no monitoring plan is in place to determine that magnitude.

Second, further delay of the effective date may make it possible to avoid costly and unnecessary litigation. As noted above, the District Court for the Southern District of New York, in vacating Solicitor's Opinion M-37050, has already expressly rejected the legal rationale of the MBTA rule, and two additional suits have been filed challenging the MBTA rule itself.

Third, further consideration of concerns expressed by one of our treaty partners may counsel in favor of further delay of the effective date of the MBTA rule. The MBTA implements four bilateral migratory bird Conventions with Canada, Mexico, Russia, and Japan. See 16 U.S.C. 703-705, 712. The Government of Canada communicated its concerns with the MBTA rule both during and after the rulemaking process, including providing comments on the EIS associated with the rule.

After the public notice and comment period had closed, Canada's Minister of Environment and Climate Change summarized the Government of Canada's concerns in a public statement issued on December 18, 2020 ( https://www.canada.ca/en/environment-climate-change/news/2020/12/minister-wilkinson-expresses-concern-over-proposed-regulatory-changes-to-the-united-states-migratory-bird-treaty-act.html ). Minister Wilkinson stated the Government of Canada's concern regarding “the potential negative impacts to our shared migratory bird species” of allowing the incidental take of migratory birds under the MBTA rule and “the lack of quantitative analysis to inform the decision.” He noted that the “Government of Canada's interpretation of the proposed changes . . . is that they are not consistent with the objectives of the Convention for the Protection of Migratory Birds in the United States and Canada.” Additionally, in its public comments on the draft EIS for the MBTA rule, Canada stated that it believes the rule “is inconsistent with previous understandings between Canada and the United States (U.S.), and is inconsistent with the long-standing protections that have been afforded to non-targeted birds under the Convention for the Protection of Migratory Birds in the United States and Canada . . . as agreed upon by Canada and the U.S. through Article I. The removal of such protections will result in further unmitigated risks to vulnerable bird populations protected under the Convention .”

Therefore, we invite public comments on the MBTA rule to allow interested parties to provide comments about issues of fact, law, and policy raised by that rule, and so that we can consider any petitions for reconsideration involving the rule. We also invite public comments on whether the rule should be amended, rescinded, delayed pending further review by the agency, or allowed to go into effect. In particular, the USFWS would appreciate comments on the scope of the MBTA as it applies to conduct resulting in the injury or death of migratory birds protected by the MBTA, the impact of the MBTA rule on our treaty partners, the impact of the MBTA rule on regulated entities, the effect of the pending litigation on the MBTA rule, and the appropriateness of delaying the effective date of the MBTA rule beyond March 8, 2021. The USFWS will consider these comments in reviewing the MBTA rule. See DATES and ADDRESSES , above, and Public Comments, below, for more information on submitting comments.

You may submit your comments and materials concerning the rule by one of the methods listed in ADDRESSES . Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified under Written comments in DATES . We will not consider mailed comments that are not postmarked by the date specified under Written comments in DATES . Comments previously submitted need not be resubmitted and will be fully considered in our review of the rule.

We will post your entire comment—including your personal identifying information—on http://www.regulations.gov . If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. Comments and materials we receive will be available for public inspection on http://www.regulations.gov .

Our implementation of this action delaying the effective date of the MBTA rule from February 8, 2021, to March 8, 2021, without opportunity for public comment, effective immediately upon filing for publication in the Federal Register , is based on the good cause exceptions provided in the Administrative Procedure Act. Pursuant to 5 U.S.C. 553(b)(B), we have determined that good cause exists to forgo the requirement to provide prior notice and an opportunity for public comment thereon for this rule as such procedures are unnecessary where the agency lacks discretion to choose an alternative course of action. As discussed above, the change of the effective date to March 8, 2021, is being made to comply with the 60-day effective date delay for major rules provided for in the Congressional Review Act. 5 U.S.C. 801(a)(3). For the same reasons discussed above, USFWS finds that there is good cause to waive the effective date delay under 5 U.S.C. 553(d)(3) and 5 U.S.C. 808(2).

