Federal Register Vol. 83, No.124,

Background

Pursuant to section 1706 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135 (Nov. 25, 2002), as codified at 40 U.S.C. 1315, the Secretary of Homeland Security is responsible for protecting the buildings, grounds, and property owned, occupied, or secured by the federal government (including any agency, instrumentality, or wholly owned or mixed ownership corporation thereof) and the persons on the property. To carry out this mandate, the Department is authorized to enforce the applicable federal regulations for the protection of persons and property set forth in 41 CFR part 102-74, subpart C.1 These regulations govern conduct on federal property and set forth the relevant criminal penalties. Although these regulations apply to all property under the authority of the General Services Administration and to all person entering in or on such property,2 the Secretary of Homeland Security is authorized pursuant to 40 U.S.C. 1315(d)(2)(A) to extend the applicability of these regulations to any property owned or occupied by the federal government and to enforce them.

DHS is replacing existing border fence with bollard wall near the city of Calexico in the United States Border Patrol's El Centro Sector pursuant to several statutory and executive directives.3 In order to protect and secure the property at or near the border barrier replacement project area, including, but not limited to, project sites, staging areas, access roads, and buildings temporarily erected to support construction activities, I temporarily extended the applicability, allowing the enforcement, of regulations governing the conduct of individuals on federal property to areas in or around the border barrier replacement project area, pursuant to 40 U.S.C. 1315(d)(2)(A). The project area for border barrier replacement wall and fence replacement is situated within a geographic area that starts at the Calexico West Port of Entry, and extends to approximately three miles west along the southern U.S. border. Specifically, I temporarily extended the applicability, allowing the enforcement, of the regulations in 41 CFR part 102-74, subpart C, for the protection and administration of property owned or occupied by the Federal Government and persons on the property at or near the border barrier replacement project area near the city of Calexico, California.

The regulations in 41 CFR part 102-74, subpart C, will remain applicable and enforceable at these locations for the duration of the construction related to the border barrier replacement near the city of Calexico, California.

History

The FAA published a final rule in the Federal Register (83 FR 24403; May 29, 2018) for Docket No. FAA-2017-1144 amending VOR Federal airways V-12, V-214, V-340, V-467, and V-517, and low altitude RNAV route T-213. Subsequent to publication, the FAA identified that one VOR Federal airway, V-467, already has been removed in a previous rulemaking (83 FR 13404; March 29, 2018). This action removes reference to V-467 in the preamble and the regulatory text.

Accordingly, pursuant to the authority delegated to me, Modification of Air Traffic Service (ATS) Routes in the Vicinity of Richmond, IN, published in the Federal Register of May 29, 2018 (83 FR 24403), FR Doc. 2018-11327, is corrected as follows:

Authority for This Rulemaking

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

The FAA published a notice of proposed rulemaking in the Federal Register for Docket No. FAA-2018-0222 (83 FR 12885; March 26, 2018) to amend VOR Federal airway V-316 due to the planned decommissioning of the Newberry, MI, VOR/DME. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the Order.

This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 to modify VOR Federal airway V-316 due to the planned decommissioning of the Newberry, MI, VOR/DME. The V-316 change is described below.

V-316: V-316 extends between the Ironwood, MI, VOR/Tactical Air Navigation (VORTAC) and the Sudbury, ON, Canada, VOR/DME, excluding the airspace within Canada. The airway segment between the Sawyer, MI, VOR/DME and the Sault Ste Marie, MI, VOR/DME is removed. The unaffected portions of the existing airway remain as charted.

The radials in the route description below are unchanged and stated in True degrees.

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

The FAA has determined that this action of modifying VOR Federal airway V-316 near Newberry, MI qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, Paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it administratively amends the time of designation and controlling agency for restricted area R-2302, Flagstaff, AZ.

The FAA evaluates utilization of special use airspace annually. For the past five years the utilization of restricted area R-2302 has declined steadily. The FAA in coordination with the United States Army, has concluded the restricted area is still needed, but at an on-call basis only. Therefore, the airspace will be activated by a Notice to Airman (NOTAM), four hours in advance as opposed to active continuously Monday through Saturday from 0800 to 2400. Additionally, the controlling agency has changed from Albuquerque Air Traffic Control Center (ARTCC) to Phoenix Terminal Radar Approach Control (TRACON) due to a recent alignment of assigned airspace thus making the restricted area fall completely within Phoenix TRACONs assigned airspace.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 73 by revising the time of designation and controlling agency listed for restricted area R-2302, Flagstaff, AZ. The time of designation is changed from “active daily, 0800-2400 MST, Monday through Saturday;” to “intermittent by NOTAM only, 4 hours in advance, between 0800 to 2400 MST, Monday through Saturday”. Additionally, the controlling agency for R-2302 is changed from “Albuquerque ARTCC” to “Phoenix TRACON”. These are administrative changes and do not affect the boundaries, designated altitudes, or activities conducted within the restricted area; therefore, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.

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

The FAA has determined that this action of updating the time of designation and controlling agency for restricted area R-2302; Flagstaff, AZ, qualifies for categorical exclusion under the National Environmental Policy Act, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5.d, “Modification of the technical description of special use airspace (SUA) that does not alter the dimensions, altitudes, or times of designation of the airspace (such as changes in designation of the controlling or using agency, or correction of typographical errors).” This airspace action is an administrative change to the description of restricted area R-2302; Flagstaff, AZ, to update the time of designation and controlling agency name. It does not alter the dimensions, altitudes, time of designation, or use of the airspace. Therefore, this airspace action is not expected to result in any significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73, as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it returns restricted area R-2530 Sierra Army Depot, CA, as it is no longer needed for its designated purpose within the National Airspace System (NAS).

This action amends 14 Code of Federal Regulations (CFR) part 73 by removing Restricted area R-2530 Sierra Army Depot, CA. The United States Army no longer has a use for the restricted area, which was originally established for neutralization of ammunition through a process known as burning. The process was considered a hazard to aircraft since an uncontrolled explosion may have occurred at any time during the burning operation. The FAA has determined that a valid requirement for the airspace no longer exists and the restricted area is being returned to the NAS.

Since this action reduces restricted airspace, the solicitation of comments would only delay the return of airspace to public use without offering any meaningful right or benefit to any segment of the public; therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

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

The FAA has determined that this action of revoking of R-2530 Sierra Army Depot, CA, qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, Environmental Impacts: Policies and Procedures, paragraph 5-6.5.c, “Actions to return all or part of special use airspace (SUA) to the National Airspace System (NAS), such as revocation of airspace, a decrease in dimensions, or a reduction in times of use (e.g., from continuous to intermittent, or use by a Notice to Airmen (NOTAM)).” This action returns restricted airspace to the NAS. Therefore, this airspace action is not expected to result in any significant environmental impacts. In accordance with FAAO 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since its content was incorporated into another CFR part for which public comment was taken.

The removal of this part eliminates text which has been superseded at 32 CFR part 208, therefore, it will not change the regulatory impact on the public. This removal is administrative in nature and does not result in a burden reduction or cost savings to the public.

DoD internal guidance concerning the administration of the Boren grants program will continue to be published in DoD Instruction 1025.02 available at http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/102502_dodi_2017.pdf.

This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review,” therefore, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs” does not apply.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department Of Homeland Security FR Federal Register Pub. L. Public Law § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that notice and comment procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) due to the fact that the 33 drawbridges identified either do not exist or no longer function as a drawbridge. Therefore, their regulations are no longer applicable and need to be removed. It is unnecessary to publish a NPRM because drawbridge regulations are only used for bridges that have an operational span that is intended to be opened for the passage of waterway traffic. These bridges are no longer operational.

For the same reasons stated in the preceding paragraph, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register. The bridges at issue no longer have an operational span and therefore have no need of a drawbridge regulation. The removal of the regulation will not affect mariners currently operating on this waterway. Therefore, a delayed effective date is unnecessary.

The Coast Guard is issuing this rule under authority 33 U.S.C. 499.

The elimination of these drawbridges necessitates the removal of their corresponding drawbridge operation regulation in 33 CFR part 117 subpart B.

The Coast Guard is removing restrictions and the regulatory burdens related to the draw operations for these 33 bridges that no longer function as drawbridges. In the regulatory section of this final rule, the 33 bridges are presented numerically based on their section number and, if applicable, paragraph lettering under 33 CFR part 117 subpart B.

This final rule will update 33 CFR part 117 subpart B by removing language that governs the operating schedule of the aforementioned bridges, which in fact, in their current state, are no longer drawbridges. The removal of these obsolete regulations will not affect waterway or land traffic.

The following bridges remain across their respective waterways and remain in use in their transportation function, however; have been converted to fixed bridges:

The following bridges are no longer functional drawbridges. These bridges have either had their operable drawspan removed or the bridge was removed in whole from the waterway:

The following bridges remain in the waterway and are open to navigation. However, the rail line, including the bridge, are no longer in use.

The following drawbridges have been removed from the waterway and replaced with fixed bridges:

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.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget (OMB) and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771. See OMB's Memorandum “Guidance Implementing Executive Order 13771, Titled `Reducing Regulation and Controlling Regulatory Costs'” (April 5, 2017). DHS considers this final rule to be a deregulatory action.

As previously explained the above 33 listed bridges, have either been removed from the waterway or converted/replaced to or by a fixed bridge. The removal of their operating schedules from 33 CFR 117 Subpart B will have no effect on the movement of waterway or land traffic, but will serve to remove an outdated and obsolete provision from the CFR.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard 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.

For the reasons stated in section IV.A above this final rule would not have a significant economic impact on any vessel owner or operator.

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

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

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

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

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

The 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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor did not submit notice to the Coast Guard with sufficient time remaining before the event to publish an NPRM. Delaying the effective date would be contrary to the rule's objectives of enhancing safety of life on the navigable waters and protection of persons and vessels in the vicinity of the fireworks display.

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

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

This rule establishes a safety zone on July 4, 2018, from 9:45 p.m. until 10:45 p.m. The safety zone will encompass all waters of Lake Erie; Lakewood, OH contained within 420-foot radius of: 41°29′50″ N, 081°47′52″ W.

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule establishes a temporary safety zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking ANPRM Advance notice of proposed rulemaking § Section U.S.C. United States Code COTP Captain of the Port NPS National Park Service II. Background Information and Regulatory History

On November 27, 2002, the Coast Guard published a NPRM entitled, “Safety and Security Zones; New York Marine Inspection and Captain of the Port Zone” in the Federal Register (67 FR 70892). The NPRM proposed to establish a permanent safety and security zone encompassing all waters within 150 yards of Liberty Island, Ellis Island, and the bridge between Liberty State Park and Ellis Island. We received no comments on the proposed rule. No public hearing was requested and none was held. The current 150-yard permanent safety and security zone around the bridge between Liberty State Park and Ellis Island became effective in January 2003 as enacted by a final rule entitled, “Safety and Security Zones; New York Marine Inspection Zone and Captain of the Port Zone” published in the Federal Register (68 FR 2886, January 22, 2003).

On May 6, 2008, the Coast Guard published a NPRM entitled, “Safety and Security Zones; New York Marine Inspection Zone and Captain of the Port” in the Federal Register (73 FR 24889). The NPRM proposed to modify several aspects of the permanent safety and security zone regulations within the New York Captain of the Port Zone. We received 15 comments regarding the proposed rule. A public meeting was requested to discuss the proposed expansion of the Liberty and Ellis Island safety and security zone to include all waters within 400 yards of these two islands and the bridge between Liberty State Park and Ellis Island. On February 12, 2009, the Coast Guard published a final rule entitled, “Safety and Security Zones New York Marine Inspection Zone and Captain of the Port Zone” in the Federal Register (74 FR 7184). However, based on the comments received, the Coast Guard did not expand the Liberty and Ellis Island safety and security zone. As a result, a public meeting was unnecessary and the zone remained 150 yards.

On November 3, 2016, the Coast Guard published an ANPRM entitled, “Safety and Security Zones; New York Marine Inspection and Captain of the Port Zone” in the Federal Register (81 FR 76545). The ANPRM solicited public comments on a potential rulemaking to modify the existing safety and security zone around the bridge between Liberty State Park and Ellis Island. In response to public requests, the comment period was reopened for an additional 60 day period on February 14, 2017 (82 FR 10558). We received 125 comments regarding the advance notice of proposed rulemaking. Out of the 125 comments received, 123 comments were in support of modifying the existing safety and security zone around the bridge between Liberty State Park and Ellis Island, almost all of which emphasized improving navigation safety. The sole comment opposing modification of the zone, provided by the National Park Service, expressed security concerns regarding Ellis and Liberty Islands due to their historical symbolism. The singular neutral comment received was unclear as to the commenter's view on the proposed safety and security zone modification. The comment addressed the federal job hiring process and stated that all security zones should be eliminated, both of which are outside the purview of this rulemaking.

In response to the comments received on the above mentioned ANPRM, on April 20, 2018, the Coast Guard published a NPRM entitled, “Safety and Security Zones; New York Marine Inspection and Captain of the Port Zone” in the Federal Register (83 FR 17513). The NPRM solicited public comments on our proposed regulatory action related to the safety and security zone modification. During the comment period that ended May 21, 2018, we received 40 comments.

Under 5 U.S.C. 553(d)(1), the Coast Guard finds that an exception exists for making this rule effective less than 30 days after publication in the Federal Register. This safety and security zone modification allows greater access to a previously restricted area. Although the current regulation allows vessels to transit under the Ellis Island Bridge with COTP permission, this modification grants standing COTP approval for certain vessels to transit underneath the bridge during specific time periods. Thus, this modification lessens the regulatory burden on these vessels by allowing transit through the safety and security zone without needing to seek prior COTP permission. As this rule relieves a restriction, the Coast Guard finds that delaying the effective date of this rule is unnecessary.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP New York has determined that the vessel congestion in the Anchorage Channel presents a hazard to mariners within New York Harbor. The purpose of this safety and security zone modification is to increase navigational safety within New York Harbor. By permitting greater access for human powered vessels to transit underneath the bridge between Ellis Island and Liberty State Park, the vessel congestion in the adjacent Anchorage Channel will be reduced.

As noted above, we received 40 comments on our NPRM published April 20, 2018. Of the 40 comments received, 39 were in support of modifying the existing safety and security zone to allow transit underneath the Ellis Island Bridge, stating navigational safety will improve. The sole neutral comment addressed the United States' trade relations with China and is outside the purview of this rulemaking.

We received 25 comments recommending the 16 foot vessel length either be eliminated or increased. 10 comments noted that many kayaks are greater than 16 feet in length, with some of these comments specifically noting that many sea kayaks are 18 feet or longer. 4 comments discussed that many canoes or row gigs navigating this area are longer than 16 feet, ranging between 25 to 35 feet. We received other comments stating human powered vessels in New York Harbor can exceed 45 feet. Based on these comments, we are changing the regulatory text of the NPRM to reflect that human powered vessels with a length equal to or less than 25 feet may transit the zone. Increasing the permissible length to equal to or less than 25 feet balances the need for ensuring navigational safety and providing adequate security for Ellis and Liberty Islands. In addition, mariners with human powered vessels greater than 25 feet in length may request COTP permission to transit the zone and these requests will be evaluated on a case-by-case basis.

We received 15 comments regarding access to the safety and security zone during weekdays and throughout the year. These comments noted that the congestion in the Anchorage Channel poses a navigational safety concern to human powered vessels regardless of the day of the week or season of the year. Commenters further stated that many human powered vessel trips are based upon favorable tides and weather.

Due to agency resource constraints, pre-approved access to the zone cannot be extended to encompass all weekdays without compromising the required security posture necessary to protect these national symbols. Similarly, extending pre-approved access beyond the summer boating season poses an unacceptable risk due to the lack of sufficient resources to adequately maintain the required security presence such access demands. Vessel congestion in New York Harbor is greatest on weekend days during the summer months. Limiting pre-approval to certain vessels transiting the zone on weekends during the peak summer boating season, will help ensure adequate security for Ellis and Liberty Islands and well as increase navigational safety. Mariners may request COTP authorization to access the zone on weekdays and throughout the year and each request will be evaluated on a case-by-case basis.

We received 11 comments requesting an expansion of the time of day vessels are permitted to access the zone. Commenters requested vessels be permitted to transit from sunrise to sunset, one hour before sunrise and one hour after sunset, and 24 hour access to the zone. Commenters noted that many human powered vessel trips are based upon favorable tides, which do not necessary align with the times specified in the NRPM. The Coast Guard believes that security concerns warrant the need to limit the duration of time that transit is permissible. Visibility is greatly reduced outside of the times specified in the NPRM. Where there is reduced visibility the security threat is enhanced and necessitates limiting the pre-approved access of the zone during daylight hours. Also, due to Coast Guard and NPS resource constraints, adequate security is unable to be provided at all times. The most congested time of day in New York harbor is during the daytime. Providing pre-approved COTP access to the zone during the busiest time of day allows the Coast Guard to balance the navigational safety concerns faced by human powered vessel users with the security concerns of these historical landmarks.

We received 3 comments recommending there be a way to contact the agencies through use of a VHF radio, in addition to the phone number contact. The Coast Guard is changing the regulatory text of the NPRM to add VHF Channel 13 as an additional notification method.

Additional changes to the regulatory text between the NPRM and the Final Rule are incorporated below to improve understanding of the modification imposed by this rule. Based on the comments addressing concerns with the restriction on vessel length, weekday transit, and duration of time that transit is permissible, 33 CFR 165.169(b) provides that any person or vessel may request COTP authorization to access the zone throughout the year and each request will be evaluated on a case-by-case basis. The text in the NPRM referred to the zone as a “security zone.” Per 33 CFR 165.169, it remains both a safety and security zone. Both the preamble and the regulatory text now reflect this fact.

This rule modifies an existing safety and security zone. The modification allows certain vessels to transit underneath the Ellis Island Bridge on weekends and Federally Observed Holidays on a Friday or Monday, beginning on Memorial Day Weekend through October 1, between one hour after sunrise and one hour before sunset. Vessels making this transit (a) must be able to safely navigate underneath the bridge, (b) be human powered vessels with a length equal to or less than 25 feet and (c) meet the horizontal and vertical navigational bridge clearances. This rule allows for pre-approved COTP permission to transit the zone when meeting the conditions listed in the regulatory text. In accordance with 33 CFR 165.169(b), any person or vessel may still request COTP permission to access the Ellis Island Bridge security zone at any time and each request will be considered on a case-by-case basis. The modified regulatory text is at the end of this document.

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

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

This regulatory action determination is based on the modification allowing increased access to a previously restricted area. While the current regulation allows vessels to transit under the Ellis Island Bridge with COTP authorization, this modification grants standing COTP approval for certain vessels to transit underneath the bridge during specific time periods. Thus, this modification lessens the regulatory burden on these vessels by allowing transit through the security zone without needing to seek prior COTP permission. Moreover, the Coast Guard will make the boating public aware of this modification through publication in the Local Notice to Mariners, enhancing public notice of the reduction of the regulatory burden on certain vessels.

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

While some owners or operators of vessels intending to transit the security 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 will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order13132.

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule modifies a security zone surrounding the bridge between Liberty State Park and Ellis Island in order to permit greater vessel access. It is categorically excluded from further review under paragraph L60(b) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

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

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

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

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

This rule establishes a safety zone on July 3, 2018, from 9:45 p.m. until 10:45 p.m. The safety zone will encompass all waters of the Woodlawn Beach; Lake Erie, Blasdell, NY contained within 420-foot radius of: 42°47′27.34″ N, 078°51′19.67″ W.

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule establishes a temporary safety zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor did not submit notice to the Coast Guard with sufficient time remaining before the event to publish an NPRM. Delaying the effective date would be contrary to the rule's objectives of ensuring safety of life on the navigable waters and protection of persons and vessels in vicinity of the fireworks display.

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

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

This rule establishes a safety zone on June 30, 2018, from 9:45 p.m. until 10:35 p.m. The safety zone will encompass all waters of Lake Ontario; Kendall, NY contained within 210-foot radius of: 43°22′02.04″ N, 078°01′48.06″ W.

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule establishes a temporary safety zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

Table of Contents I. Background Information II. Final Action III. Statutory and Executive Order Reviews I. Background Information

On May 2, 2018, the EPA proposed to approve Alaska's submission as meeting the requirement that each SIP contain adequate provisions to prohibit emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2012 PM2.5 NAAQS in any other state (83 FR 19191). An explanation of the Clean Air Act requirements, a detailed analysis of the submission, and the EPA's reasons for proposing approval were provided in the notice of proposed rulemaking, and will not be restated here. The public comment period for the proposal ended June 1, 2018. We received no adverse comments.1

The EPA is approving Alaska's March 10, 2016, submission certifying that the current Alaska SIP is sufficient to meet the interstate transport requirements of Clean Air Act section 110(a)(2)(D)(i)(I) for the 2012 PM2.5 NAAQS, as described in the proposal for this action.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the 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 (82 FR 9339, February 2, 2017) regulatory action because actions such as SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 27, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).

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

Throughout this document, the terms “we,” “us,” and “our” refer to the EPA.

On February 13, 2018 (83 FR 6136), EPA proposed to incorporate requirements into the OCS Air Regulations at 40 CFR part 55 1 pertaining to the State of New Jersey. Section 328(a) of the CAA requires that for such sources located within 25 miles of a State's seaward boundary, the requirements shall be the same as would be applicable if the sources were located in the corresponding onshore area (COA). Because the OCS requirements are based on onshore requirements, and onshore requirements may change, section 328(a)(1) requires that the EPA update the OCS requirements as necessary to maintain consistency with onshore requirements.

To comply with the statutory mandate of Section 328(a)(1) of the CAA, the EPA must incorporate by reference all relevant state rules into part 55 so they can be applied to OCS sources located offshore. 40 CFR 55.12 specifies certain times at which part 55's incorporation by reference of a state's rules must be updated. One such time a consistency update must occur is when any OCS source applicant submits a Notice of Intent (NOI) under 40 CFR 55.4 for a new or a modified OCS source. 40 CFR 55.4(a) requires that any OCS source applicant must submit to EPA a NOI before performing any physical change or change in method of operation that results in an increase in emissions. EPA must conduct any necessary consistency update when it receives an NOI, and prior to receiving any application for a preconstruction permit from the OCS source applicant. 40 CFR 55.6(b)(2) and 55.12(f).

On December 21, 2017, the EPA received a NOI for a new OCS source off the coast of New Jersey. In today's action, the EPA is updating the “New Jersey” section of Appendix A to 40 CFR part 55 to incorporate by reference the relevant New Jersey air pollution control rules that are currently in effect.

EPA has evaluated the proposed regulations to ensure that they are rationally related to the attainment or maintenance of Federal or state ambient air quality standards (AAQS) or part C of title I of the Act, that they are not designed expressly to prevent exploration and development of the OCS, and that they are applicable to OCS sources. 40 CFR 55.1. The EPA has also evaluated the rules to ensure they are not arbitrary and capricious. 40 CFR 55.12(e). The EPA has excluded New Jersey's administrative or procedural rules,2 and requirements that regulate toxics which are not related to the attainment and maintenance of Federal and State AAQS.

To comply with the statutory mandate of Section 328(a) of the CAA, the EPA must incorporate by reference applicable rules in effect for onshore sources into part 55. This limits EPA's flexibility in deciding which requirements will be incorporated into 40 CFR part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into 40 CFR part 55 that do not conform to all of EPA's state implementation plan (SIP) guidance or certain requirements of the CAA. Inclusion in the OCS rule does not imply that a rule meets the requirements of the CAA for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.

EPA's proposed action provided a 30-day public comment period, which closed on March 15, 2018. During this period, we received 12 public comments. None of the comments are relevant to today's action, which simply incorporates by reference current New Jersey air pollution control rules into the OCS regulations applicable to all OCS sources and makes no findings regarding any specific OCS source. Thus, no EPA response to public comments is warranted.

In this document, EPA is taking final action to incorporate the proposed changes into 40 CFR part 55. EPA is approving this action under section 328(a)(1) of the Act, 42 U.S.C. 7627. Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, the EPA must incorporate applicable onshore rules into 40 CFR part 55 as they exist onshore.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the NJDEP air rules that are applicable to OCS sources and which are described in the amendments to 40 CFR part 55 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region 2 Office. Please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information.

Under the Clean Air Act, the Administrator is required to establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore air control requirements. To comply with this statutory mandate, the EPA must incorporate applicable onshore rules into part 55 as they exist onshore. 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS consistency updates, the EPA's role is to maintain consistency between OCS regulations and the regulations of onshore areas, provided that they meet the criteria of the Clean Air Act. Accordingly, this action simply updates the existing OCS requirements to make them consistent with requirements onshore, without the exercise of any policy discretion by the EPA. For that reason, this action:

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

• 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 Mandate Reform Act of 1995 (Pub. L. 04-4);

• 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 the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this final rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 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, nor does it impose substantial direct costs on tribal governments, nor 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 27, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons set out in the preamble, title 40 of the Code of Federal Regulations, part 55, is amended as follows:

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

You may be potentially affected by this action if you manufacture (including import) mercury or mercury-added products, or if you otherwise intentionally use mercury in a manufacturing process. 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 the following:

• Gold ore mining (NAICS code 212221).

• Lead ore and zinc ore mining (NAICS code 212231).

• All other metal ore mining (NAICS code 212299).

• Asphalt shingle and coating materials manufacturing (NAICS code 324122).

• Synthetic dye and pigment manufacturing (NAICS code 325130).

• Other basic inorganic chemical manufacturing (NAICS code 325180).

• All other basic organic chemical manufacturing (NAICS code 325199).

• Plastics material and resin manufacturing (NAICS code 325211).

• Pesticide and other agricultural chemical manufacturing (NAICS code 325320).

• Medicinal and botanical manufacturing (NAICS code 325411).

• Pharmaceutical preparation manufacturing (NAICS code 325412).

• Biological product (except diagnostic) manufacturing (NAICS code 325414).

• Paint and coating manufacturing (NAICS code 325510).

• Adhesive manufacturing (NAICS code 325520).

• Custom compounding of purchased resins (NAICS code 325991).

• Photographic film, paper, plate, and chemical manufacturing (NAICS code 325992).

• All other miscellaneous chemical product and preparation manufacturing (NAICS code 325998).

• Unlaminated plastics film and sheet (except packaging) manufacturing (NAICS code 326113).

• Unlaminated plastics profile shape manufacturing (NAICS code 326121).

• Urethane and other foam product (except polystyrene) manufacturing (NAICS code 326150).

• All other plastics product manufacturing (NAICS code 326199).

• Tire manufacturing (NAICS code 326211).

• All other rubber product manufacturing (NAICS code 326299).

• Iron and steel mills and ferroalloy manufacturing (NAICS code 331110).

• Rolled steel shape manufacturing (NAICS code 331221).

• Alumina refining and primary aluminum production (NAICS code 331313).

• Secondary smelting and alloying of aluminum (NAICS code 331314).

• Nonferrous metal (except aluminum) smelting and refining (NAICS code 331410).

• Secondary smelting, refining, and alloying of nonferrous metal (except copper and aluminum) (NAICS code 331492).

• Iron foundries (NAICS code 331511).

• Steel foundries (except investment) (NAICS code 331513).

• Fabricated structural metal manufacturing (NAICS code 332312).

• Industrial valve manufacturing (NAICS code 332911).

• Ammunition except small arms manufacturing (NAICS code 332993).

• Small arms, ordnance, and ordnance accessories manufacturing (NAICS code 332994).

• All other miscellaneous fabricated metal product manufacturing (NAICS code 332999).

• Food product machinery manufacturing (NAICS code 333294).

• Office machinery manufacturing (NAICS code 333313).

• Other commercial and service industry machinery manufacturing (NAICS code 333319).

• Heating equipment (except warm air furnaces) manufacturing (NAICS code 333414).

• Air-conditioning and warm air heating equipment and commercial and industrial refrigeration equipment manufacturing (NAICS code 333415).

• Pump and pumping equipment manufacturing (NAICS code 333911).

• Bare printed circuit board manufacturing (NAICS code 334412).

• Semiconductor and related device manufacturing (NAICS code 334413).

• Other electronic component manufacturing (NAICS code 334419).

• Electromedical and electrotherapeutic apparatus manufacturing (NAICS code 334510).

• Search, detection, navigation, guidance, aeronautical, and nautical system and instrument manufacturing (NAICS code 334511).

• Automatic environmental control manufacturing for residential, commercial, and appliance use (NAICS code 334512).

• Instruments and related products manufacturing for measuring, displaying, and controlling industrial process variables (NAICS code 334513).

• Totalizing fluid meter and counting device manufacturing (NAICS code 334514).

• Instrument manufacturing for measuring and testing electricity and electrical signals (NAICS code 334515).

• Analytical laboratory instrument manufacturing (NAICS code 334516).

• Watch, clock, and part manufacturing (NAICS code 334518).

• Other measuring and controlling device manufacturing (NAICS code 334519).

• Electric lamp bulb and part manufacturing (NAICS code 335110).

• Commercial, industrial, and institutional electric lighting fixture manufacturing (NAICS code 335122).

• Other lighting equipment manufacturing (NAICS code 335129).

• Electric house wares and household fan manufacturing (NAICS code 335211).

• Household vacuum cleaner manufacturing (NAICS code 335212).

• Household cooking appliance manufacturing (NAICS code 335221).

• Household refrigerator and home freezer manufacturing (NAICS code 335222).

• Household laundry equipment manufacturing (NAICS code 335224).

• Other major household appliance manufacturing (NAICS code 335228).

• Switchgear and switchboard apparatus manufacturing (NAICS code 335313).

• Relay and industrial control manufacturing (NAICS code 335314).

• Primary battery manufacturing (NAICS code 335912).

• Current-carrying wiring device manufacturing (NAICS code 335931).

• All other miscellaneous electrical equipment and component manufacturing (NAICS code 335999).

• Automobile manufacturing (NAICS code 336111).

• Light truck and utility vehicle manufacturing (NAICS code 336112).

• Heavy duty truck manufacturing (NAICS code 336120).

• Motor home manufacturing (NAICS code 336213).

• Travel trailer and camper manufacturing (NAICS code 336214).

• Other aircraft parts and auxiliary equipment manufacturing (NAICS code 336413).

• Boat building (NAICS code 336612).

• Motorcycles and parts manufacturing (NAICS code 336991).

• Surgical and medical instrument manufacturing (NAICS code 339112).

• Costume jewelry and novelty manufacturing (NAICS code 339914).

• Game, toy, and children's vehicle manufacturing (NAICS code 339932).

• Sign manufacturing (NAICS code 339950).

• Other chemical and allied products merchant wholesalers (NAICS code 424690).

• Research and development in the physical, engineering, and life sciences (except biotechnology) (NAICS code 541712).

• Hazardous waste treatment and disposal (NAICS code 562211).

• Other nonhazardous waste treatment and disposal (NAICS code 562219).

• Materials recovery facilities (NAICS code 562920).

• National security (NAICS code 928110).

EPA is issuing a final rule under TSCA section 8(b)(10) to require reporting to assist in the preparation of “an inventory of mercury supply, use, and trade in the United States,” where “mercury” is defined as “elemental mercury” and “a mercury compound.” Hereinafter “mercury” will refer to both elemental mercury and mercury compounds collectively, except where separately identified. This final rule requires reporting from any person who manufactures (including imports) mercury or mercury-added products, or otherwise intentionally uses mercury in a manufacturing process. EPA published its initial inventory report in the Federal Register on March 29, 2017 (Ref. 1), which noted data gaps and limitations encountered by the Agency in its historic reliance on publicly available data on the mercury market in the United States. As stated in the initial inventory report, “[f]uture triennial inventories of mercury supply, use, and trade are expected to include data collected directly from persons who manufacture or import mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process” (Ref. 1). These reporting requirements will help the Agency narrow such data gaps, prepare subsequent, triennial publications of the inventory, and execute the mandate to “identify any manufacturing processes or products that intentionally add mercury; and . . . recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use” (15 U.S.C. 2607(b)(10)(C)).

In addition, this information could be used by the U.S. Government to assist in its national reporting regarding its implementation of the Minamata Convention on Mercury (Minamata Convention), to which the United States is a Party (Ref. 2). The Minamata Convention is an international environmental agreement that has as its objective the protection of human health and the environment from anthropogenic emissions and releases of elemental mercury and mercury compounds. Article 21 of the Convention requires Parties to include in their national reports, among other information, information demonstrating that the Party has met the requirements of Article 3 on Mercury Supply Sources and Trade and of Article 5 on Manufacturing Processes in Which Mercury or Mercury Compounds Are Used. EPA intends to use the collected information from the mercury inventory to implement TSCA and assist in its national reporting for the Minamata Convention as well as to shape the Agency's efforts to reduce the use of mercury in commerce. In so doing, the Agency will conduct a timely evaluation and refinement of these reporting requirements so that they are efficient and non-duplicative for reporters.

EPA issued the proposed rule for this action in the Federal Register on October 26, 2017 with a December 26, 2017 deadline for comments (Ref. 3); in response to two requests, the deadline was extended to January 11, 2018 (Ref. 4). Based on comments received, the Agency modified the regulatory text to improve the logic and flow of sections, to clarify various terms and reporting requirements, and to eliminate several quantitative reporting requirements. Such issues are discussed in greater detail in Unit III. and the Response to Comments document for this rule (Ref. 5).

The reporting requirements for supply, use, and trade of mercury include activities that are established TSCA terms: Manufacture, import, distribution in commerce, storage, and export. The reporting requirements also apply to otherwise intentional use of mercury in a manufacturing process. Persons who manufacture (including import) mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process, are required to report amounts of mercury in pounds (lbs.) used in such activities during a designated reporting year. Reporters also are required to identify specific mercury compounds, mercury-added products, manufacturing processes, and how mercury is used in manufacturing processes, as applicable, from preselected lists. For certain activities, reporters are required to provide additional, contextual data (e.g., NAICS codes for mercury or mercury-added products distributed in commerce).

The finalized reporting requirements do not apply to: (1) Persons who do not first manufacture, import, or otherwise intentionally use mercury; (2) persons who only generate, handle, or manage mercury-containing waste; (3) persons who only manufacture mercury as an impurity; and (4) persons engaged in activities involving mercury not with the purpose of obtaining an immediate or eventual commercial advantage (see Unit III.D.2.). Within the category of persons who must report, there are certain persons who are not required to provide specific data elements. To avoid reporting that is unnecessary or duplicative, the Agency is finalizing certain exemptions for persons who already report for mercury and mercury-added products to the TSCA section 8(a) Chemical Data Reporting (CDR) rule and the Interstate Mercury Education and Reduction Clearinghouse (IMERC) Mercury-added Products Database, respectively. Such reporters are not required to respond to certain data elements of the mercury reporting application that are comparable to data they also report in response to CDR and IMERC reporting requirements.

EPA is issuing this final rule under TSCA section 8(b)(10) to require reporting to assist in the preparation of the statutorily-required inventory of mercury supply, use, and trade in the United States. As indicated in the initial inventory report (Ref. 1), this final rule will support future triennial publications of the mercury inventory by establishing reporting requirements and an electronic application and database to collect, store, and analyze information provided by applicable respondents. In administering this mercury inventory, the Agency will “identify any manufacturing processes or products that intentionally add mercury; and . . . recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use” (15 U.S.C. 2607(b)(10)(C)).

EPA is issuing this rule pursuant to TSCA section 8(b)(10)(D) to implement the direction at TSCA section 8(b)(10)(B) that “[n]ot later than April 1, 2017, and every 3 years thereafter, the Administrator shall carry out and publish in the Federal Register an inventory of mercury supply, use, and trade in the United States.” TSCA section 8(b)(10)(D) requires EPA to promulgate a final rule by June 22, 2018 that establishes reporting requirements applicable to any person who manufactures mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process to assist in the preparation of the inventory.

In addition, the Paperwork Reduction Act (PRA) requires Federal agencies to manage information resources to reduce information collection burdens on the public; increase program efficiency and effectiveness; and improve the integrity, quality, and utility of information to all users within and outside an agency, including capabilities for ensuring dissemination of public information, public access to Federal Government information, and protections for privacy and security (44 U.S.C. 3506).

TSCA section 2 expresses the intent of Congress that EPA carry out TSCA in a reasonable and prudent manner and in consideration of the impacts that any action taken under TSCA may have on the environment, the economy, and society. EPA will manage and leverage its information resources, including information technology, and the Agency is requiring the use of electronic reporting to implement the mercury inventory reporting requirements of TSCA section 8(b)(10)(D) in a reasonable and prudent manner.

EPA prepared an economic analysis of the potential impacts associated with this rulemaking (Ref. 6). The chief benefit of the final rule is the collection of detailed data on mercury, which will serve as a basis to recommend actions to further reduce mercury use in the United States, as required at TSCA section 8(b)(10)(C). Another benefit is the use of information collected under the final rule to help the United States implement its obligations under the Minamata Convention. While there are no quantified benefits for the final rule, the statutory mandate specifically calls for and authorizes a rule to support an inventory of mercury supply, use, and trade in the United States, to identify any manufacturing processes or products that intentionally add mercury, and to recommend actions to achieve further reductions in mercury use. As described in the Agency's economic analysis, unquantified benefits include providing increased information on mercury and assisting in the reduction of mercury use (Ref. 6). To the extent that the information gathered through this rule is used to reduce mercury use, benefits to society may result from a reduction in exposure.

The Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act) (Pub. L. 114-182, 130 Stat. 448), enacted on June 22, 2016, implemented reforms to TSCA (15 U.S.C. 2601 et seq.). Among other changes to TSCA, the Lautenberg Act amended TSCA section 8(b) to require EPA to establish: (1) An inventory of mercury supply, use, and trade in the United States; and (2) reporting requirements by rule applicable to any person who manufactures mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process not later than June 22, 2018 (15 U.S.C. 2607(b)(10)). Information collected per the reporting requirements will be used to periodically update the mercury inventory; identify any manufacturing processes or products that intentionally add mercury; and recommend actions, including proposed revisions of federal law or regulations, to achieve further reductions in mercury use (15 U.S.C. 2607(b)(10)(B) and (C)). The Lautenberg Act also added certain mercury compounds to the TSCA section 12(c) ban on export of elemental mercury and authorized EPA to ban the export of additional mercury compounds by rule. Additional information on the Lautenberg Act is available on EPA's website at https://www.epa.gov/assessing-and-managing-chemicalsunder-tsca/frank-r-lautenberg-chemical-safety-21st-century-act.

Prior to developing its initial inventory, EPA reviewed federal and state reports and databases, among other sources, to assemble a collection of available information on mercury, mercury-added products, and manufacturing processes involving mercury (Ref. 1). In reviewing data obtained, the Agency found that its baseline of data lacked the specificity and level of detail required to develop a mercury inventory responsive to TSCA section 8(b)(10)(D) or to be useful to inform mercury use reduction efforts for both the public and private sectors (Ref. 1). In 2015, to develop its understanding of domestic mercury supply and trade, the Agency collected information on the quantity of mercury sold in the United States for the years 2010 and 2013 from five companies identified as the primary recyclers and distributors of mercury in the United States (Ref. 7), which revealed a gap between available data on the amount of mercury within sold mercury-added products and the amount of bulk elemental mercury sold in the United States. Additional Agency research identified a data gap for the amount of mercury in exported mercury-added products. The Agency also is seeking to identify and differentiate between the amount of mercury in imported versus domestically manufactured mercury-added products. EPA is committed to further addressing such data gaps and considers the national mercury inventory mandated by Congress to be an instrumental means to establish the requisite body of information to support achievement of that goal.

In developing the proposed rule, the Agency coordinated with the Northeast Waste Management Officials' Association, which administers the IMERC database, as directed by TSCA section 8(b)(10)(D)(ii).

During the public comment period (October 26, 2017 to January 11, 2018) for the proposed rule, EPA received 89 comments. After careful review, the Agency determined that 27 of those comments were substantively or procedurally relevant to the proposed rule, while 55 comments were not applicable, germane, or responsive. EPA received six comments generally supportive of the proposed rule and one comment related to mercury use, but exceeded the Agency's understanding of the statutory scope of “mercury supply, use, and trade in the United States.” All comments received are identified by docket identification (ID) number EPA-HQ-OPPT-2017-0421 and available at https://www.regulations.gov. Included in this docket is the Response to Comments document for this rule (Ref. 5).

This final rule provides for the collection of information that allows EPA to implement statutory requirements at TSCA section 8(b)(10)(B), which directs that “[n]ot later than April 1, 2017, and every 3 years thereafter, the Administrator shall carry out and publish in the Federal Register an inventory of mercury supply, use, and trade in the United States”. Based on the inventory, the Agency is directed to “identify any manufacturing processes or products that intentionally add mercury; and . . . recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use.” EPA's rationale for fulfilling specific statutory provisions and terms, including summaries of public comments received and Agency responses and determinations for the final rule, are set forth by topic as follows. Some of these issues are discussed in greater detail in the Response to Comments document for this rule (Ref. 5), which is available at docket ID number EPA-HQ-OPPT-2017-0421 at https://www.regulations.gov.

TSCA section 8(b)(10)(A) states “notwithstanding [TSCA] section 3(2)(B), the term `mercury' means . . . elemental mercury; and . . . a mercury compound.” As such, the definition for mercury at TSCA section 8(b)(10)(A) supersedes the exclusions for “chemical substances” described in TSCA section 3(2)(B) that would otherwise apply to mercury, mercury-added products, or otherwise intentional uses of mercury in manufacturing processes. For example, any “drug, cosmetic, or device” as described in TSCA section 3(2)(B)(vi), should such items contain mercury, are not excluded from reporting under this final rule.

The Agency proposed that where EPA distinguishes between elemental mercury and mercury compounds, elemental mercury be limited to elemental mercury as described by its Chemical Abstracts Service Registry Number (CASRN 7439-97-6) and mercury compounds be inclusive of all instances where elemental mercury or a mercury compound is reacted with another chemical substance. Examples of mercury compounds in the TSCA Chemical Substance Inventory are listed in Table 2.

The Agency received a comment requesting an explanation for the Agency decision to not adopt the definition for “mercury compound” used by the Minamata Convention (“any substance consisting of atoms of mercury and one or more atoms of other chemical elements that can be separated into different components only by chemical reactions”) (Ref. 8). Another commenter requested that the Agency clarify whether there is a concentration limit for classifying a material as elemental mercury and if EPA intends to require parties to report the manufacture or use of all mercury compounds, or only those that are listed on the TSCA Inventory (Ref. 9).

Consistent with the discussion in the proposed rule, the Agency did not define specific terms for purposes of the mercury inventory in the regulatory text. Instead, the Agency considered and synthesized descriptions of applicable definitions found in TSCA and implementing regulations, as well as the Minamata Convention. To that end, EPA proposed that “elemental mercury be limited to elemental mercury (CASRN 7439-97-6) and mercury compounds be inclusive of all instances where elemental mercury or a mercury compound is reacted with another chemical substance” (Ref. 3). In regard to the definition of “mercury compound” set forth in the Minamata Convention, EPA finds the language in the proposed rule to be clear and comparable to the definition under the Minamata Convention. EPA is therefore retaining its proposed characterization. EPA also provides an extensive, though not comprehensive, list of compounds for which reporting is required based on CASRN. EPA's statutory obligations are to prepare the mercury inventory (15 U.S.C. 2607(b)(10)(B)) and to develop identifications and recommendations to reduce the use of mercury (15 U.S.C. 2607(b)(10)(C)); nonetheless, EPA believes the resulting reporting will assist the United States in implementing the Minamata Convention.

In regard to establishing a concentration limit for elemental mercury, the statutory text at TSCA section 8(b)(10)(A)(i) uses the term “elemental mercury” without qualification. Therefore, the Agency believes that it is appropriate to identify elemental mercury by use of its CASRN and without a concentration limit.

1. Overview of the Proposed Scope. Pursuant to TSCA section 8(b)(10)(B), EPA interprets the scope of the mercury inventory to include activities within the domestic and global commodity mercury market that fall under “supply, use, and trade of mercury in the United States.” An inventory that adequately accounts for mercury in supply, use, and trade includes activities of persons who must report as described in TSCA section 8(b)(10)(D)(i): Manufacture, import, and otherwise intentionally use mercury in a manufacturing process. As such, the Agency proposed that persons required to report to the mercury inventory also include information on distribution in commerce, storage, and export to provide for the requisite inventory of mercury supply, use, and trade in the United States (Ref. 3).

2. Comments Related to Terminology. The Agency received comments requesting clarification of the descriptions of various terms, including: Mercury handled as waste, including elemental mercury destined for long-term storage; otherwise intentionally use mercury in a manufacturing process; impurities present in a final product; commercial purposes; mercury-added products and components; and “persons.” As described in Unit III.A., the Agency did not define specific terms for purposes of the mercury inventory in the regulatory text. Instead, the Agency considered and synthesized descriptions of applicable definitions found in TSCA and implementing regulations, as well as the Minamata Convention.

• Mercury Handled as Waste, Including Elemental Mercury Destined for Long-Term Storage. EPA received comments on reporting of mercury by facilities that certify that their stored elemental mercury will not be sold,1 including instances where mercury is produced as a mining byproduct and is managed as a hazardous waste (Ref. 10; Ref. 11; Ref. 12). Other comments addressed imported mercury-containing materials or wastes from which mercury can be recovered. Commenters emphasized that any exemption should only apply to mercury that is clearly not intended to be used for commercial purposes (Ref. 10; Ref. 11).

EPA agrees with the commenters that elemental mercury waste, whether generated from mining or another process, that is being stored (or accumulated on-site and destined for storage) for eventual transfer to the DOE long-term mercury storage facility, should not be subject to the reporting requirements because it is waste, which is exempt from this rule in accordance with TSCA section 8(10)(D)(iii). If any person manufactures elemental mercury, including recovery from waste or as a byproduct from mining or any other activity, and has not made the decision to store it for transfer to the DOE storage facility or to otherwise handle it as waste, then that person must report that mercury. The Agency considers such mercury to be a commodity, not waste, and, therefore, part of the U.S. mercury supply.

EPA partially agrees with the comment that any mercury available for sale or otherwise available for commercial use including incidentally produced mercury should be captured in the inventory. Mercury produced as a byproduct and sold or otherwise made available for commercial use, for example by mines, must be reported (unless managed as waste), even if it may be considered incidentally produced. However, mercury that is present after the production of a commodity (e.g., coal ash or cement), but serves no function in the final product, is not subject to reporting requirements set forth by this rule.

EPA agrees with the same commenter that if mercury-containing materials or waste are imported into the United States and the mercury is then recovered from such materials/waste, then this mercury must be reported upon recovery unless the mercury is immediately managed as waste under RCRA. An importer of such material or waste would only report the mercury if it is the same entity that recovers the mercury.

• Otherwise Intentionally Use Mercury in a Manufacturing Process. Commenters suggested that defining “otherwise intentionally use mercury in a manufacturing process” in the regulatory text would clarify reporting requirements (Ref. 13) and requested that EPA limit “manufacturing process” to the actual chemistry performed during such a process (Ref. 14).

In general, the Agency agrees with these comments. Notwithstanding differences in the statutory text (i.e., “add” and “uses” in the context of how the mercury is used in a manufacturing process (see 15 U.S.C. 2607(b)(10)(C)(i) and (D)(i)), EPA believes that Congress meant to emphasize instances where persons intentionally introduce mercury into U.S. supply, use, and trade. As such, EPA agrees with commenters that, in the context of intentional use of mercury in a manufacturing process, it is the intentional use of elemental mercury or a mercury compound for a specific purpose (e.g., a catalyst, cathode, reactant, reagent, etc.) that triggers reporting requirements. The Agency also appreciates the suggestion of how it might qualify persons and activities subject to reporting requirements by adding “intentional” in applicable regulatory text. However, to the extent that terms in the regulatory text are drawn from 15 U.S.C. 2602 and 2607(b)(10), the Agency prefers to align with the statutory terms as much as possible. EPA further clarified interpretations of these terms in this rule. Forthcoming support and outreach materials, which will be available on the EPA website six months prior to the reporting deadline, also will attempt to illustrate such terms and issues.

• Impurities Present in a Final Product. The Agency received comments regarding inconsistencies related to if and how impurities would be reported by persons who intentionally use mercury in a manufacturing process. The commenters argue that EPA's proposal to not require reporting of impurities for manufactured mercury and mercury-added products is inconsistent with the requirement to report impurities in end products that result from the intentional use of mercury in a manufacturing process (Ref. 8; Ref. 15). The commenters opined that reporting mercury present as an impurity (i.e., reporting unintentional presence) would be overly burdensome, unreasonable, and would not add any real value to the mercury inventory (Ref. 8; Ref. 15).

In the proposed rule, the Agency described impurities in regard to whether “such chemical substances are intentionally generated and whether such substances are used for commercial purposes.” In order to clarify, EPA finds the definition of “impurity” at 40 CFR 704.3 to be instructive: “chemical substance which is unintentionally present with another chemical substance.” Thus, after reconsideration, the Agency determined that to require reporting of amounts of mercury unintentionally present in a final product would contradict the logic set forth by the Agency regarding the intentional addition of mercury where mercury remains present in the final product for a particular purpose (Ref. 3). EPA believes the quantity of mercury used in the manufacturing process, how the mercury is used and for what purpose, to which NAICS code a final product is distributed, and to which country(ies) the final product is exported provide adequate information about manufacturing processes that involve the intentional use of mercury to support the supply, use, and trade national inventory. Thus, the unintentional quantity of mercury in final products that result from such processes is not required. Should the Agency need additional information regarding any mercury present as an impurity, it may seek such information from the reporter, as necessary. Therefore, the Agency is not requiring the reporting of impurities for the mercury inventory and revised the regulatory text accordingly.

• Commercial Purposes. The Agency received a comment that requested clarity on the use of “commercial purpose,” particularly within the context of the proposed rule preamble, which discussed certain byproducts and impurities the Agency proposed excluding from reporting (Ref. 11). Another commenter suggested that EPA's intentions would be clearer if it specified that to be reportable, the activities (e.g., manufacture, import, otherwise intentionally use mercury in a manufacturing process) must be for commercial purposes (Ref. 10).

In the proposed rule, the Agency discussed its attempt to build on existing regulatory text applicable to TSCA section 8 reporting (Ref. 3). TSCA section 8(f) states “[f]or purposes of [TSCA section 8], the terms `manufacture' and `process' mean manufacture or process for commercial purposes.” Thus, EPA reads “for commercial purposes” to apply to the TSCA section 8(b)(10)(D)(i) terms “manufactures” (including imports) and “otherwise intentionally uses mercury in a manufacturing process” (i.e., comparable to “process” as defined at TSCA section 3(13)).

As used in 40 CFR 704.3, the terms defined with “for commercial purposes” incorporate “. . . with the purpose of obtaining an immediate or eventual commercial advantage . . .” for certain persons (e.g., manufacturers, importers, and processors). In the proposed rule, the Agency described its rationale for instances where mercury would not be reported by focusing on “whether such chemical substances are intentionally generated and whether [byproducts and impurities] are used for commercial purposes” (Ref. 3). In the proposed regulatory text, however, EPA used a structure that used both sets of terms in the same sentence (e.g., “purpose of obtaining . . . commercial advantage” (must be reported) and “not used for commercial purposes” (not to be reported)). Based on comments received, the Agency amended the regulatory text to clarify this concept.

The Agency determined that the terms “with the purpose of obtaining an immediate or eventual commercial advantage” are more consistent with the statutory mandate at 15 U.S.C. 2607(b)(10)(C)(i) to “identify any manufacturing processes or products that intentionally add mercury” (emphasis added). EPA believes such terms (e.g., “with the purpose of obtaining”) more accurately align with the Agency's emphasis on the intent of persons required to report as opposed to “for commercial purposes.” In addition, the Agency interprets “commercial advantage” to extend to benefits beyond profits, such as not incurring additional operational costs by continuing to use mercury rather than use non-mercury substances or technologies. Thus, to be required to report to the mercury inventory, persons must intentionally engage in activities that introduce mercury into supply, use, and trade in the United States with the purpose of obtaining an immediate or eventual commercial advantage. This interpretation and revised descriptions of supply, use and trade activities are discussed further in Unit III.B.5.

In the regulatory text of the final rule, therefore, the Agency omitted the use of “commercial purposes” and clarified how “with the purpose of obtaining an immediate or eventual commercial advantage” applies to activities for which reporting is required, as well as persons who must report.

• Mercury-added Products and Components. A commenter recommended that the Agency adopt the definition of the term “mercury-added product” as set forth in the Minamata Convention (Ref. 16), while another commenter requested that EPA clarify the distinction related to a “product that contains a component that is a mercury-added product” (Ref. 17). Other commenters requested clarifications, such as: Whether certain uses of mercury qualified as a component that is a mercury-added product (Ref. 9; Ref. 13; Ref. 17); how reporting requirements would apply to manufacturers who first incorporate mercury into a product versus subsequent manufacturers of products that contain the original mercury-added product (e.g., the manufacture or import of Thimerosal (a mercury-containing preservative) and the manufacture or import of a vaccine containing Thimerosal) (Ref. 13); distinguishing between mercury-containing products involving chemical synthesis, alloy generating, blending and mixing operations versus articles with mercury-containing components (Ref. 9); and whether the proposed exemption for imported products that contain a component that is a mercury-added product would apply to exported products (Ref. 18).

In the proposed rule, EPA did not define “mercury-added product,” but provided examples of intentional addition of mercury to a product by persons who manufacture a mercury-added product: “inserting mercury into a switch or battery, or mixing a mercury compound with other substances to formulate a topical antiseptic” (Ref. 3). In addition to the definition of “mercury-added product” in Article 2 of the Minamata Convention (i.e., “a product or product component that contains mercury or a mercury compound that was intentionally added”), EPA also considered IMERC's definition, which is “any formulated or fabricated product that contains mercury, a mercury compound, or a component containing mercury, when the mercury is intentionally added to the product (or component) for any reason.” The Agency sees merit in both definitions, but believes the definition in the Minamata Convention is more consistent with EPA's interpretation of the instruction at 15 U.S.C. 2607(b)(10)(C)(i) to “identify any manufacturing processes or products that intentionally add mercury.” The Agency is of the view that the manufacture (other than import) of a mercury-added product is the “intentional addition of mercury where mercury remains present in the final product for a particular purpose” (Ref. 3). In other words, the intentional addition of mercury is the essential act by a manufacturer (other than importer) who makes a mercury-added product and, thus, triggers applicable reporting requirements.

In regard to a “component,” EPA views this term as being similar to the definition of “article” in 40 CFR 704.3. The Agency views the inclusion of a mercury-added product that is a component within an assembled product differently from the act of intentionally inserting mercury (i.e., chemical substance) into the component itself. As a result, the Agency is not requiring information to be reported on the manufacture (including import) of assembled products that include a component that is a mercury-added product. The Agency's rationale for reporting requirements applicable to products that contain a component that is a mercury-added product is provided in Unit III.D.1.b.

The example of the manufacture and use of Thimerosal illustrates when something is or is not a component. EPA agrees that only the domestic manufacturer who intentionally adds mercury to a product, or an importer who imports a product where mercury (e.g., chemical substance) was inserted into the product, would report under this rule; subsequent manufacturers (including importers) of products that contain the original mercury-added product as a component would not report under this rule. Thimerosal is a mercury compound (e.g., listed under CASRN 54-64-8 on EPA's TSCA Chemical Substance Inventory list), and is subject to reporting as a mercury compound or, if intentionally combined with other substances, is subject to reporting as a mercury-added product because the mercury compound is being intentionally added to the product. Therefore, Thimerosal is not a component.

• Persons. One commenter requested that the Agency specify the basis for defining what “person” means in the context of who may be subject to reporting (Ref. 19). EPA finds the definition at 40 CFR 704.3 to be instructive, in which a “person” includes “any individual, firm, company, corporation, joint venture, partnership, sole proprietorship, association, or any other business entity; any State or political subdivision thereof; any municipality; any interstate body; and any department, agency, or instrumentality of the Federal Government.”

3. Requests for Exemptions or Exclusions from Reporting. The Agency also received specific requests for exemptions from reporting to the mercury inventory, including: Specific industry sectors (Ref. 16; Ref. 20; Ref. 21); specific activities (Ref. 22); use of tools and equipment (Ref. 14); distribution of products originating from others (Ref. 9); replacement parts (Ref. 16; Ref. 17); recycled waste (Ref. 17); and products excluded from the Minamata Convention on Mercury (Ref. 9). Given the level of specificity of such requests and explanation of Agency determinations, these discussions are set forth in the Response to Comments document for this rule (Ref. 5).

4. Exports of Certain Mercury Compounds. In regard to certain exports of mercury, the Agency notes that the export of elemental mercury has been prohibited since January 1, 2013 (15 U.S.C. 2611(c)(1)) and therefore the Agency is not requiring reporting on the export of elemental mercury from the United States. TSCA, as of January 1, 2020, will also prohibit the export of certain mercury compounds: Mercury (I) chloride or calomel; mercury (II) oxide; mercury (II) sulfate; mercury (II) nitrate; and cinnabar or mercury sulphide (the statute uses the term “mercury sulphide” which is an alternative spelling of “mercury sulfide” as found in Table 2) (15 U.S.C. 2611(c)(7)).

In the proposed rule, the Agency noted that the inventory would benefit from the recent totals of at least one cycle of reporting prior to the effective date of the prohibition for exporting mercury compounds subject to TSCA section 12(c)(7) to measure trends in supply, use, and trade and provide a baseline for comparison of the changes in the amounts of other mercury compounds exported after the 2020 effective date (Ref. 3). The Agency received comments supporting the collection of such data: (1) To fulfill the express Congressional mandate to provide data on trade; (2) to determine the precise impact of the mercury compound export ban and associated trends, which would allow EPA to recommend whether the export ban should be further expanded to other compounds; and (3) to uphold obligations of the United States under the Minamata Convention (Ref. 11; Ref. 12). Thus, the Agency requires one-time reporting for those five compounds. Conversely, reporting for exports of mercury compounds that are not prohibited from export by TSCA section 12(c)(7) is required for every collection period. EPA previously determined that mercury-added products (including those containing elemental mercury or mercury compounds prohibited from export) generally are not prohibited from export and, therefore, are subject to the reporting requirements set forth in this rule.

5. Revised Descriptions of Supply, Use and Trade Activities. Based on comments received and the discussion presented elsewhere in Unit III.D., EPA modified the specific descriptions of supply, use, and trade activities to more accurately reflect the language of TSCA section 8(f) and the Agency's interpretation of the statutory mandate at TSCA section 8(b)(10)(C)(i). Thus, the Agency is requiring reporting of the following activities when intentionally undertaken to introduce mercury into supply, use, and trade in the United States with the purpose of obtaining an immediate or eventual commercial advantage:

• Import of mercury;

• Manufacture (other than import) of mercury;

• Import of a mercury-added product;

• Manufacture (other than import) of a mercury-added product; or

• Intentional use of mercury in a manufacturing process.

In addition, the following activities are part of supply, use, and trade of mercury:

• Distribution in commerce, including domestic sale or transfer, of mercury;

• Distribution in commerce, including domestic sale or transfer, of mercury-added products or products that result from the intentional use of mercury in a manufacturing process;

• Storage of mercury;

• Export of a mercury compound (unless specifically prohibited); or

• Export of mercury-added products or products that result from the intentional use of mercury in a manufacturing process.

As described in greater detail in Unit III.D., persons must first engage in the manufacture (including import) of mercury or mercury-added products or otherwise intentionally use mercury in a manufacturing process to be required to report to the mercury inventory.

TSCA section 8(b)(10)(D)(ii) directs the Agency to “coordinate the reporting . . . with the Interstate Mercury Education and Reduction Clearinghouse” to avoid duplication. Furthermore, TSCA section 8(a)(5)(a) states “[i]n carrying out [TSCA section 8], the Administrator shall, to the extent feasible . . . not require reporting which is unnecessary or duplicative.” The Agency seeks to avoid collecting data on mercury that would duplicate information already reported to existing state and federal programs, and to coordinate with and complement those reporting programs as much as possible. While developing this rule (Ref. 3), EPA reviewed four data collection systems applicable to supply, use, and trade of mercury (including mercury-added products and mercury used in manufacturing processes):

• The IMERC Mercury-added Products Database, an online reporting database managed by the Northeast Waste Management Officials' Association (NEWMOA), which provides publicly available, national data on mercury used in products;

• The TSCA section 8(a) Chemical Data Reporting rule, which collects manufacturing, processing, and use information on certain chemical substances manufactured (including imported) in the United States;

• The Toxics Release Inventory (TRI) program, which collects data on toxic chemical releases to air, water and land from industrial facilities and pollution prevention activities in the United States; and

• The U.S. International Trade Commission Interactive Trade DataWeb (USITC DataWeb), which provides U.S. international trade statistics and U.S. tariff data to the public.

After reviewing these reporting programs, EPA designed the reporting requirements in this rule to be least burdensome for reporters already familiar with IMERC, CDR, TRI, and USITC DataWeb protocols (Ref. 3). Therefore, the Agency is incorporating comparable reporting concepts and tools from each program, as well as not requiring reporting in certain instances to increase the efficacy while decreasing the burden to the greatest extent practicable for reporting to a national mercury inventory.

1. Reporting Requirements for Existing CDR and IMERC Reporters. The Agency received several comments related to persons who submit mercury-related information to the Chemical Data Reporting database or the IMERC Mercury-added Products Database. In regard to reporting requirements applicable to both CDR and IMERC reporters, two commenters identified discrepancies (e.g., non-alignment of reporting year/frequency and efforts to prohibit duplicative reporting) in the Agency's bifurcated reporting requirements for persons currently required to report to the IMERC Mercury-Added Products Database and under the CDR rule, and those who are not (Ref. 11; Ref. 12). Another commenter expressed concerns regarding the non-alignment of EPA and IMERC reporting years (Ref. 23). Some commenters argued that reporting such information to multiple systems would not be economically burdensome because the costs are relatively small and would not be duplicative because the reporting to different systems would occur in different years (Ref. 11; Ref. 12). Of particular concern to one commenter was a possible negative impact on the accuracy of the mercury inventory and the EPA's ability to make recommendations to reduce the use of mercury (Ref. 11). Conversely, two commenters supported the proposed approach to not require reporting from persons reporting comparable information to IMERC, although one commenter also supported alignment of the reporting years and requested that EPA codify a full exemption for manufacturers, including importers, that already report to IMERC (Ref. 17; Ref. 24). Finally, the Agency received comments recommending that EPA adopt IMERC's submission deadline for reporting (April 1, 2020 and every three years thereafter) (Ref. 9; Ref. 18; Ref. 23; Ref. 24). Such issues are discussed in greater detail in the Response to Comments document for this rule (Ref. 5).

As discussed in the proposed rule, EPA cited TSCA section 8(a)(5)(A) as a basis for avoiding the collection of data that duplicated information already reported to the four data collection systems applicable to the supply, use, and trade of mercury: IMERC, CDR, TRI, and USITC DataWeb (Ref. 3). The Agency considered multiple, existing reporting systems that gather comparable data related to mercury pursuant to statutory text (15 U.S.C. 2607(a)(5)(A)). EPA also considered provisions of TSCA section 8(a)(5) that direct the Agency to “minimize the cost of compliance with this section and the rules issued thereunder on small manufacturers and processors; and . . . apply any reporting obligations to those persons likely to have information relevant to the effective implementation of this subchapter” (15 U.S.C. 2607(a)(5)(B) and (C)). In regard to comments arguing that requiring reporting for comparable data in two different systems is not duplicative if the reporting occurs in different years, the Agency maintains that this is a duplication of effort and EPA does not agree with the commenters' argument that the addition or avoidance of burden is not significant if it is relatively small. The language at TSCA section 8(a)(5) directs the Agency avoid duplicative reporting and reduce burden “to the extent feasible.” Because EPA is able to obtain comparable data via EPA's CDR program or in coordination with IMERC, the Agency finds not requiring the reporting of overlapping reporting to the mercury inventory to be a feasible approach. To the extent that data elements may not align per differences in reporting years and frequency, the Agency does not view such discrepancies to be prohibitive of its ability to carry out statutory obligations at TSCA sections 8(b)(10)(B) and (C).

Based on comments received, the Agency is clarifying that a person who currently reports to CDR or IMERC is not categorically exempt from the mercury inventory reporting requirements set forth in this rule. Instead, the bifurcated reporting structure is designed to omit only those quantitative data elements already collected by CDR and IMERC to avoid duplication in the collection, calculation, verification, review, certification, reporting, and maintenance of records pursuant to TSCA section 8(a)(5). The Agency's goal is to create a “comprehensive inventory such that existing data gaps would be eliminated, where feasible [and] . . . complement amounts of quantitative mercury data already collected by, but without overlapping with, reporting requirements,” as well as “decrease the burden of reporting to the greatest extent practicable” (Ref. 3). These goals are guided by statutory mandates not only in TSCA section 8(b)(10), but also in TSCA section 8(a)(5). Thus, while recognizing that there is a non-alignment of CDR and IMERC reporting years, the Agency believes supplementing data reported through this rule with data from CDR and IMERC creates a totality of available data that will provide an adequate basis to observe long-term trends in mercury supply, use, and trade. As such, the Agency determined that requiring reporting for comparable data to two systems would be duplicative even if the CDR and IMERC data represent information from different years. Therefore, requiring duplicative data to be reported from reporters who also report to CDR and IMERC would result in additional burden and is unnecessary.

Finally, EPA understands the interest in aligning with IMERC's submission deadline. However, the statutorily mandated publication date for the mercury inventory was April 1, 2017 and every three years thereafter, which falls on IMERC's data submission date. EPA has a legal responsibility to publish on or before the date set forth in TSCA section 8(b)(10)(B), which means that EPA must publish the inventory on or before the day IMERC reporters must submit data to IMERC. While mindful of incongruities in reporting frequency and years, EPA believes that the reporting schedule and achieve this goal to the greatest extent practicable. As a result, the reporting requirements, including efforts to incorporate data collected by CDR and IMERC while avoiding overlap among CDR and IMERC data elements, will enhance its ability to collect and publish robust data on mercury supply, use, and trade in the United States (15 U.S.C. 2607(b)(10)(B)) and to “identify any manufacturing processes or products that intentionally add mercury; and . . . recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use” (15 U.S.C. 2607(b)(10)(C)).

2. Reporting Requirements for Products Regulated by Other Federal Agencies. One commenter requested that EPA not require reporting for uses of mercury regulated by other federal agencies (e.g., pharmaceuticals) (Ref. 13). The commenter cited drugs, as regulated by FDA, and animal vaccines, as regulated by the U.S. Department of Agriculture (USDA), and noted that FDA and USDA regulations already require reporting information regarding the use of mercury in these products and, therefore, should not be collected by EPA.

The Agency disagrees. While these agencies may regulate mercury, they do not collect the data necessary to support the national inventory required by TSCA section 8(b)(10). As such, EPA does not view the reporting requirements to be duplicative of the requirements highlighted by the commenter and, therefore, is not exempting reporting of such uses of mercury.

TSCA section 8(b)(10)(D)(i) states “any person who manufactures mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process shall make periodic reports to the Administrator.” As explained in Unit III.B., EPA interprets the statutory text at TSCA sections 8(b)(10)(B), 8(b)(10)(D)(i), and 8(b)(10)(D)(iii) as applying to intentional acts that introduce mercury into supply, use, and trade in the United States. EPA reads TSCA section 8(b)(10)(D)(i) to narrow potential reporters to persons who first manufacture mercury or mercury-added products or otherwise intentionally use mercury in a manufacturing process prior to other activities such as storage, distribution, and export. Descriptions of persons who must report under this rule and tables illustrating applicable reporting requirements are detailed in Unit III.D.1.

1. Persons Who Must Report. In addition to persons described in the following subsections and tables, EPA will provide examples of persons who will and will not be required to report under this regulation in reporting instructions and other support materials.

a. Persons Who Manufacture (Including Import) Mercury. As described in Unit III.C., the Agency sought to decrease the burden of reporting to the greatest extent practicable by, among other things, complementing without overlapping existing reporting requirements related to mercury and mercury-added products. As such, persons who manufacture (including import) in excess of 2,500 lbs. for elemental mercury or in excess of 25,000 lbs. for mercury compounds for a specific reporting year are not required to report amounts manufactured (including imported) or exported that are already reported per the CDR rule. Such persons, however, are required to provide quantitative data on storage and distribution in commerce, as well as qualitative and contextual information related to all applicable data elements under the proposed rule (see Table 3. Information to Report—Mercury). In further efforts to decrease reporting burdens, the Agency will provide pre-selected lists of mercury compounds to streamline reporting requirements as much as possible.

b. Persons Who Manufacture or Import Mercury-added Products. EPA proposed to require reporting for the manufacture (including import) of mercury-added products, except for: (1) Import of an assembled product that contains mercury solely within a component that is a mercury-added product; and (2) domestic manufacture of an assembled product unless the person first manufactures or imports the mercury-added product that can be used as a component. The Agency determined that this distinction was appropriate after reviewing the data reported to the IMERC Mercury-Added Products Database and comparing the companies that reported national sales data for individual mercury-added products (including components), as well as items that contain a component that is a mercury-added product (Ref. 25). For example, the IMERC database lists a product name (e.g., flat panel display, projection TV, make and model of vehicle) and component (e.g., lamp, bulb). In the proposed rule, the Agency cited concerns that requiring reporting for assembled products where mercury is present solely within a previously manufactured component would result in double counting and thereby could negatively affect the reliability of future mercury inventory updates, as well as the potential to create undue burden for certain importers (Ref. 3). The Agency based this determination on its emphasis on the intentional insertion of mercury into a product as the introduction of mercury via a mercury-added product into supply, use, and trade in the United States. For imported assembled products that contain a component that is a mercury-added product, the Agency also considered the degree to which certain importers would know the mercury content, if any, of the assembled products they import, as well as the additional breadth, and therefore burden, that including such imports at this time would entail. The Agency notes that its specific reporting requirements (see Unit III.D.4.b.) include mercury-added products that are likely to be used as components in assembled products. As discussed in this section, EPA's combined general, specific, and contextual reporting requirements are designed not only to provide information that are expected to identify mercury-added products that are components within assembled products, but also to avoid unnecessary, duplicative, and burdensome reporting as much as feasible (15 U.S.C. 2607(a)(5)).

The Agency received comments related to instances where mercury is present in a product as a component that is a mercury-added product. Some commenters requested that the Agency require reporting for the manufacture (including import) of such products (Ref. 11; Ref. 12; Ref. 20; Ref. 23), while other commenters supported the proposed approach to not require such reporting (e.g., advanced manufacturing equipment that contains components that are mercury-added products and supply chains where the mercury-added product may be incorporated into several iterations of other components before being used in a final assembled product) (Ref. 9; Ref. 13; Ref. 17; Ref. 18; Ref. 26). Commenters requesting that the Agency require reporting for products that contain a component that is a mercury-added product believe that the proposed approach would underestimate mercury use in products and hamper EPA's ability to fill data gaps and make further recommendations for mercury reductions. The commenters also argued that not requiring reporting for products that contain mercury-added components is neither authorized by nor consistent with the purpose of the statute and is inconsistent with IMERC and Minamata Convention definitions of “mercury-added product.” Such issues are discussed in greater detail in the Response to Comments document for this rule (Ref. 5).

The statutory text describes who must report to the mercury inventory: “any person who manufactures mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process . . . at such time and including such information as the Administrator shall determine by rule” (15 U.S.C. 2607(b)(10)(D)(i)). In addition to the development of the inventory itself (15 U.S.C. 2607(b)(10)(B)), the Agency interprets the ultimate purpose of the inventory as identifying manufacturing processes or products that intentionally add mercury and recommending actions to achieve further reductions in mercury use (15 U.S.C. 2607(b)(10)(C)). When developing this rule, the Agency considered statutory requirements applicable to all of TSCA section 8: Prohibition of “unnecessary or duplicative” reporting (15 U.S.C. 2607(a)(5)(A)) and minimization of the cost of compliance for small manufacturers and processors (15 U.S.C. 2607(a)(5)(B)). Thus, EPA will carry out an inventory and require reporting consistent with the statute that avoids duplication of information already reported to existing state and federal programs and avoids unnecessary reporting burdens.

TSCA section 8(b)(10)(C)(i) mandates that in carrying out the inventory, EPA must “identify any manufacturing processes or products that intentionally add mercury.” Some commenters suggested that the statute requires EPA to collect information on all products that contain mercury, including those that contain mercury only because they include a mercury-added product as a component. EPA interprets the statutory text to only require the identification of the types of products where mercury is intentionally added such that EPA would be able to make recommendations for reducing such use. Based on its review of the information available in the IMERC database (Ref. 25), EPA believes that it will be able to identify the various types of mercury-added products where mercury is intentionally added (e.g., mercury-added lamps) without requiring the reporting on the manufacture of more complex products where mercury is contained within a component (e.g., vehicle containing mercury-added lamp in headlight).

In identifying products where mercury is intentionally added, the Agency interprets the statute as giving it discretion over what information it may require to be reported, including from certain manufacturers and types of products. TSCA section 8(b)(10)(D)(i) requires periodic reports to assist in the preparation of the inventory “at such time and including such information as the Administrator shall determine by rule.” EPA has determined that fulfilling the mandate to identify products that intentionally add mercury and make recommendations to achieve reduction in mercury use does not require reporting for assembled products, as EPA is not convinced that all products that contain a component that is a mercury-added product should be viewed as “products that intentionally add mercury.” For example, a domestic automobile manufacturer may not know that a component of the car contains mercury and arguably, therefore, has not intentionally added mercury to the car for the purposes of TSCA section 8(b)(10)(C)(i). Similarly, an automobile importer may not know that a component of the car contains mercury. Since the import is the manufacture for purposes of TSCA, the product arguably is not a product to which mercury has intentionally been added per TSCA section 8(b)(1)(C)(i) for this reason as well.

The addition of a mercury-added product as a component to a more complex, assembled product does not change the nature or the quantity of mercury within the component, and, for a product assembled domestically, would result in the double counting of that specific quantity of mercury since EPA would receive reports both on the manufacture of the component and the manufacture of the assembled product. Even without receiving reports from manufacturers of assembled products, EPA can glean information about types of mercury-added products from the reports by manufacturers/importers of mercury-added products, which can be used as components. The information reported on NAICS codes by a person who manufactures (or imports) mercury-added products that can be used as components (e.g., mercury-added lamp), can be used to help the Agency identify the types of domestically manufactured assembled products (e.g., light truck and utility vehicle manufacturing (NAICS code 336112)) likely to contain components that are mercury-added products. Thus, the full set of reporting requirements work together to account for and describe mercury supply, use, and trade in the United States, while avoiding unnecessary or duplicative reporting.

With respect to imports, based on the Agency's review of the information available in the IMERC database (Ref. 25) and its rationale set forth in the preceding paragraph, EPA believes that the reporting requirements similarly will enable it to identify the types of mercury-added products imported into the United States (i.e., both mercury-added products that can be used as components and those assembled products that contain a mercury-added component). Reporting is required for the import of mercury-added products that can be used as components in assembled products. This will give EPA a clearer understanding of the types of components that exist along with information on the quantity of mercury in those components. While reporting is not required on the import of assembled products that contain mercury-added components, the reporting requirements and data collected from manufacturers/importers of mercury products that can be used as components are expected to help alleviate the uncertainties associated with the types of imported assembled products that may contain such components. For example, the Agency can use NAICS codes reported for domestically-manufactured assembled products to better understand the specific types of imported assembled products that may contain mercury within a component part. In this context, the reporting requirements can enhance the understanding of mercury supply, use, and trade in the United States while helping to minimize the cost of compliance for importers of assembled products.

The baseline direction from Congress was to identify products that intentionally add mercury. EPA concludes this is best done, at this stage, by requiring reporting only from the manufacturers who initially insert mercury into products and importers of mercury-added products that may be used as components in assembled products, but not assembled products themselves. EPA is not requiring a reporter who manufactures (including imports) mercury components to identify whether or how the mercury-added product is used as a component; instead, EPA intends to use NAICS codes to identify such uses. By design, the general reporting requirements first identify the total quantity of mercury in products manufactured (other than imported), distributed in commerce, or exported for a reporting year (i.e., prioritize reporting on the amounts of mercury in supply, use, and trade activities (see Unit III.B.5.)). Thereafter, specific and contextual reporting requirements (e.g., the category/sub-category of mercury-added products and NAICS code(s) for manufacturing categories, and countries of origin and destination for imports and exports) further illustrate how reported quantities of mercury move through supply, use, and trade. EPA believes this is appropriate because it can collect quantitative data from persons who report for domestic manufacture and import of mercury-added products that can be used as components, and use contextual (i.e., qualitative) reporting to better understand how those components are incorporated into assembled products. The Agency could, as appropriate, use such domestic quantitative data in concert with other available data on imported assembled products in a specific product category to draw comparisons and, should they be relevant, focus recommendations for reducing mercury for both domestic and foreign assembled products. Even if this approach is not able to directly account for amounts of mercury within the mercury-added products that are components of assembled products, the Agency determined that its ability to identify categories—and potentially more specific types—of assembled products will allow it to satisfy mandates at TSCA sections 8(b)(10)(B) and (C). While a reporter would not be required to identify whether or how the mercury-added product is used as a component, the reporting requirements should provide ample information to shed light on the use of the mercury, to satisfy the mandate to identify products that intentionally add mercury, including components being manufactured domestically and imported, and allow EPA to “recommend actions [. . .] to achieve further reductions in mercury use” including recommendations related to products containing mercury components (15 U.S.C. 2607(b)(10)(C)(ii)).

EPA is mindful that the global implementation of the Minamata Convention should result in a decrease in the manufacture, import, and export of many mercury-added products that are commonly used as components in products, discourage the use of such products as components, and generally increase the knowledge of manufacturers, importers, exporters, and consumers regarding the types of assembled products that contain components that are mercury-added products. EPA will evaluate whether this expected downward trend comes to fruition by monitoring trends in the importation of mercury components and its described approach to better understand the types of domestically-manufactured and imported assembled products that may contain mercury in a component part. As necessary, the Agency will use such data to consider modifying reporting requirements or to recommend appropriate actions to reduce the use of mercury.

As described in Unit III.C., persons who report to IMERC identify the amount of mercury sold in mercury-added products that may be manufactured, distributed, or imported. The Agency considers the amount of mercury reported to IMERC as sold to be comparable to the amount of mercury to be reported under the rule as distributed in commerce. As such, EPA is not requiring persons who report to IMERC to report amounts of mercury distributed in commerce in mercury-added products. However, those persons must report quantitative and qualitative information for other applicable data elements (e.g., manufacture, import, and export of mercury-added products). Such persons are also required to report contextual information applicable to amounts, if any, of mercury in mercury-added products manufactured, imported, distributed in commerce, or exported (see Table 4. Information to Report—Mercury-Added Products). In further efforts to decrease reporting burdens, the Agency will provide pre-selected lists of mercury-added product categories to streamline reporting requirements as much as possible.

c. Persons Who Otherwise Intentionally Use Mercury in a Manufacturing Process. As described in Unit III.B., TSCA section 8(b)(10)(D)(i) includes persons who intentionally use mercury in a manufacturing process amongst those who must report. The Agency believes that persons who otherwise intentionally use mercury in a manufacturing process may currently report to existing data collection programs in the United States, but because the reporting requirements for the mercury inventory differ from those programs, EPA does not view the reporting requirements to be duplicative or unnecessary. As such, the general, specific, and contextual reporting requirements are intended to provide a complete picture of uses for which little information is currently available (see Table 5. Information to Report—Otherwise Intentional Use of Mercury in a Manufacturing Process). As discussed in Unit III.D.1.b., the combination of general, specific, and contextual reporting requirements will assist the Agency to adequately “identify any processes . . . that intentionally add mercury” 15 U.S.C. 2607 8(b)(10)(C)(i). In further efforts to decrease reporting burdens, the Agency will provide pre-selected lists of manufacturing processes and attendant uses of mercury to streamline reporting requirements as much as possible.

2. Persons Not Required to Report. The Agency received various comments requesting clarification of persons who would not be required to report to the mercury inventory.

i. Persons Who Do Not First Manufacture, Import, or Otherwise Intentionally Use Mercury. EPA determined that persons who only trade (e.g., brokering, selling wholesale, shipping, warehousing, repackaging, or retail sale), but do not manufacture or import mercury or mercury-added products, should not be subject to the proposed reporting requirements (Ref. 3). Aside from its reading of TSCA section 8(b)(10)(D)(i), the Agency is concerned that requiring reporting from such entities risks: (1) Double counting of mercury as it moves through supply chains; and (2) undue burden or liability on entities that are not likely to be aware if or how mercury is present in products that they trade. Several commenters requested clarifications regarding this determination, including modifications to ensure that the exclusion will not result in transactions involving mercury that go unreported within the context of supply, use, and trade and to prevent duplicative reporting by focusing on products traded instead of the persons engaged in trade (Ref. 11; Ref. 12). Another commenter suggested that such an exemption should not apply to any persons that would be defined as a manufacturer, importer, or exporter (Ref. 12).

EPA interprets the statutory text on who should report at 15 U.S.C. 2607(b)(10)(D)(i) as applicable to “intentional acts that introduce mercury into supply, use, and trade in the United States.” EPA specified in the proposed rule that this applies to “persons who first manufacture mercury or mercury-added products or otherwise intentionally use mercury in a manufacturing process” (emphasis added) (Ref. 3). EPA recognizes that certain transactions (e.g., resale, incorporation of a purchased component that is a mercury-added product into equipment) may not be captured with this structure. However, the Agency believes that focusing on the initial introduction of mercury to the market prevents the possibility of double counting or undue burden (see 15 U.S.C. 2607(a)(5)(A and B)) which could occur if entities that do not first introduce mercury to supply, use, and trade were required to report to the inventory. EPA revised the regulatory text in the final rule to improve clarity.

ii. Persons Who Generate, Handle, or Manage Mercury-containing Waste. Persons “engaged in the generation, handling, or management of mercury-containing waste, unless that person manufactures or recovers mercury in the management of that waste” are not required to report to the mercury inventory (15 U.S.C. 2607(b)(10)(D)(iii)). EPA interprets the statute here to mean for immediate or eventual commercial purposes (see also “Mercury Handled as Waste, Including Elemental Mercury Destined for Long-Term Storage” in Unit III.B.2). EPA will provide examples of such persons in reporting instructions and other support materials.

iii. Persons Who Manufacture Mercury as an Impurity. Persons who manufacture (including import) mercury as an impurity are not required to report to the mercury inventory (see also “Impurities Present in a Final Product” in Unit III.B.2.). EPA will provide examples of such persons in reporting instructions and other support materials.

iv. Persons Engaged in Activities Involving Mercury Not with the Purpose of Obtaining an Immediate or Eventual Commercial Advantage. Persons who do not manufacture (including import) mercury or mercury-added products or otherwise intentionally use mercury in a manufacturing process with the purpose of obtaining an immediate or eventual commercial advantage are not required to report to the mercury inventory (see also “Commercial Purposes” in Unit III.B.2.). In addition, EPA will provide examples of such persons in reporting instructions and other support materials.

v. Manufacture or Import of a Product that Contains a Component that is a Mercury-added Product. EPA maintains that requiring reporting on the use of a mercury-added product as a component in the manufacture (other than import) of another product for a person who did not first manufacture (other than import) the mercury-added product would constitute double counting. The Agency's rationale is explained in detail in Unit III.D.1.b. To the extent that the Agency is not requiring persons who import products that contain a component that is a mercury-added product to report, the reporting requirements do not prevent the identification of such products. The decision to not require reporting on such products also will not prevent the Agency from making recommendations “to achieve further reductions in mercury use” (15 U.S.C. 2607(b)(10)(C)(ii)). In order to clarify and streamline reporting requirements related to products that contain a component that is a mercury-added product, the Agency modified the structure of the regulatory text in this final rule. In addition, EPA will provide examples of such persons in reporting instructions and other support materials. Those materials will be available on the EPA website six months prior to the reporting deadline.

3. Reporting Units and Threshold. As discussed in Unit III.C., the Agency compared existing state and federal reporting databases applicable to the supply, use, and trade of mercury. EPA conducted this review in an attempt not only to eliminate duplicative reporting requirements, but also to incorporate applicable features of such programs, including the consideration of respective reporting thresholds.

The statutory text at TSCA section 8(b)(10) is silent on a reporting threshold; however, TSCA section 8(b)(10)(C) directs the Agency to “identify any manufacturing processes or products that intentionally add mercury.” Based on: (1) The interpretation that the direction to “identify any” applies to any amount of mercury in a manufacturing process or product; and (2) concerns related to the potential adverse effects on human health and the environment resulting from releases of mercury, EPA proposed to apply the reporting requirements to any person who manufactures (including imports) mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process regardless of the amount of mercury at issue (Ref. 3).

The Agency received comments in support of the proposal to not establish a de minimis threshold for reporting (Ref. 11; Ref. 12; Ref. 23), as well as comments suggesting EPA establish minimum units for which persons should report and a threshold under which persons should not report to the mercury inventory (Ref. 15; Ref. 21; Ref. 24; Ref. 26; Ref. 27). Specific recommendations from commenters included: a minimum reportable value of 1 pound (Ref. 27), parts per million amounts for impurities (Ref. 15), and less than 1 kilogram for an annual total for certain activities (Ref. 28). Commenters also expressed concerns with the reasonableness and burden associated with being able to detect, as well as calculate annual totals, for trace amounts of mercury in certain products and processes (Ref. 15; Ref. 24). Finally, commenters recommended that reporting thresholds be established in SI/metric units due to prevalent market practices for identifying mercury content in products and for greater consistency with IMERC reporting requirements (Ref. 18; Ref. 23).

EPA appreciates the suggestion to offer multiple/alternative units of measurement for reporting amounts of mercury. However, EPA believes that the pound (lb.) as a unit of measurement is the best choice based on it being a unit familiar to most potential reporters and consistent with the reporting provided by IMERC, CDR, and TRI. The reporting application is designed such that persons seeking to report amounts equal to or less than one pound during a reporting year would be directed to round amounts of mercury to “1 lb.”

In regard to a reporting threshold, EPA understands that certain persons may use small amounts of mercury over the course of a reporting year, but believes that it is not appropriate to establish a de minimis threshold. As explained in the proposed rule (Ref. 3), this decision is based on a review of statutory text at 15 U.S.C. 2607(b)(10)(C), which EPA interprets to require reporting for any amount of mercury. However, to address the concerns expressed, and as an alternative to a reporting threshold, EPA accepts the suggestions of commenters to offer a minimum unit. Any person that manufactures (including imports) mercury or mercury-added products or any person that otherwise intentionally uses mercury in a manufacturing process in an amount equal to or less than one pound during a reporting year would be directed to round amounts of mercury to “1 lb.” Because the Agency is not requiring reporting for impurities (see also “Impurities Present in a Final Product” in Unit III.B.2.), EPA believes the suggested parts per million unit of measurement associated with impurities is no longer applicable. In instances where persons subject to the reporting requirements may be using mercury in small amounts on a per unit basis, the Agency will provide additional examples in reporting instructions and support materials designed to assist reporters. Those materials will be available on the EPA website six months prior to the reporting deadline.

4. Reporting Requirements. TSCA section 8(b)(10)(B) sets the general scope of the inventory as the “mercury supply, use, and trade in the United States.” EPA interprets the core elements to be covered in the mercury inventory to be the amount of mercury used in the activities within the mercury market described in Unit III.B. (i.e., manufacture, import, export, storage, distribution in commerce, and otherwise intentional use of mercury in a manufacturing process). EPA also determined that, for certain data elements, requiring reporting of more specific information would help to better contextualize reported quantities of mercury used in domestic and global supply, use, and trade. The general, specific, and contextual reporting requirements are described in this section.

a. General Reporting Requirements. EPA considers “supply” to include manufacture and storage, “use” to include otherwise intentional use of mercury in a manufacturing process, and “trade” to include import, export, and distribution in commerce. The Agency determined that accounting for such activities is necessary to fulfill statutory mandates at TSCA sections 8(b)(10)(B) and (C). Therefore, for persons required to report (as described in Unit III.D.), EPA is requiring reporting quantitative data for mercury, mercury-added products, and otherwise intentional use of mercury in a manufacturing process (as qualified from existing terms as discussed in Unit III.B.) as follows:

i. Importers of mercury: Amount of mercury imported per year (lbs.); Amount of mercury stored per year (lbs.); Amount of mercury distributed in commerce per year (lbs.); Amount of mercury exported per year (lbs.).

ii. Manufacturers (other than importers) of mercury: Amount of mercury manufactured (other than imported) per year (lbs.); Amount of mercury stored per year (lbs.); Amount of mercury distributed in commerce per year (lbs.). Amount of mercury exported per year (lbs.).

iii. Importers of a mercury-added product: Amount of mercury in imported products per year (lbs.); Amount of mercury in products distributed in domestic commerce per year (lbs.); Amount of mercury in exported products per year (lbs.).

iv. Manufacturers (other than importers) of a mercury-added product: Amount of mercury in manufactured (other than imported) products per year (lbs.); Amount of mercury in products distributed in commerce per year (lbs.); Amount of mercury in exported products per year (lbs.).

v. Persons who intentionally use mercury in manufacturing processes: Amount of mercury used in a manufacturing process per year (lbs.); Amount of mercury stored per year (lbs.).

EPA understands that certain persons may report for multiple activities associated with supply, use, and trade of mercury. For example, a person may import mercury and manufacture mercury-added products. As such, the Agency is designing the quantitative data elements for reporting requirements such that a person could report both as an “importer of mercury” and “manufacturer of mercury-added products,” but only report for the specific activity in which they engage. The Agency expects there may be certain persons engaged in the supply, use, and trade of mercury who might not be accounted for in the inventory, but EPA views this omission of prospective reporters as an opportunity to limit undue burden and avoid double counting. Thus, the Agency is limiting the persons who must report at TSCA section 8(b)(10)(D)(i) to only those persons described in Unit III.D.

b. Specific Reporting Requirements. To better understand the categories of mercury-added products and otherwise intentional use of mercury in a manufacturing process, the Agency is requiring reporters to identify the specific categories and subcategories of products and functional uses for which quantitative data is reported. The Agency believes this is an appropriate interpretation of the direction to “identify any manufacturing processes or products that intentionally add mercury,” which, in turn, could inform how to “recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use” (15 U.S.C. 2607(b)(10)(C)). Persons required to report must provide the total amount of mercury used during the reporting year in pounds for general reporting activities associated with supply, use, and trade, rather than per category and subcategory. EPA based this decision on issues concerning burden and confidential business information that could be created by reporting quantitative information for increasingly specific categories and subcategories.

i. Mercury-added products. Based on the current knowledge of mercury-added products available in the marketplace, including skin products manufactured abroad and sold illegally in the United States (Ref. 29), EPA is finalizing the following list of categories and subcategories of mercury-added products:

• Batteries: Button cell, silver; Button cell, zinc-air; Button cell, alkaline; Stacked button cell batteries; Manganese oxide; Silver oxide; Mercuric oxide, non-button cell; Button cell, mercuric oxide; Button cell, zinc carbon; Other (specify).

• Dental amalgam.

• Formulated products (includes uses in cosmetics, pesticides, and laboratory chemicals): Skin-lightening creams; Lotions; Soaps and sanitizers; Topical antiseptics; Bath oils and salts; Preservatives (e.g., for use in vaccines and eye-area cosmetics when no preservative alternatives are available); Pharmaceuticals (including prescription and over-the-counter drug products); Cleaning products (not registered as pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act); Pesticides; Paints; Dyes; Reagents (e.g., catalysts, buffers, fixatives); Other (specify).

• Lighting, lamps, bulbs: Linear fluorescent; Compact fluorescent; U-tube and circular fluorescent; Cold cathode fluorescent; External electrode fluorescent; Mercury vapor; Metal halide; High pressure sodium; Mercury short arc; Neon; Other (specify).

• Measuring instruments: Barometer; Fever thermometer; Flow meter; Hydrometer; Hygrometer/psychrometer; Manometer; Non-fever thermometer; Pyrometer; Sphygmomanometer; Other (specify).

• Pump seals.

• Switches, relays, sensors, valves: Tilt switch; Vibration switch; Float switch; Pressure switch; Temperature switch; Displacement relay; Wetted reed relay; Contact relay; Flame sensor; Thermostat; Other (specify).

• Miscellaneous mercury-added products: Wheel weights; Wheel rotation balancers/stabilizers; Firearm recoil suppressors; Carburetor synchronizers; Joint support/shock absorption bands; Other (specify).

ii. Intentional mercury use in manufacturing processes. EPA received comment on the proposed rule and has refined the following manufacturing processes for which mercury may be intentionally used: Chlorine production (e.g., mercury-cell chlor-alkali process); Acetaldehyde production; Sodium/potassium methylate/ethylate production; Polyurethane/plastic production; Other (specify). Based on public comment, EPA has also refined the following list of uses of mercury in the manufacturing processes: Catalyst; Cathode; Reactant; Reagent; Other (specify).

Two commenters proposed revisions to specific information to be collected applicable to the intentional use of mercury in a manufacturing process (Ref. 15; Ref. 28). One commenter noted that in a mercury cell electrolyzer, the mercury serves solely as the cathode in the electrolysis process which breaks down the sodium chloride molecule and recommended that EPA should therefore add the term “cathode” to the Table 4 list as one of the selections (Ref. 15). Another commenter requested the removal of “[v]inyl chloride monomer production” as a specific manufacturing process because the vinyl chloride monomer (VCM) process is no longer used and is not expected to be used, by any manufacturer in the United States and that all VCM producers utilize ethylene, rather than acetylene, as the feedstock, which does not require any use of mercury (Ref. 28).

The Agency appreciates and agrees with these comments. EPA amended the regulatory text for reporting requirements for specific data to add the term “Cathode” as an option to identify how mercury is used in manufacturing processes and to remove the term “Vinyl chloride monomer production” from the options of categories of manufacturing processes for which mercury may be intentionally used.

c. Contextual Reporting Requirements. Within certain sectors of the mercury market, the Agency determined that additional data requirements are important to provide context to the quantitative data reported. To fully understand the supply, use, and trade of mercury in the United States, EPA is finalizing the following reporting requirements:

i. For imports of mercury or mercury-added products: Country of origin.

ii. For mercury or mercury-added products distributed in commerce: Identify the applicable purchasing or receiving industry sectors via NAICS codes.

iii. For exported mercury or mercury-added products: Destination country.

The Agency determined that the combination of general, specific, and contextual reporting requirements provides for the body of information required to fulfill statutory mandates of TSCA sections 8(b)(10)(B) and (C). As much as possible, the Agency designed all requirements to be answered only where a reporter engages in the specific activity from the inclusive list of options. In fact, EPA believes that it is unlikely that the typical reporter would be engaged in and, as a result, be required to respond to all, or even many, of the reporting requirements.

Aside from issue-specific discussions of reporting requirements presented elsewhere in Unit III.D., commenters generally supported the Agency's proposed general, specific, and contextual reporting requirements, emphasized the utility requiring reporting of NAICS to help track mercury supply and use flows, and noted the consistency and comprehensiveness of EPA mercury-added product categories and subcategories. The Agency appreciates this feedback from potentially affected persons.

5. Consideration of Small Entities. Based on EPA's economic analysis of this final rule (Ref. 6), approximately 40 percent of the respondents will be small entities. However, small businesses are not exempt from reporting requirements because, unlike the exemption for small manufacturers and processors provided under TSCA sections 8(a)(1)(A) and (B), reporting and recordkeeping requirements associated with TSCA section 8(b) are applicable to all affected entities. EPA requested public comment on what kinds of information would be particularly important to address for small entities (e.g., outreach and webinars for small businesses to introduce the online reporting environment and application, explain requirements, and offer Q&A and other support) (Ref. 3).

The Agency received a comment related to the EPA's estimation of costs and burdens for the proposed rule (Ref. 27), which expressed concerns that initial estimates may be low given the scope of products, processes, and other information that EPA proposed to require (Ref. 27). EPA prepared the economic analysis using the best available methods, consistent with EPA's Guidelines for Preparing Economic Analyses (see https://www.epa.gov/environmental-economics/guidelines-preparing-economic-analyses). While individual reporters may experience costs either higher or lower than those estimated in the analysis, the Agency believes that the average costs for the categories of reporters described are well represented.

The Agency also received a comment related to the potential burden to small businesses (Ref. 30), which expressed concerns about how the estimated initial and subsequent annual costs may impose a major burden for a small manufacturer, particularly when added to other regulatory costs. EPA intends to minimize the burden on all respondents, including small entities, as much as possible. The Agency will develop reporting instructions tailored to small entities who will be required to comply with the reporting requirements. EPA expects to conduct outreach and webinars for small businesses to introduce the reporting database, explain requirements, and offer Q&A and other support. Those materials will be available on the EPA website six months prior to the reporting deadline. Under TSCA section 26(d), EPA also provides specialized assistance to respondents, particularly to small entities, including technical and other non-financial assistance to manufacturers (including importers) and processors of chemical substances. EPA's TSCA Hotline assists small businesses complying with TSCA rules and provides various materials such as copies of Federal Register notices, advisories, and other information upon request. Contact information for the TSCA Hotline is listed under FOR FURTHER INFORMATION CONTACT.

TSCA section 8(b)(10)(B) sets the date for publication of initial and subsequent, triennial iterations of the mercury inventory to commence on April 1, 2017. Therefore, EPA expects to publish the first mercury inventory supported by the finalized reporting requirements by April 1, 2020 and every three years thereafter.

TSCA section 8(b)(10)(D) provides the authority to promulgate this rule to assist in the preparation of the triennial inventory publication, but TSCA offers no guidance on the frequency of collection or reporting deadline. To minimize reporting obligations, the Agency compared the respective collection frequencies and reporting deadlines for IMERC, the CDR rule, and the TRI program to when EPA is required to publish the mercury inventory. TSCA section 8(b)(10)(B) sets a publication date for the mercury inventory that falls on the reporting deadline for IMERC: April 1 in a triennial cycle starting in April 2017. Data collected under the CDR rule is submitted to the Agency on a quadrennial cycle; the next reporting cycle will occur from 2016-2019, with a reporting deadline of September 2020. The TRI program collects and publishes data on an annual cycle with a reporting deadline of July 1 of each year.

Based on such considerations, the Agency determined that coinciding with the triennial IMERC frequency of collection is appropriate given the mercury inventory publication schedule is also triennial. The Agency is setting the mercury inventory reporting deadline to coincide with the TRI program deadline to align with a date with which certain, potential reporters might already be familiar. Therefore, EPA is establishing a July 1st reporting deadline for 2019 and every three years thereafter. Data submitted should cover only the calendar year preceding the year in which the reporting deadline occurs (e.g., data for calendar year January 1 to December 31, 2018 are reported on or before July 1, 2019).

Consistent with the triennial reporting and publication cycle for the mercury inventory, EPA is requiring that each person who is subject to the reporting requirements must retain records that document any information reported to EPA. Records relevant to a reporting year must be retained for a period of 3 years beginning on the last day of the reporting year. Submitters are encouraged to retain their records longer than 3 years to ensure that past records are available as a reference when new submissions are being generated.

Reporters to the information collection of this rule may claim that their submitted information is CBI per statutory provisions for CBI under TSCA section 14.

The Agency received several comments concerning CBI, including suggestions to allow reporting in ranges and not demarcating specific amounts of mercury in exports going to specific countries (Ref. 27), as well as limiting reporting to a total amount of mercury used in a year (as opposed to specific amounts in import, export, manufacture, and other activities) (Ref. 15; Ref. 24; Ref. 28) to obviate the potential for persons to elect to claim data as CBI. Commenters were particularly concerned where reporting by a few or only a single facility engaged in a particular manufacturing process could allow competitors to calculate proprietary information. Other commenters requested an allowance for trade associations to collectively submit information on behalf of their members, which expressed a preference for collective reporting to protect against the release of proprietary sales data and other CBI (Ref. 9; Ref. 18).

EPA's mercury reporting application will allow multiple roles in creating, certifying, and submitting data. However, to maintain the alignment of general, specific, and contextual reporting requirements, EPA requires that separate reports be filed for each person/company (i.e., not submitted in aggregate if an agent assists multiple persons/companies to develop its report). In addition, the reporting application is designed as a tool for data collection only and will accept CBI claims submitted in accordance with TSCA section 14. Unlike information provided to IMERC, CDR, and TRI, the data received in support of the mercury inventory will not be publicly accessible in an online database. EPA intends to use these data to fulfill the statutory requirements to publish an inventory (15 U.S.C. 2607(b)(10)(B)) and make required identifications and recommendations related to mercury use (15 U.S.C. 2607(b)(10)(C)). EPA does not foresee receiving and handling such information as CBI as a potential hindrance to Agency processes. As necessary, EPA will follow established publication policies to aggregate data for public release and will not compromise confidential business information.

As set forth in the proposed rule, the Agency determined that mandatory electronic reporting would: (1) Streamline the reporting process and reduce the administrative costs associated with information submission and recordkeeping; (2) eliminate paper-based submissions as part of broader government efforts to move to modern, electronic methods of information gathering; (3) allow for more efficient data transmittal and a reduction in errors with the built-in validation procedures; and (4) reduce the reporting burden for submitters by reducing the cost and time required to review. EPA is requiring electronic reporting of the mercury inventory data, using an Agency-provided, web-based reporting software to submit mercury inventory reports through the internet to EPA's Central Data Exchange (CDX). CDX provides the capability for submitters to access their data through the use of web services. For more information about CDX, go to http://epa.gov/cdx.

The Agency received comments related to the proposal to require electronic reporting, which suggested that EPA should be prepared to provide additional assistance to companies that may be challenged by an electronic reporting system (Ref. 11; Ref. 23). The Agency appreciates these comments and will develop reporting instructions and support materials to assist with reporting to the mercury inventory. Those materials will be available on the EPA website six months prior to the reporting deadline. In addition, the EPA CDX maintains a helpdesk contract to provide support for CDX users.

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

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). Any changes made in response to OMB recommendations have been documented in the docket for this action.

This action is subject to the requirements for regulatory actions specified in Executive Order 13771 (82 FR 9339, February 3, 2017). EPA prepared an analysis of the estimated costs and benefits associated with this action. This analysis, “Economic Analysis for the Reporting Requirements for the TSCA Mercury Inventory” (Economic Analysis, Ref. 6), is available in the docket and is summarized in Unit I.E.

The information collection activities in this rule have been submitted for approval to OMB under the PRA, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2567.02 and OMB Control No. 2070-0207 (Ref. 31). You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.

The reporting requirements identified in the final rule would provide EPA with information necessary to prepare and periodically update an inventory of mercury supply, use, and trade in the United States, as required by TSCA section 8(b)(10)(D). These reporting requirements would help the Agency to prepare subsequent, triennial publications of the inventory, as well as to carry out the requirement of TSCA section 8(b)(10)(C) to identify any manufacturing processes or products that intentionally add mercury and recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use. EPA intends to use information collected under the rule to assist in efforts to reduce the use of mercury in products and processes and to facilitate reporting on implementation of the Minamata Convention by the United States. Respondents may claim some of the information reported to EPA under the final rule as CBI under TSCA section 14. TSCA section 14(c) requires a supporting statement and certification for confidentiality claims asserted after June 22, 2016.

EPA estimated total burden and costs to industry associated with the information collection activities in the final rule over the first three years after its promulgation (Ref. 6). For the 750 companies anticipated to be subject to the reporting requirements, the average per respondent burden hours for Year 1 (of a triennial cycle for submitting information) was estimated to be 96.76 hours (Ref. 6). Years 2 and 3 are not data collection years, so there is no cost associated with the rule during these years (Ref. 6). Therefore, the average for total burden hours per the three-year reporting cycle is 32.25 hours per year (Ref. 6).

Respondents/affected entities: Manufacturers, importers, and processors of mercury.

Respondent's obligation to respond: Mandatory (15 U.S.C. 2607(b)(10)(D)).

Estimated number of respondents: 750.

Frequency of response: Triennially.

Total estimated annual burden: 24,189 hours (averaged over 3 years). Burden is defined at 5 CFR 1320.3(b).

Total estimated annual cost: $1,942,190 (averaged over 3 years), includes $0 annualized capital or operation and maintenance costs.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to [email protected], Attention: Desk Officer for the EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after receipt, OMB must receive comments no later than July 27, 2018.

Pursuant to section 605(b) of the RFA, 5 U.S.C. 601 et seq., I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action include those that manufacture, including import, mercury or mercury-added products (manufacturers), or otherwise intentionally use mercury in a manufacturing process (processors). To identify the number of firms that are subject to the rule and considered small under SBA size standards, EPA compared the appropriate SBA size definition to the company's revenue or number of employees, as identified using Dun and Bradstreet or other market research websites. Of the 506 parent companies that are subject to the rule, 211 companies (42 percent) meet the SBA small business definitions for their respective NAICS classifications.

The small entity analysis estimated that no parent company would incur an impact of 3 percent or greater, and 4 parent companies (1.85 percent of total entities) would incur an impact of 1 to 3 percent. Details of this analysis are included in the accompanying Economic Analysis for this rule (Ref. 6).

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531 through 1538, and does not significantly or uniquely affect small governments. As such, the requirements of sections 202, 203, 204, or 205 of UMRA do not apply to this action.

This action does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have any effect on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in the Order. Thus, E.O. 13175 does not apply to this action.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk, nor is this action economically significant as the impact of this action will be less than $100 million.

This final rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not expected to affect energy supply, distribution, or use.

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

This action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action establishes an information requirement and does not affect the level of protection provided to human health or the environment.

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I, subchapter R, is amended by adding a new part 713 to read as follows:

GSA is publishing this direct final rule without a prior proposed rule as this is a noncontroversial action, and GSA anticipates no significant adverse comments. A significant adverse comment is defined as one where the comment explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. In determining whether a significant adverse comment is sufficient to terminate a direct final rulemaking, GSA will consider whether the comment raises an issue serious enough to warrant a substantive response in a notice-and-comment process. GSA notes that comments that are frivolous, insubstantial, or outside the scope of the rule would not be considered adverse under this procedure. A comment recommending a rule change in addition to the rule would not be considered a significant adverse comment, unless the comment states why the rule would be ineffective without the additional change. In addition, if a significant adverse comment applies to part of a rule and that part can be severed from the remainder of the rule (e.g., where a rule deletes several unrelated regulations), GSA may adopt as final those parts of the rule that are not the subject of a significant adverse comment. For further information about commenting on this rule, please see the ADDRESSES section of this document.

As part of a comprehensive review of the FTR, GSA is removing the M&IE deduction table from appendix B to chapter 301, Allocation of M&IE Rates To Be Used in Making Deductions From the M&IE Allowance; and all of appendix D to chapter 301, Glossary of Acronyms. The table in appendix B is publicly available on the internet at https://www.gsa.gov/mie thus its publication in the FTR is no longer necessary. In addition, GSA will amend FTR § 301-11.18 to remove reference to the table in appendix B to chapter 301.

With the exception of the Federal Emergency Management Agency (FEMA), the Federal Housing Authority (FHA) and Free on Board (FOB), the acronyms in appendix D to chapter 301 are either defined in the Glossary of Terms section at FTR § 300-3.1, spelled out within the text of the regulations themselves, or are commonly known acronyms that can be found in sources outside the FTR, making appendix D duplicative. In accordance with this amendment the acronyms for FEMA, FHA and FOB are now spelled out within the text of the FTR where they appear. In addition, a website link has been updated in the section accompanying the FEMA acronym.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives, and if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule is not a significant regulatory action, and therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

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

This final rule was identified by GSA's Regulatory Reform Task Force as a rule that improves efficiency by reducing costs—in this case, printing fewer hardcopy pages of the FTR, but maintaining the same information online.

This direct final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This direct final rule is also exempt from the Administrative Procedure Act per 5 U.S.C. 553(a)(2), because it applies to agency management or personnel.

The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This direct final rule is also exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

For the reasons set forth in the preamble, GSA amends 41 CFR parts 300-3 and 301-11, appendices B and D to chapter 301, and parts 302-9 and 302-11 as follows:

In response to Executive Order 13563, Section 6(a), which urges agencies to repeal existing regulations that are outmoded from the Code of Federal Regulations (CFR), HHS is removing 42 CFR part 5a. HHS believes that there is good cause to bypass notice and comment and proceed to a final rule, pursuant to 5 U.S.C. 553(b)(B). The action is non-controversial, as it merely removes an obsolete provision from the CFR. This rule poses no new substantive requirements on the public. Thus, we view notice and comment as unnecessary.

The Rural Physician Training Grant Program (Program), Definition of “Underserved Rural Community” regulation was issued via an interim final rule with request for comment on May 26, 2010 pursuant to Section 749B(f) of the Public Health Service Act (42 U.S.C. 293m(f)). The regulation has not been updated since it was issued.

Funding was authorized at section 749B(i) (42 U.S.C. 293m(i)) for fiscal years 2010-2013, but was never appropriated for the Program; therefore, it was not implemented. This rule defines “underserved rural communities,” including census track information, Health Professions Shortage Areas (HPSAs), and Medically Underserved Areas (MUAs) for Program purposes. If the Program were to be funded, HRSA would be able to define underserved rural communities for the purpose of the program through policy documents.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13771 directs agencies to categorize all impacts which generate or alleviate costs associated with regulatory burden and to determine the actions net incremental effect.

Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). HHS submits that this final rule is not “economically significant” as measured by the $100 million threshold, and hence not a major rule under the Congressional Review Act. This rule has not been designated as a “significant regulatory action” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

Executive Order 13771, titled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017. HHS identifies this final rule as a deregulatory action (removing an obsolete rule from the Code of Federal Regulations). For the purposes of Executive Order 13771, this final rule is not a substantive rule; rather it is administrative in nature and provides no cost savings.

Executive Order 13777, titled “Enforcing the Regulatory Reform Agenda,” was issued on February 24, 2017. As required by Section 3 of this Executive Order, HHS established a Regulatory Reform Task Force (HHS Task Force). Pursuant to Section 3(d)(ii), the HHS Task Force evaluated this rulemaking and determined that these regulations are “outdated, unnecessary, or ineffective.” Following this finding, the HHS Task Force advised the HRSA Administrator to initiate this rulemaking to remove the obsolete regulations from the Code of Federal Regulations.

This action will not have a significant economic impact on a substantial number of small entities. Therefore, the regulatory flexibility analysis provided for under the Regulatory Flexibility Act is not required.

This action does not affect any information collections.

In response to Executive Order 13777 and Executive Order 13563, Sec. 6(a), which direct agencies to repeal existing regulations that are “outmoded” from the Code of Federal Regulations (CFR), HHS is removing 42 CFR part 23, subpart B (§§ 23.21 through 23.35) and subpart C (§ 23.41). Furthermore, HHS has determined that there is good cause to bypass notice and comment and proceed to a final rule, pursuant to 5 U.S.C. 553(b)(B). The action is non-controversial, as it merely removes certain provisions from the CFR that are obsolete. Given the length of time (approximately 30 years) since the private practice loan provision has been utilized, it is HHS's assessment that the agency is unlikely to receive any comments opposing the repeal of these regulations. Thus, a comment period prior to finalization of this rule is unnecessary. This rule poses no new substantive requirements or burdens on the public.

In 1986, HHS issued implementing regulations, as directed in Section 338G of the PHS Act, specifying the interest rate and loan repayment terms for private practice special loans to former Corps members and interest rate and loan repayment terms for private practice start-up loans to NHSC scholarship recipients.

The provision for Special Loans for Former Corps Members to Enter Private Practice authorized the Secretary to make a one-time loan up to $25,000 to a Corps member. In exchange, the Corps member reciprocated by committing to serve as a full-time private practice provider in a Health Professional Shortage Area (HPSA) for a minimum of two years. The intent of these regulations was to retain Corps members in HPSAs after the completion of their service obligation. The regulation is no longer relevant as the NHSC has not made such loan opportunities available since the 1980s and, therefore, no longer needs to set repayment terms for private practice start-up loans. HRSA does not intend to restart this loan program, as the NHSC program currently has a retention rate of 88%, making additional incentives unnecessary.

Section 338G also authorizes Private Start-Up Loans. At the time the statute was enacted, only the NHSC Scholarship Program existed. Scholars were able to apply for up to $25,000 to purchase or lease the equipment and supplies needed for providing health services in their private practices. The intention of the program was to offer further incentives to recruit health professions students into the program. The regulation is no longer relevant since the NHSC has not made such loan opportunities available since the 1980s and, therefore, no longer has need to set repayment terms for private practice start-up loans. Furthermore, the NHSC Scholarship Program is significantly oversubscribed, and no further incentives are necessary to recruit health professions students.

Removing these regulations will not have an impact on the NHSC program. There is no specific appropriations authority to support Section 338G of the PHS Act; the authorization of appropriation at 338H supports all the activities under Subpart III (which includes the NHSC Loan Repayment and Scholarship Programs). The repeal of these regulations will not create any challenges for other programs, as the law and regulations apply solely to NHSC clinicians.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13771 directs agencies to categorize all impacts which generate or alleviate costs associated with regulatory burden and to determine the actions net incremnatal effect.

Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). HHS submits that this final rule is not “economically significant” as measured by the $100 million threshold, and hence not a major rule under the Congressional Review Act. This rule has not been designated as a “significant regulatory action” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

Executive Order 13771, titled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017. HHS identifies this final rule as a deregulatory action (removing an obsolete rule from the Code of Federal Regulations). For the purposes of Executive Order 13771, this final rule is not a substantive rule; rather it is administrative in nature and provides no cost savings.

Executive Order 13777, titled “Enforcing the Regulatory Reform Agenda,” was issued on February 24, 2017. As required by Section 3 of this Executive Order, HHS established a Regulatory Reform Task Force (HHS Task Force). Pursuant to Section 3(d)(ii), the HHS Task Force evaluated this rulemaking and determined that these regulations are “outdated, unnecessary, or ineffective.” Following this finding, the HHS Task Force advised the HRSA Administrator to initiate this rulemaking to remove the obsolete regulations from the Code of Federal Regulations.

This action will not have a significant economic impact on a substantial number of small entities. Therefore, the regulatory flexibility analysis provided for under the Regulatory Flexibility Act is not required.

This action does not affect any information collections.

For reasons set out in the preamble, and under the authority at 5 U.S.C. 301, HHS amends 42 CFR part 23 as follows:

In response to Executive Order 13563, Sec. 6(a), which urges agencies to repeal existing regulations that are outmoded from the Code of Federal Regulations (CFR), HHS is removing 42 CFR part 130. HHS believes that there is good cause to bypass notice and comment and proceed to a final rule, pursuant to 5 U.S.C. 553(b)(3)(B). The action is non-controversial, as it merely removes a provision from the CFR that is obsolete. This rule poses no new substantive requirements on the public.

The Ricky Ray Hemophilia Relief Fund Act of 1998 (Pub. L. 105-369) established the Ricky Ray Hemophilia Relief Fund Program designed to provide payments to individuals with blood-clotting disorders, such as hemophilia, who contracted HIV through the use of antihemophilic factor administered between July 1, 1982, and December 31, 1987. The Act also provided for payments to certain persons who contracted HIV from an individual as described above and certain specified survivors.

HHS promulgated 42 CFR part 130 to establish the proper regulatory framework for program implementation. The regulation can be conceptualized as four parts: The process for payment, the documentation required to prove eligibility, the petition process, and the reconsideration process. The Ricky Ray Hemophilia Relief Fund was authorized with a directive to pay $100,000 in compensation to eligible individuals. At that time, however, no funds were appropriated to implement this statute. In FY 2000, Congress appropriated $75 million and, in FY 2001, Congress appropriated $580 million, for a total of $655 million. The appropriated amounts provided sufficient funding to make compassionate payments on all eligible petitions received by the program. The program received over 6,000 petitions resulting in approved payments over $550 million.

The statutory language in the authorizing legislation stated that the “Fund shall terminate upon the expiration of the 5-year period beginning on the date of the enactment of this Act.” The statute was enacted on November 12, 1998; thus, the fund expired on November 12, 2003. The program is no longer in effect or funded. The repeal of this regulation should not create any challenges for other programs, as the regulation was strictly for the implementation of the Ricky Ray Hemophilia Relief Fund program, which has not been in operation for almost 14 years.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13771 directs agencies to categorize all impacts which generate or alleviate costs associated with regulatory burden and to determine the actions net incremnatal effect.

Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). HHS submits that this final rule is not “economically significant” as measured by the $100 million threshold, and hence not a major rule under the Congressional Review Act. This rule has not been designated as a “significant regulatory action” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

Executive Order 13771, titled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017. HHS identifies this final rule as a deregulatory action (removing an obsolete rule from the Code of Federal Regulations). For the purposes of Executive Order 13771, this final rule is not a substantive rule; rather it is administrative in nature and provides no cost savings.

Executive Order 13777, titled “Enforcing the Regulatory Reform Agenda,” was issued on February 24, 2017. As required by Section 3 of this Executive Order, HHS established a Regulatory Reform Task Force (HHS Task Force). Pursuant to Section 3(d)(ii), the HHS Task Force evaluated this rulemaking and determined that these regulations are “outdated, unnecessary, or ineffective.” Following this finding, the HHS Task Force advised the HRSA Administrator to initiate this rulemaking to remove the obsolete regulations from the Code of Federal Regulations.

This action will not have a significant economic impact on a substantial number of small entities. Therefore, the regulatory flexibility analysis provided for under the Regulatory Flexibility Act is not required.

This action does not affect any information collections.

This is a summary of the Commission's Report and Order and Declaratory Ruling in CG Docket Nos. 03-123 and 13-24; document FCC 18-79, adopted on June 7, 2018 and released on June 8, 2018. Document FCC 18-79 concerns the modernization and reform of the Commission's rules for IP CTS. The Commission previously sought comment on these issues in Misuse of internet Protocol (IP) Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Difficulties, published at 78 FR 54201, September 3, 2013 (2013 IP CTS Reform FNPRM). A Further Notice of Proposed Rulemaking (Further Notice) and Notice of Inquiry are contained in document FCC 18-79 and address additional issues concerning the funding, administration, and user eligibility for this service, as well as performance goals and metrics to ensure service quality for users. The Further Notice and Notice of Inquiry will be published elsewhere in the Federal Register. The full text of document FCC 18-79 will be available for public inspection and copying via the Commission's Electronic Comment Filing System (ECFS), and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected], or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (844) 432-2272 (videophone), or (202) 418-0432 (TTY).

The Commission sent a copy of document FCC 18-79 to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

The Report and Order in document FCC 18-79 contains modified information collection requirements, which are not effective until approval is obtained from OMB. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public to comment on these information collection requirements as required by the PRA. The Commission will publish a separate document in the Federal Register announcing approval of the information collection requirements. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4), the Commission previously sought comment on how the Commission might “further reduce the information burden for small business concerns with fewer than 25 employees.” 2013 IP CTS Reform FNPRM.

1. IP CTS, a form of telecommunications relay services (TRS) supported by the Interstate TRS Fund (TRS Fund), allows individuals with hearing loss to both read captions and use their residual hearing to understand a telephone conversation. IP CTS providers receive compensation from the TRS Fund on a per-minute basis. The compensation rate has been determined using a methodology known as the Multistate Average Rate Structure (MARS) Plan, which calculates the weighted average per-minute compensation paid by state TRS programs to providers of intrastate CTS for the prior calendar year.

2. The Commission's mandate in determining TRS compensation rates is to ensure that the rates correlate to actual reasonable costs. MARS is no longer an effective methodology to accomplish this. The Commission therefore terminates use of the MARS methodology.

3. The per-minute costs currently reported by IP CTS providers are not comparable to those for CTS—largely, it appears, because demand for IP CTS now greatly exceeds the demand for CTS. Specifically, from 2011 to 2017, annual CTS minutes declined from approximately 40 million to 19.9 million, while annual IP CTS minutes grew from approximately 29 million to 362 million—an amount that is more than 18 times greater than annual CTS minutes. Average per-minute expenses for IP CTS dropped from $2.0581 in 2011 to $1.2326 in 2017, while the MARS rate increased from $1.7630 to $1.9467 for the same period. The 2017-18 MARS rate exceeds the average 2017 IP CTS expenses by approximately 58 percent. This divergence invalidates the rationale for continuing to use a MARS-based rate to determine IP CTS compensation.

4. Setting a Rate Closer to Reasonable IP CTS Costs. The Commission finds it important to act without delay to bring provider compensation more in line with reported provider costs. IP CTS minutes have increased dramatically over the last nine years and the contribution base for the TRS Fund has been shrinking, requiring interstate and international telecommunications and VoIP service providers, and their subscribers, to contribute an ever-larger percentage of revenues to support these services. The Commission is also concerned that excessive compensation for IP CTS may increase provider incentives to recruit and register IP CTS users, regardless of their actual need for the service, leading to even greater potential for waste of TRS Fund dollars.

5. The Commission concludes that the most recently filed cost and demand data are sufficiently reliable to serve as a basis for setting interim IP CTS rates. As with video relay service (VRS) compensation rates, a weighted average of the historical per-minute expenses reported by providers for 2017 and the projected per-minute expenses for 2018, which for IP CTS is approximately $1.28 per minute, provides a reasonable baseline for taking initial steps to move the IP CTS compensation rate toward actual cost. Further, the Commission finds it reasonable to allow an operating margin between 7.6% to 12.35% for IP CTS providers in the same “zone of reasonableness” that applies to VRS providers given the service sector similarities between VRS and IP CTS, and that the bulk of costs for both are attributable to labor rather than capital. Adding an operating margin within that reasonable range to the average IP CTS expenses of $1.28 results in a total average cost between approximately $1.38 and $1.44.

6. While the Commission's goal is to move the IP CTS rate to a cost-based level, immediately reducing the IP CTS compensation rate to this extent could produce a disruption in the IP CTS market and potentially negative consequences for both providers and consumers. Initial rate reductions of approximately 10 percent per year, over two years, will strike a reasonable balance between the need to bring IP CTS rates in line with costs and reduce the TRS Fund contribution burden, and avoiding rate shock for IP CTS providers and potential disruption of the provision and quality of service for consumers. This approach will allow a reasonable opportunity for higher-cost providers to adjust to average-cost-based compensation by reducing unnecessary expenses—and thereby encourage multiple providers to remain in the IP CTS market. Finally, allowing the compensation rate to stay, for the present, at levels well above average allowable costs allows IP CTS providers to continue participating in research and thus will “not discourage or impair the development of improved technology.” 47 U.S.C. 225(d)(2).

7. Applying these interim rates for a period of two years will allow the Commission to fully evaluate the appropriateness of some categories of allowable costs for this service, as well as the extent to which compensation for this service should be subject to price-cap-index adjustments. In addition, this period will afford the Commission an opportunity to determine how best a fully automated method of providing IP CTS should be compensated.

8. The Commission directs that the IP CTS compensation rate be reduced in two steps of approximately 10 percent each: First, a $0.19467 reduction from the $1.9467 per minute rate currently in effect, to a rate of $1.75 per minute for the 2018-19 Fund Year, from July 1, 2018, to June 30, 2019; and second, a further $0.17 reduction of the compensation rate from $1.75 to $1.58 per minute for the 2019-20 Fund Year, from July 1, 2019, to June 30, 2020. These reductions will save the TRS Fund a minimum of $399 million over two years, as compared to applying the MARS rate. If the Commission finds that actual costs are substantially below the interim rates, the Commission may adjust those rates accordingly.

9. While the use of provider cost data adds complexity, and may require detailed analysis, it would not be reasonable for the Commission, in order to avoid such complexity, to continue to rely on a proxy that does not bear a reasonable relationship to actual costs. Any burden arising from switching to a more complex rate methodology is outweighed by the benefits of having a more accurate compensation rate, including the benefit of savings to the Fund.

10. Setting interim rates for two years, rather than a single year, will provide a greater degree of rate certainty for providers and can mitigate the risk of rewarding inefficiency, discouraging innovation, and incentivizing providers to incur unnecessary costs, all potential effects of annual cost-of-service rate setting. A multi-year approach allows individual providers to gain additional profit during each multi-year period from any innovations and efficiency enhancing measures that reduce their per-minute costs during that period.

11. The TRS Fund administrator's cost calculations used to establish the interim rates are based on the same categories of provider costs that generally have been deemed allowable in calculating rates for other forms of TRS. Provider objections to these categories raise no significant arguments that have not been addressed and previously resolved in the Commission's prior rulings.

12. Collecting Additional Cost Information for Setting Future IP CTS Rates. The Commission remains concerned that some of the expenses incurred by IP CTS providers have not been reported in sufficient detail to enable the Fund administrator to confirm their allowability and reasonableness. Some IP CTS providers, who contract with other entities for the provision of call centers, CA staffing, and other services, as well as the licensing of intellectual property, report payments to contractors as “subcontractor expenses,” with no breakdown into specific expense reporting categories. Given that the expenses classified in this manner comprise an unusually large portion of total reported IP CTS costs, such reporting obscures the nature of a substantial portion of reported IP CTS costs and hinders review of such costs incurred by such providers to assess their allowability and reasonableness. Accordingly, the Commission directs the TRS Fund administrator to require IP CTS providers that contract for the supply of services used in the provision of TRS to include information about payments under such contracts classified according to the substantive cost categories specified by the administrator, including, e.g., allocation of subcontractor expenses between call center expenses and intellectual property licensing fees, and how the provider determined or calculated the portion of contractual payments attributable to each cost category. All cost reports submitted in the future by IP CTS providers shall provide such a breakdown and explanation. The Commission also directs the Fund administrator, to the extent that the administrator reasonably deems necessary for the purpose of determining the allowability and reasonableness of costs reported to be incurred in the provision of TRS, to require providers to submit additional detail on such contractor expenses, including the submission of complete copies of such contracts and related correspondence or other records and information relevant to determining the nature of the services provided and the allocation of the costs of such services to cost categories. This additional transparency will help the Commission ensure that the costs reported by providers are reasonable.

13. The Commission believes that its current authority to collect the above information is contained in rules that require TRS providers to provide the TRS Fund administrator “true and adequate data, and other historical, projected and state rate related information reasonably requested to determine the TRS Fund revenue requirements and payments,” and which authorize both the TRS Fund administrator and the Commission “to examine and verify TRS provider data as necessary to assure the accuracy and integrity of TRS Fund payments.” 47 CFR 64.604(c)(5)(iii)(D)(1), (6). To further clarify such authority, however, and to provide for greater consistency in the rules, the Commission amends its rules to explicitly provide for the collection of information laid out in the preceding paragraph. In addition, the Commission further amends its rules to provide that, in the course of an audit or otherwise upon demand, an IP CTS provider must make documentation, including contracts with entities providing services or equipment directly related to the provision of IP CTS, available to the Commission, the TRS Fund administrator, or any person authorized by the Commission or TRS Fund administrator to conduct an audit.

14. The dramatic growth in IP CTS call volume appears to result in part from provider practices that promote over-use of IP CTS, including by people with hearing loss who may be able to achieve functionally equivalent telephone service using other forms of off-the-shelf or assistive technologies. The Commission concludes that the following steps are needed to minimize such unnecessary use, and the consequent waste of TRS Fund resources.

15. Volume Control and Caption Settings. The Commission amends its rules to prohibit IP CTS providers from linking the volume control and captioning functions of an IP CTS device or software application. Allowing users to enable volume control only when captions are turned on promotes waste, in that it forces the costly generation of captions even when the user only requires increased volume to communicate effectively by phone. In addition, decoupling these features will enable consumers who are not registered IP CTS users to access the amplification features of IP CTS devices without the captions. Compliance with a delinking requirement will not impose a substantial cost on IP CTS providers, and any likely cost will be more than offset by the efficiency gain resulting from the reduction in unnecessary captioning services.

16. The compliance deadline for making this change is December 8, 2018. IP CTS providers must ensure that all IP CTS devices—as well as user software for such devices—that they newly distribute to users after December 8, 2018 are configured to allow volume control to be adjusted independently of the captioning feature. The Commission also requires providers to ensure that all previously distributed devices are delinked by December 8, 2018.

17. Website, Advertising and Educational Information Notifications. The Commission amends its rules to require IP CTS providers to include both of the following factual notifications in a clear and prominent location on their advertising brochures, websites, user manuals, and other informational materials and websites:

• IP captioned telephone service may use a live operator. The operator generates captions of what the other party to the call says. These captions are then sent to your phone.

• There is a cost for each minute of captions generated, paid from a federally administered fund.

The first part of the notification is not required from those IP CTS providers who do not use live CAs. In the case of websites, The Commission requires such language to be included on the home page, each page that provides consumer information about IP CTS, and each page that provides information on how to order IP CTS or IP CTS equipment.

18. Requiring these notifications will enhance the Commission's efforts to prevent casual or inadvertent use of IP CTS and will not impose a significant burden that outweighs their benefits. When captioning devices are turned on by default, it is critical to make potential users aware through “multiple and repeated sources of information” that IP CTS involves significant costs and must not be used by individuals who do not need it. Persons that truly need this free service for functionally equivalent telephone service have every incentive to obtain it. Rather than deter IP CTS use by such individuals, these notices will help to ensure that individuals who might be attracted to it are aware of its functions and financing.

19. General Prohibition on Providing Service to Users Who Do Not Need It. The Commission modifies the current prohibition on VRS providers engaging in fraudulent, abusive, and wasteful practices by amending it to include IP CTS providers. As amended, the rule prohibits both IP CTS and VRS providers from engaging in practices that the provider knows or has reason to know will cause or encourage (1) the unauthorized use of TRS, (2) false or unverified TRS Fund compensation claims, (3) the making of TRS calls that would not otherwise be made, and (4) the use of TRS by consumers who do not need the service in order to communicate by telephone in a functionally equivalent manner.

20. The Commission clarifies that “unauthorized use” of IP CTS, under clause (1) above, means use by an individual who is not registered with a provider. Further, a practice is prohibited where it artificially stimulates TRS usage, enables or encourages participation by unauthorized users, or uses financial incentives to attract new TRS users or to increase usage. However, the Commission allows IP CTS providers to be compensated for calls made by unregistered users when such calls are made from temporary, public IP CTS devices set up in emergency shelters. When service for such a device is initiated at the shelter, the IP CTS provider must notify the TRS Fund administrator of the date of such activation and termination.

21. In addition, an IP CTS provider shall not seek payment from the TRS Fund for any minutes of service that it knows or has reason to know are resulting from such prohibited practices. Any IP CTS provider that becomes aware of such practices being or having been committed by any person shall, as soon as practicable, report such practices to the Commission or the TRS Fund administrator. All monies paid from the TRS Fund to providers who are found by the Commission to be in violation of this new IP CTS rule shall be recoverable by the TRS Fund administrator, and such providers may also be subject to forfeitures and other enforcement actions.

22. In document FCC 18-79, the Commission determines that the provision of CTS and IP CTS using automated speech recognition (ASR) to generate captions without the involvement of a CA is a form of relay service eligible for compensation from the TRS Fund if provided in compliance with applicable TRS mandatory minimum standards. Specifically, the Commission concludes that such services are included within the statutory definition of TRS, as “telephone transmission services that provide the ability” to engage in communication by wire or radio “in a manner that is functionally equivalent” to voice communications service. 47 U.S.C. 225(a)(3).

23. The use of ASR to generate captions for CTS and IP CTS has several benefits. First, ASR can better achieve near simultaneous communication than is possible with CA-assisted captions. Second, the substantially lower costs of operation for ASR can allow for the provision of IP CTS with far greater efficiency. Finally, as a fully automated method of generating captions that is not dependent on human intervention, ASR can allow enhanced call privacy and ensure the seamless continuation of communications when exigent circumstances, such as severe weather events, threaten IP CTS call center operations.

24. Improvements in accuracy, coupled with ASR's advantages in speed and privacy, have made ASR a viable alternative to the use of human relay intermediaries for CTS and IP CTS. IP CTS providers and others have shown heightened interest in utilizing this method for the provision of captions, and the Commission has received two applications for certification to provide IP CTS using ASR. Additionally, ASR-only products are being trialed and adopted internationally as a means of generating captions from speech, for people with hearing and speech disabilities.

25. The Commission is not mandating ASR as the sole means of offering IP CTS. IP CTS providers will be able to choose among three methods of providing Fund-supported IP CTS: (1) IP CTS using fully automated ASR; (2) IP CTS using CA-assisted ASR; and (3) stenographic-supported IP CTS. Consumers will continue to be able to select an IP CTS provider based on the overall quality of service each provider offers by means of the available methods. As IP CTS providers begin offering fully automated ASR, the Commission will be able to gather data that can inform the Commission's adoption of further measures to improve its utility. Any provider offering ASR must ensure that its service complies with the mandatory minimum standards of § 64.604 of the Commission's rules in order to obtain and retain certification to provide IP CTS.

26. The use of ASR is consistent with the Commission's prior rulings authorizing CTS in both its analog and internet forms. The definition of IP CTS does not specify how captions must be generated, including whether they should be generated through automation or human-assisted methods. In this regard, the Commission already has approved a form of IP CTS that relies on automated speech recognition programs (assisted by CAs) to convert speech to captions during an IP CTS call. The only differences between ASR and CA-assisted ASR is that with CA-assisted ASR, CAs “train” speech recognition programs to understand their voices when they re-voice a caller's speech, and have a limited opportunity to make corrections to the captions that are produced. Advancements in ASR reduce the need for such training and human editing, and use of this technology for IP CTS without CA involvement does not fundamentally change the functional role of the service, which is to produce captions from a user's speech.

27. Using ASR for the provision of IP CTS is fully consistent with the Commission's statutory authority. The provision of IP CTS utilizing ASR will contribute to functional equivalence by enabling providers to enhance the privacy, ensure seamless communications, and reduce the latency of IP CTS offerings. Section 225 of the Act is neutral as to the technology and method used to achieve functional equivalency and expressly requires the Commission to encourage technological innovation in TRS. Further, offering an ASR option that will largely eliminate personnel costs associated with IP CTS will help fulfill Congress's directive to provide TRS in the most efficient manner.

28. The Commission authorizes the Consumer and Governmental Affairs Bureau (Bureau) to review and approve applications for certification to provide IP CTS by means of ASR in whole or in part. The Bureau may determine on a case-by-case basis the extent to which an applicant's proposed method of providing ASR will enable it to provide IP CTS in a manner that meets the Commission's minimum TRS standards for functionally equivalent service. To assist the Bureau in making this assessment, where use of ASR in conjunction with CA-assisted caption generation is proposed, applicants should include in their certification applications a detailed description of the criteria that will be used to determine when to use and transfer between each of these methods. Applicants should support all claims regarding their use of ASR and its efficacy through documentary and other evidence and should provide information about measures they will take to ensure the confidentiality of call content. The Bureau will not approve any application to provide IP CTS using ASR that does not demonstrate that the applicant will meet the Commission's mandatory minimum standards for functional equivalency.

29. Certifications for the provision of IP CTS using ASR may be granted on a conditional basis, to enable the Commission's assessment of an applicant's actual performance in meeting or exceeding the mandatory minimum standards. In addition, to the extent deemed necessary, certification of a provider may be conditioned on the submission of periodic data to help confirm whether ASR-driven IP CTS is providing functionally equivalent service.

30. If a currently operating IP CTS provider wishes to incorporate ASR in its offerings, it must first receive approval from the Bureau to provide IP CTS in this manner. In order to obtain approval, any provider operating under conditional certification or interim eligibility must update its application for permanent certification to describe the change, and may be asked to provide additional data—beyond what was submitted in its initial application for certification—to demonstrate how modifications to its service will ensure the provision of a relay service that is functionally equivalent to voice telephone service through compliance with the Commission's mandatory minimum standards.

31. The Commission reminds all providers that its rules require TRS providers seeking compensation from the TRS Fund to “provide the administrator with true and adequate data, and . . . information reasonably requested to determine the TRS Fund revenue requirements and payments.” 47 CFR 64.604(c)(5)(iii)(D)(1). Requests from the TRS Fund administrator for information that would help establish whether payments are justified and help determine the costs for ASR IP CTS could reasonably include:

• A breakdown, in the provider's monthly call detail report, indicating minutes for which ASR is substituted for CA-assisted IP CTS;

• Estimates of the difference in the costs incurred to handle ASR and CA-assisted calls, with a detailed breakdown of the specific variable costs incurred for each type of call, as well as underlying assumptions and calculations; and

• Documentation of incremental costs incurred in providing ASR, including any incremental costs associated with engineering and technical implementation, marketing, administrative and management support (including oversight, evaluation, and recordkeeping) and, for hybrid forms of IP CTS, any costs associated with enabling transfers back and forth between ASR and CA-assisted IP CTS.

32. As required by the Regulatory Flexibility Act of 1980, as amended, the Commission incorporated an Initial Regulatory Flexibility Analysis (IRFA) into the 2013 IP CTS Reform FNPRM. The Commission sought written public comment on the proposals in the 2013 IP CTS Reform FNPRM, including comment on the IRFA. No comments were received in response to the IRFA.

33. Document FCC 18-79 adopts an interim rate for IP CTS reflecting a weighted, cost-of-service methodology based on an analysis of providers' actual and projected costs.

34. In addition, the Commission directs the TRS Fund administrator to require IP CTS providers that contract for the supply of services used in the provision of TRS to include information about payments under such contracts classified according to the substantive cost categories specified by the administrator.

35. Document FCC 18-79 also adopts three rule changes to facilitate the Commission's efforts to reduce waste, fraud, and abuse and improve its ability to efficiently manage the IP CTS program. First, the Commission prohibits linking volume control and captioning use on IP CTS devices. Second, the Commission requires IP CTS providers to include the following notifications in a clear and prominent location on their advertising brochures, websites, user manuals, and other informational materials and websites:

• IP captioned telephone service may use a live operator. The operator generates captions of what the other party to the call says. These captions are then sent to your phone.

• There is a cost for each minute of captions generated, paid from a federally administered fund.

The first part of the notification is not required from those IP CTS providers who do not use live CAs. Third, the Commission adopts a general prohibition against providing IP CTS to consumers who do not genuinely need the service. Providers that become aware of prohibited practices must report them to the Commission or the TRS Fund administrator.

36. No comments were filed in response to the IRFA.

37. The Chief Counsel for Advocacy of the Small Business Administration did not file any comments in response to the proposed rules in this proceeding.

38. The rules adopted in document FCC 18-79 will affect obligations of IP CTS providers. These services can be included within the broad economic category of All Other Telecommunications.

39. The rule implementing a general prohibition against providing IP CTS to consumers who do not genuinely need the service and the requirement to separate volume control and captioning functions on IP CTS devices do not create direct reporting, recordkeeping or other compliance requirements on IP CTS providers.

40. In transitioning away from the MARS methodology for IP CTS, the Commission will require IP CTS providers to file annual cost and demand data reports with the TRS Fund administrator. There is no additional burden on IP CTS providers to file these reports, as IP CTS providers have been voluntarily submitting such reports to the TRS Fund administer since 2011. The Commission has received approval to require the collection of such information pursuant to the PRA, and the Commission is requiring the IP CTS providers to submit their cost and demand data for 2017. In addition, the Commission is requiring providers to supplement their cost data filings with information about payments made by providers to subcontractors for the provision of call centers, CA staffing, and other services by classifying such payments according to the substantive cost categories specified by the administrator. These requirements, which place minimal additional filing burdens on IP CTS providers, will be offset by the benefit to the TRS Fund and its contributors by the increased precision of calculating cost-based rates resulting from increased accuracy of TRS cost data submitted to the TRS Fund administrator.

41. The adoption of a requirement for IP CTS providers to include a notice on IP CTS websites and informational materials to inform consumers about the process, cost, and source of funding will place only a minimal burden on IP CTS providers. It will be offset by the benefit to the TRS Fund and contributors to the Fund resulting from the reduction of casual or inadvertent use of IP CTS that such notice may provide by educating consumers via multiple sources of information.

42. The requirement for providers that become aware of prohibited practices to report them to the Commission or the TRS Fund administrator should not be burdensome and is needed to prevent waste, fraud, and abuse of the TRS Fund.

43. The interim rates for IP CTS will apply only to providers who are or may become certified by the Commission to offer IP CTS in accordance with its rules. The Commission adopts these interim rates to: (1) Ensure that rates compensate providers for their reasonable cost; (2) reduce waste of TRS Fund resources and the amounts that TRS Fund contributors pay to the fund; and (3) ensure that TRS is made available to the extent possible and in the most efficient manner. The requirement to file cost and demand data annually will not increase the burden on IP CTS providers because they have been submitting such data to the TRS Fund administrator since 2011. The Commission is requiring providers to supplement their cost data filings with information about payments made by providers to subcontractors for the provision of call centers, CA staffing, and other services by classifying such payments according to the substantive cost categories specified by the administrator. This requirement, which places minimal additional filing burdens on IP CTS providers, will be offset by the benefit to the TRS Fund and its contributors by the increased precision of calculating cost-based rates resulting from increased accuracy of TRS cost data submitted to the TRS Fund administrator.

44. Separating the volume control and captioning functions on IP CTS devices will place a minor burden on IP CTS providers and device manufacturers to reconfigure the functionality. Such costs will be offset from the likely decrease in waste and misuse of IP CTS, as individuals will be able to use a device's amplification features without also being required to use the device's captioning features. Providers have until December 8, 2018, to ensure that new and previously distributed devices are in compliance.

45. The general prohibition on practices resulting in IP CTS use by ineligible individuals, the requirement for providers that become aware of prohibited practices to report them to the Commission or the TRS Fund administrator, and the requirement for IP CTS providers to include notices on their informational materials and websites should not be burdensome and are necessary to combat waste, fraud, and abuse. These requirements will help ensure the efficiency of the TRS program, control the expenditure of public funds, reduce the amounts paid by contributors to the TRS Fund, and ensure the future viability of the TRS Fund and the provision of IP CTS.

46. None.

Pursuant to sections 1, 2, 201(b), and 225 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 201(b), 225, document FCC 18-79 is adopted, and part 64 of Title 47 is amended.

The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document FCC 18-79, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 64 as follows: