EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0038, dated February 27, 2020 (EASA AD 2020-0038), to correct an unsafe condition for all serial-numbered Wytwórnia Sprzętu Komunikacyjnego (WSK) “PZL-Świdnik” Spółka Akcyjna (S.A.) Model PZL W-3A and PZL W-3AS helicopters. EASA AD 2020-0038 advises that a bolt part number (P/N) 3003A-6-16-3 was found broken on fairing P/N 30.23.015.00.03 installed on vibration absorber P/N 30.23.000.00.04. EASA states further investigations identified that the maintenance instructions detailing how to secure the affected parts did not include the torque value information to tighten the castellated nut P/N 3336A-6. EASA further states that this condition, if not corrected, could lead to detachment of the affected part from the helicopter and its subsequent contact with helicopter stationary or rotary parts, possibly resulting in damage to, and consequent reduced control of, the helicopter.

Accordingly, EASA AD 2020-0038 requires the use of improved installation instructions to secure the affected fairing to the vibration absorber.

These helicopters have 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 is issuing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of the same type design.

The FAA reviewed WYTWÓRNIA SPRZĘTU KOMUNIKACYJNEGO “PZL-Świdnik” Spółka Akcyjna Alert Service Bulletin No. ASB-37-19-307, dated January 27, 2020. This service information specifies checking (inspecting) the bonding between the fairing and vibration absorber star for any nonconformity and improving the bonding if necessary. This service information also specifies the specific torque to be used to tighten the castellated nuts during installation of the fairing onto the vibration absorber.

This AD requires, within 300 hours time-in-service after the effective date of this AD, removing from service each bolt P/N 3003A-6-16-3, washer P/N 3402A-1, and castellated nut P/N 3336A-6 that secure fairing P/N 30.23.015.00.03 to vibration absorber P/N 30.23.000.00.04, and inspecting the bonding between the fairing and vibration absorber to determine if there is any anodic coating. If there is anodic coating, this AD requires polishing the surface of the fairing where the washers make contact, burnishing the affected area using abrasive paper, and washing the surface with a cleaning solution. This AD then requires installing a new bolt, new washer, and new nut to connect the fairing to the vibration absorber. Additionally, this AD requires using a specified torque, torqueing each nut, locking each nut with a cotter pin, and if the specified torque cannot be accomplished, removing the washer and nut from service, installing airworthy parts, and reapplying torque. Finally, this AD prohibits installing an affected fairing or vibration absorber unless they meet the inspection and installation requirements of this AD.

EASA AD 2020-0038 applies to all serial-numbered Model PZL W-3A and PZL W-3AS helicopters, whereas this AD only applies to Model PZL W-3A helicopters with fairing part number (P/N) 30.23.015.00.03 installed on vibration absorber P/N 30.23.000.00.04 installed. This AD does not apply to Model PZL W-3AS helicopters because that model is not FAA type-certificated.

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.

There are no helicopters with this type certificate on the U.S. Registry. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the foregoing reasons, 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.

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-2021-0652; Project Identifier MCAI-2020-00271-R” 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 Kristi Bradley, Program Manager, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email kristin.bradley@faa.gov. 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 the FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

There are no costs of compliance with this AD because there are no helicopters with this type certificate on the U.S. Registry.

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, 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's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the Class E airspace at Gulkana Airport, Gulkana, AK, to ensure the safety and management of IFR operations at the airport.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 22366; April 28, 2021) for Docket No. FAA-2021-0275 to modify the Class E airspace at Gulkana Airport, Gulkana, AK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

After the publication of the NRPM, the FAA identified a change to the RNAV (GPS) RWY 15 approach, affecting the Class E airspace extending upward from 1,200 feet above the surface. As a result, the FAA is removing the proposed change to this Class E airspace area from the Final Rule. The airspace will remain within a 76-mile radius of Gulkana Airport.

Class E2 and Class E5 airspace designations are published in paragraphs 6002 and 6005, respectively, of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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

This amendment to 14 CFR part 71 modifies the Class E airspace, designated as a surface area, at Gulkana Airport, Gulkana, AK. The areas extending north and south of the 4-mile radius are removed, the areas are no longer required to contain IFR aircraft descending below 1,000 feet above the surface. This action also removes the following verbiage from this airspace area “to and including 4,100 feet MSL”. The ceiling of this airspace area is now aligned to the floor of the overlying controlled airspace, which begins at 700 feet above the surface.

This action also modifies the Class E airspace extending upward from 700 feet above the surface. This airspace is designed to contain IFR departures to 1,200 feet above the surface and IFR arrivals descending below 1,500 feet above the surface. To properly contain IFR aircraft arriving and departing from the airport, the circular radius of the airspace is reduced from 6.5 miles to 5 miles. The area extending south of the 5-mile radius is enlarged to contain aircraft holding for the RNAV (GPS) RWY 33R approach. The area extending north of the 5-mile radius is also modified slightly; this modification accounts for using the airport as the sole reference for the airspace's description.

Additionally, this action removes the Gulkana VORTAC and the Glenallen NDB from the Class E2 text header and airspace description. This action also removes the Gulkana VOR/DME from the Class E5 text header and airspace description. The navigational aids (NAVAID) are not needed to define the airspace and removal of the NAVAIDs simplifies the airspaces' descriptions.

Lastly, the action implements administrative updates to the airspaces' text headers and airspace descriptions. On the second line of the Class E5 text header, the redundant use of Gulkana has been removed. On the third line of the Class E2 and E5 text headers, the geographic coordinates are updated to “lat. 62°09′16″ N, long. 145°27′19″ W” In the last sentence of the Class E2 airspace description, the term “Airport/Facility Directory” is updated to “Chart Supplement.”

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

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impractical. This special local regulation must be established by August 12, 2021, and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the special local regulation until after the scheduled date of the air show and compromise public safety.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to ensure the safety of the participants and spectators in the Owensboro Air Show on August 12, 2021 through August 15, 2021.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the Owensboro Air Show, will be a safety concern for anyone within the area. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the special local regulated area for the duration of the marine event.

This rule establishes a temporary special local regulation from 10:30 a.m. through 6:30 p.m. on August 12, 2021 through August 15, 2021. The special local regulation will cover all navigable waters of the Ohio River, extending the entire width, from mile marker 754.0 to mile marker 760.0. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the Owensboro Air Show is taking place. No vessel or person will be permitted to enter the special local regulation without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. This special local regulation restricts transit on the Ohio River between mile marker 754.0 and mile marker 760.0. This area will have limited access for a period of eight hours on August 12, 2021 through August 15, 2021. Moreover, the Coast Guard would issue Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and Marine Safety Information Bulletins (MSIBs), as appropriate, about this special local regulation so that waterway users may plan accordingly for this short restriction on transit, and the rule would allow vessels to request permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation lasting eight hours for four days that will prohibit entry on a six mile stretch of the Ohio River. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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

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

On July 30, 2021 the Coast Guard published a final rule titled “Drawbridge Operation Regulation; Chicago River, Chicago, IL” (86 FR 40957). In this document, FR Doc. 2021-15986, appearing on page 40959, in the first and second columns, the final rule inadvertently deleted what was in paragraph (d) and replaced it with new text. The Coast Guard did not intend to delete the existing text and requirements in 117.391(d). Therefore, we are correcting the final rule to instead add a new paragraph (e) with the same regulatory text as was issued in the final rule and preserve what has been in existing paragraph (d).

On page 40959, in the first column, in part 117, amendatory instruction number 2 is corrected to read as follows:

Section 70011 of Title 46 of the United States Code (U.S.C.) authorizes the Secretary of the Department of Homeland Security (DHS) to establish procedures, standards, and measures for the handling of dangerous substances, including oil and hazardous material, to prevent damage to any structure on or in the navigable waters of the United States. Additionally, the Federal Water Pollution Control Act (FWPCA), as amended and codified in 33 U.S.C. 1321(j)(5), requires the President to establish regulations requiring response plans for the prevention of discharges of oil and hazardous substances from vessels, onshore facilities, and offshore facilities. The FWPCA functions in 33 U.S.C. 1321(j)(5) have been delegated from the President to the Secretary of the DHS by Executive Order 12777 Sec. 2(d)(2) (Volume 56 of the Federal Register (FR) at Page 54757, Oct. 23, 1991), as amended by Executive Order 13286 (68 FR 10619, March 5, 2003). The authorities in 33 U.S.C. 1321(j)(5) and 46 U.S.C. 70011 (formerly 33 U.S.C. 1225) have been delegated to the Coast Guard under section II, paragraphs 70 and 73, of DHS Delegation No. 00170.1, Revision No. 01.2.

Title 33 of the Code of Federal Regulations (CFR) part 127 requires facilities that transfer liquefied natural gas (LNG), or liquefied hazardous gas (LHG) in bulk, to or from a vessel, to maintain both an Operations Manual and an Emergency Manual. Similarly, part 154 requires facilities that transfer oil or hazardous materials in bulk (MTR facilities), to or from a vessel with a capacity of 39.75 cubic meters (250 barrels) or more, to maintain an Operations Manual. According to 33 CFR 127.019, 154.300, and 154.325, two copies each of the Operations Manual and the Emergency Manual must be submitted to the Captain of the Port (COTP) of the zone in which the facility is located for examination before a facility may operate. Lastly, part 156 describes the requirements for transferring of oil or other hazardous materials on the navigable waters or contiguous zone of the United States to, from, or within each vessel with a capacity of 39.75 cubic meters (250 barrels) or more.

The COTP evaluates whether the operations and safety procedures outlined in the manuals meet the requirements for applicable facilities in 33 CFR part 127 (for LNG and LHG) or parts 154 and 156 (for the transfer operations of oil or hazardous material). If the procedures in the manuals meet the requirements, then the COTP returns one copy of each manual, marked “Examined by the Coast Guard.”

As stated in the notice of proposed rulemaking (NPRM) titled “Electronic Submission of Facility Operations and Emergency Manuals,” published November 27, 2020 (85 FR 75972), the purpose of this rulemaking is to allow facility operators to submit and maintain the Operations Manual and Emergency Manual in either print or electronic format. The comment submissions received on the NPRM expressed general support for allowing electronic submissions and the proposed changes. Therefore, this final rule implements the changes proposed in the NPRM with clarifying edits, as explained in section III of this rule.

Although the previous regulations did not explicitly state that the manuals had to be printed, the previous regulatory requirement for the owner or operator to submit two copies and for the COTP to return one marked copy suggested the use of printed documents. The Coast Guard issued the two-copy requirement for LNG and LHG facilities in 1988 (53 FR 3370, February 5, 1988) and for oil and hazardous materials facilities in 1996 (61 FR 41458, August 8, 1996), when electronic mail and electronic storage were not common practice. This final rule removes the two-copy requirement and allows facility operators to submit one printed or electronic copy of each required manual to the COTP for examination. It also allows facilities to maintain either a printed or an electronic copy of the most recently examined manual(s) in the marine transfer area of the facility.

The Coast Guard received four comment submissions during the NPRM's 60-day comment period that ended January 27, 2021. All four of the commenters supported the proposed change to allow electronic submission and communication regarding Facility Operations Manuals and Emergency Manuals.

Three of the commenters requested that we consider expanding the use of electronic submission, digital tools, and electronic storage to other documents required by regulation. Currently, electronic submission capability exists for the submission of Facility Security Plans for facilities regulated under 33 CFR part 105. The NPRM only proposed and requested comments on allowing electronic submission of Facility Operations Manuals and Emergency Manuals under parts 127 and 154. The Coast Guard is exploring the long-term feasibility of expanding this capability beyond the current requirements, but that is beyond the scope of this rulemaking.

One commenter concurred that all manuals and other written material could be sent electronically, but recommended keeping a printed version readily available and accessible for team members carrying out assignments at the facility. The Coast Guard wants to allow flexibility for facility operators to choose which format is appropriate based on the physical characteristics and operating procedures of their specific facility. While this commenter did not provide reasons why allowing electronic copies at the facility would be inadequate or unsafe, the Coast Guard wants to make it clear that there are existing electrical safety standards that apply to the electronic devices used to display electronic copies of the manuals. In response to this comment, and upon further deliberation, we realize that the text allowing electronic manuals in the marine transfer area could benefit from clarification to help the facilities safely adopt the electronic viewing option. This final rule adds an additional statement to the proposed regulatory text that electronic devices used to display electronic manuals must meet applicable electrical safety standards in the applicable CFR part.

Parts 127 and 154 have electrical safety standards for these facilities that are applicable to electronic devices used in a facility. By adding this regulatory text, we are clarifying that allowing electronic viewing and storage of the Facility Operations Manuals or Emergency Manuals does not circumvent those safety requirements. The Coast Guard anticipates that some facilities will still have printed manuals at their operations stations; those facilities will not be required to maintain an electronic copy under this final rule. We have taken this into account in our cost savings calculations by using data on how many facilities will use electronic and printed manuals.

We are making three changes to the regulatory text we proposed in the NPRM. First, as noted above, in paragraphs 127.309(a), 127.1309(a), and 154.300(f), we add a statement that electronic devices used to display the electronic manuals must meet applicable safety standards in the part. Second, we specify that the requirement for facilities to include identifying information on manual submissions must be revision-specific identifying information, to help the Coast Guard and the facility identify the most recently examined manual. In paragraphs 127.019(c) and (d), 154.300(a)(4) and (e), 154.320(e), and 154.325(c), we changed the proposed text, “identifying information generated by the facility,” to “revision-specific identifying information.” With respect to the revision-specific identifying information, we are also removing the proposed text, “generated by the facility.” The Coast Guard does not intend to limit who can create the revision-specific identifying information. As we discuss in section IV of this preamble, the purpose of requiring facilities to include the publication date, revision date, or other revision-specific identifying information on the manual submissions is so that the Coast Guard and the facility can identify the most recently examined version of the manual. Requiring the identifying information to be revision-specific will help achieve that purpose.

The third change from the NPRM regulatory text is in paragraph 156.120(t)(2), which is the existing requirement for maintaining Facility Operations Manuals and vessel transfer procedures at the facility. After publication of the NPRM, we realized that the proposed text inadvertently allowed electronic copies of vessel transfer procedures, which is in conflict with existing § 155.740. Section 155.740, paragraphs (b) and (c), require that vessel transfer procedures be printed and posted for viewing. The NPRM only discussed allowing electronic copies for the Facility Operations Manuals; we do not intend to allow electronic copies for vessel transfer procedures. Because print or electronic copies of the Facility Operations Manuals will be expressly permitted by new § 154.300, this final rule revises paragraph 156.120(t)(2) from the version in the NPRM to say that “copies” instead of “print or electronic copies” of the Facility Operations Manual and vessel transfer procedures must be available for viewing in the marine transfer area. This change in text will ensure the section does not conflict with the printed copy requirement for vessel transfer procedures in § 155.740.

This final rule amends the following sections in title 33 of the CFR: 127.019, 127.309, 127.1309, 154.300, 154.320, 154.325, and 156.120. A section-by-section explanation of the new requirements follows.

This section will allow owners and operators of facilities that transfer LNG and LHG, in bulk, to or from a vessel to submit one print or electronic copy of their Operations Manual and Emergency Manual to the COTP for examination.

Additionally, to codify current practices, manuals submitted after the effective date of the final rule must include a date, revision date, or other revision-specific identifying information. All manuals currently contain unique identifying information. Paragraph (c) of this section will allow them to continue to use their own identifying information or to use a revision date. The date, revision date, or other revision-specific identifying information, such as document control numbers, will allow the facility operator and the Coast Guard to determine quickly if the most recent version of the manual is being used.

As specified in paragraph (d) of this section, the COTP will respond to the facilities electronically to reduce paperwork-processing costs. Under this rule, the COTP will provide notice to the facility that the manual has been examined, and will no longer return a marked copy of the manual to the facility.

The COTP will determine the best method to return the notice to the facility operator by considering the facility's available contact information and the method in which the manuals were submitted. We expect the COTP's notice will initially take the form of a printed or electronically submitted letter to the facility operator, but could eventually include an electronic certification with the information. The COTP's notice will also include the manual's date, revision date, or other revision-specific identifying information so that the Coast Guard and facility operators can verify which manual is the most recently examined.

Per paragraph (e), the COTP will notify a facility with an explanation of why a manual does not meet the requirements of this part, without having to return a printed copy. This enables electronic communication between the Coast Guard and a facility while reducing associated printing and mailing costs for the Coast Guard. The COTP retains the discretion to send the letters and manuals via mail to the facility when appropriate. 1

Finally, within § 127.019, as proposed in the NPRM, this rule removes the word “existing” where it appears in the context of “existing facility” in paragraphs (a) and (b). “Existing,” as applied to a waterfront facility, is defined in § 127.005, but the definition is limited to facilities that were constructed before June 2, 1988 for LNG facilities, and before January 30, 1996 for LHG facilities. The specific dates used within the definition of “existing” were never intended to apply to the use of “existing” in this section. To avoid confusion, we are removing “existing” from this section. The requirements in paragraph (a) will continue to apply to all active facilities, and the requirements of paragraph (b) will continue to apply to all new or inactive facilities.

