Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches to maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

This final rule has been determined to be not-significant for purposes of Executive Order (E.O.) 12866 and therefore has not been reviewed by the Office of Management and Budget (OMB).

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. In accordance with this rule: (1) Unless otherwise specifically provided, all State and local laws and regulations that conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule unless specifically prescribed in the rule; and (3) administrative proceeding of the National Appeals Division of the Department of Agriculture (7 CFR part 11) must be exhausted before bringing suit in court that challenges action taken under this rule.

This final rule is not subject to the requirements of Executive Order 12372, “Intergovernmental Review of Federal Programs,” as implemented under USDA's regulations at 2 CFR part 415, subpart C.

The policies contained in this rule do not have any substantial direct effect on 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. Nor does this final rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with states is not required.

This executive order imposes requirements on the Agency in the development of regulatory policies that have tribal implications or preempt tribal laws. The Agency has determined that the rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the federal government and Indian tribes. Thus, this final rule is not subject to the requirements of Executive Order 13175. If tribal leaders are interested in consulting with the Agency on this rule, they are encouraged to contact USDA's Office of Tribal Relations or the Agency's Native American Coordinator at: AIAN@usda.gov to request such a consultation.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act (“APA”) or any other statute. The Administrative Procedures Act exempts from notice and comment requirements rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts” (5 U.S.C. 553(a)(2)), so therefore an analysis has not been prepared for this rule.

In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, this final rule has been reviewed in accordance with 7 CFR part 1970 (“Environmental Policies and Procedures”). The Agency has determined that (i) this action meets the criteria established in 7 CFR 1970.53(f); (ii) no extraordinary circumstances exist; and (iii) the action is not “connected” to other actions with potentially significant impacts, is not considered a “cumulative action” and is not precluded by 40 CFR 1506.1. Therefore, the Agency has determined that the action does not have a significant effect on the human environment, and therefore neither an Environmental Assessment nor an Environmental Impact Statement is required.

The Catalog of Federal Domestic Assistance (CFDA) number assigned to this program is 10.755, Rural Innovation Stronger Economy (RISE) Grant Program. The Catalog is available on the internet at https://sam.gov/content/assistance-listings. The Government Publishing Office (GPO) prints and sells the CFDA to interested buyers. For information about purchasing the Catalog of Federal Domestic Assistance from GPO, call the Superintendent of Documents at 202-512-1800 or toll free at 866-512-1800, or access GPO's online bookstore at http://bookstore.gpo.gov.

Rural Development is committed to the E-Government Act, which requires government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

Rural Development has reviewed this rule in accordance with USDA Regulation 4300-4, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex or disability. Based on the review and analysis of the rule and available data, it has been determined that the program purpose, application submission and eligibility criteria, or issuance of this Final Rule is not likely to negatively impact low and moderate-income populations, minority populations, women, Indian tribes or persons with disability, by virtue of their race, color, national origin, sex, age, disability, or marital or familial status.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), USDA requested that the Office of Management and Budget (OMB) conduct an emergency review of a new information collection that contains the Information Collection and Recordkeeping requirements contained in this notice by May 28, 2021. An emergency clearance approval for this information collection is due to the following conditions: (1) The time sensitive competitive solicitation application window; (2) the urgency to obligate funds prior to September 30, 2021; and (3) being able to effectively implement the program as quickly as possible to benefit rural communities.

In addition to the emergency clearance, the regular clearance process is hereby being initiated to provide the public with the opportunity to comment under a full comment period, as the Agency intends to request regular approval from OMB for this information collection. Comments from the public on new, proposed, revised, and continuing collections of information help us assess the impact of our information collection requirements and minimize the public's reporting burden. Comments may be submitted regarding this information collection through the Federal eRulemaking Portal. Go to https://www.regulations.gov and, in the lower “Search Regulations and Federal Actions” box, select “RBS” from the agency drop-down menu, then click on “Submit.” In the Docket ID column, select Docket No. RBS-21-CO-OP-0011 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov , including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. Comments on this information collection must be received by August 16, 2021.

Title: 7 CFR part 4284, subpart L, Rural Innovation Stronger Economy (RISE) Grant Program.

OMB Control Number: 0570-0075.

The following estimates are based on the average over the first 3 years the program is in place.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 1.52 hours per response.

Respondents: Institutions of higher education, private entities, governmental entities, nonprofits, Indian Tribes, district organizations.

Estimated Number of Respondents: 10.

Estimated Number of Responses per Respondent: 32.1.

Estimated Number of Responses: 321.

Estimated Total Annual Burden (hours) on Respondents: 486.5.

Copies of this information collection may be obtained from Susan Woolard, Regulatory Division, Rural Development Innovation Center, U.S. Department of Agriculture, 1400 Independence Ave. SW, Stop 1522, Washington, DC 20250; telephone: 202-720-9631; email: susan.woolard@usda.gov. All responses to this information collection and recordkeeping notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

In accordance with federal civil rights law and USDA civil rights regulations and policies, the USDA, its agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information ( e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: (1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; or (2) email: OAC@usda.gov.

USDA is an equal opportunity provider, employer, and lender.

Rural Development (RD) is a mission area within the United States Department of Agriculture (USDA) comprised of the Rural Utilities Service (RUS), Rural Housing Service (RHS) and Rural Business-Cooperative Service (RBCS). RD's mission is to increase economic opportunity and improve the quality of life for all rural Americans. RD meets its mission by providing loans, loan guarantees, grants, and technical assistance through more than 40 programs aimed at creating and improving housing, businesses, and infrastructure throughout rural America.

Consistent with the above mission, the Rural Innovation Stronger Economy (RISE) Grant Program is a newly authorized program enacted under the authority of Section 6424 of the Agriculture Improvement Act of 2018 (Pub. L. 115-34) (2018 Farm Bill) to help struggling communities by funding job accelerators in low-income rural communities. This action is intended to implement the provisions provided in Section 6424 of the 2018 Farm Bill by issuing a final rule. This final rule will describe the program purpose, the eligible uses of program funds, and entities eligible for assistance under the RISE Grant Program in alignment with the Farm Bill requirements. The new regulation will also include competitive grant scoring criteria and cost sharing requirements of the program, as well as administration and servicing of outstanding grants. The RISE Grant Program will meet a recognized need for federal interagency support of jobs accelerator partnerships for the fostering and promotion of private investment in an identified regional economy. The flexible use of funds by RISE grant recipients allows a region to identify and leverage its community assets to better assist new and existing industry clusters, including the use of broadband service for programs of the jobs accelerator. RISE will allow eligible entities to establish and operate innovation centers for job development through training and programming efforts that will improve the ability of rural communities to create high-wage jobs, accelerate the formation of rural businesses and strengthen regional economies.

The purpose of this regulation is to implement Section 6424 of the 2018 Farm Bill designed to meet a recognized need for federal interagency support of jobs accelerator partnerships for the fostering and promotion of private investment in an identified regional economy. The flexible use of funds by RISE grant recipients allows a region to identify and leverage its community assets to better assist new and existing industry clusters, including the use of broadband service for programs of the jobs accelerator.

Many of the definitions used in this regulation are used in or are consistent with other Agency programs; however, the Agency calls attention to the following new definitions at § 4284.1103: High-wage job, industry cluster, jobs accelerator, lead applicant, region, rural and rural area, and rural jobs accelerator partnership. These definitions provide important information regarding project eligibility as well as requirements for the applicant's organizational structure.

RISE grants are made for the benefit of rural jobs accelerator partnerships (partnership). These partnerships are working groups that consist of community and regional stakeholders whose focus is the needs of an identified industry cluster. Implementation and sustainability of the partnership is more likely with a broad coalition of stakeholders; to that end, the partnership must be made up of one or more representatives of the groups listed in § 4284.1112(a). Additionally, all partnerships must have a lead applicant as described in § 4284.1112(b). The lead applicant is responsible for the partnership, enters into the financial assistance agreement with the Agency, administers the grant proceeds and activities, and takes ownership of any assets purchased with grant funds. Only partnerships formed on or after December 20, 2018, are eligible for awards.

The partnership and proposed project must serve a region as defined in § 4284.1103 and discussed at § 4284.1112(d). The partnership must ensure that the region is clearly defined and is of a size that enables collaboration among members while also containing critical elements of the industry cluster prioritized by the partnership. Eligibility under all other provisions of this part is negated if the lead applicant meets either provision in § 4284.1109(a) or (b). The lead applicant will remain ineligible to receive funds until the disqualifying condition has been remedied.

To ensure that all RISE funds are being used, in a timely manner, to provide the services for which they were awarded, the Agency implements, at § 4284.1110(a), a satisfactory progress requirement. Lead applicants that have unexpended funding from previous RISE grant(s) must expend 50 percent or more of the previous RISE grant funds by the time the Agency makes an eligibility determination or the application will be deemed ineligible for that funding cycle.

Eligible projects for the RISE grant program are those that accelerate the formation of new businesses with high-growth potential, improve the ability of distressed, rural communities to create high-wage jobs, accelerate the formation of new businesses and strengthen regional economies. Projects must be identified at the time of application and fall into one of two categories: Construction or purchase of buildings or equipment; or project support. Construction or purchase is limited to buildings that will serve as innovation centers for jobs accelerator. Equipment purchases must be necessary to support the functions of the jobs accelerator. Specific information on construction and purchase is found at § 4284.1113(a). It is noted again that any buildings or equipment purchased with RISE grant proceeds must be owned and controlled by the lead applicant. Support covers a broad range of activities but includes functions for the support of programs carried out at or in direct partnership with a jobs accelerator or in support of jobs accelerator initiatives. The Agency provides guidance on acceptable activities at § 4284.1113(b). The Agency may, from time to time, revise the list of acceptable activities through a Federal Register notice.

As detailed at § 4284.1114, the Federal share of any activity under the RISE grant will be no more than 80 percent of eligible project costs. The non-Federal share is the responsibility of the applicant and may be in the form of third-party equity contributions, including donations and in-kind contributions of fairly valued goods or services. Evidence of the amount and source of the non-Federal funds must be provided at the time of application submittal with documentation that the required non-Federal funds have been received or remain committed prior to execution of the financial assistance agreement by the lead applicant. The match is based on eligible project costs as outlined at § 4284.1114(c). Grants are further restricted at § 4284.1114(a)(1) and (2) to a minimum request of not less than $500,000 and a maximum request of not more than $2,000,000. Restrictions are also placed on indirect costs. Costs incurred by the applicant associated with administering the RISE grant are statutorily restricted to ten percent of the RISE grant amount.

As the Agency wishes to encourage projects across a broad geographic area, applicants are limited to one application per funding cycle, unless otherwise notified in a Federal Register notice. The contents of a complete application may be found at § 4284.1115(b). All items must be included or addressed for an application to be considered complete and to compete for funding. The items requested allow the Agency to complete an applicant and project eligibility determination, as well as determine project alignment with Agency priorities.

Based upon comments received during the request for public comments period, the Agency added a review of concept proposal at § 4284.1115(a). Applicants may submit, not less than 60 days prior to the application submittal deadline, the items in § 4284.1115(a)(1) through (4) for Agency review. The Agency will review the submitted items and provide feedback regarding any weaknesses and a letter of encouragement or discouragement. A letter of encouragement does not guarantee eligibility or funding. Similarly, a letter of discouragement does not preclude the applicant from submitting a complete application. If an applicant submits a review request and later submits a complete application, duplicative items do not have to be resubmitted; however, all information must be up-to-date and current.

To ensure that projects begin providing the proposed services as quickly as possible and that all members of the partnership are ready to contribute to the success of the proposed project, the Agency at § 4284.1115(b)(2)(x) requires that all applications include a readiness demonstration. The items identified in § 4284.1115(b)(2)(x)(A) through (E) not only provide the Agency evidence that the partnership is ready and able to begin the project but also allows the partnership to evaluate the ability of their members to provide the services necessary, create a marketing and reporting plan and finalize a timeline.

Each complete and eligible application for the RISE program will be scored based on the priority scoring criteria found at § 4284.1117(a) through (g). Applications will, unless otherwise publicly announced, be reviewed, and scored by Agency personnel. The scoring criteria are designed to prioritize sustainable projects that best meet the program criteria set forth in the 2018 Farm Bill and this regulation. Scored applications will be ranked from highest to lowest score for funding consideration. Due to the variability of proposals from year to year, no minimum score for funding is provided. Regardless of a proposal's priority score or relative ranking, all funding decisions are subject to the availability of funds. Receipt of funds in one funding cycle does not guarantee priority or funding in future funding cycles.

Information specific to the awarding of a grant is provided at § 4284.1119. As noted previously, the lead applicant is responsible for the administration of the grant and will, if the application is selected for funding, be issued a letter of conditions by the Agency. The letter establishes conditions that the applicant must agree to prior to the obligation of funds. Acceptance of the conditions by the applicant does not constitute commitment or obligation of funds by the Agency. The applicant must not make any binding commitments until a financial assistance agreement has been fully executed and the applicant has been notified by the Agency of grant approval. The grant performance period for all grants award under this part is four years beginning on the date the financial assistance agreement was signed by the Agency. At the end of the four-year period any unspent grant funds are required to be returned to the Agency. If circumstances beyond the grantee's control occur, the Agency may, at its sole discretion, approve a one-time grant performance period extension. Any extension will be for a period not to exceed two years and must be requested by the grantee prior to the expiration of the grant performance period, as specified in the financial assistance agreement. Requests must describe the circumstances that prohibited the grantee from completing the project and show that an active jobs accelerator and related programming is established. Further discussion of times extensions can be found at § 4284.1110(g)(1).

On July 22, 2020, the Agency published a request for comments in the Federal Register (85 FR 44273) to allow stakeholders a platform and sufficient time to provide formal comments on provisions of the Rural Innovation Stronger Economy (RISE) Grant Program. Eleven entities provided written comments during the formal comment period. The Agency also conducted listening sessions for interested stakeholders on July 28, and July 30, 2020, regarding implementation of the Final Rule for the RISE program. A listening session was also held on July 21, 2020, to receive comments from Agency staff. The Agency reviewed and considered all comments that were received. The following discusses substantive comments and the Agency's response:

Comment: Two commenters indicated that RISE should have a framework for an applicant providing components of the application, similar to the Department of Commerce's Economic Development Administration's (EDA) process for their programs, including a concept proposal to highlight their eligibility and scope of work.

Response: The Agency considered this application framework and included the concept paper proposal suggestion in the application process.

Comment: Two commenters provided suggestions for quantitative scoring including evaluation of market connections made, new regional programs and networks established. These scoring criteria indicate that there should be not only qualitative but quantitative factors when evaluating RISE applications.

Response: The Agency used the comments to develop benchmarks of success in scoring criteria to make awards that will generate the intended program outcomes. The Agency considered this information and therefore included a requirement that project performance reports be provided twice a year, from the grantee, in order to monitor progress on the key metrics found in the scope of work.

Comment: A commenter suggested scoring metrics ranging from innovation, scope and monetary impact of the project to private/public partnerships involved in the project was provided. The commenter discussed including scoring consideration for projects in federal Opportunity Zones.

Response: The Agency considered various metrics from innovation to scope and monetary impact of the project as well as partnership analysis and included this in the scoring criteria. The Agency may include federal initiatives as a criterion under the Administrator section of scoring, which may be announced in the Federal Register in the Notice of Solicitation of Applications on an annual basis.

Comment: A commenter suggested that the program provide more significant scoring and weighting for partnerships that evidence commitments to target low-income workers for workforce development activity. The commenter further recommended that the Agency emphasize high impact metrics including creation and retention of high-wage jobs, private investment leveraging, businesses established or improved, new products or services commercialized, increased regional collaboration, the number and dollar amount of new loans, improvement of income of participating workers, sales of participating businesses, and the amount of training and education activities related to the innovation.

Response: The Agency considered these items and many of these items were included in the application content and scoring. The Agency addressed grant monitoring metrics in the servicing section of the regulation. The Agency provided an analysis of the partnership's abilities in the application and scoring content of the regulation.

Comment: Three commenters indicated that applicants should fully demonstrate commitment and sustainability of the project in their applications.

Response: The Agency agrees with this comment and includes input on technology, scope, commitment, and sustainability of the project and incorporated these items not only in the application but also in the scoring criteria for the RISE program.

Comment: One commenter discussed the applicant providing details of organization, governance, operations, and roles of partners in the partnership. One commenter discussed what the application should consist of including a definition of the consortium of entities, roles of each partner, business plan, description of the region in economic terms, activities to be performed by the partnership, how the partnership will collect metrics of performance on itself and a communication plan outlining how success stories and impacts will be outlined.

Response: The Agency considered details of the partnership from organization to governance and included these components in the application requirements and scoring criteria.

Comment: One commenter suggested the Agency evaluate proposals by different standards.

Response: The Agency does not agree with using different standards for the evaluation of applications and will evaluate all proposals by the same scoring criteria.

Comment: Two commenters discussed an assessment of the applicant's link with rural communities to markets, networks, industry clusters and other regional opportunities and assets plus the characteristics for regional readiness and success.

Response: The Agency considered these comments to develop benchmarks of readiness and commitment to the identified region in scoring criteria to make awards that will generate the intended program outcomes.

Comment: Several commenters suggested including a rating factor of the amount of previous partnership activities and resources that will be leveraged by the RISE grant activities and developing successful benchmarks ranging from quantifying prototypes, technology and jobs to markets criteria.

Response: The Agency appreciates the suggested metrics and included many of these in the regulation and scoring criteria.

Comment: Two commenters discussed measurement of outcome-based metrics including business, employment and wage growth and job training as well as patent applications in its grant monitoring. Several commenters indicated that grant servicing reports should be no more frequent than semi-annual due to the length of the grant period.

Response: The Agency addressed grant monitoring metrics in the servicing section of the regulation. The Agency agrees and will monitor performance metrics and outcomes of grant funds on a semi-annual basis.

Comment: Commenter discussed the statutory requirement of a 20 percent cost match of the RISE Program and requested the Agency not to require the entire portion of the match to be demonstrated at the application stage, but instead to allow applicants to produce the remainder of any cost-share commitment up to a year after award.

Response: The Agency is unable to consider an option to delay grant matching requirements due to statutory requirements of the RISE Program. The input of matching funds at grant origination demonstrates the applicant's commitment to the project.

Comment: One commenter discussed the Agency extending past the ten percent restriction on indirect costs for awarded entities.

Response: The ten percent limitation on indirect costs and administrative expenses is a statutory requirement and cannot be modified as suggested.

Comment: One commenter discussed the ability of innovation centers to be virtual in lieu of having a physical building centered in one community.

Response: A virtual option is allowable under RISE if a rural region is being served and all other eligible criteria are met. The Agency did clarify that the construction of an innovation center must be in a rural area only.

Comment: One commenter suggested allowing grant funding to be spent on multiple activities including training and support of businesses, support research and development activities to develop markets, development of partnerships to deal with supply issues and obtaining resources for workforce development programs.

Response: The Agency developed eligible project costs to cover multiple activities including the purchase and construction of an innovation center, costs directly related to the operations of an innovation center, costs directly associated with support programs to be carried out at or in direct partnership with job accelerators as well as other administrative costs providing the ability to cover training and development.

Comment: One commenter suggested that the jobs accelerator be able to serve multiple communities with populations of 50,000 or less.

Response: The Agency concurs with the comment regarding ability to serve multiple communities and has a statutory responsibility to ensure this.

Comment: One commenter indicated the Agency should ensure a region is not too small.

Response: The Agency addressed the definition of a region in the RISE regulation in compliance with the statutory requirements.

Accordingly, for reasons set forth in the preamble, Chapter XLII of Title 7 of the Code of Federal Regulations is amended as follows:

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2020-39, dated October 14, 2020 (TCCA AD CF-2020-39) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain De Havilland Aircraft of Canada Limited Model DHC-8-400 series airplanes. You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0183.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain De Havilland Aircraft of Canada Limited Model DHC-8-400 series airplanes. The NPRM published in the Federal Register on March 22, 2021 (86 FR 15149). The NPRM was prompted by a report that a number of nacelle A-frames were not manufactured in accordance with engineering drawings. The holes in the side brace sub-assemblies were not cold-worked as required. As a result the side brace fitting might not meet its fatigue life, and cracking of the A-frame bottom flange may result. The NPRM proposed to require, depending on airplane configuration, removing the fasteners on the nacelle A-frame side brace sub-assemblies, doing an eddy current inspection for cracking, cold-working the holes, installing oversize fasteners, re-identifying the reworked side brace fitting and A-frame, and repair if necessary. The FAA is issuing this AD to address possible cracking of the A-frame. This condition, if not addressed, may lead to collapse of the main landing gear (MLG). See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comment received. The Air Line Pilots Association, International (ALPA), stated that it supports the NPRM.

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

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

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

De Havilland Aircraft of Canada Limited has issued Service Bulletin 84-54-32, dated October 10, 2019. This service information describes procedures, depending on airplane configuration, for removing the fasteners on the nacelle A-frame side brace sub-assemblies, doing an eddy current inspection for cracking, cold-working the holes, installing oversize fasteners, and re-identifying the reworked side brace fitting and A-frame.

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

The FAA estimates that this AD affects 41 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Emergency AD 2021-0125-E, dated May 7, 2021 (referred to after this as “the MCAI”), to address an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0499.

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

The FAA reviewed GE Aviation Czech ASB-M601F-72-00-00-0057 [00], ASB-M601E-72-00-00-0106 [00], ASB-M601D-72-00-00-0075 [00], and ASB-M601Z-72-00-00-0057 [00] (single document; formatted as service bulletin identifier [revision number]), dated May 7, 2021. This ASB specifies procedures for calculating consumed life of the critical parts. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA reviewed GE Aviation Czech ASB-M601E-72-30-00-0105 [00] (formatted as service bulletin identifier [revision number]), dated May 7, 2021. This ASB introduces life limits to compressor case P/N M601-154.61.

This AD requires recalculating the life of critical parts and, depending on the results of the recalculation, replacement of critical parts. This AD also requires replacement of compressor case, part number M601-154.61, installed on GEAC M601E model turboprop engines.

EASA Emergency AD 2021-0125-E, dated May 7, 2021, applies to GEAC M601D, M601D-1, M601D-2, M601D-11, M601D-11NZ, M601E, M601E-11, M601E-11A, M601E-11AS, M601E-11S, M601E-21, M601F, M601FS, M601F-11, M601F-22, M601F-32, M601T, and M601Z model turboprop engines. This AD does not include GEAC M601D, M601D-1, M601D-2, M601D-11NZ, M601E, M601E-21, M601FS, M601F-11, M601F-22, M601F-32, M601T, and M601Z model turboprop engines as these engine models are not type certificated in the United States.

The FAA considers this AD to be an interim action. This unsafe condition is still under investigation by the manufacturer and, depending on the results of that investigation, the FAA may consider further rulemaking action.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule. In May 2021, the FAA received a notification from the manufacturer about their discovery of errors with the formula for calculating the life limit of critical parts located in the ALS of the EMM. The manufacturer also discovered that compressor case, P/N M601-154.61, which was modified and installed in GEAC M601E model turboprop engines, had no corresponding life limit listed in the ALS of the corresponding EMM. As a result of discovering these errors, the manufacturer published service information providing instructions to update the formula used to recalculate life limits on critical parts and introduce a life limit for compressor case P/N M601-154.61.

Critical parts exceeding their life limits can result in failure of the engine, further resulting in uncontained release of a critical part, damage to the engine, and damage to the airplane. The FAA considers the failure of a critical part to be an urgent safety issue that requires immediate action to avoid damage to the engine and airplane.

Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B). In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0499 and Project Identifier MCAI-2021-00571-E” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Barbara Caufield, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 9 engines installed on airplanes of U.S. registry.

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

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. The NPRM published in the Federal Register on May 6, 2020 (85 FR 26888). The NPRM was prompted by significant changes made to the AWLs related to fuel tank ignition prevention and the NGS. The NPRM proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate the April 2019 revision of the airworthiness limitations document.

The FAA is issuing this AD to prevent the potential for ignition sources inside the fuel tanks and also to prevent increasing the flammability exposure of the center fuel tank caused by latent failures, alterations, repairs, or maintenance actions, which could result in a fuel tank explosion and consequent loss of an airplane. In addition, the FAA is issuing this AD to address the potential loss of engine fuel suction feed capability, which could result in dual engine flameouts, inability to restart engines, and consequent forced landing of the airplane.

The FAA gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.

The Air Line Pilots Association, International (ALPA), United Airlines, and an individual stated support for the NPRM.

All Nippon Airways (ANA) requested that the FAA delay issuance of the final rule until Boeing releases the next revision of Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04. The commenter explained that in the current revision of Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, dated April 2019 (Boeing D626A001-9-04, dated April 2019), for Airworthiness Limitation (AWL) No. 47-AWL-09, “Nitrogen Generation System—Oxygen Sensor,” operators must replace the NGS oxygen sensor with a new oxygen sensor because installation of an overhauled part is not approved at this time. The commenter stated that Boeing is working with the FAA to allow testing of the oxygen sensor using the component maintenance manual, and on-wing testing using the aircraft maintenance manual, and Boeing plans to revise AWL No. 47-AWL-09 to allow testing and installation of an overhauled part. The commenter anticipated that the next revision of Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, would include the revised AWL No. 47-AWL-09.

The FAA acknowledges the commenter's request. Since publication of the NPRM, Boeing has issued Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, dated November 2020 (Boeing D626A001-9-04, dated November 2020), which limits the applicability of AWL No. 47-AWL-09 to certain Model 737 airplanes and states that an oxygen sensor can be replaced with a new oxygen sensor or an oxygen sensor repaired per AWL No. 47-AWL-10 “Nitrogen Generation System—Oxygen Sensor Repair.” This AD requires updating the existing maintenance/inspection program to incorporate Boeing D626A001-9-04, dated April 2019; or Boeing D626A001-9-04, dated November 2020. In addition, based upon requests from other commenters, the FAA has extended the initial compliance time for replacement of the oxygen sensor due to a parts availability issue. The FAA has revised the grace period for the initial ALI task in paragraph (g)(13) of this AD from 12 months to 36 months. This extended grace period will still provide an acceptable level of safety.

Air China, ANA, China Eastern Airlines (CEA), Delta Air lines (DAL), Japan Airlines (JAL), Okay Airlines (OKY), Southwest Airlines (SWA), and Turkish Airlines (THY) requested that the initial compliance time for the replacement of the oxygen sensor as specified in paragraph (g)(13) of the proposed AD be extended because of a parts availability issue. The commenters contacted Boeing and determined that there would be a shortage of parts, which would prevent them from complying with the proposed requirement specified in paragraph (g)(13) of the proposed AD within the compliance time specified in the proposed AD.

The FAA agrees with the commenters' requests based on the information provided by the commenters. The FAA contacted Boeing and confirmed that there is a parts availability issue, which could create an undue burden on operators because it could prevent them from complying with the requirement specified in paragraph (g)(13) of this AD, subsequently grounding the affected airplanes. The FAA has revised the initial compliance time in paragraph (g)(13) of this AD from 12 months to 36 months.

SWA requested that the FAA consider coordinating this AD with Boeing to allow for an off-wing inspection of the oxygen sensor, and repair if necessary, as opposed to a mandated time-limited replacement. SWA stated that this would mitigate the parts availability impact across the industry as well the cost of complying with AWL No. 47-AWL-09.

The FAA agrees that an off-wing inspection would reduce the burden on operators. This AD allows operators to optionally incorporate Boeing D626A001-9-04, dated November 2020, which includes an off-wing inspection as specified in AWL No. 47-AWL-10. Boeing modified the requirement of AWL No. 47-AWL-09 to allow the use of repaired parts and added AWL No. 47-AWL-10 to describe the requirements for the method of inspection/repair in Boeing D626A001-9-04, dated November 2020. This AD still requires operators to use Boeing D626A001-9-04, dated April 2019, but provides an option for operators to incorporate Boeing D626A001-9-04, dated November 2020, into their maintenance program. In addition, the FAA has determined that an on-wing inspection is currently being developed by Boeing and that subject on-wing inspection is expected to be implemented in a future revision of the Boeing D626A001-9-04 document. Under the provisions of paragraph (k) of this AD, the FAA will consider requests for approval of an alternative method of compliance (AMOC) if sufficient data are submitted to substantiate that the change would provide an acceptable level of safety.

CEA, DAL, JAL, OKY, Ryan Air, and THY requested clarification of the applicability specified in AWL No. 47-AWL-09, which addresses replacement of the oxygen sensor in the NGS. The commenters noted that in Boeing D626A001-9-04, dated April 2019, the other AWLs specific to the NGS show the airplane applicability in terms of the airplanes that have the NGS installed, or incorporation of the actions in Boeing Service Bulletin 737-47-1002 or Boeing Service Bulletin 737-47-1003. The commenters noted that all airplanes on the U.S. registry are required to have the NGS system installed, but the commenters expected the applicability of AWL No. 47-AWL-09 to be similar to the other AWLs included in Boeing D626A001-9-04, dated April 2019. In addition, OKY noted that the applicability in AWL No. 47-AWL-09 was listed as all airplanes, but in Boeing Fleet Team Digest Document 737NG-FTD-47-19003, created on May 8, 2020, the applicability is Model 737NG airplanes delivered after June 2019 or modified with a new, improved ASM (air separation module) using the procedures in Boeing Service Bulletin 737-47-1015.

DAL and the other commenters explained that they contacted Boeing regarding this applicability issue. The commenters stated that Boeing confirmed that the applicability specified in AWL No. 47-AWL-09 is incorrect and Boeing advised that in the next revision of Boeing D626A001-9-04, dated April 2019, the applicability specified in AWL No. 47-AWL-09 will be updated to include airplanes having L/Ns 1820, 1831, 2517, 2620, and subsequent, and all airplanes that have incorporated the actions specified in Boeing Service Bulletin 737-47-1003. Several of the commenters stated that paragraph (g)(13) of the proposed AD should include additional text to clarify the applicability of AWL No. 47-AWL-09. The commenters stated that by incorporating this information into the final rule, the FAA would prevent the need for operators to apply for an AMOC in the future.

The FAA acknowledges the commenters' requests. As mentioned previously, Boeing has published Boeing D626A001-9-04, dated November 2020, and in this revision the applicability specified in AWL No. 47-AWL-09 was updated and limited to specify only airplanes having L/Ns 1820, 1831, 2517, 2620, and subsequent, and all airplanes that have incorporated the actions specified in Boeing Service Bulletin 737-47-1003. The FAA has changed the AD to allow the use of Boeing D626A001-9-04, dated November 2020, which correctly identifies the applicability for AWL No. 47-AWL-09.

Boeing, DAL, and CEA requested clarification of the unsafe condition specified in the Discussion section of the NPRM and paragraph (e) of the proposed AD. The commenters remarked that the wording implied that increased flammability in the center fuel tank leads to fuel tank explosion. The commenters explained that increased flammability alone does not lead to a fuel tank explosion; there must also be a concurrent ignition source in the center fuel tank. The commenters suggested that it would be more accurate to state that the increased flammability combined with an ignition source could lead to a fuel tank explosion.

In addition, the commenters requested that the unsafe condition be revised to address the potential loss of engine fuel suction feed capability. The commenters pointed out that paragraph (g)(14) of the proposed AD specified AWL No. 28-AWL-101, “Engine Fuel Suction Feed Operational Test,” which would be required to protect the airplane from engine flameout during suction feed operations. The commenters observed that this proposed action is not associated with the prevention of fuel tank ignition.

The FAA agrees with the commenters' requests based on the reasons provided by the commenters. The FAA has revised the Background section in this final rule and paragraph (e) of this AD accordingly.

ANA, CEA, DAL, OKY, SWA, and THY expressed concern regarding the indirect financial burden associated with accomplishing the actual on-wing work resulting from the maintenance program or inspection program changes that would be required by the proposed AD. DAL specifically noted that accomplishment of the oxygen sensor replacement specified in AWL No. 47-AWL-09, would require replacement of approximately 130 oxygen sensors with new oxygen sensors, and based on price quotes from the manufacturer of the oxygen sensors, it would cost an additional $7,000,000 over the estimated $7,560 per operator specified in the Costs of Compliance section of the NPRM. DAL stated that once all airplanes have reached the threshold for replacing the oxygen sensor the recurring cost would be approximately $2,000,000 per year for this task.

The FAA disagrees with changing the cost of compliance information for this AD. The cost information provided in this AD describes only the direct costs of the specific actions required by this AD. The FAA recognizes that, in doing the actions required by an AD, operators might incur incidental costs in addition to the direct costs. The extended compliance time previously mentioned could alleviate some of these indirect costs, as they would be spread out over 36 months instead of occurring within 12 months. Also, Boeing D626A001-9-04, dated November 2020, was revised to allow operators to use a repaired oxygen sensor in AWL No. 47-AWL-09 and added AWL No. 47-AWL-10 to describe the requirements for the method of inspection/repair. As identified above in a previous comment, operators now have the option to incorporate Boeing D626A001-9-04, dated November 2020, into their maintenance and inspection program, thereby reducing the financial impact of these requirements. The AD has not been changed in this regard.

DAL and CEA requested that the FAA explain why paragraph (g) of the proposed AD expressed compliance time intervals in terms of months when Boeing D626A001-9-04, dated April 2019, specifies these intervals in terms of years. The commenter mentioned it was unclear if an AMOC would be required if an operator incorporated the compliance intervals in years, as specified in Boeing D626A001-9-04, dated April 2019, instead of months, as specified in the proposed AD.

The FAA disagrees that there is a difference in the calculated compliance times described by the commenters. The FAA uses compliance times defined in months for required AD actions. Operators have the capability of converting years to months when comparing the compliance times of required AD actions and the times specified in a manufacturer's document. The FAA has determined that operators should not be confused when these conversions take place and an operator does not need to request an AMOC. Regardless of how an operator records the compliance time, within 36 months or within 3 years after the effective date of this AD, the compliance times in this AD, Boeing D626A001-9-04, dated April 2019, and Boeing D626A001-9-04, dated November 2020, end at the same time. The FAA has not changed this AD in regard to this issue.

DAL and CEA requested that AD 2018-20-13, Amendment 39-19447 (83 FR 52305, October 17, 2018) (AD 2018-20-13), be included in the list of affected ADs in paragraph (b) of the proposed AD. DAL and CEA noted that paragraphs (i)(1)(i) through (iii) of AD 2018-20-13 require incorporation of AWL Nos. 28-AWL-21, 28-AWL-22, and 28-AWL-24 that are included in Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, dated June 2018, into an operator's maintenance or inspection program as applicable. DAL and CEA suggested that only the latter revision of these AWLs that are included in Boeing D626A001-9-04, dated April 2019, should be mandated. DAL and CEA stated that the requirements of paragraphs (i)(1)(i) through (iii) of AD 2018-20-13 should be terminated when the requirements of the proposed AD become effective.

The FAA agrees with the commenter's request; paragraph (b) of this AD has been revised to include AD 2018-20-13 in paragraph (b)(6) of this AD, and the subsequent paragraph has been redesignated as paragraph (b)(7) of this AD. In addition, this AD has been revised to include a new paragraph (j)(6) of this AD to terminate the requirements specified in paragraphs (i)(1)(i) through (iii) of AD 2018-20-13, and the subsequent paragraph has been redesignated as paragraph (j)(7) of this AD.

DAL and CEA requested that the Subject in paragraph (d) of the proposed AD be changed from Air Transport Association (ATA) of America Code 71, Powerplant, to ATA Code 28, Fuel. DAL and CEA noted that the unsafe condition specified in the proposed AD is associated with ignition sources in the fuel tanks and flammability exposure of the center fuel tank. The fuel system is the subject of ATA Code 28. Previously issued ADs identified in paragraph (b) of the proposed AD, which are similar to the proposed AD, have specified ATA Code 28 as the subject in paragraph (d).

The FAA agrees with the commenter's request based on the reasons provided by the commenter. Paragraph (d) of this AD has been changed to ATA Code 28, Fuel.

Aviation Partners Boeing stated that the installation of blended or split scimitar winglets per Supplemental Type Certificated (STC) ST008300SE does not affect compliance with the proposed actions.

The FAA agrees that STC ST008300SE does not affect compliance with the actions required by this AD. The FAA has not changed this AD in this regard.

The FAA has updated the applicability, paragraph (c) of this AD, to remove airplanes that were delivered with Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, dated April 2019, thereby reducing the scope of the affected airplanes in this final rule.

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

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

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

The FAA also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

The FAA reviewed Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, dated April 2019; and Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, dated November 2020. This service information describes AWLs that include airworthiness limitation instructions (ALIs) and critical design configuration control limitations (CDCCLs) tasks related to fuel tank ignition prevention and the NGS. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The “Description” column of AWL No. 28-AWL-20 identifies certain operational tests. However, the operational test for left center tank fuel boost pump relay R54 and right center tank fuel boost pump relay R55 is not required for airplanes on which the actions specified in paragraph (g)(2)(ii) of AD 2011-20-07, Amendment 39-16818 (76 FR 60710, September 30, 2011), have been done, or airplanes that have installed STC ST02076LA.

Paragraph (g) of this AD requires operators to revise their existing maintenance or inspection program by incorporating, in part, AWL No. 28-AWL-05, “Wire Separation Requirements for New Wiring Installed in Proximity to Wiring That Goes Into the Fuel Tanks” in Boeing D626A001-9-04, dated November 2020. Paragraph (h) of this AD allows certain changes to be made to the requirements specified in AWL No. 28-AWL-05 as an option.

The FAA estimates that this AD affects 2,057 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. In the past, the FAA estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the FAA estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

The EASA (now European Union Aviation Safety Agency), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2015-0157, dated July 30, 2015 (EASA AD 2015-0157) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for Airbus Helicopters Model EC 155 B1 helicopters, all serial numbers delivered after manufacturing before June 30, 2015, and equipped with a pilot or co-pilot door jettisoning system in accordance with Airbus Helicopters Modification POST MOD 0752C05, except helicopters on which Aircraft Maintenance Manual (AMM) Task 52-11-00-712 was accomplished on both pilot and co-pilot doors since the last crew door installation.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Helicopters Model EC155B1 helicopters. The NPRM published in the Federal Register on April 22, 2021 (86 FR 21240). The NPRM was prompted by a report of difficulties when jettisoning the co-pilot door during non-scheduled maintenance. The NPRM proposed to require a functional check of the pilot and co-pilot door jettisoning system and corrective actions if necessary, as specified in an EASA AD.

The FAA is issuing this AD to address jamming of the affected door jettisoning mechanism, which could reduce the ability of the flightcrew to evacuate in the event of an emergency situation. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA received no comments on the NPRM or on the determination of the cost to the public.

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

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

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

EASA AD 2015-0157 specifies procedures for doing a functional check of the pilot and co-pilot door jettisoning system and corrective actions. The corrective actions include greasing the tenons and restoring the jettison system. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 14 helicopters of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition action that would be required based on the results of any required actions. The FAA has no way of determining the number of helicopters that might need this on-condition action:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Model AS-365N2, AS 365 N3, SA-365N, and SA-365N1 helicopters, with at least one Type X or Y planet gear assembly with a serial number (S/N) listed in Appendices 4.A. through 4.B of Airbus Helicopters Alert Service Bulletin ASB No. AS365-05.00.78, Revision 3, dated March 2, 2018 (ASB AS365-05.00.78), installed on the MGB. The NPRM published in the Federal Register on August 7, 2020 (85 FR 47925). In the NPRM, the FAA proposed to require replacing the MGB before further flight for helicopters with a Type X planet gear assembly with a certain S/N installed. The NPRM also proposed to require, for helicopters with no Type X planet gear assembly installed but at least one Type Y planet gear assembly with a certain S/N installed, replacing the MGB within 300 hours time-in-service (TIS) or before any planet gear assembly accumulates 1,300 hours TIS since new, whichever occurs first. As an alternative to replacing the MGB, the NPRM proposed to allow replacing the epicyclic reduction gear module in the affected MGB.

The NPRM also proposed to prohibit installing an MGB with Type Y or Type X planet gear assembly installed on any helicopter. Finally, the NPRM proposed to require, within 10 hours TIS and thereafter before the first flight of the day or at intervals not to exceed 10 hours TIS, whichever occurs first, inspecting the lower MGB magnetic plugs for particles. If there are particles, the NPRM proposed to require replacing the MGB depending on the type and the size of particles. The NPRM was prompted by EASA AD 2017-0116, Revision 2, dated March 2, 2018, (EASA AD 2017-01162R2), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Model AS 365 N2, AS 365 N3, SA 365 N, and SA 365 N1 helicopters. EASA advises that after an accident on a Model EC225 helicopter, an investigation revealed the failure of a second stage planet gear of the MGB. EASA states that one of the two types of planet gear assemblies used in the MGB epicyclic module is subject to higher outer race contact pressures and therefore is more susceptible to spalling and cracking. Airbus Helicopters reviewed its range of helicopters with regard to this issue and provided instructions to improve the reliability of the installed MGB.

Accordingly, EASA AD 2017-01162R2 requires repetitive inspections of the MGB magnetic plugs and corrective action if any particles are detected. EASA AD 2017-01162R2 also requires, if certain MGB planet gear assemblies are installed, replacing the planet gear assemblies. Finally, EASA AD 2017-01162R2 prohibits installing an MGB with a Type X or Type Y planet gear assembly on any helicopter.

After the NPRM was issued, the FAA discovered that the proposed applicability was limited to helicopters with at least one affected assembly installed on the MGB, whereas all Airbus Helicopters Model AS-365N2, AS 365 N3, SA-365N, and SA-365N1 helicopters, regardless of the assembly, are subject to the unsafe condition and require repetitive inspections of the MGB magnetic plugs for particles. The FAA also determined that any special flight permits would be limited to flights with no passengers on board.

Therefore, the FAA issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Helicopters Model AS-365N2, AS 365 N3, SA-365N, and SA-365N1 helicopters. The SNPRM published in the Federal Register on March 22, 2021 (86 FR 15143). The SNPRM maintained the proposed corrective actions from the NPRM as follows, but no longer limited the applicability to only certain helicopters:

• Before further flight, for helicopters with a Type X planet gear assembly with a certain S/N installed, replacing the MGB.

• For helicopters with no Type X planet gear assembly installed but at least one Type Y planet gear assembly with a certain S/N installed, replacing the MGB within 300 hours TIS or before any planet gear assembly accumulates 1,300 hours TIS since new, whichever occurs first.

• As an alternative to replacing the MGB, the SNPRM proposed to allow replacing the epicyclic reduction gear module in the affected MGB.

The SNPRM also proposed to:

• Prohibit installing an MGB with Type Y or Type X planet gear assembly installed on any helicopter.

• Require, within 10 hours TIS and thereafter before the first flight of the day or at intervals not to exceed 10 hours TIS, whichever occurs first, inspecting the lower MGB magnetic plugs for particles and, if there are particles, replacing the MGB, depending on the type and the size of those particles.

The FAA received no comments on the SNPRM or on the determination of the costs.

The helicopters been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters.

Airbus Helicopters has issued ASB AS365-05.00.78 for Model SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters. This service information specifies performing periodic inspections of the MGB magnetic plugs for particles. This service information also specifies identifying the type of gear assembly installed in the MGB and replacing any Type X assembly within 50 hours TIS. For Type Y gear assemblies, the service information requires replacing the assembly within 50 hours TIS or within 300 hours TIS, depending on the time since new. The service information specifies Type Z gear assemblies should be left as is.

Airbus Helicopters has also issued Service Bulletin SB No. AS365-63.00.21, Revision 3, dated July 26, 2018, for Model AS365 helicopters. This service information contains procedures for replacing the MGB epicyclic reduction gear as an option to replacing the MGB.

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

The EASA AD requires a 50-hour or 300-hour TIS compliance time or by June 30, 2019, whichever occurs first, to determine the type of planet gear installed in the MGB, and depending on the outcome, to replace the MGB; the compliance time for this AD is based only on hours TIS or before further flight. The EASA AD allows a pilot to inspect the MGB magnetic plugs for particles; this AD does not.

The FAA estimates that this AD affects 34 helicopters of U.S. Registry and that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Inspecting the magnetic plugs and oil filter for particle deposits will take about 1 work-hour for an estimated cost of $85 per helicopter per inspection cycle.

Replacing an MGB will take about 42 work-hours for cost of $3,570 and parts will cost about $295,000 (overhauled) for a total cost of $298,570 per helicopter.

Replacing the epicyclic reduction gear will take about 56 work-hours for an estimated cost of $4,760 and parts will cost about $11,404 for a total cost of $16,164 per helicopter.

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

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

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

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

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

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

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

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

This final rule makes changes to the Schedule of Fees for Consular Services of the Department of State's Bureau of Consular Affairs. The Department sets and collects its fees based on the concept of full cost recovery, but some fees are set by statute. The Department of State is adjusting the reduced Border Crossing Card fee in light of the expiration of the authority provided by the Emergency Afghan Allies Extension Act of 2014, section 2, Public Law 113-160 (“the Act”), which imposed a temporary $1 surcharge on fees for MRV and BCC application processing.

The Department of State derives the general authority to set fees based on the cost of the consular services it provides, and to charge those fees, from the general user charges statute, 31 U.S.C. 9701. See, e.g., 31 U.S.C. 9701(b)(2)(A) (“The head of each agency . . . may prescribe regulations establishing the charge for a service or thing of value provided by the agency . . . based on . . . the costs to the government.”). As implemented through Executive Order 10718 of June 27, 1957, 22 U.S.C. 4219 further authorizes the Department to establish fees to be charged for official services provided by U.S. embassies and consulates. Other authorities allow the Department to charge fees for consular services, but not to determine the amount of such fees, as the amount is statutorily determined.

The Department of State is required by law to collect a Border Crossing Card application processing fee for a Mexican citizen under age 15 whose parent or guardian has or is applying for a border crossing card. Public Law 105-277, Div. A, Sec. 101(b), 112 Stat. 2681-50, 1681-102. That fee is set by statute at $13. Additional statutes imposed surcharges that previously brought the fee to a total of $16. The Department is reducing the Border Crossing Card application processing fee for these Mexican citizen minors by $1 to $15 to reflect the expiration of the authority provided by the Act, which imposed a temporary $1 surcharge on fees for MRV and BCC application processing.

In addition to the statutory $13 fee for BCCs for these Mexican citizen minors, Public Law 110-293, Title V, Sec. 501, 122 Stat. 2968, reproduced at 8 U.S.C. 1351 (note) requires the Secretary of State to collect a $2 surcharge (the “HIV/AIDS/TB/Malaria surcharge”) on all MRVs and BCCs as part of the application processing fee; this surcharge must be deposited into the Treasury and goes to support programs to combat HIV/AIDS, tuberculosis, and malaria.

Since the authority provided by the Act to collect an additional $1 surcharge on fees for MRV and BCC application processing expired on June 30, 2020, the Department has already administratively adjusted the reduced Border Crossing Card fee to reflect the expiration of this authority. This rulemaking adjusts the Schedule of Fees (22 CFR 22.1) accordingly.

The Department is publishing this rule as a final rule, with an effective date less than 30 days from the date of publication, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). The APA permits a final rule to become effective fewer than 30 days after the publication if the issuing agency finds good cause. 5 U.S.C. 553(d)(3).

The Department finds that good cause exists to forego notice and comment and establish an early effective date for this rulemaking because the authority provided by the Act to collect a temporary $1 surcharge on fees for MRV and BCC application processing, expired on June 30, 2020, thereby eliminating any potential agency discretion with respect to this surcharge and rendering notice and comment unnecessary and impracticable.

Since this rulemaking is exempt from notice and comment, the Regulatory Flexibility Act does not apply. However, the Department has nonetheless reviewed this rule and, by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities as defined in 5 U.S.C. 601(6). This rule decreases the Border Crossing Card application processing fee for certain Mexican citizen minors.

This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 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, 2 U.S.C. 1501-1504.

This rule is not a major rule as defined by 5 U.S.C. 804(2).

The Department has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Orders. This rule is necessary in light of expiration of the authority provided by the Emergency Afghan Allies Extension Act of 2014, which imposed a temporary $1 surcharge on fees for MRV and BCC application processing. As a result, the reduced Border Crossing Card fee will be reduced by $1 from $16 to $15.

Details of the fee changes are as follows:

This regulation is not an E.O. 13771 regulatory action because it is not a significant rulemaking under E.O. 12866.

This regulation will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations, nor does it warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on federal programs and activities do not apply to this regulation.

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

This rule does not create or revise any reporting or record-keeping requirements.

Accordingly, for the reasons stated in the preamble, 22 CFR part 22 is amended as follows:

This final rule adjusts the Schedule of Fees for Consular Services (Schedule of Fees) by incorporating the fee for authentication of a document in the United States into the Schedule of Fees and increasing it from $8 to $20. The Department of State (Department) published a Notice of Proposed Rulemaking (NPRM) on October 16, 2020 (85 FR 65750), with 60 days provided for public comment. This rule addresses the relevant comments. Justification for this rulemaking and fee change, including relevant authorities and information on the study used to calculate this fee, can be found in the NPRM.

The proposed rule was published for comments on October 16, 2020, 85 FR 65750. The comment period closed December 15, 2020. The Department received four comments, all of which are addressed below.

Two commenters suggested that the Department should consider the impact of the fee increase on the public and private sectors. While the Department is sympathetic to the impact the fee increase may have on those who seek this service, the Department generally sets consular fees at an amount calculated to achieve full cost recovery for the U.S. Government of providing the consular service consistent with 31 U.S.C. 9701 and guidance from the Office of Management and Budget (OMB). As set forth in OMB Circular A-25, as a general policy, each recipient should pay a user charge for government services, resources, or goods from which he or she derives a special benefit, at an amount sufficient for the U.S. Government to recover the full costs of providing the service, resource, or good. See OMB Circular No. A-25, sec. 6(a)(2)(a). The fee for the authentication of a document is set based on the cost of the service and charged only to individual applicants requesting the service.

One commenter suggested that the Department should set the fee at the calculated unit cost of $18.83, rather than round the fee to $20. It has been the Department's policy, as set forth in prior rulemakings, that consular fees should be rounded to the nearest $5. This policy makes it easier to collect consular fees at domestic facilities, and allows for easier currency exchange at embassies and consulates around the world. A review of other agencies that calculate and set user fees found that rounding unit costs to set fees is a standard best practice.

One commenter also suggested that the Department should take steps to automate processes to reduce costs. The Department of State's Bureau of Consular Affairs strives to optimize business functions to increase efficiency and effectively manage financial and capital resources funded by consular fees. In an effort to improve business practices, the Department documents standard operating procedures and provides regular training to ensure the processes are followed. Additionally, the Department provides regular oversight of the document authentication process to protect the integrity of the process and promote standardization and efficiency. Although steps are taken to improve processing and efficiency, automating the entire authentication process is not possible at this time. Documents can only be properly authenticated by specially trained adjudicators that work in the Office of Authentications. As explained in the proposed rule, the current fee does not currently recover the costs of providing the service. The Cost of Service Model results have consistently established that the Department should charge a higher fee for this service to ensure full cost recovery.

One commenter suggested that the Cost of Service Model would benefit from an external audit to bolster confidence in the model's results. The Department follows guidance provided in “Managerial Cost Accounting Concepts and Standards for the Federal Government,” OMB's Statement #4 of Federal Accounting Standards (SFFAS #4), and uses Activity Based Costing to calculate unit costs and set fees, which are industry standards and best practices for setting user fees. The model is updated annually, and the Department has meticulous processes in place to validate data and model results during each model update. Over time, the model has been evaluated by auditors, including the Office of Inspector General for the Department and the U.S. Government Accountability Office, and the Department incorporated feedback from those findings and continues to improve methodology to best capture the full cost to the U.S. government of providing consular services.

One commenter suggested that the proposed fee for an authentication of a document in the United States is too low because it does not include the compensation and benefits costs for Foreign Service Officers. The commenter also suggested that non-U.S. citizens should cover the cost of these services because U.S. citizens do not benefit from this service and therefore taxpayers should not be burdened with the costs. The cost basis and justification for this fee are explained in-depth in the proposed rule—only the costs related to providing the service, including compensation and benefits for domestic full-time civil service employees that do this work, are included in the calculated unit cost. Because Foreign Service Officers do not provide this service when it is performed domestically, their compensation and benefit costs are not included in the fee. The Cost of Service Model, however, has calculated the full cost of providing this service, and the fee is set to recover these costs. As noted above, the fee applies only to individuals seeking the authentications service domestically.

Finally, one commenter emphasized the importance of a sufficient explanation for a cost-basis for the fee and concluded that the Department had provided such explanation.

The Department will adjust the fee for authentication of a document in the United States in light of the Cost of Service Model's findings that the U.S. government is not recovering fully its costs for providing the service. Consistent with OMB guidance, the Department endeavors to recover through user fees the cost of providing services that benefit specific individuals, as opposed to the general public. See OMB Circular A-25, sec. 6(a)(1), (a)(2)(a). For this reason, the Department will adjust the Schedule of Fees.

The Department published this rulemaking as a proposed rule, and provided 60 days for public comment. It will be effective 30 days after publication, in accordance with 5 U.S.C. 553(d).

The Department has reviewed this rule and, by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities as defined in 5 U.S.C. 601(6).

This rule is not expected to result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 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, 2 U.S.C. 1501-1504.

This rule is not a major rule as defined by 5 U.S.C. 804(2).

The Department has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Orders. This rule has been submitted to OMB for review.

This rule is necessary in light of the need to incorporate the domestic authentications fee into the Schedule of Fees for Consular Services and the Department of State's Cost of Service Model finding that the cost of authenticating a document in the United States is higher than the current fee. The Department is setting the fee in accordance with 31 U.S.C. 9701. See, e.g., 31 U.S.C. 9701(b)(2)(A) (“The head of each agency . . . may prescribe regulations establishing the charge for a service or thing of value provided by the agency . . . based on . . . the costs to the Government.”). This rule sets the fee for domestic authentications at the amount required to recover the full costs associated with providing this service.

This regulation will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on federal programs and activities do not apply to this regulation.

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

This rulemaking relates to an information collection request for the DS-4194, Request for Authentications Service, which is being processed separately.

Accordingly, for the reasons stated in the preamble, 22 CFR part 22 is amended as follows:

Revisions to HUD's civil money penalty amounts are required annually by the Federal Civil Penalties Inflation Adjustment Act of 1990, 1 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. 2

On March 6, 2020 (85 FR 13041), HUD published its Adjustment of Civil Monetary Penalty Amounts for 2020 final rule. In that rule, HUD's amendatory instructions for 24 CFR 28.10 directed the Federal Register to “[r]evise paragraphs (a)(1) introductory text and (b)(1) introductory text.” HUD used this amendatory instruction in publishing its annual civil money penalty adjustment final rules in 2017 (May 30, 2017, 82 FR 24521), 2018 (July 16, 2018, 83 FR 32790), and 2019 (March 15, 2019, 84 FR 9451).

Subsequent to HUD's publication of its Adjustment of Civil Monetary Penalty Amounts for 2021 final rule (March 16, 2021, 86 FR 14370), however, HUD became aware of an error in the codification of 24 CFR 28.10. Section 28.10 provides the basis for civil penalties and assessments under the Program Fraud Civil Remedies Act of 1986. 3 Specifically, HUD determined that paragraph (a)(1)(i), which provides that a civil penalty may be imposed when a claim is made that “is false, fictitious, or fraudulent,” failed to codify.

To correct this error in the codification of HUD's Adjustment of Civil Monetary Penalty Amounts for 2020 final rule, this rule recodifies 24 CFR 28.10(a)(1)(i).

Accordingly, 24 CFR part 28 is corrected by making the following correcting amendment:

PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) prescribes actuarial assumptions—including interest assumptions—for valuing benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974 (ERISA). The interest assumptions in the regulation are also published on PBGC's website ( https://www.pbgc.gov ).

PBGC uses the interest assumptions in appendix B to part 4044 (“Interest Rates Used to Value Benefits”) to determine the present value of annuities in an involuntary or distress termination of a single-employer plan under the asset allocation regulation. The assumptions are also used to determine the value of multiemployer plan benefits and certain assets when a plan terminates by mass withdrawal in accordance with PBGC's regulation on Duties of Plan Sponsor Following Mass Withdrawal (29 CFR part 4281).

The third quarter 2021 interest assumptions will be 2.13 percent for the first 25 years following the valuation date and 2.23 percent thereafter. In comparison with the interest assumptions in effect for the second quarter of 2021, these interest assumptions represent an increase of 5 years in the select period (the period during which the select rate (the initial rate) applies), an increase of 0.31 percent in the select rate, and an increase of 0.55 percent in the ultimate rate (the final rate).

PBGC has determined that notice of, and public comment on, this rule are impracticable, unnecessary, and contrary to the public interest. PBGC routinely updates the interest assumptions in appendix B of the asset allocation regulation each quarter so that they are available to value benefits. Accordingly, PBGC finds that the public interest is best served by issuing this rule expeditiously, without an opportunity for notice and comment, and that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication to allow the use of the proper assumptions to estimate the value of plan benefits for plans with valuation dates early in the third quarter of 2021.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

In consideration of the foregoing, 29 CFR part 4044 is amended as follows:

In FR Doc. 2021-12014 appearing on page 30537 in the Federal Register of Wednesday, June 9, 2021, the following correction is made:

The purpose of this rule is to ensure the safety of the participants and the navigable waters in the safety zone before, during, and after the scheduled swim event. In response, on February 10, 2021, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Cocos Lagoon, Merizo, GU (86 FR 8879-8881). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this safety zone. During the comment period that ended March 12, 2021, we received no comments.

The Coast Guard is issuing this rule under its authority in 46 U.S.C 70034 (previously 33 U.S.C. 1231). The COTP Guam has determined this safety zone is necessary to protect all persons and vessels participating in this marine event from potential safety hazards associated with vessel traffic in the area

As noted above, we received no comments on our NPRM published February 10, 2021. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a safety zone from 06:00 a.m. to 1:00 p.m. on the Sunday before Memorial Day every year, unless the event is cancelled or moved due to weather. The safety zone will cover all navigable waters within a 100-yard radius of the race participants in Cocos Lagoon, Merizo, Guam. Race participants, chase boats, and organizers of the event will be exempt from the safety zone. All persons and vessels not involved in the event are prohibited from being in the safety zone unless authorized by 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.

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone, which will impact a small designated area of the Cocos Lagoon for approximately 7 hours. 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 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 a safety zone lasting approximately 7 hours that would prohibit entry within 100-yards for swim participants in Cocos Lagoon. 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:

This action finalizes the Agency's April 11, 2016 tentative denial of a rulemaking petition submitted by the group Public Employees for Environmental Responsibility (PEER) and Dr. Cate Jenkins, Ph.D. (“PEER/Jenkins Rulemaking petition”), on September 8, 2011, requesting that the Agency revise the corrosivity hazardous waste characteristic regulation promulgated under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The petitioners sought two changes to the existing corrosivity characteristic regulation: (1) Revision of the pH regulatory value for defining a waste as corrosive hazardous waste from the current pH 12.5 or higher, to pH 11.5 or higher; and (2) expansion of the scope of the corrosivity regulation to apply to non-aqueous wastes in addition to the aqueous wastes addressed by the current regulation. The Agency published for public comment a tentative denial of the PEER/Jenkins Rulemaking petition on April 11, 2016 (81 FR 21295), proposing to deny both requested revisions to the corrosivity characteristic regulation sought by the petitioners. In this Notice (and the Response to Comments document accompanying it), the EPA responds to the public comments received on the tentative denial and takes final action to deny the petition.

As the Agency is not adding to or revising its regulations with today's Notice, no entities or wastes will be newly regulated or deregulated.

Today the Agency is issuing a final response to the PEER/Jenkins rulemaking petition of September 8, 2011 that seeks revision to the RCRA corrosivity characteristic regulation for classifying waste as hazardous that would expand the scope of the regulation and subject additional waste to RCRA's cradle-to-grave waste management system. The Agency is denying the petition in its entirety.

Under Subtitle C of RCRA, the EPA has developed regulations to identify solid wastes that must then be evaluated to determine whether they must also be classified as hazardous waste. Corrosivity is one of four waste characteristics that may cause the waste to be classified as “RCRA hazardous.” The Agency defines which wastes are hazardous because of their corrosive properties at 40 CFR 261.22. On September 8, 2011, the nongovernmental organization (NGO) PEER and Cate Jenkins, Ph.D., submitted a rulemaking petition to the EPA seeking changes to the current regulatory definition of corrosive hazardous wastes under RCRA. On April 11, 2016, the Agency published a Federal Register notice tentatively denying the rulemaking petition. In that notice of denial, the Agency provided its evaluation of the requested regulatory revisions, the materials submitted by the petitioners in support of the regulatory revisions being sought, and supplementary information collected by the Agency and identified as relevant to the issues raised by the petition. The 2016 tentative denial of the petition also solicited comments from the public on the issues raised by the petition and its supporting materials, the Agency's supplemental materials, materials submitted by a group representing industries that might be affected by any changes to the corrosivity regulation and the Agency's assessment of all these materials. Comments were initially to be accepted until June 10, 2016; however, the public comment period was extended by six months, closing on December 7, 2016, at the request of the petitioners.

Today's Notice (and accompanying supporting material) responds to the comments received from the public on the tentative denial, and takes final action on the rulemaking petition, denying the petitioners' request to revise the RCRA corrosivity regulation. The reasons for the Agency's denial of the petition are described below in today's Notice.

The corrosivity hazardous waste characteristic regulation was promulgated under the authority of sections 1004 and 3001 of RCRA, as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6903 and 6921. The Agency is responding to this petition for rulemaking pursuant to 42 U.S.C. 6903, 6921 and 6974, and implementing regulations 40 CFR parts 260 and 261.

There are neither costs nor benefits resulting from this final action, as the Agency is not promulgating any regulatory changes.

On September 8, 2011, petitioners PEER and Cate Jenkins, Ph.D., submitted to the EPA a rulemaking petition seeking revisions to the RCRA hazardous waste corrosivity characteristic definition (see 40 CFR 261.22(a)(1)). 1 On September 9, 2014, the petitioners filed a petition for Writ of Mandamus, arguing that the Agency had unduly delayed in responding to the 2011 petition, and asking the Court  2 to compel the Agency to respond to the petition within 90 days. The Court granted the parties' joint request for a stay of all proceedings until March 31, 2016. Following publication of the tentative denial of the petition, the parties jointly petitioned the court to hold the case in abeyance until the Agency publishes in the Federal Register a final denial of the Petition for Rulemaking or an Advanced Notice of Proposed Rulemaking or a Proposed Rule. Under this agreement, the Agency is obligated to file status reports with the court at 120-day intervals. The latest such report was filed with the court on April 5, 2021.

The petition sought two specific changes to the 40 CFR 261.22(a)(1) definition of a corrosive hazardous waste:

1. Reduction of the pH regulatory value for defining alkaline corrosive hazardous wastes from the current standard of pH 12.5 or higher to pH 11.5 or higher; and

2. Expansion of the scope of the RCRA hazardous waste corrosivity definition to include non-aqueous wastes, as well as currently regulated aqueous wastes.

The Agency published for public comment a tentative denial of this RCRA rulemaking petition on April 11, 2016, in accordance with 40 CFR 260.20(c) and (e). The public comment period for the tentative denial was originally scheduled to close on June 10, 2016, but was extended until December 7, 2016, at the request of the petitioners. The Agency received 29 comments on the tentative denial (including requests for a comment period extension), and is today responding to those comments, and taking final action to deny all parts of the petition.

Commenters include the petitioners, a number of groups representing different sectors of industry, health research groups studying persons exposed to the World Trade Center (WTC) collapse, the state of Michigan Department of Environmental Quality (DEQ), national and state groups representing municipal wastewater treatment facility owners/operators (also known as publicly owned treatment works, or POTWs), and several private citizens. The public comments on the Agency's tentative denial of the PEER/Jenkins Rulemaking petition can be found by searching at: http://www.Regulations.gov, using Docket ID Number EPA-HQ-RCRA-2016-0040.

In a separate action, on April 13, 2017 (82 FR 17793), EPA opened a public comment period to solicit public comment on virtually any existing EPA regulation, to implement Executive Order 13777 on regulatory reform (See: http://www.Regulations.gov, Docket ID Number EPA-HQ-OA-2017-0190). The Agency requested that the public identify regulations they believed to be in need of revision, including regulations commenters believed to be outdated, unnecessary, ineffective or unduly burdensome. Eight of the more than 400,000 comments received by the docket addressed the PEER/Jenkins Rulemaking petition and the Agency's initial response presented in the tentative denial. Seven of the comments were from particular industries or industry trade groups or organizations, and one was from the State of Oklahoma Department of Environmental Quality (DEQ). EPA considered all the comments received, on both the tentative denial and the eight comments received on the PEER/Jenkins Rulemaking petition through the implementation of Executive Order 13777. The petitioners' comments and those of several individuals opposed the Agency's tentative denial. Industry commenters generally supported it, as did the Michigan DEQ, organizations representing publicly owned treatment works (POTWs, which are municipal wastewater treatment facilities), and several private citizens. The Oklahoma DEQ supported regulation of non-aqueous wastes that may be corrosive. While two WTC-survivor health research groups commented in support of requests to extend the public comment period for the tentative denial, neither of these groups submitted substantive comments.

Petitioners PEER and Dr. Jenkins submitted extensive comments addressing most aspects of the tentative denial. Today's Notice addresses comments the Agency believes present the petitioners' key arguments and supporting information advocating for their requested revisions to the corrosivity regulations. The Agency responds to more detailed petitioner comments in the Response to Comments document accompanying today's Notice, which is available in the public docket for this action. While the PEER/Jenkins comments are wide-ranging, they can be summarized as raising the following major objections to the tentative denial and its conclusions:

• The petitioners assert that the original corrosivity regulation did not appropriately consider the information available at the time the regulation was developed ( i.e., 1980).

• The petitioners assert that the Agency has a legal obligation to implement the Globally Harmonized System for the Classification and Labeling of Chemicals (GHS) criteria as the RCRA corrosivity regulation.

• The petitioners assert that the Agency inadequately considered information submitted by petitioners in support of the petition.

• The petitioners assert that many of the injuries to World Trade Center (WTC) disaster first responders and others were caused by the corrosive nature of the dust generated by the collapse of the towers, 3 and that a revised RCRA corrosivity regulation definition can prevent such injuries should similar exposures occur in the future.

• The petitioners assert that the EPA misunderstands the applicability of RCRA regulations to the WTC dust and debris.

• The petitioners assert that the Agency impermissibly considered information on the possible economic impacts of revising the corrosivity regulation submitted by industry stakeholders and their representatives, and that the conclusions in the tentative denial are largely based on industry impact estimates.

The discussion below describes the petitioners' comments on the tentative denial in more detail and provides the Agency's response to those comments.

As in the petition, the petitioners argue in their comments on the tentative denial that the original regulation did not appropriately consider the information available in 1980, and that this represents an error. Petitioners believe that in relying on the 1972 International Labor Organization (ILO) guidance, the Agency should have directly promulgated the ILO guidance values as the corrosivity regulation and should not have considered additional information in establishing the regulation. The ILO guidance, as well as GHS guidance (discussed below), is intended to represent the inherent, or intrinsic hazards that may be posed by direct contact with materials, with no controls on or mitigation of exposure. However, RCRA directs the Agency to regulate hazards as they occur in waste (when plausibly mismanaged) in most cases, and the Agency regulated potentially corrosive wastes under RCRA section 1004(5)(B) (42 U.S.C. 6903(5)(B)), as has been done for most wastes regulated as RCRA hazardous. 4 RCRA's prohibition on the open dumping of wastes (42 U.S.C. 6903(14)), and requirements for solid waste disposal and management (42 U.S.C. 6944(a), (b)) means that all waste is intended to receive some level of management (under either federal or state laws and regulations), with some exceptions. 5 Regulations at 40 CFR parts 240-258 (particularly parts 257 and 258) describe the minimum management requirements for wastes, regardless of the hazards they may (or may not) pose. Wastes found to potentially pose significant or substantial hazards when managed at this minimal level of control require more stringent management. Such wastes warrant classification as hazardous (under 42 U.S.C. 6903(5)(B), through the listings and hazardous characteristics regulations) and control under the more stringent and detailed provisions of RCRA Subtitle C and the regulations developed under its authority. The Agency reserved RCRA section 1004(5)(A) for wastes that pose a significant hazard regardless of how they are managed. Therefore, the Agency appropriately relied on information in addition to the ILO guidance when developing the RCRA corrosivity characteristic, as described in the 1978 proposed rule, the 1980 final rulemaking and its supporting Background Document (EPA 1980), when it published the tentative denial of the petition (81 FR 2199-21302, April 11, 2016), 6 and in issuing today's final Notice and supporting information.

When developing the current corrosivity regulation, the Agency proposed a value of pH 12.0 or higher to define hazardous corrosive waste (for aqueous wastes; 43 FR 58951-952, December 18, 1978). In consideration of public comments on the proposal, EPA established a final regulatory value of pH 12.5 or higher (and pH 2.0 or lower) to define aqueous corrosive hazardous waste (45 FR 33109, May 19, 1980). A consideration of the Agency in establishing the final regulation was the use of lime for treatment of municipal wastewater treatment sludges, as discussed in the Background Document (EPA 1980, pp 13-16). Such sludges contain a variety of organic chemicals, inorganic chemicals, and microbial contamination. Lime has been used for many years as a sludge treatment, particularly for the inactivation of microbial pathogens in the sludge. Such pathogens are effectively inactivated when the pH of the sludge is raised to pH 12 or higher, for a minimum of two hours and maintained at pH levels above 11.5 for an additional 22 hours (EPA 1981; EPA 1989; NRC 1996; Krach et al. 2008; and the National Lime Association, at: https://www.lime.org/lime-basics/uses-of-lime/enviromental/biosolids-and-sludge/ ). Treatment with lime can also provide control of odors that may be associated with more active biological pathogens. Lime continues to be used for biosolids “conditioning”, which allows this material to be more safely used as an agricultural fertilizer, and also to be more safely disposed in a municipal or other landfill when not used as a fertilizer. Therefore, the proposal to revise the corrosivity regulatory value to 11.5 could have a significant impact on the implementation of available treatments and management options for municipal wastewater treatment sludges.

The petition and petitioner comments on the tentative denial argue that consideration of the value of using lime in waste treatment in setting the 1980 regulatory standard was improper at the time. However, considering the corrosive potential of wastes treated to high pH using materials like lime, with its widespread use for effective POTW sludge pathogen inactivation and stabilization was and remains an appropriate balancing of different waste management risks by the Agency. As the Agency noted in the tentative denial, no challenge to the 1980 regulation was filed, and the time period to challenge that rule has long passed under the judicial review provision of RCRA section 7006, which requires such challenges to be filed within 90 days of the rule's promulgation. The opportunity to petition the Agency for changes to any RCRA rule is always available to members of the public (as in the current case), but such petitions are evaluated typically based on new information identified by petitioners (as well as information identified by the Agency, and those commenting on a proposed Agency action) as the basis for the requested changes to a regulation.

Petitioners also argue that the current pH 12.5 corrosivity regulatory value is no longer necessary to allow reuse of biosolids due to other changes in the RCRA regulatory program, such as RCRA deference to the Clean Water Act (CWA) programs promulgated at 40 CFR part 503 addressing biosolids use as agricultural fertilizer. However, biosolids that are RCRA hazardous cannot be land applied as fertilizer under the Part 503 program. 7 If the corrosivity regulatory pH was changed to pH 11.5 as petitioners request, lime stabilized biosolids (typically having a pH of 12.0 or higher) would be considered RCRA hazardous and ineligible for the Part 503 program. As hazardous waste, stabilized biosolids would be treated to reduce their pH to below 11.5, so they would no longer be hazardous waste (“decharacterization” treatment and treatment for underlying hazardous constituents, which would be required by the RCRA land disposal restrictions (LDR) regulations; 40 CFR 268.40). Stockpiled biosolids with lowered pHs show increases in biological activity (EPA 1981), resulting in the development of strong odors.

In the petition, and in comments on the Agency's tentative denial, the petitioners argue that the Agency should promulgate the guidance on corrosivity adopted by GHS as the RCRA corrosivity regulation, and further argues that the Agency has a legal obligation to do so. As described in greater detail in the tentative denial (81 FR 21300-21302, April 11, 2016), GHS is a technical guidance document developed by coordination among several organizations of the United Nations (U.N.), with the participation of many U.N. member nations, including the U.S., and other stakeholders. 8 The goal of GHS was to create a single hazard evaluation and labeling/communication system that could be a global reference for chemicals and chemical products in transport, in the workplace and in commerce generally (GHS, Forward, paragraph 2). GHS is based on U.N.-sponsored technical guidance on the safe transport and handling of dangerous goods as well as on national and international systems for identifying chemical hazards in the workplace.

The petitioners argue that the Agency has a legal obligation to implement the GHS criteria on corrosivity/irritancy as the RCRA corrosivity regulation. 9 However, they acknowledge that adoption or reliance on GHS in regulations is voluntary:

In support of their statement that the United States has chosen to adopt GHS, petitioners reference a U.S. State Department website that encourages the adoption of GHS by federal regulatory agencies, and which notes that EPA participated in a GHS implementation committee managed by the State Department. However, the petitioners misunderstand the role and authority of this implementation committee. While seeking to facilitate adoption of GHS criteria in appropriate federal regulatory programs, the committee has no statutory authority to require that federal agencies adopt GHS in whole or in part in any of their regulatory programs. For example, while EPA has considered using GHS for product classification or labeling under FIFRA, it has not done so ( https://www.epa.gov/pesticide-labels/pesticide-labels-and-ghs-comparison-and-samples; downloaded 03/02/20). The Consumer Product Safety Commission (CPSC) has also considered GHS but not incorporated it into its regulations ( https://www.cpsc.gov/content/policy-of-the-us-consumer-product-safety-commission-on-the-globally-harmonized-system-of ).

The Department of Transportation (DOT) periodically updates its hazardous materials regulations (HMR) to ensure that they are “harmonized” with a variety of international transportation safety standards, including GHS. “Harmonizing” regulations generally means that although two sets of standards may be somewhat different from one another, they are not inconsistent. DOT most recently updated its regulations on May 11, 2020, including revising its definition of corrosivity. DOT notes that its revised corrosivity regulation does not rely on pH extremes. 10

Only one federal agency, the Occupational Safety and Health Administration (OSHA), has chosen to revise its regulations to implement a modified version of GHS, for its hazard communication standard (HCS), under the authority of the Occupational Safety and Health Act of 1970 (77 FR 17574, March 26, 2012). 11 Two EPA programs focused on regulation of chemicals reference or rely on the OSHA HCS regulations. The Emergency Planning and Community Right-to-Know Act (EPCRA) emergency response program regulations require facilities to provide state and local emergency responders with chemical hazard information using OSHA/HCS-required safety data sheets (SDS) for chemicals they have on-site, and the EPCRA regulations have been updated to be consistent with the new OSHA requirements (See: 81 FR 38104, June 13, 2016). Under the Toxic Substances Control Act (TSCA), regulations for significant new uses of chemicals require a written hazard communications program to provide information to workers that may handle chemicals that are part of this program. Employers may rely on existing hazard communication programs established under the OSHA HCS regulations to show compliance with the TSCA program requirements. The Agency has proposed regulatory revisions to harmonize these EPA program requirements with the revised OSHA HC (81 FR 49598, July 28, 2016).

While the UN aspires to make GHS a globally implemented system for evaluating and classifying the hazards posed by chemicals and chemical products, guidance such as GHS only has the force of law in the United States if adopted and implemented as a requirement (or regulation) under the authority of specific laws (See GHS sections 1.1.2.6, 1.1.3). As guidance, GHS may be used by federal agencies on a voluntary basis, consistent with their enabling statutes. The Agency did review and consider the GHS corrosivity criteria and their underlying basis in responding to the rulemaking petition. However, the Agency's conclusion was that direct use of the GHS criteria as a corrosivity regulatory standard was not appropriate as the GHS criteria are intended to identify the inherent or intrinsic hazards of chemicals or chemical products (which are usually associated with direct exposure to chemicals), and do not consider how exposures in different settings, such as waste management scenarios of concern under RCRA, might reduce the actual hazard posed. GHS is also a flexible classification system, and a pH-based hazard determination can be rebutted and changed by other test data, whereas RCRA hazardous characteristic determinations are not rebuttable (the criteria are codified in regulations that can only be changed through subsequent notice and comment rulemakings, and there is no delisting program for wastes that exhibit a hazardous characteristic).

The petition and petitioner comments on the tentative denial raised similar issues concerning guidance on corrosivity by the ILO and the Basel Convention on Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention, or Basel). As described in the tentative denial and the background document supporting the existing corrosivity characteristic regulation (EPA, 1980), the Agency relied in part on the 1972 ILO guidance on corrosivity, and also considered other factors related to waste management in establishing the corrosivity regulation. While petitioners believe the ILO guidance should be the only basis for the RCRA corrosivity definition ( i.e., that the Agency should directly promulgate the ILO recommended value as the RCRA corrosivity regulation), consideration of waste management factors is appropriate and within the Agency's discretion in establishing elements of national waste regulatory programs (RCRA section 1004(5)(B); 42 U.S.C. 6903(5)(B)).¶

The Basel Convention also addresses the potential corrosivity of wastes, as described in the tentative denial. Petitioners asserted in the petition and in their response to the tentative denial that the Agency is obligated to adopt the Basel Convention corrosivity definition. However, Annex III of Basel relies on a narrative definition for identifying corrosive wastes, rather than directly relying on pH, as the petitioners suggest the U.S should do. Further, the United States is not a party to the Basel Convention, and so has not obligated itself to implement Basel Convention requirements. Even if the U.S. were a party to the Basel Convention, the legally binding aspects of Basel are focused on transboundary movements of waste ( i.e., imports and exports), through a system of notice and consent for such shipments between governments. The Basel hazardous waste criteria apply only to such imports and exports of waste, and nations that are Basel Parties are not obligated to (but may, at their discretion) use the Basel criteria in their domestic waste management programs.

Having determined that reliance on GHS criteria in establishing regulatory requirements is voluntary (consistent with enabling statutes), the Agency turns to the question about whether or how GHS might be an appropriate basis for regulations under RCRA. The basis for GHS criteria is identified as “the intrinsic hazard” of chemicals, and implies direct exposure. GHS determinations of intrinsic hazard do not consider possible material handling procedures that might mitigate risks or the potential for waste or contaminant release, transport and exposure. RCRA provides authority to regulate waste either due to its intrinsic hazard (where such hazards are of a severe and acute nature), or when a waste poses risk as a result of mismanagement. However, EPA's approach is in most cases to regulate wastes posing risks when plausibly mismanaged, particularly where a waste does not exhibit acutely and highly toxic or other extremely hazardous properties (see Footnote 6 and 45 FR 33105-33109, May 19, 1980). This means that as a practical matter, under RCRA most hazards are identified and risk is evaluated in the context of waste management conditions and practices. This was the reasoning the Agency used in 1980 when it considered both the use of lime for POTW sludge stabilization  12 and other waste treatment uses of lime, as well as the 1972 ILO guidance values, in establishing the current RCRA corrosivity regulatory value. In urging the adoption of GHS criteria as the basis for the corrosivity regulation, the petitioners are making the same argument as discussed elsewhere in today's Notice and in the response to comments document: That the Agency should base the corrosivity regulation solely on assessment of the intrinsic hazards potentially corrosive wastes may pose. The Agency has instead determined that it is appropriate to make waste management considerations part of the basis for the corrosivity hazardous waste definition.

Petitioner comments on the tentative denial argue at length (pp. 1-18) that the Agency focused too narrowly in the tentative denial when considering the WTC disaster dust, cement kiln dust (CKD), and building demolition dust as examples of potentially corrosive dust that warrant regulation. Petitioners believe the Agency inadequately considered additional facts presented in the petition, and particularly information in the supporting materials submitted with the petition, and in so doing, violated its obligations under the Administrative Procedure Act to consider and respond to significant issues and facts brought to it during a rulemaking.

The tentative denial focused on the WTC, CKD and building demolition dust discussions presented in the petition because the petition focused on these (See petition pp 28-36) in arguing for regulation of non-aqueous waste. The Agency did in fact review and consider the supporting material submitted with the petition as well as the petition itself and the relevant documents cited in petition footnotes ( e.g., the Agency did not review the many news reports referenced in the petition, as there was no way to verify the information presented in them). The Agency also considered other information identified as relevant to the petition's proposals, and information submitted by other stakeholders. In doing so, the Agency concluded that aspects of the supporting material submitted were not relevant in responding to the petitioners' specific request to revise the corrosivity characteristic regulation, while other material was anecdotal or focused on illustrating the intrinsic hazards of some alkaline materials. However, as petitioner comments have redirected the Agency's attention to the petition's supporting materials (PEER comments pp 13-14), the Agency is presenting more detailed information on its examination and evaluation of those materials.

The supporting materials sent to the Agency attached to the September 8, 2011, petition consist of two documents previously developed by petitioner Dr. Jenkins (one dated 2007 and the other dated 2008), two pages from the 1972 ILO guidance document, and excerpts from several legal declarations and depositions. The two documents developed by Dr. Jenkins provide additional information on her views about the corrosivity of materials, among other issues. Different parts of these two documents were referenced in the petition related to arguments the petition was advancing. The Agency reviewed these two documents in their entirety in the course of developing the tentative denial of the petition and focused in particular on portions of the supporting documents referenced by the petition itself. 13

The first document, dated May 6, 2007, is a report addressed to members of the U.S. Senate and House of Representatives ( i.e., Congress). It consists of two sections, plus 342 endnotes. As described by the document, Part 1 (pages 2-30) “details the orchestrated falsifications by EPA, other governmental agencies and EPA funded scientists of pH data (actually changing the numbers) as well as their use of laboratory methods known to pre-neutralize samples before testing the pH of WTC dust.” This part of the document criticizes the data collected on dust related to the WTC disaster by a number of research groups, including data and reports generated by the United States Geological Survey (USGS), researchers at Rutgers University, New York University (NYU), the Agency for Toxic Substances and Disease Registry (ATSDR), the EPA, the National Institute of Environmental Health Sciences (NIEHS), and the University of California, Davis. The scope of Dr. Jenkins' assertions of WTC dust sample mishandling, improper analysis, and incorrect health assessments are broad. In different portions of this discussion, the report describes data as being “falsified” (pp. 3, 6, 14, 17, 19), samples being improperly “pre-neutralized” before pH testing (pp. 11, 12, 16), use of “non-optimal” testing to give “false” test results (p.22), and asserted that researchers made false statements about the significance of test results (p. 23). The report goes on to identify the testing Dr. Jenkins believes would have been appropriate for the dust generated by the collapse of the WTC towers (pp 25-28). The report also states that EPA On-Scene Coordinators were on site on the day the towers were attacked and collapsed, and that regulations and guidance required them to do sampling to assess hazards, including pH testing. 14 However, the Agency has been unable to identify such data; apparently such pH testing was not done, or if done, test results were not recorded or reported.

Review of the studies about which Dr. Jenkins expressed concern shows that investigators were evaluating pH and many other properties of the collected dust samples. 15 For example, Lioy (2002) tested for metals, asbestos, anions and cations, dioxins, brominated fire retardants, and the size and composition of different particulate fractions, in addition to pH. Plumlee et.al. (2006) evaluated settled dust samples collected outdoors (31 different locations) and indoors (2 locations; all but one sample collected by USGS on September 17 and 18, 2001), for metals, organic chemicals, pH, alkalinity and specific conductance. Two different leaching tests were done to understand the chemical reaction of dust with water (from acidic rainfall on September 14, and ongoing street washing, dust control, or firefighting) and the potential for dust components to be absorbed by the throat and lungs of those exposed. In a study done by EPA scientists (EPA, 2002), dust samples were tested for physical properties and chemical composition, and were used in testing for the potential adverse effects of the dust on laboratory test animals.

Petitioners insist that pH of the whole dust was the key factor investigators should have known to focus on evaluating, and also insist that dust pH values were higher than reported (because investigators did not use the petitioners' preferred test method). These assertions disregard the fact that corrosive chemical burns were not identified among the reported injuries to first responders and others. They also disregard the variable composition and complexity of the dust and WTC worker exposures (which include building materials reduced to fine and coarse particulates, metals, a range of volatile and semivolatile organic chemicals and soot particulates from the ongoing fires) that investigators were trying to understand, as well as discounting the focus on public health concerns about exposure to fine, inhalable particulate matter  16 and asbestos. Petitioner assertions about dust pH also fail to account for the effect of contact with water on the pH of dust (from water use for street washing, firefighting and dust suppression, as well as several rainfall events beginning September 14), which would have moderated dust pH, so that as the dust changed, so did the alkalinity of exposures. 17

Part 2 of the 2007 report Dr. Jenkins sent to the Congress (pages 31-52) asserts that “Long before 9/11/01—EPA falsifies the pH level causing chemical burns (irreversible tissue damage-).” This part of the report describes the petitioners' concerns about the basis for the current corrosivity regulation. Much of the material in this section of the report was incorporated into the petition (see pp 6-24 of the petition) and the Agency reviewed and considered this material in developing the tentative denial. The issues raised by the petitioners in this discussion focus on their belief that the corrosivity characteristic regulations should consider only the inherent hazard of waste materials, and not consider the risks posed by possible exposure to materials when they are generated and managed as wastes. Petitioners believe consideration of any information in addition to assessments of intrinsic hazard resulted in a “falsified” corrosivity regulation. The Agency believed in 1980, and continues to believe, that incorporation of waste management considerations is appropriate and within the Agency's discretion in establishing regulations under RCRA (RCRA section 1004(5)(B); 42 U.S.C. 6903(5)(B)) including for the corrosivity characteristic.

The second document, also developed by Dr. Jenkins (dated October 13, 2008), is described as a supplement to the May 6, 2007 report sent to Congress, and was addressed to the Federal Bureau of Investigation (FBI). The first section of the report identifies statutes petitioners believe may have been violated by EPA's corrosivity characteristic regulation (see pp 2-9), based on their disagreement with the Agency's basis for establishing the regulation. The second section of the report is a recounting of historical incidents in which people were injured when directly and purposely exposed to lime (pp 10-17). The third section of the report is generally a reiteration of petitioner criticisms of the basis for the corrosivity characteristic regulation taken from the 2007 document. This section also criticizes the Agency's Report to Congress on Cement Kiln Dust (59 FR 709, January 6, 1994) and presents assertions regarding WTC dust evaluation. Much of the material is directly taken from the 2007 document (see pp 27-56), including repeating several of the graphs/tables/figures (see pp 11-24 of 2007 report).

The many examples of direct exposure to alkaline materials described in the 2008 document (to the FBI) reiterate the petitioners' view that the Agency should regulate corrosive materials based on assessments of the intrinsic or inherent hazards they may pose from direct exposure, rather than risks that might be posed in the course of waste management. As noted above, the approach advocated by the petitioners is used by GHS, where classification is intended to be based on the “intrinsic hazard” of chemicals, not on risk (although GHS does not rely on pH to define materials as corrosive if any other data are available; see GHS sections 1.1.2.6, 1.1.3.1, 3.2). Again, risks that might be posed in the course of waste management is an appropriate basis for the corrosivity regulation, and is within the Agency's discretion in implementing RCRA.

When the WTC towers collapsed after being attacked, an estimated one million tons of construction materials and the buildings' contents were pulverized into dust and debris, forming a dust cloud that distributed the dust over a 16-acre area of New York City. Destruction of the towers also resulted in numerous fires, which burned for several months after the collapse of the towers (Chemical & Engineering News, 2003). The petition identified injuries to first responders and rescue and other workers resulting from inhalation exposure to airborne or settled WTC dust as a waste mismanagement damage incident that they believed supported the need to revise the RCRA corrosivity regulations. This assertion was one of the petitioners' main arguments supporting their request for changes to the corrosivity regulation definition. The Agency discussed this issue at length in its tentative denial of the rulemaking petition. (81 FR 21302-21305). Specifically, the Agency made two main arguments concerning petitioner assertions that the WTC dust caused corrosive injuries to first responders and other workers at the WTC site. These are: (1) Because of limitations of the available data ( i.e., the complexity and variability of the dust composition and exposure levels), it is not possible to establish a causal connection between any potential corrosive properties of the dust and the injuries to those exposed; and (2) the injuries documented to have occurred in the WTC first responders and others exposed to potentially harmful dust, while serious, are not corrosive injuries as described in the 1980 background document (EPA 1980) and which the Agency sought to prevent in promulgating the RCRA corrosivity regulation.

While the petition asserted that the WTC exposures are a corrosive waste damage case, petitioner comments submitted in response to the tentative denial seem to be inconsistent as to the relevance of the WTC disaster and exposure of workers and others to the resulting dust. They assert that identification of WTC worker injuries as corrosive injuries is not a critical aspect of their argument supporting a change to the corrosivity regulations, but later in their comments reiterate arguments from the petition that WTC worker injuries are corrosive injuries.

Petitioner comments first assert that it is “[i]rrelevant whether WTC dust, caused corrosive injuries. . .” because they believe that “[o]ther physical forms of corrosives . . . whether pH 11.5 and above or pH 12.5 and above have caused injuries” (see page 15 of petitioners' comments). Petitioner comments then reference the materials submitted with and in support of the petition ( i.e., the reports developed by Dr. Jenkins from 2007 and 2008 described above) as adequately supporting the petitioned changes to the corrosivity regulation, regardless of conclusions about the effects of WTC dust. Other parts of petitioner comments on the tentative denial repeat the petition's assertions that corrosive properties of the WTC dust caused the injuries (particularly respiratory injuries), reported by first responders and other workers subsequent to their work on the site (see, e.g., pp 108-118 of petitioners' comments). As petitioner comments reiterate their earlier assertions about the corrosive properties of the WTC dust, EPA is responding in today's Notice to those assertions, to make clear its conclusion that information concerning WTC dust and worker exposures and injuries cited by the petitioners does not support the petitioners' overall request.

While the considerable amount of research on WTC worker health makes clear that injuries to WTC workers resulted from their exposure to the WTC dust, 19 the existing data do not support attributing the injuries to possible corrosive properties of the dust. As described in the tentative denial, and elsewhere in today's Notice, it is not possible to establish a causal connection between the potential corrosive properties of the dust and the resultant injuries to those exposed for two reasons. First as described in the tentative denial, WTC first responders, site workers, and others were exposed or potentially exposed, from 9/11/2001 until the clean-up concluded (January 2002), to a complex and changing ambient atmosphere that included many chemicals and particulate matter, as represented by evaluation of settled dust samples as well as ambient air test results, and which was unique to the WTC debris and dust. 20 Attribution of the WTC first responder and worker injuries to a single cause or property of the WTC dust, such as its potential corrosivity, is confounded by the wide range and varying concentrations of numerous compounds found in air samples or settled WTC dust, and the changes in dust properties (particularly pH) over time. 21 In one data set, the pH values reported for the outdoor dust ranged from pH 8.22 to 12.04 for samples collected at 33 locations at the WTC site on September 17 and 18, 2001 (Plumlee, et al. 2006). In 22 of these samples there were measurable amounts of 39 different metals and inorganics, and up to 22.8% organic compounds. These samples also contained a range of particulates, including fine glass fibers and fine and coarse particulates to which workers were potentially exposed at different locations around the site at different times, as well as being exposed to the toxic metals and organics. The pH of the tested dust would have declined (become more neutral) over the several months workers were at the site, due to carbonation reactions of some dust constituents with water and atmospheric carbon dioxide (as well as the acidic nature of rainfall). 22 In another study, test results for three samples of settled dust collected on September 16 and 17, 2001 showed pH values of 9.2-11.5, and that 40% of the dust consisted of fine glass fibers, 9%-20% was cellulose, and 37%-50% was non-fiber material including construction debris (concrete, gypsum) and inorganic and organic chemicals (Lioy, et.al. 2002). 23 Several rainfall events starting on September 14 and through the first half of October, as well as use of water for firefighting and dust control at the site would have washed out many soluble inorganic constituents from the outdoor dust and also changed its pH (Lioy, 2002; Plumlee, 2006, and Cahill, 2004). A report by the 9/11 WTC Health Program  24 presented an inventory of “9/11 Agents” that were identified that may have posed hazards at the WTC site, the Pentagon crash site, or the Shanksville, PA crash site (WTC Health Program 2018; https://wwwn.cdc.gov/ResearchGateway/Content/pdfs/Development_of_the_Inventory_of_9-11_Agents_20180717.pdf ). The inventory includes 352 chemicals or other materials ( e.g., glass fibers, PM 2.5 ). In addition, the 9/11 Agents inventory does not identify pH as a stressor, and while it does include some alkaline chemicals cited by petitioners as posing hazards ( i.e., calcium hydroxide and calcium sulfate), it does not include calcium oxide, a compound petitioners repeatedly cite as a key compound of concern. 25

The National Institute for Occupational Safety and Health  26 (NIOSH) conducted ambient air and worker breathing zone monitoring for a range of possible air pollutants from September 18-October 4, 2001 (CDC, 2002). Samples were collected in areas immediately adjacent to the debris pile, and for individuals actively involved in rescue efforts or working in the vicinity of the debris pile. These samples were found to contain measurable amounts of asbestos, carbon monoxide (CO), diesel exhaust, hydrogen sulfide (H 2 S), inorganic acids, mercury and other metals, polycyclic aromatic hydrocarbons (PAHs) and volatile hydrocarbons, and total and respirable particulates. Sulfuric acid was detected in 26 of 27 samples, with all levels less than the NIOSH recommended exposure level (REL) and OSHA permissible exposure level (PEL). 27 Mercury and other metals were well below the relevant NIOSH and OSHA standards, with the exception of exposure of one worker using a cutting torch exposed to cadmium at levels exceeding the OSHA PEL. PAHs were found only at trace levels, and benzene was the only volatile organic found in 2 of 76 samples at levels exceeding the NIOSH REL, but below the OSHA PEL. For total particulates, values ranged from non- detect to 2.3 mg/m 3 , with all samples below the NIOSH REL for Portland cement (10 mg/m 3 ). Respirable particulates ranged up to 0.32 mg/m 3 , well below the NIOSH REL for Portland cement (5 mg/m 3 ). These data do not support petition assertions that both large and small airborne particulates would have posed corrosive hazards to exposed workers, as all these data show that WTC worker breathing zone concentrations of dust were substantially below both regulatory and health recommended concentration values for cement dust, which petitioners focus on as presenting the greatest hazards.

Maslow et al. (2012) studied the health impacts of different exposures to local residents or individuals (n=785) who worked in buildings near the WTC site, but which were not severely damaged. They found dose-related pulmonary function decrements associated with acute exposure to the WTC dust (exposure on the day the buildings collapsed) and to chronic exposure (from indoor dust). 28 Lower respiratory symptoms were evaluated using spirometry testing of forced expiratory volume and other measures, but no corrosive injuries were reported. A study of children enrolled in the WTC Health Registry initially found a significant increase in new asthma cases associated with exposure to the dust cloud on 9/11/2001 (Thomas, et al., 2008), and later found that younger children exposed to the dust cloud on 9/11/2001 had a significant increase in respiratory symptoms while older children showed a non-significant increase. No corrosive injuries were reported to have occurred in the children studied. Brackbill et al., (2006) reported skin rash/irritation in 4% (AOR1.7; p<0.05) of adult survivors of collapsed or heavily damaged buildings who were caught in the dust and debris cloud, excluding rescue/recovery workers (World Trade Center Health Registry (WTCHR) data; n=8418). Perritt et al. (2011) reported skin conditions in 4% of WTC workers/volunteers (n=7,810), but did not clearly identify the types of skin conditions reported (some may have been traumatic injuries such as abrasions, blisters and contusions). They also reported eye ailments/illness in 9%, and traumatic eye injuries in 6% of the study population, also without a detailed description of the injuries. Huang et al., (2012) found skin irritation/rashes in 12% of area residents and rescue/recovery workers 3 years after 9/11, and in 6% after 6 years of WTCHR participants (n=42,025). None of these studies identified serious skin injuries occuring in the groups studied. Lippmann et al. (2015) reviewed and re-evaluated many of the previously published test data and reports of adverse effects in WTC first responders, worker and others. They hypothesized that the unique conditions caused by the WTC tower collapse resulted in greater inhalation of large and coarse particles (consisting of concrete and gypsum dust, and synthetic vitreous fibers) than would be expected to occur, and that these larger irritant particles are likely to have caused many of the respiratory injuries in exposed WTC workers and others. However, the existing data are inadequate to establish the air concentrations of dust components and pH of the material they believe are responsible for the respiratory injuries identified in the WTC population, so no quantitative correlations between exposures and adverse effects can be assessed or identified. Further, as discussed above, these injuries, while serious, are not consistent with the gross tissue injuries the Agency sought to prevent in regulating some wastes as hazardous due to their corrosive properties. Finally, the composition of the large particle dust Lippmann believes to be the cause of WTC worker respiratory injuries appears to be unique to the WTC disaster, making the WTC circumstance a poor example of the potential hazards indicative of and associated with nationwide waste management practices.

In their comments (pp. 105-107), petitioners repeat the petition's criticisms of data published on the composition and properties of WTC dust (particularly its pH) to which workers were or may have been exposed, and criticize the Agency's reliance on these data in the tentative denial. The petitioners' comments argue that in relying on these data as part of the basis of the tentative denial, the Agency fails to adhere to EPA data quality and integrity guidance. 29 The tentative denial and today's Notice identify the sources of all data on WTC dust and aerosols that have been relied on in evaluating and responding to the Petition and comments on the tentative denial. Those information sources describe the manner in which dust and other samples were collected, the dates and locations for data collection, sample handling procedures, and sample testing methods. As discussed above, investigators were evaluating a number of different properties of the dust and used tests they believed were suited to assessing the dust properties they were interested in investigating. The dust pH was tested for many samples, using several different approaches, although no investigators used the petitioners' preferred test, EPA Method 9045. Petitioners believe EPA's reliance on pH data collected using tests other than Method 9045 is inappropriate and violates the Agency's data quality policies and obligations. However, the pH data the Agency has relied on is the WTC dust pH data that exist; there are no WTC dust pH data developed using Method 9045 that the Agency is aware of, and the petitioners have not identified nor provided the Agency with any WTC dust pH data collected using Method 9045. The Agency has therefore relied on the existing data that it believes are most relevant for evaluating WTC first responder and rescue/recovery/debris removal worker and other exposures, despite any shortcomings. The petitioners' assertions about the results that may have been produced by evaluating the dust using Method 9045 cannot substitute for the data that do exist. Because the different investigators describe their methods and approaches for evaluating the dust and potential exposures in published articles (or in some instances, on government websites) presenting the results of research, the test results and their relevance to the questions petitioners raise can be evaluated. Therefore, while not the testing petitioners would have recommended, petitioner assertions that these data are somehow fraudulent, and that the Agency has used them inappropriately, are baseless.

The tentative denial also described the types of injuries WTC workers exposed to the dust have experienced (81 FR 21303; April 11, 2016). One of the most frequent types of injury identified in WTC workers are different types of chronic decrements in respiratory capacity. However, as discussed in the tentative denial, these injuries, while quite serious in many cases, are different from the injuries the Agency sought to prevent in establishing the corrosivity characteristic regulation, and the available data do not establish a causal connection between dust pH and these injuries. Petitioners have in their comments identified no studies reporting gross corrosive injuries (as described in the 1980 corrosivity regulation background document) in WTC first responders, workers at the site, or others. (See petitioner comments pp. 108-115)

Petitioners further criticize the Agency as conducting a biased and incomplete review of the available data. The Agency conducted an extensive review of petitioner submitted data as well as additional relevant materials identified by the Agency (approximately 400 references were placed in the public docket supporting the tentative denial), and additional studies have been reviewed in the course of developing today's Notice and response to comments document. As the published scientific literature on the WTC disaster is voluminous, comprising hundreds of studies addressing a range of topics, the Agency has focused its efforts on data it believes to be most relevant to assessing the petitioners' requested regulatory revisions, including several studies noted in petitioner comments. This review has included primarily data on WTC dust composition and properties (both as settled dust and as airborne material) and data on the adverse health effects experienced by first responders, site clean-up workers, and others potentially exposed to the dust and other pollutants present at the WTC site.

Petitioners also argue that in responding to the petition, the Agency did not adequately consider its own guidance on evaluating the hazards that might result from exposure to more than one chemical. Developing a comprehensive and detailed understanding of the adverse health effects suffered by first responders, WTC workers and others resulting from their exposures at the WTC site is important work that is ongoing by many researchers, and parts of the Agency's technical guidance on evaluating multiple or cumulative exposures may be helpful in these efforts. However, the Agency's purpose in issuing the tentative denial and today's Notice is much narrower. In responding to the petitioners' requests for specific revisions to the RCRA corrosivity characteristic regulation, the Agency's purpose in examining WTC exposures and the resulting adverse health effects is to understand whether corrosive injuries resulted from dust or other exposures related to waste management at the WTC site, and whether revisions to the corrosivity regulation could, in some future incident that might result in similar exposures, prevent corrosive injuries. Petitioners discussed this question in both the petition and in their comments (pp. 96-97) on the Agency's tentative denial of the petition. The Agency examined this question extensively in the tentative denial and concluded that the injuries suffered were not corrosive injuries as that term has been used in the background support materials for the RCRA corrosivity regulation (81 FR 21302-21304; April 11, 2016). 30 In addition, the petition did not identify how revised RCRA corrosivity regulations could change waste management practices to prevent injuries in some future incident that could cause exposures similar to those at the WTC disaster site. In response to comments on the tentative denial submitted by petitioners and others, the Agency examines these issues again in today's Notice and comes to the same conclusions as in the tentative denial. Further, petitioners themselves acknowledge that establishing that WTC first responders, workers and others suffered corrosive injuries is not a critical part of their overall argument for revising the corrosivity regulation (See petitioners' comments p. 15).

In comments on the tentative denial, petitioners state that “EPA was contending that there were no “solid wastes” or “hazardous wastes” from the WTC that would be subject to any RCRA regulations.” The petitioners' discussion goes on to reference the discussion on pages 83 FR 21304-21305 of the tentative denial and concludes that: “Clearly, the debris and dust from the WTC collapse met the definition of solid waste under RCRA”.

The discussion of RCRA applicability in the tentative denial responded to the petition's failure to describe how the proposed changes to the RCRA corrosivity regulation could have reduced the hazards to the WTC first responders and other workers, the local residents, and others. The tentative denial did not imply that the Agency believed no waste management occurred in the course of clearing and removing debris from the site and transporting and landfilling it at the Fresh Kills landfill.

However, the available data do not lend themself to identifying waste and waste management related exposures to workers, as distinct from other exposures. The petition's discussion of WTC exposures comingled all potential exposures to all potentially exposed people in all settings and did not attempt to distinguish worker exposures that may have been related to waste management activities from exposures resulting from other activities or in other settings. This issue is important in considering the petitioners' requests, as RCRA regulations can only apply to waste and waste management activities. 31 Further, there are situations in which determining the RCRA regulatory status of a material ( i.e., whether it is a waste, and if it is a waste, whether it is also a hazardous waste) requires careful consideration, and the events at the WTC site represent such a case.

The WTC disaster presented a unique and complex set of worker activities and potential exposures. At different (and frequently overlapping) times, first responders, volunteers and hired contractor workers cleared debris for transport to the Fresh Kills landfill in the course of searching for survivors and later, to recover human remains. While collection, loading, transport and deposit of WTC dust and debris at the landfill would normally be considered waste disposal operations, this case may be more complex. A primary activity at the Fresh Kills landfill was sorting/screening and examining all of the dust and loose debris sent there, to identify and recover any human remains or personal property of victims. The sorting/screening work was also directed at recovering parts of the airliners used to destroy the towers for possible future use as evidence in a trial or legal proceeding. 32 Because of these ongoing recovery operations, loose debris at the landfill would likely not be considered discarded, and so waste, until the recovery operations were completed, on July 26, 2002 (Ekenga et al., 2011; Cone et al., 2016). 33 The other major types of debris cleared from the WTC site were large chunks of concrete, 34 and the steel beams that supported the buildings. The pieces of concrete would generally have been considered waste when being handled for transport to the landfill (although some may have been recycled), and many of the steel beams were sold as scrap metal for recycling ( https://www.chicagotribune.com/news/ct-xpm-2002-01-27-0201270268-story.html; https://edition.cnn.com/2002/WORLD/asiapcf/east/01/23/china.wtcsteel/ ).

The overlapping nature of rescue, recovery, firefighting, demolition and debris removal activities at the WTC disaster site, and screening for recoverable materials at the landfill, makes it very difficult to distinguish between conventional waste management-related activities and their potentially associated exposures, and exposures unrelated to waste management, and therefore to identify hazards attributable to waste and waste management activities. It remains unclear whether or how the RCRA corrosivity regulation revisions sought by the petitioners may have in this case (or could in some future case that may be similar) prevented the worker (and other) exposures and injuries, nor do the petitioners clarify this nexus in their petition or their comments on the tentative denial.

Petitioner comments assert that in developing the tentative denial, the Agency improperly considered information provided by industry stakeholders on the possible impacts of changing the corrosivity regulation (petitioner comments pp 39-48). While the tentative denial was being developed, industry stakeholders met with and submitted to the Agency information describing their concerns about the regulatory changes sought by the petition. Part of the industry submission presented estimates of the potential impact of the regulatory revisions being sought by the petitioners on different industries. The Agency reviewed and placed these submissions, as well as other communications with the industry stakeholders, in the public docket supporting the tentative denial. The tentative denial noted that the industry estimates were in the docket, and that the Agency did consider them but did not evaluate or attempt to verify them (See 81 FR 21306, April 11, 2016). 35

Petitioner comments assert that the Agency significantly and improperly relied on the industry impact and cost estimates in developing the tentative denial and argue that RCRA does not allow the consideration of economic impacts in developing RCRA regulations. 36 However, the rationale for tentatively denying the petitioners' requests is discussed extensively in the tentative denial, and the tentative denial is not based on the potential economic impacts of the petitioners' proposals. Rather, the discussion in the tentative denial focuses on evaluating the available data on exposures to and adverse effects on workers exposed to materials the petitioners identified as being of concern and as illustrating the need for revisions to the RCRA corrosivity regulations. It does not reference the industry estimates of possible economic impacts from a regulatory change. The key data the Agency considered in coming to its conclusions include the properties of and exposures to dust at the WTC disaster site, cement manufacturing facilities, and building demolition events; the type and severity of adverse health effects attributable to these exposures; and consideration of whether the materials were wastes under RCRA. As discussed above, the adverse effects associated with these exposures were not corrosive injuries of the type or severity the Agency sought to prevent in establishing the corrosivity characteristic regulations. At the WTC site, the properties of the dust to which workers may have been exposed was also of varying composition and the pH of the dust varied at different parts of the site and changed over time with exposure to water and ambient air. Also, many WTC dust measurements showed pH values less than pH 11, and so these data did not support a change in the regulatory pH value to 11.5.

The Agency has separately assessed the hazards of CKD, and despite its high pH (pH 10-13), did not find corrosive injury to potentially exposed workers. 37 The Agency further identified a number of studies of cement plant workers, including two reviews of these studies. In 2005, the United Kingdom Health and Safety Executive published a Hazard Assessment Document focused on Portland cement dust exposures that reviewed 15 studies of exposures to and adverse health effects occurring in cement plant workers. Fell and Nordby (2017) conducted a systematic literature review that identified 26 research publications focused on cement plant exposures and non-malignant respiratory effects. While some adverse effects of exposure were identified, neither of these reviews identified corrosive injuries among the exposed workers. These studies do not distinguish between production and waste management-related exposures at the cement plants; however, CKD and cement are very similar in composition, and some cement plant worker exposures would have included CKD handling and management. Also, many of the reviewed studies were of cement production outside the U.S., where worker safety protections may be less stringent, and exposures may have been higher than is typical in the U.S. The investigators presenting these studies conducted medical examinations of the exposed workers to identify adverse health effects that may be associated with their workplace exposures. The lack of corrosive injuries in these exposed worker populations indicates that the CKD and cement dust exposures do not result in corrosive injuries, and so do not support a need to revise the RCRA corrosivity regulation. These reviews and many of the publications reviewed are discussed in greater detail in the response to comments document accompanying today's Notice.

Data from instances of dust exposure resulting from building demolitions identified by petitioners may have established that there have been exposures in these settings, but it did not identify any corrosive injuries in people exposed. Further, these examples pose the question of distinguishing situations and hazards that might involve waste or waste handling (which may be subject to RCRA), from materials, activity or hazards not related to waste or waste management. The information available to the Agency in this case is not adequate to distinguish waste-related exposures from other exposures, particularly for the WTC and building demolition exposures; nor do petitioners make a distinction between waste-related and non-waste exposures in the petition or their comments on the tentative denial. Because the available data did not identify corrosive injuries resulting from dust exposure, including dust exhibiting pH values between 11.5 and 12.5, and were not adequate to identify waste-management related exposures (as distinct from other exposures), the Agency concluded that the regulatory revisions requested by the petitioners were not warranted.

The petitioners also expressed concern that the Agency's tentative denial inadequately considered materials on other possible corrosivity damage cases and the corrosivity regulations of several states that differ from the federal regulations (state waste management requirements may be more stringent that the federal requirements). The Agency did identify information on these two topics in the course of developing the tentative denial, and this information was placed in the public docket. However, these issues were not discussed in the tentative denial because the Agency concluded that the available information did not strongly argue for either changing or not changing the corrosivity regulation. In response to petitioner concerns, the Agency's assessment of the materials relating to these two issues is below.

As part of assessing the petition, EPA hired a consultant to identify and develop a report on any environmental damage cases, or incidents, potentially caused by corrosive waste mismanagement that have occurred since the corrosivity regulation was established. The resulting information was placed in the docket supporting the tentative denial. Of the 21 possible damage incidents identified by the contractor, one was the WTC site, which is addressed extensively elsewhere in this Notice, and four identified acids only or no corrosive material. Of the remaining 16 incidents, pH data were reported for eight, with four showing pH values above 12.5, two reported values less than pH 11.5, and three reported data between pH 11.5 and 12. At one site without pH data, some amount of sodium hydroxide was reported, which would potentially be a newly regulated hazardous waste under the petitioners' proposals. CKD mismanagement over the period 1984-1993 was identified as the cause of environmental damage at nine of the 16 incidents identified, all of which were reviewed in the 1994 CKD Report to Congress (see: 59 FR 709, January 6, 1994 and Tables 5-2 and 5-3 of the report). For seven of these, data ranging from pH 11.0-13.6 were reported. None of the incidents reported worker or other injuries either before or during remediation.

These incidents illustrate the fact that potentially corrosive wastes have in the past, and may potentially in the future, be mismanaged. However, when considered together, these incidents do not clearly argue either for or against revision of the current corrosivity regulation. The wastes at several sites had pH values less than the petitioners' requested value of pH 11.5 (and so would not be regulated under the proposed revisions), several others reported pH values above the current regulatory standard (and were aqueous wastes), and so were already regulated as RCRA corrosive hazardous waste. Wastes at the three sites with pH between these values would be newly regulated under the petitioners' proposed revisions. Two of these sites had leachate or ponded water contaminated with CKD, and the third was a drum reconditioner site.

Petitioners comments also identify a National Priorities List (NPL or Superfund) site not considered in the tentative denial, where caustic soda (sodium hydroxide) and hydrofluoric acid were found to be mishandled by the state of New Hampshire (at the Kearsarge Metallurgical Corp site; EPA, 1990). Significant amounts of these materials were removed from the site before listing on the NPL, although an unspecified amount of potentially corrosive material was found in waste piles and in drums buried under the waste piles. However, the Record of Decision (ROD) does not provide enough detail to understand the relevance of this incident to the petitioners' concerns. No pH testing is reported in the ROD, and while some of the material was identified as being solid, other material was liquid. No injuries to workers or others were reported.

Petitioners also raise a concern that the tentative denial did not specifically address the several states that have waste corrosivity regulations that are more stringent or broader in scope than the federal regulations, although materials related to these state programs were included in the rulemaking docket. 38 Under RCRA, states may be authorized to implement the federal hazardous waste regulatory program within their state, and most states have sought and received such authorization (RCRA 3006(b)). States are also allowed to set more stringent regulatory standards for wastes generated or managed in their state, and a number of states have broadened the scope of their hazardous waste management regulations beyond the federal requirements. These changes may be intended to address hazards from wastes that are particular to that state, may reflect state regulatory policy choices that are different from federal regulations, or for other reasons. These regulations apply only to waste generated or managed within the state.

Several states have expanded the scope of the RCRA corrosivity regulation for wastes in their states, including California, Washington, New Hampshire, Vermont and Rhode Island. All of these states expanded their definitions of corrosive waste to include non-aqueous wastes, but all retained the RCRA regulatory value of pH 12.5 (or higher). However, Rhode Island has withdrawn its regulation for non-aqueous corrosives. 39 California regulates solid corrosives, but excludes waste concrete, cement, cement kiln dust and clinker from regulation as corrosive hazardous waste. 40 The Agency collected some data on wastes regulated under these expanded state programs, but they were of limited value in considering the petitioners' requests. California's waste identification codes do not distinguish between aqueous and non-aqueous corrosive waste, so their data would not have helped the Agency understand implementation of their non-aqueous corrosive waste regulatory program. Data from other states also did not provide the Agency with much insight about regulating non-aqueous wastes, as they are not heavily industrialized states, generate relatively little hazardous waste, and may not be representative of more industrialized states and the types and volumes of wastes their industries might generate (EPA 2011, EPA 2020).

A number of different companies and industry groups submitted comments on the tentative denial of the corrosivity rulemaking petition. One group of 18 trade entities and companies included the American Chemistry Council (ACC), American Iron and Steel Institute (AISI), the American Fuel & Petrochemical Manufacturers, the Portland Cement Association (PCA), and the waste treatment and disposal company Waste Management Inc., among others. Other industry commenters include the Retail Industry Leaders Association (RILA), the National Ready-Mixed Concrete Association, the Environmental Technology Council (ETC; representing hazardous waste treatment and disposal companies), the Utility Solid Waste Activities Group (USWAG; representing 110 energy utilities and energy generating companies), and another group of industries identifying themselves as the “RCRA Corrective Action Project” (representing Waste Management, Inc. and apparently other Fortune 50 companies not identified in the comment).

Several of these companies or associations also submitted comments on the tentative denial to the Agency as part of the Agency's broad regulation review efforts that solicited public comments starting April 13, 2017 (82 FR 17793, April 11, 2016). New comments were sent by a group calling itself the “Federal Recycling and Remediation Council” composed of a number of industrial companies that believe they might be affected by changes to RCRA regulations (although the submission did not identify its members), the ACC, and the Holly Frontier Corporation (a petroleum refiner).

These commenters supported the Agency's analysis and conclusions presented in the tentative denial and/or urged the Agency to issue a final denial of the petition as soon as practicable. These companies and organizations identified a number of concerns in expressing their opposition to the regulatory revisions sought by the petition. Their concerns include a number of possible impacts of the proposed regulatory changes, and many commenters' belief that the regulatory changes sought would, if implemented, provide no meaningful public health benefit (although no risk assessment nor other evaluation was submitted in support of this conclusion).

Industry commenters were concerned about both cost and non-cost impacts of the proposed changes. The regulatory changes sought by the petitioners would, if implemented, result in more stringent definitions for corrosive waste, and/or broaden the scope of the regulation, and so more waste would be regulated as corrosive hazardous waste. The industry comments on the tentative denial reiterate their earlier estimates (submitted to the Agency while the tentative denial was under development, and referenced in the tentative denial) of the types and volumes of waste generated by facilities from different industries they believe would become newly regulated under the proposed revisions, and the possible cost of managing such additional waste volumes as RCRA hazardous. Industry commenters were also concerned about the impact of the proposed regulatory requirements on the use/re-use of certain waste materials. As described above, the proposed revisions could have a significant impact on the reuse of POTW biosolids as fertilizer.

Commenters on the tentative denial also identified several non-economic impacts that could occur under revised corrosivity regulations. Commenters representing POTWs expressed concern that lowering the regulatory pH value to 11.5 could increase the risk of hydrogen sulfide (H 2 S, a toxic gas) formation in sewer systems and exposure to workers, due to both the lower pH, and the possible addition of sulfuric acid to wastewater to reduce its pH for compliance with wastewater pretreatment requirements. These commenters also expressed concern that lower pH wastewater would allow more bacterial growth in wastewater treatment systems, which can corrode system components. While the water treatment facility concerns may have some merit, the degree to which pH reduction pre-treatment may be used is not clear, as RCRA generally allows discharges of hazardous wastewaters to POTWs under 40 CFR 261.4(a)(1). Therefore, it is not clear how much H 2 S risk might increase under the petitioners' proposals. Research on H 2 S control methods indicates pH adjustment below pH 11.5 may continue to be effective, and treatment with ferric chloride can precipitate out the sulfur if needed. Maintaining pH 8.6-9.0 can reduce the transfer of H 2 S from liquid to the gas phase in sewers, and reduce sulfide and methane production, although pH values higher than pH 9.0 may interfere with treatment plant digester bacteria (Gutierrez et.al., 2009). However, “shock dosing” of sewer systems up to pH 12.5-13.0 using sodium hydroxide for a short time period is also used in some instances (Park et.al., 2014).

Other commenters identified potential negative impacts to hazardous waste treatment methods and operations for other hazardous wastes, and to EPA's Land Disposal Restriction (LDR) waste treatment regulatory program. Alkaline chemicals are frequently used in stabilization/solidification treatment of toxic metals occurring in hazardous wastes, to immobilize them (by converting metals to insoluble salts, or by changing matrix pH to reduce solubility) and reduce possible release to the environment (Conner, 1990; EPA, 1991). Also, Portland cement is one of the most frequently used materials for solidification/stabilization of inorganic hazardous waste. Wastes initially exhibiting the toxicity characteristic because of their metals content can, after meeting the LDR treatment requirements, be disposed in a non-hazardous waste landfill. However, for many metal-bearing wastes, metal compound solubility is minimized at or below pH values of 11.0 (CdOH has its minimum solubility around pH 11); minimum solubilities for other metal oxides occur at lower pHs; (Conner, 1990; Conner and Hoeffner, 1998). It is therefore difficult to assess the likely impact of a revised corrosivity regulation on treatment of metal-bearing hazardous waste.

One commenter noted that the petitioned-for revisions could result in the regulation of waste concrete as hazardous, a waste they believe has been safely managed in construction and demolition (C&D) landfills for many years. Review of leachate data from C&D landfills published from 1995-2014 indicate an overall pH range of 6.2-8.9 (Lopez and Lobo, 2014), indicating that disposed concrete is not creating highly alkaline conditions in landfills that currently accept it for disposal. Further, while the state of California does regulate corrosive solids as hazardous within the state, it excludes waste cement, CKD, clinker and clinker dust (California Health and Safety Code Sec 25143.8) and waste concrete from this designation (CalTrans, 2004).

Industry stakeholder commenters also believe that the public health benefits of revised corrosivity regulations would be minimal. This belief is based in part on the lack of a significant number of worker injuries or damage cases they have observed during their operations related to the handling of wastes that are not regulated as hazardous under the current regulation, but that might be regulated under regulations incorporating the petitioners' requests. In the course of developing the tentative denial, the Agency reviewed several information sources to identify injuries or other damage that may have resulted from waste the petition would newly regulate (see: 81 FR 21307, April 11, 2016). These included an OSHA worker injury database, damage cases identified in an Agency report as resulting from recycling activities, and a report of a contractor search for damage cases that might be related to waste the petitioners have sought to regulate. None of these sources identified significant corrosive injuries from waste management or from aspects of production processes that might pose exposures similar to those that might occur during waste management.

Two state environmental agencies submitted comments on the Agency's tentative denial. The Michigan Department of Environmental Quality (DEQ) supported the tentative denial evaluation of the rulemaking petition, and the Agency's conclusions presented there, without further comment. The Oklahoma DEQ supported the regulation of corrosive solids, also without further comment or discussion.

A number of comments were also received from individual members of the public. These include five law school students, three unaffiliated individuals, and four anonymous commenters. The Agency responds to these comments in the Response to Comments document accompanying today's Notice.

The Agency has reviewed and evaluated the key comments, information, and arguments submitted by the petitioners and other interested stakeholders on the Agency's tentative denial of the rulemaking petition, as well as additional relevant information identified by the Agency. Based on its evaluation of the information as presented in this Notice and in the Response to Comment Document accompanying today's Notice, the Agency has concluded that because the available information does not support revision of the RCRA corrosivity characteristic regulations sought by the petitioners, such revisions are unwarranted. Consequently, the Agency affirms its tentative denial and presents this Notice of final denial of the PEER/Jenkins petition in its entirety.

In their comments on the tentative denial, the petitioners argue that EPA improperly relied on waste treatment and management considerations as part of the basis for the corrosivity regulation. Petitioners assert that assessments of the inherent hazard of wastes should be the only consideration in establishing the corrosivity regulation under RCRA, and further, that the Agency is legally obligated to promulgate the corrosivity hazard assessments presented in GHS and ILO guidance as the RCRA corrosivity regulatory standard. Much of the information provided and arguments made by petitioners are intended to support this view. The Agency disagrees for several important reasons. The Agency has the discretion under RCRA to regulate potentially corrosive wastes based on the risks they may pose when plausibly mismanaged, and most corrosive waste does not pose the extremely high level of hazard posed by acutely hazardous wastes, such as wastes that are acutely lethal toxins with very low LD 50 values or explosives or similarly highly reactive compounds. Absent evidence of such an acute degree of intrinsic hazard, EPA's approach to identifying which wastes are hazardous under RCRA is based on the risk posed when waste is mismanaged, which is a key factor to evaluate in hazardous waste determinations, and has been used to establish regulations for other hazardous characteristics and many hazardous waste listings. 41 All waste, regardless of whether the waste is classified as hazardous, is intended to be subject to some level of control under RCRA, and for most waste, the intrinsic hazard is only one factor considered in determining whether the waste is hazardous under RCRA. The Agency has used its discretion to take this approach when developing regulations for many hazardous wastes promulgated under the authority of RCRA. 42

Further, reliance on international guidance in developing regulatory programs such as that provided by the ILO or in the GHS, is discretionary, and RCRA and other statutes do not reference nor require the use of such guidance in developing regulatory programs. As noted, the Agency considered the ILO guidance as one factor in establishing the corrosivity regulation, but also considered waste management practices as part of its determination. Petitioners' assertions that only inherent hazard may be considered identifies their disagreement with the Agency's approach to regulating hazardous waste. However, the program structure developed by the Agency in 1980 is well within Agency discretion under RCRA, and has been successfully implemented for more than 40 years.

The other key question regarding the petition concerns whether the record compiled for this action indicates that the current corrosivity regulation is inadequately stringent to protect human health and the environment from mismanagement of potentially corrosive waste, as asserted by the petitioners. Petitioners acknowledge that it is not necessary to conclude that WTC injuries are corrosive injuries to supporting their petition requests. Petitioners nonetheless continue to argue that WTC first responder and other injuries have resulted from corrosive properties of the WTC dust, without considering that injuries may have been due to exposure to high levels of other dust components, including pulverized glass, smoke from ongoing fires, or the many toxic constituents that have been identified in WTC dust and air samples, or the combination of these different exposures. Petitioners also insist in the petition and in their comments on the tentative denial that WTC injuries are corrosive injuries, despite the fact that research publications reporting on studies of the WTC dust-exposed cohorts describe primarily chronic respiratory symptoms (such as asthma or reduced forced expiratory volume) resulting from their exposure. While these are serious symptoms of adverse health effects, none of the research publications and reports identified by the Agency, the petitioners, or other commenters on the tentative denial, identify the type of gross tissue injury the Agency described in the 1980 background document and sought to prevent in promulgating the RCRA corrosivity characteristic. The Agency's review includes health effects studies of first responders, other WTC workers, and area residents, including children exposed to the WTC dust cloud on the day the towers collapsed. Petitioners also criticize much of the data collected on WTC dust samples (both settled dust and worker breathing-zone samples) that were evaluated to understand exposures and insist that other testing of samples was or should have been conducted. They argue that many of the studies of WTC dust were inappropriate or invalid because they did not use test methods petitioners believe to be more appropriate and hypothesize about the likely results of testing using their preferred protocols. However, these arguments are speculative, and the Agency cannot rely on the petitioners' conjectures and speculations as the basis for a regulation. While more systematic collection of human exposure and other data concerning the WTC disaster and its aftermath may have provided a better basis for evaluating WTC exposures, the Agency must rely on the data that do exist.

Petitioners also fail to connect any particular WTC exposures to waste management activities. That is, not all WTC worker and other exposures were exposures to waste, but petitioners do not identify particular exposures as resulting from waste or waste management, and distinguish them from exposures unrelated to waste management activities (such as exposure to the dust cloud on the day the towers collapsed). Identifying exposures resulting from waste management is a necessary part of petitioner arguments to revise the corrosivity regulation, as RCRA gives the Agency authority only to control waste and waste management and its resulting hazards. The Agency's conclusion after examining the existing data related to this issue is that based on available data, it is not possible to identify WTC exposures that may be related to waste management as distinct from activities and exposures unrelated to waste management. Absent a connection to waste management activities, RCRA does not apply. The petitioners have also not explained their assertion that more stringent RCRA corrosivity regulation would have reduced WTC worker exposures and hazards, nor how their requested revision of the RCRA corrosivity regulation now would reduce risks in a future event.

Other exposures cited by the petitioners as supporting the need for revision of the corrosivity regulations (exposure to CKD and building demolition dust) similarly have also not been found to cause corrosive injury. Petitioners also identify a Superfund site not considered in developing the tentative denial, where caustic soda (sodium hydroxide) and hydrofluoric acid were found to be mishandled but were removed from the site and disposed before NPL listing, although some residual material was found. However, the lack of pH testing or other detailed reporting of this material makes it difficult to evaluate its relevance to the petitioners' requests. No off-site contamination, ecological damage or injuries were identified.

In consideration of the information and arguments submitted to the Agency in response to its tentative denial of the petitioners' rulemaking request, and the Agency's evaluation and other relevant information identified by the Agency, as described above and in the Response to Comments document accompanying today's Notice, the Agency has determined that because changes to the existing RCRA corrosivity characteristic regulation are not supported by the available information, such changes are unwarranted. Consequently, the Agency denies the PEER/Jenkins Rulemaking petition to revise the RCRA corrosivity regulation in its entirety.

On January 8, 2021, Nevada submitted a complete program revision application seeking authorization of changes to its hazardous waste program in accordance with 40 CFR 271.21. The EPA now makes a final decision that Nevada's hazardous waste program revisions that are being authorized are equivalent to, consistent with, and no less stringent than the Federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. For a list of State rules being authorized with this Final Authorization, please see the Proposed Rule published in the April 5, 2021, Federal Register at 86 FR 17572.

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

This final authorization revises Nevada's authorized hazardous waste management program pursuant to Section 3006 of RCRA and imposes no requirements other than those currently imposed by State law. For further information on how this authorization complies with applicable executive orders and statutory provisions, please see the Proposed Rule published in the April 5, 2021, Federal Register at 86 FR 17572. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This final action will be effective June 15, 2021.

NTIA, the Executive Branch agency principally responsible for advising the President on telecommunications and information policy issues, launched its Minority Broadband Initiative (MBI) in November 2019 as an integral part of NTIA's mission and commitment to expanding broadband internet access and adoption in America. With the MBI, NTIA took the lead on minority stakeholder engagement on broadband deployment in unserved and underserved areas of the country through initially partnering with HBCUs and TCUs. The Consolidated Appropriations Act, 2021, Division N, Title IX, Section 902, Public Law 116-260, 134 Stat. 1182 (Dec. 27, 2020), codifies the work of the MBI by directing NTIA to establish the Office of Minority Broadband Initiatives, expanding the Agency's reach to engage MSIs, and to promulgate rules establishing the CMC Pilot Program. The purpose of the Act is to realize the potential of HBCU, TCU, and MSI institutions that will aid in America's economic development, growth of social capital and increased productivity. NTIA will build and expand upon its relationships with HBCU, TCU and MSI institutions to both fulfill the duties of the Office of Minority Broadband Initiatives and to implement the CMC Pilot Program.

Moreover, NTIA's mission is to foster robust broadband access, connectivity and adoption as these are essential elements to support the nation's economic growth and social advancement. NTIA believes that broadband is a conduit for economic development and social opportunities for U.S. households and a gateway to increased productivity, growth and market access for businesses of all sizes. Yet, many American communities, households and critical anchor institutions lack sufficient broadband connectivity and experience significant challenges with digital inclusion, adoption, access and equity, specifically within vulnerable communities, communities of color, and with students at HBCUs, TCUs and MSIs. The COVID-19 pandemic has exacerbated these inequities for students, faculty and staff at HBCUs, TCUs and MSIs.

To address these critical issues, Congress passed the Act to enhance and expand certain provisions of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). 1 In the Act, Congress directed NTIA to provide grants to eligible recipients in anchor communities for the purchase of broadband internet access service or any eligible equipment, or to hire and train information technology personnel: (1) To facilitate educational instruction and learning, including through remote instruction; or (2) to operate a minority business enterprise; or (3) to operate a tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code of 1986, as amended. Through this CMC Pilot Program, NTIA will directly address the lack of broadband access, connectivity, adoption and equity at our nation's HBCUs, TCUs, and MSIs and in their surrounding anchor communities.

NTIA adopts these rules to establish, implement, and administer the CMC Pilot Program. Under the Act, Congress directed NTIA to promulgate these rules to establish a method to identify, determine and verify CMC applicant eligibility; to identify which eligible recipients in anchor communities have the greatest unmet financial needs; and to ensure that grants under the Pilot Program are made to eligible recipients in a manner that best achieves the purposes of the Pilot Program. 2

Accordingly, NTIA developed the following methodology and supporting rationale utilizing information and data from the agency's National Broadband Availability Map (NBAM) and in consultation with several Federal agencies including the U.S. Department of Education (ED), National Center for Education Statistics (NCES), Minority Business Development Agency (MBDA) and the Internal Revenue Service (IRS).

1. Method for identifying and verifying that an applicant is an HBCU, TCU, or MSI eligible recipient.

NTIA will analyze available data to establish program eligibility as follows:

a. Eligible institutions must be designated in one of the seven categories delineated by the U.S. Department of Education as authorized by the Higher Education Act of 1965. 3

b. Where the school type has been legislatively defined and a list of institutions is available from the Federal government, as is the case for HBCUs and TCUs, NTIA will use the data/information provided by the NCES to verify their historical designation.

c. Where the U.S. Department of Education provides eligibility criteria, but does not publish a definitive list of institutions (for example, Asian American and Native American Pacific Islander-serving institution (AANAPISI), Hispanic-serving institution (HSI), Predominantly Black institution (PBI), Alaska Native-serving institution/Native Hawaiian-serving institution (ANNH), and Native American-serving, non-Tribal institution (NASNTI) designations), NTIA has defined the universe of eligible institutions as those institutions that the U.S. Department of Education defines as eligible or potentially eligible in that category within the U.S. Department of Education's most recently released Eligibility Matrix. 4 (Currently the 2020 Eligibility Matrix, but NTIA will update this approach to include the U.S. Department of Education's 2021 Eligibility Matrix, and any subsequent Matrix, as applicable, upon release.)

Accordingly, under this methodology and rationale, NTIA estimates the universe of “eligible” recipient institutions, as of 2020, 5 is as follows:

2. Method for identifying and mapping areas or anchor communities that are within a 15-mile radius of each eligible HBCU, TCU, or MSI and that meet the estimated median annual household income of not more than 250 percent of the poverty line.

To identify those areas surrounding a qualifying institution in which the “estimated median annual household income is not more than 250 percent of the poverty line,” NTIA will use median household income estimates from the most recent U.S. Census Bureau's American Community Survey (ACS) for each census tract falling wholly or partially within the applicable area (so long as corresponding poverty threshold data is also available for that time period, to ensure comparison of similar datasets). Census tracts are the smallest geographic units for which median household income estimates are available, enabling more precise identification of the eligible areas defined in the statute. Currently, the most recent available data estimates are from 2015-2019. For each relevant census tract, NTIA will compare the median household income estimate with the most recent poverty thresholds published by the Census Bureau (so long as corresponding household income data is also available for that time period, as discussed above). Currently, the most recent available data is from 2019. NTIA will use the weighted average poverty threshold that corresponds to the mean household size in each tract. If the mean household size is between two whole numbers, NTIA will round up to the next whole number to determine the applicable weighted average poverty threshold. This will help to ensure that the program's eligibility standards include as many communities in need as possible. If the median household income of a census tract does not exceed 2.5 times the applicable weighted average poverty threshold, that tract will be considered part of the anchor community. These data sets have a small margin of error that may affect the potential eligibility of particular census tracts, and data gaps may exist. NTIA will address this margin of error and an applicant's submission of its own data to support eligibility in the program's NOFO. A further breakdown of NTIA's approach is as follows:

a. The 250 percent threshold will be determined for household size based on the most recent poverty thresholds available from the U.S. Census Bureau, so long as household size data for that time period is also available. 8

b. The 250 percent poverty threshold by household size will then be applied to the average household size in each census tract according to the most recent American Community Survey data available, so long as poverty threshold data for that time period is also available.

c. Utilizing capabilities within the NBAM platform, a 15-mile buffer will be drawn around each eligible institution as described above.

d. A digital overlay will be used to select all census tracts for each anchor community boundary. If any part of a census tract falls within the boundary, NTIA will include that entire census tract in order to avoid excluding potentially eligible communities. The median household income in each anchor community census tract will be compared to the 250 percent poverty threshold as defined above to determine if the anchor community tract does not exceed the prescribed poverty threshold.

3. Method to determine a comparable maximum distance for TCU anchor community located on land held in trust by the United States is statistically comparable to anchor communities defined as not more than 15 miles from an HBCU, TCU or MSI.

In the Act, Congress also directed that NTIA may establish, in consultation with the Secretary of the Interior, a separate anchor community boundary for those Tribal schools located on land held in trust by the United States, if NTIA can ensure that each anchor community that is established is statistically comparable to other anchor communities within the CMC Pilot Program. After consultation with the Secretary of the Interior and upon review of the applicable data and information for the purposes of CMC Pilot Program consideration, NTIA will apply this standard as follows: For TCUs located on land held in trust by the United States that are also located within a reservation, the boundary of the reservation on which the TCU falls will be substituted for the 15-mile buffer to create an Area of Interest (AOI) for each institution. These AOIs will be used to define the institution's anchor community boundary.

4. Method to identify which eligible recipients have the greatest unmet financial need. NTIA has interpreted that this requirement refers to both the “eligible institution” and the “students that attend the eligible institutions” and therefore, for ease of application, will analyze the student need data. Accordingly, to determine which eligible recipients have students with the greatest unmet financial needs, each applying eligible institution must provide the following information in their application for funding (or as much of the information as is reasonably available to the institution), to include any supplementary information to explain the data:

(i) Student population size;

(ii) Number and percentage of students that are eligible to receive Federal Pell Grants;

(iii) Number and percentage of students that receive other need-based financial aid from the Federal government, a State, or that institution;

(iv) Number and percentage of students that qualify as low-income consumers;  9

(v) Number and percentage of students that are low-income individuals;  10 and

(vi) Number and percentage of students that have been approved to receive unemployment insurance benefits under any Federal or State law since March 1, 2020.

NTIA will analyze the submitted information for each of these criteria and will develop an assessment of each institution's student body-based unmet financial needs. These assessments will be compared across all submitted applications during the merit review phase and program eligibility determinations will be made based on an evaluation of the data provided and accompanying explanatory information. Final recommendations for project approval and grant funding will be made for those eligible anchor institutions that have demonstrated the highest unmet financial need.

5. Method for verifying that a designated Minority Business Enterprise (MBE) or a 501(c)(3) organization applying as a member of the consortium is an eligible entity.

NTIA will require that a consortium applicant that is an MBE self-certify that it is an MBE-designated entity. For consortium applicants that claim tax exempt status, NTIA will utilize the Internal Revenue Service's 501(c)(3) certification portal/database to verify the organization's 501(c)(3) status.

As required by section 902(c)(1) of the Act, we are including all eligibility requirements in the program rules below in §§ 302.3-302.6. Further, § 302.5 addresses the interagency coordination required by section 902(c)(3) of the Act.

This rule has been determined to be significant under of Executive Order 12866, and therefore has been reviewed by the Office of Management and Budget (OMB).

The effective date of this final rule is the date of publication in the Federal Register . The Administrative Procedure Act's rulemaking requirements, including the requirement to engage in a notice and comment process and the 30-day delay in effective date for substantive rules, do not apply here as this rule concerns grants. See 5 U.S.C. 553(a)(2).

This final rule is not subject to the requirements of the Regulatory Flexibility Act, as NTIA was not required to publish a notice of proposed rulemaking or provide an opportunity for notice and public comment prior to publication of this final rule. See 5 U.S.C. 601(2), 603, 604. Accordingly, no Regulatory Flexibility Analysis is required, and none has been prepared.

This final rule does not contain policies having federalism implications requiring preparations of a Federalism Summary Impact Statement.

This rulemaking has been reviewed under Executive Order 12988, Civil Justice Reform, as amended by Executive Order 13175. NTIA has determined that the final rule meets the applicable standards provided in section 3 of the Executive Order to minimize litigation, eliminate ambiguity, and reduce burden.

Applications under this program are subject to Executive Order 12372, “Intergovernmental Review of Federal Programs,” which requires intergovernmental consultation with State and local officials. Non-TCU applicants are required to submit a copy of their applications to their designated State Single Point of Contact (SPOC) offices. See 7 CFR part 3015, subpart V.

NTIA respects the sovereignty of Tribal nations and the various arms of Tribal governments, including institutions of higher education. TCUs will be encouraged to consult with the Tribal entity through which they are chartered, to promote collaboration and a unified approach to addressing the mission of the CMC Pilot Program.

This final rule does not contain policies that have takings implications.

NTIA has analyzed this final rule under Executive Order 13175 and has determined that the action would not have a substantial direct effect on one or more Indian Tribes, would not impose substantial direct compliance costs on Indian Tribal governments, and would not preempt Tribal law. Therefore, a Tribal summary impact statement is not required.

This document does not contain new collection-of-information requirements subject to the Paperwork Reduction Act.

This final rule contains no federal mandates (under the regulatory provision of Title II of the Unfunded Mandates Reform Act of 1995) for State, local, and Tribal governments or the private sector. The program is voluntary and applicants that meet all eligibility requirements could receive grant funds. Thus, this rulemaking is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.

NTIA has reviewed this rulemaking action for the purposes of the National Environmental Policy Act. NTIA has determined that this final rule would not have a significant impact on the quality of the human environment.