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

The current baseline Purse Seine, General, and Reserve category quotas are codified as 219.5 mt, 555.7 mt, and 29.5 mt, respectively. See § 635.27(a). Pursuant to § 635.27(a)(4), NMFS has determined the amount of quota available to the Atlantic Tunas Purse Seine category participants in 2021, based on their BFT catch (landings and dead discards) in 2020. In accordance with the regulations, NMFS makes available to each Purse Seine category participant either 100 percent, 75 percent, 50 percent, or 25 percent of the individual baseline quota allocations based on the previous year's catch, as described in § 635.27(a)(4)(ii), and reallocates the remainder to the Reserve category. NMFS has calculated the amounts of quota available to the Purse Seine category participants for 2021 based on their individual catch levels in 2020 and the codified process adopted in Amendment 7. NMFS did not open the Purse Seine fishery in 2020 because there were no purse seine vessels permitted to fish for BFT and thus no catch in 2020. As a result, each Purse Seine category participant will receive 25 percent of the individual baseline quota amount, which is the required distribution even with no fishing activity under the current regulations. The individual baseline amount is 43.9 mt (219.5 mt divided by five Purse Seine category participants), 25 percent of which is 11 mt. Consistent with § 635.27(a)(4)(v)(C), NMFS notifies Atlantic Tunas Purse Seine category participants of the amount of quota available for their use this year through the Individual Bluefin Quota electronic system established under § 635.15 and in writing.

By summing the individual available allocations, NMFS has determined that 55 mt are available to the Purse Seine category for 2021. Thus, the amount of Purse Seine category quota to be reallocated to the Reserve category is 164.5 mt (219.5 mt−55 mt). This reallocation results in an adjusted 2021 Reserve category quota of 194 mt (29.5 mt + 164.5 mt), before any further transfers to other categories.

Each of the General category time periods (January, June through August, September, October through November, and December) is allocated a subquota or portion of the annual General category quota. Although it is called the “January” subquota, the regulations allow the General category fishery under this quota to continue until the subquota is reached or March 31, whichever comes first.

Under § 635.27(a)(9), NMFS has the authority to transfer quota among fishing categories or subcategories after considering regulatory determination criteria at § 635.27(a)(8). For 2021 to date, NMFS has transferred 19.5 mt from the General category December 2021 subquota period to the January 2021 subquota period (85 FR 83832, December 23, 2020), resulting in an adjusted General category January period subquota of 49 mt.

NMFS has considered all of the relevant determination criteria and their applicability to the inseason quota transfer. These considerations include, but are not limited to, the following:

Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock (§ 635.27(a)(8)(i)), biological samples collected from BFT landed by General category fishermen and provided by BFT dealers provide NMFS with valuable data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT over the longest time-period allowable would support the continued collection of a broad range of data for these studies and for stock monitoring purposes.

NMFS also considered the catches of the General category quota to date (including during the winter fishery in the last several years), and the likelihood of closure of that segment of the fishery if no adjustment is made (§ 635.27(a)(8)(ii) and (ix)). As of February 2, 2021, the General category has landed 17.6 mt of its adjusted January 2021 subquota of 49 mt. Commercial-size BFT are currently readily available to vessels fishing under the General category quota. Without a quota transfer at this time, General category participants would have to stop BFT fishing activities with very short notice, while commercial-sized BFT remain available in the areas General category permitted vessels operate. Transferring 26 mt of BFT quota from the Reserve category would result in a total of 75 mt being available for the General category for the January 2021 subquota period.

Regarding the projected ability of the vessels fishing under the particular category quota (here, the General category) to harvest the additional amount of BFT quota transferred before the end of the fishing year (§ 635.27(a)(8)(iii)), NMFS considered General category landings over the last several years and landings to date this year. Landings are highly variable and depend on access to commercial-sized BFT and fishing conditions, among other factors. NMFS anticipates that all 26 mt of transferred quota will be used by March 31. In the unlikely event that any of this quota is unused by March 31, the unused quota will roll forward to the next subperiod within the calendar year ( i.e., the June through August time period), and NMFS anticipates that it would be used by the subquota category before the end of the fishing year.

NMFS also considered the estimated amounts by which quotas for other gear categories of the fishery might be exceeded (§ 635.27(a)(8)(iv)) and the ability to account for all 2021 landings and dead discards. In the last several years, total U.S. BFT landings have been below the total available U.S. quota such that the United States has carried forward the maximum amount of underharvest allowed by ICCAT from one year to the next. NMFS will need to account for 2021 landings and dead discards within the adjusted U.S. quota, consistent with ICCAT recommendations, and NMFS anticipates having sufficient quota to do that, even with this 26-mt transfer to the General category.