Paragraph (a), in subpart B for waterfront facilities handling LNG, will require the operator to ensure that the person in charge (PIC) has either a printed or an electronic copy of the most recently examined Operations Manual and Emergency Manual readily available in the marine transfer area. In this paragraph, we added a statement beyond what was proposed in the NPRM to clarify that electronic devices used to view an electronic copy of the manuals must comply with applicable electrical safety requirements in part 127.

In § 127.309, the phrase “readily available in the marine transfer area” means that a printed or electronic copy of the manual is available for viewing within the operating station of the PIC. The PIC is not expected to keep the manual in their possession while conducting routine rounds during a transfer operation.

While PICs must know the contents of the manuals under paragraph 127.301(a)(4), the Coast Guard recognizes that it is difficult for a PIC to instantly recall every step of every procedure outlined in these manuals. Because both paragraphs 127.309(b) and (c) require each transfer and emergency operation to be conducted in accordance with the examined Operations Manuals and Emergency Manuals, respectively, it has been common practice for PICs to have a copy of the Operations Manual and Emergency Manual in the marine transfer area during transfer operations to reference when needed. Therefore, adding a requirement that a printed or electronic copy of the most recently examined Operations Manual and Emergency Manual must be readily available to the PIC in the marine transfer area does not add a significant burden to facility operators.

Section 127.1309(a) in subpart C for waterfront facilities handling LHG requires that the facility operators ensure the facility's PIC has a printed or electronic copy of the most recently examined Operations Manual and Emergency Manual readily available in the marine transfer area. This requirement in paragraph (a) will help ensure that PICs have access to the manuals when needed, since there may be fewer printed copies available when facilities opt into electronic manual submission. For the purpose of this section, the phrase “readily available in the marine transfer area” means a printed or electronic copy of the manual is available for viewing within the operating station of the PIC, but the PIC is not expected to keep the manual in their possession. With this final rule, we also added a statement to paragraph (a) to clarify that electronic devices used to view the electronic copy of the manuals must comply with applicable electrical safety requirements in part 127.

The revised § 154.300 allows facility operators to submit one printed or electronic copy of the Operations Manual to the COTP with a date, a revision date, or other revision-specific identifying information such as a document control number generated by the facility. This allows the facility and the COTP to determine quickly during inspections if the facility is using the most recent version of the manual. As the inclusion of such information is current practice, we are only codifying this current practice.

As proposed in the NPRM, in paragraph (a) we clarify that the facility operator must submit the manuals to the COTP of the zone in which the facility operates. The clarification will align the text with current practice.

This rule implements the proposed changes to how the COTP notifies the facility that the Operations Manual has been examined in paragraph (e). Previously, after examination and determination that the manual meets the requirements of this part, the COTP marked the manual “Examined by the Coast Guard” and returned one copy to the facility operator. Now the COTP will notify the facility that the manual has been examined and will not return a copy of the manual to the facility. We expect this notice to initially take the form of a printed or emailed letter, with the revision date or other revision-specific identifying information on the letter, but could eventually include an electronic certification with this information.

Paragraph (f) of § 154.300 allows either a printed or electronic copy of the most recently examined Operations Manual to be readily available for each facility's PIC while conducting a transfer operation. The facility may store the manual in print or electronic format. In this paragraph, this final rule adds a new statement over what we originally proposed in the NPRM, specifying that electronic devices used to view an electronic copy of the manual must comply with applicable electrical safety requirements in part 154. The facility may have either printed or electronic copies of the manual in any translations required under existing paragraph (a)(3).

In § 154.300(d), “products transferred” will also be part of the list of items the COTP considers when determining whether the manual meets the requirements of part 154 and part 156. Information about the products transferred, meaning the type of oil and hazardous material, is already required to be included in the Operation Manuals under § 154.310(a)(5), and knowledge of the products being transferred is important to reviewing the adequacy of the Operations Manual. The facility develops their capabilities based, in part, on the characteristics of the oil or hazardous material they want to transfer. Including “products transferred” in the list of considerations increases transparency regarding the manual examination process.

This section addresses amendments to Operations Manuals. Paragraph (a) of this section previously stated that the COTP may require the facility operator to amend their Operations Manual if the manual does not meet the requirements of this part. This rule replaces “requirements of this part” with “requirements of this subchapter” because there are other regulations in the subchapter that apply to the Operations Manual. The applicable subchapter is subchapter O, titled “Pollution,” which includes 33 CFR parts 151 through 159.

Section 154.320(a)(1) allows facility operators to submit to the Coast Guard any information, views, arguments, and proposed amendments in response to the inadequacies identified by the COTP. To align with other revisions, we added language to this section allowing facility operators to send their information, views, arguments, and proposed amendments to the COTP in print or electronically.

Per paragraph (b)(1), facilities may submit amendments to the manuals to the COTP either in print or electronically. Paragraphs (b)(2) and (c) require the COTP to examine the amendments to an Operations Manual for compliance with the subchapter and then notify the facility that the Coast Guard has examined the amendments. If the amendments do not meet the requirements for Operations Manuals in subchapter O, the COTP will notify the facility operator of the inadequacies and explain why the amendments do not meet the requirements of the subchapter. The COTP notice may be a printed or emailed letter, or even an electronic certification, with the revision date or other revision-specific identifying information included.

Paragraph (e) describes how facility operators may submit amendments and the procedures to follow in the event the entire manual is submitted for amendments. This rule gives the facility operator the choice of page or whole-manual replacement, but requires them to include the date, revision date, or other revision-specific identifying information on the submission. If a facility submits the entire manual with the proposed amendments, this rule requires that the changes since the last examined manual be highlighted, or otherwise annotated. It may be easier for a facility to submit the entire manual with the amendments highlighted or annotated, rather than isolating individual pages that were amended. Examples of ways facility operators could highlight or annotate the amendments include, but are not limited to, use of an electronic or ink highlighting tool, comment or text boxes noting where the changes are, or noting the changes in correspondence or a document. Ultimately, the method that the facility operator uses can be anything that identifies all the changes, and is not limited to the methods mentioned in this preamble. The purpose of highlighting or annotating the amendments is to assist the COTP in understanding what changes are being made and to reduce the resources required to examine amendments. After the COTP examines the amendments, the facility must maintain the Operations Manual with the most recently examined changes, but there is no requirement to keep the changes highlighted or annotated after they are examined.

This rule removes paragraph (a) of § 154.325, so that the facility operator is no longer required to submit two copies of the Operations Manual. To align with other changes in part 154, the facility operator of a new facility will be able to submit one electronic or printed copy of the Operations Manual to the COTP.

In re-designated paragraphs (a) and (b) of this section, this rule replaces the previous text, “any transfer operation” with, “the first transfer operation” to make the regulatory text more precise. This clarifies that the facility must submit the Operations Manual prior to a new facility's first transfer or the first transfer after a facility is removed from caretaker status.

We also amended the process in § 154.325 to require the COTP to notify the facility operator when the manual has been examined. Because we are allowing electronic submission in this final rule, the COTP will no longer send back a marked printed copy of the manual stating it has been examined by the Coast Guard. The COTP's notice will restate the manual's date, revision date, or other identifying information provided by the facility. If the manual does not meet the requirements of subchapter O, the COTP will notify the facility with an explanation of why the manual does not meet the requirements of that subchapter.

In paragraph (d) of § 154.325 (previously paragraph (e) of § 154.325), this final rule replaces the text “requirements of this chapter” with “requirements of this subchapter” because referencing the entire chapter is too broad. The applicable regulations are in this subchapter O, which includes 33 CFR parts 151 through 159.

Part 156 contains regulations related to oil and hazardous material transfer operations. In accordance with other changes made by this rule, in paragraph 156.120(t)(2), the PIC must have a copy of the most recently examined facility Operations Manual readily available in the marine transfer area. For the purpose of this section, “readily available in the marine transfer area” means that a printed or electronic copy of the manual is available for viewing within the operating station of the PIC. The PIC is not expected to keep the manual in their possession while conducting routine rounds during the transfer operation.

As proposed in the NPRM, we replace uses of the word “shall” with “must” when specifying the actions facility operators are required to perform. This helps align the regulations with plain language guidelines. Additionally, where the COTP is required to respond to or notify a facility, we replace “the COTP shall” with “the COTP will” to state clearly what the COTP will do in certain cases. This helps clarify what the facility operators can expect from the COTP and aligns the regulations with plain language guidelines. These technical revisions do not change the requirements for facility operators or the Coast Guard.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. A summary of the analysis based on these statutes and Executive orders follows.

Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. A regulatory analysis (RA) follows. The first section of this RA covers the alternatives considered, the second covers the affected population, the third covers the costs, the fourth covers the cost savings components, and the fifth provides a summary of the costs savings.

As stated previously under our discussion of public comments, we received four comments. Three of these comments supported the implementation of electronic documentation in the proposed rulemaking as well as in other rulemakings. An anonymous fourth commenter stated that they would like to see all documents submitted electronically and kept in that form until approved by the Coast Guard, but kept in printed form after approval. 2 In response to this, the final rule gives the facility operators, at their discretion, the flexibility to keep that documentation in either print or electronic form. We believe that the facility operators would best be suited to decide which format they would prefer, based on the particular circumstances of their specific facilities. Forcing facilities to use only printed documentation prevents facilities from realizing any cost savings from the use of digital documentation. Hence, in this final rule, we allow facility operators the choice.

There are four differences in this RA from the RA in the NPRM that have a quantified monetary impact. The first two involve updated financial data. The NPRM used the most up-to-date wage data available when it was written and what were then current costs to mail documents. More up-to-date wage data are now available, 3 and the costs of mailing documents has changed between the time the NPRM was written and this final rule. A detailed breakdown of mailing costs, labor handling costs associated with mailing those documents, and aggregated shipping and handling costs (the combined cost of both) can be found in table 9. That table shows mailing costs have changed in a mixed manner, with the cost associated with mailing some documents going up and others going down. The price of labor associated with mailing documents has increased across all document groups, and aggregated shipping and handling costs (the combination of both) have increased in four of the six document categories. In aggregate, private sector cost savings associated with shipping and handling, costs have increased from $14,530 in the NPRM to $15,323 in the final rule. 4

The other two differences involve the handling of manuals and amendments that the COTP finds to be inadequate. We now estimate that, under current regulations, when the COTP finds an Operations Manual or Emergency Manual or amendment to be inadequate, the facility operator sends two copies of the document back to the COTP instead of the one copy originally assumed by the NPRM. 5 The final difference is that in this final rule we estimate that, under current regulations, the COTP sends a facility one stamped copy of an Operations Manual or Emergency Manual or amendment after it has been modified to remedy an inadequacy and been deemed acceptable by the COTP. In the NPRM economic analysis, we incorrectly stated that no copies were sent back in such cases, when, in fact, the COTP does send back one copy. 6 We discuss these four new in more detail in the cost savings section of this RA.

Other than these four modifications, there are no substantive changes to the requirements and calculations originally proposed in the NPRM. We made clarifying edits to the regulatory text, as noted in the Discussion of Comments and Changes from the Proposed Rule section of this preamble, which do not have any impact on the costs or benefits from what we proposed in the NPRM.

This rule provides administrative paperwork burden relief for operators of LNG/LHG and MTR facilities, as the use of electronic documentation (as opposed to print) for Operations Manuals and Emergency Manuals, as well as associated amendments, will permit facilities to satisfy regulatory requirements at a lower cost. LNG and LHG facilities are required to submit Operations Manuals and Emergency Manuals and amendments, while MTR facilities are required to submit only Operations Manuals and amendments.

Under current regulations, facility operators are required to send two printed copies of each manual and set of amendments to the COTP. The final rule will permit these documents to be submitted electronically, at the discretion of the facility operators. Facility operators exercising this option will no longer need to assemble and mail printed versions, resulting in administrative cost savings. The final rule will also permit facility operators sending their documentation in print format to submit only one copy of their documents, resulting in further administrative cost savings.

Additionally, current regulations require those facility operators whose documents were not approved by the COTP to resubmit two copies of revised documents to the COTP in print format. As stated previously, in the NPRM's economic analysis we erroneously estimated that in the current regulations the facility only mailed back one revised copy to the COTP. This has been corrected in the economic analysis of the final rule. 7 The annual cost associated with the additional manual that must be sent by those LNG/LHG and MTR facilities, which includes the costs of manufacturing the additional manuals and amendments as well as the shipping and handling associated, is $1,056 per year and $10,563.30 over a 10-year period (in nominal terms). The final rule will permit facility operators to resubmit their documents in either electronic or print format. Facility operators exercising the option to use an electronic format will no longer need to assemble and mail two printed versions, while those who decide to instead send printed documentation will only need to send one copy instead of two to the COTP. This reduction in paper documentation will result in additional administrative cost savings.

Finally, the final rule permits facilities to keep documentation at their facility's marine transfer area in either electronic or print format. Currently, this documentation must be kept in print format at these locations. According to Coast Guard SMEs from the Office of Port and Facility Compliance (CG-FAC), the typical facility has, on average, two marine transfer areas. 8 LNG and LHG facilities are required to keep one copy of an Operations Manual and one copy of an Emergency Manual (and to keep each manual up-to-date with amendments) at each of their marine transfer areas. MTR facility operators are required to keep one Operations Manual (and amendments) at each marine transfer area. Those facility operators that exercise the option to use electronic documents instead of print will experience a benefit, in the form of a cost savings, resulting from no longer having to assemble these printed documents (one copy for each marine transfer area), 9 as well as not having to physically place this documentation at the two marine transfer areas. 10

The final rule also results in administrative cost savings to the Coast Guard. Currently, when the COTP examines an Operations Manual or Emergency Manual and finds it meets the regulatory requirements (or is “adequate”), they must return a stamped copy to the facility. Under the final rule, the COTP will not return a printed copy of the manual via mail. Instead, the COTP will send either a printed or an electronic message back to the facility stating that the Coast Guard has examined the manual. 11 As a result, the Coast Guard will experience cost savings from not having to handle and mail back to the facility a stamped, printed version of the manual when the facility sends electronic documentation to the Coast Guard.

On the other hand, if the COTP finds “inadequacies” in the submitted manual, meaning the manual does not meet the regulatory requirements, the COTP must currently mail back a copy of the manual, or provide a notification, with annotations or comments specifying how to correct the manual. 12 Based on the requirements in the final rule, the COTP will be allowed to send an electronic or printed message, instead of only a notification in written form, explaining why the manual does not meet the requirements of the part. The COTP will not be obligated to send back any copies of the manual with their explanation for why the manual does not meet the requirements.

In addition, when the COTP receives corrected versions of the manual back from facilities, under current regulations, the COTP must send back to the facility one printed copy of the document. In the economic analysis contained in the NPRM, we had erroneously estimated that no printed copies of the corrected manual were sent back to the facility when the COTP finds the corrected manual adequate. This is corrected in the economic analysis contained in this final rule. As the final rule permits the Coast Guard to electronically notify facilities regarding whether their manuals are adequate or inadequate the Coast Guard will experience a cost savings.

In table 1, we show a summary of the impacts of the final rule. As a result of the previously discussed changes between this RA and the NPRM, the projected cost savings to industry and Coast Guard have increased from the analysis in the NPRM. The annualized and 10 year cost savings to industry, both discounted 7 percent, increased approximately 9 percent from the NPRM estimates of $36,307 and $255,007 to $39,394 and $276,689, respectively. The annualized and 10-year cost savings to the Coast Guard, both discounted 7 percent, increased approximately 16 percent, from the NPRM estimates of $7,426 and $52,160 to $8,616 and $60,512, respectively. As a result, the aggregated annual and 10-year cost savings for both the private sector and the Coast Guard, discounted at 7 percent, increased approximately 10 percent, from $43,734 and $307,167 to $48,010 and $337,200, respectively.

A more detailed set of tables comparing the cost savings between the NPRM and the final rule is provided below. Table 2 shows a specific breakdown by each subset of cost savings between the NPRM and the final rule. Table 3 shows the differences between the two, on an aggregated basis (for the full 10-year period looking forward after the implementation of the rulemaking). Specific details on the derivation of the numbers for the final rule are discussed later in the RA under the specific section for each cost element.

As can be seen in table 2, the factor most contributing to the private sector aggregate cost savings increase was, for MTR facilities, the savings from not having to produce printed manuals (and amendments) to mail to the COTP. This one cost savings element, $1,944, accounted for approximately 63 percent of the aggregate increase in total private sector costs (of $3,088). With respect to total cost savings for both the private sector and the government, $4,278, two cost elements accounted for the overwhelming majority of the cost increase. Those two cost elements were, for MTR facilities, the cost savings from not having to produce printed manuals (and amendments) to mail to the COTP (accounting for 45 percent of the total increase of $4,278) and, for the Coast Guard, the cost savings from not having to mail printed manuals (and amendments) back to facilities (accounting for 28 percent of the increase).

Table 3 shows the aggregated nominal and discounted (at 7%) differences, as well as cost savings on a discounted annualized rate (discounted 7%) by type of facility, for the entire private sector, the Coast Guard, and the private sector and Coast Guard combined. Cost savings differ between the final rule and NPRM for these aggregated figures from approximately 4 percent for LNG/LHG facilities to 9 percent for MTR facilities to 16 percent for the Coast Guard. For the entire private sector the difference is 9 percent, and for the combined private and public sectors it is 10 percent.

We considered three alternatives. The first is a continuation of current regulations (no change). The second is a modification to the current regulations that would require all regulated facilities to submit their required Operations Manuals, Emergency Manuals, and amendments electronically. The third is giving regulated facilities flexibility to submit documentation in either electronic or printed format. We discuss each alternative in more detail in the following sections.

This alternative would require regulated facility operators to continue to submit two printed copies of the Operations Manuals and Emergency Manuals, and the COTP to continue to examine these manuals and return them by mail. This alternative would also require facility operators to maintain the manuals in a printed format near the marine transfer areas of their facilities. This alternative would not result in any cost savings to either industry or the Coast Guard. Therefore, we rejected alternative 1.

This alternative would amend regulations to require regulated facility operators to submit only electronic copies of the Operations Manuals and Emergency Manuals, and the COTP to examine these manuals (and amendments) and return them only through email or other electronic means. Facility operators would not be permitted the option of submitting printed documents. Facilities would have the discretion to keep Operations Manuals and Emergency Manuals in either printed or electronic format at their marine transfer areas. 13

Facility operators may experience cost savings greater than projected under alternative 1 or the alternative chosen in this final rule (alternative 3) because they would be required to submit their documentation electronically and to maintain electronic copies of all their manuals in the marine transfer areas. Savings from this alternative would result from the facilities not having to assemble and mail printed documentation to the COTP. Cost savings would also result from facilities no longer needing to assemble and physically place printed documentation for the marine transfer areas. Alternative 2 would result in greater cost savings related to printing and mailing than alternative 1, as all regulated facilities would submit documents electronically.

However, alternative 2 also has the highest potential cost associated with its implementation. This is because a number of facilities may not currently have the required information technology (IT) infrastructure to permit the use of electronic documentation at their marine transfer areas. For those facilities without the pre-existing IT infrastructure, building the infrastructure could prove expensive compared to the cost savings from reducing the amount of printed manuals and amendments. Factors affecting the building of such IT infrastructure (not all inclusively) include the following:

• The size of the facility;

• How many marine transfer areas there are (each area must have an Operations Manual, and transfer areas in LNG and LHG facilities must also have an Emergency Manual);

• The number and type of products transferred at the facility;

• The types of transfer operations occurring at the facility; and

• Any pre-existing infrastructure that can already facilitate accessing and using electronic documentation (such as “Wi-Fi” or hardwired broadband connections).

Based on these factors, for some facilities the total costs required to access electronic documents could exceed the cost savings from switching to electronic documentation. In addition, these IT costs could disproportionately affect facilities that are relatively small in terms of revenue. We believe that imposing these additional costs on such small entities would be financially burdensome; therefore, we rejected alternative 2.

Alternative 3 is the selected alternative for this rulemaking. This alternative explicitly states that facility operators may submit the required Operations Manuals, Emergency Manuals, and amendments either in print or electronic format. In addition, if submitting the required documents in print, only one copy is required. In this alternative, facilities facing higher IT improvement costs could continue to use printed manuals and submissions. Hence, this alternative will lead to the highest net cost savings of the three alternatives.

For these reasons, alternative 3 is the preferred alternative. We provide a discussion of this alternative below.

We identified 121 LNG and LHG facilities that could be potentially impacted by this regulation, based on a search of the Coast Guard's Marine Information for Safety and Law Enforcement (MISLE) database. 14 We also identified 2,497 MTR facilities that could be potentially impacted. A discussion follows describing how the impacted population itself was reached.

LNG and LHG facilities transfer liquefied natural gas and liquefied hazardous gas from vessels to the shore or from the shore to vessels. MTR facilities transfer oil or hazardous material in bulk from vessels to the shore or from the shore to vessels. Operations Manuals provide information relating to LNG, LHG, and MTR facilities, such as physical characteristics (including plans and maps), descriptions of transfer systems and mooring areas, and diagrams of piping, electrical systems, control rooms, and security systems. 15 Emergency Manuals include information relating to, among other items, emergency shutdown procedures, descriptions of and operating procedures for fire and other emergency equipment, first-aid procedures and stations, and emergency response procedures. 16 Operations Manuals and Emergency Manuals vary in terms of size, anywhere from 0.5-inch, three-ring binders containing 50 pages, to 3-inch, three-ring binders. 17 We have estimated the 3-inch, three-ring binders to be an average of 514 pages in length. 18 The 0.5-inch manuals are the most common size, accounting for the majority of manuals. 19 Therefore, in our cost savings estimate, we assumed that all manuals are 0.5-inch, three-ring binders of 50 pages.

Amendments to both Operations Manuals and Emergency Manuals are intended to keep those manuals up to date. 20 Their length depends on the information required to be updated. If the information is significant, these amendments may be as long as the original document submitted to the COTP. If the change is relatively minor, the amendments may only be a few pages. If the amendments are only a few pages, they are submitted to the COTP as individual pages. The COTP then examines those pages and, after determining their adequacy, inserts them into the previous edition of the Operations Manual or Emergency Manual. 21 If the facility sends the amendment in electronic form, the new pages that supersede the old can be inserted into the electronic document that the COTP has (much the same way that pages can be inserted into PDF documents). On the other hand, if the amendment is sent in paper format and the COTP deems it “adequate,” the COTP can insert new pages into the previous edition of the manual to replace the pages that were originally deemed “inadequate.” Coast Guard SMEs estimated that 80 percent of amendments to Operations Manuals and Emergency Manuals consist of 5-page inserts, while 20 percent consist of documents that are as long as full-length Operations Manuals or Emergency Manuals. In our cost savings estimate, we assumed that all amendments would be five pages.

We examined MISLE data between 2009 and 2019 (inclusively) to determine that an annual average of 60 instances  22 of Emergency Manuals, Operations Manuals, and amendments are filed by LNG and LHG facilities per year, representing an average of 18 instances for manuals and 42 for amendments. 23 These numbers differ from the numbers shown in appendices A and B in the Collection of Information Under Review by the Office of Management and Budget; OMB Control Number: 1625-0049. 24 That information collected, titled “Waterfront Facilities Handling Liquefied Natural Gas (LNG) and Liquefied Hazardous Gas (LHG),” shows 8 instances of manuals and 14 instances of amendments, for a total of 22 instances of manuals and amendments filed. 25 This difference (60 versus 22) is attributable to the fact that the MISLE data for the collection of information and this RA were pulled on different dates. We performed the MISLE pull for this RA on November 18, 2019, while the MISLE pull for the collection of information occurred prior to its date of publication, August 30, 2019. As a result, the total LNG and LHG facility populations, as well as the individual manual and amendment numbers, were different. The collection of information found a combined LNG and LHG population of 108, while we found 121. Hence, this RA projects larger numbers of manuals and amendments than did the collection of information. 26

Coast Guard SMEs estimated that 90 percent of LNG/LHG facilities will submit their documentation to the Coast Guard electronically. Thus, of the annual impacted population of 60 LNG/LHG facilities, we estimate the affected annual population of LNG/LHG facilities to be 54 per year submitting their documentation in electronic form, with the remaining 10 percent, or 6 facilities, submitting their documentation in print form.

The MISLE pull for this RA found the average number of instances of Operations Manuals and amendments filed by MTR facilities for the same period (2009-2019) to be 703. 27 MTR facilities are only required to file Operations Manuals and amendments, not Emergency Manuals and amendments. Of those 703 instances of manuals and amendments, there were an average of 261 instances of manuals and 442 amendments annually. Assuming each submission is for a unique facility (for an annually impacted MTR population of 703), and since Coast Guard SMEs in CG-FAC estimated that 75 percent of MTR facilities will submit their documentation in an electronic format, we estimated a regulated population of 527 MTR facilities electing electronic submission annually, with 25 percent of MTR facilities, or another 176 facilities, 28 projected to submit their documentation in print form annually.

The number of annually impacted facilities, by LNG/LHG and MTR facility, as well as the number of different types of manuals and amendments by facility type, is summarized in table 4.

Tables 5 and 6 summarize the final rule's cost savings for the private sector and for the Coast Guard. Table 5 provides the private sector's cost savings for the pertinent maritime facilities of the affected population (LNG/LHG and MTR facilities) as well as by the four different cost savings categories estimated. Table 6 summarizes the Coast Guard's cost savings.

We separated the analysis of cost savings for this rulemaking into three sections. The first examines the cost savings for the private sector. The second discusses the cost savings for the Coast Guard. The third provides an aggregated summary of the cost savings as well as the estimates on a discounted basis.

We separated cost savings for the private sector into two categories. The first involves the cost savings associated with facility operators having the option to submit Operations Manuals and Emergency Manuals (and amendments) in electronic format. The second involves the option to place electronic versions of their Operations Manuals and Emergency Manuals (and amendments) at their marine transfer areas.

LNG and LHG facility operators are currently required to submit two copies of their Operations Manuals and Emergency Manuals and amendments to the COTP. 29 Generally, they are not sent at the same time. 30 MTR facility operators are currently required to submit two copies of their Operations

The cost savings components that make up the 0.5-inch binders consist of the actual cost of the empty 0.5-inch, 3-ring binder, the cost of 50 pages of paper, the cost of printing those 50 pages, and the labor required to put the manual together. The cost of all these elements, with the notable exception of labor, is the same whether the manual is for an LNG or LHG facility or an MTR facility. In the NPRM, we estimated that the cost of the empty 0.5-inch binders in 2019 dollars is $3.66, based on the mean for 0.5-inch binders from 5 different websites selling this item. 33 Converting to 2020 dollars, using the seasonally adjusted Consumer Price Index for All Urban Consumers, the figure is $3.71. 34

In the NPRM, we estimated the cost of 50 sheets of copier paper to be 62.5 cents, based on the mean for boxes of 500 pages from 5 different supply stores. 35 Converting to 2020 dollars, we obtain $0.63. 36 In the NPRM, we found the cost to print 50 pages in black and white to be $2.23. 37 Converting to 2020 terms, the figure is $2.26. 38 Combining the 2020 dollar terms, the sum is $6.60. 39

As the labor costs between LNG/LHG and MTR facilities are different, the labor component of assembling these manuals also differ. According to Coast Guard SMEs, as well as the collection of information, OMB Control Number 1625-0049, “Waterfront Facilities Handling Liquefied Natural Gas and Liquefied Hazardous Gas,” clerical workers assemble manuals at LNG and LHG facilities. The BLS website has no specific labor category for clerical workers under North American Industry Classification System (NAICS) industry 483000 (Water Transportation). The closest we were able to find was “Office Clerks, General” (Occupational Code 43-9061). 40 The BLS gave the mean hourly wage for this category of labor as $21.32. 41 As wages account for only a portion of total employee costs (employee benefits account for the other part), we adjusted wages to take benefits into account. Using the BLS U.S. Department of Labor News Release for March 18, 2021 (USDL-21-0437), benefits for employees in the “Production, Transportation and Material Moving” sector of the economy, private sector, accounted for $10.92 per hour, or 51 percent of wages. 42 Thus, we estimated the fully burdened or loaded wage rate, at $32.19 per hour for LNG/LHG facilities. 43 In the NPRM, we estimated the fully burdened wage rate at $30.28, a difference of $1.91.

According to Coast Guard SMEs, as well as the latest collection of information, OMB Control Number 1625-0093, “Facilities Transferring Oil and Hazardous Material in Bulk—Letter of Intent and Operations Manual,” MTR facilities use general and operations managers to assemble Operations Manuals. The BLS website, under NAICS industry 483000 (Water Transportation), reports an hourly mean wage of $70.65 for general and operations managers (Occupational Code 11-1021). 44 As stated previously, according to the BLS, employees in the “Production, Transportation and Material Moving” sector of the economy, private sector, have benefits corresponding to 51 percent of wages in that industry. 45 Hence, the loaded wage rate for general and operations managers is $106.82 per hour. 46 In the NPRM, we estimated the fully burdened wage rate at $100.03, a difference of $6.79.

With respect to the assembly of a 0.5-inch, 50-page manual, we performed the task ourselves and found that it took an average of 5.12 minutes (or 0.09 hours). 47 As a result, the labor cost of assembling a manual for an LNG or LHG facility came to $2.90. 48 For an MTR facility, the cost came to $9.61. 49 Thus, for an LNG or LHG facility, we estimated the total cost of assembling a 0.5-inch binder for an Operations Manual or Emergency Manual to be $9.50. 50 These are the costs associated with producing one copy of an Operations Manual or an Emergency Manual (we estimated that they cost the same to assemble). For an MTR facility Operations Manual, we estimated the total cost to assemble to be $16.21. 51 All binder assembly costs are shown in table 7. In the NPRM, in contrast, we estimated the cost to assemble an LNG/LHG binder at $9.25 and the cost to assemble the MTR facility binder at $15.52. 52

As amendments to both Operations Manuals and Emergency Manuals are usually 5 pages, in the NPRM we estimated the cost of paper to total$0.06  53 and the cost of printing to total $0.22. 54 Due to rounding, those figures do not change when expressed in 2020 dollar terms. 55 The estimated total cost of amendments, other than labor and shipping, is $0.28 per amendment. These costs are the same regardless of whether the amendment is for an LNG or LHG facility or an MTR facility.

Due to the difference in labor costs between LNG/LHG facilities and MTR facilities, the labor costs for assembling amendments differs for facilities of different types. As stated previously, we found the labor cost to be $70.65 per hour for LNG/LHG facilities and $106.82 for MTR facilities. We found that printing 5 pages and assembling them for mailing took 1.25 minutes (0.02 hours). Hence, we estimated the labor costs for LNG/LHG facilities at $1.41 and for MTR facilities at$2.14. 56 57 The total cost of creating a 5-page amendment for an LNG/LHG facility is $1.69 per document and for MTR facility is $2.42. 58 59 These costs are detailed in table 8. In the NPRM, we estimated the associated costs at $1.60 and $2.28. 60

In addition to the cost of assembling each manual and amendment, we also considered shipping and handling costs. We calculated shipping and handling costs for both scenarios because, currently, there are situations when only one copy of a document needs to be mailed and other situations when two are needed. 61

Because it is a legal requirement for these facilities to send their documents to the COTP, we assumed that the manuals and amendments are sent with a mail service that permits tracking. We also assumed that facilities use a cost-effective ground shipping method. 62 As of June 7, 2021, there were 41 COTP zones. 63 All of these sites are clustered around shipping points in order to ensure COTPs can perform their functions. Hence, no facility should be very far, geographically, from a shipping point. We assumed that the manuals and amendments are sent via a shipping service such as UPS or FedEx. We assumed shipping distances to correspond to zone 2 distances in the UPS and FedEx pricing guides, as this is the closest shipping distance price point. 64 Current regulations require that two copies be submitted to the COTP.

On April 23, 2021, the Postal Service published proposed revisions to First-Class Mail and Periodicals service standards in the Federal Register and sought public comment (the Proposed Rule). Service Standards for Market-Dominant Mail Products, 86 FR 21675 (Apr. 23, 2021). These proposed service standards constitute a central element of the Postal Service's Delivering for America strategic plan to achieve service excellence and financial sustainability, which was announced on March 23, 2021. The comment period for the Proposed Rule closed on June 22, 2021. Current service standards require the Postal Service to rely heavily on air transportation, using air cargo transportation carriers and commercial passenger air carriers. Air transportation is subject to a number of factors that make it less reliable than surface transportation, such as weather delays, network congestion, and air traffic control ground stops; air transportation also tends to cost significantly more than surface transportation. The basic logic of the changes is that the addition of one or two days to current service standards for First-Class Mail and Periodicals would enable the Postal Service to convey a greater volume of mail within the contiguous United States by surface transportation, thereby achieving a better balance of on-time reliability and cost-effectiveness. It would also enable the Postal Service to enhance the efficiency of its surface transportation network.

The scope of the changes is also limited. Most First-Class Mail (61 percent) would stay at its current standard, and overall 70 percent of First-Class Mail would be subject to a standard of 3 days or less, consistent with the current standards within the contiguous United States. For the minority of volume that is subject to a shift in service standard, the standard would only change by 1 or 2 days (with most of such volume experiencing a 1-day change). At the same time, the Postal Service would be positioned to provide service on a significantly more predictable basis.

On April 21, 2021, the Postal Service submitted a request to the Postal Regulatory Commission (PRC) for an advisory opinion on these service standard changes proposed for First-Class Mail and Periodicals, in accordance with 39 U.S.C. 3661(b). The PRC initiated Docket No. N2021-1, in which it conducted formal hearings with testimony on the record in order to consider the Postal Service's request. A number of interested persons and entities intervened and conducted discovery to probe the Postal Service's request and evidence; the PRC's Presiding Officer and its appointed Public Representative also actively examined the evidence through the discovery and hearing process. Some intervenors introduced their own rebuttal testimony and other evidence into the record. Several intervenors submitted arguments to the PRC in the form of post-hearing briefs, and many other interested persons did the same through submission of statements of position. The supporting evidence in that proceeding advanced by the Postal Service demonstrated a number of significant benefits from implementing the service standard changes consistent with the policies enumerated in Title 39 of the United States Code: more reliable, predictable, and consistent service for mailers; significant cost savings due to the creation of a more efficient transportation network; longer-term financial sustainability; and further operational benefits in the future.

The proceeding culminated in an advisory opinion issued by the PRC on July 20, 2021, which concluded that the Postal Service's proposed changes, in principle, are rational and not inconsistent with statutory requirements. The PRC did make a number of recommendations for how the Postal Service should implement its changes. The Postal Service does not concur with many portions of the PRC's advisory opinion, including how the PRC analyzed aspects of the evidence presented by the Postal Service. That said, the Postal Service largely agrees with the PRC's recommendations, and will be following most of them as these new service standards are implemented.

Specifically, the Postal Service agrees with the principle of setting realistic performance targets based on actual operating conditions. The Postal Service has not claimed that it will achieve the 95 percent service performance target set forth in the Delivering for America plan instantaneously with the service standard change; rather, the implementation of this change is a necessary step towards ultimately achieving that target, in conjunction with other elements in the plan. Interim targets will be set as the plan is implemented. The Postal Service also agrees with the principles of closely monitoring the implementation process to ensure that the new transportation network is achieving the Postal Service's goals, measuring customer satisfaction with the changes, and working closely with customers. Successful implementation not only of this service standard change, but of the plan generally, requires careful and systematic operational planning and execution, as well as customer engagement. On the other hand, the Postal Service continues to believe that the econometric analysis that it presented in Docket No. N2021-1—in response to a PRC recommendation in an earlier advisory opinion—constitutes a robust and objective approach to understanding how these service standard changes may impact mail volumes, and therefore the Postal Service does not agree with the PRC's new recommendation to disregard that analysis.

The Postal Service received about 136,317 comments in response to the Proposed Rule. These responses came overwhelmingly from individuals using very similar, if not verbatim, language, but also from a small variety of other sources, including the Attorneys General of a group of states together with cities, a union, and public advocacy groups. Some of the comments submitted in the Proposed Rule, including those by the Attorneys General and others, are simply copies of the same briefs or statements of position that they had filed in the PRC proceeding, re-submitted to the Postal Service as their comments for this rulemaking. The Postal Service likewise incorporates by reference its Initial Brief and Reply Brief as filed publicly in the PRC proceeding. Initial Brief of the United States Postal Service, PRC Docket No. N2021-1 (June 21, 2021), https://go.usa.gov/xF5n4; Reply Brief of the United States Postal Service, PRC Docket No. N2021-1 (June 25, 2021), https://go.usa.gov/xF5n2. While almost all commenters express some form of opposition to the changes, they do not offer clear alternative proposals or revisions.

Many comments raise issues that fall outside the scope of this proceeding. For example, such non-germane issues included:

• Pensions and retiree health benefits;

• Postal banking;

• Appropriations;

• Service standards and/or service performance regarding packages;

• Removal of sorting machines and collection boxes;

• Tenure of the current Postmaster General;

• Potential changes to the retail network; and

• “Privatization” of aspects of (or indeed the entirety of) the Postal Service.

None of these issues, irrespective of their importance, properly fall within the scope of this rulemaking. Changes to the service standards for First-Class Mail and end-to-end Periodicals do fall within the scope of this rulemaking, and comments that focused on such changes were taken into closer account and are addressed below.

Many commenters predict that the changes to service standards for First-Class Mail and end-to-end Periodicals will degrade service, disrupting the provision of goods and services while leaving vulnerable customers and financially stressed business with no viable recourse. By way of support, many of these commenters relate anecdotes of service failures that have impacted them negatively. Other comments raise various concerns that bear at least some relation to the service standard changes at issue, such as the following:

• Impacts of the proposed changes on rural customers;

• The appropriateness of the proposed changes during the pendency of the COVID-19 pandemic;

• The impact of the proposed changes on election mail;

• The purportedly illegitimate prioritizing of cost reduction over delivery speed;

• Loss of mail volume; and

• An alleged strategy to deemphasize First-Class Mail in favor of packages.

As noted, most of the comments are in the form of short letters, using very similar or identical verbiage. Frequently, these form letters stated that they were opposed to the proposed service standard changes, which they alleged would “permanently” slow down the delivery of much of the mail; that the Postal Service's focus should be on improving the delays that “plagued” service during the past year; that the Postal Service is “critical” to keeping all citizens connected; and that the commenters “depend on reliable and affordable postal services.” These last views, expressed repeatedly in over 100,000 submissions, confirm that the American public overwhelmingly depends upon reliable and affordable postal services.

To be clear, this does not mean that many comments do not also express an interest in more expeditious service. Yet the comments undeniably recognize that reliability is significant. Further, what they express clearly was the “essential” nature of postal services to the public, and that they want to see these essential services both maintained and improved for years to come. The comments highlight the many aspects of what quality postal services include: reliability and affordability, as well as fast delivery. These sometimes competing qualities must be balanced when designing service standards. 39 U.S.C. 3691(b)(1)(C).

The Postal Service has taken the comments into account, and has determined that they do not furnish a reasonable basis to deviate from the initial set of proposed changes to the service standards in question. In particular, the comments do not present any compelling explanation for why adding a day or two to a minority of First-Class Mail and end-to-end Periodicals volume would make postal services insufficiently speedy, let alone negate the benefits of enhanced reliability, cost effectiveness, and financial sustainability that will inure to all. The Postal Service therefore considers that these new standards properly balance the various statutory policies regarding the design of service standards, and should be implemented.

To the extent that anecdotes of performance failures relate to First-Class Mail and end-to-end Periodicals, the Postal Service has concluded that the changes will help to ameliorate, rather than worsen, service performance and customer satisfaction. By enacting these service standards, the Postal Service will be able to increase service reliability and thus ensure that its service standards provide customers with more meaningful service expectations compared to the current standards.

As an initial matter, the Postal Service notes that over 60 percent of First-Class Mail volume will remain unaffected by the changes, and that 70 percent of First-Class Mail volume will continue to have a service standard of 3 days or less. The Postal Service further notes that it has been unable to achieve its service performance targets for many years, and that these service failures illustrate the weakness of the current transportation model. Indeed, the commenters who cite these failures make a strong case for the changes. Bills do not, in general, arrive late due to the insufficient speed of surface transportation, but rather because a mailer relied on a service standard that failed to materialize: had the mailer known that delivery would take longer, the mailer could have mailed sooner. Many of the commenters' frustrations, in other words, appear to have arisen from the lack of reliability currently ingrained in the transportation network. Service standards that are reliably achieved can be planned around; service failures of fluctuating duration often cannot.

Numerous commenters related anecdotes of service performance failures, complaining of slow delivery times and occasional lost items, which resulted in missed payments on bills, delayed receipt of prescription medications, and other inconveniences. These commenters frequently misconstrue service changes as an attempt to enshrine and regularize the service failures of the past year. As noted above, to the extent that these anecdotes relate to First-Class Mail and end-to-end Periodicals, the Postal Service submits that the changes will help to ameliorate, rather than worsen, service performance and customer satisfaction. Many of the items about which customers express concern, such as bills, tend to ship from locations of relatively close geographical proximity, and as such, they will figure among the group of unaffected mailings. Further, the Postal Service aims, with the new service standards, to deploy a transportation network capable of delivering on time and with consistency, one on which customers can count. Vulnerable customers who rely on the Postal Service for predictable delivery would particularly stand to benefit from the enhanced service reliability that will result from these changes.

Some comments express skepticism of surface transportation. For example, one commenter asserts that “[t]he justification/rationale . . . that airplanes are less reliable than trucks driving across country is beyond absurd,” and speculated that “[d]elivering [F]irst[-C]lass [M]ail cross country by using only trucks realistically would need a standard `maximum' of 12 days,” and that “[e]ven then the actual could exceed 15 days.” One individual commenter, who intervened in the PRC docket and then re-submitted a copy of his brief from that case, comments that air and surface transportation are comparably reliable, and that, moreover, non-transportation root causes of delay make a 95 percent service performance target impossible. However, experience indicates both that the air transportation network is less reliable than surface transportation, and that by beneficially exploiting the capabilities of the surface transportation network, the Postal Service can achieve a greater degree of reliability. With regard to root causes of delay, the changes afford additional time to rectify certain handling errors and transit failures. Furthermore, these changes form but one part of a broader strategy, set forth in the Postal Service's comprehensive Delivering for America strategic plan, to achieve 95 percent success in the metric of service performance; the Postal Service has not portrayed these changes as sufficient to achieve that end, but rather as a necessary component, among others, to ultimately achieving a 95 percent service level.

The same commenter references certain service standard changes implemented in the years 2000 and 2001, pursuant to which “the Postal Service defined a service standard to match a range of truck driving time.” The commenter then asserts that these former changes did not yield an increase in improved reliability, and suggests that the current changes will likewise fail to realize their stated goal. Nonetheless, the commenter offers little evidence to legitimize any such comparison between two different service standard changes occurring in two vastly different contexts. The current changes are different from and more extensive than the changes implemented two decades ago.

At least one commenter alleges that “[i]f one can plan for 95 percent on-time delivery within a five-day timeframe, one can make a plan for 95 percent on-time delivery within a three-day timeframe.” Actual experience, though, overwhelmingly indicates that the Postal Service cannot, in a cost-effective manner, achieve 95 percent on-time delivery within a 3-day timeframe. The Postal Service has not met its First-Class Mail service targets in years, and these service failures have been particularly pronounced for mail subject to a 3-day standard. This is because the current First-Class Mail standards require delivery in 3 days or less throughout the continental United States regardless of the distance between origin and destination, a short timeframe that necessitates excessive use of less reliable air transportation. The short timeframe also results in tight timelines for processing and transporting mail, further increasing the risk of service failures caused by contingencies that arise in the normal course of business.

One commenter contends that, if service standards are lengthened, some mail will be delivered early, thereby undercutting the Postal Service's goal of consistency. This type of “inconsistency,” however, is not a cause for criticism. The Postal Service seeks to deliver more mail within its stated service performance targets, and thus to avoid delays—especially of the sort of which so many commenters complain.

Some commenters suggest that the Postal Service has illegitimately prioritized cost reduction over speed of delivery. In particular, joint comments by advocacy groups state that “[t]he Postal Service proposal . . . puts costs above the `expeditious' delivery of mail” in violation of 39 U.S.C. 101(a) and 101(e). The Postal Service stresses that projected cost savings, while important, do not constitute the sole factor motivating the changes. The service standard changes will both reduce cost and improve service reliability, with minimal impact on delivery speed, particularly in light of recent actual performance. Furthermore, the cost savings associated with this plan are not envisioned as ends in themselves; rather, they are intended to ensure that universal service, provided at least 6 days a week at affordable rates, remains financially sustainable into the future. The Postal Service has discretion to balance service reliability, speed, and delivery frequency in light of reasonable rates and best business practices and to account for costs, existing service levels, and various factors that affect the financial viability of the universal service network. The changes represent a considered and reasonable effort to strike an appropriate balance among these considerations.

Numerous commenters question the projected financial benefit associated with the new service standards. These comments frequently predict that the changes will precipitate a “downward spiral,” whereby declining service leads to declining demand and thus to declining revenue that outstrips the cost savings. In a similar vein, joint comments by public advocacy groups conjecture that “by potentially decreasing mail volumes or harming the Postal Service brand, the proposal may not result in cost savings for the Postal Service.” An industry mailer in financial services likewise speculates that “the Postal Service may experience significantly more volume loss as a result of the proposed changes than it expects as companies shift to faster, more reliable, and easier to manage electronic channels in response” to the changes. An individual commenter echoes this by stating his belief that the Postal Service has underestimated the volume loss associated with the changes.

No commenter offers evidence to corroborate these suppositions. On the other hand, the Postal Service has, in its proceeding before the PRC, developed record evidence about potential demand effects in the form of an expert econometric analysis. While that analysis forecasts a decline in volume, the forecasted decline is not anticipated to spark a negative feedback loop or to swallow all concomitant benefits. Bolstering this analysis is evidence, in the form of regular customer survey data presented before the PRC, that customers generally place higher value on service reliability than speed. To the extent that some customers may prefer delivery speed faster than these standards, the evidence does not support a conclusion that these customers will prompt a cascade of demand decline, but rather that customer satisfaction will remain stable, if not improve, with more reliable service. Rather than harm the Postal Service's brand, then, the changes should help to alleviate the reputational damage accruing to late and missed deliveries.

Some commenters question the appropriateness of the changes during the pendency of the COVID-19 pandemic, observing the role played by the Postal Service in delivering prescription medications, food and pantry staples, stimulus checks, and coupons. First, package deliveries—including those of prescription medications and food—are not affected by the changes at issue in this rulemaking, which are limited to First-Class Mail and Periodicals. Further, many of the service performance failures raised by other commenters have been exacerbated by the effects of the COVID-19 pandemic on air transportation and by the strain on the Postal Service's surface transportation networks in attempting to shoulder the resulting burden of meeting current service standards. See Postal Regulatory Comm'n, Annual Compliance Determination Report, Fiscal Year 2020 (Mar. 29, 2021), at 109-16. The evidence indicates that the new changes will help to ameliorate, rather than worsen, these performance failures. The pendency of COVID-19, its disruption of air transportation, and the resultant burden on surface transportation to meet current service standards therefore makes these corrective measures more, not less, urgent.

Many commenters express concern that the changes might negatively impact the delivery of election mail. For example, joint comments by public advocacy groups aver that “[d]elaying mail delivery risks significant numbers of completed ballots that might not be counted because they are delivered after states' deadlines for receipt of mail-in ballots.” The Postal Service notes the limited scope of these service standard changes, as well as the distinction between lengthened service standards and delays. The changes will add one or two days to the current service standards for certain mail volume, particularly mail traveling long distances, but intrastate mail volume will be largely unaffected: Local mail ( i.e., First-Class Mail that is traveling 3 hours or less between origin and destination) will remain subject to a 2-day standard, and First-Class Mail traveling within a State will, with the exception of certain mail in Alaska, still be subject to a standard of 3 days or less. Indeed, as for election mail specifically, based on November 2020 general election data and the use of the ballot Service Type ID (STID) in the Intelligent Mail Barcode (IMB), only approximately 3.84 percent of inbound First-Class Mail ballot volume would experience a slight downward change in service standards—to which affected mailers can respond by adjusting their mailing times accordingly. Indeed, the enhanced reliability should provide ballot mailers with more, not less, assurance that their mailings will be delivered within the expected service standard.

In order to mitigate any impact on election mail, the Postal Service has already held two briefings with election officials since the release of its Delivering for America Plan. At both briefings, the proposed service standards changes were discussed, and feedback was received. The Postal Service will continue to work closely with national election associations, federal organizations, state election executives, and local election officials regarding these changes.

A public advocacy group on behalf of prison populations contends that the changes “vitiate the value and utility of First-Class Mail to incarcerated customers,” a subset of customers who “depend on First-Class Mail perhaps more extensively than any other constituency in today's world.” The Postal Service acknowledges the unique challenges faced by incarcerated mailers. Far from undermining the value and utility of First-Class Mail for these mailers, however, the changes are highly unlikely to affect them negatively and will counterbalance any marginal inconveniences with a higher degree of reliability.

The advocacy group suggests that the changes ignore “the needs of Postal Service customers, including those with physical impairments.” See 39 U.S.C. 3691(c)(3). To this end, it invokes the scenario of an incarcerated person, subject to a civil action, who suffers prejudice due to a 5-day service standard. The advocacy group also, and on similar grounds, contends that the changes infringe 39 U.S.C. 3691(b)(1)(B), which mandates that service standards for market-dominant products be designed to “preserve regular and effective access to postal services in all communities.”

The Postal Service acknowledges that, to the extent that incarcerated customers generally lack access to electronic means of communication, they may be more reliant on First-Class Mail for sending and receiving tax documents, court filings, and other correspondence. It does not follow, however, that the changes would impair those activities. First, most Single-Piece First-Class Mail would retain its current service standard, and the operational changes enabled by the new service standards will significantly increase the probability that that mail will be delivered on time. Second, most incarcerated persons are in state or local facilities, many of these incarcerated persons are presumably residents of the states where they are incarcerated, and the courts with jurisdiction over their incarceration are presumably located in the same state. None of this intrastate correspondence will be subject to a 5-day service standard. With limited exception, all intrastate Single-Piece First-Class Mail will continue to have a service standard of 2 or 3 days. Only Alaska will have a 4-day service standard for some intrastate Single-Piece First-Class Mail. Third, even if some Single-Piece First-Class Mail to or from incarcerated persons were subject to materially longer service standards or actual delivery times, the prevalence of postmark rules minimizes the impact of longer delivery times on incarcerated persons' business and legal matters. See, e.g., 26 U.S.C. 7502; Federal Rules of Civil Procedure 5(b)(2)(C), 6(d); Federal Rules of Criminal Procedure 45(c), 49(a)(4)(C); California Code of Civil Procedure section 1013(a). Other common rules withhold legal completion of service of a mailed summons until the recipient has executed a written acknowledgment of receipt within some period extending far beyond even a 5-day First-Class Mail service standard—and not before. See, e.g., California Code of Civil Procedure section 415.30; North Carolina Rules of Civil Procedure 4(j)(1); South Carolina Rules of Civil Procedure 4(d)(8). Because the service of court documents is not sensitive to the time between mailing and receipt, the advocacy group's scenario, referenced above, is unlikely to materialize.

The advocacy group also disputes that the Postal Service took customer satisfaction into account, on the theory that the Postal Service's customer satisfaction surveys do not include incarcerated people among potential participants. However, the advocacy group offers no contrary evidence of incarcerated people's preferences to support its hypothesis of divergence from the preferences of the general mailing populace. Absent such evidence, there is no basis on which to conclude that incarcerated persons do not value reliability and consistency over speed, as the Postal Service's customer survey data indicate for postal customers generally. The advocacy group itself appears to agree that reliability is of paramount importance to incarcerated persons, given its fear that “the proposed 1-5 day delivery range leaves incarcerated mailers utterly unable to reliably estimate the time in which it will take for First-Class Mail to be delivered.” In fact, the changes will demonstrably improve incarcerated mailers' ability to rely on standard delivery times.

Finally, the advocacy group contends that the changes violate 39 U.S.C. 3691(c)(7), which requires that service standards take into account “the effect of changes in technology, demographics, and population distribution on the efficient and reliable operation of the postal delivery system.” For this claim, the advocacy group adduces two grounds: That with these changes, the Postal Service “arbitrarily ignores the nation's robust and extensive air network that has routinely been used to transport First-Class Mail”; and that the “1-5 day delivery range leaves incarcerated mailers utterly unable to reliably estimate the time in which it will take for First-Class Mail to be delivered.” This characterization of the air network as “robust” is belied by evidence showing that, in terms of transporting mail, it is actually less reliable and resilient than surface transportation. As mentioned above, all intrastate mailings (with the exception of some Alaska ZIP Code pairs) will fall within the 1-3 day delivery range; and the changes, by enabling superior service performance, will better allow incarcerated persons to estimate the time it will take First-Class Mail to be delivered, since the delivery standards will be more reliably achieved.

A financial services company expresses concern that the changes will cause certain impacts on its mailing operations. The company relates that it recently consolidated the facilities from which it processes mailings and avers that the changes will reverse its cost savings associated with that consolidation. The company further notes that, currently, it can send mailings to its geographically diverse accountholders on a single timeline, and that the changes will oblige it to account for differing travel times. “Mailpieces in the same advertising campaign,” it explains, “will need to be entered at different times to achieve similar in-home dates.” Invoices on the same billing cycles and with the same due dates may likewise need to be staggered. While the Postal Service acknowledges that the new standards may require adjustments on the part of business mailers, mailers will also benefit from enhanced reliability. Such mailers may find that the benefits of increased reliability, which will enable customers to have more confidence in the specific date of delivery, offset any costs associated with staggered mailing invoices and mailing campaigns. Furthermore, such mailers have a vested interest in the Postal Service's ability to achieve long-term financial sustainability while maintaining affordable rates, and the changes will enable progress toward that end.

A postal labor organization opposes the changes on several grounds. First, it alleges that the changes will hinder the distribution of local dues reimbursements, reduce the timeliness of its communications regarding collective bargaining and union activities, and compromise the value of its monthly periodical. Second, it observes that “the American public have expressed strong opposition to the changes proposed as measured by the high number of public comments submitted.” Finally, it opines that putative harm to the Postal Service's brand will outweigh the projected cost savings, and suggests, in lieu of the changes, and as a measure of brand protection, that the Postal Service adopt “more realistic performance targets (to less than 95 percent) for cross-country mail.”

With regard to the first point, the Postal Service notes that the union itself, in its comments, affirms its commitment to and support of improved reliability. The Postal Service further observes that the enhanced reliability enabled by the changes can counterbalance any marginal impact on the union's mailing activities that the standards may cause. With regard to the second point, it bears mentioning that approximately 98 percent of the comments received consisted of short form letters that were prompted by critics of the proposed change; it is not the case that such letters are indicative of opposition by “the American public” generally of this proposal. Moreover, evidence suggests that customers typically value reliability above speed, and that—as the numerous anecdotes of service performance failures further attest—delayed or missed deliveries inflict at least as much, and likely more, damage to the Postal Service's brand than would a slightly lengthened service standard affecting less than 40 percent of First-Class Mail. The Postal Service therefore disagrees with the suggestion that, by maintaining the current standards while setting forth lower service targets, the Postal Service could more effectively protect its current high approval rating among the American public.

At least one commenter claims that with the changes comes a higher risk that time-sensitive Periodicals will arrive late at their destination. The Postal Service observes that, when subject to delays, time-sensitive Periodicals may lose value to customers. As such delays cannot be planned around, customers who ship and receive Periodicals will stand to benefit from the greater degree of reliability enabled by the changes, which will also only extend the standard by one or two days. In addition, this change affects only end-to-end Periodicals, which represent a very small portion of overall Periodicals volume, and are more likely to be quarterly or monthly publications that are less time-sensitive than Periodicals generally.

Numerous comments were submitted by, or on behalf of, customers domiciled in Alaska. First, a group of Alaskan state legislators allege that the changes “would grossly violate the Universal Service Obligation.” The Postal Service notes, in response, that the PRC's Report on Universal Postal Service and Postal Monopoly, Dec. 19, 2008, at 197-98, finds service quality to be an attribute of the universal service obligation, and further finds the statutory requirement to seek an advisory opinion before changing service quality nationwide to be a necessary component of service quality. For the changes at issue in this rulemaking, the Postal Service has already sought an advisory opinion; the changes, moreover, aim to rebalance speed and reliability, in order to address well-documented concerns about the latter and thereby to maintain and indeed improve service quality.

Further, some business owners express concern that the changes will affect their ability to ship products (such as smoked salmon) to locations within the 48 contiguous states. Others worry that the changes will compromise their ability to receive food and prescription medications via the Postal Service. Several commenters note that the Alaska Public Guardian manages the shelter, food, medical and financial needs of approximately 1,700 incapacitated Alaskans, and that the Postal Service is the only method available to the Public Guardian to send checks and documents to these individuals, their landlords, service providers, and families. These commenters note the time-sensitive nature of many such mailings; observe that they “are already routinely late, many times already arriving on the date information is due or after deadlines have passed”; and voice the concern that “[c]hanging the delivery standards will . . . exacerbate these issues.”

The Postal Service acknowledges the unique challenges faced by incapacitated Alaskans, and further acknowledges that customers in rural Alaska may rely on the Postal Service for prescription medications and foodstuffs. However, it bears repeating that the changes under review in this rulemaking will affect only First-Class Mail and Periodicals—not the packages which bear items like food, prescription medications, and other merchandise. With regard to the Public Guardian and its clients, it also bears mentioning that mailings can—and often do—arrive earlier than the deadlines indicated by service standards. Furthermore, as discussed, the changes will help ameliorate, rather than exacerbate, the service performance failures which these commenters note. Thus, the increase in reliability enabled by these changes should counterbalance inconveniences which result from the addition of one day to the service standards for First Class Mail originating in and destined for Alaska.

Two farmers' organizations draw attention to the special challenges faced by their members. These commenters note that farmers rely on the Postal Service to ship and receive seeds, fertilizer, pesticides, tools, and other essential products, as well as to receive live animals like chicks and bees. They also note that, as their members tend to live in rural areas not covered by private carriers and frequently not equipped with broadband internet, they rely on the Postal Service for prescription medications and for purposes of general communication. In opposing the changes, these commenters appear to operate under the misimpression that the service standards for all First-Class Mail will be lengthened from 1-3 days to 5 days.

The Postal Service reiterates that the changes at issue here concern only First-Class Mail letters and flats and Periodicals, and not the packages used for conveying the supplies, seeds, and animals listed by these commenters as matters of special concern. Moreover, with respect to the non-package mail at issue, the Postal Service reiterates that over 60 percent of First-Class Mail will remain unaffected by the changes, and that, of the affected mailings, only a fraction (approximately 10 percent) will see service standards lengthened to 5 days. Most First-Class Mail (70 percent) will remain subject to a service standard of 3 days or less. The Postal Service also notes that the increased reliability accruing to the changes should counterbalance any inconveniences associated with longer delivery times.

Numerous commenters cite or allude to Article I, Section 8, of the U.S. Constitution, which grants Congress the power to “establish Post Offices and post Roads.” Many, though perhaps not all, of these commenters either suggest or claim outright that the changes would somehow violate this clause. This claim is premised on the view that the changes amount to a wholesale “destruction” or “sabotage” of the postal system.

The Postal Service disagrees. Far from acting contrary to Congress's design, the service standard changes flow from Congressional delegations of authority to establish and revise service standards and to plan, develop, promote, and provide adequate and efficient postal services. 39 U.S.C. 101(a), 403(a), (b)(1), 2010, 3691(a). Moreover, these changes reasonably balance the various policies that those statutory delegations require the Postal Service to achieve or take into account when designing service standards. The changes will leave unaffected approximately 60 percent of First-Class Mail mailings; will enable higher levels of satisfactory service performance and operational efficiency; and will help put the Postal Service on a sounder financial footing, so that it may continue to serve its customers with universal postal services for many years to come. As such, the changes are designed to preserve, and not to undermine, the Postal Service.

Some commenters assert that the Postal Service did not, in conceptualizing the new service standards, conduct “impact studies.” The Postal Service notes that it modelled the impacts of the new service standards on customers across the country, as well as on the Postal Service's transportation network. And it has employed various methodologies to project the costs savings and volume declines that the new service standards are anticipated to produce.

Some of the comments—particularly those that merely incorporate by reference the identical briefs or statements of position that had been filed in the PRC proceeding—raise concerns that the proposed service standard changes are inconsistent with relevant statutory criteria. Upon considering these comments, the Postal Service remains convinced that the service standard changes are consistent with all applicable statutory provisions, especially when considering the provisions together. The Postal Service has taken into account the factors of 39 U.S.C. 3691(c), and has concluded that the service standard changes should serve and help it to achieve the objectives of 39 U.S.C. 3691(b). These provisions require that the Postal Service balance of number of considerations. The Postal Service has evaluated these factors and objectives holistically, and believes that these service standard changes reflect a reasonable balance that, on the whole, will benefit the American public in the near and long term. In addition, the PRC extensively considered this issue and concluded that the proposed service standard changes in principle are not inconsistent with any statutory requirements.

In a statement of position filed with the PRC on June 21, 2021 (and incorporated by reference in this proceeding), the Attorneys General for 21 States, together with several cities (collectively, the “States”), suggest that the Postal Service has short-circuited the process of planning and seeking an advisory opinion by avoiding “consultation” with the PRC under 39 U.S.C. 3691(a) before submitting its request or issuing its Proposed Rule. However, the Postal Service has fully complied with the regulatory requirements applicable to this process. The “consultations” envisaged in 39 U.S.C. 3691(a) concerned the initial establishment of the service standards regulations in 2007, rather than subsequent modifications of the service standards.

That subsection 3691(a) provides that “the Postal Service shall, in consultation with the Postal Regulatory Commission, by regulation establish (and may from time to time thereafter by regulation revise) a set of service standards for market-dominant products.” Importantly, the phrase about PRC consultation follows “shall”: as such, it applies only to that modal clause (“shall . . . establish”), and not to the separate modal clause set forth in the parentheses (“may . . . revise”). Had Congress intended otherwise, the framers would have structured the sentence so that the consultation clause would modify both “shall . . . establish” and “may . . . revise,” rather than only the former. In any event, the Postal Service's formal request for an advisory opinion under 39 U.S.C. 3661(b) would satisfy any arguably applicable “consultation” obligation in this instance.

With respect to substance, one statute reflects the variety of policies that the Postal Service must address, including providing service that is “prompt, reliable, and efficient” with “prompt and economical delivery,” while also “emphasiz[ing]” other priorities including the “control of costs.” See 39 U.S.C. 101(a), (f), (g); see also 39 U.S.C. 403(a), (b)(1), 2010, 3661(a), 3691(b)(1)(C). Many commenters fixate narrowly on promptness and would relegate reliability, efficiency, economy, and control of costs to second-tier policy objectives. Yet the statute does not offer a basis for such a ranking. The Postal Service must balance achievement of all policy objectives in a manner that is operationally and financially sustainable. That cannot be done under current service standards.

The States, without concrete suggestions, contend that the Postal Service should consider “chang[ing] its service standard to address long-term trends” only after it “reliably meet[s] its [current] performance targets[.]” And the States suggest that the Postal Service is intentionally sacrificing market-dominant volume to bolster package capabilities. To the contrary, adopting the States' position would straightjacket the Postal Service because meeting current service standards in a reliable manner is not feasible, as evidenced by the fact that the Postal Service has not met its service performance targets for years. Waiting to achieve the infeasible would prevent the Postal Service from ever implementing necessary reforms.

The States contend that the new service standards will increase the delivery time for some mail from government entities, including election mail, government payments, and applications for government benefits programs. They recognize that the Postal Service has not met existing service standards “for some time” but aver that, rather than adjust them, the Postal Service should simply begin meeting them. Similarly, the Association for Postal Commerce (PostCom) contends that, even if the Postal Service must incur additional costs to meet service standards, it should simply do so because it “is not a profit-seeking business.”

While such criticisms repeatedly argue that the Postal Service has a responsibility under Title 39 to deliver First-Class Mail quickly, they ignore the fact that the Postal Service must balance speed of delivery with other statutory considerations. One such consideration is the Postal Service's obligation to be self-sustaining. Given this self-sufficiency mandate, the Postal Service must ensure that it provides services in a cost-effective manner, particularly if it is to ensure affordable rates. As the States note in passing, 39 U.S.C. 101(a) states that the Postal Service will be “supported by the people.” But, beyond operational challenges unrelated to cost, they ignore that, if the Postal Service is unable to recoup the costs of operations through revenues, its essential services cannot be provided. 39 U.S.C. 101(d). 1

The very services that many critics of the service standards emphasize are essential are at risk due to the Postal Service's present unsustainable position. It is no solution to this problem to say that the Postal Service should simply deliver mail more reliably within the existing service standards: This not only ignores the infeasibility of the task under the current standards, but also the Postal Service's dire financial situation. Given the Postal Service's long-standing service performance, operational, and financial problems and its statutory obligations to provide adequate, efficient, and economical services, it is certainly no solution to say that the Postal Service should simply expend more resources on unreliable, inefficient transportation providers in an attempt to meet the current standards.

It is also incorrect to claim that the Postal Service has not considered the potential impact of the service standards on election mail. As noted above, the Postal Service has used Intelligent Mail® barcode tracking specifically to evaluate the amount of inbound ballot volume that would experience a downward change and concluded that it was only 3.84 percent of such volume. The Postal Service has already held briefings to discuss the changes with election officials to enable them to align their mailings with service standards and will continue to conduct outreach during and after any implementation. Finally, none of the changes is specific to election mail or implicates the kinds of measures the Postal Service has taken during past elections to expedite election mail.

Before the PRC, the Postal Service explained how it has reasonably balanced the various 39 U.S.C. 3691 objectives and factors and the statutory policies set forth in 39 U.S.C. 101, 403, 2010, and 3661(a), and the PRC concluded that the proposed changes do not facially conflict with any statutes. The service standards would enhance the value of postal services by improving reliability and consistency, while minimizing the tradeoffs in terms of lengthened service standards. This balancing of reliability, speed, and frequency is also consistent with reasonable rates and best business practices, both of which require efficient cost management, and with various other statutes that require a balance between efficiency and service. Congress committed to the Postal Service the discretion to perform this balancing of numerous and sometimes competing policies. Other parties may favor one statutory policy or another in their own narrower interests, or may wish for a different balance amongst the various policies, but only the Postal Service bears the statutory responsibility of accounting for all of the relevant policies in weighing initiatives. In furtherance of this duty, the Postal Service has set forth a reasonable balance regarding these new service standards.

The States compare the operational changes at issue to other changes challenged in certain federal lawsuits from 2020, but this comparison is entirely misplaced. First, the substance of the alleged operational changes in those cases had nothing to do with either these service standard changes or their operational motivations (such as the planned shift from air transportation to surface). Instead, those cases concerned alleged operational changes from July 2020, including alleged changes to policies regarding late and extra surface transportation trips and overtime, among other claims, particularly in the unusual context of the pandemic and the 2020 election. The courts therefore did not review the Postal Service's balancing of the various statutory policies in designing the then-existing service standards, let alone those proposed well after the events at issue in the 2020 lawsuits. Second, the statutory challenges in those cases arose largely from procedural allegations that the Postal Service had not sought proper regulatory review of the alleged operational changes prior to implementation. Irrespective of whether such regulatory review was required in connections with those matters, here it is beyond dispute that the Postal Service formally sought precisely the ex ante regulatory review that litigants in those cases had suggested was lacking there. To the extent those federal lawsuits have any bearing on this case, they merely support the process that the Postal Service has employed here.

The States mischaracterize the Postal Service's motivation as seeking to favor package performance at the expense of First-Class Mail. That is not what the Delivering for America Plan says or implies; to the contrary, the Plan explicitly and repeatedly emphasizes the Postal Service's intent to improve reliability for both mail and packages, not favoring the latter at the expense of the former. E.g., Plan at 6, 8, 24, 27, 30, 34, 40. Indeed, a fundamental goal of the Plan is to ensure the reliable delivery of all mail 6 days a week, at affordable rates, meaning the Plan fully recognizes the centrality of mail to the Postal Service's statutory mission. (At the same time, the States express concerns about the delivery of prescription medications; as noted earlier, however, such packages are not at issue in this rulemaking.)

The States' concerns about First-Class Mail used for their governments' mailings to their own residents are unfounded. It is only reasonable to infer that a substantial proportion of governmental-to-individual mailings is mailed from somewhere in the same general region; indeed, the States admit that “much of [such mailings] involves in-state mail.” In other words, the likelihood that the service standards would lengthen the delivery time of these mailings—particularly that any would now be subject to 4- or 5-day service standards—is low. Only between 1 and 27 percent (depending on the state) of 2-day mail in only 28 contiguous states would move to a 3-day standard; further, no First-Class Mail would actually shift to a 5-day standard for pairs originating and destinating within the same state, and Alaska is the only state in which some 3-day could shift to a 4-day standard for pairs within the state.

The States criticize the proposal as if its motivation were to degrade service. It is incorrect, however, to suggest that, because the Postal Service has failed to meet service performance targets in the past, the proposal amounts to nothing more than “simply moving the goalposts.” It is not only rational, but critical, that the Postal Service take steps to address its longstanding service performance, operational efficiency, and financial problems, in order to provide the American public with reliable service through a financially sustainable postal system. This is the goal of the Delivering for America Plan, of which this proposal is a (but far from the only) critical element. The principal purposes of the changes are to enable operations to provide more reliability for customers and a more cost-effective network to help sustain the Postal Service's long-term financial stability by shifting some volume from air to surface transportation. Similarly, for offshore delivery, the changes would enable a shift from air cargo to commercial air.

The new service standards balance promptness with reliability, efficiency, and economy by preserving current service standards for the majority of First-Class Mail and end-to-end Periodicals, and by tailoring the service standard changes to increase the use of more reliably prompt and cost-effective surface transportation. The changes will also enable other measures to improve the promptness and efficiency of the surface transportation network. These measures include modern methods of transporting mail by containerization, as the changes would allow the Postal Service to directly containerize trays where volume warrants. See 39 U.S.C. 101(f).

Furthermore, most First-Class Mail would continue to be delivered within 3 days, and while certain long-distance customers would receive a service standard that is 1 or 2 days longer, they would be assured of consistent and predictable delivery within those service standards. For those customers who need faster delivery than would be provided under these service standards for their letters, Priority Mail Express and Priority Mail would continue to be available. See id. at (e). Similarly, Priority Mail Express and Priority Mail will continue to rely on modern methods of containerization and systems designed to achieve expeditious, overnight transportation and delivery of important letter mail to all parts of the Nation where it is economical to do so. Id. at (f).

The Postal Service has reasonably balanced the relevant statutory objectives and factors. The revised service standards would enhance value for customers, providing greater reliability and consistency. Id. at 3691(b)(1)(A), (b)(1)(C), (c)(2). Customers would have a better ability to predict when to expect First-Class Mail delivery, based on objective criteria. The Postal Service has reasonably determined that the service standards would improve both delivery reliability and efficiency, while minimizing the extent of impact on delivery speed. Id. at 3691(b)(1)(C), (c)(1), (c)(6). But, contrary to the view portrayed by the States, the Postal Service is not merely “moving the goal posts” of the service standards. The service standards are necessary to facilitate much more concrete operational initiatives to improve delivery reliability and transportation efficiency.

Several commenters argue that the changes violate 39 U.S.C. 101, but fail to recognize how the changes appropriately balance the various policies set forth in that provision. The States, for example, quote 39 U.S.C. 101(e), but never mention subsection (f) of that section. An individual commenter argues that the proposed service standards are contrary to 39 U.S.C. 101(e) and (f) (“Congress generally considered `faster' delivery to be `better' delivery”), without reconciling the statutory mandate to balance both “prompt” and “economical” delivery in selecting modes of transportation. The Postal Service notes that the “economical” prong cannot be relegated to some lesser aspirational goal, given the longstanding expectation that the Postal Service be financially self-sufficient. See generally 39 U.S.C. 101(a), 2401; H.R. Rep. 91-1104, at 17 (1970). The Postal Service cannot simply incur huge costs to ensure a narrower conception of speed, particularly one that experience shows is not consistently achievable in practice.

First, 39 U.S.C. 101(e) does not say that all letter mail must be delivered in the fastest manner at all costs, nor does it define “important.” Similarly, the second sentence of subsection (f) does not require overnight delivery of all mail, and instead recognizes that only certain important letter mail may warrant overnight treatment. In that regard, the Postal Service is not changing the current service standard for First-Class Mail subject to an overnight standard. The Postal Service also has other options for speedier delivery available to customers who want their important letter mail to travel overnight, even for long distances: Specifically, Priority Mail Express and Priority Mail.

By contrast, the first sentence of subsection (f) does address “all mail” and thus is much more relevant to the present initiative, which will affect First-Class Mail and end-to-end Periodicals based on distance of transportation. Subsection (f) also focuses specifically on “modes of transportation”—the underlying issue with respect to the changes here at issue. Prompt and economical, when considered together, cannot mean speediest in all instances, but necessarily entails reasonably fast speeds to the extent that they can be achieved at reasonable costs. The Postal Service's current usage of air transportation has proven inadequate to meet that test, and so the Postal Service is taking measured steps to improve the selected modes of transportation. To do so, however, the service standards need to be adjusted.

Moreover, the proposed changes are limited in scope, and are designed to address the consequences of the current standards that result in an unreliable, inefficient service, while also mitigating the impact on speed of delivery. In this regard, most mail volume will remain at its current standard, and overall, most mail volume will continue to be subject to a standard of 3 days or less. All mail will also receive much more reliable service, meaning actual service performance will be better aligned with the service standards, rather than having consistent performance failures (a problem particularly pronounced for mail currently subject to a 3-day standard). Hence, and regardless of how one might choose to define the scope of “important letter mail,” the Postal Service has given appropriate consideration to the interest in ensuring expeditious delivery of First-Class Mail letters generally, and has appropriately balanced that interest to the extent possible with the other policies of the statute, including reliability, efficiency, and affordability.

Some commenters suggest that the changes would be inconsistent with 39 U.S.C. 101(b), which requires the Postal Service to “provide a maximum degree of effective and regular postal services to rural areas, communities, and small towns where post offices are not self-sustaining.” The Postal Service notes that, by distinguishing on the basis of mailing distance and not on the nature of the origin or destination, the service standards would affect urban and rural mailers similarly. Moreover, the service standards are measured only after acceptance at a postal facility, and would not alter that status quo. Accordingly, whether post offices are present in a community—and hence 39 U.S.C. 101(b)—is irrelevant to the present changes.

Various commenters suggest that the changes may infringe 39 U.S.C. 403(c), which bars the Postal Service, in providing services, from “mak[ing] any undue or unreasonable discrimination among users of the mails” or “grant[ing] any undue or unreasonable preferences to any such user.” Notably, upon consideration of detailed briefs on both sides of this precise question, the PRC concluded that the service standard changes are not unreasonable and do not facially violate 39 U.S.C. 403(c). The Postal Service certainly agrees with the PRC's assessment in that important respect. Nevertheless, it is important to examine carefully the nature of the comments alleging discriminatory impact of the changes.

In accord with PRC precedent, three conditions must be met to establish a claim of unreasonable discrimination: (1) One or more mailers must be offered less favorable rates or terms and conditions than those offered to other mailers; (2) the two sets of mailers must be similarly situated; and (3) there must be no rational or legitimate basis for differing treatment. Order No. 718, Order on Complaint, PRC Docket No. C2009-1 (Apr. 20, 2011), at 28. Several commenters suggest that the service standards would implicate these conditions, but the Postal Service does not find this argument persuasive.

Most broadly, some commenters seem to suggest that any geographical disparities resulting from the service standards will suffice to satisfy the first two 39 U.S.C. 403 (c) criteria. However, the relevant question is not where customers live, but how far their mailings travel. The Postal Service is not degrading service standards in selected states or for selected mailers, but rather is lengthening the service standards for all mailings that traverse longer distances based on objective distance criteria that will apply nationwide. Furthermore, the Postal Service notes that when considering whether First-Class Mail service, as a whole, would inappropriately discriminate among customers following this service standard change, longer-distance mailers will continue to benefit from the uniform First-Class Mail rate, whereby they pay less per mile than shorter-distance mailers. Moreover, with respect to expected delivery times, many longer-distance mailers subject to lengthened service standards will continue to enjoy a delivery speed ( i.e., distance traveled per day) that is significantly faster than that for shorter-distance mail, even if longer-distance mail's speed advantage will now be somewhat less. Initial Brief of the United States Postal Service, PRC Docket No. N2021-1 (June 21, 2021), at 47-49.

As for the third prong in the 39 U.S.C. 403 (c) analysis, the Postal Service notes that both courts and the PRC have granted it broad latitude in distinguishing between different mailers, given the Postal Service's statutory responsibility to provide universal service in an economical and efficient manner. See, e.g., Egger v. USPS, 436 F. Supp. 138, 142 (W.D. Va. 1977) (declaring it “obvious that the Postal Service may provide different levels of delivery service to different groups of mail users so long as the distinctions are reasonable”); UPS Worldwide Forwarding, Inc. v. U.S. Postal Serv., 66 F.3d 621, 634-35 (3d Cir. 1995) (noting that Postal Service may treat mailers differently so long as that different treatment is reasonable); Order No. 4294, Order Granting the Postal Service's Motion to Dismiss, PRC Docket No. C2019-1 (Dec. 12, 2018), at 10 (“the Postal Service may differentiate among customers where the differences have a rational basis”); Order No. 5491, Order Granting the Postal Service's Motion to Dismiss Complaint with Prejudice, PRC Docket No. C2020-2 (Apr. 28, 2020), at 9.

The Postal Service has adduced a rational, non-arbitrary basis for the differences in standards: namely, to improve service performance by enhancing reliability through greater use of surface transportation, which in turn depends on designing standards that predicate days of delivery on geographic distances. Moreover, courts have recognized that objective geographic disparities can serve as a rational justification for different levels of service in connection with 39 U.S.C. 403(c). UPS Worldwide Forwarding, 66 F.3d at 634-35.

Some commenters suggest that 39 U.S.C. 101(a) and 404(c) constrain the interpretation of the phrase “undue or unreasonable discrimination,” in support of the broader view that any geographical disparities in service standards would, by definition, trigger a 39 U.S.C. 403(c) violation. One commenter, for instance, discusses the uniform-rate requirement under 39 U.S.C. 404(c) and then speculatively asserts that the scope of “discrimination” under 39 U.S.C. 403(c) should likewise bar geographically-based differentials in service standards. This argument is inapposite: 39 U.S.C. 404(c) speaks to rates, not to service standards, and nothing in the statutory text ties the two provisions together in the manner suggested by the commenter. Another commenter purports to read, in 39 U.S.C. 101(a)'s stated goal of “binding the nation together,” an obligation to impose uniform service standards across the United States. The Postal Service further notes, though, that geographically-tiered service distinctions already exist in the prior service standards upheld by this and other commenters. If such distinctions do not give the commenters pause in regard to the prior service standards, then it cannot be that the mere occurrence of a geographical disparity constitutes undue discrimination in connection with the new service standards, either.

Some commenters contend that the changes would result in discrimination with respect to certain demographic groups. The States thus express concern over the changes' impact on rural, low-income, elderly, and disabled customers. The Postal Service notes, however, that the States do not assert that the changes will fall unequally on such customers; in other words, they neither claim nor purport to demonstrate that these changes would target a disproportionately large percentage of mailings conveyed by vulnerable populations. Furthermore, even assuming for the sake of argument that rural, low-income, disabled, and/or other vulnerable customers may be disproportionately reliant on First-Class Mail, they likewise prove particularly vulnerable to the unreliable air network and to the resulting service failures that have persisted for years, both of which the changes aim to relieve.

Certain commenters likewise express concerns about the possible impact of the changes on their own interests as veterans, rural customers, disabled customers, elderly customers, small businesses, and other vulnerable customers. With regard to rural communities in particular, joint comments by public advocacy groups suggest that the changes violate 39 U.S.C. 101(b), which requires that the Postal Service “provide a maximum degree of effective and regular postal services to rural areas, communities, and small towns where post offices are not self sustaining” and to ensure “effective postal services . . . to residents of both urban and rural communications.” However palpable their policy interests as a general matter, none of these commenters present evidence that they disproportionately align with the minority of mail volume affected by the service standard changes (for example, that a greater percentage of rural customers' mail will have a changed service standard than for non-rural customers). As noted earlier, the service standard changes are based on distance traveled by a mailpiece, without further distinction as to the location or nature of the mailer or recipient. Moreover, the Postal Service notes that insofar as persons in vulnerable communities—including rural communities—currently experience delivery delays and other service failures, they stand to benefit from the changes, which aim to provide more reliable deliveries and therefore consistent customer expectations. Moreover, and as discussed above, the service standards are limited in scope.

One commenter, a public advocacy group for prisoners, claims that the current changes would violate 39 U.S.C. 404(c). First-Class Mail, on its theory, fulfills the mandate that the “Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection[, one of which] shall provide for the most expeditious handling and transportation afforded mail matter by the Postal Service.” It asserts that, under the proposed service standards, First-Class letters would “categorically be excluded from air transportation,” even though other classes of mail would continue to be transported by air; and that “this discrepancy plainly violates the requirement that First-Class letters be provided the most expeditious handling and transportation.” As an initial matter, it is incorrect to state that First-Class Mail would be “categorically” excluded from air transportation under this proposal; much long-distance First-Class Mail would continue to be transported by air. In any event, the Postal Service notes that 39 U.S.C. 404(c) requires only that one class of sealed letters receive “most expeditious” treatment, not that each class of sealed letters do so. Thus, the “most expeditious” type of sealed mail has long been understood to mean what is now Priority Mail Express, which is handled and transported more expeditiously than First-Class Mail.

In sum, the service standard changes do not conflict with any statutory obligations; to the contrary, considering those obligations as a whole, the changes properly balance the policies of the statute. Consequently, modifications to the Proposed Rule in light of the comments received are unwarranted.

The Postal Service's market-dominant service standards are contained in 39 CFR part 121. The revised version of 39 CFR part 121 appears at the end of this Notice. The following is a summary of the revisions. In addition to the changes described below, minor edits are made to (i) conform to product name changes for USPS Marketing Mail®, (ii) correct a clerical error in the subsection on Destination Entry Periodicals, (iii) delete expired provisions, and (iv) refer to common or defined terms in a more consistent manner throughout the rules. What was previously known as “Standard Mail” has been rebranded as “USPS Marketing Mail,” see generally 81 FR 93,606 (2017), and therefore Part 121 (including section 121.3 and Appendix A) has been updated to refer to the current name of this product.

Service standards contain two components: (1) A delivery day range within which mail in a given product is expected to be delivered; and (2) business rules that determine, within a product's applicable day range, the specific number of delivery days after acceptance of a mail piece by which a customer can expect that piece to be delivered, based on the 3-Digit ZIP Code prefixes associated with the piece's point of entry into the mail stream and its delivery address.

Business rules are based on critical entry times (CETs). The CET is the latest time on a particular day that a mail piece can be entered into the postal network and still have its service standard calculated based on that day (this day is termed “day-zero”). In other words, if a piece is entered before the CET, its service standard is calculated from the day of entry, whereas if it is entered after the CET, its service standard is calculated from the following day. (If the following day is a Sunday or holiday, then the service standard is calculated from the next Postal Service delivery day.) For example, if the applicable CET is 5:00 p.m., and a letter is entered at 4:00 p.m. on a Tuesday, its service standard will be calculated from Tuesday, whereas if the letter is entered at 6:00 p.m. on a Tuesday, its service standard will be calculated from Wednesday. CETs are not contained in 39 CFR part 121, because they vary based on where mail is entered, the mail's level of preparation, and other factors.

The Postal Service is changing some of the service standards applicable to certain First-Class Mail with respect to both of the two components of the standards. First, the Postal Service is promulgating modifications to the delivery day ranges within which mail in a given product is expected to be delivered. Second, the Postal Service is promulgating modifications to the business rules, changing the maximum number of hours of drive time that corresponds to the specific number of delivery days after acceptance of a mail piece by which a customer can expect that piece to be delivered (within a product's applicable delivery day range).

In particular, the changes to service standards include the delivery-day range for certain First-Class Mail. Currently, a one-day (overnight) service standard is applied to intra-SCF Presort First-Class Mail pieces properly accepted at the SCF before the day-zero CET. A two-day service standard is applied to intra-SCF single-piece First-Class Mail properly accepted before the day-zero CET, as well as to inter-SCF domestic First-Class Mail pieces properly accepted before the day-zero CET if the drive time between the origin P&DC/F and destination SCF is 6 hours or less. A three-day service standard is applied to inter-SCF domestic First-Class Mail pieces properly accepted before the day-zero CET if the drive time between the origin P&DC/F and destination SCF is more than 6 hours and the origin and the destination are within the contiguous 48 states.

Under the new service standards, the delivery day range for First-Class Mail within the contiguous United States will expand from the current 1-3 days, to 1-5 days. The overnight service standard does not change. Among the changes detailed below, a two-day service standard will apply to intra-SCF First-Class Mail where the SCF is also the origin P&DC/F, and to intra-SCF and inter-SCF domestic First-Class Mail where the combined drive time between the origin P&DC/F, destination ADC, and destination SCF is 3 hours or less; a three-day service standard for inter-SCF First-Class Mail would apply where the combined drive time between the origin P&DC/F, destination ADC, and destination SCF is 20 hours or less (but over 3 hours) within the contiguous United States, and the same three-day standard would also apply for intra-SCF single-piece First-Class Mail if the combined drive time exceeds 3 hours and the SCF is not the origin P&DC/F; a four-day service standard for inter-SCF First-Class Mail would apply where the combined drive time between the origin P&DC/F, destination ADC, and destination SCF is 41 hours or less (but over 20 hours) within the contiguous United States; and combined drive times between the origin P&DC/F, destination ADC, and destination SCF in excess of 41 hours would result in a service standard of five days.

Furthermore, the Postal Service's regulations pertaining to the current service standards for First-Class Mail do not expressly account for the combined drive time between origin P&DC/Fs, ADCs, and SCFs, though often distribution routes encompass several such facilities. In order to clarify these service standards, the final rule specifies, in the new service standards for First-Class Mail, that the combined drive time encompasses all such P&DC/Fs, ADCs, and SCFs.

In addition, among the changes detailed below, the Postal Service is promulgating certain changes to the service standards for mail originating from or destined to areas outside of the contiguous United States. The Postal Service will apply a 4-day standard for First-Class Mail originating in the contiguous 48 states destined to the city of Anchorage, Alaska, the 968 3-digit ZIP Code area in Hawaii, or the 006, 007, or 009 3-digit ZIP Code areas in Puerto Rico; for First-Class Mail originating in the 006, 007, or 009 3-digit ZIP Code areas in Puerto Rico and destined to the contiguous 48 states; for First-Class Mail originating in Hawaii and destined to Guam, or vice versa; for First-Class Mail originating in Hawaii and destined to American Samoa, or vice versa; and for other First-Class Mail that has both its origin and its destination within Alaska. The Postal Service will apply a 5-day standard for other First-Class Mail originating from and/or destined to the non-contiguous states and territories.

Certain Periodicals are merged with First-Class Mail, and their service standards are consequently tied to the respective First-Class Mail service standards. In other words, the changes to First-Class Mail service standards will result in similar changes to the corresponding service standards of the merged Periodicals.

The Postal Service is therefore promulgating a related change concerning certain Periodicals. Under current service standards, for end-to-end Periodicals, a three-to-four-day service standard is applied to Periodicals pieces properly accepted before the day-zero CET and merged with First-Class Mail pieces for surface transportation, with the service standard specifically equaling the sum of one day plus the applicable First-Class Mail service standard ( i.e., either two or three days, depending on whether the drive time is more than 6 hours). Under the new service standard, a three-to-six-day service standard will be applied to Periodicals pieces properly accepted before the day-zero CET and merged with First-Class Mail pieces for surface transportation, with the service standard specifically equaling the sum of 1 day plus the applicable First-Class Mail service standard.

Accordingly, for the reasons stated, the Postal Service adopts the following revisions to 39 CFR part 121:

Throughout this document wherever “we” or “our” is used, it refers to the EPA.

On January 29, 2021, the Oregon Department of Environmental Quality submitted a SIP revision to the EPA for approval. The revision, State effective January 21, 2021, updates the adoption by reference of Federal requirements used throughout the Oregon air quality rules. Oregon's air quality rules are codified in Divisions 200 through 268 of Chapter 340 of the Oregon Administrative Rules (OAR).

We proposed to approve the revisions on April 5, 2021 (86 FR 17569). The reasons for our proposed approval were included in the proposal and will not be restated here. The public comment period for our proposal closed on May 5, 2021. We received two public comments.

The commenters raised a wide range of concerns, including but not limited to the importance of human rights, legal recourse for victims of crimes, and just compensation for personal injury and loss of property. Most of the concerns raised by the commenters are broad in nature and do not identify any specific requirements that are inconsistent with Clean Air Act (CAA) requirements. Therefore, we consider them outside the scope of this action. However, we have determined that one issue raised is within the scope of this action and requires a response. Specifically, one commenter alleged, generally, that incorporation by reference is illegal.

We disagree with the commenter's assertion that incorporation by reference is illegal. On the contrary, section 552(a) of title 5, United States Code provides that reasonably available materials are considered published in the Federal Register when those materials are incorporated by reference therein and approved by the Director of the Federal Register. The Code of Federal Regulations (CFR) at 1 CFR part 51 sets forth the requirements that agencies must follow to incorporate materials by reference. In this rulemaking, the EPA is complying with the law by adhering to the requirements of 1 CFR part 51, as authorized by section 552(a) of title 5, United States Code.

To the extent the commenter has concerns about Oregon's incorporation of certain Federal regulations by reference into State rules, Oregon promulgated the rule revisions in accordance with State and CAA procedural requirements. Documentation of Oregon's rulemaking process is included in the docket for this action. Also, in approving SIPs under section 110 of the Clean Air Act (CAA), Congress gave states the lead in developing plans to implement, maintain, and enforce the national ambient air quality standards (NAAQS)—standards designed to protect public health and welfare from air pollution. In reviewing state plans, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. See 42 U.S.C. 7410(k) and 40 CFR 52.02(a). In this case, Oregon submitted State administrative rules to the EPA and requested that the EPA approve the rules into the Oregon SIP. Our action on the January 29, 2021 Oregon submission, with which the commenter takes issue, approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. Therefore, we are finalizing our action as proposed.

The EPA is approving, and incorporating by reference, revisions to the Oregon SIP submitted on January 29, 2021. Upon the effective date of this action, the Oregon SIP will include the following regulations, State effective January 21, 2021:

• OAR 340-200-0035, Reference Materials; and

• OAR 340-244-0030, General Provisions for Stationary Sources: Definitions, only to the extent needed to implement the requirements for gasoline dispensing facilities in Division 244 that are approved into the SIP for the purposes of regulating VOC emissions.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of Oregon regulatory provisions as described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rule of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The SUPPLEMENTARY INFORMATION section is arranged as follows:

On February 26, 2021, the EPA published a Notice of Proposed Rulemaking that proposed to approve a revision to the New York SIP submitted by the State of New York on May 18, 2020. See 86 FR 11688. The SIP revision includes a newly-adopted regulation, Title 6 of the New York Code of Rules and Regulations (NYCRR), Subpart 227-3, “Ozone Season Oxides of Nitrogen (NO x ) Emission Limits for Simple Cycle and Regenerative Combustion Turbines” (Subpart 227-3), meant to reduce NO x emissions from simple cycle and regenerative combustion turbines during the ozone season. New York's May 2020 SIP submittal applies to major sources of NO x as a SIP-strengthening measure for New York's ozone SIP.

The EPA is also approving the removal of New York's previous 6 NYCRR Subpart 227-3, “Pre-2003 Nitrogen Oxides Emissions Budget and Allowance Program” (New York's 227-3 Trading Program Regulation) from New York's SIP. 1 New York's 227-3 Trading Program Regulation contained a NO x emissions budget and allowance trading system that is no longer in effect and that New York repealed from the New York Code of Rules and Regulations on September 5, 2014.

The specific details of New York's SIP submittals and the rationale for the EPA's approval action are explained in the EPA's proposed rulemaking and are not restated in this final action. For this detailed information, the reader is referred to the EPA's February 26, 2021 proposed rulemaking. See 86 FR 11688.

In response to EPA's February 26, 2021 proposed rulemaking on New York's SIP revision, the EPA received four comments during the 30-day public comment period. The specific comments may be viewed under Docket ID Number EPA-R02-OAR-2020-0324 on the http://www.regulations.gov website.

Comment 1: A Washington State citizen commenter supports the EPA's proposed approval of New York's SIP revision since “. . . high levels of nitrogen oxides are extremely detrimental . . . and [the commenter believes] that it would be in the best interest of public health to lower the allowable levels of the nitrogen oxides allowed in NYC.”

Response 1: The EPA acknowledges the commenter's support of the EPA's proposed rule.

Comment 2: An anonymous citizen provided extensive comments regarding the establishment of the Clean Air Act and the impact of NOx emissions to the environment. The commenter voices support of the EPA's proposed approval since “. . . these turbines would be beneficial when it comes to lowering nitrous oxide emissions during the warmer periods, and ozone seasons.”

Response 2: The EPA acknowledges the commenter's support of the EPA's proposed rule.

Comment 3: A New York State citizen provides extensive comments, in which the commenter asks if the COVID-19 pandemic has impacted studies concerning NOx. The commenter provides a range of data about COVID-19 and its impacts globally and across the country.

Response 3: The EPA has determined that this comment is outside the scope of our proposed action. This comment does not make specific claims about how EPA should modify its proposed action, and therefore the EPA will not provide a specific response to this comment.

Comment 4: The Midwest Ozone Group (MOG) submitted comprehensive comments that urge the EPA to require New York to impose all emission controls for Simple Cycle Combustion Turbines (SCCTs) units by 2023, instead of the adopted 2025 final phase year. MOG stated that a 2023 implementation will “be consistent with the nonattainment obligations of the [New York Metropolitan Nonattainment Area, or] NYMA.” MOG also provided details on how NOx emissions from New York's SCCTs adversely impact upwind states like Connecticut and argued that EPA's proposed approval fails to recognize the impact on those upwind states and the Good Neighbor Provisions of the Clean Air Act. In addition, MOG provided the following comments, and extensive details for each, as follows:

1. In 2023, the only remaining ozone monitor modeled to show nonattainment in the Northeast is located in the Connecticut portion of the NYMA.

2. It has been well-established that residual nonattainment in Connecticut and the NYMA is being caused by SCCT units in New York.

3. EPA should not allow, therefore, New York to delay the implementation of those controls beyond the Moderate nonattainment date for the 2015 ozone NAAQS.

MOG's comment letter also included: (1) Presentation slides distributed by the EPA on the analysis of ozone trends in the east in relation to interstate transport, (2) MOG's December 14, 2020 comment letter to the EPA regarding the proposal of the Revised Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS, and (3) a data analysis presentation conducted by the Stationary and Area Sources Committee on high emitting Electric Generating Units during High Electric Demand Days throughout states within the Ozone Transport Region. MOG referred to these attachments throughout its comment on EPA's proposed action.

Response 4: The EPA reviewed NYSDEC's SIP revision to examine if similar comments were presented during the department's assessment of public comments for the proposal of Subpart 227-3. Representatives from the EPA, state agencies, environmental organizations, and sustainable energy organizations each submitted comments that requested NYSDEC to have the proposed 2025 NOx limits on SCCTs take effect sooner. In the EPA's case, this is because the EPA wanted the SIP-strengthening provision to begin as expeditiously as possible to enhance New York's ozone SIP. NYSDEC responded to the comments by stating that it has consulted with stakeholders—including environmental justice organizations, environmental groups, impacted source owners, the NYISO, the Department of Public Service, and the New York State Energy Research and Development Authority—during the development of the regulation. NYSDEC stated that it chose the 2025 timeframe to take into account considerations of improving air quality and maintaining electric system reliability. NYSDEC has also factored in the time demands for permitting and implementing other requirements, such as stack testing, and believes that the compliance schedule in the regulation is appropriate. After review, the EPA concurs with NYSDEC's assessment because the compliance schedule will provide adequate timing for owners or operators of impacted SCCTs to retrofit control technology, determine compliance options, and replace or retire older units in order to comply with the more stringent emission limits. The EPA also agrees with NYSDEC that the chosen timeframe provides owners and operators of SCCTs designated as a reliability source, which represents a significant amount of the impacted SCCTs, an appropriate timeframe to comply with the control requirements of Subpart 227-3.

Further, the EPA finds the 2025 timeframe is appropriate because it builds upon existing protections in other New York regulations applicable to SCCTs. For example, on July 12, 2013, the EPA published a final approval that revised New York's SIP for ozone concerning the control of NOx. See 78 FR 41846. The SIP revision consisted of amendments to Title 6 of the NYCRR, Subpart 227-2, “Reasonably Available Control Technology (RACT) For Major Facilities of Oxides of Nitrogen (NOx).” The purpose of that SIP revision was to impose more stringent emission limits on major stationary sources of NOx that contribute to regional and local nonattainment of the 1997 and 2008 ozone standards. Included within this EPA-approved regulation are emission limits and system averaging for SCCTs that apply year-round. Units applicable to Subpart 227-3 already comply with federally approved presumptive RACT emission limits. And SCCTs that are subject to Subpart 227-3 must also comply with the provisions set in Subpart 227-2 outside the ozone season. 2 When the EPA published the final approval of New York's Subpart 227-2, the EPA agreed that the emission limits detailed for SCCTs were deemed as RACT NOx limits. See 78 FR 41846, (July 12, 2013). The purpose of Subpart 227-3 is to incorporate additional emission requirements (beyond RACT NOx limits) for SCCTs during the ozone season only. The phased-in approach outlined within Subpart 227-3 does not create undue delay in emission reductions because applicable SCCTs comply with the EPA-approved NOx RACT limits detailed in Subpart 227-2 year-round. The emission limits and compliance schedule outlined in Subpart 227-3 will result in further NOx reductions throughout the NYMA as expeditiously as practicable. The EPA believes, therefore, that the additional emission requirements listed within Subpart 227-3 will strengthen New York's ozone SIP and help the state attain the 2008 and 2015 national ambient air quality standards for ozone.

The EPA is approving New York's SIP revision submittal dated May 18, 2020, for purposes of incorporating 6 NYCRR Subpart 227-3, “Ozone Season Oxides of Nitrogen (NOx) Emission Limits for Simple Cycle and Regenerative Combustion Turbines,” with a state effective date of January 16, 2020. After evaluating Subpart 227-3 for consistency with the CAA, EPA regulations, and EPA policy, the EPA finds that the submission strengthens New York's ozone SIP and, as an added benefit, will help New York State attain and maintain the national ambient air quality standards for ozone.

The EPA is also approving the removal of New York's previous 6 NYCRR Subpart 227-3,” Pre-2003 Nitrogen Oxides Emissions Budget and Allowance Program”, from New York's SIP. In addition to finding that New York's 227-3 Trading Program Regulation is no longer in effect and that New York repealed it from the New York Code of Rules and Regulations, the EPA has determined, as discussed in the proposed rulemaking ( see 86 FR 11688), that New York's 227-3 Trading Program Regulation has been superseded by other state and federal regulations that required additional NOx ozone season emission reductions. As the EPA determined regarding New York's CAIR trading program rule ( see 86 FR 11688), the EPA does not believe that the removal of New York's 227-3 Trading Program Regulation from New York's SIP will interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the NAAQS. And as discussed in the proposed rulemaking, New York's 227-3 Trading Program Regulation predates more stringent rules and tighter NOx ozone season budgets under the NOx SIP call, CAIR, and CSAPR trading programs, as well as New York NOx RACT rules; it is not applicable to the current federal or state regulatory framework. New York also does not rely on emission reductions from New York's 227-3 Trading Program Regulation in any of its nonattainment planning elements required under CAA sections 110, 172, or 182 and the EPA no longer operates the NOx Budget Trading Program allowing for the allocation and trading of allowances.

Moreover, the removal of New York's 227-3 Trading Program Regulation from New York's SIP will have no consequences for the attainment and maintenance of the NAAQS in any area, now or in the future. Consistent with CAA section 110(l), the EPA has determined that the removal of New York's 227-3 Trading Program Regulation will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the NAAQS.

Accordingly, the EPA finds that it is appropriate to approve the removal of New York's 227-3 Trading Program Regulation from the New York SIP.

The EPA is approving New York's May 18, 2020 SIP submittal as it applies to major sources of NOx, as a SIP-strengthening measure for New York's ozone SIP.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of 6 NYCRR Part 227-3, “Ozone Season Oxides of Nitrogen (NOx) Emission Limits for Simple Cycle and Regenerative Combustion Turbines,” the regulation described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 2 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in New York's SIP, have been incorporated by reference by EPA into that SIP, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In this action, the EPA is approving the prong 1 and prong 2 portions of infrastructure SIP submissions submitted by Kansas on April 7, 2020, and Nebraska on October 27, 2020, as demonstrating that the SIP contains adequate provisions to ensure that air emissions from sources in these states will not significantly contribute to nonattainment or interfere with maintenance of the 2010 SO 2 NAAQS in any other state or each other. All other applicable infrastructure SIP requirements for these SIP submissions are addressed in separate rulemakings.

As discussed in Section IV of the proposed action (see 86 FR 31645), the EPA first reviewed each state's analysis to assess how the state evaluated the transport of SO 2 to other states, the types of information used in the analysis and the conclusions drawn by the state. The EPA then conducted a weight of evidence analysis, including review of each state's submission and other available information, including air quality, emission sources and emission trends within the state and in bordering states to which it could potentially contribute or interfere. 1 Please see the EPA's proposed rule for the full analysis of the state submittals.

The public comment period on the EPA's proposed rule opened on June 15, 2021, the date of its publication in the Federal Register and closed on July 15, 2021. During this period, the EPA received no comments.

The State submissions have met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submissions also satisfied the completeness criteria of 40 CFR part 51, appendix V. Kansas provided public notice on its SIP revision from January 16, 2020, to February 17, 2020, and received no comments. Nebraska provided public notice on its SIP revision from September 14, 2020, to October 16, 2020, and received no comments. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

The EPA is taking final action to approve the following submittals as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2010 SO 2 NAAQS: Kansas' April 7, 2020 submittal and Nebraska's October 27, 2020 submittal. The EPA is finalizing this approval based on our review of the information and analysis provided by each state, as well as additional relevant information, as detailed in the EPA's proposed rule, which indicates that in-state air emissions will not contribute significantly to nonattainment or interfere with maintenance of the 2010 SO 2 NAAQS in any other state. This action is being taken under section 110 of the CAA.

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

• Are not significant regulatory actions subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

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

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

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

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

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

• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

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

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

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

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

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

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

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

On March 9, 2021, EPA proposed to approve elements of a SIP submission from Ohio regarding the infrastructure requirements of CAA section 110 for the 2015 ozone NAAQS. The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA. An explanation of the CAA requirements, a detailed analysis of the revisions, and EPA's reasons for proposing approval were provided in the notice of proposed rulemaking and will not be restated here.

The public comment period for this proposed rule ended on April 9, 2021. During the comment period, EPA received 3 comments that covered a variety of topics including: Support of the proposed action and questions regarding how EPA ensures that states are complying with the approved SIP; what other measures beyond the SIP states must follow; how EPA determines if emissions from one state impact air quality in another state; and how EPA informs the public of adverse air quality conditions. All of the comments received are included in the docket for this action.

We do not consider these comments to be germane or relevant to the specifics of this action and therefore not adverse to this action. The comments lack the required specificity to the proposed SIP revision and the relevant requirements of CAA section 110. Moreover, none of the comments address a specific regulation or provision in question, or recommend a different action on the SIP submission from what EPA proposed. Therefore, we are finalizing our action as proposed.

EPA is approving most elements of a submission from Ohio certifying that its current SIP is sufficient to meet the infrastructure requirements in CAA sections 110(a)(1) and (2) with respect to the 2015 Ozone NAAQS. EPA's final actions for the state's satisfaction of infrastructure SIP requirements, by element of section 110(a)(2) are contained in the table below.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2020-0113 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before October 12, 2021. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2020-0113, by one of the following methods:

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

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

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of June 24, 2020 (85 FR 37806) (FRL-10010-82) and in the Federal Register of August 5, 2020 (85 FR 47330) (FRL-10012-32), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 0E8821) by IR-4, Rutgers, the State University of New Jersey, 500 College Road East, Suite 201W, Princeton, NJ 08540. These petitions requested that 40 CFR 180.633 be amended by establishing tolerances with regional registrations for residues of the herbicide florasulam, N -(2, 6-difluorophenyl)-8-fluoro-5-methoxy (1, 2, 4) triazole (1, 5- c )pyrimidine-2-sulfonamide, in or on grass, forage at 0.01 parts per million (ppm); and grass, hay at 0.02 ppm. Those documents referenced a summary of the petition prepared by Corteva Agriscience, the registrant, which is available in the docket, https://www.regulations.gov/document/EPA-HQ-OPP-2020-0113-0003. There were no comments received in response to these notices of filings.

EPA is establishing a tolerance for the crop group rather than separate tolerances for forage and hay. The reason for this change is explained in Unit IV.C.

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

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

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

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

Toxicological profile. The Toxicological Profile of florasulam remains unchanged from the Toxicological Profile in Unit III.A. of the July 25, 2018 rulemaking (83 FR 35141) (FRL-9979-81). Refer to that section for a discussion of the Toxicological Profile of florasulam.

Toxicological Points of Departure/Levels of Concern. The Toxicological Points of Departure/Levels of Concern used for the safety assessment remain unchanged from Unit III.B. of the July 25, 2018 rulemaking. For a summary, refer to that discussion.

Exposure assessment. Much of the exposure assessment remains the same, although updates have occurred to accommodate exposures from the petitioned-for tolerances. These updates are discussed in this section; for a description of the rest of the EPA approach to and assumptions for the exposure assessment, see Unit III.C. of the July 25, 2018 rulemaking.

EPA's dietary exposure assessments have been updated to include the additional exposure from the new uses of florasulam on grass seedlings, grasses grown for seed, and to add a default processing factor of 7.7x for oat bran that was previously omitted. All other assumptions in the exposure assessments for florasulam remain the same as in the July 25, 2018 rulemaking, including tolerance level residues, the other default processing factors, and 100% crop treated. Additionally, the proposed new use restricts the feeding of or grazing of livestock on grass treated with florasulam; therefore, 40 CFR 180.6(a)(3) continues to apply.

Drinking water and non-occupational exposures. Drinking water exposures are not impacted by the new uses, and thus have not changed since the last assessment. There were no changes to the drinking water analysis due to the estimated drinking water concentrations (EDWC) for terrestrial applications that were approximately 500- to 1,200-fold lower than concern levels. Therefore, the Agency has concluded that previous EDWCs are adequate.

Residential (non-occupational) exposures are also not impacted by the new uses. There are no new proposed residential uses for florasulam at this time; however, there are registered uses of florasulam on turfgrass, including residential lawns, golf courses, sports fields, sod farms and commercial turfgrass areas. Because all current florasulam labels with turf uses require handlers to wear personal protective equipment, EPA assumes that florasulam is applied by professional applicators, not residential (homeowner) applicators. Therefore, the current assessment does not consider exposure to residential handlers. This is different than the assessment supporting the July 25, 2018 rule, which relied on a 2009 assessment that included inhalation exposure to residential handlers. EPA's policy has changed since 2009 to reflect the assumption described above regarding labels that require personal protective equipment.

Post-application residential exposures were considered as part of the assessment. Due to lack of a dermal endpoint, only the incidental oral exposures for children 1 to less than 2 years old from use on residential turf were assessed. Margins of exposure (MOEs) ranged from 25,000 for hand-to-mouth short-term exposure to 11,000,000 for incidental soil ingestion short-term exposure and were not of concern. More detailed information about the Agency's analysis can be found at http://www.regulations.gov in the document titled “Florasulam: Draft Human Health Risk Assessment for Registration Review” in docket ID number EPA-HQ-OPP-2020-0113.

Cumulative exposures. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity. “EPA's assessment of cumulative exposures has not changed since the July 25, 2018 rulemaking. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not found a common mechanism of toxicity as to florasulam and any other substances and florasulam does not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has not assumed that florasulam has a common mechanism of toxicity with other substances.

Safety Factor for Infants and Children. The scientific information underpinning EPA's prior safety factor determination remains unchanged from the July 25, 2018 rulemaking. Therefore, EPA continues to conclude that there are reliable data to support the reduction of the Food Quality Protection Act (FQPA) safety factor. See Unit III.D. of the July 25, 2018 rulemaking for a discussion of the Agency's rationale for that determination.

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

An acute dietary risk assessment was not conducted as toxicological effects attributable to a single dose were not identified. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD: They are less than 1% of the cPAD for the U.S. population and all population subgroups. Florasulam is classified as “Not Likely to be Carcinogenic to Humans;” therefore, a cancer dietary exposure analysis was not performed.

Short-term aggregated risk included the incidental oral exposures and the average dietary exposures from food and drinking water sources. Short-term aggregated risk estimates for the most highly exposed child population, children 1 to less than 2 years old, results in an MOE of 17,000 and is not of concern because it is greater than the level of concern of 100. As stated in the July 25, 2018 rule, florasulam is not registered for any use patterns that would result in intermediate-term residential exposure due to the intermittent nature of applications. Because there is no intermediate-term residential exposure and chronic dietary exposure has been assessed under the appropriately protective cPAD, EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for florasulam.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to florasulam residues. More detailed information about the Agency's analysis can be found at http://www.regulations.gov in the document titled “Florasulam: Human Health Risk Assessment for the Proposed New Use on Seedlings and Grasses Grown for Seed” in docket ID number EPA-HQ-OPP-2020-0113.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the July 25, 2018 rulemaking.

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

The Codex has not established MRLs for residues of florasulam in/on grasses.

After the NOF was published, the petitioner revised their tolerance request to establish a tolerance for grass, forage, fodder and hay, group 17 at 0.02 ppm. The Agency determined that the residue data support that tolerance and therefore is establishing the tolerance for the crop group.

Therefore, regional tolerances are established for residues of florasulam, N -(2, 6-difluorophenyl)-8-fluoro-5-methoxy (1, 2, 4) triazole (1, 5- c )pyrimidine-2-sulfonamide, in or on grass, forage, fodder and hay, group 17 at 0.02 ppm.

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

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

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

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

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

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

The 2021 annual management measures for ocean salmon fisheries (86 FR 26425, May 14, 2021), announced management measures for the commercial and recreational fisheries in the area from the U.S./Canada border to the U.S./Mexico border, effective from 0001 hours Pacific Daylight Time (PDT), May 16, 2021, until the effective date of the 2022 management measures, as published in the Federal Register . NMFS is authorized to implement inseason management actions to modify fishing seasons and quotas as necessary to provide fishing opportunity while meeting management objectives for the affected species (50 CFR 660.409). Inseason actions in the salmon fishery may be taken directly by NMFS (50 CFR 660.409(a)—Fixed inseason management provisions) or upon consultation with the Chairman of the Pacific Fishery Management Council (Council) and the appropriate State Directors (50 CFR 660.409(b)—Flexible inseason management provisions).

Management of the salmon fisheries is generally divided into two geographic areas: north of Cape Falcon (NOF) (U.S./Canada border to Cape Falcon, OR) and south of Cape Falcon (SOF) (Cape Falcon, OR, to the U.S./Mexico border). The actions described in this document affected the NOF and SOF commercial ocean salmon fisheries and an NOF recreational salmon fishery, as set out under the heading Inseason Actions.

Consultation on these inseason actions occurred on July 20, 2021, and July 22, 2021. Representatives from NMFS, Washington Department of Fish and Wildlife (WDFW), Oregon Department of Fish and Wildlife (WDFW), California Department of Fish and Wildlife (CDFW), and Council staff participated in the consultations.

These inseason actions were announced on NMFS' telephone hotline and U.S. Coast Guard radio broadcast on the dates of the consultations (50 CFR 660.411(a)(2)).

Description of the action: Inseason action #22 modified the NOF recreational salmon fishery from the U.S./Canada border to Cape Alava, WA (Neah Bay subarea), from a two salmon per day bag limit to a two salmon per day bag limit, no more than one of which may be a Chinook salmon, beginning at 12:01 a.m. on July 24, 2021.

Effective date: Inseason action #22 took effect on July 24, 2021, and remains in effect until superseded.

Reason and authorization for the action: This action was necessary after WDFW closed Chinook salmon retention in adjacent state waters, Washington Marine Area 5 (Sekiu), due to higher than expected catch rates. The Sekiu closure created a concern that effort would shift to the Neah Bay subarea, potentially requiring an early closure of Chinook salmon retention in that subarea.

The NMFS West Coast Region Regional Administrator (RA) considered the landings of Chinook salmon in the NOF recreational salmon fishery, fishery effort occurring to date as well as anticipated under the proposal, quotas and guidelines set preseason, the recreational Chinook salmon guideline remaining, and recent management changes in adjacent state waters. The RA determined that inseason action #22 was necessary to preserve the available recreational Chinook salmon guideline in the Neah Bay subarea in order to meet management goals set preseason, including the Pacific Coast Salmon Fishery management Plan's (FMP) goal of extending the recreational fishery through Labor Day. The modification of recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

Consultation date and participants: Consultation on inseason action #22 occurred on July 20, 2021. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of the action: Inseason action #23 adjusted the July-September 2021 quota for the commercial salmon troll fishery north of Cape Falcon. The quota increased from 15,375 Chinook salmon to 16,931 Chinook salmon through an impact-neutral rollover of unutilized quota from the May-June commercial salmon troll fishery in the same area.

Effective dates: Inseason action #23 took effect on Tuesday July 20, 2021, and remains in effect until superseded.

Reason and authorization for the action: Authority for this impact-neutral rollover of unutilized quota is specified in the 2021 ocean salmon regulations (86 FR 26425, May 14, 2021). The NOF May-June commercial salmon fishery had a quota of 15,375 Chinook salmon. Of that quota, 9,818 Chinook salmon were landed, leaving 5,557 of the Chinook salmon quota unutilized. The Council's Salmon Technical Team (STT) determined the impact-neutral rollover would be constrained for fishery impacts on Lower Columbia River tule Chinook salmon, and would limit the rollover to 28 percent of the 5,557 unutilized Chinook salmon quota. Therefore, the STT calculated that the impact-neutral rollover would add 1,556 Chinook salmon to the July-September quota for an adjusted quota of 16,931 Chinook salmon.

The NMFS West Coast Region RA considered the landings of Chinook salmon in the NOF commercial salmon fishery, fishery effort occurring to date, quotas set preseason, and the STT's calculations for the impact-neutral quota rollover. The RA determined that inseason action #23 was necessary to provide access to available Chinook salmon quota and meet management goals set preseason. The modification of quotas is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #23 occurred on July 20, 2021. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of the action: Inseason action #24 modified the landing limit in the commercial ocean salmon fishery in the area from Humbug Mountain, OR, to the Oregon/California border (Oregon Klamath Management Zone (KMZ)) from 10 Chinook salmon per vessel, per landing week (Thursday-Wednesday) to 20 Chinook salmon per vessel per landing week.

Effective dates: Inseason action #24 superseded inseason action #21 (86 FR 40182, July 28, 2021) on July 22, 2021, and remains in effect until superseded.

Reason and authorization for the action: The preseason quota for July for the commercial ocean salmon fishery in the Oregon KMZ was 200 Chinook salmon (86 FR 26425, May 14, 2021). The quota was adjusted to 216 Chinook salmon through an impact-neutral rollover of unutilized quota in the June fishery in the same area (inseason action #20, 86 FR 40182, July 28, 2021). Fishing effort and landings in July in the Oregon KMZ commercial ocean salmon fishery were much lower than anticipated and, with 10 days remaining in the fishery, only 77 Chinook salmon had been landed (36 percent of the July quota).

The NMFS West Coast Region RA considered Chinook salmon landings in the fishery and fishery effort to date and determined that inseason action #24 was necessary to provide greater access to the remaining quota. Attaining the quota is consistent with management goals set preseason. Modification of landing and retention limits is authorized by 50 CFR 660.409(b)(1)(ii).

Consultation date and participants: Consultation on inseason action #24 occurred on July 22, 2021. Representatives from NMFS, ODFW, and CDFW participated in this consultation. Council staff were unavailable to participate in the consultation, but were notified of the action immediately.

All other restrictions and regulations remain in effect as announced for the 2021 ocean salmon fisheries (86 FR 26425, May 14, 2021), as modified by previous inseason action (86 FR 34161, June 29, 2021; 86 FR 37249, July 15, 2021; 86 FR 40182, July 28, 2021).

The NMFS West Coast Region RA determined that these inseason actions were warranted based on the best available information on Pacific salmon abundance forecasts, landings to date, and anticipated fishery effort. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone [3-200 nautical miles (5.6-370.4 kilometers) off the coasts of the states of Washington, Oregon, and California] consistent with these Federal actions. As provided by the inseason notice procedures at 50 CFR 660.411, actual notice of the described regulatory action was given, prior to the time the action was effective, by telephone hotline numbers 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

NMFS issues these actions pursuant to section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act. These actions are authorized by 50 CFR 660.409, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(3)(B), there is good cause to waive prior notice and an opportunity for public comment on these actions, as notice and comment would be impracticable and contrary to the public interest. Prior notice and opportunity for public comment on these actions was impracticable because NMFS had insufficient time to provide for prior notice, and the opportunity for public comment between the time Chinook salmon abundance, catch, and effort information was developed, and fisheries impacts were calculated, and the time the fishery modifications to be implemented in order to ensure that fisheries are managed based on the best scientific information available. As previously noted, actual notice of the regulatory action was provided to fishers through telephone hotline and radio notification. This action complies with the requirements of the annual management measures for ocean salmon fisheries (86 FR 26425, May 14, 2021), the FMP, and regulations implementing the FMP under 50 CFR 660.409 and 660.411.

There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date, as a delay in effectiveness of these actions would allow fishing at levels inconsistent with the goals of the FMP and the current management measures.