On March 29, 2021 (86 FR 16291), the NRC published a direct final rule amending its regulations in part 72 of title 10 of the Code of Federal Regulations to revise the Holtec International HI-STORM 100 Cask System listing within the “List of approved spent fuel storage casks” to include Amendment No. 15 to Certificate of Compliance No. 1014. Amendment No. 15 revises the certificate of compliance as follows:

1. Adds a new version of a transfer cask, HI-TRAC MS (maximum shielded), which includes an option for variable weight of the lead and water jacket and cooling passages to the bottom lid. HI-TRAC MS is to be used with all multipurpose canisters (MPCs) approved for use in Amendment Nos. 0 through 14 to the HI-STORM 100 System and the newly proposed MPC-32M, MPC-32 Version 1, and MPC-68 Version 1.

2. Includes MPC-32M for storage in the HI-STORM 100 System.

3. Includes MPC-32 Version 1 and MPC-68 Version 1 for storage in HI-STORM 100 System.

4. Adds the new overpack, HI-STORM 100S Version E, and allows it to be used with all MPCs approved for use in Amendment Nos. 0 through 14 to the HI-STORM 100 System and the newly proposed MPC-32M, MPC-32 Version 1, and MPC-68 Version 1.

5. Adds three additional boiling water reactor fuel types to the approved content for MPC-68M: 10x10I, 10x10J, and 11x11A.

6. Lowers the allowed ambient temperature from 80 °F to 70 °F for HI-STORM 100S Version E.

7. Adds HI-DRIP and dry ice jacket ancillary system as additional cooling when the MPC is loaded in the HI-TRAC transfer cask.

8. Allows for partial gadolinium credit for boiling water reactor fuel assemblies types 10x10 and 11x11 assembly classes in MPC-68M.

9. Includes allowance for canisters currently loaded under earlier amendments which had different helium leak test requirements.

10. Updates Drawing No. 7195 for the MPC-68M by removing dimensions which are not used in the safety analysis.

11. Includes dry ice jacket as optional alternate cooling method for short-term operation of the loaded HI-TRAC.

In the direct final rule published on March 29, 2021, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on June 14, 2021. The NRC received and docketed one comment on the companion proposed rule (86 FR 16310; March 29, 2021). An electronic copy of the comment can be obtained from the Federal Rulemaking website https://www.regulations.gov under Docket ID NRC-2020-0257 and is also available in ADAMS under Accession No. ML21090A148.

The NRC evaluated the comment against the criteria described in the direct final rule and determined that the comment was not significant and adverse. Specifically, the comment agreed with this rulemaking and, thus, was not adverse. Therefore, the direct final rule will become effective as scheduled.

At its October 2020 meeting, the Board issued a proposed rule intended to modernize the NCUA's Derivatives rule at subpart B to 12 CFR part 703 by moving to a principles-based approach. 1 The proposed rule included, among other things, amendments to:

• Streamline the application process and exempt certain FCUs from the requirement to submit an application;

• remove regulatory limits on the amount of Derivatives an FCU can enter into;

• remove permissible Derivatives types in favor of a characteristic-based approach; and

• reorganize rules related to loan pipeline management.

As discussed later in this preamble, the Board is finalizing the rule largely as proposed. However, in response to comments received, the Board is making a few regulatory changes and clarifying several items.

The Board received 17 comments from a variety of sources, including: Natural person credit unions, a financial advisor, credit union trade associations and leagues, brokers and introducing agents, and one anonymous source. All of the comments received by the Board supported the proposal and the NCUA's proposed principles-based approach to Derivatives. Most commenters, however, did request at least one change or clarification. The following is a summary of the requested changes and clarifications, organized by topic, and responses to the same.

Eight commenters addressed various aspects of the proposed application and notification structure. For ease of reference, each topic is discussed separately.

Three commenters disagreed with the proposed $500 million asset size threshold required to qualify for an exemption from the requirement to submit an application for Derivatives authority. These commenters argued that an asset threshold is an arbitrary number that does not accurately reflect an FCU's ability to safely engage in Derivatives. One commenter stated that it is possible that FCUs below the NCUA's proposed threshold may have the requisite infrastructure to safely engage in Derivatives. Two of the commenters sought an outright removal of the proposed asset threshold; the third commenter sought removal or a reduction of the amount of the threshold.

The Board is not making any changes to the requirements related to the asset threshold that determines which FCUs must submit an application for Derivatives authority. As stated in the proposal, the asset threshold aligns with the definition of “complex credit union” in the NCUA's risk-based capital (RBC) rule. 2 The Board chose an asset threshold of $500 million for the RBC rule after careful consideration of the activities and volume of activities of credit unions at certain asset thresholds. As such, the Board believes the RBC asset threshold is a valuable demarcation line above which it is reasonable to expect FCUs will have the required infrastructure to safely engage in Derivatives. This is further supported by the Board's experience in reviewing FCU applications since the inception of the current Derivatives rule. A review of Derivatives applications under the current rule confirms that FCUs greater than $500 million in assets generally possess the management expertise and required infrastructure to support a Derivatives program.

The Board notes that it did receive a small number of applications, under the current rule, from FCUs with assets under $500 million. While these FCUs met the requirements of the current rule, the Board believes this small group of FCUs may not be representative of the capabilities of all FCU's under $500 million in assets. As such, the Board does not believe this small number of FCUs supports lowering the $500 million threshold. In addition, the Board notes that this final rule does not bar FCUs under the asset threshold from receiving Derivatives authority. As discussed in the next paragraph, such an FCU may receive Derivatives authority after completing an application that demonstrates it can safely manage a Derivatives program.

As commenters stated, it is possible that an FCU under $500 million may have the requisite infrastructure to safely engage in Derivatives. While the Board agrees with the commenters that an FCU with total assets under $500 million may have the requisite infrastructure to support Derivatives, those FCUs may not be representative of all FCUs with total assets under $500 million. However, this final rule provides all FCUs with total assets under $500 million the ability to use Derivatives by retaining the provisions of the proposed rule, which require that these FCUs apply for Derivatives authority consistent with § 703.108(b) and demonstrate the requisite infrastructure to safely engage in Derivatives.

One commenter raised a concern and a question with the proposed requirement that an FCU have a Management CAMEL component rating of 1 or 2 to forego submitting an application for Derivatives authority. This commenter's concern and question focused on a scenario where an FCU receives approval for Derivatives authority, but its management component later falls below the required management rating. Specifically, the commenter stated that it:

Separately, but related, this commenter also questioned how the aforementioned scenario would be applied in the case of an FCU that received approval under the current Derivatives rule and is grandfathered under this final rule (Grandfathered FCU). Specifically, this commenter asked:

The Board appreciates these comments and in the following part of this document will clarify several different scenarios related to an FCU failing to comply with the requirements to forgo an initial application. In addition to the ensuing clarifying discussion, the Board, as discussed later in this section, is also making changes to § 703.108(d) of this final rule to ensure the regulatory text is clear and transparent.

As discussed in the preamble to the proposed rule  3 and the accompanying rule text, § 703.108(a) states that an FCU is not required to apply for Derivatives authority if it has assets of at least $500 million and its most recent Management CAMEL component rating is a 1 or 2. The Board believes clarification is warranted on how these requirements relate to § 703.108(d). Specifically, § 703.108(d) requires an FCU to immediately cease entering into any new Derivatives and notify the applicable Regional Director if the FCU experiences a negative change in condition such that it no longer meets the requirements discussed above or, if applicable, renders its approved application inaccurate.

The Board notes that in any instance in which an FCU, not subject to an active application under § 703.108(b), no longer meets the requirements in § 703.108(a), such FCU would need to immediately cease entering into new Derivatives transactions and notify the applicable Regional Director. An FCU required to cease entering into Derivatives may not continue entering into Derivatives transactions until it receives written notification from the applicable Regional Director that it is permitted to do so. For clarification, the cessation and notification discussed in the prior sentences would apply in any of the following circumstances:

Under the first scenario above, a Grandfathered FCU would, under the current Derivatives rule, already be prohibited from entering into new Derivatives transactions if its Management CAMEL component rating is a 3, 4, or 5. Under this final rule, such FCU would be remain prohibited from entering into new Derivatives transactions. Unlike the current rule, however, such FCU would not be automatically barred from continuing to use Derivatives until its management rating met the regulatory standard. Rather, this final rule provides the Regional Director with discretion to evaluate the reasons for the lower management rating and determine if the FCU can safely continue to use Derivatives. The Board notes that this flexibility will aid FCUs that have a Management CAMEL component rating of 3, 4, or 5 for reasons unrelated to the FCU's ability to safely use Derivatives.

Scenario one, described above, would also apply to any Grandfathered FCU that, as of the effective date of this final rule, has assets below the $500 million threshold required in § 703.108(a) of this final rule.

Under scenario two above, any FCU that obtains Derivatives authority without applying, because the FCU met the requirement in § 703.108(a), would be required to cease entering into new Derivatives transactions and notify the applicable Regional Director if such FCU ever failed to continue meeting the aforementioned requirements. The required cease and notify procedures would apply to any instance in which the FCU fails to meet the requirements of § 703.108(a), including a situation where the FCU fails to meet one or both requirements, subsequently meets those requirements, and later falls out of compliance again. The Board notes that the cease and notify procedures in § 703.108(d) are not an absolute bar to continuation of Derivatives transactions. Rather, the procedures provide an opportunity for the Regional Director to evaluate the condition of the FCU and determine if it is safe and sound for the FCU to continue using Derivatives. To that end, the Board notes that this final rule provides for more flexibility than the current rule.

Finally, in scenario three the Board seeks to clarify two distinct points:

• First, an FCU that is required to apply for Derivatives authority under this final rule that subsequently meets the requirements of § 703.108(a) will, as of the date of meeting such requirements, no longer be bound by the terms of its application. Instead, such FCU will be subject only to the terms of this final rule and any future amendments made thereto. To ensure the final rule reflects this clarification, as further discussed later in this section, the Board is making minor clarifications in the final rule regulatory text.

• Second, the Board notes that such FCU, discussed in the preceding sentences, that fails to continue to meet the requirements in § 703.108(a) will be required to undertake the same cease and notify procedures as outlined above. Such FCUs will not automatically be required to reapply. However, as for all three scenarios, the Regional Director may exercise any remedy he or she sees fit for an FCU that is no longer in compliance with § 703.108(a) or its approved and still in force application. Such action could include, but is not limited to, revocation of authority or a required application for continued authority.

To effectuate the clarifications discussed in this section of the preamble, the Board has reorganized and amended the rule text in § 703.108(d). Specifically, the Board has divided this section into two types of changes in condition: (1) A negative change in condition that may require remedial action by the applicable Regional Director; and (2) a positive change in condition such that an FCU that applied for Derivatives authority is no longer subject to such application. The Board believes this reorganization will make this section of the rule clearer and more user friendly without introducing any substantive amendments. In addition, the Board is also clarifying when, after a negative change in condition, an FCU may begin entering into Derivatives transactions again. Specifically, as discussed earlier in this section of the preamble, this change will clarify that an FCU may not continue entering into Derivatives transactions until notified in writing by the applicable Regional Director. In the proposed rule, the Board stated that an FCU subject to these cease and notify procedures could choose to apply for Derivatives authority under 703.108(b). While the Board was clear that applying was something an FCU could do, the Board intended this to be but one option for the continued use of Derivatives. The Board's intention in the proposed rule was that if an FCU chose not to apply for Derivatives authority, after being subject to the cease and notify procedures, such FCU would not be permitted to resume using Derivatives until notified by its Regional Director. This is further supported by the notion that the cease and notify procedures also apply to an FCU that is in violation of its approved application, and the fact that the proposed rule provided the Regional Director with remedial actions. As such, it was always the Board's intention that there would be notification back to an FCU subject to the cease and notify procedures. The Board, however, believes it could have been clearer with respect to this notification from the Regional Director. As such, the Board is taking this opportunity to be more clear and fully transparent. Such change is not intended to be substantive in any way.

One commenter requested a time limit for approval if an FCU is required to submit an application. This commenter stated that:

The Board is retaining the provisions of the proposed rule without any time limit in approving an FCU's Derivatives application. The Board notes that the current rule does not include any time limit for the NCUA's approval. The Board believes that NCUA staff should have adequate time to review an FCU's Derivatives application to ensure the FCU has the requisite infrastructure and can safely manage a Derivatives program. The Board's experience with the current rule is that the timing of approvals for FCU applications was on average less than 100 days from the receipt of the application and believes that, given the changes to the asset threshold for notifications and the expected modifications to improve the application requirements, the timing of approval would be similar, if not shorter.

Finally, two commenters addressed the proposed requirement for a credit union to submit notification to the NCUA within five business days of entering into its first Derivatives transaction. One commenter requested an extension of the time-period to submit notification from 5 days to 7-10 days. This commenter stated that a longer notification period would provide flexibility for uncontrollable and unforeseen operational or marketplace delays. The other commenter requested that the NCUA not apply the notification requirement to federally insured, state-chartered credit unions (FISCUs) that are chartered in states that require preapproval by, or notification to, the state regulator. This commenter stated that requiring notification to the NCUA for these FISCUs would create an inefficient redundancy. To further streamline the application process, this commenter requested an exemption from the notification requirement for the aforementioned FISCUs.

The Board believes that replacing the application requirements for a qualified FCU with a required notification within five days after entering into its first Derivative transaction is a reasonable compromise. Derivatives can be complex and risky transactions, and a prompt notification will allow the applicable Regional Director to efficiently manage examination resources.

The Board also believes that the current burden to a FISCU is unchanged as the FISCU is only notifying the applicable Regional Director after entering into its first Derivative transaction compared to the current requirement of notifying the Regional Director at least 30 days before it begins engaging in Derivatives.

The Board therefore is retaining the provisions of the proposed rule for the timing of notification to five days after entering into its first Derivative transaction.

Three commenters addressed the proposed collateral requirements for cleared Derivatives. All three commenters disagreed with the NCUA specifying acceptable collateral for cleared Derivatives. One commenter stated that the current Derivatives rule does not have collateral requirements; rather, the current rule relies on the FCU to have systems in place to effectively manage collateral. Further, this commenter stated that for cleared Derivatives, having collateral requirements would create a parallel structure with the collateral requirements of the clearinghouse. This commenter argued that this parallel structure may lead to confusion and/or unnecessary reviews to ensure the FCU's transaction is compliant with both the clearinghouse's requirements and the NCUA's regulation. The other two commenters that addressed this topic echoed the previous statements regarding the inefficiency and unintended consequences that may occur if the NCUA mandates specific collateral, particularly for cleared Derivatives.

In the proposal, the Board noted the rule could be simplified by creating one collateral requirement for both cleared and Non-cleared Derivatives. The Board asked if this approach could cause unintended consequences. Commenters indicated that one collateral standard for cleared Derivatives and Non-cleared Derivatives could create problems for FCUs using cleared Derivatives. Based on comments and further analysis, the Board will not implement collateral requirements for cleared Derivatives. Rather, the final rule only requires specific collateral types for Non-cleared Derivatives, otherwise collateral requirements for cleared derivatives are subject to the clearinghouse requirements. The Board notes that the collateral requirements for Non-cleared Derivatives are the same requirements included in the proposed rule. As such, the Board is only changing which transactions are subject to those requirements.

The Board believes that the distinction between cleared versus Non-cleared for collateral requirements is consistent with safety and soundness and will prevent any inefficiencies and unintended consequences that could be caused by mandating specific collateral requirements for cleared Derivatives.

Two commenters addressed the requirement that all Counterparties be domestic entities (domiciled in the United States). One commenter disagreed with the NCUA limiting permissible Counterparties to those that are domestic. This commenter stated that there is no comparable limitation by the Commodity Futures Trading Commission (CFTC). The commenter went on to point out that “there are dozens of authorized swap dealers that are not U.S. domiciled.” This commenter agreed that all FCU Derivatives transactions should be subject to U.S. law, but argued that this can be accomplished through the legal terms of the Derivatives agreement, requiring the transaction be tied to Domestic Interest Rates, denominated in dollars, and subject to U.S. regulation and law. The second commenter stated that the term “domiciled” could lead to confusion, as there are multiple interpretations of this term. This commenter stated that, alternatively, the NCUA “should consider expanding the definition to include `U.S. Branch Offices of foreign-based Swap Dealers' or `any U.S. registered Swap Dealer,' or explicitly addressing the prohibition to transactions with these entities in the final rule's commentary.”

After consideration of the comments, the Board is declining to finalize the proposed change that would require all Counterparties to be domiciled in the United States. As such, the current Counterparty requirements will be effective for the final rule. In this final rule, the Board has included the current Counterparty requirements and associated definitions. The current rule allows for Swap Dealers, Introducing Brokers, and/or Futures Commission Merchants that are current registrants of the CFTC to be Counterparties for exchange-traded and cleared Derivatives. For Non-cleared Derivatives, the current rule allows for registered CFTC Swap Dealers to be the Counterparty.

As part of retaining the current rule's Counterparty requirement for cleared/exchange-traded and Non-cleared Derivatives, the Board will retain the following definitions from the current rule:

• Counterparty;

• Derivatives Clearing Organization;

• Futures Commission Merchant;

• Introducing Broker;

• Non-cleared; and,

• Swap Dealer.

In retaining the Counterparty requirements of the current rule, the Board is deleting the definition of Domestic Counterparty as proposed.

Three commenters requested clarification on the liquidity review required in the proposed rule. These commenters suggested that the NCUA should allow the aforementioned review to be part of the FCU's overall liquidity review, rather than requiring a separate liquidity review for an individual product type. While the Board is not making any rule text changes related to an FCU's liquidity review, the Board does believe it is necessary to clarify its expectations related to the same. The requirement to conduct a liquidity review as part of the operational support requirements in § 703.106(b)(5) is not intended to require a separate liquidity analysis for Derivatives. Rather, it is permissible for Derivatives be part of the more comprehensive liquidity risk management processes required in part 741 of the NCUA's regulations. 4

Three commenters requested that the NCUA remove the 15-year maturity limit on Derivatives. Commenters stated that removing this limit would provide additional flexibility and not subject FCUs to a one-sized fits all approach.

For the reasons stated in the proposal, 5 the Board continues to believe that the 15-year maturity limit allows FCUs to effectively hedge various points of the yield curve for longer-term assets like mortgages, while preventing an excessive exposure to very long Derivative maturities. As such, the Board is not making any amendments to this section of the rule.

While the proposed rule moved toward a principles-based approach, the Board explicitly proposed to prohibit an FCU from using written options. This prohibition is included in the current rule, where FCUs are only permitted to purchase Derivatives. In continuing this prohibition, the Board was concerned with the asymmetric return profile of written options and was also was not aware of any safe uses of written options for managing IRR. To garner more information on the use and risk of written options, the proposed rule included a specific request for comments on the possibility of the Board permitting written options in a final Derivatives rule. Specifically, the Board asked for comments on whether FCUs should be able to engage in written options to manage IRR, and specific scenarios where a written option could be used to manage IRR. 6 In response, five commenters stated that the Board should not prohibit an FCU from engaging in written options. Of these commenters, one requested clarification on the NCUA's definition of a written option, and two others provided detailed examples of transactions where a written option could be both beneficial and safe and sound.

After consideration of the comments and further analysis, the Board is removing the proposed prohibition on written options. As such, this final rule permits an FCU to enter into written options, but only if such options are used to manage IRR. As a result of removing the prohibition on written options and for increased clarity in the rule text, the Board is adding a new § 703.103(a)(1) restating a mandatory characteristic in that Derivatives can only be used for the purpose of managing IRR. The Board is adding this characteristic to reinforce the principle that all Derivatives, including written options, must only be used for the management of IRR.

As part of the Board's analysis in considering written options as a permissible Derivative for FCUs, the Board reviewed the risk profile and potential uses of written options. An option contract entitles the option purchaser the right, but not the obligation, to buy, sell, or enter into a commitment with a Counterparty including specific terms on interest rates or prices at a specified date, depending on the form of the option. The option purchaser will pay a premium upfront for this right. The seller or writer of an option, when not offsetting an existing purchased option, is the originator of an option contract exposure who, in exchange for receiving the premium, is subject to the right afforded to the purchaser in exercising the terms of the contract.

The risk profile of an interest rate option, whether purchased or written, is asymmetric. This means the payment(s) on the option can exceed the premium paid or received for the option. With a written option, the seller of the written option would receive a premium and would generally be obligated to make payments to the purchaser if conditions are met. For example, the seller of a written interest rate cap would be required to make payments to the purchaser if the reference rate is greater than the rate on the interest rate cap contract. With interest rate options, this payment generally behaves similar to the required payments on other interest rate Derivatives. For example, the cashflow payment profile of a sold interest rate cap can be compared to a receive-fixed, pay-floating interest rate swap with the same notional and strike/swap rate, which is permissible transaction types for FCUs. One commenter pointed out that a sold interest rate cap, combined with a purchased interest rate floor, would behave almost identical to an interest rate swap with the same strike/swap rates and the same maturities. By permitting written options for managing IRR, FCUs could enter into an exposure similar to a receive-fixed, pay-floating swap transaction more customized to the FCUs balance sheet needs.

The Board notes that written options can also be used to reduce the costs associated with managing IRR. Such cost reduction can be achieved by, among other things, offsetting the purchase of another Derivative or reducing its exposure to such Derivative.

In summary, the Board has determined that the use of written options provides additional flexibility for FCUs for the purpose of managing IRR. However, the Board would like to emphasize that any written option by an FCU would need to be for the purpose of managing IRR. The FCU must be able to demonstrate how the written option, on its own or combined with other Derivatives, is being used to manage interest rate risk.

Related to the removal of the prohibition of written options, the Board is removing the definitions of Interest rate cap, Interest rate floor and Written options from the final rule. The Board notes the specific product definitions for options are not needed given the prohibition on written options has been removed from the final rule.

The Board proposed to streamline sections of current part 703 on when an FCU may enter into transactions to manage interest rate exposure in its loan pipeline. The proposed rule removed the reference to specific product types for loan pipeline management and expanded pipeline management to all loans. Both of these changes are consistent with the principals-based approach the Board implemented in this rule. In making this change in the proposal, the Board asked if loan pipeline management should be limited to mortgage loans. The Board asked this to allow stakeholders the opportunity to provide input on this expansion of the loan pipeline authority. Both commenters on this question stated NCUA should not restrict pipeline management to only mortgage loans. These commenters stated that pipeline management has value for managing IRR for all types of loans, not just mortgages.

The Board agrees and is retaining this portion of the rule as proposed.

Three commenters addressed the ability of a Regional Director to prohibit an FCU from continuing to enter into Derivatives transactions. All three commenters found the proposed authority to be overly broad. One commenter noted that under the proposed rule, a Regional Director could, for any reason, prohibit an FCU from continuing to use Derivatives. This commenter requested that a Regional Director's authority to prohibit the use of Derivatives be directly related to Derivatives activity. Further, one commenter requested that any prohibition on the continued use of Derivatives be accompanied by a written statement to that effect and the ability to appeal such decision, under part 746 of the NCUA's regulations. 7

The Board believes the level of Regional Director authority is appropriate. The Board notes, given the complexity of Derivatives, it is necessary to provide the Regional Director with broad discretion to allow him or her to evaluate an FCU and, if necessary, take remedial actions to address unsafe or unsound conditions that are caused by, related to, or could be exacerbated by the continued use of Derivatives.

The Board notes that such discretion will make this final rule more flexible than the current Derivatives rule. As discussed previously in this document, under the current rule, if an FCU falls out of compliance with the rule or its approved application, then the FCU must cease all Derivatives activity until it comes back into compliance. In some instances, an FCU may fall out of compliance with the current rule for reasons completely unrelated to its Derivatives activity; for example, an FCU that has its management rating lowered to a 3 for reasons unrelated to its ability to manage Derivatives. In this example, under the current rule, this FCU would be required to achieve a management rating of at least 2 before it could begin entering into Derivatives again. Conversely, under this final rule, the Regional Director could evaluate the FCU's change in condition, and might allow it to continue utilizing Derivatives if he or she determines that the change in condition has not impacted the FCU's ability to manage its Derivatives program. As such, the Board is not making any changes in response to these comments.

Three commenters addressed the requirement that an FCU engaging in Derivatives submit monthly reports to the FCU's senior management and, if applicable, asset liability committee. One commenter requested clarification on the level of specificity in the required reporting. Two other commenters recommended that the NCUA explore the sufficiency of less frequent reporting.

As stated in the preamble to the proposed rule, 8 the Board believes that retaining these reporting requirements is essential to FCUs maintaining strong internal controls related to Derivatives, given the principles-based approach of this proposed rule. The Board also believes that the proposed reporting requirements are less burdensome to FCUs, because they are less prescriptive, while ensuring the proper FCU officials receive reports that are necessary to oversee an FCU's Derivatives program. Therefore, the Board is retaining the reporting requirements included in the proposed rule.

Two commenters encouraged the Board to permit FCUs to enter into interest rate swaps with commercial borrowers. These commenters stated that these transactions would help both the FCU and commercial borrowers while addressing the Federal Credit Union Act's (FCU Act) prohibition on prepayment penalties. The Board is declining to permit this type of transaction for two reasons.

First, the Board believes it is highly unlikely that a commercial borrower an FCU does business with will be regulated by the CFTC consistent with the Counterparty requirement in § 703.104(b) of this final rule. The Board intentionally included the Counterparty requirement in § 703.104(b) of the rule to ensure all Derivative counterparties are CFTC-regulated. The Board believes allowing non-CFTC regulated counterparties would increase the risk of Derivatives and potentially create safety and soundness issues for the FCU.

Second, the Board believes that allowing FCUs to enter into an interest rate swap with commercial borrows would equate to a circumvention of the FCU Act. The FCU Act prohibits prepayment penalties, 9 and allowing an FCU to enter into interest rate swap may require the commercial borrower to make a payment on the interest rate swap if they prepay the commercial loan. This payment on the interest rate swap would behave similar, if not identical, to a prepayment penalty. As such, the Board is retaining the prohibition on these types of transactions.

The Board is retaining the proposed provisions of § 703.103 for requirements related to the characteristics of permissible IRR Derivatives, including the provision that a Derivative contract must be based on Domestic Interest Rates or the USD London Interbank Offered Rate (LIBOR). The Board acknowledges the March 5, 2021, announcement by the Intercontinental Exchange Benchmark Administration, which publishes the USD LIBOR rate settings, that it will cease the publication of all USD LIBOR rate settings by June 30, 2023. Accordingly, the Board will consider revisions to this subpart after the cessation of the USD LIBOR.

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a valid OMB control number. In accordance with the PRA, the information collection requirements included in this final rule have been submitted to OMB for approval under control number 3133-0133.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. The NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles.

This final rule does not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government. The NCUA has, therefore, determined that this final rule does not constitute a policy that has federalism implications for purposes of the executive order.

The NCUA has determined that this rule will not affect family well-being within the meaning of § 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).