NMFS also considered the effects of the adjustment on the BFT stock and the effects of the transfer on accomplishing the objectives of the 2006 Consolidated HMS FMP (§ 635.27(a)(8)(v) and (vi)). This transfer would be consistent with the current U.S. quota, which was established and analyzed in the 2018 BFT quota final rule, and with objectives of the 2006 Consolidated HMS FMP and amendments, which include measures to meet obligations related to ending overfishing and rebuilding stocks (§ 635.27(a)(8)(v) and (vi)). Another consideration is the objective of providing opportunities to harvest the full annual U.S. BFT quota without exceeding it based on the objectives of the 2006 Consolidated HMS FMP and amendments, including to achieve optimum yield on a continuing basis and to optimize the ability of all permit categories to harvest their full BFT quota allocations (related to § 635.27(a)(8)(x)). Specific to the General category, this includes the goal of providing opportunity equitably across all time periods.

NMFS also anticipates that some underharvest of the 2020 adjusted U.S. BFT quota will be carried forward to 2021 and placed in the Reserve category, in accordance with the regulations, later this year. This, in addition to the fact that any unused General category quota will roll forward to the next subperiod within the calendar year and NMFS' plan to actively manage the subquotas to avoid any exceedances, makes it likely that General category quota will remain available through the end of 2021 for December fishery participants. NMFS also may transfer unused quota from the Reserve or other categories, inseason, based on consideration of the determination criteria, as it did in 2020 ( i.e., transferred 111.6 mt from the Reserve category effective September 17, 2020 (85 FR 59445, September 22, 2020); 40 mt from the Reserve category effective October 9, 2020 (85 FR 64411, October 13, 2020); 68.7 mt from the Reserve category effective October 26, 2020 (85 FR 68798, October 30, 2020); and 19.5 mt from the Reserve category effective December 1, 2020 (85 FR 75918, November 27, 2020).

NMFS anticipates that General category participants in all areas and time periods will have opportunities to harvest the General category quota in 2021, through active inseason management measures, such as retention limit adjustments and/or the timing of quota transfers (§ 635.27(a)(8)(viii)). Thus, this quota transfer would allow fishermen to take advantage of the availability of fish on the fishing grounds, taking into consideration the expected increases in available 2021 quota from carryforward later in the year, and provide a reasonable opportunity to harvest the full U.S. BFT quota, without precluding vessels in another area from having a reasonable opportunity to harvest a portion of the category's quota.

Based on the considerations above, NMFS is transferring 26 mt from the adjusted Reserve category to the General category for the January 2021 fishery, resulting in a subquota of 75 mt for the January 2021 fishery and 168 mt in the Reserve category.

NMFS will continue to monitor the BFT fishery closely. Dealers are required to submit landings reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustment, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General and HMS Charter/Headboat category vessel owners are required to report the catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov or by using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional action ( e.g., quota adjustment, daily retention limit adjustment, or closure) is necessary to ensure available subquotas are not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register . As needed, NMFS will close the General category fishery when the adjusted January 2021 period subquota has been reached. Even if the adjusted subquota is not reached, the General category fishery will close automatically on March 31, 2021, and will remain closed until it reopens on June 1, 2021. Fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is consistent with regulations at 50 CFR part 635, which were issued pursuant to section 304(c) of the Magnuson-Stevens Act and the Atlantic Tunas Convention Act, and is exempt from review under Executive Order 12866.

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

The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason quota transfers to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. These fisheries are currently underway and the fishery would be closed absent the additional quota. Affording prior notice and opportunity for public comment to implement the quota transfer is impracticable and contrary to the public interest as such a delay would result in exceedance of the General category January 2021 subquota or earlier closure of the fishery while fish are available on the fishing grounds. This action does not raise conservation and management concerns. Transferring quota from the Reserve category to the General category does not affect the overall U.S. BFT quota, and available data shows the adjustment would have a minimal risk of exceeding the ICCAT-allocated quota. NMFS notes that the public had an opportunity to comment on the underlying rulemakings that established the U.S. BFT quota, measures to reallocate quota, and the inseason adjustment criteria. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

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

The A season allowance of the 2021 Pacific cod TAC apportioned to catcher vessels less than 50 feet (15.2 m) length overall using HAL gear in the Central Regulatory Area of the GOA is 945 metric tons (mt) as established by the final 2020 and 2021 harvest specifications for groundfish in the GOA (85 FR 13802, March 10, 2020) and inseason adjustment (85 FR 83834, December 23, 2020).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2021 Pacific cod TAC apportioned to catcher vessels less than 50 feet (15.2 m) length overall using HAL gear in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 900 mt and is setting aside the remaining 45 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for catcher vessels less than 50 feet (15.2 m) length overall using HAL gear in the Central Regulatory Area of the GOA.

While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by catcher vessels less than 50 feet (15.2 m) length overall using HAL gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 3, 2021.