The 2018 Farm Bill reauthorized and amended RCPP. On February 13, 2020, an interim rule with request for comments was published in the Federal Register (85 FR 8131-8145) that added RCPP regulations in 7 CFR part 1464 to implement changes made by the 2018 Farm Bill. A technical correction was published in the Federal Register on March 17, 2020 (85 FR 15051-15052). This final rule adopts, with minor changes, the interim rule.

RCPP, implemented under the direction of the Chief of NRCS, promotes coordination of NRCS conservation activities with partners that offer value-added contributions to address on-farm, watershed, and regional natural resource concerns. Through RCPP, NRCS seeks to co-invest with partners to implement projects that demonstrate innovative solutions to conservation challenges and provide measurable improvements and outcomes.

RCPP projects may only be carried out on agricultural or nonindustrial private forest land or associated land on which NRCS determines an eligible activity would help achieve conservation benefits. Eligible conservation activities may be implemented on public lands when those activities will benefit eligible lands as determined by NRCS and are included in the scope of an approved RCPP project.

The interim rule:

• Created a new part in the Code of Federal Regulations (CFR) to acknowledge that RCPP is now a stand-alone program, no longer subordinated to its covered programs.

• Identified three contract types for implementation of RCPP, including programmatic partnership agreements, program contracts, and supplemental agreements.

• Defined terms to address changes made by the 2018 Farm Bill, including—

○ Conservation benefits;

○ Eligible activity;

○ Eligible partner;

○ Lead partner;

○ Nonlead partner;

○ Participant;

○ Priority resource concern;

○ Project resource concern;

○ Proposal; and

○ RCPP plan of operations.

• Identified that NRCS may award up to 15 Alternative Funding Arrangement (AFA) projects, which rely on partner capacity to implement conservation activities.

• Acknowledged the reduction from three funding pools to two and directed partners to apply to either the Critical Conservation Area (CCA) or State and Multistate funding pool.

• Added provisions requiring all RCPP project partners to develop and report on their environmental outcomes.

• Expanded the scope of RCPP by including the authorities of the Conservation Reserve Program (16 U.S.C. 3831-3835) and the Watershed Protection and Flood Prevention Program (Pub. L. 83-566), excluding the Watershed Rehabilitation Program, in the definition of “covered programs.”

• Expanded the purpose of RCPP to include protection of drinking water and ground water on eligible land.

• Allowed partnership agreements to be longer than 5 years in certain situations, as determined by NRCS, to further purposes of RCPP.

• Allowed partnership agreement renewals for a period not to exceed 5 years that in certain situations may be funded through an expedited noncompetitive process.

• Allowed a partnership agreement, or a renewal partnership agreement, to be extended one time for up to 12 months.

• Required reporting publicly at the time of selection the amount of technical assistance (TA) that will be set aside for project implementation.

• Acknowledged an obligation to provide guidance for partners on how to quantify and report project outcomes, including achievement of conservation benefits.

The interim rule 60-day comment period ended May 12, 2020. NRCS received 335 comments from 65 commenters in response to the rule. NRCS reviewed these 335 comments and categorized and summarized them according to the topics identified below. NRCS received comments on a wide variety of topics, including several comments of a general nature, most of which expressed support, as well as a few comments that were not relevant to RCPP or to the RCPP interim rule. The topics that generated the greatest response were easements, funding pools, program administration, program contracts, and proposals.

In this rule, the comments have been organized alphabetically by topic. The topics include:

• Adjusted gross income (AGI) waivers;

• Alternative funding arrangements (AFA);

• Availability of program funding (APF);

• Easements;

• Eligibility;

• Funding pools;

• Partner contributions;

• Program administration;

• Program contracts;

• Programmatic partnership agreements;

• Proposals;

• RCPP activity types;

• Renewals; and

• Supplemental agreements.

Comment: NRCS received comment expressing concern about reporting requirements necessary to receive an AGI eligibility determination from the Farm Service Agency (FSA). Comment also expressed concern that the AGI waiver process may harm the ability of small farms to receive conservation assistance and suggested adding more detail on the process and criteria for granting AGI waivers.

Response: AGI eligibility determination processes are not within the purview of NRCS or this rulemaking. However, NRCS recently published a National Bulletin (NB 440-20-26) which indicated that an RCPP lead partner may request a waiver of the applicability of AGI at the RCPP project level during the initial Partnership Project Agreement (PPA) negotiation only. If granted, producers participating in RCPP through individual contracts or agreements will not be required to file AGI paperwork or have AGI determinations made by FSA. If the RCPP lead partner does not request or receive a project-level waiver of the applicability of AGI, a producer may seek a waiver of the AGI limitation upon receiving an AGI determination. No changes are made in the final rule in response to this issue.

Comment: NRCS received comment requesting clarification that NRCS retains administrative responsibility for conservation compliance, AGI, and payment limitation determinations, tenant rights, producer appeals, civil rights, and other similar responsibilities.

Additionally, comment requested that NRCS:

• Remove the parenthetical about roads, dams, and irrigation facilities used to describe the types of infrastructure upon which an AFA could focus;

• Provide guidance on AFA goals;

• Only use AFAs in limited circumstances and apply stringent criteria;

• Support AFA irrigation projects and provide incentives for projects that would benefit fish and other aquatic species, particularly in overallocated basins;

• Administer AFA projects through grant agreements; and

• Expand the indirect costs eligible for reimbursement under AFA projects.

Response: NRCS will define responsibilities in the APF announcements and AFA partnership agreements, while still maintaining flexibility. NRCS will identify which responsibilities must remain with NRCS.

This final rule removes the parenthetical from § 1464.25. RCPP infrastructure projects relate to conservation activities that significantly address resource concerns but require greater investment than a single producer can make. NRCS's goal for AFA projects is to fund proposals that are consistent with RCPP purposes but are more effectively and efficiently carried out through lead partner efforts than through NRCS's conservation delivery system. AFA criteria are published as part of funding announcements when AFA funding is made available. AFAs are “programmatic instruments” that provide NRCS with the ability to balance the flexibility of grants or other agreement mechanisms with statutorily mandated responsibilities regarding NRCS roles. For all RCPP projects, including AFAs, the statutory limitation on administrative costs prohibits use of RCPP funding for a partner's indirect costs. Other than removing the parenthetical noted above, there are no other changes made in the final rule in response to this issue.

Comment: NRCS received comment expressing support for the existing APF and requesting that NRCS:

• Clarify its intent to cover project management costs;

• Provide written feedback for projects that are not selected; and

• Follow procedures of lead public entities when possible to promote efficiency.

Comment also included request for additional funding and flexibility for TA, including TA-only projects or projects focused on conservation planning.

Response: RCPP projects are collaborative, and NRCS works with each partner to develop procedural flexibility to help deliver conservation assistance effectively in the project area. While partners provide significant contribution to project costs, NRCS focuses on the technical and financial resources necessary to implement conservation activities and covers much of the project costs. For projects that are not selected, NRCS provides feedback to partners to help them develop more competitive proposals for future submission. NRCS strongly supports conservation planning and technical assistance delivery in its program implementation efforts, including RCPP, and selects proposals that most effectively delivery conservation outcomes. No changes are made in the final rule in response to these issues. With respect to TA-only type projects, the Farm Bill makes clear that all RCPP projects are intended to generate conservation benefits and report on conservation outcomes, therefore, RCPP should prioritize on-the-ground conservation activities plus the TA required to get that conservation on the ground. NRCS has an extensive Conservation Technical Assistance program that provides such support to its partners.

Comment: NRCS received comment related to BPS easement transactions, including support for the availability of BPS transactions under RCPP and requesting the extension of such flexibility to U.S.-held easements. Comment also:

(a) Recommended that NRCS consider as eligible BPS projects that encompass land purchased on an interim basis by State or county governments to improve land access by Historically Underserved (HU) producers;

(b) Addressed easement deed terms, recommending that NRCS make the minimum deed terms available as soon as possible and provide full flexibility in the use of entity-written deed terms; and

(c) Recommended that the entity match follow ACEP-ALE flexibility, which allows a landowner's donation of easement value to constitute all of the nonfederal match requirements.

Response: Based on the ACEP definition, BPS transactions are unique transactions that require the transfer of an easement to an eligible entity and do not include the United States as the ultimate easement holder. ACEP land eligibility is limited to private and Tribal lands. In contrast, RCPP land eligibility includes certain public lands, and NRCS may allow States and local government agencies to enter into a BPS transaction under RCPP. NRCS will announce any authorizations for such transactions through an APF.

NRCS has posted the minimum deed terms to provide a full range of options for US-held and entity-held easements. The minimum deed terms provide eligible entities with maximum flexibility to use their own terms while NRCS ensures that RCPP purposes and requirements are met. NRCS will also maintain easement compensation flexibility under the final rule. Future APFs will provide information on the best approach for leveraging Federal funding and partner efforts.

No changes are made in the final rule in response to these issues.

Comment: NRCS received comment about the range of easement types available under RCPP, expressing support for the flexibility and requesting that NRCS avoid competition between RCPP U.S.-held agricultural land easements and other farm protection programs. Comment also addressed the easement valuation structure identified in the APF, opposing the use of tiered easement compensation based upon level of U.S.-held RCPP easement protection. Comment also recommended that NRCS consider landowner charitable donation of easement value and landowner management activities on an easement as part of the partner's contribution.

Response: The three tiers of compensation paid to landowners enrolling in a U.S.-held RCPP easement were established to emphasize the partnership nature of RCPP and to ensure that RCPP would not compete with other NRCS easement programs. While partner contributions are encouraged to compensate landowners fully for enrollment of less restrictive easement types, landowner donations of easement value or associated management costs cannot be counted as partner contribution. Doing so would reduce the incentive for partners to provide assistance to producers. For example, when RCPP reimburses a producer for up to 75 percent of the cost of implementing a conservation practice, the remaining 25 percent is the producer's responsibility. If the producer solely pays for the 25 percent share, it is not considered a partner contribution. A partner contribution only occurs if the partner assists the producer with the cost of the practice. NRCS will continue to encourage greater partner investment in project success through the competitive tiering of easement compensation. No changes are made in the final rule in response to these issues.

Comment: NRCS received comment about land eligibility in general, including support for the eligibility of certain public agricultural lands and some suggesting expansion of such eligibility to all public land. Comment also supported the eligibility of lands owned by non-governmental organizations, while other comment recommended that eligibility be expanded to include forest land under threat from grazing by ungulates. 1 Commenters also expressed appreciation for the consistency of land eligibility between the CSP and RCPP interim rules and urged NRCS to be flexible in determining whether such land is under the “effective control” of the producer.

Response: NRCS appreciates comments regarding land eligibility with respect to lands owned by public and non-governmental entities. The RCPP activity type informs whether or not public land or land owned by a non-governmental entity is eligible given existing public trust protections and related restrictions and the relationship of those protections and restrictions to addressing resource concerns. As a result, NRCS believes that the current parameters best reflect the scope of land eligibility. No changes are made in the final rule in response to these issues.

Comment: NRCS received comments related to Critical Conservation Areas (CCAs), including recommending that NRCS:

(a) Add excess water as a concern for the Mississippi River basin;

(b) Consolidate the Columbia River basin and the California Bay Delta into a single CCA;

(c) Add water source protection to all eight CCAs;

(d) Add soil health or soil quality as a priority resource concern for all eight CCAs;

(e) Allow CCA projects to include areas outside of a CCA;

(f) Continue Conservation Assessment and Ranking Tool (CART) use;

(g) Expand CCAs to include New England;

(h) Identify a new CCA focusing on coral reefs in the Pacific Islands Areas and the Caribbean Area;

(i) Identify a new CCA focusing on the Puget Sound;

(j) Continue the CCA in the Chesapeake Bay Watershed;

(k) Update CCAs to cover all 50 states; and

(l) Clarify that if a proposal is within a CCA it will only receive priority if it both achieves conservation benefits and addresses the CCA's primary resource concern.

Response: While lands outside a CCA can influence resource concerns within a critical conservation area, NRCS identified CCA boundaries to provide clear demarcation. This final rule clarifies that lands outside of a CCA are not eligible for proposals or applications in a CCA. The regulation is also amended to reflect that NRCS will give priority to proposals in CCAs that both (1) achieve conservation benefits and (2) address at least one of a CCA's priority resource concerns.

NRCS appreciates the comments related to CART and suggestions regarding RCPP and water resource, soil health, and soil quality. Regarding proposed changes to the eight designated CCAs, the Secretary identifies CCAs, including whether an existing CCA will be re-designated. NRCS is working with the Office of the Secretary to determine whether the current designation status of CCAs, including the re-designation of current CCAs or new CCAs, should be undertaken. No changes are made in the final rule in response to these issues.

Comment: NRCS received comment related to funding pools that did not address CCAs. Comment expressed concern that the National funding pool was eliminated and suggested that State Conservationists should be the selecting official for the State and Multi-State funding pool.

Response: The 2018 Farm Bill mandated removal of the National funding pool. NRCS provides State Conservationists with advisory allocations to guide the State's ranking process. However, the Chief makes all final selections. No changes are made in the final rule in response to these issues.

Comment: NRCS received support for the renewal process though some comment critiqued its competitive nature due to limited funds. Comment recommended that a renewal demonstrate the continued need for the project and requested that NRCS post renewal criteria prior to requesting renewal applications. Comment alternatively recommended funding all renewal requests that qualify, even if it must be done at a reduced rate.

Response: Renewals of partnership agreements do not compete with new proposals, but criteria are needed so that NRCS only renews those partnership agreements that represent the best investment of additional RCPP resources. To do so, NRCS uses screening questions to determine if a project has met or exceeded the original objectives, alongside other factors—including available funding and project diversity (geographic and type)—to determine which projects will be offered renewal.

Comment: NRCS received comment recommending:

(a) Increased practice payments to encourage producer participation in RCPP projects;

(b) Clarification that RCPP funding can be stacked with any other source of funding;

(c) Clarification that partners may reduce their contributions if NRCS provides an award amount less than the partner's proposal request;

(d) Landowner donations (for example, related to practice implementation) be allowed as partner contributions if they are based on verifiable expenses; and

(e) A flexible structure for partner contributions that match overall objectives of individual projects.

Comment also supported NRCS setting partner contribution goals (for example, at least 1:1), allowing partner contribution expenditures after award announcement, and the explicit addition of in-kind contributions as allowable partner contributions. Comment also expressed misplaced concerns that RCPP requires the partner contribution match to be made in cash.

Response: NRCS proportionally reduces expected partner contributions when the NRCS award is less than the amount requested, unless negotiated differently by the parties. NRCS will not consider landowner expenses to be partner contributions because the purpose is to stimulate assistance to producers. NRCS will continue to clarify contribution requirements in APFs. No changes are made in the final rule in response to these issues.

Comment: NRCS received comment recommending use of the following criteria when evaluating proposals for their conservation impact or outcomes, including suggestions that metrics should be used for partnership renewals; use of honeybees and other pollinators; use of practices to support native vegetation; and implementation of a drought contingency plan. Comment also recommended that NRCS:

(a) Identify selection criteria for partnership agreements, including whether there is the availability of alternative funding arrangements, in each APF;

(b) Use a simplified evaluation process;

(c) Consult with partners on all aspects of distributing RCPP financial assistance;

(d) Utilize fully AFAs;

(e) Work with local working groups as part of the proposal ranking criteria;

(f) Provide more certainty on reimbursement of real costs of both project implementation and proposal development;

(g) Work with the lead partner to rank and select priority projects;

(h) Involve the lead partner in program contract selection and development;

(i) Provide equal treatment for small, midsize, and large farms;

(j) Provide an option to forego a public and open enrollment process;

(k) Amend the “priority resource concern” definition in § 1464.3 to highlight soil health as critical to water quality, aquifer recharge, carbon sequestration and water retention; and

(l) Use caution applying “innovation” criteria since it is difficult to apply to flood damage reduction projects.

Response: RCPP encourages flexible and streamlined delivery of conservation assistance to producers. To maximize its flexibility and set it apart from other NRCS programs, evaluation criteria used to assess proposals are developed at the APF level. Moving forward, NRCS will consider the evaluation criteria proposed by commenters in developing APFs and, in doing so, will involve partners, stakeholders, and local working groups. Of note, NRCS believes that including scientific conclusions about the role of soil health in the definition of priority resource concern is not congruent with the concept that identifying priority resource concerns depends on the needs of the CCA, rather than a broad, national objective. No changes are made in the final rule in response to these issues.

Comment: NRCS received comment requesting that NRCS:

(a) Clarify roles and responsibilities of conservation partners and Technical Service Providers (TSPs) from the time of application through the implementation phases;

(b) Simplify the proposal application, ranking, and implementation processes (for example, maintain the adjustment of terms option);

(c) Require in regulation that there be a communication plan between NRCS and the lead partner to facilitate the entire RCPP project;

(d) Specify the reporting requirements for both NRCS and RCPP partners;

(e) Clarify when contract type will be determined in the application process;

(f) Provide detail on the documentation and planning of technical assistance and contributions;

(g) Acknowledge source water protection as a goal, and;

(h) Publish a “plan for comment” that outlines how NRCS will track and report expenditures towards source water protection.

Response: NRCS appreciates feedback intended to improve processes and delivery. Proposal application questions are specific to each funding announcement and are created as part of the funding announcement development process. To ensure that projects are feasible and meet program goals and objectives, technical experts provide input into question development and are involved throughout the evaluation and ranking process.

Programmatic partnership agreements specify the responsibilities and expectations of both NRCS and the lead partner from project implementation to close. In addition, per §  1464.2, NRCS has designated an RCPP coordinator for each State, whose role is to guide and assist partners through program implementation. Because the existing process provides ample opportunity for communication between NRCS and the lead partner, no change is made to the regulation to require a communication plan.

NRCS tracks and documents technical assistance internally. NRCS will provide partners a semiannual report that contains the status of each pending and obligated contract under each project and an annual report describing how NRCS used that fiscal year's TA.

RCPP funds associated with RCPP producer contracts in a source water protection (SWP) area as modeled by the Environmental Protection Agency are counted towards the 10 percent of funds that statute requires to be utilized for source water protection. This final rule adjusted the rule language to incorporate SWP as a priority.

Comment: NRCS received comment recommending that NRCS incorporate into the final rule benchmarks related to participation by HU groups to reflect the importance and increasing engagement of women who participate in RCPP, and to ensure that RCPP does not inadvertently favor large landowners. Comment also recommended adding language to identify HU groups as a priority in the proposal procedures (§ 1464.20), ranking and proposal selection (§ 1464.21), and partnership agreement (§ 1464.22) sections of the final rule.

Response: Consistent with the 2018 Farm Bill, NRCS gives priority consideration to RCPP proposals that provide outreach to, and engagement of, HU groups. (HU groups, as specified in the RCPP authorizing legislation, include beginning farmers or ranchers, socially disadvantaged farmers or ranchers, limited resource farmers or ranchers, and veteran farmers and ranchers. NRCS has and will continue to provide program-specific outreach to HU groups at the national, State, and local levels. These efforts are often tailored to the needs of the service area, with targeted efforts for HU producers. Gender is not a covered HU group, which is specified in the authorizing legislation; however, NRCS encourages the participation of all producers who are eligible.

This final rule encourages further HU producer and landowner enrollment, including requiring partnership agreements to denote any authorizations for higher payment rates, advance payment options, or other methods for encouraging HU participation. Changes are made in the final rule in response to these issues.

Comment: NRCS received comment requesting that the rule be updated to require partners to assess the conservation progress of their RCPP projects “in a quantified form to the extent practicable.” Comment further recommended the use of existing metrics for outcomes measurement, and also suggested that NRCS provide partners with geospatial data on new and existing practices to help facilitate outcomes measurement and reporting. Additionally, comment expressed concern that outcomes activities will further burden already strained NRCS staff capacity. Lastly, comment requested dedicated NRCS funding for monitoring conservation practices implemented as part of RCPP projects.

Response: The 2018 Farm Bill requires NRCS to gather quantitative data regarding conservation benefits, as set forth in the requirements of APFs. RCPP lead partners are required, to the extent practicable, to report on the conservation environmental outcomes of their projects. Reporting on economic, financial, and social outcomes is optional but encouraged. NRCS is committed to collaborating with lead partners to ensure that their reporting of outcomes help NRCS evaluate the value of RCPP investments. No changes are made in the final rule in response to these issues.

Comment: NRCS received comment suggesting a per-producer payment limit of $450,000 under RCPP, consistent with payment limitations under EQIP. Comment also suggested that NRCS base payment rates on real, local costs using prevailing wages or the regional Consumer Price Index.

Response: Payment limitations, such as those set forth in 7 CFR parts 1466 (EQIP) and 1470 (CSP) are established by statute. RCPP does not have a statutory payment limitation. NRCS plans to have activity-level limitations on producer contracts to ensure wider availability of funding. These limitations will be identified in partnership agreements and posted on NRCS State websites. No changes are made in the final rule in response to these issues.

Comment: NRCS received comment supporting increased NRCS staffing to focus on RCPP projects and communicate with partners, including strong support for the 2018 Farm Bill's requirement, as reflected in the interim rule, that each State identify an RCPP Coordinator.

Comment emphasized the need for designated program staff (including increasing staff where program workload was high) and urged that NRCS further support the RCPP State Coordinators by developing job descriptions for the new role and providing adequate time needed to fulfill the responsibilities. Comment also requested that states provide additional local, technical contacts for RCPP projects to ensure program goals are achieved and urged process efficiencies that allow NRCS technical partners, such as conservation districts, to implement projects without incurring NRCS staff time.

Additionally, NRCS received comment expressing concern about NRCS' dependence on partners and TSP, citing insufficient NRCS staffing at the state and local levels. Comment also requested that NRCS delegate authority to State and regional entities to carry out contract deliverables.

Response: NRCS has designated State RCPP coordinators. NRCS appreciates comments expressing concern about NRCS staffing capacity and NRCS' ability to meet and customer service needs in States with heavy workloads. No changes are made in the final rule in response to these issues.

Comment: NRCS received comment recommending that NRCS involve partners in implementing tools such as CART, ensure that all technology be in operation prior to accepting applications so that the process does not change midstream, and clarify how applicants will be selected for different program contract types. Comment additionally recommended including a standardized set of application questions and consistent reporting requirements, and that these be communicated to potential partners earlier in the process. Comment also expressed an interest in ensuring CART remain size-neutral.

Response: NRCS has and will continue to develop and improve our business tools, such as CART, including evaluating how to remain size-neutral. NRCS does not intend to change application procedures over the course of an application period, though it will continue to refine the process for future application periods. The process for matching an applicant with an RCPP contract depends on the nature of the specific programmatic agreement. No changes are made in this final rule in response to these issues.

Comment: NRCS received comment about RCPP's use of TSPs, including that NRCS do more to encourage the use of TSPs and allow technical assistance to be provided by entities other than NRCS-certified TSPs.

Response: Requirements about delivery of technical services through TSPs is covered in 7 CFR part 652. The TSP regulation identifies the requirements for a producer to be reimbursed for the cost of hiring a TSP to obtain technical services related to an NRCS conservation program, including RCPP, and such a TSP must be certified by NRCS. The TSP regulation also identifies that NRCS may obtain additional assistance in its delivery of technical assistance through a procurement contract or cooperative agreements. Since the solicitation methods used for those contract or agreement types ensure that NRCS obtains assistance from qualified TSPs, the TSP regulations specify that such TSPs do not also need to be certified under 7 CFR part 652. For more information, visit the NRCS TSP website at https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/technical/tsp/. No changes are made in the final rule in response to these issues.

Comment: NRCS received comment requesting clarification as to whether RCPP contracts can serve to meet existing compliance and enforcement requirements. Comment also encouraged separate contracts for easements on agricultural land, a focus on co-operators' needs and resources rather than program requirements, and that NRCS provide a visual depiction as to how the new contracting method will be efficient and independent. Comment also expressed support for skipping an eligible application on a ranking list if the remaining funding is insufficient to fund that application or for other limited circumstances that would warrant not selecting applications strictly according to rank order.

Response: Conservation activities funded under RCPP, as with other NRCS voluntary conservation programs, can address resource concerns that meet a producer's compliance requirements, provided that the producer is not under an administrative order or other compulsory enforcement process related to the producer's failure to meet those requirements. NRCS will provide informational materials to partners about the new contracting methods as requested. No changes to the rule were needed to address these issues.

Comment: Comment praised approval of salary expenses in PPAs and the ability to make selections out of rank order for critical projects. Comment also suggested that more clarification is needed in the rule on expenses incurred prior to PPA completion, how and when funding will become available, how funds for project management can be requested, who measures success in TA and FA activities, and how partnerships can be terminated.

Respondents suggested that NRCS should:

(a) Publicly report on its TA expenditures under PPAs;

(b) Require lead partners to periodically assess conservation benefits;

(c) Increase PPA length beyond 5 years if needed; and

(d) Establish that lead partners will be required to follow all applicable laws, rules, and guidelines expected of NRCS when awarding contracts.

Response: The RCPP statute specifies the terms for PPAs and no change is needed to address agreement duration in this rule. The AFAs provide detail as to the ability to receive payment for pre-PPA expenses. The terms and conditions associated with terminating a PPA are specified in the PPA itself. The regulation addresses the consequences should NRCS determine that PPA termination is necessary. No changes are made in the final rule in response to these issues.

Comment: NRCS received comment about several aspects of APFs, recommending that the RCPP regulation include similar detail as APFs regarding proposal requirements and the evaluation process beyond the four overarching pillars. Comment also requested language:

(a) Addressing circumstances under which “associated” non-agricultural lands would be eligible for RCPP;

(b) Defining “eligible activities” more clearly;

(c) Providing information about the percentages of project funding that will be available for FA versus TA; and

(d) Providing clear guidance on what can and cannot count as direct or in-kind partner contribution.

Further, NRCS received comment:

(a) Requesting clarity regarding “innovation” and “flexibility”;

(b) Identifying that limiting the percentage of funding that can be allocated using discretionary prioritization factors would increase transparency;

(c) Requesting that the RCPP Portal be active at the beginning of the application process; and

(d) Recommending language for the regulation to reflect conservation benefits as a proposal requirement.

Response: The funding announcement process and timeline, including the application questions and criteria, are published as part of each funding announcement. This process provides the greatest program flexibility regarding the diversity of partner capabilities, resource concerns, and other program goals. The criteria are made public and provide transparency about how NRCS is focusing its RCPP implementation. The circumstances about eligible activities, associated non-agricultural lands, and TA and FA percentages will be addressed in upcoming APFs.

Similarly, APFs include more information about “innovation,” selection criteria, and weightings as these terms relate to program priorities. Establishing funding percentages or limitations in the regulation would reduce NRCS's ability to tailor APFs to critical resource concerns. In response to comment, this rule revises §  1464.20(b) to focus proposal priorities on conservation benefits. No other changes are made in the final rule in response to these issues.

Comment: NRCS received comment recommending that RCPP rental contracts should be for 10 years, as that is the duration authorized under the Conservation Reserve Program (CRP).

Response: NRCS uses RCPP land rental contracts to focus on short-term, targeted rental needs in the context of a larger RCPP project, unlike the longer-term purpose of CRP rental contracts. RCPP rental contracts are focused on actions such as incentivizing adoption of an innovative cropping system or to transition to an organic production system and thus are short term (3 years). No change was made in response to this comment.

Comment: NRCS received comment covering a variety of RCPP activity types. For practice innovation related to land management contracts, comment recommended:

(a) Simplifying the process for adding interim conservation practice standards;

(b) Including practices focused on water recycling, the recycling of liquid waste, and the adoption of advanced nutrient recovery technology;

(c) Allowing a flexible fallow program to be eligible; and

(d) Allowing different practices and approaches to be used in the same RCPP project and not limit practices in RCPP project awards.

For rental contracts, comment recommended:

(a) Clarifying the availability and eligibility of land-rental practices (from CRP), especially for longer contracts and practices;

(b) Concern about not applying the Conservation Reserve Enhancement Program (CREP) authority for riparian buffers;

(c) Having project partners add a farmer mentor component to projects utilizing the short-term land rental option; and

(d) Clarifying whether the use of CRP authorities (16 U.S.C. 3831-3835) includes CREP.

For easement agreements, comment recommended:

(a) Expanding the reach of entity-held easements by allowing other land, including forested land, wetlands, and riparian areas, as it appeared to the commenter that the interim rule decoupled requirements specific to NRCS's Healthy Forests Reserve Program (HFRP); and

(b) Authorizing payments to producers participating in a project that addresses water quantity concerns and that would encourage conversion from irrigated to dryland farming.

Comment expressed support for the interim rule's inclusion of expanding Public Law 83-566 activities nationwide within RCPP. Finally, comment recommended that NRCS continue to allow for greater flexibility in RCPP activity types.

Response: NRCS will maintain the integrity of its RCPP practices to ensure wise use of Federal funds while supporting innovation. CREP is a component of CRP (administered by FSA), and CREP agreements are partnership agreements with state governments. NRCS believes that CREP-style agreements would be redundant to the RCPP partnership agreement and would not aid in meeting RCPP goals efficiently.

NRCS expanded the availability of both U.S.-held and entity-held easements to the full extent of the RCPP land eligibility criteria, and therefore the types of easements identified by the comment are already available. In addition, the 2018 Farm Bill expanded the availability of Public Law 83-566 authority nationwide, and NRCS has entered into PPAs that utilize the Public Law 83-566 authority beyond CCAs.

HFRP land eligibility criteria differs from RCPP criteria. RCPP forest land eligibility is limited to non-industrial private forest land, while HFRP eligibility encompasses commercial forest land as well.

No changes are made in the final rule in response to these issues.

Comment: Comment expressed support for the addition of supplemental agreements to the interim rule and recommended clarifying that NRCS consult with the lead partner when entering into a supplemental agreement with a non-lead partner and provide fuller discussion and clarification of the use of supplemental agreements.

Response: A supplemental agreement is a flexible vehicle for obligating RCPP funding to an eligible partner or third party to carry out authorized RCPP activities. Supplemental agreements are used generally to award TA funding, to implement watershed or public works projects, or to implement an entity-held easement agreement. As a condition of supplemental agreement(s), NRCS and a partner may negotiate documentation requirements for payment, based on agreement deliverables and activities. Supplemental agreements will require additional reporting beyond that required of the overall project's lead partner. No changes are made in the final rule in response to this issue.

In general, the Administrative Procedure Act (APA, 5 U.S.C. 553) requires that a notice of proposed rulemaking be published in the Federal Register and interested persons be given an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation, except when the rule involves a matter relating to public property, loans, grants, benefits, or contracts. This final rule involves matters relating to benefits and therefore is exempt from the APA requirements. Further, the regulations to implement the programs of chapter 58 of title 16 of the U.S. Code, as specified in 16 U.S.C. 3846, and the administration of those programs, are:

• To be made as an interim rule effective on publication, with an opportunity for notice and comment,

• Exempt from the Paperwork Reduction Act (44 U.S.C. ch. 35), and

• To use the authority under 5 U.S.C. 808 related to Congressional review and any potential delay in the effective date.

For major rules, the Congressional Review Act requires a delay in the effective date of 60 days after publication to allow for Congressional Review. This rule is a major rule under the Congressional Review Act, as defined by 5 U.S.C. 804(2). The authority in 5 U.S.C. 808 provides that when an agency finds for good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, that the rule may take effect at such time as the agency determines. Due to the nature of the rule, the mandatory requirements of the 2018 Farm Bill, and the need to implement the regulations expeditiously to provide RCPP assistance to producers, NRCS and CCC find that full notice and public procedure are contrary to the public interest. Therefore, even though this rule is a major rule for purposes of the Congressional Review Act of 1996, NRCS and CCC are not required to delay the effective date for 60 days from the date of publication to allow for Congressional review. Therefore, this rule is effective on the date of publication in the Federal Register . At the same time, NRCS and CCC note that this final rule reflects consideration of the comments that were provided in response to the interim rule.

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” established a federal policy to alleviate unnecessary regulatory burdens on the American people.

The Office of Management and Budget (OMB) designated this rule as economically significant under Executive Order 12866, and, therefore, OMB has reviewed this rule. The costs and benefits of this rule are summarized below. The full regulatory impact analysis is available on https://www.regulations.gov/.

Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” requires that in order to manage the private costs required to comply with federal regulations for every new significant or economically significant regulation issued, the new costs must be offset by the elimination of at least two prior regulations. This rule involves transfer payments and does not rise to the level required to comply with Executive Order 13771.

OMB guidance in M-17-21, dated April 5, 2017, specifies that “transfer rules” are not covered by Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.” Transfer rules are Federal spending regulatory actions that cause only income transfers between taxpayers and program beneficiaries. Therefore, this is considered a transfer rule and is not covered by Executive Order 13771.

RCPP is a voluntary collaborative program that provides financial and technical assistance to partner organizations to help agricultural producers plan and implement conservation activities to address natural resource concerns on private or Tribal agricultural, nonindustrial private forest and certain associated lands. RCPP was first authorized by Congress in the 2014 Farm Bill. To date, 375 projects have been selected across the U.S. and Puerto Rico leveraging $1 billion in NRCS technical and financial assistance with approximately $1.3 billion in partner contributions.

Under the 2014 Farm Bill, conservation activities were undertaken through partnership agreements (between NRCS and a lead partner) and contracts or agreements with eligible landowners, entities, and individuals under one or more covered programs (EQIP, CSP, ACEP, HFRP, and Pub. L. 83-566). EQIP, CSP, and ACEP each contributed seven percent of their annual funding toward RCPP partnership projects. In addition, the 2014 Farm Bill provided $100 million annually in direct RCPP mandatory funding.

The 2018 Farm Bill reauthorized RCPP with significant changes to how RCPP is funded. Specifically, the contributions from “covered programs” are eliminated as a funding source and “covered program contracts” are replaced with RCPP contracts and programmatic partnership agreements.

The 2018 Farm Bill repeals the seven percent reserved resources from the covered programs, provides $300 million in annual mandatory CCC funding, and establishes RCPP standalone contracts. Federal transfers under the 2014 Farm Bill totaled slightly more than $1 billion for FY2014 through 2018, or $200 million on an annual basis. The $300 million in mandatory annual funding increases RCPP funding by approximately $100 million annually, taking into account the past contribution of the “covered programs” for fiscal years 2014 through 2018.

The 2018 Farm Bill also changed the “funding pool” structure by streamlining from three pools to two pools and providing 50 percent of funds to a CCA pool and 50 percent of funds to a state and multi-state pool. It also allows project renewals and creates new programmatic authorities and expectations for the administration of agreements with partners. In addition, application and renewal processes are simplified to encourage participation by both producers and project partners. To ensure that only the most successful of projects qualify for renewal on a non-competitive basis, NRCS has identified in this rule that a partner has met or exceeded the objectives of the original project in order to be considered for renewal.

Estimates of costs, benefits, and transfers of RCPP on an annual basis are reported in Table 1. Given a 3 percent discount rate, the projected annualized real cost to producers of accessing RCPP is $204,258 and the projected annualized real transfers are $289 million. Conservation benefits from RCPP are difficult to quantify at a national scale but have been described by studies at an individual project or watershed or local scale as it relates the different types of conservation practices implemented.

Most of this rule's impact consists of transfer payments from the Federal Government to producers or to partners for the benefit of producers. The conservation benefits of RCPP financial and technical assistance funding delivered to date have been directly comparable to that provided by covered programs (EQIP, CSP, ACEP, etc.), and similar benefits are expected from RCPP funding under the 2018 Farm Bill.

Additionally, conservation benefits of partner contributions and collaboration in RCPP projects are expected to magnify the benefits of RCPP funding over each project's life, offsetting initial delays in obligation and implementation. NRCS will discuss methods to quantify the incremental benefits obtained from RCPP with lead partners, but due to the 5-year life of a typical RCPP project, only limited data are available at this time to support this conclusion. Therefore, NRCS and partners may use various mechanisms such as modeling to predict long-term outcomes. Despite these data limitations, RCPP is expected to positively affect natural resource concerns—through both the $300 million in funding provided annually by Congress and by the leverage of partner contributions.

Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to the substantive comments NRCS received on the interim rule, NRCS invited public comments on how to make the rule easier to understand. NRCS has incorporated these recommendations for improvement where appropriate. NRCS responses to public comment are described in more detail above.

The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory analysis of any rule whenever an agency is required by APA or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is not subject to the Regulatory Flexibility Act because no law requires that a proposed rule be published for this rulemaking initiative.

The environmental impacts of this rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the NRCS regulations for compliance with NEPA (7 CFR part 650). The 2018 Farm Bill requires minor changes to NRCS conservation programs, and there are no changes to the basic structure of the programs. The analysis has determined that there will not be a significant impact to the human environment and as a result, an environmental impact statement (EIS) is not required to be prepared (40 CFR1501.5 and 1501.6). While OMB has designated this rule as “economically significant” under Executive Order 12866, “. . . economic or social effects are not intended by themselves to require preparation of an environmental impact statement” (40 CFR 1502.16(b)), when not interrelated to natural or physical environmental effects. The Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) were available for review and comment for 30 days from the date of publication of this interim rule in the Federal Register . NRCS considered this input and determined that there was not any new information provided that was relevant to environmental concerns or bore on the proposed action or its impacts that warranted an environmental impact statement or revising the current available RCPP EA and FONSI.

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

This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. Before any judicial actions may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR part 11 are to be exhausted, consistent with 7 U.S.C. 6912(e).

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

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

The USDA's Office of Tribal Relations (OTR) has assessed the impact of this rule on Indian Tribes and determined that this rule does not have significant Tribal implications that require Tribal consultations. Moreover, OTR states that NRCS has adhered to the spirit and intent of Executive Order 13175. Tribal consultation for this rule was included in the two 2018 Farm Bill Tribal consultation held on May 1, 2019, at the National Museum of the American Indian, in Washington, DC, and on June 26-28, 2019, in Sparks, NV. For the May 1, 2019, Tribal consultation, the portion of the Tribal consultation relative to this rule was conducted by Bill Northey, USDA Under Secretary for the Farm Production and Conservation mission area, as part of the Title II session. There were no specific comments from Tribes on the RCPP rule during the Tribal consultation. If a tribe requests additional consultation, NRCS will work with OTR to ensure that meaningful consultation is provided where changes, additions, and modifications identified in this rule are not expressly mandated by legislation.

Separate from Tribal consultation, communication and outreach efforts are in place to assure that all producers, including Tribes (or their members), are provided information about the regulation changes. Specifically, NRCS obtains input through Tribal Conservation Advisory Councils. A Tribal Conservation Advisory Council may be an existing Tribal committee or department and may also constitute an association of member Tribes organized to provide direct consultation to NRCS at the State, regional, and national levels to provide input on NRCS rules, policies, programs, and impacts on Tribes. Tribal Conservation Advisory Councils provide a venue for agency leaders to gather input on Tribal interests. Additionally, NRCS held discussions subsequent to the interim rule publication with Indian Tribes and Tribal entities to continue discussions about the 2018 Farm Bill conservation programs implementation, obtain input about how to improve Tribal and Tribal member access to NRCS conservation assistance, and make any appropriate adjustments to the regulations that will foster such improved access.

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

The title and number of the Federal Domestic Assistance Programs in the Catalog of Federal Domestic Assistance to which this rule applies:

10.932—Regional Conservation Partnership Program.

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

Accordingly, the interim rule amending 7 CFR part 1464, which was published at 85 FR 8131 on February 13, 2020, including the technical correction published at 85 FR 15051 on March 17, 2020, is adopted as a final rule with the following changes:

On November 5, 2020 (85 FR 70435), the NRC published a direct final rule amending its regulations in part 2 of title 10 of the Code of Federal Regulations to reflect current Atomic Safety and Licensing Board Panel practice, Commission case law, and a decision of the Supreme Court of the United States and to enhance consistency within the NRC's regulations. In the direct final rule, the NRC stated that, if no significant adverse comments were received, then the direct final rule would become effective on January 19, 2021. The NRC received one, out of scope comment on the direct final rule. Therefore, the direct final rule will become effective as scheduled.

Congress passed the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA) to allow for regular adjustment for inflation of civil monetary penalties (CMPs), maintain the deterrent effect of such penalties and promote compliance with the law, and improve the collection of CMPs by the Federal government (Pub. L. 101-410, 104 Stat. 890; 28 U.S.C. 2461 note). Pursuant to this authority, and as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-34, 110 Stat. 1321-373), the NRC increased via rulemaking the CMP amounts for violations of the Atomic Energy Act of 1954, as amended (AEA) (codified at § 2.205 of title 10 of the Code of Federal Regulations (10 CFR)) and Program Fraud Civil Remedies Act (codified at § 13.3) on four occasions between 1996 and 2008. 1

On November 2, 2015, Congress amended the FCPIAA through the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Improvements Act) (Sec. 701, Pub. L. 114-74, 129 Stat. 599). The 2015 Improvements Act required that the head of each agency perform an initial “catch-up” adjustment via rulemaking, adjusting the CMPs enforced by that agency according to the percentage change in the Consumer Price Index (CPI) between the month of October 2015 and the month of October of the calendar year when the CMP amount was last established by Congress. The NRC performed this catch-up rulemaking on July 1, 2016 (81 FR 43019).

The 2015 Improvements Act also requires that the head of each agency continue to adjust CMP amounts, rounded to the nearest dollar, on an annual basis. Specifically, each CMP is to be adjusted based on the percentage change between the CPI for the previous month of October, and the CPI for the month of October in the year preceding that. The NRC most recently adjusted its civil penalties for inflation according to this statutory formula on January 15, 2020 (85 FR 2281), and corrected on February 20, 2020 (85 FR 9661). This year's adjustment is based on the increase in the CPI from October 2019 and October 2020.

Section 234 of the AEA limits civil penalties for violations of the AEA to $100,000 per day, per violation (42 U.S.C. 2282). However, as discussed in Section I, “Background,” of this document, the NRC has increased this amount several times since 1996 per the FCPIAA, as amended. Using the formula in the 2015 Improvements Act, the $303,471 amount last established in January 2020 will increase by 1.182 percent, resulting in a new CMP amount of $307,058. This is based on the increase in the CPI from October 2019 (257.346) to October 2020 (260.388). Therefore, the NRC is amending § 2.205 to reflect a new maximum CMP under the AEA in the amount of $307,058 per day, per violation. This represents an increase of $3,587.

Monetary penalties under the Program Fraud Civil Remedies Act were established in 1986 at $5,000 per claim (Pub. L. 99-509, 100 Stat. 1938; 31 U.S.C. 3802). The NRC also has adjusted this amount (currently set at $11,665) multiple times pursuant to the FCPIAA, as amended, since 1996. Using the formula in the 2015 Improvements Act, the $11,665 amount last established in January 2020 will also increase by 1.182 percent, resulting in a new CMP amount of $11,803. Therefore, the NRC is amending § 13.3 to reflect a new maximum CMP amount of $11,803 per claim or statement. This represents an increase of $138.

As permitted by the 2015 Improvements Act, the NRC may apply these increased CMP amounts to any penalties assessed by the agency after the effective date of this final rule (January 15, 2021), regardless of whether the associated violation occurred before or after this date (Pub. L. 114-74, 129 Stat. 600; 28 U.S.C. 2461 note). The NRC assesses civil penalty amounts for violations of the AEA based on the class of licensee and severity of the violation, in accordance with the NRC Enforcement Policy, which is available under ADAMS Accession No. ML19352E921.

The 2015 Improvements Act expressly exempts this final rule from the notice and comment requirements of the Administrative Procedure Act, by directing agencies to adjust CMPs for inflation “notwithstanding section 553 of title 5, United States Code” (Pub. L. 114-74, 129 Stat. 599; 28 U.S.C. 2461 note). As such, this final rule is being issued without prior public notice or opportunity for public comment, with an effective date of January 15, 2021.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; 28 U.S.C. 2461 note; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 2 and 13:

On January 4, 2021, DOE published a final rule amending the test procedures for small electric motors and electric motors. 86 FR 4. This document corrects the regulatory text instruction for appendix B to subpart B of part 431. In FR Doc. 2020-27662 appearing on page 4, in the Federal Register of Monday, January 4, 2021, the following correction is made:

On page 22, in the first column, amendatory instruction 6.e., “Redesignating Sections 4, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, and 4.8 as Sections 3, 3.1, 3.2, 3.4, 3.5, 3.6, 3.7, and 3.8 respectively;” is corrected to read “Redesignating Sections 4, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, and 4.8 as Sections 3, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, and 3.8 respectively;”.

This document of the Department of Energy was signed on January 8, 2021, by Daniel R Simmons, Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

DOE issues this final rule to update regulations in accordance with the requirements of Executive Order 13953, “Addressing the Threat to the Domestic Supply Chain from Reliance on Critical Minerals from Foreign Adversaries,” 85 FR 62539 (Sept. 30, 2020). Executive Order 13953 establishes policy pertaining to lending activities by LPO pursuant to Title XVII of the Energy Policy Act of 2005, as amended (42 U.S.C. 16511, et seq. ) (“Title XVII”), and Section 136 of the Energy Independence and Security Act of 2007, as amended (42 U.S.C. 17013) (the “ATVM Statute”), as they apply to “Critical Minerals,” “Critical Minerals Production,” and related activities, including activities related to minerals more broadly. Executive Order 13953 requires that DOE update the relevant regulation in accordance with the policy presented in the Executive order.

Executive Order 13953 requires that DOE LPO establish amended policies and procedures for the issuance of DOE loan guarantees, in order to provide financial support to eligible projects that will support a domestic supply chain for critical minerals and critical minerals production. The rule will establish revised policies and procedures for receiving, evaluating, and approving applications for loan guarantees from DOE. The rule will revise the definition of Eligible Project, for both the Title XVII and ATVM Programs, consistent with E.O. 13953 and address the use of Preliminary Term sheets and conditional commitments, as well as the payment of costs and fees by non-Federal third parties. These changes will facilitate the accessibility and availability of loan guarantees from DOE to potential applicants in both the critical minerals space, as well as traditional innovative projects. These changes also will allow for the use of Preliminary Term sheets between DOE and potential applicants in the critical minerals space and other innovative projects. The use of Preliminary Term Sheets will aid potential applicants in obtaining their offtake agreements, while negotiating with DOE for a potential loan guarantee, subject to conditions required by DOE. The final rule will also clarify that payment by non-Federal third parties of costs and fees associated with a loan guarantee will be permissible, where necessary, to support the applicant. As required by Executive Order 13953, these changes will make DOE loan guarantees more available and accessible to critical minerals projects.

This final rule is not a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review.” 58 FR 51735 (October 4, 1993). The rule revises the definition of Eligible Project consistent with E.O. 13953 and clarifies DOE's procedures for the review of applications to LPO for loan guarantees under the Title XVII Program and funding awards and loans under the ATVM Program.

On January 30, 2017, the President issued Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.” See 82 FR 9339 (January 30, 2017). E.O. 13771 states that the policy of the executive branch is to be prudent and financially responsible in the expenditure of funds, from both public and private sources. E.O. 13771 states that it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.

Additionally, on February 24, 2017, the President issued Executive Order 13777, “Enforcing the Regulatory Reform Agenda.” The order required the head of each agency designate an agency official as its Regulatory Reform Officer (RRO). Each RRO oversees the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms, consistent with applicable law. Further, E.O. 13777 requires the establishment of a regulatory task force at each agency. The regulatory task force is required to make recommendations to the agency head regarding the repeal, replacement, or modification of existing regulations, consistent with applicable law. At a minimum, each regulatory reform task force must attempt to identify regulations that:

(i) Eliminate jobs, or inhibit job creation;

(ii) Are outdated, unnecessary, or ineffective;

(iii) Impose costs that exceed benefits;

(iv) Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;

(v) Are inconsistent with the requirements of Information Quality Act, or the guidance issued pursuant to that Act, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or

(vi) Derive from or implement Executive orders or other Presidential directives that have been subsequently rescinded or substantially modified.

Finally, on March 28, 2017, the President signed Executive Order 13783, entitled “Promoting Energy Independence and Economic Growth.” Among other things, E.O. 13783 requires the heads of agencies to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. Such review does not include agency actions that are mandated by law, necessary for the public interest, and consistent with the policy set forth elsewhere in that order.

DOE concludes that this final rule is consistent with the directives set forth in these Executive orders. This final rule is expected to be an E.O. 13771 deregulatory action. The provisions in this final rule, as described in section II, revise the definition of Eligible Project consistent with E.O. 13953 and establish amended policies and procedures for the issuance of DOE loan guarantees, funding awards and loans in accordance with Executive Order 13953 and for receiving, evaluating, and approving applications for loan guarantees from DOE.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. Because a notice of proposed rulemaking is not required for this action pursuant to 5 U.S.C. 553, or any other law, no regulatory flexibility analysis has been prepared for this final rule.

In addition, DOE notes that the rule would clarify DOE's policies and procedures for processing applications for loan guarantees, funding awards, and loans, and would not impose a burden on applicants, including small entities. Specifically, these changes will facilitate the accessibility and availability of loan guarantees, funding awards, and loans from DOE to potential applicants in the critical minerals space, as well as for traditional innovative projects. The changes also will allow for the use of Preliminary Term sheets between DOE and potential applicants in the critical minerals space and for other innovative projects. The use of Preliminary Term Sheets will aid potential applicants in obtaining their offtake agreements, while negotiating with DOE for a potential loan guarantee, subject to conditions required by DOE. The final rule will clarify that payment by non-Federal third parties of costs and fees associated with a loan guarantee will be permissible, where necessary, to support the applicant.

The final rule would impose no new information or record keeping requirements. Accordingly, Office of Management and Budget (OMB) clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et seq. ). The information collection necessary to administer DOE loan guarantees for projects that employ innovative technologies under 10 CFR part 609 is subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The information collection provisions of this part were previously approved by OMB under OMB Control No. 1910-5134.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

DOE has determined that this final rule will be covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A5 of appendix A to subpart D, 10 CFR part 1021, which applies to a rulemaking that amends an existing rule or regulation and that does not change the environmental effect of the rule or regulation being amended. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this final rule and has determined that it will not preempt State law and will not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)). The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at http://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf. UMRA sections 202 and 205 do not apply to this action because they apply only to rules for which a general notice of proposed rulemaking is published. Nevertheless, DOE has determined that this final rule does not contain a Federal intergovernmental mandate, nor is it expected to require expenditures of $100 million or more in any one year by the private sector.

Section 654 of the Treasury and General Government Appropriations Act, 1999, 5 U.S.C. 601 note, requires Federal agencies to issue a Family Policymaking Assessment for any rulemaking that may affect family well-being. While this final rule will apply to individuals who may be members of a family, the rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed the final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action will not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

In accordance with 5 U.S.C. 553(b), the Administrative Procedure Act, DOE generally publishes a proposed rule and solicits public comment on it before issuing the rule in final. DOE also generally provides at least a 30-day delay in effective date for final rules pursuant to 5 U.S.C. 553(d). This rulemaking, as a matter relating to loans, is exempt from the requirement to publish a notice of proposed rulemaking under 5 U.S.C. 553(a)(2). In addition, Executive Order 13953 specifically directs DOE to consider LPO loan guarantees, funding awards, and loans involving critical minerals projects and supply chains, and such projects that otherwise satisfy the requirements of Title XVII and the ATVM Statute are already accepted, and deemed to be, “Eligible Projects” by DOE under applicable law and regulations.

As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of this final rule prior to the effective date set forth at the outset of this rulemaking. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).

The Secretary of Energy has approved publication of this final rule.

This document of the Department of Energy was signed on December 31, 2020, by Steven E. Winberg, Acting Under Secretary of Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register.

For the reasons stated in the preamble, DOE amends parts 609 and 611 of chapter II of title 10 of the Code of Federal Regulations as set forth below:

The Board of Governors of the Federal Reserve System (Board) is issuing this correction to the definition of eligible retained income in the capital rule, 12 CFR part 217. This definition is used for calculating limitations on capital distributions and discretionary bonus payments and was adopted as an interim final rule published on March 18, 2020 (ERI interim final rule), 1 and as a final rule published on October 8, 2020 (ERI final rule). 2 In the ERI interim final rule, the Board, together with the Office of the Comptroller of the Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC, and together with the Board and the OCC, the agencies), revised the definition of eligible retained income at section __.11(a)(2)(i) of the capital rule on an interim basis and sought comment on the revisions. In the ERI final rule, the agencies adopted these changes to the definition of eligible retained income, introduced through the ERI interim final rule, without change.

On March 20, 2020, the Board published in the Federal Register a final rule, effective May 18, 2020, implementing the stress capital buffer requirement in the capital rule (SCB final rule), which revised section 217.11 of the Board's capital rule generally. The SCB final rule revised the definition of eligible retained income in section 217.11 of the Board's capital rule in a manner inconsistent with the the Board's intent in the ERI interim final rule and the ERI final rule. The Board is issuing this notice to correct the definition of eligible retained income so that it is consistent with the definition established by the ERI interim final rule and affirmed by the ERI final rule.

For the reasons set forth in the Supplementary Information, chapter II of title 12 of the Code of Federal Regulations is amended as follows:

The Bureau is issuing this AO through the procedures for its Advisory Opinions Policy. 1 Refer to those procedures for more information.

Congress enacted the Equal Credit Opportunity Act (ECOA or the Act) in 1974, initially prohibiting discrimination in credit on the basis of sex or marital status. 2 Two years later, Congress expanded the prohibition against discrimination in credit transactions to include age, race, color, religion, national origin, receipt of public assistance benefits, and exercise of rights under the Federal Consumer Credit Protection Act. 3 At the same time, under section 701(c) of the ECOA, Congress clarified that it does not constitute discrimination under the Act for a creditor to “refuse to extend credit offered pursuant to” “any special purpose credit program offered by a profit-making organization to meet special social needs which meets standards prescribed in regulations by the [Bureau].”  4

By permitting the consideration of a prohibited basis such as race, national origin, or sex in connection with a special purpose credit program, Congress protected a broad array of programs “specifically designed to prefer members of economically disadvantaged classes” and “to increase access to the credit market by persons previously foreclosed from it.”  5 Congress provided examples of such programs— e.g., government sponsored housing credit subsidies for the aged or the poor and programs offering credit to a limited clientele such as credit union programs and educational loan programs. 6

The Board of Governors of the Federal Reserve System (Board)—which exercised rulemaking authority under the ECOA at the time—promulgated regulations implementing the Act's special purpose credit program provision. 7 In the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Congress transferred primary rulemaking authority over the ECOA to the Bureau, 8 which subsequently republished the Board's existing regulations without material change. 9 The Bureau has addressed special purpose credit programs in a previous edition of Supervisory Highlights   10 and a blog, 11 explaining that special purpose credit programs may be one tool available to creditors to “meet the credit needs of underserved communities.”  12

In recent months, stakeholders have expressed interest in developing special purpose credit programs but have also raised questions about how to do so in a manner consistent with Regulation B, indicating that regulatory uncertainty may inhibit broader creation of these programs by creditors. Many comments to the Bureau's recent Request for Information on the Equal Credit Opportunity Act and Regulation B   13 from a variety of external stakeholders, including both consumer and civil rights advocates and industry representatives, indicate that special purpose credit programs may be one way to promote fair and responsible access to credit, but that there is a need for further guidance on compliant implementation of these programs.

The Bureau is issuing this AO to address this regulatory uncertainty in the hope that broader creation of special purpose credit programs by creditors will help expand access to credit among disadvantaged groups and will better address special social needs that exist today. Bureau stakeholders have called attention to the problem of unmet credit needs among minority communities and the role that discrimination may have played in creating and exacerbating those deficits. Research from the Federal Reserve Bank of New York has shown that inequities in credit availability and in the terms and conditions of credit appear to have led to income inequality. 14 For consumers who own a home, moreover, home equity represents a significant share of household net worth, 15 but Home Mortgage Disclosure Act (HMDA) data show that in 2019, Black, Hispanic White, and Asian borrowers had notably higher mortgage loan denial rates than non-Hispanic White borrowers, continuing a trend from years prior. 16 For example, the denial rates for conventional home-purchase loans were 16.0 percent for Black borrowers, 10.8 percent for Hispanic White borrowers, and 8.6 percent for Asian borrowers; in contrast, denial rates for such loans were 6.1 percent for non-Hispanic White borrowers. 17 Black and Hispanic White borrowers were also more likely to have higher-priced conventional and nonconventional loans in 2019. 18

According to some studies, these types of racial and ethnic differences in access to credit perpetuate wealth inequality. 19 The Board's 2019 Survey of Consumer Finances, for example, indicates that the typical White family has $188,200 in median family wealth, which is eight times the wealth of the typical Black family ($24,100), and five times the wealth of the typical Hispanic family ($36,100). 20 Other families—including Asian families—also “have lower wealth than White families.”  21 The economic fallout from the ongoing COVID-19 pandemic appears to be exacerbating these racial and ethnic disparities in wealth. 22

Bureau stakeholders have also noted that racial and ethnic disparities in access to credit extend beyond the mortgage market. For example, a report from the Board documented disparities in both mortgage and non-mortgage credit denials among White, Black, and Hispanic credit applicants. 23 Specifically, White credit applicants reported being denied for credit—including, but not limited to, mortgage credit—at a rate of 17.3 percent; Black credit applicants reported being denied for credit at a rate of 41.3 percent; and Hispanic credit applicants reported being denied for credit at a rate of 34.6 percent. 24 In the small business lending context, a report by the Board showed that “[o]n average, Black- and Hispanic-owned firm applicants received approval for smaller shares of the financing they sought compared to White-owned small businesses that applied for financing. This same report noted that larger shares of Black-, Hispanic-, and Asian-owned firm applicants did not receive any of the financing they applied for—38%, 33%, and 24%, respectively—compared to 20% of White-owned business applicants.”  25

In recent months, multiple financial institutions have publicly committed to making billions of dollars available to addressing racial wealth disparities. 26 Bureau stakeholders have indicated that investments in special purpose credit programs may allow for better expansion of credit access to underserved communities.

This AO applies solely to certain aspects of special purpose credit programs ( i.e., those described in part I.C below) designed and implemented by for-profit organizations to meet special social needs under the Regulation B requirements identified below. This AO does not apply to any credit assistance program expressly authorized by Federal or State law for the benefit of an economically disadvantaged class of persons, or to any credit assistance program offered by a not-for-profit organization, as defined under section 501(c) of the Internal Revenue Code of 1954, as amended, for the benefit of its members or for the benefit of an economically disadvantaged class of persons. 27 This AO has no application to any other circumstance and does not offer a legal interpretation of any other provisions of law.

It is not discrimination under the ECOA for a creditor to refuse to extend credit offered pursuant to a legally compliant special purpose credit program. 28 Regulation B, which implements the ECOA, sets forth compliance standards and general rules for special purpose credit programs. A for-profit organization that offers or participates in a special purpose credit program to meet special social needs must establish and administer the special purpose credit program pursuant to a “written plan” that identifies the class of persons the program is designed to benefit and sets forth the procedures and standards for extending credit pursuant to the program. 29 In addition, a for-profit organization that offers or participates in a special purpose credit program to meet special social needs must establish and administer the special purpose credit program to extend credit to a class of persons who, under the organization's customary standards of creditworthiness, probably would not receive such credit or would receive it on less favorable terms than are ordinarily available to other applicants applying to the organization for a similar type and amount of credit. 30

Regulation B is clear that a special purpose credit program qualifies as such only where the program was established and is administered so as not to discriminate against an applicant on any prohibited basis. 31 All program participants may be required, however, to share one or more common characteristics (for example, race, national origin, or sex) so long as the program is not established and is not administered with the purpose of evading the requirements of the ECOA or Regulation B. 32 If participants in a special purpose credit program are required to possess one or more common characteristics and if the program otherwise satisfies the applicable requirements of Regulation B, a creditor may request and consider information regarding the common characteristic(s) in determining the applicant's eligibility for the program. 33

The Bureau does not determine whether individual programs qualify for special purpose credit status. 34 The creditor administering or offering the special purpose credit program must make these decisions regarding the status of its program. 35 It follows that a creditor may initiate a special purpose credit program without the approval of the Bureau.

A for-profit organization must establish and administer a special purpose credit program pursuant to a written plan. 36 The plan must contain information that supports the need for the program, including:

• The class of persons that the program is designed to benefit;

• The procedures and standards for extending credit pursuant to the program;

• Either (i) the time period during which the program will last or (ii) when the program will be reevaluated to determine if there is a continuing need for it; and

• A description of the analysis the organization conducted to determine the need for the program. 37

Each of these required components is discussed in further detail below. For-profit organizations that draft written plans containing the necessary elements as set forth in Regulation B and herein will satisfy the requirement of 12 CFR 1002.8(a)(3)(i).

The class of persons that a special purpose credit program is designed to benefit must consist of those “who would otherwise be denied credit or would receive it on less favorable terms.”  38 A written plan must explain whether the class of persons will be required to demonstrate a financial need and/or share a common characteristic. 39 Such a class could be defined with or without reference to a characteristic that is otherwise a prohibited basis under the ECOA. For example, if need is determined in accordance with part I.D.2 below, a for-profit organization's written plan might identify a class of persons as minority residents of low-to-moderate income census tracts, residents of majority-Black census tracts, operators of small farms in rural counties, minority- or woman-owned small business owners, consumers with limited English proficiency, or residents living on tribal lands.

A written plan must also set forth the procedures and standards for extending credit pursuant to the special purpose credit program. 40 Those procedures and standards must be designed to increase the likelihood that a class of persons “who would otherwise be denied credit” will receive credit pursuant to the program, or that a class of persons who “would receive [credit] on less favorable terms” will receive credit on more favorable terms pursuant to the program. 41 To accomplish these goals a creditor may, for example, introduce a new product or service, modify the terms and conditions or certain eligibility requirements for an existing product or service, or modify policies and procedures related to certain loss mitigation programs, such as loan modifications. For example, a creditor may offer a new small business loan product for woman-owned businesses by relaxing its customary standard of requiring three years of experience in the industry to one year, if the creditor has determined that this requirement would probably prevent woman-owned businesses from qualifying for small business financing. The written plan must describe the procedures and standards adopted and explain how they will increase credit availability with respect to the identified class of persons. If the class of persons the program is designed to benefit will be required to share a common characteristic, the written plan may also explain whether the organization will request and consider information that would otherwise be prohibited under the ECOA. 42

The written plan must provide “a specific period of time for which the program will last” or “contain a statement regarding when the program will be reevaluated to determine if there is a continuing need for it.”  43 If an organization opts for the latter approach, reevaluation could be made contingent on a certain set of circumstances or simply a set date. The written plan could also adopt a combined approach—for example, the special purpose credit program could end on a set date, or when a pre-established origination volume has been reached, whichever occurs earlier. If an organization extends the program beyond what is set forth in its written plan, it must document the terms of that extension in order to ensure the program continues to be administered pursuant to a written plan.

A special purpose credit program must be “established and administered”  44 to benefit a class of people who would otherwise be denied credit or would receive it on less favorable terms, as determined by a “broad analysis,”  45 and it must be “established and administered pursuant to a written plan.”  46 The Official Interpretations to Regulation B further provide that a written plan “must contain information that supports the need for the particular program.”  47 Thus, a for-profit organization's written plan must describe or incorporate the analysis that supports the need for the program.

In designing a special purpose credit program, a for-profit organization must determine that the program will benefit a class of persons who would otherwise be denied credit or would receive it on less favorable terms. This determination can be based on a broad analysis using the organization's own research or data from outside sources, including governmental reports and studies. 48 The Official Interpretations to Regulation B provide two examples: First, “a creditor might design new products to reach consumers who would not meet, or have not met, its traditional standards of creditworthiness due to such factors as credit inexperience or the use of credit sources that may not report to consumer reporting agencies”; and second, “a bank could review [HMDA] data along with demographic data for its assessment area and conclude that there is a need for a special purpose credit program for low-income minority borrowers.”  49

For-profit organizations may rely on a wide range of research or data to analyze whether a special purpose credit program is needed to benefit a class of persons who would otherwise be denied credit or would receive it on less favorable terms. 50 A for-profit organization's analysis might consider research or data that are already in the public domain. The Official Interpretations to Regulation B cite HMDA data as one example. 51 In the case of small business lending, the Small Business Administration or the Board's Small Business Credit Surveys are possible sources of information. Other governmental or academic reports and studies exploring the historical and societal causes and effects of discrimination may also be considered. Finally, the for-profit organization's own data or research—if available—may be a helpful source for conducting an analysis to determine if there is a need for a special purpose credit program.

While a for-profit organization may permissibly rely on a broad range of research or data—including historical and societal information—in determining whether a special purpose credit program is needed, the organization's analysis must show how “a class of people [] would otherwise be denied credit or would receive it on less favorable terms” under the organization's customary credit standards. 52 The for-profit organization must be able to show a connection between the research or data informing its analysis and the fact that, under the organization's customary standards of creditworthiness, a class of persons probably would not receive credit or would receive it on less favorable terms than are ordinarily available to other applicants applying to the organization for a similar type and amount of credit. For example, a creditor who identifies a class of certain applicants who do not have sufficient savings to meet mortgage loan requirements (or who receive such loans on less favorable terms) could offer such applicants down payment assistance funds pursuant to a special purpose credit program. In this example, the creditor could demonstrate that under its own standards of creditworthiness, e.g., either (1) “insufficient cash” is listed as a principal reason for the denial of similar mortgage loan applications among the identified class of applicants frequently enough to indicate that they probably would not receive credit; or (2) requirements regarding minimum amounts of cash to close or liquid assets will probably impair credit access for the identified class of applicants. 53

Lastly, the Bureau notes that pursuant to Regulation B, “[i]f participants in a special purpose credit program . . . are required to possess one or more common characteristics (for example, race, national origin, or sex) and if the program otherwise satisfies the requirements of [Regulation B], a creditor may request and consider information regarding the common characteristic(s) in determining the applicant's eligibility for the program.”  54 If no special purpose credit program has yet been established, however, a creditor may use statistical methods to estimate demographic characteristics but it cannot request demographic information that it is otherwise prohibited from collecting, even to determine whether there is a need for such a program. Moreover, while a for-profit organization may rely on a broad swath of research and data to determine the need for a special purpose credit program—including the organization's own lending data—it may not violate Regulation B's prohibitions on the collection of demographic information exclusively to conduct this preliminary analysis before establishing a special purpose credit program. 55

Once a special purpose credit program has been established, a creditor may then request and consider information regarding common characteristic(s) if needed to determine the applicant's eligibility for the program. For example, if a creditor establishes a special purpose credit program that requires that an applicant resides in an area that is designated as a low-to-moderate income census tract and is Black, Hispanic, or Asian, a creditor could request race or ethnicity information from applicants to confirm eligibility for the program.

This advisory opinion is an interpretive rule issued under the Bureau's authority to interpret the ECOA and Regulation B, including under section 1022(b)(1) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which authorized guidance as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of Federal consumer financial laws. 56

By operation of the ECOA section 706(e), no provision of the ECOA imposing any liability applies to any act done or omitted in good faith in conformity with this interpretive rule, notwithstanding that after such act or omission has occurred, the interpretive rule is amended, rescinded, or determined by judicial or other authority to be invalid for any reason. 57

As an interpretive rule, this advisory opinion is exempt from the notice-and-comment rulemaking requirements of the Administrative Procedure Act. 58 Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 59 The Bureau also has determined that this interpretive rule does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring approval by the Office of Management and Budget under the Paperwork Reduction Act. 60

Pursuant to the Congressional Review Act, 61 the Bureau will submit a report containing this interpretive rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to the rule's published effective date. The Office of Information and Regulatory Affairs has designated this interpretive rule as not a “major rule” as defined by 5 U.S.C. 804(2).

The Director of the Bureau, Kathleen L. Kraninger, having reviewed and approved this document, is delegating the authority to electronically sign this document to Grace Feola, a Bureau Federal Register Liaison, for purposes of publication in the Federal Register .

The Federal Civil Penalties Inflation Adjustment Act of 1990, 1 as amended by the Debt Collection Improvement Act of 1996  2 and further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act), 3 directs Federal agencies to adjust for inflation the civil penalty amounts within their jurisdiction not later than July 1, 2016, and then not later than January 15 every year thereafter. 4 Each agency was required to make the 2016 one-time catch-up adjustments through an interim final rule published in the Federal Register . On June 14, 2016, the Bureau published its interim final rule (IFR) to make the initial catch-up adjustments to civil penalties within the Bureau's jurisdiction. 5 The June 2016 IFR created a new part 1083 and in 1083.1 established the inflation-adjusted maximum amounts for each civil penalty within the Bureau's jurisdiction. 6 The Bureau finalized the IFR on January 31, 2019. 7

The Inflation Adjustment Act also requires subsequent adjustments to be made annually, not later than January 15, and notwithstanding section 553 of the Administrative Procedure Act (APA). 8 The Bureau annually adjusted its civil penalty amounts, as required by the Act, through rules issued in January 2017, January 2018, January 2019, and January 2020. 9

Specifically, the Act directs Federal agencies to adjust annually each civil penalty provided by law within the jurisdiction of the agency by the “cost-of-living adjustment.”  10 The “cost-of-living adjustment” is defined as the percentage (if any) by which the Consumer Price Index for all-urban consumers (CPI-U) for the month of October preceding the date of the adjustment, exceeds the CPI-U for October of the prior year. 11 The Director of the Office of Management and Budget (OMB) is required to issue guidance (OMB Guidance) every year by December 15 to agencies on implementing the annual civil penalty inflation adjustments. Pursuant to the Inflation Adjustment Act and OMB Guidance, agencies must apply the multiplier reflecting the “cost-of-living adjustment” to the current penalty amount and then round that amount to the nearest dollar to determine the annual adjustments. 12 The adjustments are designed to keep pace with inflation so that civil penalties retain their deterrent effect and promote compliance with the law. 13

For the 2021 annual adjustment, the multiplier reflecting the “cost-of-living adjustment” is 1.01182. 14

Pursuant to the Inflation Adjustment Act and OMB Guidance, the Bureau multiplied each of its civil penalty amounts by the “cost-of-living adjustment” multiplier and rounded to the nearest dollar. 15 The new penalty amounts that apply to civil penalties assessed after January 15, 2021, are as follows:

Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Bureau finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest. 16 The adjustments to the civil penalty amounts are technical and non-discretionary, and they merely apply the statutory method for adjusting civil penalty amounts. These adjustments are required by the Inflation Adjustment Act. Moreover, the Inflation Adjustment Act directs agencies to adjust civil penalties annually notwithstanding section 553 of the APA, 17 and OMB Guidance reaffirms that agencies need not complete a notice-and-comment process before making the annual adjustments for inflation. 18 For these reasons, the Bureau has determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. The amendments therefore are adopted in final form.

Section 553(d) of the APA generally requires publication of a final rule not less than 30 days before its effective date, except (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. 19 At minimum, the Bureau believes the annual adjustments to the civil penalty amounts in § 1083.1(a) fall under the third exception to section 553(d). The Bureau finds that there is good cause to make the amendments effective on January 15, 2021. The amendments to § 1083.1(a) in this final rule are technical and non-discretionary, and they merely apply the statutory method for adjusting civil penalty amounts and follow the statutory directive to make annual adjustments each year. Moreover, the Inflation Adjustment Act directs agencies to adjust the civil penalties annually notwithstanding section 553 of the APA, 20 and OMB Guidance reaffirms that agencies need not provide a delay in effective date for the annual adjustments for inflation. 21

Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 22

The Bureau has determined that this final rule does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring approval by the Office of Management and Budget under the Paperwork Reduction Act. 23

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Bureau will submit a report containing this rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to the rule taking effect. The Office of Information and Regulatory Affairs (OIRA) has designated this rule as not a “major rule” as defined by 5 U.S.C. 804(2).

The Deputy Associate Director for Research, Markets and Regulations, Dan S. Sokolov, having reviewed and approved this document, is delegating the authority to electronically sign this document to Grace Feola, a Bureau Federal Register Liaison, for purposes of publication in the Federal Register .

For the reasons set forth in the preamble, the Bureau amends 12 CFR part 1083, as set forth below:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Piper Models PA-28-140, PA-28-150, PA-28-151, PA-28-160, PA-28-161, PA-28-180, PA-28-181, PA-28-235, PA-28R-180, PA-28R-200, PA-28R-201, PA-28R-201T, PA-28RT-201, PA-28RT-201T, PA-32-260, and PA-32-300 airplanes. The NPRM published in the Federal Register on December 21, 2018 (83 FR 65592). The NPRM was prompted by a fatal accident involving wing separation on a Piper Model PA-28R-201 airplane. An investigation revealed a fatigue crack in a visually inaccessible area of the lower main wing spar cap. The NPRM included other model airplanes with similar wing spar structures as the Model PA-28R-201. Based on airplane usage history, the FAA determined that only those airplanes with higher risk for fatigue cracks (airplanes with a significant history of operation in flight training or other high-load environments) should be subject to the inspection requirements proposed in the NPRM.

Because airplanes used in training and other high-load environments are typically operated for hire and have inspection programs that require 100-hour inspections, the FAA determined the number of 100-hour inspections an airplane has undergone would be the best indicator of the airplane's usage history. Accordingly, the FAA developed a factored service hours formula based on the number of 100-hour inspections completed on the airplane.

In the NPRM, the FAA proposed to require a review of the airplane maintenance records to determine the number of 100-hour inspections and the application of the factored service hours formula to identify when an airplane meets the criteria for the proposed eddy current inspection of the lower main wing spar bolt holes. The FAA also proposed to require inspecting the lower main wing spar bolt holes for cracks once a main wing spar exceeds the specified factored service hours and replacing any main wing spar when a crack is indicated. The maintenance records review to determine the factored service hours proposed in the NPRM would only apply when an airplane has either accumulated 5,000 or more hours time-in-service (TIS); has had either main wing spar replaced with a serviceable (more than zero hours TIS) main wing spar; or has missing and/or incomplete maintenance records.

The FAA issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Piper Models PA-28-151, PA-28-181, PA-28-235, PA-28R-180, PA-28R-200, PA-28R-201, PA-28R-201T, PA-28RT-201, PA-28RT-201T, PA-32-260, PA-32-300, PA-32R-300, PA-32RT-300, and PA-32RT-300T airplanes. The SNPRM published in the Federal Register on June 3, 2020 (85 FR 34121). The SNPRM was prompted by comments received on the NPRM and further analysis by the FAA. The FAA determined that some additional airplane models are likely affected by the unsafe condition and should be included in the applicability, while other models that are not affected should be removed from the applicability. Consequently, in the SNPRM, the FAA proposed to revise the applicability and the estimated cost associated with the proposed AD actions. The SNPRM also clarified the language in the applicability and some of the proposed actions. In addition, the SNPRM no longer allowed replacement of the wing spar with a used part. The FAA determined replacement of the wing spar with a part of unknown operational history would not ensure an acceptable level of safety. After the NPRM was published, Piper issued a service bulletin that contains procedures for the eddy current inspection. The SNPRM proposed to require using the eddy current inspection contained in that service bulletin instead of the inspection procedure in the appendix to the NPRM.

The FAA developed a flow chart that may assist operators in complying with this AD. The flow chart may be found at https://www.regulations.gov by searching for and locating Docket No. FAA-2018-1046.

The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments on the SNPRM from 42 commenters. The majority of the commenters were individuals. The remaining commenters included Piper, governmental agencies such as the National Transportation Safety Board (NTSB) and the Civil Aviation Safety Authority of Australia (CASA), and organizations such as the Aircraft Owners and Pilots Association (AOPA), the General Aviation and Manufacturer's Association (GAMA), the Experimental Aircraft Association (EAA), and the Piper Flying Association. The following presents the comments received on the SNPRM and the FAA's response to each comment.

The NTSB and two individual commenters supported the AD without any recommended changes. Three other individual commenters supported the AD but requested changes discussed below.

CASA requested information on whether a bolt hole eddy current inspection would have detected the crack in the 1993 accident airplane.

The FAA agrees to provide the requested information. Because it was located slightly beyond the detectable range of a bolt hole eddy current inspection, the crack in the 1993 accident airplane would not have been detected by an eddy current inspection of the bolt holes. Although the airplane had previously undergone dye penetrant inspection of the bolt holes, the crack would not have been detectable under that method either due to its location beyond the bolt hole perimeter and beneath the web doubler. 1 The 1993 accident disclosed evidence of a fatigue crack initiation in a wing spar similar to that of the 2018 accident aircraft, N106ER (the accident that prompted this AD). In addition to having high hours TIS, the fatigue crack was very near the inspection location addressed by this AD. As such, the FAA included the 1993 accident in the risk analysis process for this AD.

CASA and an individual commenter requested information comparing the failures in the 1987 and 1993 accidents with the failure of N106ER (the accident that prompted this AD). CASA specifically asked whether these wing spars failed at the same outer bolt hole location.

The FAA agrees to provide additional information. Both airplanes in question (N8191V, the 1987 accident; and N2093A, the 1993 accident) experienced wing separations at the outboard bolt holes of the lower spar cap. The NTSB Metallurgist's Factual Report in the 1987 accident, Materials Laboratory Report No. 87-89, dated August 17, 1987, found that fatigue had initiated at two locations on the lower surface of the left wing spar cap near the forward most outboard, spar to carry through, bolt hole. The report further found the fatigue had propagated completely through the forward flange and partially into the aft flange and spar web. 2 The Metallurgist's Factual Report in the 1993 accident, Report No. 93-34, dated December 15, 1993, found that the lower cap was fractured through the most outboard pair of bolts connecting the spar and carry-through. 3 The FAA notes that the NTSB Final Report for the 1993 accident states the investigation could not determine whether an uncracked wing would have failed. 4

CASA and an individual commenter requested information on the inspection method used to detect cracks on aircraft N104ER. CASA asked whether the inspection method described in Piper Service Bulletin No. 1345, dated March 27, 2020 (Piper SB No. 1345), was used. The individual commenter asked whether bolt hole eddy current is the most suitable method if it was used on N104ER and did not reveal the cracks that caused the wing failure.

The FAA agrees to provide the requested information. Aircraft N104ER was used in the investigation of the 2018 accident due to the similarities in structure and operational use to the accident aircraft. The initial high frequency eddy current inspection of N104ER was conducted by a local FAA-approved repair station contracted by the owner. The FAA could not determine why the inspection conducted by the FAA-approved repair station did not detect cracks because this inspection did not involve the investigative team. Also, the inspection occurred prior to the development of the inspection procedures required by this AD. The investigative team conducted a second high frequency eddy current inspection, in the development of the inspection procedures required by the AD, with the wings removed, which detected a crack. The team conducted an additional high frequency eddy current inspection after reinstalling the wings to validate the inspection process, which confirmed the presence of a crack. 5

Another commenter requested information on the methodology used by the FAA for identifying specific wing loads, the applied stress locations, and their influence on fatigue life, and the rationale for selecting those aircraft within 95 percent of the baseline load case for the applicability.

The FAA agrees to provide the requested information. The methodology used by the FAA for identifying specific wing loads for gust, maneuvering, and landing loads comes from 14 CFR part 23 (Amdt 63) Subpart C-Structure and Advisory Circular 23-13A Fatigue, Fail-Safe, and Damage Tolerance Evaluation of Metallic Structure for Normal, Utility, Acrobatic, and Commuter Category Airplanes.

A subsequent analysis calculated damage factors using variables for each of the various PA-28/32 models. The variables include maximum design weight (W max ), maximum design cruising speed (V cmax ), spar cross section properties, and spanwise center of pressure location for each loading category mentioned above. The results for each model/load category are divided by the PA-28R-201 (accident aircraft model) results. Any model with a damage factor ratio greater than 0.94 is included in the effectivity of this AD.

The 0.94 factor cutoff was arrived at by observing a natural break in the resulting damage factor numbers and the Palmgren-Miner linear damage hypothesis or Miner's Rule. This theory shows that a linear decrease in stress (damage factor in this case) results in an exponential increase in fatigue life. The FAA believes this level of risk is appropriate for the purpose of this one-time inspection. The applied stress location is at the lower spar cap attachment to the fuselage carry through channel, outboard row of fasteners. This is the location of the fatigue failure on the accident airplane.

Piper and GAMA requested the AD be withdrawn because the completed NTSB investigation invalidates the FAA's basis for issuing an AD. These commenters asserted that, based on the NTSB's findings, the operator's failure to follow existing maintenance requirements was responsible for the accident involving N106ER.

The FAA disagrees that the NTSB's investigation invalidates the FAA's basis for issuing this AD. The spar surface is not visually accessible during routine inspections required by existing maintenance requirements, because the lower spar cap is obscured by the installation of the web doubler on the upper surface and the wing skin on the lower surface. Therefore, a well-developed crack may only be visually detected after the spar crack progresses into the doubler. The claim that an operator may fail to detect a crack that had progressed to an extent that caused cracking in the overlying web doubler only serves to reinforce the need for detecting fatigue cracks in the spar before they reach a critical nature.

Piper, AOPA, EAA, and several individual commenters requested the FAA revise the applicability of the AD because it is still too broad and includes models not representative of the accident airplane.

EAA requested the FAA ensure that only the appropriate aircraft, in general, are subject to the AD. Piper and AOPA asserted that the AD should not include Models PA-28-151, PA-28-181, PA-32R-300, and PA-32RT-300T airplanes. In support, Piper stated that the PA-28-151, PA-28-181, and PA-32R-300 models have “stress per g” measurements that do not meet the 95 percent threshold established by the FAA for comparison to the accident airplane. CASA and eight individual commenters questioned why the proposed AD applies to the Model PA-28-151 when that model is structurally similar to the Model PA-28-161, which the FAA proposed to remove from the applicability in the SNPRM. Two individual commenters requested the AD apply to the Model PA-28-161, because of the longer wing structure. Piper and three individual commenters stated the PA-32R-300 and certain PA-32-300 models do not share the same wing construction and installation details as the accident airplane model.

The FAA disagrees with removing Models PA-28-151, PA-28-181, and PA-32R-300 from the applicability of the AD. The FAA used the following load cases, provided by Piper, for comparison to the accident airplane: Gust damage factor, maneuver damage factor, and landing damage factor. The included models each had one or more load cases that exceed 94 percent of the baseline Model PA-28R-201. Several models had individual load cases exceeding 100 percent of the baseline value.

The FAA partially agrees with the comments regarding the similarity between the Model PA-28-151 and the Model PA-28-161. In determining pertinent load cases, the FAA used factors such as maximum gross takeoff weight and maximum cruise speed in combination with structural considerations. In the SNPRM, the FAA proposed to remove Model PA-28-161 from the applicability based on initial load calculations based on a maximum gross takeoff weight of 2,240 lbs. Additional analysis indicated that the maximum gross takeoff weight is not uniform among all Model PA-28-161 variants, and that some variants are certificated to a maximum gross takeoff weight that brings the gust damage factor load case to above 94 percent of the baseline. Accordingly, this AD applies to the Model PA-28-161.

The FAA disagrees with removing the Model PA-32R-300 and certain Model PA-32-300 airplanes from the applicability based on wing construction.

Although the FAA acknowledges the differing wing structures among some models, that structure was taken into consideration during loads analysis in terms of inertia calculations for the each cross section.

An individual commenter expressed concern that the FAA's factored service hours did not align with the compliance time in Piper SB No. 1345. The commenter stated that Piper's compliance time of 5,000 hours TIS is simpler and a more conservative approach to safety.

The FAA partially agrees. While using hours TIS is a simpler approach, it would create the possibility of requiring an unnecessary inspection long before any fatigue crack might be expected to form. The FAA established 5,000 factored service hours as a method of delaying or eliminating inspection requirements for many personal use, lower risk airplanes. This AD will require an inspection within 100 hours TIS after reaching 5,000 factored service hours.

Another commenter requested the FAA determine the compliance time based on an estimate of the number of airplanes that will need to be inspected and the number of qualified eddy current inspectors, to allow sufficient time for all airplanes in the fleet to be inspected. The commenter stated it is unacceptable for airplanes to be grounded for a significant amount of time because of an insufficient number of eddy current inspectors or equipment.

The FAA disagrees that a change to the compliance time is necessary. The FAA anticipates that less than 50 percent of applicable airplanes will have accumulated the 5,000 TIS necessary for the logbook review. The FAA also anticipates that the majority of those airplanes will not need an inspection after the logbook review. Calculating the number of qualified and available eddy current inspectors would be too speculative, as it is largely based on current demand.

One commenter requested that the FAA convert the AD into an emergency AD so that data from the inspections can be collected as soon as possible.

Considering the number of known failures, the severity of the outcome, and number of cracks detected during the investigation, the FAA determined that an emergency AD was not necessary. The FAA did not change this AD based on these comments.

The Piper Flying Association and four individual commenters requested the FAA change the proposed requirement to install a new (zero hours TIS) spar if cracks were detected. These commenters stated that any spar that has passed the eddy current inspection is an airworthy spar and should be allowed as a replacement spar. Two of the commenters noted that the unavailability of new spars would effectively ground aircraft that fail the eddy current inspection.

The FAA agrees and has revised this AD to allow the installation of a used (more than zero hours TIS) wing spar that has passed the eddy current inspection.

An individual commenter requested the FAA compel Piper to restore availability of replacement parts.

The FAA disagrees. As a federal agency, the FAA is responsible for all directives, policies, and mandates issued under its authority. The FAA does not have the authority to require a manufacturer to produce new parts.

An individual commenter asked how operators can record compliance with the AD when the required service bulletin does not apply to all of the models in the AD. Another individual commenter asked why the AD only incorporates part of the instructions in Piper SB No. 1345.

The FAA's regulations specify that when there is a conflict between an AD and a service document incorporated by reference in the AD, operators must follow the requirements of the AD. See 14 CFR 39.27. Since this AD differs from Piper SB No. 1345, as described in the Differences Between this AD and the Service Information section, the AD only requires the inspection method portion of Piper SB No. 1345.

An individual commenter suggested guided wave technology as a better, less intrusive, and less expensive inspection method. Another individual commenter suggested using dye penetrant inspection without bolt removal as a less aggressive method for early detection, even if it meant more frequent inspections.

The FAA disagrees. The FAA, Piper, and the NTSB considered several inspection options. Guided wave is not a preferred method for this AD due to accessibility issues and the need to detect longitudinal, as opposed to circumferential, cracks. To be detectable using a dye penetrant or fluorescent penetrant method, a crack that initiated at a wing spar attach bolt hole would have had to propagate through the web doubler and beyond the perimeter of the washer(s). A crack of that size would have already dangerously compromised the strength of the spar cap.

The FAA did not change this AD based on these comments.

An individual commenter observed that if one wing indicates fatigue cracks, then replacing both wings may be warranted, since the opposite wing would have experienced the same usage history.

The FAA partially agrees. Fatigue cracking in one wing would warrant an increased level of concern for the opposite wing. However, the FAA determined that replacement of both wings is not required when only one wing has failed the inspection. Certain factors that can accelerate the initiation of a fatigue crack on one wing may not be present on the opposite wing (for example, prior damage from operations or maintenance).

Another individual commenter requested the FAA consider a cold working process (split sleeve cold expansion) on the bolt holes to minimize future fatigue cracking.

The FAA partially agrees. Piper provided the FAA with cold working data in support of a proposed repair and fatigue mitigation process for the wing spars. Cold working has been considered and may be investigated further should the inspection reports received as a result of this AD indicate that such action is required.

One individual commenter suggested using different washers, adjusting the bolt torque to the lowest value of the acceptable range, and installing a doubler plate to alleviate stress concentrations.

The FAA disagrees. Load transfer into the spar cap does not rely on a washer to help evenly transfer the load. A larger washer would not lower the stress concentration as the critical geometry is the fastener diameter and the edge distance associated with the diameter, not the washer size. Staying within the torque values for the bolt will not alleviate the loading in the bolt enough to decrease the stress concentration and could lead to further issues such as the bolt being under torqued, which would worsen the fatigue life. A doubler repair has been considered and may be investigated further should the inspection reports received as a result of this AD indicate that such action is required.

An additional individual commenter asked if changing the outer holes to the next smaller size would result in a more favorable stress distribution.

The FAA disagrees. While a smaller hole may decrease the load in the fastener, the gain is offset by the increase in stress concentration.

The FAA has not changed the AD based on these comments.

An individual commenter suggested establishing a life limit as a solution based on a comparison of any safe life analysis conducted by Piper with the known fatigue failures.

The FAA partially agrees. Fatigue safe life has been considered and may be pursued as an option should the inspection reports received as a result of this AD indicate that further action is required. Because this AD is interim in nature and intended to gather fleet condition data based on these comparisons, this AD does not contain repetitive or terminating actions.

The FAA did not make any changes to this AD based on this comment.

Piper requested the FAA revise the inspection results form to include Piper's mailing address.

The FAA agrees and has added Piper's mailing address to the inspection results form.

AOPA, EAA, and several individuals submitted comments that were substantially the same as comments the FAA received on the NPRM. These comments pertain to issues such as the FAA's decision to issue the AD as interim action, whether the FAA should issue a special airworthiness information bulletin or airworthiness concern sheet instead of an AD, how the FAA determined the AD applicability, whether the FAA should issue this AD considering the cost and risk associated with the removal and reinstallation of the airplane wings/bolts, alternatives for instances where maintenance records were missing or incomplete, how to count 100-hour inspections, the FAA's hourly labor rate, the estimated number of hours for the eddy current inspection, and indirect costs. The FAA previously addressed each of these comments in the SNPRM.

The FAA also received and reviewed a few comments that stated the commenter's viewpoint without a suggestion specific to the AD or otherwise did not make a request the FAA can act on. These comments are outside the scope of this AD.

The FAA removed two serial-numbered airplanes from the applicability that were included in the SNPRM because those airplanes were previously inspected using the current procedures and witnessed by the FAA. The FAA determined those airplanes are not subject to the unsafe condition addressed by this AD. The FAA also added language to clarify the procedures for when a wing is not installed on the airplane and clarified some of the language in the examples and figures.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes and the changes described previously, this AD is adopted as proposed in the SNPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Piper Service Bulletin No. 1345, dated March 27, 2020 (Piper SB No. 1345). This service bulletin specifies procedures for doing an eddy current inspection and instructions to report the results of the inspection to Piper and to replace the wing, wing spar, or spar section as necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA reviewed Piper Service Bulletin No. 886, dated June 8, 1988; and Piper Service Bulletin SB 978A, dated August 6, 1999. These service bulletins contain procedures for determining initial and repetitive inspection times based on the aircraft's usage and visually inspecting the wing lower spar caps and the upper wing skin adjacent to the fuselage and forward of each main spar for cracks. The FAA also reviewed Piper Service Letter No. 997, dated May 14, 1987, which contains procedures for replacing airplane wings.

Piper SB No. 1345 specifies doing the eddy current inspection upon reaching 5,000 hours TIS; however, this AD requires using the factored service hours to identify the airplanes at the highest risk of developing fatigue cracks. Piper SB No. 1345 also specifies using its feedback form to report the eddy current inspection results, but this AD requires the use of a different form attached as appendix 1.

The FAA considers this AD to be an interim action. The inspection reports will provide the FAA additional data for determining the number of cracks present in the fleet. After analyzing the data, the FAA may take further rulemaking action.

The FAA estimates that this AD affects 5,440 airplanes of U.S. registry. There are 10,881 airplanes of U.S. registry with a model and serial number shown in table 1 to paragraph (c) of this AD. Based on a sample survey, the FAA estimates that 50 percent of those U.S.-registered airplanes will have reached the qualifying 5,000 hours TIS necessary to do the required logbook review.

The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do the eddy current inspection. Because some airplanes are only used non-commercially and will not accumulate the specified factored service hours in the life of the airplane, the FAA has no way of determining the number of airplanes that might need this inspection:

The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the inspection. The agency has no way of determining the number of aircraft that might need this replacement:

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

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

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 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 amends the Class E airspace extending upward from 700 feet above the surface at Elkhart-Morton County Airport, Elkhart, KS, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (85 FR 67325; October 22, 2020) for Docket No. FAA-2020-0887 to amend the Class E airspace extending upward from 700 feet above the surface at Elkhart-Morton County Airport, Elkhart, KS. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 amends the Class E airspace extending upward from 700 feet above the surface at Elkhart-Morton County Airport, Elkhart, KS, by removing the Elkhart NDB an associated extensions from the airspace legal description.

This action is due to an airspace review caused by the decommissioning of the Elkhart NDB which provided navigational information to the instrument procedures at this airport. FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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 qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

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 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 amends the Class E airspace extending upward from 700 feet above the surface at Prairie Du Chien Municipal Airport, Prairie Du Chien, WI, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (85 FR 67315; October 22, 2020) for Docket No. FAA-2020-0872 to amend the Class E airspace extending upward from 700 feet above the surface at Prairie Du Chien Municipal Airport, Prairie Du Chien, WI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 amends the Class E airspace extending upward from 700 feet above the surface to within a 6.6-mile (decreased from a 9.3-mile) radius of Prairie Du Chien Municipal Airport, Prairie Du Chien, WI; removes the Waukon VORTAC and associated extension; adds an extension 1 mile each side of the 110° bearing from the airport extending from the 6.6-mile radius to 6.8 miles east of the airport; adds an extension 1 mile each side of the 140° bearing from the airport extending from the 6.6-mile radius to 10.4 miles southeast of the airport; adds an extension 1 mile each side of the 320° bearing from the airport extending from the 6.6-mile radius to 10.6 miles northwest of the airport; and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

This action is the result of an airspace review caused by the decommissioning of the Waukon VOR, which provided navigation information for the instrument procedures this airport, as part of the VOR MON Program.

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

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, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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 qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

FAA's authority to issue rules on 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 III, Section 44715 Controlling aircraft noise and sonic boom. Under that section, FAA is charged with prescribing regulations to measure and abate aircraft noise. This regulation is within the scope of that authority since it provides for certain operations of new supersonic aircraft in approved areas where the environmental impact of the operations has been assessed.

This rulemaking amends the administrative requirements for a special flight authorization originally published as appendix B to part 91, Authorizations to exceed Mach 1 (§ 91.817), of title 14 of the Code of Federal Regulations (14 CFR). This rulemaking is intended to streamline the application procedure for these special flight authorizations by clarifying the information that is needed for submission and specifying the program office within FAA that processes the applications. This rule sets forth the application criteria in a more user-friendly format. FAA is adopting the rule largely as it was proposed, with some minor changes to the regulatory text, as discussed in Section IV and the accompanying preamble discussion.

In a notice of proposed rulemaking (NPRM) titled Special Flight Authorizations for Supersonic Aircraft (84 FR 30961, June 28, 2019), FAA proposed to modernize the procedures for requesting special flight authorizations that are needed to accomplish testing and development of new supersonic aircraft. The NPRM provided a brief history of FAA's regulation of civil supersonic aircraft beginning in the 1970s with the introduction of the Concorde, including the history of the application procedure for special flight authorizations that is the subject of this rulemaking.

FAA is clarifying the application procedure for requesting a special flight authorization to fly faster than Mach 1 following increased interest by industry to develop such aircraft. The revisions adopted here do not change the general prohibition against overland supersonic flight in the United States that has been in place since 1973 (14 CFR 91.817). This rule replaces the procedure described in part 91, appendix B, with regulatory text that clearly describes the application process and criteria. The new regulation provides clarity, includes noise testing as another reason for which an authorization may be issued, and requires one additional piece of information to be provided in an application, which is discussed below. This rule does not introduce any new FAA policy or change the intent of the original application process.

Recognizing the renewed interest of the aviation industry in developing supersonic aircraft, Congress instructed FAA in Section 181 of the FAA Reauthorization Act of 2018 (Pub. L. 115-254, Oct. 5, 2018) to assume a leadership role in the development of international policies, regulations, and standards that facilitate the safe and efficient operation of such aircraft. Section 181 further directed FAA to undertake reforms of its regulations regarding civil supersonic aircraft.

FAA's first step in response to Section 181 was to propose changes to the special flight authorization application process. The second step was FAA's publication of an NPRM that proposes landing and takeoff noise limits under 14 CFR part 36 for the first group of supersonic aircraft expected to be presented for certification (85 FR 20431, Apr. 13, 2020). The relationship between the two rulemakings is minimal. An aircraft developer would eventually use the final rule adopted here to test aircraft under development at supersonic speed. Eventually, a developer might further use the authorization procedure adopted here for flight tests to demonstrate compliance with certain supersonic noise criteria when those criteria are eventually adopted. The part 36 NPRM, by contrast, included only subsonic standards for new supersonic aircraft and addressed the noise limits for landing and takeoff. Because landing and takeoff do not occur at supersonic speeds, a special flight authorization under this final rule would be unnecessary to test for landing and takeoff noise levels of supersonic aircraft, just as subsonic aircraft do not require such special permission to accomplish part 36 testing.

Neither this final rule nor the part 36 noise limit NPRM alters the general prohibition on supersonic flight over land in the United States found in § 91.817.

This modernization of the authorization process for certain civil supersonic flights is intended to simplify and clarify the process for applicants interested in obtaining an authorization to perform supersonic aircraft development testing.

In the proposed rule, FAA identified three areas intended to improve provisions that comprised appendix B. The first designated the proposed office in FAA to which applicants are to send applications and direct questions. The second proposed to gather the scattered application requirements into a list, and present them according to modern regulatory formatting standards. As part of this effort, FAA proposed also to correct the regulatory text for consistency throughout the new section. Third, FAA proposed the addition of a new reason for flight testing to accommodate future noise certification actions.

The NPRM invited interested persons to participate in the rulemaking by submitting written comments, data, or views. It also invited comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposal.

FAA received a total of 206 comments on the NPRM: 43 comments generally supported the NPRM, 45 generally opposed the NPRM, and 118 are considered outside the scope of the rule. The majority of comments from the public focused on the current routing of aircraft under the NextGen program, or expressed general annoyance regarding aircraft noise, and did not include any comments specific to the proposal updating the application procedure.

Approximately 77 commenters included some combination of general concerns about the possible environmental effects of supersonic airplanes—whether they were about the noise anticipated from new supersonic airplanes, the effect of supersonic operations on the atmosphere, or both. Some commenters generally cited the Concorde model airplanes as an example. Those opposing the rule, including two municipalities, stated their opposition to the addition of supersonic airplanes, citing detrimental environmental effects, but did not comment on the changes proposed for the application procedure.

In response, FAA emphasizes that the proposed rule would not have allowed supersonic flights to occur on a regular basis in the United States. The regulation that generally prohibits civil airplanes from operating at speeds in excess of Mach 1 over land in the United States (14 CFR 91.817) has been in effect since 1973, and no change to that regulation was proposed.

Rather, the proposed rule focused on the administrative application process for special flight authorizations to exceed Mach 1 for certain reasons, and for flight in limited areas that would be determined in advance. The rule does not in and of itself authorize the operation of any specific airplane over any particular area; rather, any flights authorized under the rule could only occur upon receiving FAA authorization after completion of the application process and considerable regulatory prerequisites, including analyses of the environmental impacts on the area over which an applicant proposes to operate, as required by law. Neither these regulatory prerequisites nor the assessments of environmental impacts were the subject of FAA's proposed changes. Comments that suggested changes to the required assessments were beyond the scope of this rulemaking.

The special flight authorizations that are the subject of this rulemaking have been available since the FAA adopted the supersonic prohibition in 1973. This rulemaking only presents an update of the administrative application process, without affecting FAA's underlying duty to assess the environmental impact of any flight it authorizes, whether under the National Environmental Policy Act (NEPA) or the requirements imposed by the regulation itself.

Paragraph (b) of appendix B to part 91 directed applicants generally to submit “all information requested by the Administrator” necessary for the Administrator to make a determination under the National Environmental Policy Act (NEPA). 1 In the proposed rule, FAA tried to provide applicants with better clarity by adding the text in proposed § 91.818(c)(2)(i)-(iii) to suggest the form that such information might take to support FAA's NEPA determination. Specifically, the proposed language gave as examples an Environmental Impact Statement (EIS) for the proposed flight area, an EIS previously prepared for the proposed flight area, or another statement or finding of environmental impact for the proposed flight test area, such as an Environmental Assessment (EA).

In the final rule, FAA revises § 91.818(c)(2) to remove these suggestions, because they proved to be a source of confusion among commenters, as discussed below. The proposed language providing more detail about what an applicant could submit was not intended to imply that FAA would forego independently evaluating the information or closely examining the environmental impacts on a proposed test area in determining whether to grant a particular special flight authorization. The language was also not intended to imply shifting the burden of complying with NEPA to the applicant rather than FAA.

NEPA requires Federal agencies to consider the environmental impacts of their actions in their decision-making processes. Specifically, an agency must determine whether the action it is considering (in this case, whether to issue a special flight authorization allowing one or more supersonic flights) constitutes a “major Federal action significantly affecting the quality of the human environment” ( i.e., whether a proposed action would have significant environmental impact). FAA makes this determination in accordance with Council on Environmental Quality (CEQ) regulations, 2 which provide the procedural requirements for Federal agency compliance with NEPA.

CEQ regulations include, at 40 CFR 1506.5, the option for agencies to seek necessary information from applicants to support the agency's required environmental review of proposed Federal actions under NEPA. 3 That analysis may require varying amounts and types of data to make the determination whether approval of the underlying request would result in significant environmental impacts.

In order to complete that analysis in a timely fashion, FAA benefits from applicants' providing as much of the information as they can, in accordance with 40 CFR 1506.5. 4 That information may be incorporated into an EA or EIS that is developed subject to FAA supervision, or it may provide the basis for FAA to apply a categorical exclusion of the action from further NEPA review. 5

Nothing in the special flight authorization regulation, however, either requires or permits applicants for special flight authorizations to determine what level of NEPA review is required or whether issuance of a special flight authorization would have significant environmental impacts. Those determinations are FAA's alone.

Further, FAA's finding under NEPA regarding the significance of environmental effects is not dispositive of the application under consideration. The NEPA analysis informs FAA's decision on whether to grant a special flight authorization for supersonic flight over a certain area, and the NEPA analysis must be completed before a decision to grant a special flight authorization. However, the NEPA determination (regarding significance of the environmental effects of granting the authorization) is distinct from the Administrator's findings on the application as a whole. The circumstances behind each application will be unique. Under § 91.818(c)(1) of the final rule, the application is denied if the Administrator finds that such action is necessary to protect or enhance the environment.

Because both the NEPA determination referenced in § 91.818(c)(2) and the substantive finding that can be made under § 91.818(c)(1) are environmental in nature, the final rule is revised to guard against the risk of the two being conflated. Specifically, § 91.818(c)(2) as adopted focuses more expressly on supporting the NEPA significance determination, which better distinguishes the purpose of paragraph (c)(2) from the purpose of an Administrator finding made under paragraph (c)(1) of that section.

Boom Technology (Boom) submitted a comment regarding streamlining the NEPA process in the context of special flight authorizations. Boom initially presents two factual conclusions. Boom's first conclusion is that FAA would be unlikely to identify any significant sonic boom noise impacts for individual supersonic flight test programs under the FAA's threshold of significance for noise impacts in its NEPA procedures (FAA Order 1050.1). Boom's second conclusion is that the FAA programmatically could examine all supersonic test flight campaigns covering all applicants in a single year without the impacts triggering the FAA's threshold of significance for noise. Boom supports these conclusions with metrics from previous flights of the SpaceX Falcon Heavy landings and operations of the Concorde. Based on its conclusion that impacts of special flight authorizations would never reach FAA's threshold of significance for noise impacts, either individually or cumulatively on an annual basis, Boom proposes a series of qualifying criteria that, if met, should lead FAA to presume no significant impacts exist.

FAA finds that this proposal fails for two reasons. First, as Boom acknowledged, FAA may use supplemental metrics when evaluating noise, and gives special consideration to certain types of noise-sensitive areas where the standard significance threshold may not adequately capture environmental effects. Although FAA uses all available methods to increase efficiency in its environmental review process, and in appropriate individual circumstances could make a finding of no significant impact for some or even most special flight authorizations, it cannot prejudge the outcome of individual applications submitted under this regulation, or their effects if considered cumulatively on an annual basis.

Second, Boom's proposal to create criteria that, if satisfied, create a presumption that no significant effects will occur appears to be consistent with establishing a categorical exclusion under 40 CFR 1501.4. Categorical exclusions are categories of actions that in ordinary circumstances do not have significant individual or cumulative impacts on the quality of the human environment. However, although Boom suggested that the Administrator could use this rulemaking to establish that the collective level of noise generated by all foreseeable test activities is not environmentally significant if conducted pursuant to these particular conditions, categorical exclusions must be identified in agency NEPA procedures and are subject to the requirements for public review and review by CEQ as specified in 40 CFR 1507.3. Moreover, the anecdotal evidence offered by Boom related to flights of other aircraft that were not subject to § 91.817 would not be sufficient to establish a categorical exclusion under NEPA with respect to supersonic flights requested in a special flight authorization. The establishment of “parameters” relating to the NEPA review of supersonic flight tests would require an analysis of part 91 operations in order to justify a categorical exclusion, and the supporting documentation would need to go through the public process required for all changes to FAA's NEPA procedures as set forth in Order 1050.1F. Although at some point in the future FAA might undertake the necessary analysis and public review process to establish such a categorical exclusion, absent a change to Order 1050.1F, FAA currently must individually consider the potential environmental impacts of requested special flight authorizations.

Boom also commented on an aspect of the proposed standard for special flight authorization operations outside the test area—in particular, that the operation does not cause a measurable sonic boom overpressure outside the test area. While that topic is discussed below, Boom's characterization of it in the context of NEPA is relevant here. Boom indicated that the standard (unchanged from appendix B) “goes far beyond what is required under the National Environmental Policy Act, as allowance of measurable overpressure is not necessarily a major Federal action `significantly affecting the quality of the human environment' as interpreted under agency guidance under Order 1050.1F . . .” Boom inaccurately combined the scope of the regulation governing the consideration and approval of special flight authorizations itself with the process tool of NEPA and FAA Order 1050.1F, which describes FAA's NEPA policy and procedures. Further, Boom does not accurately reflect the definition of a major Federal action as defined by the CEQ regulations and FAA, relying on concepts actually related to significance of effects of a Federal action. The overpressure measurement standard is a specific factor set forth in the regulation that considers the effect of the proposed flights and is relevant for substantive approval purposes under the regulation. While this information may also be considered in NEPA analysis, it does not dictate that analysis, nor does it affect the process that FAA follows to reach a finding regarding significance of impacts under NEPA.

The Center for Biological Diversity (CBD) made several arguments with regard to NEPA requirements in its comment. In part, the CBD read the proposed rule to “suggest that preparation of an EA will fulfill FAA's duties” under NEPA. The CBD also commented that the list of examples in proposed § 91.818(c)(2) suggesting the form of information an applicant could provide “oversimplifies the NEPA review process” for FAA. As stated at the beginning of this discussion, FAA agrees that the submission of information by an applicant (whether to support an EIS, EA, categorical exclusion, or other materials) does not itself satisfy NEPA requirements, which remains FAA's duty. Further, FAA did not intend for the applicant's submission, whatever form it may take, to represent the completion of the NEPA process. That process involves, where appropriate, public outreach, FAA's objective evaluation of any information prepared by the applicant, as well as the exercise of independent judgment as to whether the NEPA process can be concluded with a finding of no significant impact, or whether it requires preparation of an environmental impact statement.

The CBD concluded that, “Because Special Flight Authorizations for Supersonic Aircraft are major federal actions, an application for such authorization would trigger the need to prepare an EIS.” This conclusion is based on CBD's reading of the 1970 preamble that accompanied the adoption of the supersonic prohibition. FAA disagrees that the 1970 rule presumed that all supersonic flights were likely to create significant environmental impacts under NEPA and therefore require FAA to produce an EIS. While an application for a special flight authorization is a major Federal action subject to NEPA review, the specific facts associated with such an application determine what level of NEPA review is required. CBD presupposes a universal outcome regarding the proper level of NEPA review, disregarding the fact-specific nature of this determination.

The proposed addition of the form of information to be submitted by applicants caused some commenters to misunderstand the FAA's intent, and is an indication that the proposed regulatory changes were not helpful. Accordingly, FAA has removed proposed § 91.818(c)(2)(i) through (iii) from the final rule. This final rule revises the language in § 91.818(c)(2) to modernize it consistent with the recently revised CEQ regulations and the NEPA practice as it has developed since appendix B was first promulgated. The revised language clarifies that the information needed to support any particular application will be considered by FAA in its determination of whether the environmental impacts of the special flight authorization are significant. The provision of this information and the subsequent development of the appropriate level of environmental documentation will be carried out in accordance with the CEQ regulations and FAA procedures in the most recent version of FAA Order 1050.1.

In proposed paragraph (a) of § 91.818, the FAA sought to locate into a more-user friendly format the application requirements previously scattered throughout appendix B to part 91. Specifically, proposed § 91.818(a)(6) would require a “description of the flight area requested by the applicant, including any environment analysis required under paragraph (c) of this section.” This requirement was unchanged from appendix B.

GE Aviation and Boom suggested that FAA adopt an expedited application approval process under certain circumstances. As a means to this expedited approval, both commenters suggested that a pre-approved set of parameters could form the basis for these approvals. GE Aviation suggested automatic approval when an applicant can show “that there have been no meaningful changes in the expected environmental impacts.” Noting what it considered a recognized lack of significant environmental impact (discussed above), Boom stated that a predefined set of parameters would provide certainty and reduce costs for manufacturers as well as reduce the burden on the FAA.

FAA is not adopting the suggested expedited application approval process. First, the FAA does not find that pre-approved circumstances can be determined, because there are several factors FAA considers for each application for supersonic testing, including performance of the particular aircraft. Second, the time-sensitive nature of environmental considerations can make prior determinations unreliable without reassessment at the time of each application, and could cause the FAA to fail in its environmental responsibilities. Under FAA policy, environmental assessments or EISs are not presumed valid indefinitely; after three years, a written reevaluation must be prepared. (See FAA Order 1050.1F.) However, FAA would accept previous environmental analyses of a proposed flight area as long as the material remains current and relevant, or has been updated by an applicant to meet those requirements. Third, FAA intends with this rulemaking to consider all applications uniformly. While the actual number of applications for authorization has been limited, FAA experience is that incomplete information submitted by an applicant has caused delays in the authorization approval process.

While FAA is not changing the requirement in § 98.818(a)(6), FAA has revised it slightly from the proposed rule to clarify that the requirement calls for information that supports analyses rather than the analyses themselves.

The term “designated test area” in appendix B created confusion for prospective applicants that interpreted the phrase to mean that designated test areas already exist, when they in fact do not. Rather, the term was used to refer to the proposed test area described (designated) in an application. FAA proposed eliminating this phrase and replacing it with § 91.818(a)(6) requiring an applicant to describe its requested test area in its application. Description of the proposed test area is one consideration in determining the acceptability of the application overall.

Several commenters stated that the final rule should provide more flexibility for test area selections to allow more than one operator to use a test area, and to support the development of test areas outside of military operation areas (MOAs). GE Aviation, Aerospace Industries Association (AIA), General Aviation Manufacturer's Association (GAMA), Supersonic Flight Alliance (SSFA), AeroTEC, and Boom suggested that FAA allow multiple manufacturers to use the same flight test area, as opposed to limiting areas to a single flight test campaign. Generally, the commenters stated that doing so would provide safer and more effective testing, and cost-saving benefits to industry and FAA. Lockheed Martin Corporation (Lockheed) suggested establishing dedicated supersonic flight test areas. Additionally, Boom, SSFA, and AeroTEC expressed the general need for supersonic test areas outside of MOAs, citing concerns such as crowded airspace within MOAs and lack of available MOAs for civil flight testing. The Town of Milton, Massachusetts, stated that test sites should not be determined by industry applicants and urged FAA to limit test sites to MOAs.

To support current industry development efforts, FAA provides supersonic flight test applicants with the broadest opportunity to request an appropriate flight test area, consistent with the applicable regulations and environmental impacts. FAA emphasizes that the regulation does not limit a flight test area to use by one applicant. As stated in the NPRM, nothing about the application process should be read to impede more than one prospective supersonic operator from seeking to use the same area or sharing the costs of the environmental studies that may be required (85 FR 30961, at 30964). FAA does expect, however, that each operator intending to share the use of, or the costs associated with requesting, a test area will need to submit its own application with all of the information required for the processing of the application. In the case of a test area that has been previously approved under another application, the next applicant will need to submit information that includes a description of the (same) requested test area and the required environmental information.

The final rule does not include suggestions from commenters for the FAA to establish “dedicated” test areas or a “civilian supersonic corridor” without proposed users or without a specific application. The regulation requires an applicant to show the probable impact of the applicant's requested operations over a proposed test area. There can be no proper determination of any environmental impact on a test area without a proposal from an operator that includes the timing, duration, and expected noise impacts of the operator's planned flights. A change in this fundamental nature of the process would require additional rulemaking and analysis.

Moreover, the final rule, as is the case under the existing regulation, does not limit proposed test areas to MOAs. Several commenters disagreed with what they perceived to be FAA's assumption that applicants will only test within existing MOAs. The commenters note that MOAs may not be suitable for civil supersonic testing and that applicants may develop their own supersonic test areas. The commenters' concern might reflect a misunderstanding stemming from the Paperwork Reduction Act (PRA) statement that was published as part of the NPRM ( see 84 FR 30965-66). FAA is required to estimate the information collection burden involved in complying with a regulation. FAA's only historical data for special flight authorization came from applications proposing to use MOAs as test areas. FAA was thus unable to estimate any reliable information collection impact on future applicants for anything other than using a MOA that has underlying environmental data already available. But the use of MOAs as part of the required PRA statements supporting this rulemaking was not an indication that the rule prevents an applicant from choosing other areas. The choice of test area remains with each applicant after assessing its financial considerations and business needs.

Finally, nothing in the regulation prevents a group of operators from sharing the costs of establishing a test area. As a matter of implementation, there must be a “first” applicant that submits all of the required information for FAA to make the first determination about an area based on the proposed flights. Subsequent applicants could use the same information, and include any differences that apply to the subsequent applicant, such as duration of the authorization, number of flights, or probable impact. The need for each operator individually to apply for and receive an authorization remains unchanged from the current requirements. No changes are being made to the requirement to describe the test areas based on these comments.

FAA proposed the measurement of noise characteristics in § 91.818(a)(8)(v) as an additional reason to conduct a supersonic flight. The new provision allows for the FAA to issue a special flight authorization for flights in excess of Mach 1 when measuring the noise characteristics of an aircraft for compliance with noise certification requirements, including conducting a noise test during supersonic flight. Appendix B addressed only flights necessary to comply with airworthiness certification testing, not noise tests. This change is forward-looking, as there are no standards for assessing noise at supersonic speed at this time. This limited expansion will facilitate noise certification testing for future supersonic aircraft when such noise standards are adopted. On April 13, 2020, FAA issued an NPRM proposing noise certification standards for a certain class of new supersonic airplanes under part 36 (85 FR 20431), but those proposed standards are only for subsonic landing and takeoff. No special flight authorization would be needed to conduct the tests for subsonic noise compliance (landing and takeoff), as that noise is proposed to be measured in the same manner as subsonic aircraft.

GE Aviation commented that the rule should address the full set of circumstances for requesting a special flight authorization, including requirements for testing airworthiness and operational capabilities. FAA notes that the proposed change allows an additional reason to request testing. The rule has always required applicants to specify the reason particular tests need to be conducted from the list provided in the regulation. FAA has not proposed to remove any of the general reasons from appendix B that an operator may have to test an airplane, including airworthiness testing.

Accordingly, the provision is adopted as proposed.

FAA proposed maintaining the requirement for an applicant to show why its test cannot be accomplished by flight over the ocean. The placement of this application requirement in appendix B often caused it to be overlooked as a prerequisite. The proposed rule placed the same overocean requirement in new § 91.818(a)(9) with minor modification to state that an “applicant must indicate why its intended operation cannot be safely or properly accomplished over the ocean at a distance ensuring that no sonic boom overpressure reaches any land surface in the United States.” The addition of the last phrase aligns the rule with the requirement in § 91.817(b) that restricts supersonic operation of aircraft, including over the ocean, unless there are flight limitations to ensure that no sonic boom could impact the U.S. shoreline.

Commenters who are not in favor of the overocean testing requirement suggested alternatives. GE Aviation stated that there should be a provision and process to allow supersonic flight testing to move from over the ocean to over land and should involve various stages of modeling, along with testing and validation through flights over the ocean. Lockheed expressed appreciation for clarifying the applicability of the overocean provision, but suggested that an applicant provide FAA with the results of prior test modeling activity, which would then be used to shape an overwater validation test activity as a precursor to overland test operations. The SSFA and AeroTEC suggested that the collection of noise data over ground terrain would provide better quality data than over water. An individual commenter suggested adding the word “efficiently” to the regulatory text of § 91.818(a)(9), but did not provide any supporting explanation. An individual from Louisiana suggested that testing be done “over the Pacific Ocean or large bodies of water around 70 miles off the coast,” but provided no support for the specificity of this suggestion.

FAA recognizes that there may be valid reasons why an applicant cannot conduct an overocean test properly. The provision in appendix B allowed for this possibility, as does the provision adopted in § 91.818(a)(9), which simply restates that an applicant needs to explain why overocean testing would not work. Furthermore, the rule does not restrict the submission of modeling data as support for an application if an applicant chooses to use it. FAA notes that if all supersonic operation is conducted over water outside U.S. airspace and at a distance that ensures no sonic boom effect on land, there is no need to even request a special flight authorization. It is only when supersonic flight over land is requested that an application need be submitted, in which case the applicant needs to explain why it cannot be accomplished over the ocean, in order to avoid unnecessary noise exposure on the ground.

Boom raised economic concerns with the overocean provision. Boom stated that FAA's 1970s-era economic rationale for the prohibition on supersonic overland flight and application process for overland testing is not valid because it was based on a market assessment of supersonic aircraft that did not materialize. Boom also stated that the overocean requirement is not economically reasonable because testing supersonic aircraft over the ocean would require manufacturers located farther from the U.S. coastline to incur enormous expenses to set up additional test facilities with closer proximity to the ocean. Boom added that “for such an enormous expense, the public may be spared a few dozen half-second disturbances per year.”

The FAA notes that the determination made in the 1970s that no level of sonic boom is acceptable over land still applies and is not based exclusively on economics. Furthermore, the FAA is not persuaded that a re-evaluation of the reasonableness of the overocean testing provisions is warranted simply because the anticipated size of the commercial fleet has not materialized. Neither Boom nor any other commenters provided any data or persuasive argument indicating that the overocean testing requirement has been a primary reason for, or even a contributing factor to, why the estimated commercial fleet of supersonic airplanes never materialized. Rather, Boom's comment suggests that the requirement could pose a financial obstacle to Boom's particular business plans, not that the regulation in general is economically unreasonable.

In addition to its economic reasonableness position, Boom stated that it “believes that a requirement to justify the safety benefits of conducting a supersonic operation over land could erode safety,” for which Boom hypothesized situations of production flight tests and the availability of diversion airports. Boom requested that FAA “remove the requirement to show that the test could not be safely accomplished over the ocean” in part because the showing “will never be decisive” and that a “rejection based on an inadequate safety justification could lead to a tragic loss of life.”

FAA disagrees with Boom that there is no economic or other justifiable basis for the requirement. The provision for overocean testing reinforces the principal purpose underlying appendix B to part 91, to protect humans and the environment in the United States from the effects of sonic booms. The appendix establishes as a “default” the position that supersonic flight testing be conducted over the ocean rather than on land where sonic booms would impact the surface environment. The appendix and this rule provide applicants with an avenue to conduct supersonic test flights over land if they are able to explain why testing cannot be safely or properly conducted over the ocean.

Three other commenters submitted suggestions to clarify the overocean provision. AIA and GAMA suggested that FAA clarify that a special flight authorization is not required if a test can be performed over the ocean at a distance ensuring that no sonic boom overpressure reaches any land surface in the United States. GE Aviation made the same comment but used “application” rather than “authorization.” As stated previously, no special flight authorization is required if the supersonic portion of any flight is conducted over the ocean at a distance ensuring that no sonic boom will reach land in the United States. The Town of Milton suggested that FAA require overocean supersonic testing in such a manner that no sonic boom overpressure reaches land before any testing over land is authorized. However, FAA recognizes that there may be situations where testing may not be safely or properly accomplished over the ocean, such as there being no effective way to measure noise on flights over water, including any noise impact that might be discernable on land.

For the reasons discussed, FAA adopts the overocean testing provision as proposed.

FAA proposed a new § 91.818(b) to maintain the provisions in section 2(b) of appendix B that allow an applicant to request supersonic non-test flights outside of a test area. The prerequisites for this supersonic operation are considerable and are discussed below.

1. Foreseeable Operating Conditions Outside of a Test Area

Proposed § 91.818(b)(3) would maintain the requirement of appendix B section 2(b) that a supersonic non-test flight applicant show—as part of a prior test conducted inside a test area—that “[t]he conditions and limitations determined by that test present all foreseeable operating conditions and are effective on all flights conducted under an authorization.”

Aerion, GE Aviation, AIA, and GAMA stated that this requirement is unreasonable because it is not possible to predict all conditions under which an aircraft may operate. Aerion noted that the appendix B requirement originated before reliable sonic boom prediction technologies existed. All four commenters suggested replacing § 91.818(b)(3) with a standard based on currently available sonic boom prediction and control technology.

In general, the phrases “conditions and limitations” and “operating conditions,” as they are commonly applied to any flight authorization, do not require operators or FAA to predict every conceivable operating condition that may occur. FAA clarifies that “all foreseeable operating conditions” refers to the reasonable expected conditions under which the aircraft would be operated, and is not meant to require a prediction of every possible condition.

The application for operation outside a test area also includes a requirement that allows for such flights when it conservatively can be shown that “no measurable sonic boom overpressure” will reach the surface. FAA proposed to retain this provision as § 91.818(b)(2). FAA stresses that the requirement to show “no measureable sonic boom overpressure” applies only to flights outside of a test area, and not as an application for operations in a requested test area under proposed § 91.818(a)(8)(iv).

Several commenters, including prospective supersonic airframe and engine manufacturers, stated that the provision should be eliminated because it is overly restrictive and outdated. Aerion stated that the provision “was originally adopted in the 1970s out of an abundance of caution based on the relatively undeveloped state of sonic boom technology at that time.” Aerion added that sonic boom prediction and control technology has advanced to the point where it is possible to make accurate predictions of the location and intensity of sonic booms. Aerion and GE Aviation noted that the provision does not recognize the possibility for a sonic boom to be produced that is barely noticeable on the ground, but can still be detected by scientific measurement, such as a small pressure disturbance. SSFA and AeroTEC referenced NASA's supersonic flight tests that show overpressure wave remnants at ground level that do not have the sharp-edged characteristic of a sonic boom. Boom indicated that the standard (unchanged from appendix B) “goes far beyond what is required under the National Environmental Policy Act, as allowance of measurable overpressure is not necessarily a major Federal action `significantly affecting the quality of the human environment' as interpreted under agency guidance under Order 1050.1F.”  6

Other commenters also supported the elimination of the provision. Both AIA and GAMA read the phrase “no measurable sonic boom” to be an absolute prohibition on supersonic operations, finding it overly restrictive and something “that an applicant would be unable to guarantee during a test flight.” The Town of Milton, Massachusetts, stated that FAA should remove § 91.818(b) in its entirety because no aircraft can satisfy the “no overpressure” provision, adding that it should be replaced by a new regulation only after supersonic testing demonstrates no measurable sonic boom overpressure.

New Frontier Aerospace is the only commenter that supported retaining the provision, stating that it foresees the need to apply for the § 91.818(b) operating allowance in order to conduct extensive testing of an aircraft, and that the removal of this provision could have a serious impact on its aircraft that is still in development.

In the NPRM, FAA stated that it is not seeking to propose alternatives to this provision as a means to approve routine civil supersonic flight, but simply seeks comment on whether the provision as written retains any current value. However, several commenters submitted alternatives. New Frontier Aerospace suggested that in place of “no measureable sonic boom” it would be beneficial to provide a specific numeric limitation for overpressure or noise levels. Aerion stated that the provision should be replaced with a standard based on currently available sonic boom prediction control technology. Other commenters (GE Aviation, AIA, and GAMA) suggested a more appropriate standard than “no measurable sonic boom overpressure” would be to ensure that no significant impacts on the environment or communities result from granting an authorization.

The scope of the provision, both as it appears in the appendix and in the proposed rule, appears to be a continued source of confusion for some commenters. The section in the appendix that was proposed as § 91.818(b) sets the “no measurable sonic boom overpressure” criterion only for civil supersonic flights that would take place outside a test area. Several commenters seemed to presume inaccurately that this standard would be applied to all applications for special flight authorizations, even those that would be within a test area. The requirement to show conservatively that no measurable sonic boom overpressure reaches the surface does not apply to test flights that are authorized to be conducted in an approved test area. An operator with an authorization to flight test at supersonic speeds for one of the permissible purposes set forth in § 91.818(a)(8) may potentially (subject to the conditions and limitations of its authorization) operate a flight that results in sonic boom overpressures reaching the surface inside the test area, as expected. Accordingly, FAA disagrees that the standard is overly restrictive. It restricts sonic boom overpressures from reaching the surface when flights are conducted outside of test areas, consistent with the overall intent of the regulations to prohibit routine or non-test supersonic flights over land. FAA emphasizes, though, that in accordance with § 91.818(a)(7) no sonic boom overpressures are allowed to reach the surface outside of the test area. Moreover, as required by § 91.818(a)(6) and (c), the operator must provide FAA with the information necessary for the agency to assess the environmental impacts resulting from such flights.

Further, commenters' recommendations either to replace the “no measurable sonic boom overpressure” standard with a specific perceived decibel level or to remove it entirely go beyond the scope of what FAA proposed and the intent of this rulemaking, which is to modernize the administrative process for applying for the special flight authorization. The noise levels recommended by some commenters are relative to existing noise levels applicable to subsonic aircraft and would not be appropriate for measuring noise levels of aircraft flying at supersonic speeds. There are no accepted means of measuring supersonic noise, nor are there any noise limits that have been deemed acceptable as a community standard, whether expressed in decibels or as sonic overpressure. Establishing supersonic noise levels for operations outside a test area would need to be accomplished in a future rulemaking and supported by appropriate data.

None of the commenters suggested anything more than a future expectation that non-test flights might need to occur. FAA fully expects that, at some point, flights outside a test area would need to occur. But FAA does not have a reasonable expectation of what might be needed, since there have been no application for flights within a test area designated by an applicant and approved by FAA (where prior measurements would have to occur), nor applications that describe a test area that may need to be exceeded. After more testing occurs, and development has progressed to require such flights, more modern standards for measuring supersonic noise events and their impacts may have developed as well. At that time, the industry and FAA will be better positioned to suggest supportable changes to the rule on flights outside a test area. For these reasons, the suggestions that compare computer simulations of unrealized aircraft to the noise of the current subsonic fleet are not considered a sufficient basis to change the standard for flights outside a test area at this time, and no such changes were proposed.

Eliminating the “no measurable sonic boom overpressure” regulatory text is also not appropriate in this rulemaking. The provision was adopted in the 1970s as a kind of relief valve to the prohibition in § 91.817, based on the principle that a supersonic flight with no measureable overpressure (shown during previous flights in a valid test area) should not summarily be prohibited. In that sense, the circumstances have not changed, and there is no current data to support either eliminating the rule or determining a level of acceptable measurable sonic boom overpressure other than zero, which would be necessary before flights outside a test area could be considered. FAA will continue to review advances in technology that affect noise values produced by supersonic airplanes and the evaluation of those noise events. Accordingly, as the provision represents a safeguard from unknown sonic boom effects that may be unrelated to aircraft testing, no change to the rule is supported by the comments, and § 91.818(b) is adopted as proposed.

FAA proposed § 91.818(c)(1) to provide that an authorization will not be granted “if the Administrator finds that such action is necessary to protect or enhance the environment.” This provision maintains the requirement stated in section 1(d) of appendix B. Commenters (GE Aviation, GAMA, and AIA) generally opposed this provision and read it to suggest that the Administrator would be required or able to deny an authorization because approving such flights would not lead to an enhancement of the environment. GE Aviation suggested that § 91.818(c)(1) instead state that an application would not be denied if an applicant demonstrates that the flights would not have a significant impact on the environment.

FAA notes that this language has been in the regulation since its adoption in the 1970s. Under this provision, the Administrator may consider adverse environmental impacts that would come from granting any particular flight authorization. The provision does not create a presumption that any particular application and grant would have to demonstrate a positive impact on the environment, as suggested by commenters. Commenters provided no indication that the authorizations that have been approved thus far have included or required any such demonstration of environmental enhancement. Therefore, the provision is adopted as proposed.

Commenters provided general suggestions that the rule should specifically allow applicants to use software programs for predictive analyses in applications for special flight authorizations. In response, FAA notes that nothing in the existing or proposed rule prohibits an applicant from using such prediction and control technologies to supplement its application for a special flight authorization. Further, FAA supports applicants using existing software tools to predict the location and intensity of sonic boom ground impacts as supporting data in their test flight authorization applications, as they are available and apply to an applicant's specific circumstances. No change in the rule is made based on these comments.

AOPA expressed concerns with the safe integration of supersonic aircraft into the National Airspace System (NAS), particularly with “see and avoid.” AOPA also commented that FAA should carefully review any applications for overland flight below 18,000 feet altitude, and conduct a safety risk assessment of how supersonic airplane design may impact speed restrictions below 10,000 feet and the effectiveness of sense and avoid systems.

Most of AOPA's considerations center around anticipation of eventual routine operation of supersonic aircraft in the same airspace as smaller, slower airplanes. This rule does not grant authorizations to exceed Mach 1 in airspace where the flights would negatively impact the safety of the NAS or persons on the ground without notice. This rule is limited to the application for an authorization to exceed Mach 1 during test flights over a specific area to be determined in each application. The impact on routine aviation operations would be a factor in analyzing the proposed flight area. Many of the considerations expressed by AOPA speak to characteristics of individual airplane designs that would not be available for evaluation before the aircraft actually fly or are presented for certification. No change to the proposed regulation was suggested in this comment.

The Information Technology and Innovation Foundation suggested that FAA lift the supersonic ban based on speed and replace it with a set of noise standards to provide clarity for manufacturers that are developing supersonic airplanes. FAA notes that the NPRM specifically mentioned that the proposed revisions did not affect the general prohibition on supersonic flight. As also noted, FAA took the first step in developing noise standards for new supersonic airplanes in its April 2020 NPRM proposing changes to 14 CFR part 36. The comment is considered beyond the scope of this rulemaking.

In the final rule, FAA made the following changes from the proposed rule:

1. Section 91.818(a)(6) was revised to say “environmental information” rather than “environmental analysis” to avoid confusion about the nature of the material being submitted.

2. In § 91.818(c)(2), the subordinate paragraphs describing the types of information that might be submitted by an applicant were removed to prevent confusion over what information and what format would be acceptable. Other language in the paragraph was added to clarify FAA's responsibilities under NEPA, as noted above in the disposition of comments.

Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. In addition, DOT rulemaking procedures in subpart B of 49 CFR part 5 instruct DOT agencies to issue a regulation upon a reasoned determination that benefits exceed costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes FAA's analysis of the economic impacts of this final rule.

In conducting these analyses, FAA has determined that this final rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not “significant” as defined in DOT's Regulatory Policies and Procedures; (4) will not have a significant economic impact on a substantial number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

This rule amends the administrative requirements for a special flight authorization originally published in appendix B to 14 CFR part 91, Authorizations to exceed Mach 1 (§ 91.817). This rule supports innovation in the development of new civil supersonic aircraft by streamlining existing regulations. This rule streamlines the application procedure for special flight authorizations by clarifying the information needed for submission, and specifying the program office within FAA that processes the applications. This rule sets forth the application criteria in a more user-friendly format. FAA is adopting this rule largely as it was proposed, with some minor changes to the regulatory text, as discussed in Section IV and the accompanying preamble discussion.

As noted above, FAA provides a new reason for part 91 special flight authorizations—to measure the noise characteristics of an aircraft for compliance with noise certification requirements, including conducting noise testing during supersonic flight. This provision is beneficial as it anticipates the addition of future part 36 noise certification requirements for supersonic aircraft. Including the provision now will ensure the availability of testing as an option and that it is not overlooked when the part 36 standards are established.

Since there are no substantive changes to the requirements for these special flight authorizations, this rule would not have additional costs. The rule provides increased clarity for applicants and may reduce the number of follow-up requests for additional information between FAA and applicants.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure such proposals are given serious consideration. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

As noted in the Regulatory Evaluation section, this final rule will not have additional costs. Therefore, this final rule would not have a significant economic impact on a substantial number of firms. Therefore, as provided in section 605(b), the head of FAA certifies that this rulemaking would not result in a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

FAA has assessed the potential effect of this final rule and has determined that it will have a legitimate domestic objective, in that it will provide increased clarity and information to applicants as to the requirements for special flight authorizations to test supersonic aircraft. This rule will not operate in a manner as to affect foreign trade directly and, therefore, will have little or no effect on foreign trade.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” FAA currently uses an inflation-adjusted value of $155.0 million in lieu of $100 million.

This rule does not contain such a mandate. Therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

This final rule contains the following amendments to the existing information collection requirements for OMB Control Number 2120-0005. As discussed in the NPRM, the original estimated annual number of responses (applications) was high, 20 annually, and the annual time burden (hours per response) was low, 14 hours. The changes to both the number of annual responses and the hours per request is not a result of any of the changes described in this rulemaking, but reflects a change in the understanding of both the number of applicants expected, and the requirements for environmental information between the original collection request and now. With limited PRA comment responses, FAA submits the following changes due to agency discretion/experience of this information collection to OMB for its review and approval.

Summary: Authorization to exceed Mach 1 over land.

Use: To authorize supersonic airplane test flights at approved sites.

Respondents (including number of): Three producers of civil supersonic airplanes.

Frequency: Three applications in a three-year period.

Annual Burden Estimate: One application annually.

FAA estimates fully burdened labor cost to be about $200 per hour, making the annual cost $200 × 40 = $8,000. This estimate is based on the assumption that an applicant will not need to develop a new environmental document for the Administrator's NEPA determination. FAA assumes that applicants would qualify to use airspace in U.S. military test ranges where supersonic flights already occur and a NEPA document already exists.

Individuals and organizations may send comments on the information collection requirement to the address listed in the ADDRESSES section at the beginning of this preamble by March 16, 2021. Comments also should be submitted to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Desk Officer for FAA, New Executive Building, Room 10202, 725 17th Street, NW, Washington, DC 20503.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these regulations.

FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. FAA has determined that this rulemaking action updating the application process for special flight authorizations qualifies for the categorical exclusion identified in paragraph 5-6.6 and involves no extraordinary circumstances.

FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have federalism implications.

FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). FAA has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action will not have an effect on international regulatory cooperation.

This final rule is considered an E.O. 13771 deregulatory action. Details on the streamlining effects of this rule can be found in the rule's regulatory evaluation.

An electronic copy of a rulemaking document may be obtained by using the internet—

1. Search the Federal eRulemaking Portal ( http://www.regulations.gov );

2. Visit FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies/ or

3. Access the Government Printing Office's web page at

http://www.gpo.gov/fdsys/.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9680.

Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:

In the Federal Register of March 18, 2020, the Food and Drug Administration (FDA or Agency) issued a final rule establishing new cigarette health warnings for cigarette packages and advertisements. The final rule implements a provision of the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) (Pub. L. 111-31) that requires FDA to issue regulations requiring color graphics depicting the negative health consequences of smoking to accompany new textual warning label statements. The Tobacco Control Act amends the Federal Cigarette Labeling and Advertising Act of 1965 (Pub. L. 89-92) to require each cigarette package and advertisement to bear one of the new required warnings. The final rule specifies the 11 new textual warning label statements and accompanying color graphics. Pursuant to section 201(b) of the Tobacco Control Act, the rule was published with an effective date of June 18, 2021, 15 months after the date of publication of the final rule.

On April 3, 2020, the final rule was challenged in the U.S. District Court for the Eastern District of Texas. 1 On May 8, 2020, the Court granted a joint motion to govern proceedings in that case and postpone the effective date of the final rule by 120 days. 2 On December 2, 2020, the same Court granted a new motion by Plaintiffs in the same case to postpone the effective date of the final rule by an additional 90 days. 3 The new effective date of the final rule is January 14, 2022. Pursuant to the court order, any obligation to comply with a deadline tied to the effective date of the final rule is similarly postponed, and those obligations and deadlines are now tied to the postponed effective date.

To the extent that 5 U.S.C. 553 applies to this action, the Agency's implementation of this action without opportunity for public comment, effective immediately upon publication today in the Federal Register , is based on the good cause exception in 5 U.S.C. 553(b)(B). Seeking public comment is impracticable, unnecessary, and contrary to the public interest. The 90-day postponement of the effective date, until January 14, 2022, is required by court order in accordance with the court's authority to postpone a rule's effective date pending judicial review (5 U.S.C. 705). Seeking prior public comment on this postponement would have been impracticable, as well as contrary to the public interest in the orderly issue and implementation of regulations.

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

On July 14, 2020, the President, invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701-1706) (IEEPA), issued Executive Order (E.O.) 13936 of July 14, 2020, “The President's Executive Order on Hong Kong Normalization” (85 FR 43413, July 17, 2020).

In E.O. 13936, the President determined that, pursuant to section 202 of the United States-Hong Kong Policy Act of 1992, the Special Administrative Region of Hong Kong (Hong Kong) is no longer sufficiently autonomous to justify differential treatment in relation to the People's Republic of China (PRC or China) under the particular United States laws and provisions thereof set out in E.O. 13936. The President stated that in late May 2020, the National People's Congress of China announced its intention to unilaterally and arbitrarily impose national security legislation on Hong Kong. He indicated that this announcement was China's latest in a series of actions that have increasingly denied autonomy and freedoms that China promised to the people of Hong Kong under the 1984 Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong (Joint Declaration). The President detailed that China has since imposed national security legislation on Hong Kong, under which, inter alia, the people of Hong Kong may face life in prison for what China considers to be acts of secession or subversion of state power, and the right to trial by jury may be suspended. The President therefore determined that the situation with respect to Hong Kong constitutes an unusual and extraordinary threat, which has its source in substantial part outside the United States, to the national security, foreign policy, and economy of the United States and declared a national emergency to deal with that threat.

OFAC is issuing the Hong Kong-Related Sanctions Regulations, 31 CFR part 585 (the “Regulations”), to implement E.O. 13936, pursuant to authorities delegated to the Secretary of the Treasury in E.O. 13936. A copy of E.O. 13936 appears in appendix A to this part.

The Regulations are being published in abbreviated form at this time for the purpose of providing immediate guidance to the public. OFAC intends to supplement this part 585 with a more comprehensive set of regulations, which may include additional interpretive and definitional guidance, general licenses, and statements of licensing policy. The appendix to the Regulations will be removed when OFAC supplements this part with a more comprehensive set of regulations.

Because the Regulations involve a foreign affairs function, the provisions of E.O. 12866 of September 30, 1993, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, as well as the provisions of E.O. 13771 of January 30, 2017, “Reducing Regulation and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017), are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

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

For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control adds part 585 to 31 CFR chapter V to read as follows:

This final rule removes from the CFR 33 CFR part 240, General Credit for Flood Control. The rule was initially published in the Federal Register on November 18, 1987 (52 FR 44113). The regulation established guidelines and procedures for Department of the Army application of the provisions of section 104 of Public Law 99-662. Section 104 authorizes and directs the development of guidelines which include criteria for determining whether work carried out by local interests is compatible with a project for flood control. This legislative authority also provides that benefits and costs of compatible work will be considered in the economic evaluation of the Federal project. This authority provides a basis for non-Federal interests to undertake local work to alleviate flood damages in the period preceding authorization of a Federal project with assurance that they will not adversely affect the project's economic feasibility. The regulation provides general policy and procedures on the application of section 104 and credit criteria for projects. It was published, at that time, in the Federal Register to aid public accessibility. The solicitation of public comment for this removal is unnecessary because the rule is out-of-date, and otherwise covers internal agency operations that have no public compliance component or adverse public impact. For current public accessibility purposes, updated internal agency policy on this topic may be found in Engineer Regulation (ER) 1165-2-208, “In-Kind Contribution Credit Provisions of Section 221 (a)(4) of the Flood Control Act of 1970, as amended” (available at https://www.publications.usace.army.mil/Portals/76/Publications/EngineerRegulations/ER_1165-2-208.pdf ).

This rule removal is being conducted to reduce confusion for the public as well as for the Corps regarding the current policy which governs the Corps' general credit for flood control. Because the regulation does not place a burden on the public, its removal does not provide a reduction in public burden or costs.

This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review.” Therefore, the requirements of E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs,” do not apply. This removal supports a recommendation of the DoD Regulatory Reform Task Force.

This final rule removes from the CFR 33 CFR part 263, Continuing Authorities Programs. The rule was initially published in the Federal Register on November 3, 1975 (40 FR 51134), and amended on December 30, 1976 (41 FR 56943). The regulation provided policies and procedures for seven legislative authorities under which the Secretary of the Army, acting through the Chief of Engineers, was authorized to plan, design and construct certain types of water resource improvements without specific Congressional authorization. The Continuing Authorities Program is used to plan and implement projects of limited size, scope and complexity in an accelerated manner compared to traditional USACE projects. Three new authorities have been authorized since publication of the regulation and an updated internal agency policy reflects changes in cost share limits and program limits for all ten existing authorities. The rule was published, at that time, in the Federal Register to aid public accessibility. For current public accessibility purposes, the implementation procedures for the authorities listed in this regulation are currently covered under Engineer Pamphlet (EP) 1105-2-58, “Continuing Authorities Program,” dated March 1, 2019 (available at https://www.publications.usace.army.mil/Portals/76/EP_1105-2-58.pdf?ver=2019-04-30-105428-920 ). The solicitation of public comment for this removal is unnecessary because the rule is out-of-date and covers internal agency operations that have no public compliance component or adverse public impact.

This rule removal is being conducted to reduce confusion for the public as well as for the Corps regarding the current policy which governs the Corps' Continuing Authorities Program. Because the regulation does not place a burden on the public, its removal does not provide a reduction in public burden or costs.

This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review.” Therefore, the requirements of E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs,” do not apply. This removal supports a recommendation of the DoD Regulatory Reform Task Force.

This final rule removes from the CFR 33 CFR part 276, Water Resources Policies and Authorities: Application of Section 134a of Public Law 94-587. The rule was initially published in the Federal Register on February 15, 1977 (42 FR 9175). The regulation authorized and directed implementation of a procedure for certification of a locally constructed flood control element/component that is compatible with a specific, potential Federal Project under study. Section 134a provided that local interests could proceed to construct such certified compatible improvements at local expense with the understanding that such improvements could be expected to be included in the scope of the Federal project, if later authorized, both for the purposes of analyzing the costs and benefits of the project and assessing the local participation in the costs of such project. Cost assignable to that part of the local improvement that would constitute an integral part of a prospective Federal plan would be eligible to be recommended for credit toward required local cooperation. It was published, at that time, in the Federal Register to aid public accessibility. The solicitation of public comment for this removal is unnecessary because the rule is obsolete. The regulation authority ceased to be in effect after December 31, 1977, in accordance with Section 134a of Public Law 94-587.

This rule removal is being conducted to reduce confusion for the public as well as for the Corps regarding a regulation that is no longer in use as the authority is no longer in effect. The removal of the regulation will ensure the Corps' regulations comply with current authorities. In an effort to reduce the number of regulations the Corps has promulgated, the removal of an obsolete regulation is appropriate. Because the regulation does not place a burden on the public, its removal does not provide a reduction in public burden or costs.

This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review.” Therefore, the requirements of E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs,” do not apply. This removal supports a recommendation of the DoD Regulatory Reform Task Force.

This final rule removes from the CFR 33 CFR part 279, Resource Use: Establishment of Objectives. The rule was initially published in the Federal Register on April 4, 1978 (43 FR 14014). The regulation provided policy and guidance for establishing resource use objectives for all Civil Works water resource projects during Phase I/Phase II post-authorization studies and reevaluation of completed projects. Resource use objectives, as defined in the regulation, are clearly written statements, specific to a given project, which specify the attainable options for resource use as determined from study and analysis of resource capabilities and public needs (opportunities and problems). It was published, at that time, in the Federal Register to aid public accessibility. The solicitation of public comment for this removal is unnecessary because the rule is redundant of or otherwise covers internal agency operations that have no public compliance component or adverse public impact. For current public accessibility purposes, implementation guidance and procedures for the establishment of resource use objectives related to the formulation of recommended plans for water resources development projects are now found in Engineer Regulation 1105-2-100, “Planning Guidance Notebook” (available at https://www.publications.usace.army.mil/Portals/76/Publications/EngineerRegulations/ER_1105-2-100.pdf ); and Engineer Regulation and Pamphlet 1130-2-550, “Recreation Operations and Maintenance Guidance and Procedures, Chapter 3” (available at https://www.publications.usace.army.mil/Portals/76/Publications/EngineerRegulations/ER_1130-2-550.pdf and https://www.publications.usace.army.mil/Portals/76/Publications/EngineerPamphlets/EP_1130-2-550.pdf ). In addition, environmental evaluation is required under the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321-4347), and is implemented by the Corps pursuant to 33 CFR part 230.

This rule removal is being conducted to reduce confusion for the public as well as for the Corps regarding the current policy which governs the Corps' establishment of resource use objectives. Because the regulation does not place a burden on the public, its removal does not provide a reduction in public burden or costs.

This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review.” Therefore, the requirements of E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs,” do not apply. This removal supports a recommendation of the DoD Regulatory Reform Task Force.

Congress established Glen Canyon National Recreation Area (the recreation area) in 1972 “to provide for the public outdoor recreation use and enjoyment of Lake Powell and lands adjacent thereto in the states of Arizona and Utah and to preserve the scenic, scientific, and historic features contributing to the public enjoyment of the area.” 16 U.S.C. 460dd.

The recreation area encompasses 1,254,117 acres in northern Arizona and southeastern Utah and constitutes a substantial part of the outstanding public lands of the Colorado Plateau. The recreation area offers a natural diversity of rugged water- and wind-carved canyons, buttes, mesas, and other outstanding physiographic features. The recreation area allows for a variety of recreational opportunities, including on- and off-road motor vehicle use and contains Lake Powell, the second-largest human-made lake in North America, which provides the opportunity to recreate in a natural environment and access remote backcountry areas. Evidence of 11,000 years of human occupation and use of resources in the recreation area provides a continuing story of the prehistoric, historic, and present-day affiliation of humans and their environment.

The National Park Service (NPS) manages the recreation area under the NPS Organic Act (54 U.S.C. 100101 et seq. ), which gives the NPS broad authority to regulate the use of the park areas under its jurisdiction. The Organic Act authorizes the Secretary of the Interior, acting through the NPS, to “prescribe such regulations as the Secretary considers necessary or proper for the use and management of [National Park] System units.” 54 U.S.C. 100751(a). In the recreation area's enabling act, Congress directed the Secretary of the Interior to “administer, protect, and develop the recreation area in accordance with the [Organic Act], and with any other statutory authority available to him for the conservation and management of natural resources.” 16 U.S.C. 460dd-3.

Executive Order 11644, Use of Off-Road Vehicles on the Public Lands, was issued in 1972 and amended by Executive Order 11989 in 1977. Executive Order 11644 required federal agencies to issue regulations designating specific areas and routes on public lands where the use of off-road vehicles (ORVs) may be allowed. The NPS implemented these Executive Orders by promulgating a regulation at 36 CFR 4.10 (Travel on park roads and designated routes). Under 36 CFR 4.10, the use of motor vehicles off established roads is not permitted unless routes and areas are designated for off-road motor vehicle use by special regulation. Under 36 CFR 4.10(b), such routes and areas “may be designated only in national recreation areas, national seashores, national lakeshores and national preserves.” This final rule designates routes where motor vehicles may be used off roads in the recreation area in compliance with 36 CFR 4.10 and Executive Orders 11644 and 11989.

The use of motor vehicles to reach off-road destinations in Glen Canyon predates the establishment of the recreation area in 1972. After Lake Powell began to fill behind the Glen Canyon Dam in 1963, the public began driving off road to access the new lake for recreational activities. ORV use continued following the establishment of the recreation area in 1972. ORV use is currently occurring in four general locations within the recreation area:

• Lone Rock Beach is open to conventional motor vehicles, off-highway vehicles, and street-legal all-terrain vehicles. The speed limit at Lone Rock Beach is 15 mph.

• Lone Rock Beach Play Area is located on a hill above and to the southwest of Lone Rock Beach. This 180-acre area is enclosed by a fence and open to unrestricted, high-intensity ORV use. This area is a place where ORV operators can challenge themselves, develop riding skills, operate at high speeds, and perform jumps and hill climbs. There is no speed limit in the play area.

• Accessible Shoreline Areas provide public access by conventional motor vehicles to the Lake Powell shoreline for the purposes of recreation (fishing, swimming, boating, etc.). The public is allowed to depart the road and drive to the shoreline and park in designated ORV areas. There are 13 accessible shoreline areas (Blue Notch, Bullfrog North and South, Copper Canyon, Crosby Canyon, Dirty Devil, Farley Canyon, Neskahi, Paiute Canyon, Red Canyon, Stanton Creek, Warm Creek, White Canyon, and Hite Boat Ramp). Three shoreline areas (Bullfrog North and South, Crosby Canyon, and Warm Creek) are closed to ORVs in the superintendent's compendium. ORVs are not allowed at Nokai Canyon and Paiute Farms, but these areas are accessed occasionally by ORVs.

• Ferry Swale is an area in the Arizona portion of the recreation area with approximately 54 miles of unauthorized routes that have been created by users over time.

A comprehensive planning process begun by the NPS after the establishment of the recreation area resulted in a General Management Plan (GMP) that was published in 1979. The GMP designated a system of paved and unpaved roads open to vehicle travel and closed several existing unpaved roads in the backcountry. The paved and unpaved network of roads identified in the GMP is open to motor vehicle travel, subject to restrictions on the types of vehicles that are allowed on specific roads. These roads are referred to in the rule as “GMP roads.” Driving a motor vehicle off any paved or unpaved GMP road is considered off-road motor vehicle use and is prohibited except on designated routes and in designated areas. All other user-created routes and linear disturbances within the recreation area are closed to public motor vehicle travel.

The Orange Cliffs Special Management Unit is located in the northeast portion of the recreation area. This Unit adjoins Canyonlands National Park, is similar in physiography, and has many of the same management issues as the Canyonlands Maze District. The Canyonlands National Park and Orange Cliffs Unit of Glen Canyon National Recreation Area Backcountry Management Plan (NPS 1995) and the accompanying environmental assessment (NPS 1993) consist of an inter-park management plan developed to increase consistency and protection for visitors to both the Maze District of Canyonlands and the Orange Cliffs in Glen Canyon. The backcountry management plan was predicated on the GMP, which states that the Orange Cliffs Special Management Unit is to be “maintained as a critical backdrop for Canyonlands National Park and as a major vantage point for spectacular views into the park.” The Orange Cliffs Special Management Unit is managed “to maintain a relatively primitive, undeveloped atmosphere” and to provide “year-round access to Panorama Point” (NPS 1979).

The NPS has been managing ORV use in the recreation area for several decades. Although the NPS had implemented ORV management plans for various parts of the recreation area in 1981 (for Lone Rock Beach) and 1988 (for 20 accessible shoreline areas on Lake Powell), past planning efforts did not comply with the NPS regulation at 36 CFR 4.10 that requires a special regulation to designate routes and areas for ORV use. In 2005, the NPS was challenged in federal court over its compliance with Executive Orders 11644 and 11989, and 36 CFR 4.10(b) (Friends of the Earth, Bluewater Network Division v. United States Department of the Interior , Case 1:05-cv-02302-RCL). Under the terms of the 2008 settlement agreement between the parties to that litigation, the NPS prepared an Off-Road Vehicle Management Plan/Draft Environmental Impact Statement (DEIS). In compliance with the settlement agreement, the NPS also developed interim ORV plans for the accessible shoreline areas, Lone Rock Beach, and Lone Rock Play Area. In January 2017, the NPS completed an Off-Road Vehicle Management Plan/Final Environmental Impact Statement (FEIS). On August 15, 2018, the Regional Director for the Intermountain Region signed a Record of Decision (ROD) identifying the preferred alternative in the FEIS (Alternative E: Mixed Use) as the selected alternative. The FEIS and the ROD have superseded all previous ORV management plans for the recreation area.

A detailed history of prior NPS management of on- and off-road vehicle use can be found in the FEIS, which can be viewed together with the ROD at https://parkplanning.nps.gov/glca-orvplan by clicking on the link entitled “Document List”. The FEIS analyzes the issues and environmental impacts of five alternatives for the management of on- and off-road motor vehicle use in the recreation area. Major issues analyzed in the FEIS include social and economic issues, human health and safety, wildlife, natural soundscapes, wilderness, and visitor use and experience. Impacts associated with each of the alternatives are described in the FEIS.

This rule establishes a special regulation pursuant to 36 CFR 4.10(b) to manage ORV use in the recreation area. The rule implements the selected alternative (Alternative E: Mixed Use) for the recreation area identified in the ROD. The selected alternative provides the largest range of experiences for visitors and enhances experiences of different user groups, such as motor vehicle users and those who seek a more primitive camping experience. The selected alternative is designed to protect resources while enhancing the visitor experience by identifying and designating specific areas capable of ORV use while prohibiting ORV use in areas where resources and values may be at risk.

In order to effectively manage the use of motor vehicles in the recreation area, the rule creates definitions to distinguish among a range of vehicle types. Under Executive Order 11644, an ORV means any motor vehicle designed for or capable of cross-country travel on or immediately over natural terrain. Under this broad definition, an ORV may be a truck, an all-terrain vehicle (ATV), a sedan, a dirt bike, or any other motor vehicle that is capable of off-road travel. Among ORVs, the rule distinguishes between conventional motor vehicles, off-highway vehicles (OHVs), and street-legal ATVs, as follows:

• Conventional motor vehicle means any motor vehicle that is designed primarily for operation on streets and highways, and that is licensed and registered for interstate travel. Automobiles, vans, highway motorcycles (including a dual-sports motorcycle licensed for use on a highway), sport utility vehicles (SUVs), recreational vehicles (RVs), pickup trucks, and buses are examples of conventional motor vehicles.

• OHV means any motor vehicle—excluding snowmobiles and hovercraft—that is designed primarily for off-road travel and is not licensed and registered for interstate travel. ATVs (excluding street legal ATVs, as defined below), dirt bikes, sand rails, side-by-sides, and dune buggies are examples of OHVs.

• Street-legal ATV means an ATV that qualifies under Arizona or Utah motor vehicle and traffic code to be operated on state roads and highways. Under current Arizona and Utah law, dune buggies, sand rails, go-karts, and rock crawlers cannot be licensed as street legal.

Under these definitions, conventional motor vehicles do not include OHVs or street-legal ATVs. The rule allows certain types of ORVs (conventional motor vehicles, OHVs, or street-legal ATVs) to operate in designated ORV areas, on designated ORV routes, and on paved and unpaved roads identified in the GMP.

Existing NPS regulations at 36 CFR 4.2 adopt state traffic and vehicle laws to manage the use of motor vehicles within NPS-administered areas, unless specifically addressed by NPS regulations. The rule implements specific regulations governing the use of ORVs in the recreation area, and allows the superintendent to impose additional closures, restrictions, or conditions to resolve visitor safety or resource protection concerns that are not addressed by state law. All other issues ( e.g. license, registration, vehicle requirements, inspection, insurance) related to the use of motor vehicles in the recreation area will continue to be governed by the adopted laws and regulations of Arizona or Utah. 1 Operators of conventional motor vehicles, OHVs, and street-legal ATVs will continue to be responsible for complying with all applicable Utah and Arizona statutes and regulations pertaining to the lawful operation of those vehicles. This rule allows OHVs to operate on most unpaved GMP roads. Because OHVs are not licensed or registered for operation on roads in Utah and Arizona in the same manner as street-legal ATVs or conventional motor vehicles, they are not subject to state licensing, registration, insurance, and equipment requirements that apply to street-legal vehicles when operated on GMP roads. Operators of OHVs on GMP roads must comply, however, with all applicable state and federal traffic requirements ( e.g., speed limits, rules of the road) that apply to street-legal vehicles. The FEIS lists OHV operator and vehicle requirements for Arizona and Utah, as of January 13, 2017. These requirements are subject to change and the FEIS may not include all requirements.

The rule requires a special use permit to operate a motor vehicle off GMP roads in the recreation area. The permit requirement will not begin until 90 days after the effective date of the rule. This will give the NPS sufficient time to use public outreach and education to help establish the details of the permit program so that NPS staff and visitors are prepared for its implementation. Permits will be required for all designated ORV locations except for designated routes in Middle Moody Canyon, East Gypsum Canyon, Imperial Valley, and Gunsight Springs. The NPS will issue a decal with each permit that must be affixed to each vehicle in a manner and location determined by the superintendent. Decals will be required for each ORV operating in a designated ORV area or on a designated ORV route in the recreation area where a permit is required. Families will be able submit a single application for permits for multiple vehicles that are registered to members of that family. Annual permits will be valid for one calendar year from the date of issuance; shorter term permits will also be available and valid from the date of issuance for the stated duration of the permit.

Permit applications (NPS Form 10-933, “Application for Special Use Permit—Vehicle/Watercraft Use”) will be available on the recreation area's website and at headquarters (691 Scenic View Drive, Page, AZ 86040), recreation area visitor centers, and at other locations designated by the superintendent to facilitate compliance with the program and for the convenience of the visitor. The permit and decal will be issued after the applicant reads educational materials and acknowledges that he or she has read, understood, and agrees to abide by the rules governing ORV use in the recreation area and the terms and conditions of the permit. Visitors will be able to submit permit applications online through the recreation area's website; through the mail to the following address: Glen Canyon National Recreation Area, P.O. Box 1507, Page, AZ 86040-1507; or in person at headquarters or an entrance station. After the NPS processes completed permit applications, it will mail or provide in person a permit to the applicant with instructions and educational materials, including a decal to be affixed to each permitted ORV. Violating the terms or conditions of any permit will be prohibited and may result in the suspension or revocation of the permit and the denial of future permits.

To the extent practicable, the NPS intends to recover the costs of administering this permit program under 54 U.S.C. 103104 (Recovery of costs associated with special use permits). In order to obtain a special use permit to operate a motor vehicle off roads in the recreational area, the NPS may require operators to pay a fee to allow the NPS to recover these costs. The NPS may also offset costs with revenues from fees collected under the Federal Lands Recreation Enhancement Act (16 U.S.C. 6801-6814). The NPS will develop the details about fee collection during the 90-day delayed implementation period for the permit requirement. This will be a transparent process involving the public so that all stakeholders understand how the NPS will use fees to offset the costs of administering the permit program.

The rule prohibits ORV use other than on GMP roads in the recreation area, except on NPS-designated ORV routes and areas. The rule designates Lone Rock Beach and Lone Rock Play Area, 21 miles of ORV routes in Ferry Swale, and 14 accessible shoreline ORV areas. One of the 13 shoreline areas identified in the interim ORV plans will be closed (Warm Creek) and two new shoreline areas will be opened (Nokai Canyon and Paiute Farms). The rule contains management prescriptions for each location, including seasons when ORVs are allowed, speed limits, quiet hours, and the types of ORVs that are allowed. These locations will be identified on maps located at headquarters (691 Scenic View Drive, Page, AZ 86040), visitor contact stations, and on the recreation area's website. Certain locations within some designated ORV areas are designated as vehicle-free zones to provide a different camping experience for those who prefer to be separated from motor vehicle use. All locations designated for ORV use will be posted with appropriate signs that include applicable rules and regulations. The lakeside boundary of accessible shoreline areas that are designated for ORV use will fluctuate with the level of Lake Powell, but the remaining (land-side) boundary of such areas will remain fixed.

To provide for the safety of ORV operators at the Lone Rock Beach Play Area, the rule requires the display of a solid red or orange safety flag that is a minimum of six by 12 inches in size and that is attached to either:

• The ORV so that the safety flag is at least eight feet above the surface level of the ground, or

• The protective headgear of the operator of a motorcycle or dirt bike so that the safety flag is at least 18 inches above the top of the operator's head.

To reduce the degree and geographic extent of impacts from vehicle noise on soundscapes in the recreation area, the rule implements a 96 dBA noise limit on all vehicles. Noise level will be measured by NPS staff using the SAE J1287 standard. Enforcement of this standard may include courtesy checks, checkpoints, and individual contacts. Measurements will be taken using certified equipment and protocols as is done with traffic radar. The rule requires motor vehicles to have a functioning muffler system. These requirements are in addition to state motor vehicle and operator requirements that are adopted by 36 CFR 4.2.

The rule will continue to allow conventional motor vehicles on all paved and unpaved GMP roads in the recreation area. Street-legal ATVs are allowed to operate on paved GMP roads except for roads in the Lees Ferry Developed Area, including the Lees Ferry Access Road. OHVs and street-legal ATVs are allowed to operate on most unpaved GMP roads. OHVs and street-legal ATVs are allowed on approximately 8 miles of the Poison Spring Loop in the Orange Cliffs Special Management Unit. The Superintendent may allow OHVs and street-legal ATVs on the upper portion of the Flint Trail (another unpaved GMP road), subject to further evaluation and compliance with applicable laws (as explained below). OHVs and street-legal ATVs are prohibited on all other unpaved GMP roads in the Orange Cliffs Special Management Unit. The speed limit on unpaved GMP roads is 25 mph or as posted. The speed limits on paved GMP roads will not change and will remain as currently posted. GMP roads will be designated and posted with road numbers. Signs will indicate the status of a road segment as open or closed to OHV and street-legal ATV use and will delineate the designated travel routes. Signs indicating that a GMP road is closed to OHVs or street-legal ATVs will remain in place or will be posted as needed.

Independent from the authority in 36 CFR 1.5, the rule allows the superintendent to close or reopen designated areas or routes to motor vehicle use, or impose conditions or restrictions on the use of off-road motor vehicles after taking into consideration public health and safety, natural and cultural resource protection, lake levels, and other management activities and objectives. The superintendent must provide public notice of all such actions through one or more of the methods listed in 36 CFR 1.7.

The NPS published a proposed rule in the Federal Register on February 28, 2018 (83 FR 8640). The NPS accepted comments on the rule through the mail, by hand delivery, and through the Federal eRulemaking Portal at www.regulations.gov. The comment period closed on April 30, 2018. A summary of the pertinent issues raised in the comments and NPS responses are provided below. Many comments on the proposed rule addressed the NPS's evaluation of the environmental impacts of the preferred and other alternatives in the FEIS. Other comments addressed the range of alternatives considered in the FEIS. These comments are not addressed in this final rule because they raise environmental issues that were already considered by the NPS in the NEPA process. The NPS evaluated the environmental impacts of each alternative in the FEIS and explained the reasons for selecting Alternative E: Mixed Use in the ROD. The NPS did not identify any new significant environmental issues in the public comments on the proposed rule.

After considering public comments and after additional review, the NPS made the following changes in the final rule. No other substantive changes were made in the final rule.

1. The NPS clarified the definitions of “GMP road” (by stating that there are no park roads in the recreation area other than GMP roads), “off-highway vehicle” (by stating that OHVs are by definition not licensed and registered for interstate travel), and “Street-legal all-terrain vehicle (ATV)” (by stating that these vehicles by definition must qualify under Arizona or Utah motor vehicle traffic code to operate on state roads and highways).

2. The NPS clarified the requirement that vehicles be equipped at all times with noise suppression devices, including a working exhaust muffler in constant operation.

3. The NPS changed certain management prescriptions in Table 1 to § 7.70(f)(3)(ii) to reflect that street-legal ATVs are allowed in eight shoreline areas (Blue Notch, Bullfrog North and South Crosby Canyon Dirty Devil, Farley Canyon, Red Canyon, Stanton Creek, and White Canyon) from March 2-October 31. These are the dates identified in the FEIS and ROD.

4. The NPS changed the column headings in Table 2 to § 7.70(f)(4)(i) for ease of reading and to reflect that there are no paved roads within the Orange Cliffs Special Management Unit.

5. The NPS clarified that the 8-mile portion of the Poison Spring Loop where street-legal ATVs and OHVs are allowed is located on Route 633 proceeding north to Route 730.

6. The NPS removed references to “posted” quiet hours in paragraphs (f)(5)(vi) and (v) to avoid an interpretation that quiet hours must be posted in order for them to be enforceable.

7. The NPS added references to “dirt bikes” to clarify that the requirement to display a safety flag on the headgear of a motorcycle operator also applies to the operator of a dirt bike.

8. The NPS added a 25 mph speed limit (unless otherwise posted) for the use of unpaved GMP roads. The NPS referred to this speed limit in the SUPPLEMENTARY INFORMATION section of the proposed rule and in the FEIS.

9. The NPS added a requirement that OHV operators under the age of 18 wear a helmet. This requirement was stated in the FEIS.

10. In addition to annual permits, the proposed rule stated that the NPS would issue two-week permits valid from the date of issuance. Instead of specifying two weeks, the final rule says the NPS will make shorter term permits available. This will give the NPS flexibility to determine the duration of shorter-term permits based upon the conditions at the recreation area and experience from implementation of the ORV permit program.

11. The NPS clarified that motor vehicles may be used in designated ORV areas during quiet areas for purposes of entering or exiting a campsite.

12. The NPS added a statement in the final rule that the Superintendent may determine whether to allow street-legal ATVs or OHVs on the upper portion of the Flint Trail within the Orange Cliffs Special Management Unit. The NPS explains this change below in the response to Comment 2.

13. The NPS inserted language delaying implementation of the permit requirement until 90 days after the effective date of the rule. This will allow the NPS to work with the public to develop the permit program (including a fee structure to offset administrative costs) so that visitors to the recreation area are prepared for its implementation.

1. Comment: Several commenters disagreed with the proposal to allow conventional motor vehicles on unpaved GMP roads in the Orange Cliffs Special Management Unit. These commenters stated that conventional motor vehicles are not designed to travel on roads in this area and that modifications needed to make the roads passable for them would degrade the GMP requirement to maintain a primitive and undeveloped atmosphere in the Unit. These commenters stated that allowing conventional motor vehicles on these unpaved roads would substantially increase the burden of maintaining the roads so that they can be used safely. If the roads are not upgraded and maintained, these commenters stated that conventional motor vehicles would not be able to travel these roads safely and access popular locations within the Unit, such as Panorama Point. These commenters stated that this outcome would increase the cost of search and rescue activities and place visitors and first responders at risk.

NPS Response: Conventional motor vehicle use in the Orange Cliffs area predates the establishment of the recreation area in 1972 and is an existing use today. Allowing visitors to use conventional motor vehicles on these roads helps the NPS achieve a primary objective in the GMP to allow year-round access to Panorama Point and other backcountry areas with spectacular views into Canyonlands National Park. The use of conventional motor vehicles in the Orange Cliffs Special Management Unit was reaffirmed in the 1995 Backcountry Management Plan for this area. The NPS and local counties perform maintenance on unpaved GMP roads in the Unit approximately 1-2 times per year in a manner that protects the relatively primitive, undeveloped atmosphere of the Unit. This regular maintenance allows conventional motor vehicles to use the roads, provided the vehicles have a high clearance and are 4-wheel drive capable. The NPS does not expect an increase in the use of these roads by conventional vehicles because this use is already allowed. The NPS also does not expect the continued use of conventional motor vehicles on these roads to increase the burden of maintaining the roads or to increase the cost of search and rescue (SAR) activities, which are jointly managed by the NPS and local counties, associated with such use. The NPS recommends that visitors use 4-wheel drive high clearance vehicles, although they are not required. Since 2012, the Glen Canyon Interagency Dispatch Center dispatch records show only one motor vehicle incident within the Unit and it did not involve a search and rescue.

2. Comment: Several commenters requested that the NPS allow OHVs and street-legal ATVs on all unpaved GMP roads in the Orange Cliffs Special Management Unit. These commenters stated that OHVs and street-legal ATVs are better suited for travel on these roads that require high clearance vehicles. These commenters stated that OHVs and street-legal ATVs would allow visitors to safely recreate and access popular locations within the Unit, such as Panorama Point, without needing to upgrade and further develop the existing roads. These commenters stated that this outcome would better maintain a relatively primitive and undeveloped atmosphere as required by the GMP.

NPS Response: This rule allows OHVs and street-legal ATVs to travel on an 8-mile section of the Poison Spring Loop within the Orange Cliffs Special Management Unit. Expanding this use to allow OHVs and street-legal ATVs on all GMP roads in the Unit would increase day-use traffic and noise disturbances in a manner that would make it more difficult to maintain a relatively primitive and undeveloped atmosphere. The FEIS contains a more detailed analysis of the potential impacts from OHVs and street-legal ATVs within the Unit. The 1995 Backcountry Management Plan does not explicitly prohibit the use of OHVs and street-legal ATVs within the Unit, but directs the NPS to manage the Unit in the same manner as the Maze District of Canyonlands National Park, which prohibits the use of OHVs and street-legal ATVs, to increase consistency in visitor use and resource protection in the area. The prohibition of OHVs and street-legal ATVs in most of the Orange Cliffs Special Management Unit helps the NPS achieve this goal.

In response to comments raised on this issue, the NPS intends to evaluate whether OHVs or street-legal ATVs would be appropriate on a 15-20 mile upper portion of the Flint Trail, which—along with the Poison Spring Loop—is one of many unpaved GPM roads within the Orange Cliffs Special Management Unit. As part of this evaluation, the NPS will consider potential impacts to resources, visitor experience, and the specific management prescriptions for this area. The selected alternative in the ROD closes the Flint Trail to OHVs and street-legal ATVs, which is how this trail is currently managed and will continue to be managed by the Superintendent until and unless a different management decision is made. As part of this evaluation, the NPS will consider the potential impacts to the environment from opening a portion of this trail to OHVs and street-legal ATVs under NEPA and other applicable laws. In a change from the proposed rule in order to reflect the NPS's intent to evaluate more access on this trail, the final rule states that the Superintendent may determine whether to allow street-legal ATVs or OHVs on the upper portion of the Flint Trail within the Orange Cliffs Special Management Unit. If the Superintendent determines that, based on further analysis, OHVs or street-legal ATVs are appropriate on this portion of the Flint Trail, he or she will provide notice to the public prior to allowing such use. No additional changes to the regulations governing motor vehicle use at the recreation area will be required for the Superintendent to take this action. Consistent with the proposed rule, OHVs and street-legal ATVs are prohibited on all other unpaved GMP roads in the Orange Cliffs Special Management Unit.

3. Comment: Several commenters objected to allowing OHVs and street legal ATVs on the Poison Spring Loop because it would compromise the resources, significance, and purpose of the Orange Cliffs Special Management Unit, which the GMP states should be managed to maintain a relatively primitive and undeveloped atmosphere.

NPS Response: This rule allows OHVs and street legal ATVs to travel on 8-miles of the Poison Spring Loop (Route 633 proceeding north to Route 730) in order to complete a 100-mile loop used by recreational OHV users, most of which is located within BLM-administered areas. BLM was a cooperating agency in the preparation of the FEIS and the NPS consulted with BLM specifically about allowing OHVs and ATVs on the 8-mile section of the Poison Springs Loop. Allowing OHVs and street-legal ATVs on this portion of the Poison Spring Loop would not interfere with the management objective to maintain a primitive and undeveloped atmosphere because this area is surrounded by cattle grazing and does not contain the outstanding scenic values found elsewhere in the Orange Cliffs Special Management Unit.

4. Comment: Several commenters objected to the proposal to allow non-street legal OHVs on unpaved GMP roads. These commenters stated that OHVs are not required to have the same safety equipment as street-legal vehicles and may be operated by uninsured and unlicensed drivers. These commenters stated that the NPS is proposing to manage unpaved GMP roads as de facto ORV routes by allowing non-street legal OHVs to use them even though they are not designated under 36 CFR 4.10. These commenters stated that in order to be consistent with Utah law, the NPS should require operators of motor vehicles on all GMP roads to have a valid driver's license.

NPS Response: State laws in Arizona and Utah allow OHVs to be operated on public roads that are open to their use by the controlling federal agency. ARS 28-1174.B; Utah Code Ann. 41-22.10.1. This rule allows OHVs on some unpaved GMP roads within the recreation area, which means the use of OHVs on these roads is allowed under state law. The NPS adopts non-conflicting state laws and regulations governing traffic and the operation of motor vehicles with NPS units. 36 CFR 4.2. As stated above, because OHVs are not licensed or registered for operation on roads in Utah and Arizona in the same manner as street-legal ATVs or conventional motor vehicles, they are not subject to state licensing, registration, insurance, and equipment requirements that apply to street-legal vehicles when operated on GMP roads. Operators of OHVs on GMP roads must comply, however, with all applicable state and federal traffic requirements ( e.g., speed limits, rules of the road) that apply to street-legal ATVs and conventional motor vehicles. 36 CFR 4.2; ARS 28-621; Utah Code 41-22.10.6. Operators of OHVs must also comply with state laws that govern the use of OHVs that are not considered street-legal. In Utah, OHV operators over the age of 16 must possess a valid state driver's license or education certificate and operators ages 8-15 must possess an education certificate. Utah Code Ann. 41-22-30. Arizona requires operators of any vehicle on any road open to 2-wheel drive conventional motor vehicles to have a driver's license. ARS 28-3151. This requirement applies within the recreation area because GMP roads are open to 2-wheel drive conventional motor vehicles. Unpaved GMP roads where 4-wheel drive is recommended, but not required, are located in Utah. The FEIS analyzed the safety of OHV use on unpaved GMP roads and determined that there could be an increased risk of accidents. Adverse impacts to safety are not expected to be significant, however, because of several actions the NPS is taking to mitigate safety risks. The NPS is reducing the speed limit on unpaved GMP roads to 25 mph (unless otherwise posted) for all vehicle types and is requiring all OHV operators under the age of 18 to wear a helmet. The NPS will also require OHV users to complete an educational component about operational safety prior to obtaining an ORV permit from the NPS.

5. Comment: Several commenters rejected the NPS's authority to restrict travel on roads to which the State of Utah has a claim under Revised Statute 2477 (RS 2477), including the Burr Trail Road and Flint Trail/Roost Road.

NPS Response: Claims by the State of Utah under RS 2477 within the recreation area, including the Burr Trail Road and Flint Trail/Roost Road, have not been adjudicated. The NPS will evaluate the legal effects of any future court decisions regarding RS 2477 claims at the appropriate time.

6. Comment: One commenter objected to the proposal to allow street-legal ATVs on paved GMP roads, stating that mixing street-legal ATVs with conventional motor vehicles will increase traffic injuries and fatalities.

NPS Response: Street-legal ATV use on GMP roads is subject to nonconflicting state traffic laws under 36 CFR 4.2. The NPS defers to the expertise of state authorities regarding traffic laws, licensing, and equipment requirements that the state authorities consider necessary to ensure the safe operation of street-legal ATVs alongside conventional motor vehicles on paved GMP roads.

7. Comment: One commenter requested that OHVs be allowed in Farley Canyon and Blue Notch because they are low-use areas and would provide an opportunity for OHV users to access the water as a side trip when using nearby trail systems in San Juan County.

NPS Response: Farley Canyon and Blue Notch are geographically removed from developed areas within the recreation area and provide visitors with an opportunity for a more quiet and secluded experience. The FEIS identifies 20 dBA as the level of ambient sound at the recreation area. Noise from OHVs and street-legal ATVs increases ambient sound to 23 dBA at 8,020 feet from the noise source. Conventional motor vehicle noise levels drop to ambient sound levels (20 dBA) only 2,900 feet from the noise source. This rule allows street-legal ATVs at Farley Canyon and Blue Notch from March 2—October 31. OHVs are not allowed in these locations at any time during the year. These restrictions will reduce noise impacts by lowering the number of non-conventional motor vehicles in the area during certain times of the year and by eliminating noise from non-conventional motor vehicles at other times. This will help maintain a more quiet and secluded experience for visitors.

8. Comment: Several commenters requested that the NPS designate a historic route in the Rincon Area leading to Lake Powell as open to motor vehicles. These commenters stated that this route has a precedent of motor vehicle use and is identified on several area maps as the only method of accessing the lake from the Hole in the Rock trail.

NPS Response: The Rincon Road is located within a proposed wilderness area. The Wilderness Act prohibits the use of motor vehicles in wilderness areas. 16 U.S.C. 1133(c). The NPS manages proposed wilderness areas in a manner that preserves the wilderness character and will not diminish the eligibility of such areas for designation.

9. Comment: One commenter suggested that all motor vehicles should be allowed on Warm Creek Road between Big Water and the Cowboy Corral on the way to Kelly Grade and Smoky Mountain. This commenter stated that staging at Big Water is more convenient than trailering ATVs 11 miles down the road to Cowboy Corral. This commenter also suggested opening Crosby Canyon to OHVs because it is often washed out and impassible for conventional motor vehicles.

NPS Response: Conventional motor vehicles, street-legal ATVs, and OHVs are allowed on Warm Creek Road. As a result, OHV and street-legal ATVs users may stage at Big Water and are not required to trailer to Cowboy Corral.

OHVs and street-legal ATVs are allowed on Crosby Canyon Road to the end of the GMP road. Street-legal ATVs may access the shoreline at Crosby Canyon from March 2-October 31. The purpose of the accessible shoreline areas is to provide point-to-point travel from the end of the GMP road to the shoreline of Lake Powell when lake levels are below the end of the GMP roads. These areas are not intended to be ORV play areas. During the open season, street-legal ATVs may choose a point-to-point route in the accessible shoreline areas to avoid locations that may be impassible by conventional motor vehicles.

10. Comment: One commenter identified several trails in the Bullfrog shoreline area (three Ticaboo Mesa Overlook routes, and two routes leading out from the Bullfrog South Campground) and encouraged NPS to designate them as ORV routes, open to OHVs year-round.

This commenter stated that the overlook routes would allow land-based visitors to better appreciate the stunning scenery of the recreation area, while also granting simpler access to visitors who desire to canyoneer and hike along the rim of the canyons. This commenter stated that the routes from the campground are important because they create a non-paved connection to the routes north of Bullfrog, allowing visitors to experience hundreds of miles of routes which lay just outside of the recreation area.

NPS Response: This rule does not designate additional ORV routes near the Bullfrog North and South accessible shoreline area because conventional motor vehicles, OHVs, and street-legal ATVs may access the shoreline area on the unpaved GMP road which leads from adjacent BLM lands and connects to BLM roads and routes. This GMP road also connects to the Bullfrog North and South Campgrounds. Designating GMP roads as the primary means of accessing shoreline destinations, points of interest, and ORV routes and roads on adjacent lands allows the NPS to restore duplicative and social routes that are neither GMP roads nor designated ORV routes. ORV routes and areas outside the recreation area may be accessed from other non-NPS lands which are not affected by this rule.

11. Comment: One commenter stated that seniors, individuals with disabilities, and veterans should be exempt from the rule. Another commenter suggested that if the purpose of allowing OHVs and street-legal ATVs on unpaved GMP roads is to allow “traditionally associated people” to conduct cultural activities, then the NPS should allow these activities to continue under a special use permit or memorandum of understanding, rather than opening unpaved GMP roads to OHV and street-legal ATV use by the general public.

NPS Response: The NPS welcomes visitors of all ages to the recreation area, including seniors, individuals with disabilities, and military veterans. This rule allows these groups to use motor vehicles within the recreation area in the same manner as other visitors. The NPS does not believe any groups should be exempt from rules that are designed to provide a variety of recreational opportunities while at the same time helping to maintain visitor safety and protect resources.

A primary purpose of this rule is to provide a variety of recreational opportunities to all types of visitors to the recreation area. Allowing OHVs and street-legal ATVs on unpaved GMP roads allows access to different locations within the recreation area for activities such as sightseeing, fishing, canyoneering, and hiking. A special use permit or memorandum of understanding that addresses particular groups and specific activities would not be appropriate for a management action that is intended to provide opportunities for access and recreation to all members of the visiting public.

12. Comment: Several commenters stated that the NPS created an adversarial relationship and failed in its duty to coordinate with state and local governments in the development of the proposed rule. Specifically, these commenters suggested that the NPS disregarded their viewpoint that favored motorized recreation within the recreation area.

NPS Response: The NPS valued the cooperating agency relationship it shared with Kane, Garfield, San Juan, and Wayne Counties during the development of the FEIS. The NPS sent letters to the counties with information about the plan and held public open houses and cooperating agency meetings throughout the process. At the request of the counties, the NPS extended the deadline to review and comment on the DEIS twice. The NPS considered the recommendations of the state and local governments when drafting this rule and incorporated some of those recommendations. The NPS removed permit requirements on two small ORV route segments in San Juan County. The NPS conducted site visits with the counties to the Orange Cliffs Special Management Unit that resulted in the decision to allow OHVs on 8 miles of the Poison Spring Loop where OHVs had been prohibited. These are only two examples of changes made to the FEIS and the rule as a result of input received from the counties. In addition, based upon public comments on the proposed rule, the NPS intends to further evaluate the use of street-legal ATVs and OHVs on the upper portion of the Flint Trail. Collectively, these actions demonstrate that the NPS considered input from state and local governments and did not disregard any particular viewpoint on the FEIS or the proposed rule.

13. Comment: One commenter supported the NPS recovering all of the costs of administering the ORV permit program, including costs for start-up, monitoring, education, partnerships, and permit administration. This commenter requested that the NPS disclose the expected permit fee and demonstrate how fee revenues will offset the costs of administering the program. Another commenter objected to the permit fee requirement.

NPS Response: The NPS will use a permit fee to recover costs associated with administering the ORV program. The fee will be used to offset the costs of permit processing, education, resource protection, and law enforcement activities related to the ORV program. Appendix B of the FEIS identifies expected business and administrative costs that the NPS would incur by implementing the selected action in the ROD. These include the costs of administering the ORV permit program. The NPS is allowed by law to recover all costs of providing necessary services associated with permits. 54 U.S.C. 103104. The NPS may also offset some of the costs of administering the permit program with revenues from fees collected under the Federal Lands Recreation Enhancement Act (16 U.S.C. 6801-6814). The NPS will announce the amount of the fees prior to the start of the permit requirement that will begin 90 days after the effective date of the rule. Fee amounts will be based on the costs that are incurred by the NPS for the administration of the program. The NPS does not expect the permitting system to recover the full costs associated with managing an ORV program.

14. Comment: Several commenters supported the establishment of a permit program conditioned upon how revenues are utilized. One commenter advocated funds be invested in enhanced OHV opportunities and road improvements, another commenter recommended hiring rangers to repair areas damaged from increased use, and more than one commenter requested the NPS hire additional law enforcement officers.

NPS Response: The NPS will use fees to recover costs from administering the ORV program. Fee revenue could be used to maintain facilities at ORV areas, recover personnel costs associated with enforcing ORV rules, or to monitor and restore resources in ORV areas. The NPS will spend fee revenues on a case-by-case basis given the particular management priorities at that time. The NPS will share more information about the fee structure during the 90-day delayed implementation period prior to the start of the permit requirement.

15. Comment: One commenter asked the NPS to prohibit the use of vehicles with electric motors due to the risk of fire.

NPS Response: The NPS has not identified a risk of fire from electric engines that is greater than the risk of fire from traditional combustion engines.

16. Comment: Several commenters questioned the basis for implementing a 96 dBA noise limit (using the SAE J1287 test standard) instead of using the standard that applies to motor vehicles in other NPS units. This other standard is set forth in 36 CFR 2.12, which prohibits operating a motor vehicle in a manner that exceeds 60 decibels measured on the A-weighted scale at 50 feet. One commenter stated that the 96 dBA standard would diminish the experience of non-motorized visitors and potentially cause hearing damage.

NPS Response: Special regulations may relax a System-wide standard where appropriate for the uses and resources in a specific System unit. 36 CFR 1.2(c). The 96 dBA noise limit is an established industry standard with a well-defined measuring protocol (SAE J1287) and is a practicable limit that has been used by other NPS units with similar resource concerns, including Lake Meredith National Recreation Area. This limit is used by the State of California for their ORV programs and is consistent with OHV noise limits in Arizona. ARS 28-1179(A)(3). The 96-dBA limit is consistent with requirements set by federal and state agencies that manage lands adjacent to the recreation area, including the United States Forest Service. Adopting this standard for the recreation area will avoid regulations that are inconsistent or incompatible across jurisdictional boundaries. As identified in the FEIS, only 36.5% of the recreation area will be impacted by noise related to ORV activity. This leaves ample opportunities for visitors to have an experience free from noise from OHVs and street-legal ATVs and to avoid areas where they may have concerns about hearing damage. In addition, several of the accessible shoreline areas will be closed seasonally to OHVs and street-legal ATVs.

17. Comment: One commenter objected to using the SAE J1287 test standard, which measures vehicle exhaust noise at 20 inches from the exhaust of a stationary vehicle operating at half throttle. This commenter stated that this test will not capture the actual noise of motor vehicles in use at the recreation area, the majority of which will be operated above half-throttle, generating more than 96 dBA of noise. One commenter stated that the SAE J1287 test will be difficult to implement in the field due to variable conditions, making the 96 dBA noise requirement difficult to enforce, even if law enforcement officers are properly trained and equipped with noise monitoring equipment.

NPS Response: SAE J1287 should be adequate to assess the volume of the primary noise source. SAE J1287 is a well-defined measurement protocol and is widely used to enforce noise regulations in many jurisdictions. Close (short distance) measurement of stationary vehicle noise is recommended for the safety of law enforcement officers, which allows them to give instructions to the vehicle operator and measure noise output while maintaining detainment or arrest of a suspect. Close measurements also allow law enforcement officers to measure noise without needing to move into undisturbed areas to collect noise from a distance.

18. Comment: One commenter suggested that the NPS prohibit the modification of a vehicle in any manner that will amplify and otherwise increase total noise emissions to a level greater than that emitted by the motor vehicle as originally constructed.

NPS Response: The practical application of the decibel restriction will result in the inability to modify most street-legal ATVs, OHVs, and conventional motor vehicles and still meet that restriction. The NPS is not concerned with the modification of vehicles that increase total noise emissions as long as they remain below the 96 dBA limit.

Executive Order 11644, as amended by Executive Order 11989, was adopted to address impacts on public lands from ORV use. The Executive Order applies to ORV use on federal public lands that is not authorized under a valid lease, permit, contract, or license. Section 3(a)(4) of Executive Order 11644 provides that ORV “[a]reas and trails shall be located in areas of the National Park System, Natural Areas, or National Wildlife Refuges and Game Ranges only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.” Since the Executive Order clearly was not intended to prohibit all ORV use everywhere in these units, the term “adversely affect” does not have the same meaning as the somewhat similar terms “adverse impact” and “adverse effect” used in the National Environmental Policy Act of 1969 (NEPA). In analyses under NEPA, a procedural statute that provides for the study of environmental impacts, the term “adverse effect” includes minor or negligible effects.

Section 3(a)(4) of the Executive Order, by contrast, concerns substantive management decisions and must be read in the context of the authorities applicable to such decisions. Glen Canyon National Recreation Area is an area of the National Park System. Therefore, NPS interprets the Executive Order term “adversely affect” consistent with its NPS Management Policies 2006. Those policies require that the NPS only allow “appropriate use” of parks and avoid “unacceptable impacts.”

This rule is consistent with those requirements. It will not impede attainment of the recreation area's desired future conditions for natural and cultural resources as identified in the FEIS. NPS has determined that this rule will not unreasonably interfere with the atmosphere of peace and tranquility or the natural soundscape maintained in natural locations within the recreation area. Therefore, within the context of the resources and values of the recreation area, motor vehicle use on the routes and areas designated by this rule will not cause an unacceptable impact to the natural, aesthetic, or scenic values of the recreation area. The Executive Order does not prohibit the NPS from managing categories of “off-road vehicles” differently in order to best protect park resources and values. The selected alternative in the ROD, as implemented by this rule, does this by distinguishing between conventional motor vehicles, OHVs, and street-legal ATVs, all of which fall under the definition of “off-road vehicle” in the Executive Order.

Section 8(a) of the Executive Order requires agency heads to monitor the effects of ORV use on lands under their jurisdictions. On the basis of information gathered, agency heads may from time to time amend or rescind designations of areas or other actions as necessary to further the policy of the Executive Order. The preferred alternative in the FEIS includes monitoring and resource protection procedures and periodic review to provide for the ongoing evaluation of impacts of motor vehicle use on protected resources. The superintendent has authority to take appropriate action as needed to protect the resources of the recreation area.

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

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

Enabling regulations are considered deregulatory under guidance implementing Executive Order 13771 (M-17-21). This rule authorizes the Superintendent to allow a recreational activity for the public to enjoy and experience certain areas within the National Park System that would otherwise be prohibited.

The agency certifies that this rule will not have a significant economic impact on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). This certification is based on the cost-benefit and regulatory flexibility analyses found in the report entitled “Cost-Benefit and Regulatory Flexibility Analyses: Special Regulations of Off-Road Motor Vehicles at Glen Canyon National Recreation Area” that can be viewed online at on www.regulations.gov in Docket ID: NPS-2018-0001. As stated in the Regulatory Flexibility Analysis section of the report, the FEIS and rule were developed to maintain a diversity of recreational opportunities throughout the recreation area. Several small businesses catering to non-motorized recreational opportunities currently operate in the Orange Cliffs Unit. Because the majority of the Orange Cliffs Unit will remain closed to ORVs, impacts to these businesses are not anticipated. Similarly, the NPS does not anticipate impacts to small businesses in other areas of the recreation area due to the incremental nature of the changes to baseline conditions in those locations. Given these findings, the NPS certifies that there will not be a significant economic impact on a substantial number of small entities. The certification made by the NPS under the RFA also relies on the associated cost-benefit analysis, which concludes that the rule will likely generate positive net benefits.

This rule is not a major rule under 5 U.S.C. 804(2), the CRA. This rule:

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

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

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

This rule does not impose an unfunded mandate on state, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on state, local or tribal governments or the private sector. The designated ORV routes and areas are located entirely within the recreation area, and will not result in direct expenditure by state, local, or tribal governments. This rule addresses public use of NPS lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq. ) is not required.

This rule does not effect a taking of private property or otherwise have taking implications under Executive Order 12630. Access to private property adjacent to the recreation area will not be affected by this rule. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. The rule is limited in effect to federal lands managed by the NPS and will not have a substantial direct effect on state and local government. A Federalism summary impact statement is not required.

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

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

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

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's consultation policy and have determined that tribal consultation on the rule is not required because the rule will have no substantial direct effect on federally recognized Indian tribes. In support of the Department of Interior and NPS commitment for government-to-government consultation with the 19 Native American tribes and bands associated with the recreation area, however, and as a reflection of the shared boundary of the recreation area and the Navajo Nation, the NPS has engaged in a continuing process of consultation with these tribes and bands. This consultation has taken the form of correspondence, phone conversations, and meetings during the preparation of the FEIS.

This rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the PRA. OMB has approved the information collection requirements associated with NPS Form 10-933, “Application for Special Park Use Permit-Vehicle/Watercraft Use” and has assigned OMB Control Number 1024-0026 (expires 11/30/20 and in accordance with 5 CFR 1320.10, the agency may continue to conduct or sponsor this collection of information while the submission is pending at OMB). We estimate the annual burden associated with Forms 10-933 under this information collection to be 12,998 hours per year. 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.

This rule constitutes a major Federal action significantly affecting the quality of the human environment. We have prepared the FEIS and ROD under the NEPA. The FEIS and ROD are available online at http://parkplanning.nps.gov/glca-orvplan, and then clicking on the link entitled “Document List”.

This rule is not a significant energy action under the definition in Executive Order 13211; the rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and the rule has not otherwise been designated by the Administrator of OIRA as a significant energy action. A Statement of Energy Effects is not required.

In consideration of the foregoing, the NPS amends 36 CFR part 7 as follows:

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

On October 6, 2020 (85 FR 63064), the EPA proposed to approve the following negative declarations into the CA SIP.

We proposed to approve these negative declarations because we determined that they comply with the relevant CAA requirements. Our proposed action contains more information on the negative declarations and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

No comments were submitted. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving these revisions into the California SIP.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, 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 3, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the 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, the SIP is not approved to apply on any Indian reservation land or 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 and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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 March 16, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the Environmental Protection Agency amends Part 52, chapter I, title 40 of the Code of Federal Regulations as follows:

Throughout this document “we,” “us,” and “our” refer to the EPA. A technical support document (TSD) is included in the rulemaking docket.

On September 11, 2020, the EPA proposed to approve Kansas' infrastructure SIP submission for the 2015 O 3 NAAQS in the Federal Register (85 FR 56198; September 11, 2020). The EPA solicited comments on the proposed approval of the infrastructure SIP submission and received three separate comments that are addressed in this document.

The EPA is approving the infrastructure SIP submission, submitted by the state by letter dated September 27, 2018, 1 and supplemented by letter dated February 6, 2020, in accordance with section 110(a)(1) of the CAA. Specifically, the EPA is approving the following infrastructure elements of section 110(a)(2) of the CAA: (A) through (C), (D)(i)(II)- prevent significant deterioration of air quality (prong 3) and protection of visibility (prong 4), (D)(ii), (E) through (H), and (J) through (M). Elements of section 110(a)(2)(D)(i)(I)—significant contribution to nonattainment (prong 1), and interfering with maintenance of the NAAQS (prong 2), will be addressed in a separate action.

Although section 110(a)(2)(I) was addressed in the submission,  2 the EPA is not taking action on section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions under Part D, as it is the EPA's interpretation of the CAA that these elements do not need to be addressed in the context of an infrastructure SIP submission.

A Technical Support Document (TSD) in the docket provides additional details of this action, including an analysis of how the SIP meets the applicable 110 requirements for infrastructure SIPs. Included in the TSD is the EPA's analysis concerning Kansas' authority to conduct modeling in accordance with the EPA's “ Revisions to the Guideline on Air Quality Models: Enhancements to the AERMOD Dispersion Modeling System and Incorporation of Approaches To Address Ozone and Fine Particulate Matter” (also referred to as the 2017 Guideline ). 3 82 FR 5182. While Kansas has not yet formally adopted the 2017 Guideline into its regulations, Kansas states that it has the authority to integrate the requirements and recommendations of the 2017 Guideline in its regulatory processes. As detailed in the TSD, the EPA finds that Kansas' September 27, 2018 submission, supplemented by letter dated February 6, 2020, satisfies the PSD-related requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3), and 110(a)(2)(J), and modeling requirements related to CAA section 110(a)(2)(K).

The State met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The EPA determined that the submission satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided a public comment period for this SIP revision from August 23, 2018 to September 24, 2018 and received no comments. In addition, as explained in more detail in the TSD which is part of this docket, the infrastructure SIP submission meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

The public comment period on the EPA's proposed rule opened September 11, 2020, the date of its publication in the Federal Register and closed on October 13, 2020. During this period, the EPA received three comments. One comment was not germane to the action and does not require a response from the EPA. Another comment was supportive of the EPA's proposed approval of Kansas' 2015 O 3 Infrastructure SIP. The third comment, which was supportive of the EPA's proposed approval of Kansas' 2015 O 3 Infrastructure SIP but also identified misstatements in the EPA's proposed rule, was submitted by the Kansas Department of Health and the Environment and is summarized below.

Comment 1: The EPA incorrectly listed April 11, 2019 as the date of receipt of Kansas' 2015 O 3 Infrastructure SIP submission in the proposed rule.

Response 1: The EPA agrees that it made an error in the proposed rule, and notes that Kansas submitted the 2015 O 3 Infrastructure SIP to the EPA by letter dated September 27, 2018. In addition, the TSD and the 40 CFR part 52 table in the proposed rule correctly identified the September 27, 2018 submittal date. As such, this final rule accurately identifies that the EPA is taking final action on the 2015 O 3 Infrastructure SIP submitted to the EPA by Kansas on September 27, 2018.

Comment 2: The EPA mistakenly identified that particular elements related to interstate pollution transport, specifically prongs 1 and 2 of section 110(a)(2)(D)(i)(I), were not addressed in the submission; however, Kansas did include section 110(a)(2)(D)(i)(I) requirements in the September 27, 2018 submission.

Response 2: The EPA notes that it made an error in the proposed rule by stating that Kansas did not include prongs 1 and 2 of section 110(a)(2)(D)(i)(I) requirements in the September 27, 2018 submission. As noted in the TSD, the EPA plans to address prongs 1 and 2 in a separate rulemaking. The EPA has revised the 40 CFR part 52 table accompanying this action in order to address Kansas' comment.

Comment 3: The EPA states that Kansas did not address section 110(a)(2)(I) requirements in the 2015 O 3 Infrastructure SIP submission; however, Kansas did include section 110(a)(2)(I) requirements in the September 27, 2018 submission.

Response 3: The EPA notes that it made an error in the proposed rule by stating that Kansas did not address section 110(a)(2)(I) requirements in Kansas' 2015 O 3 Infrastructure SIP submission. However, as discussed in the proposed rule and the TSD, it is the EPA's interpretation of the CAA that section 110(a)(2)(I) does not need to be addressed in the context of an infrastructure SIP submission. Section 110(a)(2)(I) requires states to meet the applicable SIP requirements of part D of the CAA relating to designated nonattainment areas. The specific part D submissions for designated nonattainment areas are subject to different submission schedules than those for section 110 infrastructure elements. The EPA acts on part D attainment plan SIP submissions through a separate rulemaking governed by the requirements for nonattainment areas, as described in part D. As such, this final rule does not address the section 110(a)(2)(I) requirements that were included in Kansas' 2015 O 3 Infrastructure SIP submission.

The EPA is approving elements of the September 27, 2018, infrastructure SIP submission from the State of Kansas, which addresses the requirements of CAA sections 110(a)(1) and (2) as applicable to the 2015 O 3 NAAQS. Specifically, the EPA is approving the following infrastructure elements of section 110(a)(2): (A) through(C), (D)(i)(II) prong 3 and prong 4, (D)(ii), (E) through (H), (J) through (M). The EPA intends to act on the elements of section 110(a)(2)(D)(i)(I)- prong 1 and prong 2, in a subsequent rulemaking. The EPA is not addressing section 110(a)(2)(I)- Nonattainment Area Plan or Plan Revisions under part D, as it is the EPA's interpretation of the CAA that these elements do not need to be addressed in the context of an infrastructure SIP submission.

Based upon review of the State's infrastructure SIP submissions and relevant statutory and regulatory authorities and provisions referenced in those submissions or referenced in Kansas' SIP, the EPA finds that Kansas' SIP meets all applicable required elements of sections 110(a) (1) and (2) (except as otherwise noted) with respect to the 2015 O 3 NAAQS.

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

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

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

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

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

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 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 the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where 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 and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 16, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).

For the reasons stated in the preamble, the EPA amends the 40 CFR part 52 as set forth below:

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

On April 25, 2019 (84 FR 17365), the EPA proposed to approve the following measure, submitted by the California Air Resources Board (CARB), into the California SIP.

We proposed to approve the South Coast On-Road Heavy-Duty Vehicle Incentive Measure based on a determination that it satisfies the applicable CAA requirements for approval of voluntary measures for SIP emission reduction credit. Our proposal was based on our evaluation of the documents provided in the SIP submission, including the measure itself ( i.e., the State commitments set forth on page 5 of CARB Resolution 18-3), CARB's analysis of the measure in a document entitled “South Coast On-Road Heavy-Duty Vehicle Incentive Measure,” Release Date: February 16, 2018 (hereafter “Demonstration”), and a document entitled “Additional Information for the South Coast On-Road Heavy-Duty Vehicle Incentive Measure.” Our proposed rule and associated technical support document (TSD)  1 contain more information about the SIP submission and our evaluation thereof.

On November 24, 2020, CARB submitted a technical clarification to the South Coast On-Road Heavy-Duty Vehicle Incentive Measure that clarifies its commitment to make certain documents concerning the incentive projects implemented to achieve emission reductions available to the public upon request. CARB adopted this technical clarification to the measure by Executive Order S-20-030 (November 23, 2020). 2 We refer to CARB's commitments in Resolution 18-3, as clarified by Executive Order S-20-030, as the “South Coast Incentive Measure.”

The EPA's proposed action provided a 30-day public comment period. During this period, we received comments from Earthjustice, on behalf of a coalition of environmental and community organizations, and comments from an anonymous commenter. 3

We respond below to a selection of the most significant comments on our proposed rule. We respond to all other comments that are germane to the proposed rule in our separate Response to Comments document available at https://www.regulations.gov, Docket ID No. EPA- R09-OAR-2019-0176. We do not respond to the comments from the anonymous commenter because they fail to identify any specific issue that is germane to our action on this measure.

Comment 1: Earthjustice states that the South Coast Incentive Measure does not satisfy the enforceability requirements in section 110(a)(2)(A) of the CAA. Citing the EPA's Memo to Docket for a rulemaking entitled “State Implementation Plans: Response to Petition for Rulemaking; Finding of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction,” Earthjustice states that to be “enforceable,” a measure must be enforceable by the state, the EPA, and citizens. Earthjustice also states that the mere approval of a measure into the SIP does not convert an unenforceable provision into an enforceable one, and that the EPA's SIP rulemaking must explain how the proposed measure can be enforced. According to Earthjustice, the EPA's proposed rule to approve the South Coast Incentive Measure has not provided a legally defensible analysis of how this rule is enforceable.

Response 1: We agree with Earthjustice's statement that the mere approval of a measure into the SIP does not convert an unenforceable provision into an enforceable one, but we disagree with Earthjustice's claim that CARB's commitments in the South Coast Incentive Measure are not enforceable. We explain below how the EPA and citizens may enforce the provisions of CARB's SIP commitments in the South Coast Incentive Measure. We respond to Earthjustice's more specific comments concerning enforceability in our responses to comments 2 through 11. We note that our evaluation here is limited to CARB's commitments in the South Coast Incentive Measure and that the EPA will review each incentive-based control measure submitted by a state on a case-by-case basis, following notice-and-comment rulemaking, to determine whether the applicable requirements of the Act are met.

Under CAA section 110(a)(2)(A), SIPs must include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the Act, as well as timetables for compliance. Similarly, section 172(c)(6) provides that nonattainment area SIPs must include enforceable emission limitations and such other control measures, means or techniques as may be necessary or appropriate to provide for attainment of the national ambient air quality standards (NAAQS) by the applicable attainment date.

Control measures, including commitments in SIPs, are enforced through CAA section 304(a), which provides for citizen suits to be brought against any “person,” including a state, 4 who is alleged “to be in violation of . . . an emission standard or limitation. . ..” “Emission standard or limitation” is defined in subsection (f) of section 304. 5 As observed in Conservation Law Foundation, Inc. v. James Busey et al., 79 F.3d 1250, 1258 (1st Cir. 1996):

Thus, courts have found that the citizen suit provision cannot be used to enforce the aspirational goal of attaining the NAAQS but can be used to enforce specific strategies to achieve that goal. 6

SIP control measures and commitments may also be enforced by the EPA under section 113(a)(1) of the Act, which authorizes the EPA to issue notices and compliance orders, assess administrative penalties, and bring civil actions against any “person,” including a state, who “has violated or is in violation of any requirement or prohibition of an applicable implementation plan. . . .”  7

CARB's commitments in the South Coast Incentive Measure are set forth on page 5 of CARB Resolution 18-3 (March 22, 2018), as clarified by Executive Order S-20-030 (November 23, 2020), 8 and include six key components, as summarized below:

In the Demonstration, CARB states that “CARB is the responsible party for enforcement of this measure and is responsible for achieving the emission reductions from this measure,”  10 thus expressing CARB's decision to voluntarily commit itself to fulfilling the tonnage commitment and to being held accountable for failure to fulfill this commitment.

Upon the EPA's approval of these commitments into the SIP under CAA section 110, the commitments will become federally enforceable requirements of an “applicable implementation plan” as defined in CAA section 302(q). Therefore, as discussed below, both citizens and the EPA may enforce these commitments under CAA sections 304(a)(1) and 113(a)(1), respectively. We describe each enforceable component of the South Coast Incentive Measure below.

First, the South Coast Incentive Measure obligates CARB to monitor District implementation of 1,300 on-road heavy-duty compression ignition truck repower and replacement projects in accordance with specified portions of the 2017 Carl Moyer Guidelines. 11 The 2017 Carl Moyer Guidelines enable CARB to carry out its oversight responsibilities by requiring, among other things, that air districts (1) maintain, for specified periods of time, all project-related documentation obtained from participating sources and through the air district's on-site project inspections;  12 (2) make such documents available to CARB staff during CARB's periodic “incentive program reviews” and upon request;  13 (3) submit a certified “yearly report” to CARB containing specific information about funded projects, including information sufficient to calculate emission reductions and cost-effectiveness for source categories where required;  14 and (4) allow CARB and its designees to conduct fiscal audits and to inspect project engines, vehicles, and/or equipment and associated records during the contract term. 15 The 2017 Carl Moyer Guidelines also specifically identify types of actions on the part of the implementing air district that CARB may treat as violations of program requirements— e.g., misuse of Carl Moyer Program funds to fund ineligible projects and insufficient, incomplete, or inaccurate project documentation  16 —and authorize CARB to enforce the terms of a project contract at any time during the contract term to ensure that emission reductions are obtained. 17 If CARB fails to document in each annual demonstration report the steps it has taken to exercise these monitoring responsibilities, that failure would constitute a violation of the SIP commitment.

Second, the South Coast Incentive Measure obligates CARB to achieve, by December 31, 2022, 1 tpd of reductions in NO X emissions from the 2023 baseline inventory  18 in the 2016 South Coast AQMP through implementation of these projects in the South Coast Air Basin or substitute measures and/or rules consistent with paragraph 5 of the commitment. 19 If CARB fails to achieve 1 tpd of NO X emission reductions by December 31, 2022 through implementation of the identified incentive projects or substitute measures and/or rules that meet the identified criteria, that failure would constitute a violation of the SIP commitment.

Third, the South Coast Incentive Measure obligates CARB to submit annual demonstration reports to the EPA by March 31 each year from 2020 through 2023, each of which must include, among other things, specific information about the incentive projects funded through the previous year, about changes to the applicable guidelines, and about actions by CARB and the District to monitor projects for compliance with contract requirements. 20 If CARB fails to timely submit an annual demonstration report containing all of the information listed in paragraph 3 of the South Coast Incentive Measure, that failure would constitute a violation of the SIP commitment.

Fourth, the South Coast Incentive Measure obligates CARB to make each annual demonstration report publicly available or available upon request. If CARB fails to make any annual demonstration report publicly available or to provide it within a reasonable period after receiving a request for it, that failure would constitute a violation of the SIP commitment.

Fifth, the South Coast Incentive Measure obligates CARB to provide to any requestor, beginning May 15, 2021 and through 2029, certain project-specific documents relied upon in the preparation of CARB's annual demonstration reports, including project applications, grant contracts, and inspection-related documents. If CARB fails to provide any of these project records within a reasonable period after receiving a request, that failure would constitute a violation of the SIP commitment.

Finally, the South Coast Incentive Measure obligates CARB to adopt and submit to the EPA, by September 1, 2022, substitute measures and/or rules that address any shortfall in emission reductions no later than January 1, 2023, if the EPA determines by July 1, 2021 that information submitted by CARB is insufficient to demonstrate that it will fulfill the tonnage commitment on schedule. If CARB fails to adopt and submit timely substitute measures and/or rules sufficient to address a shortfall in required emission reductions, this failure would constitute a violation of the SIP commitment. We provide a more detailed discussion of CARB's obligation to adopt and submit substitute measures in Response 7 in the Response to Comments document.

This series of actions mandated by the South Coast Incentive Measure constitutes a specific enforceable strategy for achieving a specific amount of NO X emission reductions by the beginning of 2023. The fact that CARB may meet its SIP commitments by adopting measures that are not specifically identified in the SIP, or through one of several available techniques, does not render the requirement to achieve the emissions reductions unenforceable. 21

For all of these reasons, we conclude that CARB's commitments in the South Coast Incentive Measure to monitor and report annually on the implementation of specific types of incentive projects, to achieve a specified tonnage of NO X emission reductions from these projects or substitute measures, to make the annual demonstration reports and related documentation available to the public, and to adopt and submit substitute control measures where necessary to address an emission reduction shortfall identified by the EPA, constitute appropriate means, techniques, or schedules for compliance under sections 110(a)(2)(A) and 172(c)(6) of the Act.

Comment 2: Earthjustice states that citizens and the EPA can only enforce “violations,” and that the EPA must describe what would constitute a violation of the SIP provisions being approved here. Citing section 304(a)(1) of the CAA, Earthjustice states that citizens can commence civil actions for violations of emission standards or limitations or orders issued by the EPA or a state with respect to such standards or limitations. Additionally, citing section 113(a)(1) of the Act, Earthjustice states that the EPA can enforce a violation of any requirement or prohibition of an applicable implementation plan. According to Earthjustice, the EPA “suggests that EPA and citizens can enforce the commitments to achieve and report on emission reductions” but that the EPA and the South Coast Incentive Measure “muddy what exactly would constitute a violation.”

Earthjustice notes the EPA's statement in the TSD that to be enforceable, program violations must be defined, and asserts that the EPA must explain where in the South Coast Incentive Measure such definitions are provided.

Response 2: We disagree with Earthjustice's claim that the commitments at issue in this action do not create obligations that EPA or citizens can enforce, were CARB or the District to violate them. We identify in Response 1 the types of violations of the commitments that could provide the basis for an enforcement action by the EPA or by citizens under section 113(a)(1) or 304(a)(1) of the CAA, respectively. As explained in Response 1, CARB's commitments, as set forth in the South Coast Incentive Measure, constitute a specific enforceable strategy for achieving 1 tpd of NO X emission reductions on a fixed schedule and, upon approval into the SIP, become requirements of an “applicable implementation plan” as defined in CAA section 302(q). Although the South Coast Incentive Measure does not specifically define potential violations of the commitments, we find that it describes each of the actions that CARB has committed to undertake in sufficient detail to enable the EPA and the public to determine whether and when a violation has occurred. Accordingly, these commitments are enforceable by citizens under CAA section 304(a)(1) and by the EPA under CAA section 113(a)(1).

Comment 3: Earthjustice states that CARB's commitment to “monitor” District implementation of projects in accordance with the Carl Moyer Guidelines is a “vague and unenforceable commitment.” Earthjustice asks what would constitute a violation, and how one could prove that CARB is not monitoring implementation in accordance with the guidelines. Earthjustice asserts that there is no means of measuring or independently verifying compliance because there is no reporting requirement and no deadline. Additionally, Earthjustice claims that the reference to “1300 repower and replacement projects” in CARB's commitment “is a deliberate attempt to mislead the reader on what is actually required.” For example, Earthjustice states, nothing in this monitoring “requirement” specifies that these projects actually need to occur.

Response 3: We disagree with these comments. CARB's commitment to monitor District implementation of projects in accordance with the 2017 Carl Moyer Guidelines is enforceable through specific provisions in the South Coast Incentive Measure that require CARB to, among other things, report annually on the incentive projects it is relying on to achieve emission reductions and the actions that CARB has taken to ensure that these projects comply with the contracts issued by the District in accordance with the 2017 Carl Moyer Guidelines. See Response 1.

Specifically, the South Coast Incentive Measure obligates CARB to identify, in each annual demonstration report submitted to the EPA by March 31 of each year from 2020 through 2023, those specific projects funded through the previous year that CARB is relying on to achieve the tonnage commitment. CARB must identify each of these projects “by project identification number, project life and implementation date, description of both baseline and new equipment, applicable incentive program guidelines, and quantified emission reductions.”  22 Additionally, each annual demonstration report must describe any changes to the 2017 Carl Moyer Guidelines and related impacts on program integrity, describe CARB's and the District's actions to monitor selected projects for compliance with contract requirements, and contain CARB's determination of whether the identified projects are projected to achieve the full 1 tpd of NO X emission reductions in the South Coast Air Basin by 2023. 23

These provisions ensure that CARB's annual demonstration reports will contain both the project-specific information needed to independently calculate the emission reductions that CARB attributes to each project and the programmatic information needed to determine whether CARB and the District are taking appropriate steps to ensure that the identified projects comply with contract terms, which in turn assure compliance with the 2017 Carl Moyer Guidelines. 24 The 2017 Carl Moyer Guidelines specifically require that air districts audit at least five percent of active Carl Moyer projects or 20 active projects (whichever is less), including any audits conducted following unsatisfactory annual reporting. 25 If CARB's annual demonstration report for a given year fails to identify the project-specific information described in paragraph 3.a of the South Coast Incentive Measure or to document the steps that CARB and the District have taken to monitor selected projects for compliance with contract terms, consistent with paragraph 3.c of the South Coast Incentive Measure, the EPA or citizens may bring an enforcement action against CARB for violating its monitoring and reporting obligations.

We also disagree with Earthjustice's claim that the reference to “1300 repower and replacement projects” in CARB's commitment is misleading as to what is actually required. As explained in Response 1, CARB is specifically obligated to monitor the District's implementation of at least 1,300 on-road heavy-duty compression ignition truck repower and replacement projects in accordance with specified portions of the 2017 Carl Moyer Guidelines. 26 The 2017 Carl Moyer Guidelines enable CARB to monitor the District's compliance with these guidelines by requiring, among other things, that air districts maintain compliance-related documentation, make such documents available to CARB staff upon request, submit certified “yearly reports” to CARB containing specific information about funded projects, and allow CARB and its designees to inspect project engines, vehicles, and/or equipment and associated records during the contract term. 27 The 2017 Carl Moyer Guidelines also specifically identify types of actions on the part of the implementing air district that CARB may treat as program violations and authorize CARB to enforce the terms of a project contract. 28 If CARB fails to document in each annual demonstration report the steps it has taken to exercise these monitoring responsibilities, that failure would constitute a violation of the SIP commitment.

Additionally, as explained in Response 1, CARB is obligated to achieve 1 tpd of NO X emission reductions in the South Coast Air Basin, either through implementation of the identified truck repower and replacement projects or through substitute measures adopted and submitted in accordance with the deadlines specified in paragraph 5 of the South Coast Incentive Measure. 29 Thus, although CARB is not necessarily obligated to ensure that 1,300 incentive projects are implemented or to achieve 1 tpd of NO X emission reductions through these incentive projects, CARB is obligated to monitor at least 1,300 such projects for purposes of determining whether those projects will achieve 1 tpd of NO X emission reductions by December 31, 2022. If those projects do not fulfill the tonnage commitment, CARB is obligated to adopt and submit substitute measures sufficient to address the shortfall. 30

Comment 4: Earthjustice states that nothing in CARB's commitment to “achieve 1 ton per day of [NO X ] emission reductions . . . by December 31, 2022” specifies where these emission reductions must come from or where they must occur. Earthjustice claims that nothing specifies whether these reductions must be the result of some action by the agencies or merely the result of favorable economic conditions, and that CARB has relied on the latter in the past to claim compliance with similar “commitments.” Earthjustice further claims that there is no way for the EPA or citizens to look at the entire emissions inventory for the South Coast on December 31, 2022 and determine whether CARB has achieved this emission reduction, and that even if overall emissions increase between 2019 and 2022, CARB could still claim that but for some unspecified reason, the total NO X emissions would have been 1 tpd higher. Earthjustice argues that because there is no way to prove that CARB has not achieved the 1 tpd of NO X reductions, the commitment fails to define any possible violation and is not practicably enforceable.

Response 4: We identify in Response 1 the types of violations of the commitments that could provide the basis for an enforcement action by the EPA or by citizens under section 113(a)(1) or 304(a)(1) of the CAA, respectively. As explained in Response 1, CARB's commitments constitute a specific enforceable strategy for achieving 1 tpd of NO X emission reductions on a fixed schedule and, upon approval into the SIP, become requirements of an “applicable implementation plan” as defined in CAA section 302(q). Accordingly, these commitments are enforceable by citizens under CAA section 304(a)(1) and by the EPA under CAA section 113(a)(1).

Earthjustice's characterization of CARB's commitments is incorrect in several respects. First, with respect to CARB's commitment to achieve 1 tpd of NO X emission reductions by December 31, 2022, Earthjustice claims incorrectly that the commitments do not specify where these emission reductions must come from or where they must occur. The South Coast Incentive Measure specifies that CARB must achieve 1 tpd of NO X emission reductions through implementation of one or both of the following types of measures: (1) Heavy-duty compression-ignition truck repower and replacement projects implemented in accordance with specified portions of the 2017 Carl Moyer Guidelines, and/or (2) substitute measures and/or rules adopted and submitted to the EPA by specified deadlines. 31 It also makes clear that these emission reductions must occur in the South Coast Air Basin. 32

Second, Earthjustice claims incorrectly that nothing in the commitment “specifies whether [the emission reductions] must be the result of some action by the agencies or merely the result of favorable economic conditions,” and that CARB has relied on the latter in the past to claim compliance with similar “commitments.” As explained in Response 1, the South Coast Incentive Measure explicitly states that CARB will do the following:

Thus, by its terms, the South Coast Incentive Measure obligates CARB to “achieve” 1 tpd of NO X emission reductions no later than January 1, 2023, either by confirming implementation of identified incentive projects in accordance with the specified portions of the 2017 Carl Moyer Guidelines or by adopting and submitting to the EPA substitute measures and/or rules that achieve equivalent emission reductions. In the interpretative statements preceding these commitments and in the Demonstration, CARB states that it is creating a “publicly-enforceable commitment to achieve emission reductions”  34 and confirms that “CARB is the responsible party for enforcement of this measure and is responsible for achieving the emission reductions from this measure.”  35 Nowhere in the South Coast Incentive Measure or in CARB's interpretative statements does CARB indicate that favorable economic conditions may suffice to achieve the aggregate tonnage commitments.

We note that in prior EPA actions approving aggregate tonnage commitments from CARB, the EPA has rejected claims that “actual emission decreases” resulting from an economic recession or other circumstances may count towards meeting the commitments and made clear that the only permissible means for achieving the required emission reductions is through notice-and-comment rulemaking procedures leading to the adoption and implementation of enforceable control measures. 36

Third, Earthjustice suggests, incorrectly, that the EPA and citizens would have to look at the entire emissions inventory for the South Coast on December 31, 2022, to determine whether CARB has achieved 1 tpd of NO X emission reductions. For the reasons stated in this response and earlier in Response 1, it is not necessary to review an emissions inventory to determine whether CARB has achieved the required reductions. The South Coast Incentive Measure obligates CARB to provide, in each annual demonstration report submitted to the EPA from March 2020 through March 2023, detailed information about each incentive project that CARB is relying on to achieve the required 1 tpd of NO X emission reductions. 37 Each of these annual demonstration reports must be readily available to the public on CARB's website or available upon request. 38 If CARB's 2023 annual demonstration report (which is due March 31, 2023) fails to demonstrate that the identified projects have achieved 1 tpd of NO X emission reductions from the 2023 baseline inventory in the 2016 South Coast AQMP, citizens may sue CARB for violating its SIP commitment. The tonnage commitment remains enforceable even if the EPA has not made an insufficiency determination in accordance with paragraph 5 of the South Coast Incentive Measure. See Response 6 and Response 8 in the Response to Comments document.

Additionally, if the EPA determines by July 1, 2021, that information submitted by CARB is insufficient to demonstrate that the emission reductions necessary to fulfill the 2023 tonnage commitment will occur on schedule, CARB must adopt and submit to the EPA, no later than September 1, 2022, substitute measures and/or rules that will achieve emission reductions addressing the shortfall as expeditiously as practicable and no later than January 1, 2023. 39 Any such substitute control measure must be adopted following state rulemaking procedures through which the EPA and the public may track the State's progress in achieving the requisite emissions reductions. We expect CARB to make clear during any such rulemaking that it is proposing the identified measure or rule for purposes of submission to the EPA consistent with its commitment in the South Coast Incentive Measure. 40 If, following an insufficiency finding by the EPA, CARB fails to adopt and submit substitute control measures that fully address the identified shortfall in required emission reductions by the relevant deadline, citizens may sue CARB for violating its SIP commitment.

For all of these reasons, we disagree with Earthjustice's claim that the South Coast Incentive Measure fails to define any possible violation and is not practicably enforceable.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, the EPA is fully approving this measure into the California SIP in accordance with section 110(k)(3) of the Act.

In addition, the EPA is determining that CARB's adoption, implementation, and submission of the South Coast Incentive Measure satisfy the State's commitment in the 2016 South Coast Ozone SIP to bring to the Board for consideration an incentive-based measure for on-road heavy-duty vehicles and achieves 1 tpd of CARB's aggregate NO X emission reduction commitment for 2023, as codified in 40 CFR 52.220(c)(517)(ii)(A)( 3 ). 41

We are codifying this measure as additional material in the code of federal regulations (CFR), rather than through incorporation by reference, because, under its terms, the measure contains commitments enforceable only against CARB and because the measure is not a substantive rule of general applicability.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, 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 SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the 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, the SIP is not approved to apply on any Indian reservation land or 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 and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. 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 March 16, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

CAA section 211(v) requires EPA to take two actions. First, EPA must complete “a study to determine whether the renewable fuel volumes required under [CAA section 211(o)] will adversely impact air quality as a result in changes of vehicle and engine emissions of air pollutants.” The study, commonly known as the “anti-backsliding study,” must include consideration of different blend levels, types of renewable fuels, and available vehicle technologies, as well as appropriate national, regional, and local air quality control measures. EPA has completed the required study, which is available in the docket for this action and at https://www.epa.gov/renewable-fuel-standard-program/anti-backsliding-determination-and-study.

Second, considering the results of the study, EPA must proceed down one of two paths: Either “promulgate fuel regulations to implement appropriate measures to mitigate, to the greatest extent achievable. . .any adverse impacts on air quality, as a result of the renewable volumes required by [Section 211]” or “make a determination that no such measures are necessary.”

EPA announced its proposed determination on June 8, 2020 (85 FR 35048) and invited public comment. The proposed determination is available in the docket for this action and at https://www.epa.gov/renewable-fuel-standard-program/anti-backsliding-determination-and-study.

After considering public comment, we determine, as proposed, that no additional appropriate fuel control measures are necessary to mitigate adverse air quality impacts of required renewable fuel volumes. More information on this determination can be found in the supporting document, which is available in the docket for this action and at https://www.epa.gov/renewable-fuel-standard-program/anti-backsliding-determination-and-study.

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2018-0403 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before March 16, 2021. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2018-0403, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit https://www.epa.gov/dockets.

In the Federal Register of December 21, 2018 (83 FR 65660) (FRL-9985-67) and March 18, 2019 (84 FR 9735) (FRL-9989-90), EPA issued documents pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of pesticide tolerance petitions (PP 8E8669 and IN-11257) by Hangzhou Ruifeng Biosciences Co., Ltd., 1500 Wenyi Rd., Building 1, Room 103, Hangzhou, China (c/o GA Bannon Consulting LLC, 13 Blue Flag Court, Dardenne Prairie, MO 63368). Petition 8E8669 requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of Bacillus thuringiensis fusion protein Cry1Ab/Cry2Aj in or on the food and feed commodities of corn, field; corn, sweet; and corn, pop when used as a plant-incorporated protectant in corn; Petition IN-11257 requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of Deinococcus radiodurans 5-enolpyruvylshikimate-3-phosphate synthase (EPSPS) protein in or on all food commodities when used as an inert ingredient in a plant-incorporated protectant. The documents referenced a summary of each petition prepared by the petitioner Hangzhou Ruifeng Biosciences Co., Ltd., which are available in the docket, http://www.regulations.gov. One comment was received on the notice of filing that published on December 21, 2018. EPA's response to this comment is discussed in Unit VII.B of the document titled “Federal Food, Drug, and Cosmetic Act (FFDCA) Safety Determination for Cry1Ab/Cry2Aj and G10evo-EPSPS Proteins” available in the docket.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of these actions and considered their validity, completeness and reliability, and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. A summary of the data upon which EPA relied and its risk assessment based on those data can be found within the document entitled “Final Human Health Risk Assessment and Review of Product Characterization of the Insecticidal Plant-Incorporated Protectant Bacillus thuringiensis Cry1Ab/Cry2Aj, a G10evo-EPSPS Herbicide Tolerance Protein, and the Genetic Material Necessary for their Production in ShuangKang 12-5 Maize and Establishment of a Permanent Tolerance Exemption.” This document, as well as other relevant information, is available in the docket for this action EPA-HQ-OPP-2018-0403.

The Bacillus thuringiensis Cry1Ab/Cry2Aj fusion protein is an active ingredient produced within the plant to confer protection against lepidopteran pests. The Deinococcus radiodurans 5-enolpyruvylshikimate-3-phosphate synthase (EPSPS) protein (hereafter referred to by its common name “G10evo-EPSPS”) protein is an inert ingredient used as a selectable marker that is produced in the plant and confers tolerance to the herbicide glyphosate. The available data demonstrated that, with regard to humans, the Cry1Ab/Cry2Aj fusion protein and G10evo-EPSPS are not toxic or allergenic via any anticipated route of exposure. Dietary exposure is the most relevant route of exposure, and the Agency concludes that dietary exposure would present no harm because of the lack of toxicity or allergenicity of either protein. In addition, both proteins are contained within plant cells, which essentially eliminates the dermal and inhalation exposure routes or reduces them to negligible levels. EPA also determined that a Food Quality Protection Act (FQPA) safety factor was not necessary as part of the qualitative assessment conducted for Cry1Ab/Cry2Aj and G10evo-EPSPS, due to the low risk of these ingredients. These findings are discussed in more detail in the document titled “Federal Food, Drug, and Cosmetic Act (FFDCA) Safety Determination for Cry1Ab/Cry2Aj and G10evo-EPSPS Proteins.” Based upon its evaluation in the Federal Food, Drug, and Cosmetic Act (FFDCA) Safety Determination for Cry1Ab/Cry2Aj and G10evo-EPSPS Proteins, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Cry1Ab/Cry2Aj and G10evo-EPSPS. Therefore, exemptions from the requirement of a tolerance are established for residues of the Bacillus thuringiensis Cry1Ab/Cry2Aj fusion protein in or on the food and feed commodities of corn, field; corn, sweet; and corn, pop when used as a plant-incorporated protectant in corn, and for residues of G10-evo EPSPS protein in or on the food and feed commodities of all crops when used as an inert ingredient in a plant-incorporated protectant.

The petitioner submitted Enzyme-Linked Immunosorbent Assays (ELISAs) that detect the G10evo-EPSPS protein and the Cry1Ab/Cry2Aj protein in corn seed, along with a PCR method for use as a Cry1Ab/Cry2Aj screening and confirmation tool. G10evo-EPSPS protein is detectable via a quantitative, “sandwich” ELISA assay using a commercially available kit (YouLong, Catalog # AA1141). Cry1Ab/Cry2Aj protein is detectable by combining a PCR screening method targeting the junction sequence of the cry1Ab/cry2Aj fusion gene followed by an ELISA assay to detect the Cry1Ab protein. The ELISA assay provided is the commercially available QualiPlate Kit for Cry1Ab/Cry1Ac (Envirologix, Catalog # AP-003-CRBS), which is designed to detect the Cry1Ab protein in corn leaf and seed samples.

The following modifications were made to the original requests for an exemption from a tolerance:

1. EPA replaced “40 CFR part 180” with “40 CFR part 174” because PIP tolerance exemptions are published in part 174.

2. Changed the name from “ Bacillus thuringiensis fusion protein Cry1Ab/Cry2Aj” to “ Bacillus thuringiensis Cry1Ab/Cry2Aj protein,” to align with nomenclature for other exemptions published in 40 CFR part 174.

3. Changed the name from “ Deinococcus radiodurans 5-enolpyruvylshikimate-3-phosphate synthase (EPSPS) protein” to “G10evo Enolpyruvylshikimate-3-phosphate synthase (G10evo-EPSPS) protein,” to align with nomenclature for other exemptions published in 40 CFR part 174.

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

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

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

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

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

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

This is a summary of the Commission's Order, DA 20-1540, adopted and released on December 29, 2020. The document is available for download at https://www.fcc.gov/document/2021-annual-adjustment-civil-monetary-penalties-reflect-inflation. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, 45 L Street NE, Washington, DC 20554. To request this document in accessible formats for people with disabilities ( e.g., Braille, large print, electronic files, audio format, etc.) or to request reasonable accommodations ( e.g., accessible format documents, sign language interpreters, CART, etc.), send an email to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

The Bipartisan Budget Act of 2015 included, as section 701 thereto, the Inflation Adjustment Act, which amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), to improve the effectiveness of civil monetary penalties and maintain their deterrent effect. Under the Inflation Adjustment Act, agencies are required to make annual inflationary adjustments by January 15 each year, beginning in 2017. The adjustments are calculated pursuant to Office of Management and Budget (OMB) guidance. OMB issued guidance on December 23, 2020, and this Order follows that guidance. The Commission therefore updates the civil monetary penalties for 2021, to reflect an annual inflation adjustment based on the percent change between each published October's CPI-U; in this case, October 2020 CPI-U (260.388)/October 2019 CPI-U (257.346) = 1.01182. The Commission multiplies 1.01182 by the most recent penalty amount and then rounds the result to the nearest dollar.

The Bureau notes that, although our annual inflation adjustment orders have specifically amended “[§ ] 1.80(b) of the Commission's rules . . . to adjust the forfeiture penalties for inflation, in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Inflation Adjustment Act),” we did not list all of the relevant rules in the Appendix to those orders. In addition, § 1.80(b) was recently amended to include new civil monetary penalties adopted since the prior inflation adjustment order. Therefore, we now include amendments to § 1.80(b)(1) through (8) of the Commission's rules, and the penalties in paragraph (b)(6) associated with the Preventing Illegal Radio Abuse Through Enforcement Act (PIRATE Act). The penalties stated in these provisions reflect all appropriate inflation adjustments under the 2015 Inflation Adjustment Act, including the initial “catch up” adjustment where appropriate.

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

The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs that this rule is non-major under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

DoD published an interim rule in the Federal Register at 84 FR 72231 on December 31, 2019, to implement section 1656 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91). This final DFARS rule implements the section 1656 prohibition, partially implements section 889(a)(1)(A) of the NDAA for FY 2019 prohibitions for DoD, and is structured to align with the Federal Acquisition Regulation implementation of the section 889(a)(1)(A) Governmentwide prohibition. The final rule should increase security of systems and critical technology that is part of any system used to carry out the nuclear deterrence and homeland defense missions of DoD by prohibiting the use of telecommunications equipment or services from certain Chinese entities, and from any other entities that the Secretary of Defense reasonably believes to be owned or controlled by, or otherwise connected to, the government of the People's Republic of China or the Russian Federation. Three respondents submitted comments on the interim rule.

DoD reviewed the public comments in the development of the final rule. Two changes were made to the rule as a result of those comments. A respondent expressed support for the rule. Some respondents expressed concern over the underlying intent of the statute and recommended changes to the rule text to provide specific examples related to definitions. While DoD recognizes the concerns identified by the respondents, most of the recommendations are not within the scope of the statute. The ability to provide examples within the rule text is limited by the statute, which does not provide examples. A discussion of the public comments is provided as follows:

There are two changes from the interim rule. The changes amend DFARS clause 252.204-7018, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services, by extending: (1) The reporting timeframe for the discovery of covered defense telecommunications equipment or services from one day to three days, and (2) the reporting timeframe to submit information about mitigation actions undertaken from ten days to thirty days.

Comment: A respondent stated that the representation adds administration costs to the public and Government and will make it difficult for small businesses to work with the Government.

Response: The interim rule imposed the least amount of burden necessary to implement the statutory requirements by including an annual representation that may be relied upon if a negative representation ( i.e., “does not”) is provided in lieu of an offer-by-offer representation.

Comment: Respondents recommended that the reporting timeline for the discovery of covered defense telecommunications equipment or services be extended beyond one business day and that the reporting timeline for the mitigation actions undertaken by the contractor be extended beyond ten days.

Response: Concur. The one-day and ten-day requirements for reporting to DIBNet are extended in the final rule to three days and thirty days, respectively.

Comment: Respondents recommended that contractors only report subcontractor's discovery of covered defense telecommunications equipment or services that have “credible information”.

Response: The clause flow down requires that entities at all tiers report the discovery of covered defense telecommunications equipment or services to the higher tier subcontractor or prime contractor. If the higher tier subcontractor or prime contractor does not report lower tier notifications of the discovery of covered defense telecommunications equipment or services, the higher tier subcontractor and prime contractor are at risk of being in violation of the prohibition.

Comment: Respondents recommended that the subcontract flow down to “all subcontracts” instead of “all subcontracts and other contractual instruments”.

Response: The statutory authority does not provide an exception for vendor agreements or suppliers that are not considered subcontractors; therefore, the flow down to “other contractual instruments” is required by the statute.

Comment: Respondents recommended that DoD provide a publicly available list of the subsidiaries and affiliates against which to evaluate compliance. A respondent recommended that the list of subsidiaries and affiliates be included in DIBNet in coordination with the Office of Federal Contract Compliance Programs and recommended this list use the Department of Commerce list of affiliates and subsidiaries for Huawei. Another respondent recommended DoD provide and update, as necessary, a comprehensive list of all of the subsidiaries and affiliates on SAM.gov .

Response: The statute does not give the Secretary of Defense the mission to maintain such a list.

Comment: Respondents stated that the definition of “covered defense telecommunications equipment or services” should provide examples of what is “covered defense telecommunications equipment or services”.

Response: The text of the rule aligns with the statutory language. These terms are not defined in the statute.

Comment: A respondent recommended defining the term “defense”.

Response: The term “defense” is used in the term “covered defense telecommunications equipment or services” to clarify that the covered telecommunications equipment or services prohibited by section 1656 are only prohibited for DoD, therefore, a definition is not necessary.

Comment: A respondent stated that there should be a new definition of “substantial or essential component” or that examples of what is and is not a “substantial or essential component” should be provided.

Response: The text of the rule aligns with the statutory language. These terms are not defined in the statute.

Comment: A respondent stated that the definition of “critical technology” should include the list of 27 emerging and foundational technologies developed pursuant to section 1758 of the Export Control Reform Act of 2018.

Response: To ensure consistency in the event of future changes to the list, the technologies are referenced by a citation, within the definition, to section 1758 of the Export Control Reform Act of 2018.

Comment: A respondent stated that there should be clarifications or definitions provided for “an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country”.

Response: The text of the rule aligns with the statutory language, which does not clarify these terms.

Comment: A respondent stated that the prescription is not limited to covered missions and that examples of covered missions should be provided.

Response: The prescription is not limited to covered missions as a matter of national security. Covered missions include the examples provided in the statutory definition. The statute does not provide additional examples of covered missions.

Comment: A respondent stated that the terms “equipment,” “produce,” and “component” should be more clearly defined, consistent with definitions existing in current regulations (such as export control regulations in ITAR, etc.).

Response: The text of the rule aligns with the statutory language. These terms are not defined in the statute.

Comment: A respondent stated that there should be clarification for the public on the waiver process.

Response: The waiver process is an internal Government operating procedure. By submission of an offer containing the prohibited equipment or services, an entity is by default requesting a waiver. Waivers are a limited exception to the prohibition, and questions regarding the waiver process may be directed to the contracting officer. The contracting officer, working with the requiring activity, will review the representations and disclosures and make a determination to process the formal waiver. At that time, a contracting officer will request the additional information required by the statute for processing a waiver; this does not preclude an offeror from providing this information with its offer. The time to process the information for a waiver is prior to award because the award is prohibited unless and until a waiver is granted.

Comment: A respondent recommended that the DIBNet homepage clarify how DIBNet would work and who has access to the reported data such as contractors or agencies.

Response: DIBNet provides information on its website to clarify who has access to the data. The data is shared with the contracting officer so the contracting officer may work with legal counsel to enforce contractual remedies for violating the terms of the contract.

Comment: A respondent recommended that DoD provide the steps to mitigate supply chain risk related to the requirement for the contractor to provide additional information about mitigation actions undertaken or recommended after the presence of covered defense telecommunications equipment or services is identified.

Response: The steps to mitigate supply chain risk are unique to the contractor, and the contractor is required to provide the mitigation actions undertaken.

Comment: A respondent stated that there should be consistent inter-department interpretations and that the term “use” should be clarified and used in the same way in all rules.

Response: The text of the rule aligns with the statutory language. This term is not defined in the statute. The FAR and DFARS rules on the section 889 prohibition are intended to be complementary.

The interim rule added two new solicitation provisions and a new contract clause as follows:

• The provision at DFARS 252.204-7016, Covered Defense Telecommunications Equipment or Services—Representation.

• The provision at DFARS 252.204-7017, Prohibition on Acquisition of Covered Defense Telecommunications Equipment or Services—Representation.

• The clause at DFARS 252.204-7018, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services.

Consistent with the determinations that DoD made on December 19, 2019, with regard to the application of the requirements of section 1656 of the NDAA for FY 2018, the two provisions and the clause listed above apply to all solicitations and contracts, including solicitations and contracts below the simplified acquisition threshold and for the acquisition of commercial items (including commercially available off-the-shelf items). It is important to apply the statutory prohibitions to all acquisitions in order to protect the security of nuclear command, control, and communications systems and ballistic missile defense from commercial dependencies on equipment and services from certain companies or certain foreign countries that are considered to create a risk to our national security.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This rule is not subject to the requirements of E.O. 13771, because the rule is issued with respect to a national security function of the United States.

This final rule will 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. A final regulatory flexibility analysis has been performed and is summarized as follows:

DoD is converting to a final rule, with two minor changes, an interim rule that amended the DFARS to implement section 1656 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018. This rule also partially implements section 889(a)(1)(A) of the NDAA for FY 2019 prohibitions for DoD, and is structured to align with the Federal Acquisition Regulation implementation of the section 889(a)(1)(A) Governmentwide prohibition. The changes to the interim rule do not change the economic impact on the public. The changes provide additional time to complete the reporting requirements required by the clause at DFARS 252.204-7018, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services.

The objective of this rule is to increase security of systems and critical technology which is part of any system used to carry out the nuclear deterrence and homeland defense missions of DoD by prohibiting the use of telecommunications equipment or services from certain Chinese entities, and from any other entities that the Secretary of Defense reasonably believes to be owned or controlled by or otherwise connected to, the government of the People's Republic of China or the Russian Federation. Section 1656 of the NDAA for FY 2018 and section 889(a)(1)(A) of the NDAA for FY 2019 are the legal basis for the rule.

There were no public comments in response to the initial regulatory flexibility analysis.

This rule includes a burden for two representations and a reporting requirement. Data from the Federal Procurement Data System (FPDS) for Fiscal Year (FY) 2016 through FY 2018 and data from the System for Award Management (SAM) was used to estimate the number of small businesses affected by this rule.

The provision at DFARS 252.204-7016, Covered Defense Telecommunications Equipment or Services—Representation, requires the offeror to represent whether it does or does not provide covered defense telecommunications equipment or services as a part of its offered products or services to the Government in the performance of any contract, subcontract, or other contractual instrument. This provision is estimated to affect 145,955 unique small businesses, which is the estimated number of unique small businesses required to complete DoD representations in SAM.

As of July 15, 2019, there were 424,927 active registrants in SAM for contracts. DoD extrapolated the estimated number of SAM registrants that are required to fill out DoD representations to be 211,529 unique entities by dividing the average number of DoD unique awardees in the Federal Procurement Data System (FPDS) by the average number of Federal unique awardees in FPDS for FY 2016 through FY 2018 to obtain a percentage of 49.78 percent of all Federal unique awardees that receive DoD awards. Applying 49.78 percent to the total number of active SAM registrants results in 211,529 estimated respondents. To further calculate the number of estimated respondents that are small businesses, this analysis multiplies the 211,529 estimated respondents for DoD by 69 percent, which is the percentage of unique DoD awardees on average for FY 2016 through FY 2018 in FPDS that are small businesses, to estimate 145,955 unique small entities impacted by DFARS 252.204-7016.

The provision at DFARS 252.204-7017, Prohibition on Acquisition of Covered Defense Telecommunications Equipment or Services—Representation, requires that if an offeror provides an affirmative representation under the provision at 252.204-7016, Covered Defense Telecommunications Equipment or Services—Representation, that offeror is required to represent whether it will or will not provide under the contract, covered defense telecommunications equipment or services. If the offeror responds affirmatively, the offeror is required to further disclose information about the covered defense telecommunications equipment or services.

DFARS provision 252.204-7017 is estimated to affect a total of only 3,054 unique small business entities. Although DoD has no factual basis on which to estimate at this time what percentage of offerors will respond affirmatively to this representation, to be conservative DoD estimates 10 percent of the 44,277 DoD unique awardees on average in FPDS for FY 2016 through FY 2018 (4,428) will respond affirmatively, which triggers the disclosure requirement of the representation. Applying the estimated 69 percent factor for small businesses to the estimate of 4,428 results in 3,054. To calculate the additional disclosure impact within 252.204-7017, DoD estimates 10 percent of the offerors filling out this representation will have to complete the additional disclosure (443 total, of which 306 are small entities).

The clause at DFARS 252.204-7018, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services, requires contractors and subcontractors to report through https://dibnet.dod.mil, any discovery of covered telecommunications equipment or services during the course of contract performance. Although DoD has no factual basis on which to estimate at this time what percentage of awardees will be required to submit a report, the clause is estimated to affect 443 unique entities, which is 1 percent of the number of unique entities that received DoD awards on average for FY 2016 through FY 2018 in FPDS (44,277). Of the 443 impacted entities 306 entities (69 percent) are estimated to be DoD unique small entities.

Because of the nature of the prohibition enacted by section 1656, it is not possible to establish different compliance or reporting requirements or timetables that take into account the resources available to small entities or to exempt small entities from coverage of the rule, or any part thereof. DoD was unable to identify any alternatives that would reduce the burden on small entities and still meet the objectives of section 1656.

The rule contains information collection requirements that have been approved by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). This information collection requirement has been assigned OMB Control Number 0750-0002, titled: Covered Defense Telecommunications Equipment or Services.

Accordingly, the interim rule amending 48 CFR parts 204, 212, 213, and 252 published at 84 FR 72231 on December 31, 2019, is adopted as a final rule with the following changes.

This final rule amends the DFARS as follows:

1. Corrects the numbering of paragraphs at section 212.301(f)(ii). On December 31, 2019, DoD published in the Federal Register at 84 FR 72231 an interim rule titled “Covered Defense Telecommunications Equipment or Services (DFARS Case 2018-D022)”. The rule added paragraphs (f)(ii)(H), (I), and (J); however the correct paragraph numbers should have reflected (f)(ii)(G), (H), and (I). A prior change to this section on October 31, 2019, published at 84 FR 58332, had redesignated paragraphs (f)(ii)(F) and (G) as paragraphs (f)(ii)(E) and (F); however, this redesignation was not reflected in the paragraph numbering in the December 19, 2019, publication. This sequence of events resulted in the current electronic Code of Federal Regulations (eCFR) not reflecting a paragraph (f)(ii)(G) in the numbering sequence, which this amendment corrects.

2. Corrects DFARS clause 252.244-7000 in paragraph (d) by removing “(c)” and adding “(d)” in its place. On September 29, 2020, DoD published in the Federal Register at 85 FR 60918 a final rule titled “Treatment of Certain Items as Commercial Items (DFARS Case 2019-D029)” that included this change; however, the revision is not reflected in the eCFR. This amendment corrects the eCFR.

Therefore, 48 CFR parts 212 and 252 are amended as follows:

This final rule amends the DFARS to update a reference at DFARS 225.872-7 to remove a reference to DoD Industrial Security Regulation DoD 5220.22-R and replace it with the National Industrial Security Program Operating Manual (NISPOM), 32 CFR part 117. On December 21, 2020, DoD issued a final rule in the Federal Register at 85 FR 83300 to codify the NISPOM in the regulations. This change becomes effective February 24, 2021. Accordingly, this DFARS reference is being updated to incorporate this change.

Therefore, 48 CFR part 225 is amended as follows:

DoD published a proposed rule in the Federal Register at 85 FR 34576 on June 5, 2020, to remove the DFARS clause 252.239-7006, Tariff Information, from the DFARS as the clause is no longer necessary. No public comments were received in response to the proposed rule. No changes were made to the rule, as proposed.

This rule only removes the obsolete contract clause at DFARS 252.239-7006, Tariff Information. This rule does not impose any new requirements on contracts at or below the simplified acquisition threshold or for commercial items, including commercially available off-the-shelf items.

This rule impacts only telecommunication service providers who do business, or want to do business, with DoD. DFARS clause 252.239-7006, Tariff Information, requires telecommunications service contractors to submit certain tariff and non-tariff information to DoD when requested by the contracting officer or as specified in the clause. Removal of this DFARS clause is expected to result in savings for both DoD and DoD contractors that provide telecommunications services.

The following is a summary of the estimated public and Government cost savings calculated in perpetuity in 2016 dollars at a 7-percent discount rate:

To access the full Regulatory Cost Analysis for this rule, go to the Federal eRulemaking Portal at www.regulations.gov, search for “DFARS Case 2018-D044,” click “Open Docket,” and view “Supporting Documents.”

E.O.s 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This final rule is an E.O. 13771 deregulatory action. DoD estimates that this rule generates $2.03 million in annualized cost savings, discounted at 7 percent relative to year 2016, over a perpetual time horizon. Details on the estimated cost savings can be found in section III of this preamble.

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

DoD is amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a recommendation from the DoD Regulatory Reform Task Force established pursuant to Executive Order 13777, Enforcing the Regulatory Agenda, to repeal DFARS clause 252.239-7006, Tariff Information, and the associated clause prescription at DFARS 239.7411(a). The objective of this rule is to remove the requirement for contractors to report tariff information under the DFARS clause. The legal basis for this change is 41 U.S.C. 1303.

No public comments were received in response to the initial regulatory flexibility analysis.

According to the Electronic Document Access system, DoD awards approximately 855 contracts to 83 unique contractors each year that include DFARS clause 252.239-7006. It is estimated that 171 of those contracts are awarded to small entities. Based on the information available, DoD does not anticipate that this rule will significantly impact small business entities.

This rule does not include any new reporting, recordkeeping, or other compliance requirements for small entities. Rather, this rule reduces the information collection requirements approved under OMB Control Number 0704-0341. Small entities will no longer be required to provide the tariff information to the contracting officer in accordance with 252.239-7006. Removal of this clause and its reporting requirement serves to reduce the burden on small entities.

This rule removes the burden associated with DFARS clause 252.239-7006, Tariff Information, from the information collection requirement currently approved under OMB Control Number 0704-0341, entitled “Defense Federal Acquisition Regulation Supplement (DFARS) Part 239, Acquisition of Information Technology, and associated clause at 252.239-7000.” Accordingly, DoD submitted, and OMB approved, the following reduction of the annual reporting burden and OMB inventory of hours under OMB Control Number 0704-0341 as follows:

Respondents: 83.

Responses per respondent: Approximately 10.3.

Total annual responses: 855.

Hours per response: 2 hours.

Total response Burden Hours: 1,710.

Therefore, 48 CFR parts 239 and 252 are amended as follows:

DoD is amending the DFARS to replace the Defense Contract Management Agency (DCMA) eTool application used to report the loss of Government property with the new Government-Furnished Property (GFP) module in the Procurement Integrated Enterprise Environment (PIEE). The DCMA eTool application is a self-contained, legacy application that has numerous limitations, to include its inability to share data with other internal or external DoD business systems or to respond to changes in regulation, policies, and procedures. DoD developed the GFP module within the PIEE to house the GFP lifecycle to address these limitations and to provide the Department with the end-to-end accountability for all GFP transactions within a secure, single, integrated system.

DoD published a proposed rule in the Federal Register at 85 FR 53761 on August 31, 2020.

No respondents submitted public comments in response to the proposed rule, and no changes were made in the final rule.

This final rule does not create any new provisions or clauses, nor does it change the applicability of any existing provisions or clauses included in solicitations and contracts valued at or below the simplified acquisition threshold, or for commercial items, including commercially available off-the shelf items.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

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

DoD has prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

This rule amends the Defense Federal Acquisition Regulation Supplement to replace a legacy software application used for reporting loss of Government property with new capabilities developed within the fully integrated, DoD enterprise-wide, eBusiness platform, Procurement Integrated Enterprise Environment (PIEE). The objective of the case is to transition property loss reporting from a stand-alone, legacy software application to the PIEE. Use of the new system functionality will enable DoD to address numerous audit findings and security concerns.

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

This rule will likely affect some small business concerns that are provided Government-furnished property in the performance of their contracts and those who experience a loss which must be reported in the PIEE. Data generated from the Defense Contract Management Agency eTool for fiscal years (FY) 2017 through 2019 indicates that an average of 3,765 loss cases are submitted each year. Of those 3,765 loss cases, 52 percent or 1,958 cases are filed by the top 7 large entities, while 48 percent or 1,807 make up all others, which may include unique small entities.

Data generated from the Federal Procurement Data System (FPDS) for FY 2017 through 2019 indicates that DoD has awarded an average of 34,463 contracts that contain the two applicable Government property clauses, FAR 52.245-1, Government Property, and DFARS 252.245-7002, Reporting Loss of Government Property. Of those applicable contracts, DoD has awarded approximately 16,966 contracts to an average of 4,009 unique small entities during the three-year period. This would equate to 4 applicable contracts awarded to each unique small entity.

While there is no way to identify how many property loss cases are attributable specifically to unique small business concerns, it can be assumed that 11 percent of applicable contracts have had a property loss case reported (3,765/34,463). If the top 7 large entities are removed from the equation, the number is reduced to 5 percent (1,807/34,463). We can therefore assume that of the 16,966 contracts awarded to small entities, approximately 5 percent, or 848 contracts awarded to 212 small entities, may require a property loss case.

The rule does not impose any new reporting, recordkeeping, or compliance requirements. The replacement of the application used for the approved information collection requirements is intended to maintain the status quo and potentially reduce compliance requirements over time due to the technological advances in the PIEE.

There are no practical alternatives that will accomplish the objectives of the rule.

The Paperwork Reduction Act does apply to this rule. However, these changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 9000-0075, Government Property. By replacing the software application used for reporting property loss, the status quo is maintained for the current information collection requirements. OMB Control Number 9000-0075 provides approval for collections of information under FAR clause 52.245-1, Government Property, which requires reporting of Government-property losses. DFARS clause 252.245-7002, Reporting Loss of Government Property, is used in conjunction with FAR 52.245-1, and merely stipulates that DoD contractors will electronically report any property losses as required by FAR 52.245-1 using the PIEE portal.

Therefore, 48 CFR parts 245 and 252 are amended as follows:

PHMSA provides written clarification of the pipeline safety regulations (49 CFR parts 190-199) in the form of periodically updated FAQs and other guidance materials. On October 1, 2019, PHMSA published amendments to 49 CFR parts 191 and 192 in the Gas Transmission final rule (84 FR 52180), which addressed several statutory mandates from the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (Pub. L. 112-90). PHMSA finalized the first set of FAQs (Batch-1 FAQs) to help clarify, explain, and promote better understanding of the Gas Transmission final rule. The Batch-1 FAQs were posted to the docket on September 16, 2020.

PHMSA is requesting public comment on a second set of draft FAQs (Batch-2 FAQs) pertaining to the Gas Transmission final rule. The Batch-2-FAQs are intended to help the public understand and implement necessary changes in response to PHMSA's new regulations. They are in response to specific questions received from the regulated community, pipeline safety regulators, and the public. Operators and state regulators may also request written regulatory interpretations from PHMSA regarding specific situations in accordance with 49 CFR 190.11.

While FAQs are provided to help the public understand how to comply with the regulations, they are not substantive rules themselves and do not create legally enforceable rights, assign duties, or impose new obligations not otherwise contained in the existing regulations and standards. However, an operator who is able to demonstrate compliance with the FAQs is likely to be able to demonstrate compliance with the relevant regulations.

The draft FAQs and other supporting documents are available online on the Federal eRulemaking Portal, https://www.regulations.gov; search for Docket No. PHMSA-2019-0225. Before finalizing the draft FAQs, PHMSA will evaluate all comments received on or before the comment closing date. Comments received after the closing date will be evaluated to the extent

practicable. Once finalized, the FAQs will be posted in the docket and on PHMSA's public website at https://www.phmsa.dot.gov.

Purpose and Need for Regulatory Action

These regulations establish a framework under the authority of the MMPA (16 U.S.C. 1361 et seq. ) to allow for the authorization of take of marine mammals incidental to the SWFSC's fisheries research activities in the California Current Ecosystem and the Antarctic Marine Living Resources Ecosystem research areas.

We received an application from the SWFSC requesting five-year regulations and authorization to take multiple species of marine mammals. Take would occur by Level B harassment incidental to the use of active acoustic devices, as well as by visual disturbance of pinnipeds in the Antarctic, and by Level A harassment, serious injury, or mortality incidental to the use of fisheries research gear. Please see “Background” below for definitions of harassment.

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the Mitigation section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this rule containing five-year regulations, and for any subsequent LOAs. As directed by this legal authority, this rule contains mitigation, monitoring, and reporting requirements.

Following is a summary of the major provisions of these regulations regarding SWFSC fisheries research activities. These measures include:

• Required monitoring of the sampling areas to detect the presence of marine mammals before deployment of certain research gear; and

• Required implementation of the mitigation strategy known as the “move-on rule mitigation protocol” which incorporates best professional judgment, when necessary during certain research fishing operations.

The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be provided to the public for review.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.

On April 30, 2020, we received an adequate and complete request from SWFSC for authorization to take marine mammals incidental to fisheries research activities. On May 8, 2020 (85 FR 27388), we published a notice of receipt of SWFSC's application in the Federal Register , requesting comments and information related to the SWFSC request for thirty days. We did not receive any comments in response. We published a notice of proposed rulemaking in the Federal Register on August 28, 2020 (85 FR 53606) and requested comments and information from the public. Please see Comments and Responses, below.

These regulations are the second consecutive five-year incidental take regulations issued in response to a petition from SWFSC. The initial regulations were finalized in 2015 and are effective through October 30, 2020 (80 FR 58982; September 30, 2015). Three Letters of Authorization (LOA) were issued to SWFSC pursuant to the regulations, related to SWFSC research survey activities in the California Current Ecosystem (CCE), the Eastern Tropical Pacific (ETP), and the Antarctic Marine Living Resources Ecosystem (AMLR). Information related to this previous rulemaking and required reporting submitted by SWFSC according to the terms of the LOAs may be found online at: www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-swfsc-fisheries-and-ecosystem-research. SWFSC adhered to all mitigation, monitoring, and reporting requirements and did not exceed authorized numbers of take.

SWFSC conducts fisheries research using pelagic trawl gear used at various levels in the water column, pelagic longlines with multiple hooks, purse seine gear, and other gear. If a marine mammal interacts with gear deployed by SWFSC, the outcome could potentially be Level A harassment, serious injury ( i.e., any injury that will likely result in mortality), or mortality. However, there is not sufficient information upon which to base a prediction of what the outcome may be for any particular interaction. Therefore, SWFSC has pooled the estimated number of incidents of take resulting from gear interactions, and we have assessed the potential impacts accordingly. SWFSC also uses various active acoustic devices in the conduct of fisheries research, and use of these devices has the potential to result in Level B harassment of marine mammals. Level B harassment of pinnipeds hauled out on ice may also occur, in the Antarctic only, as a result of visual disturbance from vessels conducting SWFSC research.

The SWFSC conducts fisheries research surveys in the CCE, ETP, and the AMLR. However, SWFSC does not plan to conduct research over the five-year period in the ETP. Therefore, these regulations address only the CCE and AMLR. In the CCE, SWFSC requested authorization to take individuals of 24 stocks by Level A harassment, serious injury, or mortality (hereafter referred to as M/SI) and of 38 stocks by Level B harassment. In the AMLR, SWFSC requested authorization to take individuals of fifteen species by Level B harassment. No takes by M/SI are anticipated in the AMLR. These regulations are effective for five years.

The SWFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment. SWFSC scientists conduct fishery-independent research onboard NOAA-owned and operated vessels or on chartered vessels. Some surveys may be conducted onboard commercial fishing vessels or by cooperating scientists on non-NOAA vessels, but the SWFSC designs and executes the studies and funds vessel time. The SWFSC plans to administer and conduct approximately 18 survey programs over the five-year period, within two separate research areas. Please see Table 1-2 in SWFSC's application for details relating to the planned survey programs. The gear types used fall into several categories: Towed nets fished at various levels in the water column, longline and other hook and line gear, purse seine nets, and other gear. Only use of trawl nets, hook and line gear, and purse seine nets are likely to result in interaction with marine mammals. Many of these surveys also use active acoustic devices.

The Federal government has a responsibility to conserve and protect living marine resources in U.S. waters and has also entered into a number of international agreements and treaties related to the management of living marine resources in international waters outside the United States. NOAA has the primary responsibility for managing marine finfish and shellfish species and their habitats, with that responsibility delegated within NOAA to NMFS.

In order to direct and coordinate the collection of scientific information needed to make informed fishery management decisions, Congress created six regional fisheries science centers, each a distinct organizational entity and the scientific focal point within NMFS for region-based Federal fisheries-related research. This research is aimed at monitoring fish stock recruitment, abundance, survival and biological rates, geographic distribution of species and stocks, ecosystem process changes, and marine ecological research. The SWFSC is the research arm of NMFS in the southwest region of the United States. The SWFSC conducts research and provides scientific advice to manage fisheries and conserve protected species in the geographic research areas listed above and provides scientific information to support the Pacific Fishery Management Council and numerous other domestic and international fisheries management organizations.

The specified activity may occur at any time during the five-year period of validity of the regulations. Dates and duration of individual surveys are inherently uncertain, based on congressional funding levels for the SWFSC, weather conditions, or ship contingencies. In addition, cooperative research is designed to provide flexibility on a yearly basis in order to address issues as they arise. Some cooperative research projects last multiple years or may continue with modifications. Other projects only last one year and are not continued. Most cooperative research projects go through an annual competitive selection process to determine which projects should be funded based on proposals developed by many independent researchers and fishing industry participants. SWFSC survey activity does occur during most months of the year; however, trawl surveys typically occur during May through June and September and longline surveys are typically completed during June-July and September.

The SWFSC conducts research within two research areas considered to be distinct specified geographical regions: The CCE and AMLR. No research activity is planned within the ETP over the next five years. Please see Figures 1-1, 2-1, and 2-2 in the SWFSC application for maps of the research areas. We note here that, while the specified geographical regions within which the SWFSC operates may extend outside of the U.S. Exclusive Economic Zone (EEZ), the MMPA's authority does not extend into foreign territorial waters. Detailed descriptions of the SWFSC's research areas were provided in the notice of proposed rulemaking for SWFSC's previous incidental take regulations (80 FR 8166; February 13, 2015). Those descriptions remain accurate and sufficient, and we refer the reader to that notice rather than reprinting the information here.

A detailed description of SWFSC's planned activities was provided in the notice of proposed rulemaking (85 FR 53606; August 28, 2020) and is not repeated here. No changes have been made to the specified activities described therein.

We published a notice of proposed rulemaking in the Federal Register on August 28, 2020 (85 FR 53606) and requested comments and information from the public. During the 30-day comment period, we received comments from the Marine Mammal Commission (Commission) and from 6 private citizens. Of the latter, two comments expressed general opposition, two expressed general support, and two were not relevant to the proposed rulemaking. The remaining comments and our responses are provided here, and the comments have been posted online at: www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-southwest-fisheries-science-center-fisheries-and. Please see the Commission's comment letter for full rationale behind the Commission's recommendations, to which we respond below. In response to the comments, minor changes were made to the take number for southern elephant seals and to certain reporting requirements, as detailed below.

The Commission noted that a 2015 requirement for SWFSC to report whether the move-on rule was waived for California sea lions was not included in the proposed rule. The Commission asserted that this information remains relevant (and would apply to purse seines in addition to longlines), and that it should be included as a requirement in the final rule. (See footnote 2 of the Commission's public comment letter.) NMFS concurs with this suggestion and has included these reporting requirements in the final rule.

Comment —The Commission recommends that NMFS ensure that any criteria and guidance developed regarding de minimis acoustic sources consider the overall level of impacts and are used consistently across all action proponents and applications.

Response —NMFS concurs with the Commission's recommendation and intends to use any such criteria and/or guidance consistently.

Comment —The Commission recommends that NMFS require SWFSC to estimate the numbers of marine mammals that may be taken by Level B harassment due to sound exposure resulting from use of active acoustic sources based on the 120- rather than the 160-dB re 1 μPa threshold for non-impulsive, intermittent sources, including those sources whose primary operating frequency is above 180 kHz that have been shown to elicit behavioral responses above the 120-dB re 1 μPa threshold.

Response —NMFS does not concur with the Commission's recommendation and does not adopt it. NMFS has addressed the Commission's recommendation on numerous occasions, and the Commission does not offer any substantive new points in support of its position. NMFS provided a detailed explanation of the reasons why the recommendation was not followed in response to the Commission's letter pertaining to proposed incidental take regulations for NMFS' Alaska Fisheries Science Center (84 FR 46788; September 5, 2019). We refer the Commission and the public to that explanation.

Comment —The Commission recommends that NMFS prioritize updating its generic Level B harassment thresholds and formulate a strategy for developing thresholds for all types of sound sources and for incorporating new data regarding these thresholds as soon as possible.

Response —NMFS concurs with the Commission's recommendation and agrees that this issue is a priority.

Comment —The Commission recommends that NMFS increase the annual take by Level B harassment of southern elephant seals due to on-ice disturbance from one per year to five per year in the final rule, in order to account for the potential that smaller groups could be present.

Response —NMFS concurs with the recommendation and has increased the annual take number as suggested. See Table 9.

Comment —The Commission recommends that NMFS include in all proposed and final incidental harassment authorizations and rules, including the SWFSC's final rule, the explicit requirement to cease activities if a marine mammal is injured or killed by vessel strike, until NMFS reviews the circumstances involving any injury or death that is likely attributable to the activities and determines what additional measures are necessary to minimize additional injuries or deaths.

Response —NMFS does not anticipate, and has not authorized, any takes associated with vessel strikes. Further, in the event of a vessel strike, SWFSC is required both to collect and report an extensive suite of information that NMFS has identified in order to evaluate the event, and to notify OPR and the West Coast Regional Stranding Coordinator as soon as feasible. At that point, as the Commission suggests, NMFS would work with SWFSC to determine whether there are additional mitigation measures or modifications that could further reduce the likelihood of vessel strike for the activities. However, given the very low likelihood of a vessel strike occurring, the protective value of ceasing operations while NMFS and SWFSC discuss potential additional mitigations in order to avoid a second highly unlikely event is unclear, while a requirement for project activities to cease would not be practicable for a vessel that is operating on the open water. Therefore, NMFS does not concur that the measure is warranted, and we have not included this requirement in the authorization. NMFS retains authority to modify the LOA and cease all activities immediately based on a vessel strike and will exercise that authority if warranted.

With respect to the Commission's recommendation that NMFS include these requirements in all proposed and final incidental take authorizations, NMFS determines the requirements for mitigation measures in each authorization based on numerous case-specific factors, including the practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. As NMFS must make these determinations on a case-by-case basis, we therefore do not agree with this recommendation.

Comment —The Commission recommends that NMFS (1) include a specific condition either in section 219.5 of the final rule or in any LOA issued under the final rule requiring SWFSC to cease its activities and consult with NMFS if the number of authorized takes has been met for any species and (2) reinforce that SWFSC should keep a running tally of the numbers of species-specific M/SI and on-ice Level B harassment takes and the line-kilometers surveyed to ensure that the authorized taking limits are not exceeded.

Response —NMFS does not concur with the recommendation and does not adopt it. The LOA stipulates that the allowable taking is limited to the authorized numbers specified in the LOA, and states that any taking exceeding the authorized numbers (or any taking of a species for which take is not authorized) is prohibited and may result in the modification, suspension, or revocation of the LOA. Additional, redundant language is not necessary. Therefore, while we agree that SWFSC must ensure they do not exceed authorized takes, we do not agree that the recommended requirements are helpful. SWFSC is responsible for ensuring that it does not operate in violation of an issued LOA.

Comment —The Commission recommends that NMFS require SWFSC to include in each annual monitoring report (1) the distance at which a pinniped is disturbed and the closest point of approach for each disturbance event; (2) the numbers of takes differentiated by species and age class for each disturbance event; and (3) the raw sightings data in each annual monitoring report.

Response —NMFS concurs with the recommendation and has included the suggested reporting requirements in the final rule. See § 219.6(e)(2)(ii)(D) of the final regulations.

Comment —Regarding the negligible impact analysis provided for the California coastal stock of bottlenose dolphin, the Commission states that NMFS should apply the information contained in the current stock assessment reports when making negligible impact determinations unless reliable, relevant new information that has yet to be fully assessed and incorporated into the reports warrants some other treatment, and additionally recommends that NMFS authorize a smaller number of takes by M/SI than proposed, such that total estimated M/SI does not exceed the potential biological removal (PBR) value.

Response —NMFS does not concur with the Commission's recommendation to reduce the authorized take number for the California coastal stock of bottlenose dolphin, or the underlying rationale, and does not adopt it. We also clarify that the proposed annual take number for the stock (0.8) does not exceed the PBR value of 2.7. The annual take number does exceed the residual PBR value of 0.7. (See Table 1, Table 9, and Negligible Impact Analysis and Determinations for details of the analysis.) The Commission suggests first that application of NMFS' new criteria for negligible impact determinations (NID) under section 101(a)(5)(E) of the MMPA (NMFS, 2020) would show the proposed authorized take number to not be negligible, and that NMFS should explain its rationale if it believes that the criteria are not relevant when assessing M/SI that occurs in contexts other than commercial fishing. Indeed, application of those criteria to NIDs made under section 101(a)(5)(A) of the MMPA may not be appropriate. Section 101(a)(5)(E) only pertains to marine mammal stocks designated as depleted because of their listing under the ESA, and the corresponding criteria were developed in that context. The California coastal stock of bottlenose dolphin is not designated as a depleted stock. NMFS has made no decisions on whether and how to apply the 101(a)(5)(E) criteria to other negligible impact determinations under section 101(a)(5)(A). Therefore, the appropriate negligible impact factor may be different than those specified in the 101(a)(5)(E) criteria. Applicability of those criteria to stocks not designated as depleted was not considered in development of the criteria and is not addressed by the Commission. Therefore, we reject the suggestion that the criteria may be used to show deficiency in NMFS' NID for the California coastal stock of bottlenose dolphin. Please see the discussion of use of PBR generally for section 101(a)(5)(A) authorizations below in the Negligible Impact Analysis and Determinations section.

With regard to the Commission's recommendation to apply the information contained in the current stock assessment reports, NMFS agrees and has done so, as shown in the Negligible Impact Analysis and Determinations section of this preamble. In addition to considering quantitative information, i.e., the estimate of annual M/SI and the stock's PBR value, we also consider other relevant factors discussed in the stock assessment report (SAR), such as the nature of the recorded M/SI events that contribute to the estimate and the information that is available regarding stock abundance. NMFS disagrees with the Commission's characterization of the discussion of these factors as “downplaying” the information in the SAR and notes the Commission's apparent agreement with the validity of these points, i.e., that the stock abundance is likely negatively biased and that some of the specific incidents contributing to the SAR estimate of annual M/SI are unlikely to recur. It is appropriate to perform a negligible impact analysis by considering the quantitative information available in the SAR in context with other, qualitative information. Although not currently applicable to 101(a)(5)(A) NID evaluations, the 101(a)(5)(E) criteria explicitly address this, stating “There may be circumstances, such as when the M/SI estimate is slightly below or slightly above the negligible impact threshold(s), where the analyst may deviate from the determination that would be dictated by strictly adhering to the [negligible impact] thresholds. Such deviations may be due to the consideration of additional factors affecting the likelihood or impact of the incidental M/SI [. . . .] In such circumstances, NMFS should provide the rationale in the document supporting the NID.” In this case, NMFS has described the available quantitative information, evaluated additional relevant information, and provided its rationale in making a finding of negligible impact.

Finally, the Commission does not suggest that the level of taking proposed for authorization is unrealistically high but, nevertheless, recommends that it be reduced in order to, in the Commission's estimation, make a finding of negligible impact. It would be improper to lower arbitrarily NMFS' best estimate of anticipated taking in order to make the necessary finding. Rather, that best estimate must be evaluated in context of all relevant available information and, if the estimated taking is found to be likely to cause greater than a negligible impact on the affected species or stock, additional mitigation that may reduce the amount of anticipated taking may be considered. In this case, NMFS has considered the amount of anticipated taking in context of all relevant available information and has made the necessary finding of negligible impact.

We have reviewed SWFSC's species descriptions—which summarize available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for accuracy and completeness and refer the reader to Sections 3 and 4 of SWFSC's application, instead of reprinting the information here. Additional information regarding population trends and threats may be found in NMFS' SARs ( www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ), and more general information about these species ( e.g., physical and behavioral descriptions) may be found on NMFS' website ( www.fisheries.noaa.gov/find-species ).

Table 1 lists all species with expected potential for occurrence in the specified geographical regions where SWFSC plans to continue the specified activities and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and PBR, where known. For taxonomy, we follow Committee on Taxonomy (2020). PBR, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population, is discussed in greater detail later in this document (see Negligible Impact Analysis and Determinations).

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that the stock comprises. For some species, this geographic area may extend beyond U.S. waters. Survey abundance (as compared to stock or species abundance) is the total number of individuals estimated within the survey area, which may or may not align completely with a stock's geographic range as defined in the SARs. These surveys may also extend beyond U.S. waters.

All stocks occurring in the CCE are assessed in either NMFS' U.S. Alaska SARs or U.S. Pacific SARs. All values presented in Table 1 are the most recent available at the time of writing and are available in the 2019 SARs (Carretta et al., 2020; Muto et al., 2020). Antarctic stocks are not generally defined by NMFS, and information relating to species occurring in the AMLR is lacking relative to those occurring in the CCE. For species occurring in AMLR, we provide International Union for the Conservation of Nature (IUCN) status. The IUCN systematically assesses the relative risk of extinction for terrestrial and aquatic plant and animal species via a classification scheme using five designations, including three threatened categories (Critically Endangered, Endangered, and Vulnerable) and two non-threatened categories (Near Threatened and Least Concern) ( www.iucnredlist.org/; accessed June 22, 2020). These assessments are generally made relative to the species' global status, and therefore may have limited applicability when marine mammal stocks are defined because we analyze the potential population-level effects of the specified activity to the relevant stock. However, where stocks are not defined, IUCN status can provide a useful reference.

In the CCE, 33 species (with 40 managed stocks) are considered to have the potential to co-occur with SWFSC activities. Species that could potentially occur in the research area but are not expected to have the potential for interaction with SWFSC research gear or that are not likely to be harassed by SWFSC's use of active acoustic devices are described briefly but omitted from further analysis. These include extralimital species, which are species that do not normally occur in a given area but for which there are one or more occurrence records that are considered beyond the normal range of the species. Species considered to be extralimital here include the North Pacific right whale ( Eubalaena japonica ) and the Bryde's whale ( Balaenoptera edeni brydei ). In addition, the sea otter is found in coastal waters, with the southern sea otter ( Enhydra lutris nereis ) found in California and the northern (or eastern) sea otter ( E. l. kenyoni; Washington stock only) found in Washington. However, sea otters are managed by the U.S. Fish and Wildlife Service and are not considered further in this document. Most survey activity occurs offshore and is therefore less likely to interact with coastal species such as harbor porpoise, the coastal stock of bottlenose dolphin, or gray whales (during the northbound migration), although these species are considered further in this document. SWFSC does not conduct research activities in the inland waters of Washington. Therefore, stocks occurring solely in those waters ( i.e., harbor porpoise and harbor seal) are not addressed herein.