The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA) generally provides for congressional review of agency rules. A reporting requirement is triggered in instances where the NCUA issues a final rule as defined by § 551 of the Administrative Procedure Act. An agency rule, in addition to being subject to congressional oversight, may also be subject to a delayed effective date if the rule is a “major rule.” The NCUA does not believe this rule is a “major rule” within the meaning of the relevant sections of SBREFA. As required by SBREFA, the NCUA submitted this final rule to the Office of Management and Budget for it to determine if the final rule is a “major rule” for purposes of SBREFA. The Office of Management and Budget determined the final rule was not a major rule. The NCUA also will file all appropriate reports.

The Regulatory Flexibility Act (RFA) generally requires that, in connection with a notice of proposed rulemaking, an agency prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of a proposed rule on small entities (defined for purposes of the RFA to include credit unions with assets less than $100 million). 10 A regulatory flexibility analysis is not required, however, if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short, explanatory statement in the Federal Register together with the rule.

The NCUA certified that the proposed rule would not have a significant economic impact on a substantial number of small credit unions. The Board did not receive any comments on this section.

For the reasons discussed in the preamble, the Board is amending 12 CFR parts 701, 703, 741, and 746 as follows:

On September 1, 2020, Haeco applied for a supplemental type certificate for structure-mounted airbags in the Boeing Model 737-800 airplane. The Boeing Model 737-800 airplane, which is a derivative of the Boeing Model 737 airplane currently approved under Type Certificate No. A16WE, is a twin-engine, transport-category airplane with seating for 189 passengers and a maximum takeoff weight of 174,200 pounds.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Haeco must show that the Boeing Model 737-800 airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A16WE or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 737-800 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 737-800 airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34, and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Boeing Model 737-800 airplane will incorporate the following novel or unusual design features:

Airbags mounted to structure to prevent head injury.

Haeco will install structure-mounted airbags instead of inflatable lap belts as a means to protect each occupant from serious injury in the event of an emergency landing, as required by § 25.562(c)(5), on 737-800 airplanes.

Such use of airbags to provide injury protection for the occupant is a novel or unusual feature for this airplane model, and the applicable airworthiness regulations do not contain adequate or appropriate airworthiness standards for these design features. Therefore, special conditions are needed to address requirements particular to installation of airbags in this manner.

Special conditions exist for airbags installed on seat belts, known as inflatable lap belts, which have been installed on transport airplane passenger seats. Structure-mounted airbags, although a novel design, were first introduced on Jetstream Aircraft Limited Model 4100 series airplanes, which resulted in issuance of Special Conditions 25-ANM-127 on May 14, 1997. These special conditions supplemented 14 CFR part 25 and, more specifically, §§ 25.562 and 25.785.

The structure-mounted airbag, similar to the inflatable lap belt, is designed to limit occupant forward excursion in the event of an emergency landing. These airbags will reduce the potential for serious injury, including reducing the head-injury criterion measurement defined in part 25. However, structure-mounted airbags function similarly as automotive airbags, where the airbag deploys from furniture located in front of the passenger, relative to the airplane's direction of flight, forming a barrier between the structure and occupant. Also, unlike the inflatable lap belt, the structure-mounted airbag does not move with the occupant. To account for out-of-position and brace-position occupants, the airbag is designed to conform to the curvature of the exposed structure in the head-strike zone.

Because the airbag system is essentially a single-use device, it could deploy under crash conditions that are not sufficiently so severe as to require the injury protection the airbag system provides. Because an actual crash is frequently composed of a series of impacts before the airplane comes to rest, a larger impact following the initial impact could render the airbag system unavailable. This potential situation does not exist with standard upper-torso restraints, which tend to provide continuous protection regardless of impact severity, or number of impacts, in a crash event. Therefore, the airbag system installation should be such that it provides protection, when it is required, by not expending its protection when it is not required. If the airbag deployment threshold is unnecessarily low, the airbag would need to continue to provide protection when an impact requiring protection occurs.

These special conditions are based upon Special Conditions 25-605-SC for the Boeing Model 787-9 airplanes equipped with B/E Aerospace Super-Diamond model business-class passenger seats and associated furniture. Additionally, the special conditions address protection of the occupant's neck and spine for the structure-mounted airbag deployment. When using the HIC15 head-injury method for airbag impacts (calculated in accordance with 49 CFR 571.208) the neck and spine limits are included as part of the allowance.

These additional conditions are based on special conditions issued previously on oblique seats. The proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

The FAA issued Notice of Proposed Special Conditions No. 25-21-01-SC for the Boeing Model 737-800 series airplane, which was published in the Federal Register on March 16, 2021 (86 FR 14387). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Boeing Model 737-800 airplane as modified by Haeco. Should Haeco apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A16WE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register . However, as the certification date is imminent, the FAA finds that good cause exists to make these special conditions effective upon publication.

This action affects only a certain novel or unusual design features on one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 737-800 airplanes, as modified by Haeco Cabin Solutions:

1. The applicant must demonstrate by test that the structure-mounted airbag will deploy and provide protection under crash conditions where it is necessary to prevent serious injury to a 50th percentile occupant, as specified in § 25.562. The means of protection must provide a consistent approach to energy absorption for a range of occupants, from a two-year-old child to a 95th percentile male. In addition, the following situations should be considered:

1. The seat occupant is holding an infant.

2. The seat occupant is a child in a child restraint device.

3. The seat occupant is a child not using a child restraint device.

4. The seat occupant is a pregnant woman.

Compliance with § 25.562(c)(5) is required, except that, if the ATD has no apparent contact with the seat/structure but has contact with an airbag, a head-injury criterion (HIC) unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.

If a seat is installed aft of structure ( e.g., an interior wall or furnishing) that does not provide a homogenous contact surface for the expected range of occupants and yaw angles, then additional analysis or tests may be required to demonstrate that the injury criteria are met for the area that an occupant could contact. For example, if different yaw angles could result in different airbag performance, then additional analysis or separate tests may be necessary to evaluate performance.

The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.

(1) The N ij (calculated in accordance with 49 CFR 571.208) must be below 1.0, where N ij = F z /F zc + M y /M yc , and N ij critical values are:

(a) F zc = 1,530 lb for tension

(b) F zc = 1,385 lb for compression

(c) M yc = 229 lb-ft in flexion

(d) M yc = 100 lb-ft in extension

(2) In addition, peak F z must be below 937 lb in tension and 899 lb in compression.

(3) Rotation of the head about its vertical axis, relative to the torso, is limited to 105 degrees in either direction from forward-facing.

(4) The neck must not impact any surface that would produce concentrated loading on the neck.

Longitudinal tests conducted to measure the injury criteria above must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609, “A Lumbar Spine Modification to the Hybrid III ATD for Aircraft Seat Tests.” The tests must be conducted with an undeformed floor, at the most-critical yaw cases for injury, and with all lateral structural supports ( e.g., armrests or walls) installed.

Note: Applicant must demonstrate that the installation of seats via plinths or pallets meets all applicable requirements. Compliance with the guidance contained in policy memorandum PS-ANM-100-2000-00123, “Guidance for Demonstrating Compliance with Seat Dynamic Testing for Plinths and Pallets,” dated February 2, 2000, is acceptable to the FAA.

2. The structure-mounted airbag must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly.

3. The structure-mounted airbag system must not be susceptible to inadvertent deployment as a result of wear and tear, or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings) likely to be experienced in service.

4. The applicant must demonstrate that an inadvertent deployment that could cause injury to a standing or sitting person is improbable. Inadvertent deployment must not cause injury to anyone who may be positioned close to the structure-mounted airbag ( e.g., seated in an adjacent seat, or standing adjacent to the airbag installation or the subject seat). Cases where a structure-mounted airbag is inadvertently deployed near a seated occupant or an empty seat must be considered.

5. Inadvertent deployment of the structure-mounted airbag during the most critical part of flight will either not cause a hazard to the airplane or is extremely improbable.

6. Deployment of the structure-mounted airbag must not introduce hazards or injury mechanisms to the seated occupant, including occupants in the brace position. Deployment of the structure-mounted airbag must also not result in injuries that could impede rapid exit from the airplane.

7. Effects of the deflection and deformation of the structure to which the airbag is attached must be taken into account when evaluating deployment and location of the inflated airbag. The effect of loads imposed by airbag deployment, or stowed components where applicable, must also be taken into account.

8. The applicant must demonstrate that the structure-mounted airbag, when deployed, does not impair access to the seatbelt- or harness-release means, and must not hinder evacuation. This will include consideration of adjacent seat places and the aisle.

9. The airbag, once deployed, must not adversely affect the emergency-lighting system, and must not block escape-path lighting to the extent that the light(s) no longer meet their intended function.

10. The structure-mounted airbag must not impede occupants' rapid exit from the airplane 10 seconds after its deployment.

11. Where structure-mounted airbag systems are installed in or close to passenger evacuation routes (other than for the passenger seat for which the airbag is installed), possibility of impact on emergency evacuation ( e.g., hanging in the aisle, potential trip hazard, etc.) must be evaluated.

12. The airbag electronic system must be designed to be protected from lightning per §  25.1316(b), and high- intensity radiated fields per §  25.1317(c).

13. The structure-mounted airbag system must not contain or release hazardous quantities of gas or particulate matter into the cabin.

14. The structure-mounted airbag installation must be protected from the effects of fire such that no hazard to occupants will result.

15. The inflatable bag material must meet the 2.5-inches-per-minute horizontal flammability test defined in 14 CFR part 25, appendix F, part I, paragraph (a)(1)(iv).

16. The design of the structure-mounted airbag system must protect the mechanisms and controls from external contamination associated with that which could occur on or around passenger seating.

17. The structure-mounted airbag system must have a means to verify the integrity of the structure-mounted airbag activation system.

18. The applicant must provide installation limitations to ensure installation compatibility between the seat design and opposing monument or structure.

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, June 17, 2021.

The Delaware River Basin Commission (“DRBC” or “Commission”) is a Federal-interstate compact agency charged with managing the water resources of the Delaware River Basin on a regional basis without regard to political boundaries. Its members are the governors of the four basin states—Delaware, New Jersey, New York and Pennsylvania—and on behalf of the federal government, the North Atlantic Division Commander of the U.S. Army Corps of Engineers.

In accordance with 18 CFR 401.43(c), on July 1 of every year, the Commission's regulatory program fees as set forth in Tables 1, 2 and 3 of that section are subject to an annual adjustment, commensurate with any increase in the annual April 12-month Consumer Price Index (CPI) for Philadelphia published by the U.S. Bureau of Labor Statistics during that year. Pursuant to 18 CFR 420.43(c), the same indexed adjustment applies to the Commission's schedule of water charges for consumptive and non-consumptive withdrawals of surface water within the basin. The referenced April 12-month CPI for 2021 showed an increase of 3.51%. Commensurate adjustments are thus required.

This action is made in accordance with 18 CFR 401.42(c) and 18 CFR 420.42(c), which provide that a revised fee schedule will be published in the Federal Register by July 1. The revised fees also may be obtained by contacting the Commission during business hours or by checking the Commission's website.

For the reasons set forth in the preamble, the Delaware River Basin Commission amends parts 401 and 420 of title 18 of the Code of Federal Regulations as follows:

Under section 711 of the Civil Rights Act of 1964 (Title VII), which is incorporated by reference in section 105 of the Americans with Disabilities Act (ADA) and section 207 of the Genetic Information Non-Discrimination Act (GINA), and implemented in 29 CFR 1601.30(a), every employer, employment agency, labor organization, and joint labor-management committee controlling an apprenticeship or other training program covered by Title VII, ADA, or GINA must post notices describing the pertinent provisions of these laws. Such notices must be posted in prominent and accessible places where notices to employees, applicants, and members are customarily maintained. 29 CFR 1601.30(a). Failure to comply with this posting requirement is subject to penalty pursuant to the Federal Civil Penalties Adjustment Act, as amended. 29 CFR 1601.30(b). On average, the Equal Employment Opportunity Commission (EEOC or Commission) issues fewer than 60 posting notice violations annually.

The EEOC first adjusted the civil monetary penalty for violations of the notice posting requirements in 1997 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIA Act), 28 U.S.C. 2461 note, as amended by the Debt Collection Improvement Act of 1996 (DCIA), Public Law 104-134, Sec. 31001(s)(1), 110 Stat. 1373. A final rule was published in the Federal Register on May 16, 1997, at 62 FR 26934, which raised the maximum penalty per violation from $100 to $110. The EEOC's second adjustment, made pursuant to the FCPIA Act, as amended by the DCIA, was published in the Federal Register on March 19, 2014, at 79 FR 15220 and raised the maximum penalty per violation from $110 to $210.

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), Public Law 114-74, Sec. 701(b), 129 Stat. 599, further amended the FCPIA Act, to require each federal agency, not later than July 1, 2016, and not later than January 15 of every year thereafter, to issue regulations adjusting for inflation the maximum civil penalty that may be imposed pursuant to each agency's statutes. The purpose of the annual adjustment for inflation was to maintain the remedial impact of civil monetary penalties and promote compliance with the law. The EEOC's initial adjustment made pursuant to the 2015 Act was published in the Federal Register on June 2, 2016, at 81 FR 35269 and raised the maximum penalty per violation from $210 to $525. The EEOC subsequently made annual adjustments pursuant to the 2015 Act in 2017, 2018, 2019, and 2020, ultimately raising the maximum penalty per violation to $569. 1

These annual adjustments to the penalty are calculated pursuant to the inflation adjustment formula provided in section 5(b) of the 2015 Act. In accordance with section 6 of the 2015 Act, the adjusted penalty will apply only to penalties assessed after the effective date of the adjustment. Generally, the periodic inflation adjustment to a civil monetary penalty under the 2015 Act will be based on the percentage change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October preceding the date of adjustment and the prior year's October CPI-U.

The adjustment set forth in this final rule was calculated by comparing the CPI-U for October 2019 with the CPI-U for October 2020, resulting in an inflation adjustment factor of 1.01182. The first step of the calculation is to multiply the inflation adjustment factor (1.01182) by the most recent civil penalty amount ($569) to calculate the inflation-adjusted penalty level ($575.72558). The second step is to round this inflation-adjusted penalty to the nearest dollar ($576). Accordingly, the Commission is now adjusting the maximum penalty per violation specified in 29 CFR 1601.30(a) from $569 to $576.

The Administrative Procedure Act (APA) provides an exception to the notice and comment procedures where an agency finds good cause for dispensing with such procedures, on the basis that they are impracticable, unnecessary, or contrary to the public interest. The Commission finds that under 5 U.S.C. 553(b)(3)(B) good cause exists to not utilize notice of proposed rulemaking and public comment procedures for this rule because this adjustment of the civil monetary penalty is required by the 2015 Act, the formula for calculating the adjustment to the penalty is prescribed by statute, and the Commission has no discretion in determining the amount of the published adjustment. Accordingly, the Commission is issuing this revised regulation as a final rule without notice and comment.

Pursuant to Executive Order 12866, the EEOC has coordinated with the Office of Management and Budget (OMB). Under section 3(f) of Executive Order 12866, the EEOC and OMB have determined that this final rule will not have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. The great majority of employers and entities covered by these regulations comply with the posting requirement, and, as a result, the aggregate economic impact of these revised regulations will be minimal, affecting only those limited few who fail to post required notices in violation of the regulation and statue.

The Paperwork Reduction Act (44 U.S.C. chapter 35) (PRA) applies to rulemakings in which an agency creates a new paperwork burden on regulated entities or modifies an existing burden. This final rule contains no new information collection requirements, and therefore, will create no new paperwork burdens or modifications to existing burdens that are subject to review by the Office of Management and Budget under the PRA.

The Regulatory Flexibility Act (5 U.S.C. 601-612) only requires a regulatory flexibility analysis when notice and comment is required by the Administrative Procedure Act or some other statute. As stated above, notice and comment is not required for this rule. For that reason, the requirements of the Regulatory Flexibility Act do not apply.

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

The Congressional Review Act (CRA) requires 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. EEOC 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 the effective date of the rule. Under the CRA, 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 the CRA at 5 U.S.C. 804(2).

Accordingly, the Equal Employment Opportunity Commission amends 29 CFR part 1601 as follows:

On April 12, 2021, WaveOne Open Water of Washington, DC, notified the Coast Guard that from 7:30 a.m. to 10 a.m. on June 6, 2021, it will be conducting the Washington's Crossing 2021, an open water swim competition on the Potomac River, downriver of and parallel to, the Woodrow Wilson Memorial (I-95/I-495) Bridge. The event is being staged out of National Harbor, MD. In response, on April 26, 2021, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Special Local Regulation; Potomac River, Between Jones Point, VA, and National Harbor, MD” (86 FR 21985). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this swim event. During the comment period that ended May 11, 2021, we received no comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date date of this rule would be impracticable and contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the “Washington's Crossing 2021” event. This rule must be in effect by June 6, 2021, to protect participants and the nearby public from potential hazards associated with this event. Potential hazards from the swim competition include participants swimming within and adjacent to the designated navigation channel and interfering with vessels intending to operate within that channel, as well as swimming within approaches to local public and private marinas and public boat facilities.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Maryland—National Capital Region (COTP) has determined that potential hazards associated with the swim event will be a safety concern for anyone intending to operate in or near the swim area. The purpose of this rule is to protect event participants, non-participants, and transiting vessels before, during, and after the scheduled event.

As noted above, we received no comments on our NPRM published April 26, 2021. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a special local regulation to be enforced from 6:30 a.m. through 11 a.m. on June 6, 2021. There is no alternate date planned for this event. The regulated area will cover all navigable waters of the Potomac River, encompassed by a line connecting the following points, beginning at Jones Point Park, VA, shoreline at latitude 38°47′35″ N, longitude 077°02′22″ W, thence east along the northern extent of the Woodrow Wilson Memorial (I-495/I-95) Bridge, at mile 103.8, to the Rosilie Island shoreline at latitude 38°47′36″ N, longitude 077°01′32″ W, thence south along the Maryland shoreline to latitude 38°46′52″ N, longitude 077°01′13″ W, at National Harbor, MD shoreline, thence west across the Potomac River to the George Washington Memorial Parkway highway overpass and Cameron Run shoreline at latitude 38°47′23″ N, longitude 077°03′03″ W, thence north along the Virginia shoreline to the point of origin. The duration of the special local regulations and size of the regulated area are intended to ensure the safety of life on these navigable waters before, during, and after the open water swim event, scheduled from 7:30 a.m. to 10 a.m. on June 6, 2021. The COTP and the Coast Guard Event Patrol Commander (PATCOM) will have authority to forbid and control the movement of all vessels and persons, including event participants, in the regulated area.

Except for Washington's Crossing 2021 participants and vessels already at berth, a vessel or person will be required to get permission from the COTP or Event PATCOM before entering the regulated area. Vessel operators will be able to request permission to enter and transit through the regulated area by contacting the Event PATCOM on VHF-FM channel 16. Vessel traffic will be able to safely transit the regulated area once the Event PATCOM deems it safe to do so. A person or vessel not registered with the event sponsor as a participant or assigned as official patrols will be considered a non-participant. Official Patrols are any vessel assigned or approved by the Commander, Coast Guard Sector Maryland—National Capital Region with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.

If permission is granted by the COTP or Event PATCOM, a person or vessel will be allowed to enter the regulated area or pass directly through the regulated area as instructed. Vessels will be required to operate at a safe speed that minimizes wake while within the regulated area. Official patrol vessels will direct non-participants while within the regulated area.

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

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

This regulatory action determination is based on the size, time of day and duration of the regulated area, which will impact a small designated area of the Potomac River for 4.5 hours. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area. Moreover, the rule will allow vessels to seek permission to enter the regulated area, and vessel traffic will be able to safely transit the regulated area once the Event PATCOM deems it safe to do so.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States. The temporary regulated area will be in effect for 4.5 hours. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Memorandum for the Record supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Coast Guard will enforce safety zones in 33 CFR 165.1332 for the following fourteen Annual Fireworks Displays within the Captain of the Port Puget Sound (COTP) Area of Responsibility (AOR). These regulations will be enforced from 5 p.m. on July 4, 2021, through 1 a.m. on July 5, 2021, at the following locations:

The special requirements listed in 33 CFR 165.1332(b) apply to the activation and enforcement of these safety zones. All vessel operators who desire to enter the safety zone must obtain permission from the COTP or their Designated Representative by contacting the Coast Guard Sector Puget Sound Joint Harbor Operations Center (JHOC) on VHF Channel 13 or Channel 16 or via telephone at (206) 217-6002. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

In addition to the publication of this document in the Federal Register , the Coast Guard will provide the maritime community with extensive advanced notification of enforcement of these safety zones via the Broadcast Notice to Mariners or Local Notice to Mariners.

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at http://www.regulations.gov by typing the docket number in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking.

The Coast Guard is issuing this temporary interim rule with an abridged opportunity to comment out prior pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The final details of the specific dates, vessels names, and safety zone distances concerning the safety zones were not finalized within a sufficient time to allow for notice and a subsequent 30-day comment period before work, inspection, surveying and the replacement and the removal of multiple cables. Delaying this rule to allow for a notice and comment period would be impracticable because it would inhibit the Coast Guard's ability to protect the public from the potential hazards associated with aforementioned operation commencing on June 1, 2021.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceding paragraph, delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with the work, inspections, and surveying of underwater infrastructure.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sault Sainte Marie (COTP) has determined that potential hazards created by the work, inspection, diving, and surveying of underwater infrastructure in the Straits of Mackinac starting June 1, 2021 will be a safety concern for anyone within a 500-yard radius of the tugs and barge. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the operation is conducted.

This rule establishes a safety zone from June 1, 2021 to October 15, 2021. The safety zone will cover all navigable waters within 500 yards of the tugs and barge being used to work, inspect, dive, and survey pipelines in the Straits of Mackinac. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the operation is conducted. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size and location of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of the Straits of Mackinac. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit entry within 500 yards of tugs and barges used to used to work, inspect, dive, and survey pipelines in the Straits of Mackinac. It is categorically excluded from further review under paragraph L[60(a)] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. Four barges, four tugs, and three work vessels will be conducting heavy lift operations and removing and reinstalling three PATON in the east channel of the East River, north of the Roosevelt Island Bridge, while removing, maintaining and reinstalling one TriFrame with three underwater turbines for the RITE Project. It is impracticable to publish an NPRM because we must establish this safety zone by May 3, 2021 to respond to the potential safety hazards associated with heavy lift operations and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. The Coast Guard is publishing this rule to be effective through May 27, 2021 in case the project is delayed due to unforeseen circumstances.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and against the public interest because immediate action is needed to respond to the potential safety hazards associated with multiple construction vessels operating within a confined area of the East River.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port New York (COTP) has determined that potential hazards associated with the installation of the RITE Project TriFrame with three turbines and associated PATON marking this installation on May 3-6, 2021, will be a safety concern for anyone in the East River, east of Roosevelt Island, between the Roosevelt Island Bridge (mile 6.4) and Gibbs Point. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while eleven tugs, barges and work vessels are installing one TriFrame with three underwater turbines and three PATON marking the RITE Project area.

This rule establishes a temporary safety zone from May 3, 2021 through May 27, 2021. The safety zone will cover all navigable waters of the East River east of Roosevelt Island between the Roosevelt Island Bridge (mile 6.4) and Gibbs Point being used by vessels and personnel to retrieve, conduct maintenance, and reinstall Phase 1 of the RITE Project.

We anticipate enforcing the safety zone during the heavy lift operations for retrieval, maintenance, and reinstallation of the RITE Project TriFrame with three turbines and three associated PATON scheduled from approximately 3:30 p.m. on May 3, 2021, until 2:30 p.m. on May 6, 2021. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these constrained navigable waters while the project and PATON marking the project area are being retrieved for maintenance and reinstallation. When enforced, no vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The Coast Guard is publishing this rule to be effective through May 27, 2021 in case the project is delayed due to unforeseen circumstances.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of the East River for approximately 71 hours when vessel traffic is normally low. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, publish the zone in the Local Notice to Mariners, and the rule will allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 71 hours that will prohibit entry between the Roosevelt Island Bridge (mile 6.4) and Gibbs Point being used by vessels, machinery and personnel to retrieve, maintain, and reinstall Phase 1 of the RITE Project and three PATON marking the project area. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking with respect to this rule because it is impracticable. The Coast Guard received the initial report of larger explosive arc on May 18, 2021. It is impracticable to go through the full notice and comment rulemaking process because the Coast Guard must establish this temporary safety zone by May 24, 2021 and lacks sufficient time to provide a reasonable comment period and consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to protect personnel, vessels, and the marine environment in the navigable waters around the potentially hazardous explosive on-loading.

The Coast Guard is issuing this rule under authority 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port San Francisco has determined that potential hazards associated with the explosive on-loading will exist between May 24, 2021 and June 4, 2021. There will be a safety concern for anyone within a 4,000-ft radius of the explosive on-load. For this reason, this temporary safety zone is needed to protect personnel, vessels, and the marine environment in the navigable waters surrounding the potentially hazardous on-loading operations.

This rule establishes a temporary safety zone in the navigable waters around the explosives on-loading occurring at Military Ocean Terminal Concord (MOTCO), off Concord, CA for a five-day cargo operation period conducted between May 24, 2021 and June 4, 2021. The temporary safety zone will encompass the navigable waters of Suisun Bay, from surface to bottom, within a circle formed by connecting all points 4,000 feet out from the location of the explosive material at approximate position 38°3.46″ N, 122°0.90″ W or as announced via Broadcast Notice to Mariners. The projected explosive arc presents the need for a 4,000 foot radius, which is larger than the safety zone already established in 33 CFR 165.1198.

This regulation is necessary to keep persons and vessels away from the immediate vicinity of the explosive materials during cargo operations, to ensure the safety of personnel, vessels, and the marine environment. Except for persons or vessels authorized by the COTP or the COTP's designated representative, no person or vessel may enter or remain in the restricted area. A “designated representative” means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel or a Federal, State, or local officer designated by or assisting the COTP in the enforcement of the safety zone.

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

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

This regulatory action determination is based on the limited duration and narrowly tailored geographic area of the safety zone. Although this rule restricts access to the water encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified to ensure the safety zone will result in minimum impact. The vessels desiring to transit through or around the temporary safety zone may do so upon express permission from the COTP or the COTP's designated representative.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone in the navigable waters around the explosives on-loading occurring at Military Ocean Terminal Concord (MOTCO), off Concord, CA. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

On February 9, 2021 (86 FR 8736), EPA published a notice of proposed rulemaking (NPRM). In the NPRM, EPA proposed approval of Pennsylvania's plan for maintaining the 1997 ozone NAAQS in the York-Adams Area through February 13, 2028, in accordance with CAA section 175A. The formal SIP revision was submitted by PADEP on March 10, 2020.

On January 14, 2008 (73 FR 2163, effective February 13, 2008), EPA approved a redesignation request (and maintenance plan) from PADEP for the York-Adams Area. Per CAA section 175A(b), at the end of the eighth year after the effective date of the redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional 10 years, and in South Coast Air Quality Management District v. EPA, 1 the D.C. Circuit held that this requirement cannot be waived for areas, like the York-Adams Area, that had been redesignated to attainment for the 1997 ozone NAAQS prior to revocation and that were designated attainment for the 2008 ozone NAAQS. CAA section 175A sets forth the criteria for adequate maintenance plans. In addition, EPA has published longstanding guidance that provides further insight on the content of an approvable maintenance plan, explaining that a maintenance plan should address five elements: (1) An attainment emissions inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan. 2 PADEP's March 10, 2020 SIP submittal fulfills Pennsylvania's obligation to submit a second maintenance plan and addresses each of the five necessary elements.

As discussed in the February 9, 2021 NPRM, consistent with longstanding EPA's guidance, 3 areas that meet certain criteria may be eligible to submit a limited maintenance plan (LMP) to satisfy one of the requirements of CAA section 175A. Specifically, states may meet CAA section 175A's requirements to “provide for maintenance” by demonstrating that the area's design value  4 are well below the NAAQS and that it has had historical stability attaining the NAAQS. EPA evaluated PADEP's March 10, 2020 submittal for consistency with all applicable EPA guidance and CAA requirements. EPA found that the submittal met CAA section 175A and all CAA requirements, and proposed approval of the LMP for the York-Adams Area as a revision to the Pennsylvania SIP. The effect of this action makes certain commitments related to the maintenance of the 1997 ozone NAAQS federally enforceable as part of the Pennsylvania SIP. Other specific requirements of PADEP's March 10, 2020 submittal and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here.

EPA received one comment on the February 9, 2021 NPRM and a summary of the comment and EPA's response is provided herein. The comment received is in the docket for this rulemaking action.

Comment: The commenter asserts that the LMP should not be approved because “Pennsylvania identifies no actual contingency measures.” According to the commenter, a “contingency measure is supposed to be a known measure that can be quickly implemented by a state in order to prevent the violation of the NAAQS.” The comment asserts that current contingency measures are defective because they allegedly will not be evaluated and determined until after an exceedance of the NAAQS has occurred. The comment claims that EPA is aware Pennsylvania has a history of not meeting its CAA requirements on time, and that it can take Pennsylvania more than two years to implement a regulation, which would be too long to prevent a violation of the NAAQS.

Response: The commenter asserts that Pennsylvania identifies no actual contingency measures because the measures are not yet “evaluated” and “determined” and cannot be implemented before a violation of the NAAQS occurs. Because Pennsylvania identifies two regulatory and six non-regulatory contingency measures in general terms, EPA understands the comment's use of the term “evaluated” and “determined” must mean something like the specific measures identified by PADEP have not been fully promulgated and are not in effect at this time. If EPA's understanding is correct, EPA agrees with this fact, but does not agree that this has any bearing on the approvability of the particular contingency measures or of the overall LMP.

PADEP identifies six non-regulatory measures and two regulatory measures. The two regulatory measures are “additional controls” on consumer products and portable fuel containers. The six non-regulatory measures are: Voluntary diesel engine “chip reflash;” diesel retrofit for public or private local onroad or offroad fleets; idling reduction technology for Class 2 yard locomotives; idling technologies or strategies for truck stops, warehouses, and other freight-handling facilities; accelerated turnover of lawn and garden equipment; additional promotion of alternative fuel for home heating and agriculture use. As stated in the Calcagni memo, EPA's long-standing interpretation is that contingency measures for maintenance of the NAAQS are not required to be fully adopted in order to be approved. The commenter refers to a recent court case vacating, among other things, the contingency measure provisions in EPA's rule for implementing the 2015 ozone NAAQS, Sierra Club v. EPA, No. 15-1465 (D.C. Cir. January 29, 2021). It is possible that the commenter has conflated the contingency measure provisions at issue in that case, which pertained to attainment plans, and those at issue in this LMP, which pertain to maintenance plans. The contingency measure provisions for maintenance and attainment are found in two different sections of the CAA, with substantially different wording and requirements. The attainment plan contingency measures provisions in CAA Section 172(c)(9) require that the attainment plan have “specific measures” that can “take effect in any such case without further action by the State or the Administrator” if the area fails to make reasonable further progress or attain the NAAQS. 42 U.S.C. 7502(c)(9). Section 175A of the CAA sets forth the contingency measure requirements for maintenance areas. Section 175A(d) requires that the maintenance plan contain “such contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area.” 42 U.S.C. 7505a(d). Unlike Section 172(c)(9) there is no requirement under section 175A that the contingency measures be set forth with specificity or that they be able to take effect without further action by EPA or the State.

With this statutory background in mind, EPA does not agree that the plan should be disapproved due to PADEP's ability to promulgate a contingency measure in sufficient time to avert a violation of the NAAQS. As noted previously, CAA section 175A(d) mandates that a maintenance plan must contain “such contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area.” (emphasis added). The statute therefore does not include any requirement that a maintenance plan's contingency measures prevent a violation of the NAAQS, but rather only that those selected measures be available to address a violation of the NAAQS after it already occurs. Pennsylvania also elected to adopt a “warning level response,” which states that PADEP will consider adopting contingency measures if, for two consecutive years, the fourth highest eight-hour ozone concentrations at any monitor in the area are above 84 parts per billion (ppb). But this warning level response is not required under the CAA, and therefore we do not agree with the commenter that the plan should be disapproved based on the commenter's concern over the timeliness of the warning level response implementation.

Moreover, as a general matter, we do not agree that the schedules for implementation of contingency provisions in the LMP are insufficient. As noted, the CAA provides some degree of flexibility in assessing a maintenance plan's contingency measures—requiring that the plan contain such contingency provisions “as the Administrator deems necessary” to assure that any violations of the NAAQS will be “promptly” corrected. EPA's longstanding guidance for redesignations, the Calcagni Memo, also does not provide precise parameters for what strictly constitutes “prompt” implementation of contingency measures, noting that, for purposes of CAA section 175A, “a state is not required to have fully adopted contingency measures that will take effect without further action by the state in order for the maintenance plan to be approved.” Calcagni memo at 12. However, the guidance does state that the plan should ensure that the measures are adopted “expediently” once they are triggered, and should provide “a schedule and procedure for adoption and implementation, and a specific time limit for action by the state.” Id. We think the State's plan, which provides specific lists of regulatory and non-regulatory measures that the state would consider after evaluating and assessing what it believed to be the cause of increased ozone concentrations, and the specific timeframes it would use to expediently implement the various measures, meets the requirements of CAA section 175A.

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 26, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

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

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

Public water systems are the regulated entities required to measure contaminants in drinking water samples. In addition, EPA Regions as well as State and Tribal governments with authority to administer the regulatory program for public water systems under the Safe Drinking Water Act (SDWA) may measure contaminants in water samples. When EPA sets a monitoring requirement in its national primary drinking water regulations for a given contaminant, the Agency also establishes (in the regulations) standardized test procedures for analysis of the contaminant. This action makes alternative testing methods available for particular drinking water contaminants beyond the testing methods currently established in the regulations. Drinking water systems, in consultation with the laboratories that support their compliance monitoring, may choose to use a test procedure established in the existing regulations, an alternative testing method that was approved in prior expedited approval actions, or an alternative method approved in this action. Categories and entities that may ultimately be affected by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be interested in this action. Other types of entities not listed in the table could also have some interest. To determine whether your facility is affected by this action, you should carefully examine the applicability language in the Code of Federal Regulations (CFR) at 40 CFR 141.2 (definition of a public water system). If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

In this action, EPA is approving 17 analytical methods for determining contaminant concentrations in drinking water samples collected under SDWA. Regulated entities required to sample and monitor may use either the testing methods already established in existing regulations or the alternative testing methods being approved in this action or in prior expedited approval actions. The new methods are listed along with other methods similarly approved through previous expedited actions in the Code of Federal Regulations (CFR) at 40 CFR part 141, appendix A to subpart C and on EPA's drinking water methods website at https://www.epa.gov/dwanalyticalmethods.

When EPA determines that an alternative analytical method is “equally effective” ( i.e., as effective as a method that has already been promulgated in the regulations), SDWA allows EPA to approve the use of the alternative testing method through publication in the Federal Register (see SDWA section 1401(1)). EPA is using this streamlined approval authority to make 17 additional methods available for determining contaminant concentrations in drinking water samples collected under SDWA. EPA has determined that, for each contaminant or group of contaminants listed in Section III of this document, the additional testing methods being approved in this action are as effective as one or more of the testing methods already approved in the regulations for those contaminants. Section 1401(1) of SDWA states that the newly approved methods “shall be treated as an alternative for public water systems to the quality control and testing procedures listed in the regulation.” Accordingly, this action makes these additional 17 analytical methods legally available as options for meeting EPA's monitoring requirements.

This action does not add regulatory language, but does, for informational purposes, update an appendix to the regulations at 40 CFR part 141 that lists all methods approved under section 1401(1) of SDWA. Accordingly, while this action is not a rule, it is updating CFR text and therefore is being published in the “Final Rules” section of the Federal Register .

EPA is approving 17 methods that are equally effective relative to methods previously promulgated in the regulations. By means of this action, these 17 methods are added to appendix A to subpart C of 40 CFR part 141.

1. EPA Method 903.0, Revision 1.0. Alpha-Emitting Radium Isotopes in Drinking Water (USEPA 2021a). EPA Method 903.0 (USEPA 1980a) was published in the drinking water regulations at 40 CFR 141.25(a) as a screening method for radium-226. The approved method describes a single-point calibration, contains no quality control specifications, and provides no calculation for the drinking water detection limit. EPA Method 903.0, Revision 1.0 was developed in response to comments from stakeholders requesting a method revision that provides clearly defined calibration and quality control criteria to assure a more robust procedure capable of yielding consistent and reliable analytical results. The methodology relative to the approved method is unchanged. The importance of timing intervals is also discussed in the revised method. The primary interferences in radium-226 determination are due to activity contributed by radium-224 and, to a lesser degree, radium-223. Due to their short half-lives, the interferences due to radium-224 and radium-223 can be minimized if samples are held at least two weeks prior to counting.

The revised method contains detailed instructions on preparing an appropriate calibration curve based on the allowable yield range instead of relying on a single-point calibration. Alpha particle response is sensitive to the level of solid residue left in the final precipitate. A single-point calibration assumes that every sample will yield the same mass of solid precipitate. Assessing the alpha efficiency based on a yield range will improve the accuracy in the final calculated activity.

The revised method contains the quality control specifications that laboratories are expected to follow in order to obtain certification to analyze drinking water compliance samples. In addition to incorporation of specific quality control requirements and acceptance criteria, the revised method also allows the option to incorporate barium-133 as a radiochemical yield monitor. The currently approved method relies on gravimetric determination of the final barium sulfate precipitate to estimate the fractional yield of radium carried on the precipitate. Barium-133 is a non-interfering gamma emitter that is carried through the precipitation and complexation steps along with radium-226. Incorporation of a radiochemical yield monitor provides a sensitive option to assess yield based on activity instead of mass.

The revised method contains an expanded “calculations” section that includes the appropriate equation for determining the drinking water detection limit as defined in the regulations at 40 CFR 141.25(c).

EPA has determined that EPA Method 903.0, Revision 1.0 is equally effective for screening drinking water samples for radium-226, relative to the approved method. The basis for this determination is discussed in greater detail in Smith 2020b. Therefore, EPA is approving EPA Method 903.0, Revision 1.0 for determining alpha-emitting radium isotopes in drinking water. EPA Method 903.0 Rev. 1.0 is available at the National Service Center for Environmental Publications.

2. EPA Method 903.1, Revision 1.0. Radium-226 in Drinking Water Radon Emanation Technique (USEPA 2021b). EPA Method 903.1 (USEPA 1980b) was published in the drinking water regulations at 40 CFR 141.25(a) as a specific method for determination of radium-226. The approved method contains limited calibration information, no quality control specifications, no uncertainty calculation, and provides no calculation for the drinking water detection limit. As noted previously in the discussion about EPA Method 903.0, Rev. 1.0, EPA Method 903.1, Rev. 1.0 was also developed in response to comments from stakeholders requesting a method revision with calibration and quality control criteria.

The methodology in the revised method is unchanged and involves isolating the alpha-emitting radium isotopes through selective precipitation and complexation steps. Radon-222, the progeny of radium-226, is allowed to ingrow and is then purged into an alpha scintillation cell for subsequent counting.

The revised method contains the quality control specifications that laboratories are expected to follow in order to obtain certification to analyze drinking water compliance samples. In addition to incorporation of specific quality control requirements and acceptance criteria, the revised method provides additional options for assessing yield. The currently approved method specifies a barium sulfate precipitation step to estimate the fractional yield of radium carried on the precipitate. One option in the revised method allows the incorporation of barium-133 as a radiochemical yield monitor. Barium-133 is a non-interfering gamma emitter that is carried through the procedure along with radium-226 and counted directly without requiring an additional precipitation step. Another option for determining yield on the radium-containing solution is to use atomic spectroscopy techniques.

The revised method provides expanded uncertainty calculations based on the fact that each radon-222 atom yields three short-lived alpha-emitting progeny. When half-life is short relative to the counting time, and detector efficiency is high, such as that obtained with alpha scintillation cells, there is an increased probability of observing a count not only from the parent, but also from the progeny.

The revised method also contains an expanded “calculations” section that includes the equation for determining the drinking water detection limit as defined in the regulations at 40 CFR 141.25(c).

EPA has determined that EPA Method 903.1, Revision 1.0 is equally effective for determining radium-226 in drinking water samples, relative to the approved method. The basis for this determination is discussed in greater detail in Smith 2020c. Therefore, EPA is approving EPA Method 903.1, Revision 1.0 for the determination of radium-226 in drinking water. EPA Method 903.1 Rev. 1.0 is available at the National Service Center for Environmental Publications.

3. EPA Method 127. Determination of Monochloramine Concentration in Drinking Water (USEPA 2021c). The Surface Water Treatment Rule (SWTR) (USEPA 1989) specifies at 40 CFR 141.72(a)(4)(i) and at 40 CFR 141.72(b)(3)(i) that water systems must maintain a detectable disinfectant residual in the distribution system. The disinfectant residual can be in the form of total chlorine, combined chlorine or chlorine dioxide. In addition, 40 CFR 141.72(a)(3) and 40 CFR 141.74(b)(5) require that the residual disinfectant concentration in water entering the distribution system cannot fall below 0.2 mg/L for more than four hours. When the SWTR was promulgated, systems primarily relied on free chlorine as a secondary disinfectant to assure maintenance of a detectable residual in the distribution system. More systems have since switched to the use of chloramination in order to reduce formation of regulated disinfection byproducts. Water systems have relied on measurement of chloramines using the total chlorine N,N-diphenylenediamine (DPD) colorimetric procedure described in Standard Method 4500-Cl G-00 (APHA 2000), which is approved under the SWTR at 40 CFR 141.74(a)(2). Because the DPD reagent can react with a variety of other oxidants that may be present ( e.g., organochloramines and manganese), this approach may result in an overestimation of the total chlorine residual. Organochloramines have little to no disinfection efficacy.

Disinfection based on chloramination relies on producing monochloramine (MCA), dichloramine, and nitrogen trichloride. At typical drinking water distribution system pH levels (7-9), MCA predominates and is more effective and stable for disinfection than dichloramine or nitrogen trichloride. While no method was available for specific MCA measurement at the time the SWTR was promulgated, such capability now exists. EPA Method 127 was developed using commercially available reagents and instrumentation. Monochloramine in the presence of a cyanoferrate catalyst reacts with a substituted phenol to form an intermediate monoimine compound. The intermediate couples with excess substituted phenol to form a green-colored indophenol, which is proportional to the amount of monochloramine present in the sample. The indophenol can be measured using either a colorimeter or a spectrophotometer. It is not subject to the interferences observed with DPD determination and the technique is already used by water systems for (non-regulatory) process control monitoring or as part of a nitrification control plan. The method incorporates quality control specifications to assure robustness and performance.

In addition to internal studies by EPA, two public water systems (PWSs) that employ chloramination for disinfection participated in method validation studies, comparing the performance of EPA Method 127 to the performance of the approved DPD procedure. The validation study report (Alexander, Waters, and Wahman, 2020), summarizing the results from the PWSs' and EPA's studies, details the precision, accuracy, and sensitivity tests that were performed.

EPA has determined that EPA Method 127 is equally effective relative to the approved method for determining total chlorine as monochloramine in finished drinking water. The basis for this determination is discussed in greater detail in Alexander 2021. Therefore, EPA is approving EPA Method 127 for the determination of total chlorine as monochloramine in assessing both minimum disinfection residual at the entry point to the distribution system and detectable disinfectant residual within the distribution system under the SWTR. EPA Method 127 is available at the National Service Center for Environmental Publications.

1. ASTM International. EPA compared the most recent versions of eight ASTM International methods to the earlier versions of those methods that are currently approved in 40 CFR part 141. Most of the changes in the updated versions include additional quality control specifications.

Changes between the earlier approved version and the most recent version of each method are described more fully in Smith (2020a). Besides additional quality control, the revisions involve primarily editorial changes ( e.g., updated references, definitions, terminology, procedural clarifications, and reorganization of text). The revised methods are the same as the approved versions with respect to sample collection and handling protocols, sample preparation, analytical methodology, and method performance data; thus, EPA finds they are equally effective relative to the approved methods.

EPA is thus approving the use of the following ASTM methods for the contaminants and their respective regulations listed in the following table:

The ASTM methods are available from ASTM International, 100 Barr Harbor Drive, West Conshohocken, Pennsylvania 19428-2959 or http://www.astm.org.

1. Bio-Rad. Simultaneous Detection of Total Coliform Bacteria and Escherichia coli Using RAPID'E. coli 2 (REC2) in Drinking Water (Bio-Rad 2020). RAPID'E. coli 2 is a membrane-filter microbiological method for the simultaneous detection of total coliforms and E. coli in drinking water by filtration of a 100 mL sample of drinking water, and infusion of the filter with a growth and indicator medium during incubation. Total coliforms and E. coli are detected as being present or absent in 100 mL samples of drinking water by enzymatic cleavage of chromogenic substances with the formation of colored compounds after incubation. Drinking water methods approved for measuring total coliforms under the Revised Total Coliform Rule (RTCR) (USEPA 2013) are listed at 40 CFR 141.852(a)(5). Methods approved for measuring E. coli in drinking water under the RTCR and under the Ground Water Rule (GWR) (USEPA 2006) are listed at 40 CFR 141.402(c)(2) and 40 CFR 141.852(a)(5), respectively. RAPID'E. coli 2 is similar to other approved drinking water methods but uses proprietary chromogens for detection of total coliforms and E. coli. These chromogens result in distinctive colors for colonies of target bacteria. RAPID'E. coli 2 is able to detect total coliforms and E. coli in 24 ± 2 hours. Reagents for RAPID'E. coli 2 are available from the manufacturer. An Alternative Test Procedure (ATP) study was conducted to compare the method performance of RAPID'E. coli 2 to the performance of two approved methods, Standard Methods 9221 B (LTB/BGLB for total coliforms) and 9221 F (LTB/EC-MUG for E. coli) (APHA 1998). The comparison study involved analyses of 200 drinking water samples—20 replicate samples that were inoculated with very low densities of chlorine-stressed total coliforms or E. coli obtained from 10 geographically dispersed waste waters. Method specificity was evaluated using an approximately 50:50 array of positive and negative cultures (as measured by RAPID'E. coli 2), transferring these cultures to the reference methods, and observing the reaction on the reference media. The ATP validation study report (Bio-Rad, 2019) details the study design and method data evaluation. EPA has determined that RAPID'E. coli 2 is equally effective relative to the approved Standard Method 9221 B for total coliforms under the RTCR, and Standard Method 9221 F for E. coli under the RTCR and GWR. The basis for this determination is discussed in Sinclair (2019). Therefore, EPA is approving the RAPID'E. coli 2 method for determining total coliforms and E. coli in drinking water.

A copy of the RAPID'E. coli 2 method is available from Bio-Rad Laboratories, 2000 Nobel Drive, Hercules, California 94547.

2. Maine Health Environmental Testing Laboratory (HETL). ME 531, Version 1.0. Measurement of N-Methylcarbamoyloximes and N-Methylcarbamates in Drinking Water by LC-MS/MS (Maine HETL 2019a). ME 531 is a method for the measurement of carbofuran and oxamyl in drinking water by liquid chromatography tandem mass spectrometry (LC-MS/MS). In this method, an aliquot from a preserved drinking water sample is injected into a LC system coupled to a triple quadrupole mass spectrometer. Chromatographic separation is achieved through use of an appropriate liquid chromatography analytical column and detection is achieved by operating a triple quadrupole mass spectrometer in MS/MS mode. Quantitation is determined by comparing measured response to a calibration curve generated with known analyte standards and the internal standard technique.

Carbofuran and oxamyl are regulated drinking water contaminants as specified at 40 CFR 141.61(c). The currently approved methods for the analysis of carbofuran and oxamyl are listed in 40 CFR 141.24(e)(1). Approved methods EPA Method 531.1 (USEPA 1995) and EPA Method 531.2 (USEPA 2001) use liquid chromatography and post-column derivatization to convert carbofuran and oxamyl to form highly fluorescent isoindoles, followed by fluorescence detection, which is sensitive but nonspecific. ME 531 reduces the amount of hazardous waste produced because it measures the contaminants directly without the need for derivatization. The method also increases efficiency of analysis time and provides more accurate results due to the higher sensitivity and specificity of LC-MS/MS in the determination of carbofuran and oxamyl in finished drinking water.

A laboratory validation study was conducted to evaluate the performance of ME 531. Multiple drinking water matrixes were used in the validation study. Precision, accuracy, and quantitation limit data were collected from the drinking water matrixes fortified with varying concentrations of carbofuran and oxamyl standards. The results are summarized in the validation study report (Maine HETL 2019b). EPA has determined that ME 531 is equally effective relative to the approved EPA Methods 531.1 and 531.2. The basis for this determination is discussed in Adams 2020a. Therefore, EPA is approving ME 531 for the analysis for carbofuran and oxamyl in drinking water. ME 531 can be obtained from Maine Health and Environmental Testing Lab, 221 State Street, Augusta, Maine 04330.

3. Palintest. ChloroSense, Rev. 1.1. Free and Total Chlorine in Drinking Water by Amperometry using Disposable Sensors (Palintest 2020a). ChloroSense, Rev. 1.1 is a method for the determination of free available and total chlorine, including hypochlorous acid, hypochlorite ion, and undissociated chlorine, in drinking water by amperometry using pre-calibrated disposable sensors. In this method, free available chlorine reacts with 3,3′,5,5′ tetramethylbenzidine (TMB) and the oxidized product is electrochemically reduced at the surface of the free chlorine electrode. Free available chlorine and combined chlorine react with potassium iodide (KI) to liberate iodine. The iodine can be reduced electrochemically at the surface of the total chlorine electrode. The current that flows in each case is proportional to the amount of free available chlorine or total available chlorine. The current is converted to mg Cl/L by reference to calibration parameters stored in the instrument software.

The currently approved methods for the analysis of free and total chlorine in drinking water are listed in the regulations at 40 CFR 141.131(c)(1) and at 40 CFR 141.74(a)(2). ChloroSense Rev. 1.0 (Palintest 2009) was approved as being equally effective, relative to the approved Standard Method 4500-Cl D-00 (APHA 2000) for free and total chlorine, in the November 10, 2009 expedited methods approval action (USEPA 2009). ChloroSense, Rev. 1.1 is a modified version of ChloroSense, Rev. 1.0 that incorporates new hardware. The revision also clarifies language about method flexibility that was incorporated in Rev. 1.0. The modifications made for Rev. 1.1 did not include any changes to the analytical reagents or method chemistry.

EPA reviewed the changes that were made and has determined that ChloroSense, Rev. 1.1 is equally effective relative to the previously approved ChloroSense, Rev. 1.0. The basis for this determination is discussed in Adams 2020b. Therefore, EPA is approving ChloroSense, Rev. 1.1, for the analysis of free and total chlorine in drinking water. ChloroSense, Rev. 1.1, can be obtained from Palintest Ltd, 400 Corporate Circle, Suite J, Golden, Colorado 80401.

4. Palintest. Method 1001, Rev. 1.1. Lead in Drinking Water by Differential Pulse Anodic Stripping Voltammetry (Palintest 2020b). Method 1001, Rev. 1.1 is a method for the determination of total recoverable lead in drinking water using differential pulse anodic stripping voltammetry (DPASV). In this method, a 50-mL aliquot of acid-preserved or acid-digested sample is neutralized with sodium hydroxide. A portion of the sample is decanted to a sample tube, buffered to pH 4, and conditioned with an excess of supporting electrolyte. A decomplexing agent is added to release lead from polyphosphate complexes. The lead in the conditioned sample is determined by DPASV, using a disposable sensor. This is achieved by concentrating the lead in the sample by plating onto the working electrode of the disposable sensor and then stripping it back into solution by raising the electrode potential. As the lead returns to solution a peak of current is detected. The peak potential identifies the metal, and the peak height is proportional to the concentration of the lead.

The currently approved methods for the analysis of total recoverable lead in drinking water are listed in 40 CFR 141.23(k)(1). Method 1001, Rev. 1.1 revises the currently approved Method 1001 (Palintest 1999) by allowing the use of new hardware, the streamlined Kemio instrumentation, which allows for the analysis of multiple contaminants. The modifications made for this method did not include any changes to the analytical reagents or method chemistry. Performance of Method 1001, Rev. 1.1. was compared with that of the approved Method 1001. The Kemio instrumentation in Method 1001, Rev.1.1 had precision and accuracy results comparable to those for instrumentation in the approved Method 1001. The Method Detection Limit (MDL) in the new method also improved from 2 µg/L to 1 µg/L using the Kemio instrumentation. EPA has determined that Method 1001, Rev. 1.1 is equally effective relative to the approved Method 1001. The basis for this determination is discussed in Adams 2020c. Therefore, EPA is approving Method 1001, Rev. 1.1 for the analysis of total recoverable lead in drinking water. Method 1001, Rev. 1.1 can be obtained from Palintest Ltd, 400 Corporate Circle, Suite J, Golden, Colorado 80401.

5. Palintest. ChlordioX Plus, Rev. 1.1. Chlorine Dioxide and Chlorite in Drinking Water by Amperometry using Disposable Sensors (Palintest 2020c). ChlordioX Plus, Rev. 1.1 is a method for the determination of chlorine dioxide and chlorite in drinking water by amperometry using pre-calibrated disposable sensors. Chlorine dioxide present in the sample can be reduced directly at the surface of the sensor. The current that flows is directly proportional to the amount of chlorine dioxide in the sample. To determine chlorite, any chlorine dioxide in the sample must be removed. This is done by degassing the sample using a degassing unit. Chlorite is determined by first adding potassium iodide (KI) to the sample at a pH where the chlorite does not react but any free or total chlorine in the sample does react to liberate iodine. The amount of iodine released is reduced at the surface of the sensor. The current that flows is directly proportional to the amount of free and total chlorine in the sample (Reading A). The sample is then acidified by the addition of dilute hydrochloric acid. The iodide then reacts with chlorite and free and combined chlorine to release iodine. The amount of iodine released is reduced at the surface of the sensor. The current that flows is directly proportional to the amount of chlorite and free and combined chlorine in the sample (Reading B). The amount of chlorite can then be calculated by subtracting Reading A from Reading B. The current is converted to mg analyte/L by reference to calibration parameters stored in the instrument software.

The currently approved methods for the analysis of chlorine dioxide in drinking water are listed at 40 CFR 141.131(c)(1) and at 40 CFR 141.74(a)(2), and the approved methods for daily monitoring of chlorite are listed in 40 CFR 141.131(b)(1). ChlordioX Plus, Rev. 1.0 (Palintest 2013) was approved as being equally effective, relative to the approved Standard Method 4500-ClO 2 E (APHA 1998) for the analysis of chlorine dioxide and chlorite in drinking water, in the June 19, 2014 expedited methods approval action (USEPA 2014). ChlordioX Plus, Rev. 1.1 is a modified version of ChlordioX Plus, Rev. 1.0, which incorporates new hardware. The revision also clarifies language about method flexibility incorporated in the previous version. The modifications made for this method did not include any changes to the analytical reagents or method chemistry.

EPA reviewed the changes that were made and has determined that ChlordioX Plus, Rev. 1.1 is equally as effective relative to the approved ChlordioX Plus, Rev. 1.0. The basis for this determination is discussed in Adams 2020d. Therefore, EPA is approving ChlordioX Plus, Rev. 1.1 for the analysis of chlorine dioxide and daily monitoring of chlorite in drinking water. ChlordioX Plus, Rev. 1.1 can be obtained from Palintest Ltd, 400 Corporate Circle, Suite J, Golden, Colorado 80401.

6. Neogen. Modified Colitag TM , Version 2.0. Modified Colitag TM Test Method for the Simultaneous Detection of Total Coliforms and E. coli in Water (Neogen 2020). Modified Colitag TM is a method that detects cleavage of chromogenic substrates to determine if total coliforms and E. coli are present in a 100-mL drinking water sample within 16 to 48 hours of incubation. The method can be used in a most-probable-number (MPN) format, provided the sum of all the individual portions of the sample total 100 mL.

Modified Colitag TM , Version 2.0 is an updated revision of Modified Colitag TM (CPI International 2009), which is approved for total coliforms and E. coli at 40 CFR 141.852(a)(5). Modified Colitag TM was approved in EPA's June 8, 2010 expedited methods approval action (USEPA 2010) for determining E. coli under the Ground Water Rule at 40 CFR 141.402(c)(2).

Modified Colitag TM , Version 2.0 provides expanded procedural guidance on the use of the various most-probable-number formats, including multiple tube MPN, the MPNPlate TM , and the MPNTray TM options.

EPA reviewed the revisions that were made and determined Modified Colitag TM , Version 2.0 is equally effective relative to the originally-approved Modified Colitag TM . The basis for this determination is discussed in Best 2020. Therefore, EPA is approving Modified Colitag TM , Version 2.0 for determination of total coliforms and E. coli in drinking water. Modified Colitag TM, Version 2.0 can be obtained from Neogen Corporation, 620 Lesher Place, Lansing, Michigan 48912.

As noted in Section II of this action, under the terms of SDWA section 1401(1), this streamlined method approval action is not a rule. Accordingly, the Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, does not apply because this action is not a rule for purposes of 5 U.S.C. 804(3). Similarly, this action is not subject to the Regulatory Flexibility Act because it is not subject to notice and comment requirements under the Administrative Procedure Act or any other statute. In addition, because this approval action is not a rule, but simply makes alternative testing methods available as options for monitoring under SDWA, EPA has concluded that other statutes and executive orders generally applicable to rulemaking do not apply to this approval action.

For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR part 141 as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives, new and substantially improved construction, and development in general from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with NFIP regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date listed in the third column. As of that date, flood insurance will no longer be available in the community. FEMA recognizes communities may adopt and submit the required documentation after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. Their current NFIP participation status can be verified at anytime on the CSB section at fema.gov .

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the published FIRM is indicated in the fourth column of the table. No direct federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. FEMA has determined that the community suspension(s) included in this rule is a non-discretionary action and therefore the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) does not apply.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

The Mid-Atlantic Fishery Management Council manages the blueline tilefish fishery north of the Virginia/North Carolina border under the Tilefish Fishery Management Plan (FMP), which outlines the Council's process for setting annual specifications. Regulations implementing the Tilefish FMP appear at 50 CFR part 648, subparts A and N, which require the Council to recommend acceptable biological catch (ABC), annual catch limit (ACL), annual catch target (ACT), total allowable landings (TAL), and other management measures, for up to 3 years at a time. On November 19, 2018, we proposed 2019 specifications for the blueline tilefish fishery and announced projected specifications for 2020 and 2021 based on Council recommendations (83 FR 58219). Public comment was accepted through December 4, 2018. We published a final rule implementing the 2019 specifications on February 12, 2019 (84 FR 3341). On February 18, 2020, we published a rule finalizing the 2020 specifications (85 FR 8765) and restating the projected 2021 specifications.

At the end of each fishing year, we evaluate available catch information and determine if the ACL for either commercial or recreational sector of the fishery has been exceeded. If the commercial ACL is exceeded, the regulations at 50 CFR 648.293 require a pound-for-pound reduction in a subsequent fishing year. On November 21, 2020, we closed the commercial blueline tilefish fishery because we projected it reached 100 percent of the TAL (85 FR 74919; November 24, 2020). Final 2020 data only recently became available because of the time needed to allow any late reports from fishing vessels and dealers to be submitted and to ensure all reports go through a thorough quality control process. When final 2020 catch data were analyzed, we determined the commercial sector had landed 108 percent of the commercial TAL. There is no new biological information that would require altering the projected 2021 specifications beyond adjusting the commercial ACL for the overage that occurred in 2020. As a result, we are announcing the final specifications for fishing year 2021, as projected in the final rules implementing 2019 and 2020 specifications and adjusted for the commercial overage in fishing year 2020 (See Table 1).

All other management measures in the blueline tilefish fishery, including commercial and recreational possession limits, will remain unchanged for the 2021 fishing year.

The FMP allows for the previous year's specifications to remain in place until replaced by a subsequent specifications action (rollover provision).

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this rule is consistent with the Tilefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable laws.

The Assistant Administrator for Fisheries, NOAA finds it is contrary to the public interest to provide for prior notice and an opportunity for public comment, under to authority at 5 U.S.C. 553(b)(B). The proposed rule for 2019-2021 specifications (83 FR 58219; November 19, 2018) provided the public with the opportunity to comment on the specifications for 2019, and projected 2020 and 2021 specifications. All comments received were addressed in the final rule (84 FR 3341; February 12, 2019). A final rule on February 18, 2020 (85 FR 8765), finalized the 2020 specifications and restated the projected 2021 specifications. The only change to the specifications for fishing year 2021 is a small adjustment to the commercial ACL for an overage in 2020 that is required by the regulations. The public has been aware of the overage in the commercial sector of the fishery through information on a public quota monitoring web page and through an announcement at the Council meeting in April. Implementing this adjustment to the 2021 fishing year is a necessary accountability measure that the FMP designed to prevent overfishing, and doing so in a timely manner is necessary to reduce the likelihood of additional overages this year.

Similarly, the need to implement these measures in a timely manner, constitutes good cause under authority contained in 5 U.S.C. 553(d)(3), to establish an effective date less than 30 days after date of publication. The public and fishing industry participants expect this action because we previously alerted the public in the proposed and final rules that we would conduct this review in interim years of the status quo multi-year specifications and announce the final quota. Final analysis of 2020 data only recently became available because of the time needed to allow any late reports from fishing vessels and dealers to be submitted and to ensure all reports go through a thorough quality control process. Implementing the new commercial TAL as soon as possible will allow the public to monitor landings against this new limit through our weekly quota monitoring updates available on our website for the remaining six months in the 2021 fishing year. This could allow the industry to anticipate or even avoid a closure by slowing the pace of as landings as they approach the TAL.

This final rule is exempt from review under Executive Order 12866.

This final rule does not duplicate, conflict, or overlap with any existing Federal rules.

This final rule does not contain a collection of information requirement for the purposes of the Paperwork Reduction Act.

The Chief Counsel for Regulation for the Department of Commerce certified to the Small Business Administration that the 2019-2021 blueline tilefish specifications rulemaking would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act. No comments were received that would change the initial certification. Because advance notice and the opportunity for public comment are not required for this action under the Administrative Procedure Act, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., do not apply to this rule. Therefore, no new regulatory flexibility analysis is required and none has been prepared.

The final rule published May 14, 2021, (86 FR 26425), describes annual management measures for managing the harvest of salmon in the ocean waters under the jurisdiction of the Pacific Fishery Management Council (Council). This document corrects an error in the May 14, 2021 rule by adding management measures for the recreational salmon fishery in the Monterey management area to make the 2021 salmon fisheries consistent with the Council's recommendations.

The 2021 salmon management measures (86 FR 26425, May 14, 2021), Section 2, part A describes the recreational salmon fisheries in the Monterey management area. There is a transcription error in this part of the rule, rendering it inconsistent with the Council's recommendations for the 2021 salmon management measures, as adopted at their April 2021 meeting. The May 14, 2021 rule omitted the May 16-September 30, 2021 fishery in the Monterey management area, which was recommended by the Council.

In FR Doc. 2021-10035, appearing on page 26425, in the Federal Register of Friday, May 14, 2021, the following correction is made:

On page 26435, in the third column, the description of the recreational salmon fishery from Pigeon Point to U.S./Mexico border (Monterey) management area is corrected to read as follows:

April 3-May 15 (C.6). Open seven days per week. All salmon except coho salmon, two salmon per day (C.1). Chinook salmon minimum size limit of 24 inches total length (B). See gear restrictions and definitions (C.2, C.3).

May 16-September 30 (C.6). Open seven days per week. All salmon except coho salmon, two salmon per day (C.1). Chinook salmon minimum size limit of 20 inches total length (B). See gear restrictions and definitions (C.2, C.3).

In 2022, season opens April 2 for all salmon except coho salmon, two salmon per day (C.1). Chinook salmon minimum size limit of 24 inches total length (B); and the same gear restrictions as in 2021 (C.2, C.3). This opening could be modified following Council review at its March 2022 meeting.

NMFS is issuing this rule pursuant to 305(d) of the MSA. The reason for using this regulatory authority is: In a previous action taken pursuant to section 304(b), the Council designed the Fishery Management Plan (FMP) to authorize NMFS to take this action pursuant to MSA section 305(d). See 50 CFR 660.408. These regulations are being promulgated under the authority of 16 U.S.C. 1855(d) and 16 U.S.C. 773(c). The NMFS Assistant Administrator has determined that this final rule is consistent with the Pacific Coast Salmon FMP and other applicable law.

The Assistant Administrator for Fisheries, NOAA (AA) finds good cause under 5 U.S.C. 553(b)(B), to waive the requirement for prior notice and opportunity for additional public comment for this action as notice and comment would be unnecessary and contrary to the public interest. Notice and comment are unnecessary and contrary to the public interest because this action simply corrects an error in the final rule and makes the rule consistent with the Council's recommended action. This correction does not affect the results of analyses conducted to support management decisions in the salmon fishery nor change the total catch of salmon. In addition, it is important that the error be corrected as quickly as possible. The correction eliminates an inconsistency between the May 14, 2021 rule and the Council's recommendation that may lead to confusion for the public and potentially prevent the prosecution of fisheries. No aspect of this action is controversial and no change in operating practices in the fishery is required. For the same reasons, pursuant to 5 U.S.C. 553(d), the AA finds good cause to waive the 30-day delay in effective date.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

This final rule is exempt from review under Executive Order 12866.

This final rule will implement regulations to temporarily remove vessel use caps in Areas 4A, 4B, 4C, and 4D in 2021. The existing vessel use caps were recommended by the Council and implemented by NMFS as part of the IFQ Program (58 FR 59375; November 9, 1993) as regulations that were in addition to, and not in conflict with, those adopted by the IPHC, consistent with the Halibut Act (16 U.S.C. 773c(c)).

The following sections describe the IFQ Program, halibut IFQ vessel use caps, the rationale and effects of temporarily removing vessel use caps in Areas 4A, 4B, 4C, and 4D, and the regulations that will be implemented under this final rule.

Commercial halibut and sablefish fisheries in Alaska are subject to regulation under the IFQ Program and the CDQ Program (50 CFR part 679). A key objective of the IFQ Program is to support the social and economic character of the fisheries and the coastal fishing communities where many of these fisheries are based. For more information about the IFQ Program, please refer to Section 2.3.1 of the Analysis. Because this rule is specific to the halibut IFQ fishery and not the sablefish component of the IFQ Program that is managed under the Magnuson Stevens Act's authorization, reference to the IFQ Program in this preamble is specific to halibut unless otherwise noted.

Under the IFQ Program, access to the commercial halibut fisheries is limited to those persons holding halibut quota share (QS). Quota share is an exclusive, revocable privilege that allows the holder to harvest a specific percentage of the annual commercial catch limit in the halibut fishery. In addition, QS is designated for specific geographic areas of harvest, a specific vessel operation type (catcher vessel (CV) or catcher/processor (CP)), and for a specific range of vessel sizes that may be used to harvest the halibut (vessel category). Out of the four vessel categories of halibut QS, Category A shares are designated for CPs that process their catch at sea ( e.g., freezer longline vessels) and do not have a vessel length designation, whereas Category B, C, and D shares are designated to be fished on CVs that meet specific length designations (§ 679.40(a)(5)).

In the IFQ Program, NMFS annually issues IFQ permits to each QS holder. An annual IFQ permit authorizes the permit holder to harvest a specified amount of the IFQ species in an Area from a specific operation type and vessel category. IFQ is expressed in pounds (lb) and is based on the amount of QS held in relation to the total QS pool for each Area with an assigned catch.

The IFQ Program established: (1) Limits on the maximum amount of QS that a person could use ( i.e., be used to receive annual IFQ) (§ 679.42(f)); (2) limits on the number of small amounts of indivisible QS units, known as QS blocks, that a person can hold (§ 679.42(g)); (3) limits on the ability of IFQ assigned to one CV vessel category (vessel category B, C, or D IFQ) to be fished on a different (larger) vessel category with some limited exceptions (§ 679.42(a)(2)); and (4) limits on the maximum amount of IFQ that may be harvested by a vessel during an IFQ fishing year (§ 679.42(h)). Only qualified individuals and initial recipients of QS are eligible to hold CV QS and they are required to be on the vessel when the IFQ is being fished, with a few limited exceptions (§ 679.41(h)(2)). All of these limitations were established to retain the owner-operator nature of the CV IFQ fisheries, limit consolidation of QS, and ensure the annual IFQ is not harvested on a small number of larger vessels.

On March 30, 2021, NMFS published an emergency rule to modify the temporary transfer provision of the IFQ Program for the commercial halibut and sablefish fisheries for the 2021 IFQ fishing year (86 FR 16542, March 30, 2021). That emergency rule allows QS holders to transfer IFQ to otherwise eligible recipients. This transfer flexibility promotes the complete and efficient harvest of the IFQ fisheries. Furthermore, that emergency rule temporarily alleviates impacts of unforeseen economic and social conditions in the IFQ fisheries. For example, QS holders will have more flexibility to select vessels to harvest their IFQ which may increase the number of vessels available to harvest (Section 2.6 of the Analysis). That emergency rule does not modify other provisions of the IFQ Program, including vessel use caps that may constrain fishing operations.

The IFQ Program established vessel use caps to limit the maximum amount of halibut that could be harvested on any one vessel. The limits are intended to help ensure that a minimum number of vessels are engaged in the halibut fishery and to address concerns about the socio-economic impacts of consolidation under the IFQ Program. For additional detail on vessel use caps, see the preamble to the proposed rule for the IFQ Program (57 FR 57130; December 3, 1992).

This final rule refers to halibut catch limits, commercial halibut allocations, and vessel use caps in net pounds or net metric tons. Net pounds and net metric tons are defined as the weight of halibut from which the gills, entrails, head, and ice and slime have been removed. This terminology used in this final rule is consistent with the IPHC, which recommends fishery catch limits (FCEY) and calculates halibut mortality in net pounds.

Relevant to this final rule, regulations at § 679.42(h)(1) state: “No vessel may be used, during any fishing year, to harvest more IFQ halibut than one-half percent of the combined total catch limits of halibut for IFQ regulatory areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E.” Applying this regulation to 2021 yields a vessel use cap of 92,848 lb (42.1 mt). This vessel use cap applies to vessels harvesting IFQ halibut in the areas subject to this final rule: Areas 4A, 4B, 4C, and 4D.

In addition, regulations at § 679.42(h)(1)(ii) state that “No vessel may be used, during any fishing year, to harvest more than 50,000 lb (22.7 mt) of IFQ halibut derived from QS held by a CQE.” Compared to § 679.42(h)(1)'s vessel use cap, § 679.42(h)(1)(ii) imposes an even more restrictive vessel use cap on vessels that are harvesting IFQ halibut derived from QS held by a community quota entity (CQE). A CQE is a NMFS-approved non-profit organization that represents small, remote, coastal communities that meet specific criteria to purchase and hold CV halibut QS on behalf of an eligible community. The CQE holds QS and leases the IFQ derived from the underlying QS to community residents. Relevant to this final rule, a CQE is authorized to hold halibut QS in Area 4B on behalf of the community of Adak, Alaska (79 FR 8870; February 14, 2014). Any vessel harvesting halibut IFQ derived from the QS held by the CQE representing the community of Adak is subject to this more restrictive 50,000 lb (22.7 mt) vessel use cap.

On February 10, 2021, at their regularly-scheduled meeting, the Council addressed requests from IFQ fishery stakeholders to remove vessel use caps applicable to the halibut IFQ fisheries (Sections 1 and 2.3 of the Analysis). These requests were in part based on the success of the 2020 final rule that removed vessel use caps in Area 4 that provided flexibility to the IFQ halibut fleet. In 2020, vessels harvested up to or over the vessel use cap in multiple Area 4 areas under the previous rule lifting these restrictions. Based on stakeholder engagement and considering a range of factors, the Council recommended, and now NMFS issues, this final rule. These factors include, but are not limited to:

• The unforeseen complications of health advisories and government-issued travel policies impose on fishing operations in the 2021 fishing year, particularly in the remote BSAI halibut IFQ fishery. These advisories and policies may restrict the ability for vessels and crew to operate and fully harvest their IFQ (Sections 2.3 and 2.5 of the Analysis);

• The relatively large proportion of vessels participating in the Area 4A, 4B, 4C, and 4D halibut IFQ fishery that are operating near current vessel use caps, thereby limiting the amount of additional IFQ that could be harvested on vessels operating in those Areas (Section 2.3 of the Analysis);

• The minimum number of vessels required to fully harvest the IFQ held by the affected CQE representing the community of Adak, Alaska, exceeds the number of vessels owned by residents of the community (Sections 2.3.1.6 and 2.3.1.7 of the Analysis);

• Reduced ex-vessel prices due to poor market conditions that may further limit the number of vessels that can economically harvest their halibut IFQ in Areas 4A, 4B, 4C, and 4D (Sections 2.3.1.2 and 2.3.1.8 of the Analysis); and

• Public health risks, combined with health measures at specific remote ports in Areas 4A, 4B, 4C, and/or 4D, which may further limit the ability of smaller vessels to operate because processing facilities and vessel services are not available. For example, in 2020, the local St. Paul fleet did not operate due to public health risks and adverse economic conditions (Section 2.3 of the Analysis).

After considering these factors, the Council recommended “expedited action” to remove vessel use caps for the halibut IFQ fishery in Areas 4A, 4B, 4C, and 4D. NMFS accordingly established an expedited 15-day comment period for the proposed rule. Due to the widespread industry support and the Council's request for expedited rulemaking and NMFS determination that this final rule should take effect before fishing vessels approach their use caps.

The Council did not recommend, and this final rule does not include, measures to relieve the vessel use caps for the sablefish IFQ fishery, or for other halibut IFQ Areas, due to the larger number of vessels that are currently active in the sablefish IFQ fishery and in these other halibut Areas. Detailed information indicating that halibut harvests in these other IFQ Areas would not be constrained under the current vessel use caps is available in Section 2.3.1.4 of the Analysis.

The Council and NMFS also considered the potential impacts on halibut conservation and management if vessel use caps vessels in Areas 4A, 4B, 4C, and 4D are relieved for the 2021 IFQ fishing year. The final regulatory amendments in this rule will temporarily add a regulation that would remove vessel use caps in Areas 4A, 4B, 4C, and 4D because the vessel use caps may restrict the harvest of halibut in these areas, and less restrictive management measures are needed as soon as practicable to ensure the more complete harvest of the halibut resource during the 2021 IFQ fishing year. This final rule is responsive to the uncommon circumstances in the fishery in 2021 and does not modify the vessel use cap provisions in future years, consistent with the Council's goals in implementing vessel use caps in this fishery (Section 2.3 in the Analysis). This final rule does not modify other elements of the IFQ Program. This final rule does not increase or otherwise modify the 2021 halibut catch limits adopted by the IPHC and implemented by NMFS (86 FR 13475, March 9, 2021). This final rule does not modify any other conservation measures recommended by the IPHC and adopted by NMFS, nor any other conservation measures implemented by NMFS independent of the IPHC. This final rule does not modify other limitations on the use of QS and IFQ described in the previous sections of this preamble.

After considering the best available information, the Convention, the status of the halibut resource, and the potential social and economic costs of maintaining the vessel use cap limits described in this preamble, this final rule adds a new, temporary provision at 50 CFR 679.42(h)(1)(iii) to remove vessel use caps for vessels harvesting IFQ halibut in Areas 4A, 4B, 4C, and 4D during the 2021 IFQ fishing year. Because under existing regulations, vessel use caps are applied at the fishery level including harvest in all areas, the final regulations clarify that harvest of IFQ halibut in regulatory areas 4A, 4B, 4C, and 4D is excluded from the calculation of vessel use caps in IFQ regulatory areas 2C, 3A, or 3B during the 2021 IFQ fishing year.

NMFS did not make changes to the regulatory text in this final rule from the regulatory text in the proposed rule.

No comment letters were received during the comment period for the proposed rule (86 FR 19207, April 13, 2021).

Regulations governing the U.S. fisheries for Pacific halibut are developed by the International Pacific Halibut Commission (IPHC), the Pacific Fishery Management Council, the North Pacific Fishery Management Council (Council), and the Secretary of Commerce. Section 5 of the Northern Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c) allows the Regional Council with authority over a particular geographical area, to develop regulations governing the allocation and catch of halibut in U.S. Convention waters as long as those regulations do not conflict with IPHC regulations. This action is consistent with the Council's authority to allocate halibut catches among fishery participants in the waters in and off Alaska.

There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date. It is important that this final rule is implemented in a timely manner before fishing vessels approach their use caps. The IFQ halibut fishing season is already underway and began on March 7, 2021. A consequence of delayed effectiveness of this final rule is that a vessel's fishing activity may be limited unnecessarily if a vessel reaches their use cap prior to the effective date of this rule. Additionally, an expedited implementation provides much needed flexibility. Any delay in the effective date of this final rule would be contrary to public interest. Therefore, there is good cause to advance this thoroughly considered action.

This rule has been determined to be not significant for purposes of Executive Order 12866.

A Regulatory Impact Review was prepared to assess costs and benefits of available regulatory alternatives. A copy of this analysis is available from NMFS (see ADDRESSES ). Specific aspects of the economic analysis are discussed below in the Final Regulatory Flexibility Analysis section.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides”. Copies of the proposed rule, this final rule, and the small entity compliance guide are available on the Alaska Region's website at: https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/pacific-halibut-and-sablefish-individual-fishing-quota-ifq-program.

This Final Regulatory Flexibility Analysis (FRFA) incorporates the initial regulatory flexibility analysis (IRFA) and the analyses completed to support this action. No public comments were received for the proposed rule or in response to the IRFA. Section 604 of the Regulatory Flexibility Act (RFA) requires that when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code, after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency shall prepare a FRFA. Section 604 describes the required contents of a FRFA: (1) A statement of the need for and objectives of the rule; (2) a statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made to the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in this final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

A description of this final rule and the need for and objectives of this rule are contained in the preamble to this final rule and the preamble to the proposed rule (citation). That description is not repeated here.

NMFS published the proposed rule on April 13, 2021 (86 FR 19207). An IRFA was prepared and included in the Classification section of the preamble to the proposed rule. The comment period for the proposed rule closed on April 28, 2021. NMFS did not receive any comments. The Chief Counsel for Advocacy of the SBA did not file any comments on the proposed rule.

NMFS did not receive any comments on the proposed rule or specifically on the IRFA.

This final rule directly regulates the owners and operators of vessels that are used to harvest halibut IFQ in IFQ Areas 4A, 4B, 4C, or 4D. From 2014 through 2019, (the most recent year with complete data) 119 unique vessels harvested halibut IFQ in IFQ Areas 4A, 4B, 4C, or 4D. Based on average annual gross revenue data, including affiliations, all but three of the vessels that landed halibut between 2014 and 2019 are considered small entities based on the $11 million threshold. Additional detail is included in Sections 2.8 in the Analysis prepared for this final rule (see ADDRESSES ).

This action would relieve a restriction which could facilitate harvesters to fully utilize IFQ allocations in Area 4 in the 2021 fishing season. Although it is difficult to predict the direct impact of the regulatory changes implemented for the 2020 IFQ seasons, harvest rates achieved in 2020 relative to all other years (2006-2020) likely indicates the regulatory flexibilities implemented in 2020 (both the temporary transfer provisions as well the vessel use cap exemption) had some positive impact on the harvest rates, as described in Section 2.6 of the Analysis prepared for this action (see ADDRESSES ).

The RFA requires identification of any significant alternatives to the final rule that accomplish the stated objectives of the final action, consistent with applicable statutes, and that would minimize any significant economic impact of the final rule on small entities. The Council requested an action alternative and in considering the Council's request NMFS analyzed the impacts of the action alternative compared to the status quo.

The status quo alternative would retain the existing vessel use cap restrictions as defined under 50 CFR 679.42(h). Considering the existing social and economic conditions in the IFQ fishery since 2020, the supply of vessels available to prosecute Area 4 halibut IFQ fisheries could be limited such that a portion of the 2021 annual halibut allocation could be left unharvested if available vessels must comply with existing halibut IFQ vessel use limitations.

The action alternative would remove limits on the maximum amount of halibut IFQ that may be harvested by a vessel in IFQ regulatory areas 4A, 4B, 4C, and 4D. The action alternative and the regulations for this action would provide additional flexibility to IFQ participants in 2021 to ensure allocations of halibut IFQ can be harvested by the limited number of vessels operating in these areas.

NMFS has not identified any duplication, overlap, or conflict between this final rule and existing Federal rules.

This action does not contain additional recordkeeping, reporting, or other compliance requirements.

This final rule does not contain a change to a collection of information requirement for purposes of the Paperwork Reduction Act of 1995. The existing collection of information requirements would continue to apply under the following OMB Control Number(s): 0648-0272, Alaska Pacific Halibut & Sablefish Fisheries: Individual Fishing Quota (IFQ).

For the reasons set out in the preamble, NMFS amends 50 CFR part 679 as follows: