The regulations in 9 CFR parts 92, 93, 94, and 95 prescribe conditions for importing live animals and animal products into the United States. These regulations include regionalization and compartmentalization requirements (part 92); general requirements for animals and animal products (part 93); import restrictions and prohibitions pertaining to certain animal diseases, such as foot-and-mouth disease (part 94); and requirements for importation of certain animal byproducts (part 95).

Among other things, the regulations include provisions for the importation of animals and animal products from the European Union (EU). Heretofore, the EU has included the United Kingdom (UK). However, under the European Union (Withdrawal Agreement) Act 2020, widely referred to as Brexit, the UK ratified withdrawing from the EU and, on February 1, 2020, the UK formally left the EU. As a result, it has become necessary to update our regulations to reflect this change.

In this final rule, we are revising the regulations in parts 92, 93, 94, and 95 to indicate that the UK is no longer a Member State of the EU. With the UK's exit from the EU, Great Britain (GB), which consists of England, Scotland, and Wales, and Northern Ireland will operate under two different animal health regulation and policy structures. For an interim period, during which the UK will transition to and implement their new animal health laws and policies, the current APHIS import conditions for animals and animal products from the UK will continue to apply to imports from GB. APHIS will publish a follow-up Federal Register document when the interim period ends. Northern Ireland will continue to follow the EU animal health law structure and will revise its laws to remain harmonized with the EU. Because Northern Ireland has stated that it intends to continue to follow EU animal health regulations and policies, we will continue to allow Northern Ireland to maintain APHIS-recognized animal health statuses afforded to EU Member States, where appropriate.

In § 92.1, we are revising the list of Member States under the definition of European Union by removing the entry for the UK. We are also updating the definition by adding Croatia to the list because Croatia is now a Member State. Finally, we are adding a footnote to the definition stating that, as noted above, for animal health purposes, Northern Ireland will be following EU guidelines and will be treated the same as the Member States of the EU.

In § 93.301, we are revising the provisions for the importation of thoroughbred horses by removing the references to the UK and replacing them with entries for, respectively, “Great Britain (England, Scotland, and Wales)” and “Northern Ireland.” This language is consistent with that we are using elsewhere in this rule. In footnote 6, we are also updating the name of the French certifying organization.

In § 94.0, we are replacing the definition of APHIS-defined EU Poultry Trade Region with a definition of APHIS-defined European Poultry Trade Region. The existing definition of APHIS-defined EU Poultry Trade Region lists EU countries in that region and includes the UK. Reflecting the exit of the UK from the EU, the new definition of APHIS-defined European Poultry Trade Region reads as follows: “A single region consisting of Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Great Britain (England, Scotland, and Wales), Greece, Hungary, Ireland (Republic of), Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Northern Ireland, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden.”

In § 94.24, which contains restrictions on meat and edible products of ovines and caprines due to bovine spongiform encephalopathy, paragraph (a) contains a list of regions from which such imports are prohibited or restricted. That list includes the UK. We are revising that paragraph to eliminate that reference. In its place, we would refer instead to Great Britain (England, Scotland, and Wales) and, separately, Northern Ireland.

Section 94.28 contains restrictions on the importation of poultry and poultry products from the APHIS-defined EU Poultry Trade Region. We are revising the section heading and all the text throughout the section by replacing all references to the APHIS-defined EU Poultry Trade Region with references to the APHIS-defined European Poultry Trade Region. We are also replacing the words “Member State” each time they appear with “country.” These changes accord with our substitution of the latter term for the former in the definitions in § 94.0 and reflect the change in status of the UK in regard to the EU.

Section 95.4 provides for the restriction of imports of various animal products due to bovine spongiform encephalopathy. Paragraph (a) contains a list of restricted regions that includes the UK. Consistent with the other changes to the regulations, we are revising that paragraph to eliminate the reference to the UK and to refer instead to Great Britain (England, Scotland, and Wales) and, separately, Northern Ireland.

In addition to the Brexit-related changes described above to parts 92, 93, 94, and 95, we are updating outdated web links and mailing addresses for the public to use when requesting information on the animal disease statuses of foreign regions. The updates would apply to those three parts, as well as to 9 CFR parts 98 and 130, which contain, respectively, importation requirements for certain animal embryos and semen and regulations pertaining to Veterinary Services user fees. We are also making a couple of minor editorial changes to § 93.301 to clarify the instructions regarding accessing certain information on our website.

This rule relates to internal agency management and makes various nonsubstantive changes to the regulations in 9 CFR to reflect the current composition of the European Union and ensure addresses and weblinks are up to date. Because the changes contained in this rule are nonsubstantive in nature, notice and other public procedure on this rule are unnecessary and contrary to the public interest. Therefore, pursuant to 5 U.S.C. 553, notice of proposed rulemaking and opportunity to comment are not required, and this rule may be made effective less than 30 days after publication in the Federal Register . Further, since this rule relates to internal agency management, it is exempt from the provisions of Executive Orders 12866 and 12988. Finally, this action is not a rule as defined by the Regulatory Flexibility Act (5 U.S.C. 501) and, thus, is exempt from the provisions of that Act.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

This rule contains no reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Accordingly, 9 CFR parts 92, 93, 94, 95, 98, and 130 are amended 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 revokes the Class E airspace extending upward from 700 feet above the surface at Mineola Wisener Field, Mineola, TX, due to the cancellation of the instrument procedures at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 10889; February 23, 2021) for Docket No. FAA-2021-0002 to revoke the Class E airspace extending upward from 700 feet above the surface at Mineola Wisener Field, Mineola, TX. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

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

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

This amendment to 14 CFR part 71 revokes the Class E airspace extending upward from 700 feet above the surface to at Mineola Wisener Field, Mineola, TX; and updates the city in the header of the airspace legal description from Mineola, TX, to Mineola/Quitman, TX, to coincide with the FAA's aeronautical database for Wood County Airport-Collins Field, Mineola/Quitman, TX.

This action is the result of the cancellation of the instrument procedures at Mineola Wisener Field, Mineola, TX.

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

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

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

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

We are making a technical correction to Part II of Form X-17A-5 (referenced in 17 CFR 249.617). The release resulting in the technical inaccuracy was published in the Federal Register on December 16, 2019 [84 FR 68550], and adopted by the Commission in Exchange Act Release No. 87005 on September 19, 2019.

Accordingly, 17 CFR part 249 is corrected by making the following amendment:

The LTRO maintains title documents for land that the United States holds in trust or restricted status for individual Indians or Tribes (Indian land), roughly similar to how counties and other localities maintain title documents for fee land within their jurisdictions. Several Acts authorize BIA maintenance of these title records. See, e.g., 25 U.S.C. 5, 9; 64 Stat. 1262; 34 Stat. 137; 35 Stat. 312; and 38 Stat. 582, 598.

The LTRO has several physical offices throughout the country. These LTRO offices are the successors to the “title plants” that were established by regulation in 1965 to serve what were then BIA “area offices.” See 30 FR 11676 (September 11, 1965). Updates to the regulations in 1981 defined the role of the LTRO and assigned each LTRO office a geographic service area, containing certain BIA area offices or Tribal reservations. See 46 FR 47537 (September 29, 1981), later redesignated at 47 FR 13327 (March 30, 1982).

The Department published a proposed rule on December 11, 2020 (85 FR 79965) and accepted comments on the proposed rule until February 9, 2021. Section II of this document provides an overview of the final rule. Section III of this document summarizes the comments received on the proposed rule and responds to those comments. Section IV of this document details changes made from the proposed rule to the final rule stage.

The regulations being finalized today replace those that have been in place since 1981 (though redesignated from 25 CFR part 120 to 25 CFR part 150). Now, 40 years later, BIA “area offices” are BIA Regions, and the LTRO maintains title documents primarily through an electronic system: The Trust Asset Accounting Management System (TAAMS). Each LTRO office records land title documents that are primarily within its designated geographic area; however, it is BIA's vision that, eventually, all title documents will be electronically stored and accessible to LTRO offices regardless of geographic area.

The rule modernizes the LTRO regulations to provide a framework for continued operations and future electronic maintenance of most title documents. This approach will more efficiently address title-related actions that support Indian land transactions (such as a title examination to take land into trust) by allowing workloads to be shifted among LTRO offices to promptly address each request and prevent the risk of any backlogs. The rule continues to provide that each LTRO office is primarily responsible for certain geographic areas, but rather than specifying those LTRO offices in the rule, it instead points to a web page where BIA can keep the list accurately updated.

The rule also addresses changes that have evolved over the past 40 years that have removed requirements for Secretarial approval of certain title documents in support of Tribal self-governance and self-determination ( e.g., individual leases under approved Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act regulations) by clarifying that these documents must still be recorded in the LTRO because the documents affect who is authorized to use Indian land.

The rule also makes more transparent the LTRO's role as a support office to BIA and, with respect to title-related matters related to probate, the Office of Hearings and Appeals (OHA). Generally, the Realty staff in BIA are the primary liaison to the LTRO, as the Realty staff are responsible for processing land transactions requested by Indian and Tribal landowners. Similarly, the rule would clarifies the LTRO's role with respect to any defects to title: The LTRO provides a notation of the defect in the record of title, but the originating office is responsible for providing the LTRO with a corrected title document for the LTRO to record.

Finally, the rule allows the BIA Director to delegate recording responsibilities to another office for certain transactions on an as-needed basis. This capability provides flexibility to facilitate future electronic recording capabilities for efficiency.

The following table shows changes from the current regulation to the final rule.

The Department hosted two Tribal consultation sessions on this proposed rule and received written submissions from 12 Tribes. During the public comment period, the Department also received nine comments from individuals, Indian housing and homeownership organizations, title companies, and capital companies. Of the 21 total written submissions, several, including half of the Tribes who commented, expressed general support for the regulatory revisions as necessary for the proper functioning of LTROs and to account for technological improvements and policy changes throughout Indian country. All provided additional comments and suggestions. The Department appreciates this input and provides its responses organized by subpart, below.

One title insurance company that commented asked that the phrase “or in Federal law” be removed from the definition of “Indian land” because, according to the commenter, that phrase could be construed to mean the Non-Intercourse Act at 25 U.S.C. 177. The commenter stated that the consequence of that interpretation would be that “Indian land” would include title documents to Tribal fee land and, arguably, could allow LTRO to take the position that the world has constructive notice of that Tribal fee land recorded in the Indian land record of title, even if it is not recorded in the county record of title.

Response: The phrase “or in Federal law” captures restrictions on alienation for certain Tribes that may not be stated in the conveyance instrument but apply as a matter of Federal law due to court order or otherwise. The clear trend in the case law is that the Non-Intercourse Act does not apply to fee land, whether on-reservation or off-reservation. This trend is consistent with BIA's authority for approving transactions that affect title.

A Tribe requested clarification that Indian land includes mineral (subsurface) interests, pointing out that the current regulations include a definition for “land” as meaning real property and without that specification, the term “Indian land” is ambiguous as to whether it includes the subsurface or mineral estate and whether “title” encompasses mineral estates that have been severed from surface estates.

Response: The final rule adds the definition for land as including surface and/or subsurface interests.

One Tribe stated their agreement with the proposed rule's inclusion of examples of title documents in the definition of “title document” as adding clarity. This Tribe also agreed with the proposed rule's removal of the provision in “title document” as including only documents required to be recorded by regulation or Bureau policy as appropriate to accord a full and accurate depiction of Indian land in the chain of title.

Response: The final rule includes the proposed rule's definition of “title document.”

A few Tribes and one title insurance company commenter requested a definition be added for “inherently Federal function.” On Tribe requested that the term be interpreted to exclude certain items ( i.e., FOIA and records management).

Response: The final rule adds a definition of “inherently Federal function” to match the definition of the term provided in the Indian Self-Determination and Education Assistance Act (ISDEAA). More specificity on what constitutes an inherently Federal function is necessarily a case-by-case examination because different laws apply to different Tribes.

An individual commenter requested a new definition for “individual Indian” or “Indian owner” because individuals may own Indian land and their rights to challenge decisions related to title should be acknowledged. This commenter also stated that the regulations imply that individual Indians' fiduciary protections and rights are subordinated to Tribes because, for example, the term “Tribe” is defined while the term “individual Indian” is not.

Response: The term “individual Indian” is not defined in the regulation because it appears only in the definition of “Indian land” and the definition of “Probate Inventory Report,” both of which can be understood without defining “individual Indian.” Individual Indians' rights as landowners to challenge Federal decisions regarding title are governed by different regulations, such as 25 CFR part 2, Appeals from Administrative Actions. Nothing in the final rule for 25 CFR part 150 subordinates individual Indians' fiduciary protections and rights to Tribes. The term “Tribe” is defined because that term appears in provisions relating to Tribes as sovereign governments ( e.g., provisions relating to compacting or compacting Federal functions of an LTRO, provisions relating to recordation of leases between Tribes and Tribal Energy Development Organizations).

Two title insurance company commenters asked how constructive notice works in the context of an LTRO, as far as whether the recordation of a title document in the LTRO gives the real property interest priority over interests recorded later or whether notice impacts priority of interests.

Response: Recordation of title documents for Indian land is different from recordation of title documents for fee land in county records. Priority is not generally an issue in recordation of title documents for Indian land because the Department conducts a title examination before taking land into trust or restricted status, and the LTRO relies upon the date of Departmental approval (or other applicable date when Departmental approval is not required) as the valid and effective date of the transaction. In other words, there is no significance to the date of recording in the LTRO the way there may be significance to the date of recording title documents to fee land in county records. In response to this comment, the final rule deletes the statement from § 150.101 that the record of title provides the public with constructive notice; rather, only certain entities/individuals have access to information in the record of title. See § 150.303.

Two title insurance company commenters requested the regulations include a specific timeframe for LTRO to issue title status reports (TSRs). Another commenter stated that the rule should impose timeframes on the LTRO and provide recourse for delays.

Response: The LTRO processes mortgage title requests for TSRs within two working days of receipt from the BIA agency. This timeframe is included in policy but not the regulations to allow flexibility to change as circumstances require for internal management of the LTRO, without undergoing a rulemaking. Requestors should coordinate with their BIA agency contact to ensure that a request for a TSR has been submitted to LTRO.

Two title insurance company commenters suggested including uncertified TSRs in addition to certified TSRs in § 150.103 to be consistent with the language in § 150.302(b).

Response: The final rule adds “uncertified Title Status Reports” for consistency with § 150.302(b).

One individual commenter recommended adding a subpart for LTRO to record title transfers resulting from historic sales where a “reserve period” is included for the original “provisional sale” only upon assurance that the buyer and seller negotiated the final disposition upon expiration of the “reserve period.”

Response: This comment appears to relate to terms of a title transfer, which is beyond the scope of this regulation. The commenter should raise this comment with their local BIA agency staff.

An individual commenter asked whether it would be LTRO's or the BIA agency's responsibility to notify previously recognized owners that a correction to a probate inventory report is being proposed.

Response: If LTRO discovers an error in a probate inventory report that impacts Indian land ownership, then the LTRO notifies the BIA agency realty staff in writing, and the BIA agency works with the Office of Hearings and Appeals, to notify landowners and make a correction as appropriate.

Two title insurance company commenters requested that the Department address any efforts to digitize physical copies and confirm that physical documents are historical documents only. These commenters and a homeownership organization requested clarification that the LTRO is currently digitizing all documents it now receives.

Response: The LTRO has digitized nearly all Indian land title records; however, there remain some non‐imaged ( i.e., non-digitized) records. The LTRO digitizes all documents it currently receives so that they can be stored electronically in the record of title and will work with BIA Realty to ensure all known remaining non-digitized records are digitized.

One Tribe described the history of its agency's recordkeeping on well locations and lease information.

Response: The Tribe's comment has been shared with the relevant agency.

Section 150.105 of the proposed rule provided that staff at each LTRO office has primary responsibility to maintain the record of title for Indian land under that LTRO office's assigned geographic area, and that LTRO offices may assist other LTRO offices in maintaining the record of title for Indian land not under that office's assigned geographic area as needed. A homeownership organization stated its support for a fully accessible electronic system across all LTRO offices to allow workloads to be shifted and prevent backlogs. Two title insurance company commenters asked what the process is for ensuring documents are timely and correctly transmitted among LTRO offices, how sharing workloads would impact recordation times, and whether there is a tracking option to determine where submitted documents are.

Response: All title documents are digitized (scanned into electronic versions) and uploaded to a database that is accessible to all LTRO offices, regardless of geographic area. Having one LTRO office assist another in performing functions would have no impact on recording timeframes, as all LTRO offices are subject to the same standards. LTRO uses a system for tracking workloads to determine where submitted documents are pending at any given point.

A Tribe expressed concern that LTRO offices outside the Tribe's assigned geographic area may lack the knowledge and expertise to process title documents unique to the geographic region. This Tribe requested granting Tribes the option to have their title document requests completed by their local LTRO or tasking local LTROs with reviewing any reports produced by a secondary LTRO or outside BIA office. Another Tribe requested clarity on what it means for a non-assigned LTRO office to assist others, the process by which they would provide assistance, and the types of functions or services that the assistance would include. This Tribe suggested establishing a standardized process for providing as-needed assistance and clarifying whether a Tribe that has contracted or compacted to perform LTRO functions on its reservation may also carry out the function for lands located in other geographic areas.

Response: While there may be variations in types of title documents among regions, title documents are encoded by the knowledgeable BIA realty staff familiar with potential unique variations. The LTRO functions do not vary across geographic areas. LTRO has determined that it is more appropriate to set out in policy the details of the process by which LTRO offices would provide assistance and types of functions or services the assistance would include, as a matter of internal management that does not have any effect on landowners or others, except as a method of ensuring that LTRO continues to perform its functions expeditiously. The final rule also clarifies that this provision does not apply to Tribes that are contracting or compacting the LTRO function, because under the Indian Self-Determination and Education Assistance Act, those contacting or compacting Tribes would first need to obtain authorization from each Tribe to be benefitted by the proposed contract or compact before assuming operation of any program, function, service, or activity (PFSA). 25 CFR 900.8(d)(1).

An individual commenter suggested adding a provision to require LTRO to record when title changes from trust to fee and title recordation responsibilities are transferred to State or local jurisdictions.

Response: When a tract is transferred to fee status, it is no longer “Indian land” and is inactivated in the record of title.

A Tribe stated that the requirement to record subleasehold mortgages under 25 CFR 150.201(a) ensures the record of title is accurate, complete, and up to date, but could constrain current staffing and resources for LTRO offices that handle a significant number of leases, noting that this requirement triples the number of instruments the LTRO records and maintains for its reservation.

Response: Including subleasehold mortgages as recordable documents reflects a regulatory requirement that already exists in 25 CFR part 169.

Another Tribe noted that the list in § 150.201 of documents for which Secretarial approval is not required, but must be recorded, does not include Tribal utility lines crossing Tribal lands.

Response: The list included in § 150.201 is not exhaustive; however, the final rule adds this item to the list for clarity.

A title insurance company commenter asked what the phrase “certain Tribes” is referencing in § 150.201(c)(1).

Response: The final rule replaces the phrase “certain Tribes” with “a Tribe.”

This same title insurance company commenter requested a global statement be added to the regulations confirming that nothing prohibits recording title in county records with the consent of the landowner.

Response: While it is true that nothing prohibits recording title to Indian land in county records with the consent of the landowner, the final rule does not include this statement because that statement could cause confusion regarding the official record of title for Indian land.

A Tribe expressed concern that the regulatory provision saying that due diligence may require examination of other Federal, State, and local records is unclear and distorts the role LTRO offices play in maintaining the official record of title for Indian land. The Tribe asserts that the regulation should be clear on this point, to eliminate any misconception that the record of title for all lands, including Indian lands, is maintained at the State or local level.

Response: The final rule clarifies in § 150.202 that LTRO maintains current and historical title documents to Indian land in the system of record.

A homeownership organization suggested that § 150.202 should give examples of circumstances in which due diligence may require examination in other records of title.

Response: Examples of circumstances in which due diligence may require examination in other records of title include: Archives for original land patents may require examination in other Federal records of titles; and fee-to-trust transactions for undivided fee interests in a tract in which other undivided interests are owned in trust or restricted status may require examination in State and local records of title. The final rule does not include these examples in the regulatory text because doing so may give the impression that these examples constitute the entire universe of documents for which due diligence may require examination in other records of title.

Two title insurance company commenters requested the regulations include a timeframe for recording upon submission.

Response: As mentioned above, the LTRO does abide by internal timeframes. LTRO has an internal timeframe of two business days for recording any document upon receipt from the Agency, Region, or OHA. The timeframe for the Agency, Region, or OHA to prepare and transmit a document to LTRO is outside the scope of this rule.

One Tribe commented on § 150.204, which states that the BIA Director may delegate authority to record title documents to another BIA office by documenting the delegation and types of transactions to which it applies in the Indian Affairs Manual. The Tribe stated their support for the flexibility to allow workload sharing across LTRO offices, so long as the primary LTRO primarily maintains the record of title. The Tribe also requested that Tribes be given notice of any long-term delegations so the Tribe may discuss the delegation with the Regional Director. An individual commenter expressed concern with allowing BIA to delegate authority to another office.

Response: The final rule retains this provision to provide flexibility for workload sharing. Any long-term delegation that has potential Tribal implications would be subject to Executive Order 13175 requirements for Tribal consultation.

A Tribe asked that privacy concerns be addressed through best practices to ensure that documents are only accessed by designated and authorized personnel for BIA purposes.

Response: The Privacy Act applies to records within the record of title and, under its system of record, access to the record of title is limited to designated and authorized personnel for official purposes.

An individual commenter described past sales that reserved part of the interests (such as the mineral rights) for transfer at a later date, and stated they require affirmative title actions.

Response: This section, § 150.205(b), sets out the minimum requirements for recording documents. Actions required to obtain BIA approval of a transfer are addressed in separate regulations.

A title insurance company commenter requested clarification as to whether the “proper notarization or other acknowledgment of the signatures of the parties” must be pursuant to State law.

Response: The applicable law depends upon the document, and where it was signed. Notaries are commissioned under State law. Other acknowledgments may include those authorized for military members to acknowledge other military members' signatures, social workers or wardens to acknowledge the signatures of incarcerated individuals, and foreign country notary equivalents. The LTRO does not scrutinize the notary commission authority, beyond checking to ensure notary's name appears on the stamp and the commission has not expired.

Another commenter asked whether notarization pursuant to remote online notarization laws is considered “proper notarization or other acknowledgment of the signatures of the parties.”

Response: Notarial acts follow State laws where the notary is physically located. While the Department of the Interior continues to monitor remote online notarization capabilities, the Department does not currently recognize remote online notarization for Federal purposes, even when permitted under State notarial laws. Some State laws have included language that simultaneous live audio/video would constitute “in-person” acknowledgment. For these reasons, the final rule specifies in § 150.205(a)(3) that “traditional in-person” notarization or other “in-person” acknowledgment of the parties' signatures, if appropriate, is a minimum requirement for recording.

Two title insurance company commenters requested more specificity about when a tract number is required in addition to the legal description to record a document.

Response: The final rule revises the proposed rule by stating that the tract number should be included “if available,” rather than “if required.” See § 150.205(a)(1).

A Tribe pointed out that the current Part 150 states that title documents must be submitted to the appropriate LTRO for recording immediately after final approval, issuance, or acceptance, but the new proposed rule at § 150.205 deletes any reference to a timeframe. This Tribe also asked whether the requirement to record documents that may not have been recorded in the past is retroactive.

Response: Any applicable timeframes for agencies to submit documents for recording are found in the regulations governing the underlying realty transactions. For example, regulations governing leasing provide that BIA will record the lease documents immediately upon approval of the transaction. See, e.g., 25 CFR 162.217, 162.246, 162.343, 162.443, 162.533, 162.568.

An individual commenter requested that a statement be added to § 150.206 to clarify that corrections to title documents are made after the BIA adjudicates the defect under appropriate regulations, including notice to potential owners/heirs or impacted lenders regarding the corrections that are being requested or proposed. Several title insurance company commenters had similar comments, stating that there is no process to notify the parties of a need for correction and asked how they would know that a document is being corrected.

Response: This regulation focuses on LTRO's role, which is to record title documents. The BIA Region or Agency is the liaison to the parties to the transaction and is responsible for notifying them. The responsibility to notify potential owners/heirs of corrections is outside the scope of this regulation.

Title insurance company commenters asked whether a document will be disclosed on a TSR if LTRO has discovered a title defect during a title examination, requested the originating office correct the defect, and added a notation in the record of title.

Response: If a document meets the minimum requirements for recording, LTRO records the document and puts a notation on title, in which case the title document will appear on the TSR. If the document does not meet the minimum requirements for recording, such as when there is a fatal defect or required information is omitted, then LTRO sends the document back to the original office for a correction, in which case the title document generally would not appear on the TSR.

A few commenters suggested adding timelines for curing defects or omissions in title documents.

Response: The agency who is the originating office is responsible for curing any omission or error. When LTRO discovers a defect, LTRO sends the documents electronically in real time to the LTRO for correction. Once LTRO receives the corrected document, the timeframes applicable to recording of any document applies.

A Tribe questioned whether there is, in fact, an “official seal” and stated that they have not yet received one even though they have compacted LTRO functions.

Response: BIA will follow up with the Tribe to provide a stamp that serves as the official seal.

An individual commenter requested clarification on who and to whom “uncertified reports” may be made.

Response: LTRO provides uncertified reports for the agency to provide to those authorized to receive the documents (for example, Tribal and individual Indian landowners). Uncertified reports are often provided to assist lenders in preparing mortgage documents, and then when LTRO records the finalized mortgage, LTRO provides a certified TSR.

An individual commenter requested that this section specify that owners whose ownership interests have been removed by the BIA and are appealing that removal may obtain copies of title documents without filing a Freedom of Information Act (FOIA) request.

Response: The Indian Land Consolidation Act, as amended by the American Indian Probate Reform Act of 2004 (AIPRA) explicitly states who may have access to title documents. AIPRA's list of those who may have access does not include individuals who no longer qualify as owners. If the individual is appealing, as the commenter states, then the provisions of 25 CFR part 2 and 43 CFR part 4 may apply.

Multiple commenters requested that title insurance companies, lenders, and government agencies have access to title documents to support Tribal development and housing through their insurance products and support mortgage processes in Indian Country. Two title insurance company commenters asked whether a “legally authorized representative” would include a title company.

Response: “Legally authorized representatives” refer to those holding powers of attorney or serving as guardians for the Indian land owners. Title companies, lenders, and government agencies involved in the mortgage process are entitled to access to the appropriate title documents and reports under § 150.303(c), because they are effectively applying to lease, use, or consolidate Indian land; the BIA agency would verify that they are entitled to access and serve as the liaison to LTRO. The usual path for title companies to access records is through the BIA agency realty staff that are handling the underlying realty transaction. The agency realty staff have access to the record of title and provide the title company with appropriate records, and then request any certified copies from LTRO. Likewise, lenders and others work through the BIA agency, who would access the record of title and obtain the appropriate documents and reports from LTRO. In accordance with a recommendation from the Housing and Urban Development (HUD), the final rule also adds clarifying language to § 150.303 to specify that Federal agencies administering Native American homeownership programs, and lenders participating in these programs, are able to request and receive copies of title documents for Indian land without additional justification regarding leasing, using, or consolidating land.

A title insurance company commenter requested that the regulations precisely address any forms needed to authorize access to title documents.

Response: LTRO does not have any forms for accessing title documents; instead, BIA agency realty staff will contact LTRO by email to obtain the appropriate title documents and reports, and work with the requestor and LTRO.

A Tribe stated that the regulations should specify that any person or entity seeking records based on applying to lease, use, or consolidate Indian land must also be required to submit written proof of consent for the disclosure by the owners of the Indian land or Tribe with jurisdiction.

Response: In practice, the BIA agency realty staff serves as the gatekeeper and works with anyone seeking to lease, use, or consolidate Indian land to obtain the necessary title documents or reports from LTRO for the transaction. The final rule adds language to clarify that the BIA realty staff are the primary points of contact for anyone requesting information from the LTRO.

A Tribe commented on its need to have timely and unencumbered access to oil and gas records.

Response: This comment is beyond the scope of the regulations. The Federal records the Osage Mineral Council references in its comments are maintained by the BIA Osage Agency in relation to leasing of the Osage Mineral Estate for oil and gas mining and are not title records. Accordingly, the records are not governed by the LTRO regulations at issue.

An individual commenter requested adding a provision to allow individuals to request records directly from the LTRO when requesting them through their local agency would be sensitive ( e.g., because they are evaluating their legal options).

Response: A direct request to LTRO would need to provide justification for not going through the BIA Agency or Region, including a case number if there is a challenge in progress. The final rule does not provide directions for requesting information directly from the LTRO because, in nearly all cases, requests should be made through the BIA Agency or Region.

A Tribe requested “title documents” be deleted so that only the LTRO with jurisdiction over the specified lands can provide copies. The Tribe pointed to a situation where an LTRO may know that there are probates pending on a certain parcel of land and check the status of the probate to see it has been adjudicated and an update to the records is necessary.

Response: Title documents do not reflect pending transactions, only those that are approved. Regardless of whether the LTRO is aware of a pending probate or other transaction, the pending probate or other transaction does not affect the title until approved. The LTRO updates title as soon as a transaction is approved, and each LTRO office has the same access to that record of title, so there is no benefit to limiting the ability to provide copies to only the LTRO with jurisdiction over the specified land.

A Tribe commented that if they were to charge fees in carrying out LTRO functions under its self-governance compact, that they should not be bound by Federal standards because those standards are out of touch with “rush” orders and other demands.

Response: In fulfilling Federal functions as an LTRO, Tribes are bound by Federal regulations and statutes.

Another Tribe commented that the fee schedule is outdated and not representative of geographical differences and recommended that BIA authorize LTRO offices to develop their own fee schedules that are indexed to CPI and account for geographical differences.

Response: The final rule continues to use the fee schedule established at 43 CFR part 2, Appendix A, for consistency across the Department, to avoid “forum shopping” for the lowest fees and for administrative efficiency to prevent each of the 12 LTRO offices from having to individually publish and update their fees.

A Tribe opposed charging a fee to a Tribe with jurisdiction to obtain copies of records concerning land under its jurisdiction.

Response: The final rule deletes the provision allowing for Tribes with jurisdiction to be charged a fee for copies of documents related to land under their jurisdiction.

A title insurance company commented that paying for documents adds another hurdle for development by increasing the expense of doing business in Indian County.

Response: The fees required under this rule are nominal and are an expected cost of doing business, given that companies charge for title searches and counties and localities often charge fees, as well.

HUD recommended adding an exception from paying fees for Federal agencies administering Native American homeownership programs and lenders participating in the programs.

Response: The final rule does not require LTRO to charge fees and provides that LTRO may waive the fees. LTRO generally will not charge fees to Federal agencies administering Native American homeownership programs and lenders participating in these programs for specific transactions.

A Tribe disagreed with the proposed rule's provision for determining whether a record is the property of the United States, stating that ownership should depend on an analysis of the BIA's ability to fulfill trust obligations if documents are “owned” by the United States, statutes, case law, and how agencies have treated similar documents in the past.

Response: The rule restates existing statutory law regarding the ownership of Federal records. See Federal Records Act, 44 U.S.C. chapters 29, 31, 33.

Another comment was that it is not realistic for a party who “makes or receives records” to preserve them in accordance with Departmental records retention procedures.

Response: The rule restates existing law regarding contractors' obligation to preserve records under the Federal Records Act. See 36 CFR 1222.32.

Title insurance company commenters stated that the rule should address what happens to title documents when property is transferred out of trust or restricted status.

Response: The rule does not address what happens to title documents when property is transferred out of trust or restricted status, because at that point, it is no longer LTRO's responsibility to maintain title to the property. Once property is transferred out of trust or restricted status, responsibility for maintenance of title to that property shifts to the county or locality.

Several comments addressed Realty functions, rather than LTRO functions, including expressing concerns with mortgages and other transaction timelines, and requesting a more transparent process on land transactions. One commenter requested published listings and organization charts for identifying the correct person to contact. A commenter also requested the addition of a BIA Realty ombudsman to assist Tribes in prioritizing residential mortgage approval packages and certified TSRs.

Response: These comments are not directly related to the current rulemaking, but the Department will work with BIA Realty staff to address these comments, as appropriate.

One Tribe stated that the rule should address records or encumbrances that are missing from TAAMS and detail a process for Tribes to report, and the Department to resolve, data gaps in TAAMS, and establish deadlines for the Department to resolve missing records.

Response: LTRO will work with BIA to identify whether there are any data gaps in TAAMS.

At least one commenter stated that the LTRO needs additional staff and resources to perform their duties.

Response: The Department is working with the appropriate Federal agencies to increase staff.

One Tribe requested the Department revise and reissue a more expansive proposed rule. Another commenter also requested reopening the comment period because the public comment period occurred over the holidays and through a change in Administration.

Response: The Department has considered this request and determined that the issues addressed by the Tribe could not be remedied by changes to this regulation because the issues relate to BIA realty functions, rather than LTRO functions. The Department has determined that finalization of these regulations at this time is important to replace the outdated regulations.

One Tribe commented that Tribes should have open access to TAAMS to conduct their own uncertified TSRs and accessing other trust records, which would increase transparency and improve processing time for LTROs.

Response: Title documents to Indian land are Federal and trust records, so access is subject to Privacy Act and other restrictions. For Tribes that are carrying out the Federal functions of the LTRO, Tribal staff must obtain the appropriate access credentials and Federal equipment.

On Tribe stated that LTRO should manage title to water, as well as land, and suggested further consultation on the lack of a comprehensive water management system by BIA.

Response: LTRO is not currently equipped to track water rights; however, the suggestion that a comprehensive water management system to track water user rights may be appropriate for future discussion and consultation.

One commenter urged that any changes in this rule be coordinated with those eventually adopted under the probate regulations.

Response: The Department is coordinating updates to both these regulations to ensure they are substantively consistent.

A title insurance commenter requested an explanation of BIA oversight and standards for Tribal LTROs.

Response: Tribes compacting or contracting the LTRO functions are subject to the same standards as Federal LTROs in that they must follow the same statutes and regulations.

A commenter stated that any regulatory updates should include a training effort to inform agency and LTRO staff.

Response: BIA will conduct training regarding following finalization.

The final rule includes several changes from the proposed rule to address comments received on the proposed rule and for clarity. The following table lists each of the changes made from proposed to final:

The Southern Maryland Boat Club of Leonardtown, MD, notified the Coast Guard that from 8 a.m. to 4 p.m. on October 2, 2021, and from 8 a.m. to 4 p.m. on October 3, 2021, it will be conducting the Southern Maryland Boat Club Piney Point Regatta on St. George Creek at Piney Point, MD. In response, on June 25, 2021, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Special Local Regulation; St. Mary's River, St. George Creek, Piney Point, MD” (86 FR 33598). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this high-speed power boat demonstration event. During the comment period that ended July 26, 2021, we received no comments.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041. The Captain of the Port Maryland-National Capital Region (COTP) has determined that potential hazards associated with the vintage and historic racing power boat demonstration will be a safety concern for anyone intending to participate in this event and for vessels that operate within specified waters of the St. Mary's River. These hazards include risks of injury or death resulting from near or actual contact among participant vessels and spectator vessels or waterway users if normal vessel traffic were to interfere with the event. Additionally, such hazards include participants operating within and adjacent to designated navigation channels and interfering with vessels intending to operate within those channels as well as operating near approaches to local public boat landings. The purpose of this rule is to protect event participants, non-participants and transiting vessels before, during, and after the scheduled event.

As noted above, we received no comments on our NPRM published June 25, 2021. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes special local regulations from 7:30 a.m. on October 2, 2021, through 5 p.m. on October 3, 2021. The regulations will be enforced from 7:30 a.m. to 5 p.m. on October 2, 2021, and from 7:30 a.m. to 5 p.m. on October 3, 2021. The regulated area will cover all navigable waters of St. George Creek within an area bounded by a line connecting the following points: From the shoreline at Cedar Point at position latitude 38°09′03.4″ N, longitude 076°29′55.7″ W; thence south along the shoreline to Coade Bar at latitude 38°08′22.5″ N, longitude 076°29′19.9″ W; thence southwest across St. George Creek to Dodson Point at latitude 38°08′03.8″ N, longitude 076°29′44.6″ W; thence north along the shoreline and the eastern extent of the St. George Island (SR-249) Bridge to Long Bar (at the entrance to St. George Harbor) at latitude 38°30′13.0″19′16.0″ N, longitude 076°08′50.6″ W; thence northeast across St. George Creek to and terminating at the point of origin.

This regulation provides additional information about areas within the regulated area and their definitions and the restrictions that will apply to mariners. These areas include “Race Area,” “Buffer Area,” and “Spectator Area.”

The duration of the special local regulations and size of the regulated area are intended to ensure the safety of life on these navigable waters before, during, and after the high-speed power boat demonstration event, scheduled to take place from 8 a.m. to 4 p.m. on October 2, 2021, and from 8 a.m. to 4 p.m. on October 3, 2021. The COTP and the Coast Guard Event PATCOM will have authority to forbid and control the movement of all vessels and persons, including event participants, in the regulated area. When hailed or signaled by an official patrol, a vessel or person in the regulated area will be required to immediately comply with the directions given by the COTP or Event PATCOM. If a person or vessel fails to follow such directions, the Coast Guard may expel them from the area, issue them a citation for failure to comply, or both.

Except for Southern Maryland Boat Club Piney Point Regatta participants and vessels already at berth, a vessel or person will be required to get permission from the COTP or Event PATCOM before entering the regulated area. Vessel operators will be able to request permission to enter and transit through the regulated area by contacting the Event PATCOM on VHF-FM channel 16. Vessel traffic will be able to safely transit the regulated area once the Event PATCOM deems it safe to do so. A vessel within the regulated area must operate at safe speed that minimizes wake. A person or vessel not registered with the event sponsor as a participant or assigned as official patrols will be considered a spectator. Official patrols are any vessel assigned or approved by the Commander, Coast Guard Sector Maryland-National Capital Region with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign. Official patrols enforcing this regulated area can be contacted on VHF-FM channel 16 and channel 22A.

If permission is granted by the COTP or Event PATCOM, a person or vessel will be allowed to enter the regulated area or pass directly through the regulated area as instructed. Vessels will be required to operate at a safe speed that minimizes wake while within the regulated area in a manner that will not endanger event participants or any other craft. A spectator vessel must not loiter within the navigable channel while within the regulated area. Official patrol vessels will direct spectators to the designated spectator area. Only participant vessels and official patrol vessels will be allowed to enter the race area. The Coast Guard will publish a notice in the Fifth Coast Guard District Local Notice to Mariners and issue a marine information broadcast on VHF-FM marine band radio announcing specific event dates and times.

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

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

This regulatory action determination is based on the size and duration of the regulated area, which will impact a small designated area of St. George Creek for 19 total enforcement hours. This waterway supports mainly recreational vessel traffic, which at its peak, occurs during the summer season. Although this regulated area extends across the entire width of the waterway, the rule will allow vessels and persons to seek permission to enter the regulated area, and vessel traffic able to do so safely will be able to transit the regulated area on the eastern portion of the waterway away from the event area as instructed by Event PATCOM. Such vessels must operate at safe speed that minimizes wake and not loiter within the navigable channel while within the regulated area. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area for 19 total enforcement hours. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Memorandum for the Record supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Coast Guard will enforce the Safety Zone; Chicago Air and Water Show listed in 33 Code of Federal Regulations (CFR) 165.929 Table (1) Event (16). Section 165.929 lists many annual events requiring safety zones in the Captain of the Port Lake Michigan zone. This safety zone encompasses all waters and adjacent shoreline of Lake Michigan and Chicago Harbor bounded by a line drawn from 41°55.900′ N at the shoreline, then east to 41°55.900′ N, 087°37.200′ W, then southeast to 41°54.000′ N, 087°36.000′ W, then southwestward to the northeast corner of the Jardine Water Filtration Plant, then due west to the shore. This safety zone will be enforced from 9 a.m. through 3 p.m. on August 20, 2021; and from 11 a.m. through 4 p.m. on both August 21, 2021, and August 22, 2021.

All vessels must obtain permission from the Captain of the Port Lake Michigan, or his or her designated on-scene representative to enter, move within, or exit this safety zone during the enforcement times listed in this notice of enforcement. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case-by-case basis. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan or a designated on-scene representative.

This notice of enforcement is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this enforcement period via Broadcast Notice to Mariners and Local Notice to Mariners. The Captain of the Port Lake Michigan or a designated on-scene representative may be contacted via VHF Channel 16 or (414) 747-7182.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest. The Coast Guard did not receive necessary information from the event sponsor for this year's event until July 10, 2021. The Coast Guard has an existing safety zone for this event in 33 CFR 165.786, Table to § 165.786, Line No. 9.1; however, the existing regulation only covers the event when it is scheduled on the third Saturday of September.

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 the event is taking place on September 11, 2021, and immediate action is needed to respond to the potential safety hazards associated with this event.

The Coast Guard is issuing this rule under the authority in 46 U.S.C. 70034. The Captain of the Port Key West (COTP) has determined that potential hazards associated with open water swim events will be a safety concern for persons and vessels in the regulated area. This rule is needed to ensure the safety of the event participants, the general public, vessels and the marine environment in the navigable waters within the safety zone during the Swim for Alligator Lighthouse open water swim event.

This rule establishes a safety zone on September 11, 2021, for a period of 9 hours, from 7:30 a.m. to 4 p.m. The safety zone will cover all waters of the Atlantic Ocean beginning at a point Latitude 24°54.82′ N, longitude 080°38.03′ W, thence to latitude 24°54.36′ N, longitude 080°37.72′ W, thence to latitude 24°51.07′ N, longitude 080°37.14′ W, thence to latitude 24°54.36′ N, longitude 080°37.72′ W, thence to point of origin at latitude 24°54.82′ N, longitude 080°38.03′ W. The event course begins and ends at Amara Cay Resort in Islamorada, Florida, and extends through Hawks Channel, with a turnaround at Alligator Reef Lighthouse. Approximately 400 swimmers with kayak escorts and eight safety vessels are anticipated to participate in the event. The size and duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the open water swim. Persons and non-participant vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone without obtaining permission from the COTP Key West or a designated representative. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the COTP Key West or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP Key West or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, or by on-scene designated representatives.

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

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

This regulatory action determination is based on the size, location, duration and available exceptions to the enforcement of the safety zone. The regulated area will impact small designated areas of the Atlantic Ocean between Islamorada, Florida, and the Alligator Reef Lighthouse for only 9 hours and thus is limited in time and scope. Furthermore, the rule will allow vessels to seek permission to enter the zone. Non-participant persons and vessels may enter, transit through, anchor in, or remain within the regulated area during the enforcement periods if authorized by the COTP or a designated representative. Vessels not able to enter, transit through, anchor in, or remain within the regulated area without authorization from the COTP or a designated representative may operate in the surrounding areas during the 9 hour enforcement period. The Coast Guard will issue a Local Notice to Mariners and a Broadcast Notice to Mariners, allowing mariners to make alternative plans or seek permission to transit 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 contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 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. The regulated area will impact small designated areas of the Atlantic Ocean between Islamorada, Florida and the Alligator Reef Lighthouse for only 9 hours and thus is limited in time and scope. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Coast Guard will enforce the safety zone in 33 CFR 165.1191, Table 1, Item number 1, for the San Francisco Giants Fireworks Display from 10 a.m. until 11:30 p.m. on August 13, 2021. The safety zone will extend to all navigable waters of the San Francisco Bay, from surface to bottom, within a circle formed by connecting all points 100 feet out from the fireworks barge during the loading, transit, and arrival of the fireworks barge from the loading location to the display location and until the start of the fireworks display. From 10 a.m. until 8 p.m. on August 13, 2021, the fireworks barge will be loading pyrotechnics from Pier 50 in San Francisco, CA. The fireworks barge will remain at the loading location until its transit to the display location. From 8:30 p.m. to 8:45 p.m. on August 13, 2021 the loaded fireworks barge will transit from Pier 50 to the launch site near Pier 48 in approximate position 37°46′36″ N, 122°22′56″ W (NAD 83) where it will remain until the conclusion of the fireworks display. Upon the commencement of the 10 minute fireworks display, scheduled to begin at the conclusion of the baseball game, between approximately 9:30 p.m. and 10:30 p.m. on August 13, 2021, the safety zone will increase in size and encompass all navigable waters of the San Francisco Bay, from surface to bottom, within a circle formed by connecting all points 700 feet out from the fireworks barge near Pier 48 in approximate position 37°46′36″ N, 122°22′56″ W (NAD 83). This safety zone will be in enforced from 10 a.m. until 11:30 p.m. on August 13, 2021, or as announced via Broadcast Notice to Mariners.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM or other Official Patrol, defined as a federal, state, or local law enforcement agency on scene to assist the Coast Guard in enforcing the safety zone. During the enforcement period, if you are the operator of a vessel in one of the safety zones you must comply directions from the Patrol Commander or other Official Patrol. The PATCOM or Official Patrol may, upon request allow the transit of commercial vessels through regulated areas when it is safe to do so.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this rule. 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:

• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA, which would include the SNUR requirements. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import provisions. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, pursuant to 40 CFR 721.20 or 725.920 for the MCAN substance, any persons who export or intend to export a chemical substance that is the subject of this rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

The docket includes information considered by the Agency in developing the proposed and final rules. The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2020-0304, is available at https://www.regulations.gov and at the Office of Pollution Prevention and Toxics Docket (OPPT Docket), Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave., NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Please review the visitor instructions and additional information about the docket available at https://www.epa.gov/dockets.

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

EPA is finalizing SNURs under TSCA section 5(a)(2) for chemical substances which were the subject of PMNs P-18-399, P-18-400, and P-20-68. These SNURs require persons who intend to manufacture or process any of these chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity.

Previously, in the Federal Register of August 25, 2020 (85 FR 52294) (FRL-10013-07), EPA proposed SNURs for these chemical substances. More information on the specific chemical substances subject to this final rule can be found in the Federal Register document proposing the SNURs. The docket includes information considered by the Agency in developing the proposed and final rules, including public comments and EPA's responses to the public comments received on the proposed rules, as described in Unit IV.

TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four TSCA section 5(a)(2) factors listed in Unit III.

General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. Pursuant to 40 CFR 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1), the exemptions authorized by TSCA sections 5(h)(1), 5(h)(2), 5(h)(3), and 5(h)(5) and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination before manufacture or processing for the significant new use can commence. If EPA determines that the significant new use is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the Federal Register , a statement of EPA's findings.

TSCA section 5(a)(2) states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In determining what would constitute a significant new use for the chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, and potential human exposures and environmental releases that may be associated with the substances, in the context of the four bulleted TSCA section 5(a)(2) factors listed in this unit. During its review of these chemicals, EPA identified certain conditions of use that are not intended by the submitters, but reasonably foreseen to occur. EPA is designating those reasonably foreseen conditions of use as well as certain other circumstances of use as significant new uses.

By this rule, EPA is establishing certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is required to keep this information confidential. EPA promulgated a procedure to deal with the situation where a specific significant new use is CBI, at 40 CFR 721.1725(b)(1) and has referenced it to apply to other SNURs.

Under these procedures a manufacturer or processor may request EPA to determine whether a specific use would be a significant new use under the rule. The manufacturer or processor must show that it has a bona fide intent to manufacture or process the chemical substance and must identify the specific use for which it intends to manufacture or process the chemical substance. If EPA concludes that the person has shown a bona fide intent to manufacture or process the chemical substance, EPA will tell the person whether the use identified in the bona fide submission would be a significant new use under the rule. Since most of the chemical identities of the chemical substances subject to these SNURs are also CBI, manufacturers and processors can combine the bona fide submission under the procedure in 40 CFR 721.1725(b)(1) with that under 40 CFR 721.11 into a single step.

If EPA determines that the use identified in the bona fide submission would not be a significant new use, i.e., the use does not meet the criteria specified in the rule for a significant new use, that person can manufacture or process the chemical substance so long as the significant new use trigger is not met. In the case of a production volume trigger, this means that the production volume is not exceeded by the amount identified in the bona fide submission to EPA. Because of confidentiality concerns, EPA does not typically disclose the actual production volume that constitutes the use trigger. Thus, if the person later intends to exceed that volume, a new bona fide submission would be necessary to determine whether that higher volume would be a significant new use.

EPA received public comments from four identifying entities on the proposed rule. In addition, EPA received one anonymous comment. The Agency's responses are described in a separate Response to Public Comments document that is available in the public docket for this rulemaking. The anonymous comment and three of the comments from identifying entities were broadly supportive of the rule and requested no changes to the rule itself; therefore, no response is required. EPA made no changes to the final rule based on these comments. EPA did make one change to the reporting requirements for two SNURs to make clear that the production volume limit in the SNURs was confidential.

EPA is establishing significant new use and recordkeeping requirements for chemical substances in 40 CFR part 721, subpart E. In Unit IV. of the proposed SNUR, EPA provided the following information for each chemical substance:

• PMN number.

• Chemical name (generic name, if the specific name is claimed as CBI).

• Chemical Abstracts Service (CAS) Registry number (if assigned for non-confidential chemical identities).

• Basis for the SNUR.

• Potentially useful information.

• CFR citation assigned in the regulatory text section of this final rule.

The regulatory text section of these rules specifies the activities designated as significant new uses. Certain new uses, including production volume limits and other uses designated in the rules, may be claimed as CBI.

During review of the PMNs submitted for the chemical substances that are the subject of these SNURs and as further discussed in Unit IV. of the proposed rule, EPA identified certain other reasonably foreseen conditions of use in addition to those conditions of use intended by the submitter. EPA has determined that the chemical under the intended conditions of use is not likely to present an unreasonable risk. However, EPA has not assessed risks associated with the reasonably foreseen conditions of use. EPA is designating these conditions of use as well as certain other circumstances of use as significant new uses. As a result, those significant new uses cannot occur without going through a separate, subsequent EPA review and determination process associated with a SNUN.

EPA is issuing these SNURs because the Agency wants:

• To have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.

• To be obligated to make a determination under TSCA section 5(a)(3) regarding the use described in the SNUN, under the conditions of use. The Agency will either determine under section 5(a)(3)(C) that the significant new use is not likely to present an unreasonable risk, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by the Administrator under the conditions of use, or make a determination under TSCA section 5(a)(3)(A) or (B) and take the required regulatory action associated with the determination, before manufacture or processing for the significant new use of the chemical substance can occur.

• To be able to complete its review and determination on each of the PMN substances, while deferring analysis on the significant new uses proposed in these rules unless and until the Agency receives a SNUN.

Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Inventory. Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the internet at https://www.epa.gov/tsca-inventory.

To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule were undergoing premanufacture review at the time of signature of the proposed rule and were not on the TSCA inventory. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for the chemical substances subject to these SNURs, EPA concluded at the time of signature of the proposed rule that the designated significant new uses were not ongoing.

EPA designated August 4, 2020 (the date of web posting of the proposed rule) as the cutoff date for determining whether the new use is ongoing. The objective of EPA's approach is to ensure that a person cannot defeat a SNUR by initiating a significant new use before the effective date of the final rule.

Persons who began commercial manufacture or processing of the chemical substances for a significant new use identified on or after that date will have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and EPA would have to take action under TSCA section 5 allowing manufacture or processing to proceed.

EPA recognizes that TSCA section 5 does not require development of any particular new information ( e.g., generating test data) before submission of a SNUN. There is an exception: If a person is required to submit information for a chemical substance pursuant to a rule, Order or consent agreement under TSCA section 4, then TSCA section 5(b)(1)(A) requires such information to be submitted to EPA at the time of submission of the SNUN.

In the absence of a rule, Order, or consent agreement under TSCA section 4 covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. Unit IV. of the proposed rule lists potentially useful information for all SNURs listed here. Descriptions are provided for informational purposes. The potentially useful information identified in Unit IV. of the proposed rule will be useful to EPA's evaluation in the event that someone submits a SNUN for the significant new use. Companies who are considering submitting a SNUN are encouraged, but not required, to develop the information on the substance, which may assist with EPA's analysis of the SNUN. For more information on alternative test methods and strategies to reduce vertebrate animal testing, visit https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/alternative-test-methods-and-strategies-reduce.

EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol election. Furthermore, pursuant to TSCA section 4(h), which pertains to reduction of testing in vertebrate animals, EPA encourages consultation with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies, or NAMs), if available, to generate the recommended test data. EPA encourages dialog with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h).

The potentially useful information described in Unit IV. of the proposed rule may not be the only means of providing information to evaluate the chemical substance associated with the significant new uses. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA sections 5(e) or 5(f). EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substances.

According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and 721.25. E-PMN software is available electronically at https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca.

EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket for this rulemaking.

Additional information about these statutes and executive orders can be found at https://www.epa.gov/laws-regulations-and-executive-orders.

This action establishes SNURs for new chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

According to PRA, 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register , are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable.

The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

The listing of the OMB control numbers of the collection instruments and their subsequent codification in the table in 40 CFR 9.1 satisfies the display requirements of the PRA and OMB's implementing regulations at 5 CFR part 1320. Since this ICR was previously subject to public notice and comment prior to OMB approval, and given the technical nature of the table in 40 CFR part 9, EPA finds that further notice and comment to amend it is unnecessary. As a result, EPA finds that there is “good cause” under section 553(b)(3)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)) to amend this table in 40 CFR 9.1 without further notice and comment.

Pursuant to RFA section 605(b), 5 U.S.C. 601 et seq., I hereby certify that promulgation of this SNUR would not have a significant adverse economic impact on a substantial number of small entities. The requirement to submit a SNUN applies to any person (including small or large entities) who intends to engage in any activity described in the final rule as a “significant new use.” Because these uses are “new,” based on all information currently available to EPA, it appears that no small or large entities presently engage in such activities. A SNUR requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN. Although some small entities may decide to pursue a significant new use in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemicals, the Agency receives only a small number of notices per year. For example, the number of SNUNs received was seven in Federal fiscal year (FY) 2013, 13 in FY2014, six in FY2015, 12 in FY2016, 13 in FY2017, and 11 in FY2018. Only a fraction of these were from small businesses. In addition, the Agency currently offers relief to qualifying small businesses by reducing the SNUN submission fee from $16,000 to $2,800. This lower fee reduces the total reporting and recordkeeping of cost of submitting a SNUN to about $10,116 for qualifying small firms. Therefore, the potential economic impacts of complying with this SNUR are not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published in the Federal Register of June 2, 1997 (62 FR 29684) (FRL-5597-1), the Agency presented its general determination that final SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration.

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this action. As such, EPA has determined that this action does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501 et seq. ).

This action will not have federalism implications because it is not expected to have a substantial direct effect on States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).

This action will not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes, significantly or uniquely affect the communities of Indian Tribal governments, and does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175 (65 FR 67249, November 9, 2000), do not apply to this action.

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because this action is not a significant regulatory action under Executive Order 12866.

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

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898 (59 FR 7629, February 16, 1994).

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

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

On October 15, 2020, HHS published a notice of proposed rulemaking (NPRM) in the Federal Register (85 FR 65311) proposing to add the Table for designated covered smallpox countermeasures identified in the Smallpox Medical Countermeasures PREP Act declaration. The Table includes a list of smallpox countermeasures, proposed time intervals for the first symptom or manifestation of onset of injury, and Qualifications and Aids to Interpretation which set forth the definitions and requirements necessary to establish the Table injuries. The NPRM provided a 60-day comment period, and HHS received one out-of-scope comment.

The PREP Act authorizes the Countermeasures Injury Compensation Program (CICP) to provide compensation to certain individuals who develop serious physical injuries or to certain survivors of individuals who die as a direct result of the administration or use of a covered countermeasure identified in a PREP Act declaration. 1 In carrying out the CICP, the PREP Act directs the Secretary to establish, through regulation, a Covered Countermeasures Injury Table (Table) identifying serious physical injuries that are presumed to be directly caused by the administration or use of covered countermeasures identified in PREP Act declarations issued by the Secretary. The Secretary may only add to a Table injuries that are directly caused by the administration or use of the covered countermeasure based on “compelling, reliable, valid, medical and scientific evidence.”  2 The Table informs the public about serious physical injuries known to be directly caused by covered countermeasures and creates a rebuttable presumption of causation for eligible individuals whose injuries are listed on the Table and meet the Table's requirements.

The CICP's regulations, which detail the Program's requirements, are found at 42 CFR part 110. The provision at 42 CFR 110.20(a) states that individuals must establish that a covered injury occurred to be eligible for benefits under the Program. A covered injury is death or a serious injury determined by the Secretary to be: (1) An injury meeting the requirements of a Table, which is presumed to be the direct result of the administration or use of a covered countermeasure unless the Secretary determines there is another more likely cause; or (2) an injury (or its health complications) that is the direct result of the administration or use of a covered countermeasure. 3 This includes a covered countermeasure causing a serious aggravation of a pre-existing condition. 4 In general, only injuries that warranted hospitalization (whether or not the person was actually hospitalized), or injuries that led to a significant loss of function or disability are considered serious injuries. 5

Individuals with injuries not meeting the requirements of the Table may still pursue their claims as non-Table injuries under the Program. 6 In that instance, the requester does not receive the presumption of causation for a Table injury and must demonstrate that the administration or use of the covered countermeasure directly caused the injury. 7 Proof of a causal association for the non-Table injury must be based on compelling, reliable, valid, medical and scientific evidence. 8

Through this final rule, the Secretary adds the Smallpox Countermeasures Injury Table to subpart K of 42 CFR part 110. The Table established in this final rule is limited to smallpox covered countermeasures identified in the Secretary's PREP Act Declaration for Smallpox Medical Countermeasures. 9

The Smallpox Countermeasures Injury Table lists several smallpox covered countermeasures and serious physical injuries that, based on compelling, reliable, valid, medical and scientific evidence, are directly caused by the administration or use of the associated covered countermeasures. The Table provides the serious injuries associated with a specific countermeasure and the time interval within which the first symptom or manifestation of onset of injury must appear. The QAI, which accompany the Table, are definitions included to further explain the requirements for each covered injury and the level of severity necessary to qualify as a Table injury. The Secretary will stay informed of updates in the scientific and medical field concerning potential new information about causal associations between injuries and covered countermeasures and update the Table as needed.

In accordance with 42 CFR 110.42(f), in addition to the standard filing deadline, with the publication of this new Table, certain eligible requesters have one year from the effective date of the publication of the Table to file claims for injuries that meet the Table's requirements. Individuals who sustained injuries that are not included on the Table or that do not meet all of the requirements for a Table injury, but who may prove causation of the injury through other means, are not eligible for the additional one-year filing deadline based on the Table's publication. Because the new Table would not enable such individuals to establish a Table injury, they would be subject to the standard filing deadline in 42 CFR 100.42(a) ( i.e., one year from the date of administration or use of the covered countermeasure).

In this final rule, the Secretary has made the following change from what was proposed in the NPRM for the purposes of clarity.

a. Changed paragraph (d)(6) by adding a comma after “pustules)” and before “generally” to the second sentence. The revised sentence states, “The rash or lesions, characterized by multiple blisters (vesicles or pustules), generally evolve in a similar sequence or manner as the original vaccination site.

b. Changed paragraph (d)(9) by adding “to” after “attributed” and before “it” to the seventh sentence. The revised sentence states, “Symptoms that occur before 5 days or more than 14 days after receiving the smallpox vaccine should not be attributed to it.”

The NPRM set forth a 60-day public comment period, which ended on December 14, 2020. During the comment period, HHS received one comment that was not relevant to the NPRM. As noted above, the only changes made to the final rule are to paragraphs (d)(6) and (9) for clarity.

HHS examined the impact of this final rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Congressional Review Act (5 U.S.C. 804(2)), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 202 of the Unfunded Mandates Reform Act of 1995 (March 2, 1995; Pub. L. 104-4), section 654(c) of the Treasury and General Government Appropriations Act of 1999, and Executive Order 13132 on Federalism (August 4, 1999).

Executive Order 12866 requires all regulations reflect consideration of alternatives, costs, benefits, incentives, equity, and available information. Regulations must meet certain standards, such as avoiding an unnecessary burden. Regulations that are “significant” because of cost, adverse effects on the economy, inconsistency with other agency actions, effects on the budget, or novel legal or policy issues, require special analysis. In 2011, President Obama supplemented and reaffirmed Executive Order 12866.

Executive Order 13563 provides that, to the extent feasible and permitted by law, the public must be given a meaningful opportunity to comment on any proposed regulations, with at least a 60-day comment period. In addition, to the extent feasible and permitted by law, agencies must provide timely online access to both proposed and final rules of the rulemaking docket on https://www.regulations.gov/, including relevant scientific and technical findings, in an open format that can be searched and downloaded. Federal agencies must consider approaches to maintain the freedom of choice and flexibility, including disclosure of relevant information to the public. Objective scientific evidence guides regulations and should be easy to understand, consistent, and written in plain language. Furthermore, Federal agencies must attempt to coordinate, simplify, and harmonize regulations to reduce costs and promote certainty for the public.

In this final rule, the Secretary establishes a Table identifying serious physical injuries that are presumed to result from the administration or use of certain covered countermeasures, required definitions of those injuries, and the time interval in which the onset of the first symptom or manifestation of each injury must manifest for the presumption of causation to apply. The Table establishes a presumption of causation for requesters meeting the Table's requirements and relieves requesters of the burden of demonstrating causation. However, this presumption is rebuttable if, based on the Secretary's review of the evidence, a source other than the countermeasure is found to be the more likely cause of the injury. The publication of this Table may afford some requesters a new filing deadline.

The Secretary has determined that minimal staff and funding resources are required to implement the provisions included in this final rule. Therefore, in accordance with the Regulatory Flexibility Act of 1980 (RFA) and the Small Business Regulatory Enforcement Fairness Act of 1996, which amended the RFA, the Secretary certifies that this final rule will not have a significant impact on a substantial number of small entities.

The Secretary has determined that this final rule does not meet the criteria for an “economically significant” regulatory action as defined by Executive Order 12866 and would have no major effect on the economy or Federal expenditures. The Secretary also has determined that this final rule is not a “major rule” within the meaning of the statute providing for Congressional Review of Agency Rulemaking, 5 U.S.C. 801. The Office of Information and Regulatory Affairs within the Office of Management and Budget has determined that this rule is not a “significant regulatory action” within the meaning of section 3(f) of the Executive order.

The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $158 million, using the most current (2020) Implicit Price Deflator for the Gross Domestic Product. This final rule would not result in an expenditure in any year that meets or exceeds this amount.

The Secretary also reviewed this final rule in accordance with Executive Order 13132 regarding federalism and has determined that it does not have “federalism implications.” This final rule will not “have substantial direct effects on the states, or on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.”

This final rule has no information collection requirements.

On August 31, 2020, the Federal Emergency Management Agency (FEMA) published a Notice of Proposed Rulemaking (NPRM) (85 FR 53725) proposing to revise its current Public Assistance (PA) appeals regulation at 44 CFR 206.206 to add in the new right to arbitration under the Disaster Recovery Reform Act of 2018 (DRRA), 1 in conjunction with some revisions to the current appeals process. The DRRA adds arbitration as a permanent alternative to a second appeal under the PA Program. Additionally, applicants that have had a first appeal pending with FEMA for more than 180 calendar days may withdraw such appeal and submit a request for arbitration. In both cases, the amount in dispute must be greater than $500,000, or greater than $100,000 for an applicant for assistance in a rural area. The other major proposed revisions to 44 CFR 206.206 included adding definitions; adding subparagraphs to clarify what actions FEMA may take and will not take while an appeal is pending and stating that FEMA may issue separate guidance as necessary, similar to current 44 CFR 206.209(m); adding a finality of decision paragraph; requiring electronic submission for appeals and arbitrations documents; and clarifying overall time limits for first and second appeals.

These proposed rules for arbitration are separate and distinct from the arbitration provisions located in 44 CFR 206.209. Under § 206.209, applicants may request arbitration to resolve disputed PA applications under major disaster declarations for Hurricanes Katrina and Rita, pursuant to the authority of the American Recovery and Reinvestment Act of 2009 (ARRA). 2

As amended by Section 1219 of the DRRA, 42 U.S.C. 5189a(d) names the Civilian Board of Contract Appeals (CBCA) as the entity responsible for conducting public assistance arbitrations. Therefore, FEMA recommends that applicants review the CBCA regulations at 48 CFR part 6101, Rules of Procedure of the Civilian Board of Contract Appeals, and 48 CFR part 6106, Rules of Procedure for Arbitration of Public Assistance Eligibility or Repayment, for additional CBCA rules of procedure, as both cover FEMA public assistance arbitrations.

The public comment period of the NPRM closed on October 30, 2020. FEMA received germane comments from six separate commenters. The first anonymous commenter [FEMA-2019-0012-0002] was unconditionally supportive of the NPRM, as they found the DRRA population thresholds fair. The second commenter, a member of the public [FEMA-2019-0012-0003], addressed five separate issues regarding the NPRM in their comment including: Suggesting the use of “applicant” to refer to all entities; suggesting the use of “appellant” instead of “applicant” and “subrecipient”; stating that using the date of issuance of the FEMA determination instead of the date the “appellant” views the FEMA determination does not provide clarity; suggesting that the “appellant” now has 150 days to make a complete appeal with the new 30-day deadline to provide additional information; and questioning whether the NPRM removed the first 60-day requirement to make the entire deadline 120-days regardless of when each entity appeals so long as it is within 120 days. The third commenter, also a member of the public [FEMA-2019-0012-0004], suggested FEMA adjust the amount in dispute thresholds for hyper-inflation. This commenter also submitted a duplicative comment which was withdrawn [FEMA-2019-0012-0005]. The second anonymous commenter submitted an unrelated comment [FEMA-2019-0012-DRAFT-0006], which was not posted to the Docket. The fourth commenter, from a State Emergency Management Agency [FEMA-2019-0012-0006], also asked whether the NPRM's combination of the applicant and recipient's 60-day submission requirements could equate to additional submission time for appeals. The fifth commenter, from the same State Emergency Management Agency [FEMA-2019-0012-0007], asked numerous questions regarding applicant and recipient proposed appeal submission timeframes. The sixth commenter, a State Division of Emergency Management (DEM) [FEMA-2019-0012-0008], generally supports the effort to amend the regulations. However, the State DEM believes many of the changes proposed in the NPRM conflict with the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)  3 and expressed concern with FEMA removing its own deadlines while strictly applying them to applicants and recipients. The State DEM included attachments of cases—or parts of cases—and a detailed table of their comments.

Under Section 1219 of the DRRA, in order to request arbitration a PA applicant must dispute an amount that exceeds $500,000 (or $100,000 for an applicant in a “rural area” with a population of less than 200,000 and outside of an urbanized area).

One member of the public [FEMA-2019-0012-0004] commented that, for the most part, the proposed changes are well thought out and stand to reason. However, the commenter suggested that the amount in dispute threshold allow for future adjustment based upon hyper-inflation. Including provisions for hyper-inflation, this commenter posited, will allow FEMA to carry out its crucial work without returning to the rulemaking process if the dollar fluctuates in the future. A lower threshold could subsequently overwhelm the arbitration or appeal process.

Since the amount in dispute thresholds are statutorily set in Section 1219 of DRRA, it is not within FEMA's discretion to change them in this rulemaking. While FEMA appreciates the commenter's support, FEMA did not make any changes to the regulatory text at 206.206 as a result of the comment.

The DRRA defines a rural area to mean an area with a population of less than 200,000 outside an urbanized area. The NPRM proposed to define the term “urbanized area” to mean the area as identified by the United States Census Bureau (USCB). The USCB defines an “urbanized area” as an area that consists of densely settled territory that contains 50,000 or more people. 4 For clarity and to comply with publication requirements found in 1 CFR chapter I, FEMA has revised the final rule's definition of “urbanized area” as an area that consists of densely settled territory that contains 50,000 or more people.

An anonymous commenter [FEMA-2019-0012-0002] supports the different population thresholds of the NPRM. The anonymous commenter suggested that the population requirements give all areas a fair chance of receiving Federal assistance. FEMA appreciates the anonymous commenter's support but, did not make any changes to the regulatory text at 206.206 as a result of the comment.

A member of the public [FEMA-2019-0012-0003] commented that FEMA views the applicant/subrecipient as two different entities: An “applicant” is one that has applied for but not yet received funding, while a “subrecipient” has applied for and been awarded funding. This member of the public [FEMA-2019-0012-0003] also commented that the definition of ”applicant” does not include “subrecipient” (although one could argue that all “subrecipients” are “applicants,” but not all “applicants” are “subrecipients,” so the use of “applicant” for all entities could still be correct).

The “applicant,” as defined at 44 CFR 206.201(a), is a State agency, local government, or eligible private nonprofit organization (PNP) submitting an application to the recipient for assistance under the recipient's grant. The “recipient,” as defined at 44 CFR 206.201(m), is the government to which a grant is awarded, and which is accountable for the use of the funds provided. The “recipient” is typically the State to which a grant is awarded.

In the NPRM, FEMA proposed changing the phrase “applicant, subrecipient, or recipient” to “applicant or recipient” since the definition of “applicant” at 44 CFR 206.201(a) already includes the term “subrecipient.” Since an “applicant” submits an application to the “recipient” for assistance under the recipient's grant, the “recipient” and the “applicant” are not interchangeable phrases. It follows that the definition of “applicant” at 206.201(a) cannot include a “recipient,” so FEMA disagrees with the public commenter's [FEMA-2019-0012-0003] statement that the use of “applicant” for all entities could still be correct.

Therefore, FEMA did not make any changes to the regulatory text at 206.206 as a result of the comment.

A member of the public [FEMA-2019-0012-0003] also commented that there is a difference in “applicant” and “subrecipient” per 44 CFR 206.201(a). FEMA disagrees with the statement that there is a difference in “applicant” and “subrecipient” per 206.201(a). As indicated above, the definition of “applicant” at 206.201(a) includes “subrecipient,” but not “recipient.” Therefore, FEMA did not make any changes to the regulatory text at 206.206 as a result of the comment.

The commenter further stated that the use of “appellant” allows for both “applicants” and “subrecipients” to be represented in the terminology. In the past, FEMA used the term “appellant” instead of “applicant or recipient” for the requirement of specifying the provisions in Federal law, regulator, or policy in dispute. In the NPRM, FEMA's reason for changing from “appellant” to “applicant or recipient” was for consistency in terminology and no substantive change was intended. Since FEMA's goal is consistency in terminology, FEMA will not add “appellant” as a defined term to paragraph (a) of 44 CFR 206.206, as it could lead to confusion for the reader as to whether it refers to an “applicant” or a “recipient.” Therefore, FEMA did not make any changes to the regulatory text at 206.206 as a result of the comment.

The State DEM [FEMA-2019-0012-0008] commented that in 44 CFR 206.206(a), FEMA should define “Regional Administrator” because applicants submit first appeals to the appropriate FEMA Regional office and then submit second appeals to the Assistant Administrator for the Recovery Directorate. The State DEM proposed to define “Regional Administrators” as “the Administrator of the Federal Emergency Management Agency Regional Office in which the Applicant resides.”

FEMA decided against the commenter's suggested definition of “Regional Administrator” since 44 CFR 206.2(a)(21) already provides a definition for “Regional Administrator” with general applicability throughout part 206. Regional Administrator: An administrator of a regional office of FEMA, or his/her designated representative. As used in these regulations, Regional Administrator also means the Disaster Recovery Manager who has been appointed to exercise the authority of the Regional Administrator for a particular emergency or major disaster.

This second sentence in the definition of Regional Administrator at 206.2(a)(21) is contrary to the structure proposed in the NPRM at 206.206, as it says that the Regional Administrator also means the Disaster Recovery Manager. In the NPRM, the Regional Administrator/Disaster Recovery Manager is not making the FEMA determination. Otherwise, the submission of the first appeal to the Regional Administrator for review would mean that the Regional Administrator could review their own determination. Therefore, FEMA decided to add only the first sentence of the “Regional Administrator” definition at 206.2(a)(21) to this final rule for consistency and clarity. So, FEMA added the following definition of “Regional Administrator” to the regulatory text: Regional Administrator means an administrator of a regional office of FEMA, or his/her designated representative.

Both, “Administrator” and “Regional Administrator” were added to Title V of the Homeland Security Act of 2002 by the Post-Katrina Emergency Management Reform Act of 2006. 5 Therefore, it makes sense that they are defined terms under 44 CFR 206.206, as they are statutorily mandated FEMA positions.

The State DEM also recommended that FEMA define the term “Assistant Administrator for the Recovery Directorate.” FEMA chose not to provide a definition of “Assistant Administrator for the Recovery Directorate” since future FEMA reorganizations may change that position title. Additionally, the “Assistant Administrator for the Recovery Directorate” is not a FEMA statutorily mandated position.

Finally, the State DEM [FEMA-2019-0012-0008] suggested that FEMA define “final agency determination” to mean the decision of FEMA as provided through electronic transmission of a formal determination if the applicant or recipient does not submit a first appeal within the time limits. FEMA does not adopt the commenter's definition because the definition in the NPRM the is a more fulsome definition which covers all eventualities. In the NPRM, “final agency determination” means the decision of FEMA, if the applicant or recipient does not submit a first appeal within the time limits provided for in paragraph (b)(1)(ii)(A) of proposed § 206.206; or the decision of FEMA, if the applicant or recipient withdraws the pending appeal and does not file a request for arbitration within 30 calendar days of the withdrawal of the pending appeal; or the decision of the FEMA Regional Administrator, if the applicant or recipient does not submit a second appeal within the time limits provided for in paragraph (b)(2)(ii)(A) of proposed § 206.206. For this reason, FEMA declines to adopt the commenter's definition. Therefore, FEMA only added the definition of “Regional Administrator” to the regulatory text at 206.206(a) as a result of the comment.

Proposed paragraph 206.206(b)(1)(ii) of the NPRM addressed time limits for first appeals. Under proposed paragraph (b)(1)(ii)(A), the applicant may make a first appeal through the recipient within 60 calendar days from the date of the FEMA determination that is the subject of the appeal. Moreover, the recipient must electronically forward to the Regional Administrator the applicant's first appeal with a recommendation within 120 calendar days from the date of the FEMA determination that is the subject of the appeal. There is no recourse for the applicant if the recipient misses the deadline to forward the appeal and recommendation to the Regional Administrator. There is also no recourse for the applicant in a second appeal where the recipient does not make the deadline.

Several commenters—including a member of the public [FEMA-2019-0012-0003], a State agency [FEMA-2019-0012-0007], and State DEM [FEMA-2019-0012-0008]—sought clarification on when, exactly, the applicant's initial 60-day deadline is triggered. For instance, is the deadline triggered on the day the applicant views the determination [FEMA-2019-0012-0003]? Does the deadline begin once the applicant has physically received the determination paperwork [FEMA-2019-0012-0008]? As FEMA was aware of this issue, the NPRM provided clarity by adding an electronic submission requirement for both first and second appeals. This requirement will enable FEMA to accurately track the transmittal and receipt of appeals since they will be the same date, while providing the applicant with a clear timeline for compliance. Specifically the deadline is triggered by FEMA's transmittal of the determination, not the date the applicant views the determination.

Nonetheless, a member of the public [FEMA-2019-0012-0003] questioned whether the NPRM's proposal to change the language “after receipt of a notice of the action that is being appealed” to “from the date of the FEMA determination that is the subject of the appeal” will actually assist FEMA with tracking. In her opinion, using the date of the issuance of the determination, rather than the date the “appellant” views the determination, does not provide clarity. Since the proposed language of the NPRM relies on the electronic submission for appeals, it would not matter when the FEMA determination that is subject of the appeal is viewed. With the switch to electronic submission, the date of the FEMA determination and the date of receipt are the same. Therefore, FEMA did not make any changes to the regulatory text as a result of the comments.

A State DEM [FEMA-2019-0012-0008] commented that it agrees with electronic submission to ease in tracking and ensuring timely receipt of appeals. However, the commenter stated, applicants and recipients do not always receive FEMA's determination on the same day as the date of the transmission letter. This could potentially reduce the amount of time for an applicant to appeal. In support of this comment, the State DEM submitted an emergency (as opposed to major disaster) declaration determination with what appeared to be a discrepancy between the date of receipt and the date of determination, as attachments. Upon further review, FEMA finds the discrepancy between the date of receipt and date of determination was an administrative error or an anomaly. FEMA is taking programmatic and technological steps to tie the date of determination to date of the determination's transmittal, but should a similar error or discrepancy recur in the future FEMA would use the date of transmittal as the deadline trigger.

Nonetheless, the State DEM suggested remedy language for both first and second appeals which would start the clock on the 60-day deadline on the confirmed receipt of FEMA's determination. Further, the commenter proposed language to create a rebuttable presumption in favor of the date of receipt claimed by the applicant or recipient. Because the NPRM proposed requiring electronic submission for both applicant and recipient and the NPRM proposed FEMA simultaneously electronically notify both applicant and recipient, these concerns are unfounded. Therefore, FEMA did not make any changes to the regulatory text at 206.206(b)(1)(ii) and (b)(2)(ii) as a result of the comments.

A member of the public [FEMA-2019-0012-0003] queried: Is the NPRM to remove the first 60-day requirement for the appellant to appeal, and make the entire deadline 120 days regardless of when each entity appeals so long as it is within 120 days? This simplifies the timeliness requirement for all parties she stated, but the proposed language is confusing as to whether the 60-day deadline remains for the applicant. By the NPRM, she continues, the applicant could appeal on day 120 and the recipient could forward on same that day. In this scenario, the commenter believed the submission would remain timely. The commenter stated that this removes some of the intent behind the timeliness requirements for each party to responsibly review the appeal.

The applicant's 60-day deadline remains, as the Stafford Act requires it for appeals. See 423(a) of the Stafford Act. In order to resolve the confusion identified by the public commenter [FEMA-2019-0012-0003], FEMA has added regulatory text to both the first and second appeals paragraphs of the final rule for clarity and consistency. Specifically, FEMA replaced the second to the last sentence of the appeals paragraphs of the final rule at 206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) with the following: “[i]f the applicant or the recipient do not meet their respective 60-calendar day and 120-calendar day deadlines, FEMA will deny the appeal.” This is consistent with current FEMA policy. See page 40 of the Public Assistance Program and Policy Guide, 6 which says that “[i]f either the Applicant or Recipient does not meet the respective 60-day deadlines, FEMA will deny the appeal as untimely.”

Also in reference to the 120-day deadline, a State agency [FEMA-2019-0012-0006] inquired: Does this mean that if the applicant appeals to the recipient 45 days from the FEMA determination, that the recipient still has 120 calendar days from the date of the FEMA determination to transmit the appeal to FEMA? In the above scenario, an applicant that appeals 45 days after its FEMA determination would then leave the recipient with 75 days to forward the appeal to FEMA. The NPRM is in no way extending the 120-day deadline.

A separate comment from the same State agency [FEMA-2019-0012-0007] correctly stated that the applicant still has a firm 60-day deadline to submit its appeal to the applicant. The commenter then inquired whether FEMA will deny any appeal as untimely if the applicant submits its appeal to the recipient after the 60-day deadline, but FEMA receives the appeal within 120 days. In this scenario, the commenter is correct that FEMA would deny this appeal as untimely. Even if the recipient ultimately submitted the appeal to FEMA within 120 days from the date of determination, if an applicant submits its appeal to the recipient outside of the 60 days, it has exceeded the deadline imposed by Section 423 of the Stafford Act. As stated above, FEMA added new regulatory text in the final rule to both the first and second appeals paragraphs for clarity and consistency. The new language states that if the applicant or the recipient do not meet their respective 60-calendar day and 120-calendar day deadlines, FEMA will deny the appeal.

Finally, the State DEM [FEMA-2019-0012-0008] suggested that the regulatory language was misleading because it implies that FEMA will deny all first appeals it does not receive by the recipient's 120-day deadline and is not clear that applicant's untimeliness will jeopardize the appeal. As the scenarios above make clear, both an applicant and recipient's untimeliness will continue to jeopardize either a first or second appeal based upon their respective 60-calendar day and 120-calendar day deadlines. For these reasons, FEMA made changes to the regulatory text regarding first appeals at 206.206(b)(1)(ii)(A) and regarding second appeals at (b)(2)(ii)(A) as a result of the comments.

The State DEM [FEMA-2019-0012-0008] objected to FEMA denying either a first or second appeal based upon timeliness. The State DEM argued that FEMA lacked the authority to unilaterally deny an appeal based upon timeliness because this is not specifically permitted by the Stafford Act. The State DEM stated that it was “administratively unfair” for FEMA to deny second appeals solely based on timeliness without considering the merits thereof.

The State DEM specifically proposed language prohibiting FEMA from denying a second appeal based on untimeliness if a determination on the merits would be in the applicant or recipient's favor. It offered language barring FEMA from denying an otherwise timely second appeal solely on the grounds that the relevant first appeal was untimely. To bolster its argument, the State DEM attached an exhibit wherein FEMA rejected a second appeal based on the first appeal being untimely even though, the State DEM argued, FEMA incorrectly de-obligated funds initially. Had FEMA examined the issue on the merits the argument continues, the applicant would have prevailed.

Section 423 of the Stafford Act requires an applicant to submit an appeal within 60 days. FEMA does not have the unilateral authority to alter or ignore this requirement. The State DEM's suggestions would have the effect of removing timeliness as a meaningful consideration for appeals. Further, FEMA has no ability to extend the deadlines listed in Section 423, just as it lacks express authority to waive timelines. FEMA is solely implementing requirements prescribed by law. In addition, the start of the mandatory 60-day period, the date of FEMA's determination, and the date of the applicant and recipient's receipt thereof should be identical with the implementation of electronic transmission. Since electronic transmission addresses the State DEM's concerns regarding the start of the appeals period and FEMA cannot waive, alter, or modify the 60-day appeal deadline in the Stafford Act, FEMA did not make any changes to the regulatory text at 206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) as a result of these comments. However, as stated above FEMA added new regulatory text in the final rule to both the first and second appeals paragraphs for clarity and consistency. The new language states that if the applicant or the recipient do not meet their respective 60-calendar day and 120-calendar day deadlines, FEMA will deny the appeal.

The State DEM [FEMA-2019-0012-0008] also suggested that the regulatory language in 206.206(b)(3)(iii)(B)( 2 ) of the NPRM be modified to permit requests for arbitration from untimely appeals. This comment and proposed language would render timeliness moot, as applicants could make an untimely appeal and then attempt to arbitrate the rejection on timeliness. Section 423 of the Stafford Act only permits an applicant to submit an appeal within 60 days; FEMA does not have the authority to alter or ignore this deadline. Consequently, FEMA did not make any changes to the regulatory text at 206.206(b)(3)(iii)(B)( 2 ) as a result of these comments.

However, FEMA provided clarifying edits to 206.206(b)(3)(iii)(B)( 2 ) in the final rule, so that an applicant understands that if they choose arbitration pursuant to Section 423(d) of the Stafford Act, as FEMA has not responded to an applicant's first appeal within 180 days, then they must withdraw the pending appeal before they file the request for arbitration. Basically, the applicant cannot arbitrate and appeal at the same time. Additionally, FEMA provided clarifying edits to 206.206(b)(3)(iii)(B) (2) to remove the phrase “and the CBCA.” FEMA deleted this phrase, as a pending first appeal would not be pending before the CBCA, so the applicant would have no reason to notify the CBCA of the first appeal withdrawal.

So in the final rule, FEMA has split the first sentence of 206.206(b)(3)(iii)(B) (2) into two sentences that say if the first appeal was timely submitted, and the Regional Administrator has not rendered a decision within 180 calendar days of receiving the appeal, an applicant may arbitrate the decision of FEMA. To request arbitration, the applicant must first electronically submit a withdrawal of the pending appeal simultaneously to the recipient and the FEMA Regional Administrator. Plus, FEMA added clarifying language to the last sentence of 206.206(b)(3)(iii)(B) (2) by replacing “may” with “must” and by adding the phrase “to the recipient, the CBCA, and FEMA” after arbitration. So, 206.206(b)(3)(iii)(B) (2) in the final rule says that the applicant must then submit a request for arbitration to the recipient, the CBCA, and FEMA within 30 calendar days from the date of the withdrawal of the pending appeal. FEMA wants to clarify that if an applicant withdraws a first appeal, then the applicant must submit a request for arbitration within 30 calendar days. If the applicant does not follow the requirements of 206.206(b)(3)(iii)(B) (2), then the applicant's request for arbitration will be denied for timeliness.

The State DEM [FEMA-2019-0012-0008] commented that it agrees with electronic submission to ease in tracking and ensuring timely receipt of appeals, and suggested FEMA also provide its decisions electronically to both the applicant and recipient simultaneously. This is the course of action that FEMA proposed in the NPRM's 206.206(b)(1)(iii); therefore, FEMA did not make any changes to the regulatory text as a result of this comment.

A State DEM [FEMA-2019-0012-0008] commented that in both paragraphs 206.206(b)(1)(ii)(C) and (b)(2)(ii)(C) of the NPRM, FEMA allows itself 90 days from receipt of the appeal, rather than the date of the appeal itself, to respond per Section 423(b) of the Stafford Act. The State DEM further suggests regulatory text changes imposing penalties for any response beyond the 90-day deadline.

First and foremost, the date an applicant makes an appeal is not the same date FEMA receives the appeal because it must first pass through the recipient. In addition, though FEMA endeavors to render all appeals decisions within 90 days, it is an agile agency with emergent responsibilities. Nevertheless, FEMA remains stewards of Federal monies and must perform a thorough review to ensure grants follow the law. This constant conflict demands an ongoing shift of resources and priorities. With the final rule's implementation of electronic transmission, FEMA determinations should be received electronically when issued. The Regional Administrator will provide electronic notice of the disposition of the appeal to the applicant and the recipient thereby avoiding delays inherent in methods such as carrier delivery. FEMA will know the date received as it will be the same as the electronic transmission date. Lastly, FEMA notes that, pursuant to Section 423(d) of the Stafford Act, if the agency fails to respond to an applicant's first appeal within 180 days, said applicant may choose to arbitrate the dispute provided they meet all the other arbitration threshold requirements. Consequently, FEMA did not make any changes to the regulatory text at 206.206(b)(1)(ii)(C) and (b)(2)(ii)(C) as a result of the comments.

Proposed paragraphs 206.206(b)(1)(iii) and (b)(2)(iii) provide that, for highly technical matters, the Regional Administrator may submit the appeal to an independent scientific or technical person/group having expertise in the subject matter of the appeal for advice or recommendation. The period of this review may be in addition to other allotted time periods.

In lieu of the above, a State DEM [FEMA-2019-0012-0008] commented that FEMA does not have the authority to expand the time it has to render a determination on a first or second appeal. Moreover, the State DEM argued, the time taken to seek technical advice should be deducted from FEMA's allotted 90 days, as FEMA should have already conducted a proper full technical review prior to making a final agency determination.

FEMA, as the steward of Federal monies, must always pursue the public's best interest by ensuring that all grants follow the law. For highly technical matters, the Agency has a responsibility to seek outside guidance if it lacks the requisite expertise inhouse. This will allow the Agency to make the correct decision and serve the greater good of distributing equitable disaster assistance. Moreover, pursuant to Section 423(d) of the Stafford Act, if FEMA fails to respond to an applicant's first appeal within 180 days, said applicant may choose to arbitrate the dispute provided they meet all the other arbitration threshold requirements. For these reasons, FEMA did not alter the regulatory text at 206.206(b)(1)(iii) and (b)(2)(iii) as a result of the comments.

In the NPRM, under paragraphs 206.206(b)(1)(ii)(B) and (b)(2)(ii)(B), FEMA proposed allowing the recipient only 30-calendar days to provide any additional information to the Regional Administrator; instead of having the Regional Administrator include the date by which the information must be provided. Quantifying the period for additional information better allows FEMA to issue timely determinations on first and second appeals.

A member of the public [FEMA-2019-0012-0003] commented that the proposed change allows an appellant to provide additional information even 30 days after the appeal submittal. This change would not serve the public's interest of FEMA issuing timely determinations on first appeal she argued. In this instance, FEMA would be required to delay its adjudication by 30 days while it waits for the window of opportunity to submit additional information on a first appeal to pass. Thus, if this change was implemented, an appellant would have 150 days to make a complete appeal. While the member of the public [FEMA-2019-0012-0003] is correct that the new 30-day deadline may add to the appeals timeline, it could also shorten the timeline of future appeals by quantifying the deadline. FEMA intends to provide a fair deadline for additional information. Therefore, FEMA did not make any changes to the regulatory text at 206.206(b)(1)(ii)(B) and (b)(2)(ii)(B) as a result of the comment.

The State DEM [FEMA-2019-0012-0008] proposed the imposition of penalties on FEMA when it exceeds the 90-day deadline for requesting additional information for both first and second appeals. This commenter also suggested that if FEMA misses its deadline, recipients and applicants should not be held to their deadlines, and FEMA should be barred from requesting information to substantiate timeliness. The State DEM also proposed a requirement for FEMA to provide monthly status updates concerning each appeal to the applicant and recipient. As noted above, the Stafford Act does not include any remedies or corrective actions in the event that FEMA fails to meet the 90-day deadline to decide appeals. However, FEMA has a public assistance second appeals tracker available to the public at https://www.fema.gov/about/openfema/data-sets/fema-public-assistance-second-appeals-tracker.

With regards to the State DEM's [FEMA-2019-0012-0008] suggestion that untimeliness on FEMA's part should relieve applicants and recipients from complying with their own deadlines. Section 423 of the Stafford Act requires an applicant to submit an appeal within 60 days; FEMA does not have the authority to alter or ignore this requirement. FEMA does have a duty to be a responsible steward of public monies and must therefore conduct a thorough review of all grants to ensure compliance with the law, even if that review happens to exceed the 90-day deadline provided for disposition of appeals. Finally, FEMA will not impose additional responsibilities upon itself, such as status updates, outside of what is prescribed by law. Consequently, FEMA did not make any changes to the regulatory text as a result of the comment.

A State DEM [FEMA-2019-0012-0008] commented that 206.206(b)(1)(v) and (b)(2)(v) do not have deadlines or timelines for implementing a successful appeal. The State DEM suggested that FEMA adopt an actual deadline to avoid delaying project development without explanation to the applicant or recipient. The State DEM suggested language stating that if the Regional Administrator grants an appeal, FEMA must begin implementing the action within 30 days of the determination date, or at a minimum, provide the applicants and recipient with a status update indicating when the action would be implemented. In a separate comment, the agency also suggested requiring the Assistant Administrator for the Recovery Directorate to perform this action regarding second appeals.

FEMA finds the proposed language to be unnecessary because it effectively requires FEMA to impose requirements on itself not otherwise imposed by Congress. FEMA trusts the discretion of its Regional Administrators  7 to make appropriate decisions on addressing successful appeals. Also, providing status updates would unintendedly affect FEMA's ability to meet timelines for other actions. Therefore, FEMA did not make any changes to the regulatory text at 206.206(b)(1)(v) and (b)(2)(v) as a result of the comment.

A State DEM [FEMA-2019-0012-0008] commented on 206.206(b)(3)(iii)(C), which states that a request for arbitration must contain a written statement that specifies the amount in dispute, all documentation supporting the position of the applicant, the disaster number, and the name and address of the applicant's authorized representative or counsel. Additional supplemental documentation is permitted as ordered by the CBCA.

The State DEM believed the language was confusing because “all documentation” implied applicants could not submit supplemental information within a request for arbitration. The State DEM suggested removing the word “all” and adding language to allow supplemental documentation as requested by the CBCA. FEMA notes that the CBCA already has rules on supplemental materials located at 48 CFR 6106.608, Evidence; timing [Rule 608]. Accordingly, FEMA did not make any changes to the regulatory text at 206.206(b)(3)(iii)(C) as a result of the comment.

As mentioned before, the State DEM [FEMA-2019-0012-0008] submitted an emergency declaration determination as their second and third attachment to their comment related to timeliness of appeals. In the third attachment, FEMA cites to 44 CFR 206.206 for the authority to appeal this emergency declaration determination. During the course of adjudicating this comment, FEMA reviewed how the NPRM discussed emergency versus major disaster determinations.

In the NPRM, FEMA limited arbitrations to major disaster declaration determinations at proposed 206.206(b)(3)(i)(A) since the right of arbitration is housed in paragraph (d) of Section 423 of the Stafford Act. Section 423 is under Title IV of the Stafford Act, which is entitled “Major Disaster Assistance Programs.” Also, subparagraph (d)(5)(A) of 423 of the Stafford Act states that the applicant shall submit to the arbitration process established under the authority granted under Section 601 of Public Law 111-5. FEMA's corresponding regulations under 206.209 are entitled “Arbitration for Public Assistance determinations related to Hurricanes Katrina and Rita (Major disaster declarations DR-1603, DR-1604, DR-1605, DR-1606, and DR-1607).” Therefore, FEMA limited arbitration in the NPRM to major disaster declarations.

Yet, there was no corresponding limitation in the appeals section of the NPRM because applicants may appeal emergency declaration decisions. As a result of the deliberation surrounding a response to this comment, FEMA did discover that the NPRM imprecisely stated in the Executive Orders 12866 and 13563 section that “[t]his proposed rule does not apply to emergency disaster declarations.” Rather, it should have stated that “[t]he Regulatory Evaluation does not include a discussion of emergency disaster declarations; since, arbitration is only available to dispute the determinations of major disaster declarations.” There was no need to analyze the cost for applicants to appeal determinations of emergency disaster declarations in the NPRM, since FEMA currently allows for such and the NPRM did not limit appeals to major disaster declaration determinations. FEMA did not make any changes to the regulatory text at 206.206 as a result of this comment but it did update the Regulatory Evaluation as noted above.

The NPRM at 44 CFR 206.206(a) proposed to define the term “urbanized area” to mean the area as identified by the United States Census Bureau (USCB). The USCB defines an “urbanized area” as an area that consists of densely settled territory that contains 50,000 or more people. For clarity and to comply with publication requirements found in 1 CFR chapter I, FEMA has revised the final rule's definition of “urbanized area” as an area that consists of densely settled territory that contains 50,000 or more people.

FEMA realized that the NPRM at 206.206 was silent regarding the recipient-related first and second appeal time limits. Section 423(a) of the Stafford Act allows appeals within 60 days. Therefore, in the first appeal time limits portion of the final rule FEMA aligned with this requirement by adding the following sentence at the end of 206.206(b)(1)(ii)(A): A recipient may make a recipient-related first appeal within 60 calendar days from the date of the FEMA determination that is the subject of the appeal and must electronically submit their first appeal to the Regional Administrator. FEMA also had to make a corresponding addition to the second appeal time limits portion of the final rule by adding the following sentence to the end of 206.206(b)(2)(ii)(A): If the Regional Administrator denies a recipient-related first appeal in whole or in part, the recipient may make a recipient-related second appeal within 60 calendar days from the date of the Regional Administrator's first appeal decision and the recipient must electronically submit their second appeal to the Assistant Administrator for the Recovery Directorate.

FEMA realized that the NPRM at 206.206(b)(3)(i)(A) does not follow the language of Section 423(d)(1) of the Stafford Act, which says that an applicant for assistance may request arbitration to dispute the eligibility for assistance or repayment of assistance. Rather, the NPRM at 206.206(b)(3)(i)(A) states that an applicant may request arbitration if there is a disputed agency determination. Therefore, in the final rule FEMA is removing the phrase “disputed agency determination” from paragraph 206.206(b)(3)(i)(A) and adding “dispute of the eligibility for assistance or of the repayment of assistance” in its place.

FEMA also realized that the NPRM at 206.206(b) does not follow the language of Section 423 of the Stafford Act, which says that an applicant for assistance may request arbitration to dispute the eligibility for assistance or repayment of assistance. Rather, the NPRM at 206.206(b) says that an eligible applicant or recipient may appeal or an eligible applicant may arbitrate any determination previously made related to an application for or the provision of PA according to the procedures of this section. Because the regulatory text does not follow the statutory language, FEMA is removing the phrase “or an eligible applicant may arbitrate” from 206.206(b) and FEMA is adding a second sentence to 206.206(b) that says: “An eligible applicant may request arbitration to dispute the eligibility for assistance or repayment of assistance.”

FEMA is making these technical changes because FEMA does not have the discretion to deviate from statutorily imposed restrictions. Section 423(a) of the Stafford Act allows an applicant to appeal any decision regarding eligibility for, from, or amount of assistance. Whereas, Section 423(d)(1) of the Stafford Act allows an applicant to arbitrate the eligibility for assistance or repayment of assistance. Since Congress did not use the same language, there is a difference between what an applicant can arbitrate and what an applicant can appeal, which FEMA must delineate in its regulations at 44 CFR 206.206. Since these requirements are statutorily imposed and FEMA has no discretion FEMA may make these edits as technical changes in the final rule.

Additional technical changes to the final rule are at 44 CFR 206.206(b)(1)(iv)(B) (1) and (b)(2)(iv)(B) (1) as the Office of Management and Budget (OMB) revised the cross references from 2 CFR 200.338 to 2 CFR 200.339; as, OMB revised sections of their Guidance for Grants and Agreements. (See 85 FR 49506, Aug. 13, 2020.)

The final rule also includes corrections of typographical errors and other non-substantive stylistic changes from the NPRM. FEMA made a typographical error under the Executive Orders 12866 and 13563 section Impartiality heading. In the NPRM, the Executive Orders 12866 and 13563 section stated that CBCA found in favor of the applicant fully or partially in less than 20 percent of the time. The “20 percent” was a typographical error. It should have read “55 percent” to align with the correct data, which was listed on Table 13 of the NPRM. In this final rule, the data for the Executive Orders 12866 and 13563 section has been updated with the most recent 10-years of available data at the time of the analysis. Therefore, FEMA has replaced “less than 20” with “about 13” in the final rule to make sure that the narrative of the percentage that the CBCA found in favor of the applicant fully or partially aligns with Table 13.

The final rule also includes other non-substantive changes from the NPRM. For instance, FEMA added a footnote to the Executive Orders 12866 and 13563 section under the Cost to Government/FEMA heading that “FEMA estimates that we could need up to four expert witnesses. FEMA's expert witnesses may or may not speak at the hearing. Additionally, FEMA may hire an expert witness so that FEMA can consult with them about the subject matter.” The footnote adds clarity to the statement that FEMA assumes that it would use four expert witnesses per case. This change is for clarification purposes only.

In this final rule, FEMA added onto footnote 11 in the Executive Orders 12866 and 13563 section under the first bullet point under the Assumptions heading that “[i]n the final rule, the data for the Executive Orders 12866 and 13563 section has been updated with the most recently available data at the time of the analysis.” The edits to footnote 11 clarifies that the Executive Orders 12866 and 13563 section contains the most recent data at the time of the analysis and that the figures will be in the most recent dollars. For the NPRM, 2018 dollars were used based off the Bureau of Labor Statistics (BLS) Consumer Price Index (CPI) data. In the final rule, 2019 dollars were used based off the BLS CPI data as it became available. This addition is for clarification purposes only.

Another non-substantive stylistic change from the NPRM was made to the definition of “applicant” and “recipient” in 206.206(a). Instead of saying that the “applicant” or the “recipient” “refers to,” the final rule regulatory text says that the “applicant” or the “recipient” “has the same meaning as.” So, the definitions in the final rule regulatory text are: Applicant has the same meaning as the definition at § 206.201(a) and Recipient has the same meaning as the definition at § 206.201(m).

The final non-substantive stylistic and grammar changes from the NPRM were made to 206.206(c) in the final rule. First, FEMA split the paragraph into two subparagraphs based on whether the subparagraph dealt with the finality of a FEMA decision or a CBCA decision. Then, FEMA corrected a grammar error in the first sentence of 206.206(c)(1) by revising “constitute” to “constitutes.” Since, FEMA split paragraph 206.206(c) from the NPRM into two subparagraphs in the final rule, FEMA had to include that final decisions are not subject to further administrative review in both subparagraphs, as it applies to the finality of both FEMA and CBCA decisions.

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 both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

OMB has designated this rule as a non-significant regulatory action, under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it.

When FEMA determines that an applicant or recipient is ineligible for PA funding, or if the applicant or recipient disputes the amount awarded, FEMA has implemented a process to appeal the decision. First, the applicant or recipient can appeal to the FEMA Regional Administrator (RA), who will make a determination on the appeal. If the applicant or recipient does not submit a second appeal of the RA's determination, the result of the first appeal is the final agency determination. If the applicant or recipient is not satisfied with the result of the first appeal, they can submit a second appeal to the FEMA Assistant Administrator for the Recovery Directorate. The result of the second appeal is a final decision of FEMA.

This rule implements provisions for arbitration in lieu of a second appeal, or in cases where an applicant has had a first appeal pending with FEMA for more than 180 calendar days. Applicants choosing arbitration would have their case heard by a panel of judges with the CBCA. A decision by the majority of the CBCA panel constitutes a final decision that would be binding on all parties. Final decisions would not be subject to further administrative review.

Pursuant to 42 U.S.C. 5189a, as amended by Section 1219 of the DRRA, to request arbitration, an applicant (1) must have a dispute arising from a disaster declared after January 1, 2016; (2) must be disputing an amount that exceeds $500,000 (or $100,000 for an applicant in a “rural area” with a population of less than 200,000 and outside of an urbanized area); and, (3) must have submitted a first appeal and has either received a denial of the first appeal or has not received a decision after 180 calendar days.

This final rule will directly affect applicants or recipients disputing FEMA PA eligibility determinations or disputing the amount awarded for PA projects. Applicants are required to submit appeals through their State, or in the case of a Tribal declaration, 8 their Tribal government (recipients). The recipient will then forward the request to the FEMA Regional Administrator, along with a recommendation for a first appeal.

If an applicant has not received a decision on their first appeal after 180 days and meets the other two previously-outlined criteria, they may withdraw the first appeal and request arbitration. Alternatively, if the applicant does not agree with the Regional Administrator's decision on the first appeal, they may either submit a second appeal to the FEMA Assistant Administrator for the Recovery Directorate or request arbitration. A panel of judges with the CBCA would hear any arbitration cases. The applicant would send a representative and possibly expert witnesses to the arbitration hearing. The recipient would also send a representative to support the applicant. FEMA representatives and expert witnesses would also attend the hearing to defend FEMA's determination in the case of an applicant not receiving the first appeal decision within 180 days or to defend FEMA's first appeal decision.

The final rule will codify regulations for the arbitration process as directed by 42 U.S.C. 5189a(d)(5). Applicants are eligible for arbitration for disputes arising from major disasters declared on or after January 1, 2016. This process is already available, and eligible applicants have been notified of this option. 9

As amended by Section 1219 of the DRRA, 42 U.S.C. 5189a(d) names the CBCA as the entity responsible for conducting these arbitrations. The CBCA has promulgated regulations at 48 CFR part 6106 establishing its arbitration procedures for such purpose. 10

This final rule establishes a 60-calendar day deadline for submitting requests for arbitration (§ 206.206(b)(3)(iii)(B)) so that submission time limits for second appeals and arbitrations are the same. FEMA believes that there should be consistency between the time to request arbitration and the time to submit second appeals for administrative ease and to reduce potential confusion amongst applicants.

The final rule will affect disputes from PA applicants arising from major disaster declarations. Specifically, applicants that (1) submitted a first appeal and received a negative decision, or, (2) have a first appeal pending for more than 180 days and wish to withdraw the appeal in favor of arbitration. Applicants may only request arbitration for disputes in excess of $500,000, or $100,000 in rural areas, and for disputes that arise from major disasters declared on or after January 1, 2016.

FEMA is revising its PA appeals regulation at 44 CFR 206.206 to add in the new right to arbitration under DRRA, in conjunction with some revisions to the appeals process. DRRA added arbitration as a permanent alternative to a second appeal under the PA Program, or for applicants that have had a first appeal pending with FEMA for more than 180 calendar days that may withdraw such appeal and submit a request for arbitration, provided the dispute is in excess of $500,000, or $100,000 in rural areas, and for disputes that arise from major disasters declared on or after January 1, 2016. The other major revisions to 44 CFR 206.206 include adding definitions; adding subparagraphs to clarify what actions FEMA may take and will not take while an appeal is pending and state that FEMA may issue separate guidance as necessary, similar to current 44 CFR 206.209(m); adding a finality of decision paragraph; requiring electronic submission for appeals and arbitrations documents; and clarifying overall time limits for first and second appeals.

In the final rule, a non-substantive stylistic change from the NPRM was made to the definition of “applicant” and “recipient” in § 206.206(a). Instead of saying that the “applicant” or the “recipient” “refers to,” the final rule regulatory text says that the “applicant” or the “recipient” “has the same meaning as.” So, the definitions in the final rule regulatory text are: Applicant has the same meaning as the definition at § 206.201(a) and Recipient has the same meaning as the definition at § 206.201(m).

In this final rule, FEMA is adding a definition of Regional Administrator and making changes to the regulatory text regarding first appeals and second appeals at § 206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) as a result of the 60-day appeals deadline comments.

Additionally, in this final rule, FEMA is making technical revisions at §§ 206.206(b) and 206.206(b)(3)(i)(A) to align the regulatory text with the dispute of the eligibility for assistance or repayment of assistance language of Section 423(d)(1) of the Stafford Act.

FEMA realized that the NPRM at § 206.206 was silent regarding the recipient-related first and second appeal time limits. Section 423(a) of the Stafford Act allows appeals within 60 days. Therefore, in the first appeal time limits portion of the final rule FEMA aligned with this requirement by adding the following sentence at the end of § 206.206(b)(1)(ii)(A): A recipient may make a recipient-related first appeal within 60 calendar days from the date of the FEMA determination that is the subject of the appeal and must electronically submit their first appeal to the Regional Administrator. FEMA also had to make a corresponding addition to the second appeal time limits portion of the final rule by adding the following sentence to the end of § 206.206(b)(2)(ii)(A): If the Regional Administrator denies a recipient-related first appeal in whole or in part, the recipient may make a recipient-related second appeal within 60 calendar days from the date of the Regional Administrator's first appeal decision and the recipient must electronically submit their second appeal to the Assistant Administrator for the Recovery Directorate. This regulatory change is not expected to have a significant economic impact.

FEMA provided clarifying edits to § 206.206(b)(3)(iii)(B)( 2) in the final rule, so that an applicant understands that if they choose arbitration pursuant to Section 423(d) of the Stafford Act, as FEMA has not responded to an applicant's first appeal within 180 days, then they must withdraw the pending appeal before they file the request for arbitration. Basically, the applicant cannot arbitrate and appeal at the same time. Plus, FEMA provided clarifying edits to § 206.206(b)(3)(iii)(B) (2) to remove the phrase “and the CBCA.” FEMA deleted this phrase, as a pending first appeal would not be pending before the CBCA, so the applicant would have no reason to notify the CBCA of the first appeal withdrawal.

For clarity and to comply with publication requirements found in 1 CFR chapter I, FEMA has revised the final rule's definition of “urbanized area” as an area that consists of densely settled territory that contains 50,000 or more people.

Additional technical changes to the final rule are at 44 CFR 206.206(b)(1)(iv)(B) (1) and (b)(2)(iv)(B) (1) as the Office of Management and Budget (OMB) revised the cross references from 2 CFR 200.338 to 2 CFR 200.339; as, OMB revised sections of their Guidance for Grants and Agreements. (See 85 FR 49506, Aug. 13, 2020.)

So in the final rule, FEMA has split the first sentence of § 206.206(b)(3)(iii)(B) (2) into two sentences that say if the first appeal was timely submitted, and the Regional Administrator has not rendered a decision within 180 calendar days of receiving the appeal, an applicant may arbitrate the decision of FEMA. To request arbitration, the applicant must first electronically submit a withdrawal of the pending appeal simultaneously to the recipient and the FEMA Regional Administrator. This regulatory change will not have an economic impact.

FEMA also added clarifying language to the last sentence of § 206.206(b)(3)(iii)(B) (2) by replacing “may” with “must” and by adding the phrase “to the recipient, the CBCA, and FEMA” after arbitration. So, § 206.206(b)(3)(iii)(B) (2) in the final rule says that the applicant must then submit a request for arbitration to the recipient, the CBCA, and FEMA within 30 calendar days from the date of the withdrawal of the pending appeal. FEMA wants to clarify that if an applicant withdraws a first appeal, then the applicant must submit a request for arbitration within 30 calendar days. If the applicant does not follow the requirements of § 206.206(b)(3)(iii)(B) (2), then the applicant's request for arbitration will be denied for timeliness. This regulatory change will not have an economic impact.

The final non-substantive stylistic and grammar changes from the NPRM were made to § 206.206(c) in the final rule. First, FEMA split the paragraph into two subparagraphs based on whether it dealt with the finality of a FEMA decision or a CBCA decision. Then, FEMA corrected a grammar error in the first sentence of § 206.206(c)(1) by revising “constitute” to “constitutes.” Since, FEMA split paragraph 206.206(c) from the NPRM into two subparagraphs in the final rule, FEMA had to include that final decisions are not subject to further administrative review in both subparagraphs, as it applies to the finality of both FEMA and CBCA decisions.

This analysis used the following assumptions:

• All monetary values are presented in 2019 dollars. FEMA used the Bureau of Labor Statistics (BLS) Consumer Price Index for All Urban Consumers (CPI-U): U.S. city average, all items, by month, Annual Average as published December 2019. 11

• This analysis does not include a discussion of emergency disaster declarations; since, arbitration is only available to dispute the determinations of major disaster declarations. 12

• FEMA assumed the length of time for an arbitration case is based on the hearing location.

• FEMA used 2019 wage rates for all parties involved in arbitration cases.

Following guidance in OMB Circular A-4, FEMA assessed the impacts of this final rule against a pre-statutory baseline. The pre-statutory baseline is an assessment of what the world would look like if the relevant statute(s) had not been adopted. In this instance, FEMA has been accepting arbitration cases since the implementation of DRRA, and retroactive to January 1, 2016. Since the statute has already been implemented and because this rule is not making additional substantive changes, the rule has no cost or benefits related to the new right of arbitration under a no-action baseline. The costs, benefits, and transfers of this rule are measured against the pre-statutory baseline. The benefit of this rule is making information publicly available in the CFR for transparency and to prevent any confusion on the most up-to-date arbitration process.

Currently, FEMA has no permanent regulations for arbitrations outside of Hurricanes Katrina and Rita. Since the passage of the DRRA, certain PA applicants under declarations since January 1, 2016 may request arbitration pursuant to 42 U.S.C. 5189a(d). On June 21, 2019, CBCA published a final rule (see 84 FR 29085) and FEMA has published a corresponding fact sheet. Between January 1, 2016 and November 9, 2020, FEMA received 20 requests for arbitration. 13 Three of these cases are still in progress, so FEMA does not have available data on the outcome of these cases. Of the 17 closed cases, FEMA prevailed in 10 cases, the applicant prevailed in 4 cases, and the applicant withdrew from the arbitration process prior to a decision in 3 cases. These figures will change as FEMA continues to receive arbitration requests.

While arbitration is available for disaster declarations retroactive to January 1, 2016, the process did not become available to applicants until FEMA published guidance in December 2018, and FEMA did not begin receiving arbitration requests until March 7, 2019. This means that FEMA only has 19 months of historical data, and therefore, FEMA relied on older arbitration regulations as a proxy for the expected number of arbitration cases arising out of this final rule.

FEMA previously had regulations permitting arbitrations arising from disaster declarations for Superstorm Sandy. No applicants requested arbitration pursuant to these regulations. The authority for these arbitrations has sunset and FEMA has since removed the regulations. FEMA has regulations, at 44 CFR 206.209, permitting arbitrations arising from disaster declarations for Hurricanes Katrina and Rita. This regulation is only available for PA applicants under Hurricane Katrina and Rita disaster declarations. The number of arbitrations submitted under this authority and the process relied on to conduct these arbitrations provide insight to project the number of arbitration cases in this final rule. While the Katrina/Rita arbitration regulations have some key differences from this final regulation, such as time frames and allowing applicants to request arbitration in lieu of first appeals, it is the best historical data that FEMA has available to estimate the number of expected arbitration cases for this final rule.

FEMA recognized that the regulations at 44 CFR 206.209 have a 30-day time limit for submitting arbitration requests; whereas, this final rule has a 60 calendar-day time limit for arbitrations. FEMA was not able to estimate the impact these additional 30 days may have on the number of arbitrations submitted.

In addition to reviewing the limited historical data available on the 20 arbitration cases, FEMA also examined the number of arbitrations submitted from the Hurricane Katrina and Rita disasters pursuant to 44 CFR 206.209, in lieu of filing a first appeal, from 2010 through 2019 to derive an estimate of the number of arbitration cases that applicants might submit per year pursuant to 42 U.S.C. 5189a(d). Pursuant to 42 U.S.C. 5189(d)(5)(A), arbitrations authorized by the DRRA must follow the process established in 44 CFR 206.209 for Katrina and Rita arbitrations, so FEMA relied on the annual average percentage of cases submitted under this regulation as a basis for estimating the number of cases that would arise for this final rule. This analysis was conducted using data from 2010 through 2019. 14 Applicants could arbitrate in lieu of a first appeal only if the amount of the project was greater than $500,000. 15 During this period, applicants submitted a total of 73 arbitrations and a total 225 first appeals. 16 From this available data, applicants chose arbitration in lieu of a first appeal 32 percent of the time ((73 ÷ 225) × 100 = approximately 32 percent).

Pursuant to 42 U.S.C. 5189(d)(5)(B), arbitration is authorized by the DRRA in lieu of a second appeal where the dispute is more $500,000, or $100,000 for rural areas. For second appeals estimates, FEMA looked at all PA appeals from 2010 through 2019, rather than just the appeals resulting from Hurricanes Katrina and Rita since a second appeal was available to all applicants. FEMA found that there were 874 second appeals submitted. 17 Of that total, FEMA had data on the amount in dispute for 751 appeals. FEMA applied the urban/rural and minimum project amount requirements to these appeals and found that 353 or 47 percent would have been eligible for arbitration under this final rule ((353 ÷ 751) × 100 = approximately 47 percent). 18

FEMA used the number of second appeals by year, then applied the percent eligible for arbitration under the final rule of 47 percent, then applied the percent choosing arbitration in lieu of a first appeal of 32 percent to calculate the expected number of arbitration cases from 2010 to 2019 as shown in Table 1.

Based on historical data from 2010 through 2019 and case data from 44 CFR 206.209, FEMA estimates that there would be an average of 13 arbitration cases in lieu of a second appeal per year under the final rule.

Arbitration has been available under 42 U.S.C. 5189a(d)(5) since January 1, 2016. So far, 20 cases were submitted, with three submitted for a first appeal lasting more than 180 days. Based on this limited data, FEMA estimates that 15 percent of arbitration cases would result from a withdrawal of a first appeal. 19 Applying the 15 percent arbitration rate to the annual average number of expected arbitration cases would result in two additional arbitration case per year (15 percent × 13 cases = 1.95, rounded to two cases). Therefore, FEMA estimates an average of 15 arbitration cases per year (13 + 2 = 15 arbitrations per year).

In this final rule, FEMA is removing the phrase “or an eligible applicant may arbitrate” from “206.206(b) and FEMA added a second sentence to 206.206(b) that says: “[a]n eligible applicant may request arbitration to dispute the eligibility for assistance or repayment of assistance” so that it follows the Stafford Act. This change in this final rule will not impact the number of arbitration cases per year since applicants can still request to arbitrate the case. However, the results of the arbitration may be impacted by the change in language. FEMA further discusses this point in our transfers and uncertainty analysis sections.

Based on experience from the arbitrations conducted for Hurricanes Katrina and Rita, costs from this final rule would arise mainly from travel expenses; opportunity costs of time for the applicant and applicant's representatives, recipient's representatives, and FEMA's representatives; and contract costs for applicants and FEMA to retain legal counsel and experts. Cost estimates are based on the expected number of arbitration cases per year. Since FEMA does not reimburse for applicant arbitration expenses, FEMA does not have data on the expenses incurred by applicants who have arbitrated from Hurricanes Katrina and Rita to serve as a proxy for this final rule. Other provisions of the final rule, such as timeframe requirements, electronic filing requirements, technical advice and clarifications would not have associated costs. FEMA does not expect the electronic filing requirement to have associated costs since nearly all applicants have access to internet and email, and most submit arbitration requests through their attorneys. The final timeframe requirements would align the submission deadlines for arbitration and appeals and would not place additional burdens on the applicants. FEMA currently provides technical advice as needed, so this would not be a new practice under this final rule.

The arbitration process is highly customizable for the applicant. The applicant may choose to use an attorney, or several attorneys to represent them during the arbitration process. The applicant may also choose not to hire legal representation at all. Additionally, the applicant may use any number of expert witnesses or none. Because of the variability in the way arbitrations are conducted, FEMA is presenting what it considers a typical case upon which to base its cost estimates. This “typical case” is based on recent experience with the 20 arbitration cases already filed. Generally, the applicant will use one or two attorneys and at least one expert witness. However, the arbitration process is extremely flexible, and an applicant can use whatever resources it thinks would be most appropriate for its case. For example, in one case, the applicant hired several non-local attorneys for representation. In another case, the arbitration was conducted via written reports only, and no hearing was conducted.

Costs to the CBCA are not discussed in this analysis. CBCA promulgated their own regulations regarding their procedures for FEMA arbitration cases. Under DRRA, CBCA will be responsible for covering the costs of conducting arbitration hearings. All other parties including the applicant, the recipient, and FEMA would be responsible for covering their own expenses. The final rule does not mandate any costs for the applicant or recipient. The arbitration process would be entirely voluntary on the part of the applicant. Applicants would choose to request arbitration if they determine that the cost of arbitration is justified by the potential benefits.

This analysis estimates a range of potential costs based on the applicant's or recipient's use of attorneys for representation. The final rule would not require attorneys to represent any party for arbitration. However, FEMA would be represented by attorneys at any arbitration hearing.

The costs to the applicant, recipient, and FEMA would be due to travel and opportunity cost of time and contract costs for legal counsel and experts. To estimate the opportunity cost of time, FEMA assumed that each case would take each party 46.5 hours (rounded to 47 hours) to prepare for the hearing, attend the hearing, and for post hearing work. 20 Hearings have historically lasted two working days, or 16 hours. 21 Additional time would be required for travel as is discussed later in this analysis. FEMA also assumes that each party would make use of expert witnesses in support of their case. Additionally, FEMA generally pays for a court reporter.

Regulations at 44 CFR 206.209 have a 30-day time limit for submitting arbitration requests; whereas, this final rule has a 60 calendar-day time limit for arbitrations. Since the 60 calendar-day appeals deadline is current FEMA policy there will be no additional costs for the regulatory text changes at § 206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) since it has already been accounted for.

A typical arbitration request requires the work of several people, including lawyers to represent the applicants, a court reporter to take a transcript of the hearing, and State, local, Tribal, or PNP managers who are responsible for compiling and submitting the original PA request. Applicants will also typically supply expert witnesses when making their case to the CBCA panel. FEMA used wage rates for General and Operations Managers to represent State, Tribal, local, and PNP managers. Many PA projects involve repair or replacement of buildings and infrastructure, so FEMA assumes that Engineers would be the most likely occupation used as expert witnesses.

FEMA used hourly wage rates from the Bureau of Labor Statistics Occupational Employment Statistics for the following occupations: $69.86 for Lawyers (SOC 23-1011), $31.25 for Court Reporters and Simultaneous Captioners (SOC 23-2093), $48.45 for Engineers (SOC 17-2000), and $59.15 for General and Operations Managers (SOC 11-1021). 22 To account for the benefits paid by employers, FEMA used a wage multiplier of 1.46, 23 resulting in fully-loaded hourly wages of $102.00 for Lawyers, $45.63 for Court Reporters and Simultaneous Captioners, $70.74 for Engineers, and $86.36 for General and Operations Managers.

FEMA used the 2019 hourly wage tables for the Washington-Baltimore-Arlington, DC-MD-VA-WV-PA  24 locality rate for FEMA employees participating in arbitration cases. Based on current FEMA practice, FEMA assumes that GS-13 employees would perform both legal and other services for an arbitration case and the work would be reviewed by a manager at the GS-15 level. The hourly GS-13 Step 5 salary was $53.85, and the hourly GS-15 step 5 salary was $74.86. In order to account for the benefits paid by employers, FEMA used a 1.46 multiplier to calculate loaded wage rates of $78.62 for a GS-13 Federal employee and $109.30 for a GS-15 Federal employee.

Arbitration cases are heard by a panel of judges of the CBCA, which is based in Washington, DC. The arbitration process is very customizable, so applicants can choose to have the hearings locally, where a CBCA judge would travel to their location, and FEMA would also send its representatives. Alternatively, cases could be heard at the CBCA, and the applicant would travel to Washington, DC, along with any lawyers and expert witnesses. Finally, the applicant could choose to have the CBCA review documents, and nobody would be required to travel. Because PA applicants are located throughout the U.S. and can be travelling from any location within the U.S., FEMA used average nationwide travel costs to estimate the travel costs for this rule.

The U.S. General Service Administration (GSA) provides guidance on travel policy, hotel rates, and meals and incidentals for Federal employees. FEMA used GSA data on hotel prices and per diem rates to estimate travel expense costs of attending a hearing in person. 25 Because data on travel expenses for non-Federal employees is not available, FEMA used the Federal lodging and per diem rates for applicants traveling to Washington, DC to attend hearings. According to GSA, in 2019, the average price of a hotel room in Washington, DC was $216 per night  26 and outside of the Washington, DC metro area was $94 per night. 27 The per diem rate for meals and incidentals on the first and last travel days  28 is $57 and $76 for other travel day(s) in Washington, DC. Similarly, the per diem rates for meals and incidentals on the first and last day is $41 and $55 for the other days outside of Washington, DC. 29

The U.S. Department of Transportation (DOT) provides information on the price of domestic airfare. 30 According to the Bureau of Transportation Statistics, the annual unadjusted cost of an average domestic flight within the United States, the average airfare was $355 roundtrip in 2019. 31 The total travel costs for applicants attending hearings in Washington, DC that typically last 3 nights and 4 days would be $1,269 per person ($355 average airfare + ($216 hotel in Washington, DC × 3 nights) + ($76 meals and incidentals × 2 days of stay) + ($57 meals and incidentals × 2 travel days)) = $1,269).

FEMA assumes that each party would make use of expert witnesses to support their case. The expert witnesses would be required to travel to the hearing at the expense of the party that hired them. Based on historical experience, preparing for the hearing is estimated to take 20 hours, the duration of the hearing is estimated to be 16 hours and the travel time is estimated at 11 hours for a total of 47 hours for a hearing in Washington, DC. Therefore, the opportunity costs of time for one expert witness to attend a hearing would be $3,325 ($70.74 engineers wages × 47 hours). Thus, the total cost for one expert witness' travel and opportunity cost of time is $4,594 ($1,269 + $3,325). Table 2 shows the detailed costs per expert witness to attend a hearing in Washington, DC. To provide a range of estimates since cases vary, a hearing at the applicant's location for an expert witness would cost $2,547 ($70.74 engineers wages × 36 hours  32 ). This total assumes the expert witness is local and therefore incurs no travel costs.

The typical total cost for the applicant includes travel expenses (round trip flight, three nights of lodging, and meals and incidentals) and opportunity costs of time for the applicant, the applicant's representatives, and the expert witnesses. The total travel expenses for the applicant and the representative would be $2,538 ($1,269 × 2 personnel = $2,538), if the hearing is held in Washington, DC. As previously discussed in this analysis, costs include 47 hours for hearing preparation, attending the hearing, and post hearing work, plus 11 hours of travel time for applicants and the applicant's representative. FEMA notes that an applicant can choose not to bring a representative or an applicant's representative could be one attorney or in some cases more than one attorney. To provide a range of costs, FEMA analyzes the typical case where one attorney or no attorneys are present. If the applicant's representative is an attorney, the opportunity costs of time would be $10,925 (($102.00 per hour wages for a lawyer × 58 hours) + ($86.36 per hour wages for a general and operations manager × 58 hours) = $10,925). If the applicant does not use an attorney as their representative, the opportunity costs of time would be $10,018 (2 general and operations managers at $86.36 each × 58 hours = $10,018). Table 3 shows the range of total costs to the applicant which include the opportunity costs of time and the travel costs.

The total cost to the applicant if they were to travel to Washington, DC for a hearing with a representative and two expert witnesses, ranges from $21,744 ((2 expert witnesses at a cost of $4,594 each) + $12,556 applicant cost) if the representatives are 2 non-attorneys to $22,651 ((2 expert witnesses at $4,594 each) + $13,463 applicant and attorney cost) if the representatives are 1 attorney and 1 non-attorney.

For a local hearing, the costs to the applicant would include 47 hours of opportunity costs of time for the applicant and representative (assuming the representative is local), and 36 hours of opportunity costs of time to attend the hearing for two expert witnesses (assuming the expert witnesses are local) and would range from $13,211 ((2 general and operations managers at $86.36 each × 47 hours) + (2 expert witnesses at $70.74 each × 36 hours) = $13,211) to $13,946 (($86.36 for a general and operations manager × 47 hours) + ($102.00 for an attorney × 47 hours) + (2 expert witnesses at $70.74 each × 36 hours) = $13,946) depending on who the recipient uses as a representative. Table 4 shows the range of total costs for an applicant for hearings held at the applicant's location.

The recipient would not present information in the arbitration case but would send one or more representatives in a supporting role for the applicant. The cost per arbitration case for the recipient is the opportunity costs of time for the representatives totaling $10,018 (2 general and operations managers at $86.36 each × 58 hours = $10,018) and travel expenses $2,538 (2 representatives × $1,269) of those attending the hearing in Washington, DC. As shown in table 5, the total cost to the recipient would be $12,556 if the hearing was held in Washington, DC.

For a local hearing, two representatives would spend 47 hours on the case and the cost to the recipient would be $8,118 (2 general and operations managers at $86.36 each × 47 hours = $8,118).

FEMA would require two attorneys for a typical arbitration case, a GS-13 step 5 attorney and a GS-15 step 5 supervisory attorney, to review and to prepare a response to the request for arbitration. Based on historical experience, the two attorneys' total time from preparation to post hearing is 47 hours. 33 The opportunity costs of time of the attorneys, including preparation and review of a case, is $8,832 (($78.62 GS-13 Step 5 attorney × 47 hours) + ($109.30 GS 15 Step 5 Supervisory Attorney × 47) hours = $8,832).

Based on historical experience, FEMA would also require four non-attorneys ( e.g., GS-13 Step 5 program analysts) to support the arbitration case only for the duration of the hearing. The opportunity costs of time associated with the program analysts would be $5,032 (4 GS-13 Step 5 program analysts at $78.62 each × 16 hours = $5,032). Thus, the total opportunity costs of time for all six FEMA personnel would be $13,864. FEMA would also call their own expert witnesses to attend the hearing. Based on historical experience, FEMA assumes that it would use four expert witnesses per case  34 for a total of $10,188 ($2,547 cost per expert witness × 4 expert witnesses = $10,188). The expert witnesses provide testimony on a range of subjects, for example soil degradation or building construction.

Arbitration hearings do not require transcription services. However, FEMA has historically hired a court reporter for hearings and provided the transcript to the CBCA for their records. FEMA will continue to pay for a court reporter for the duration of a hearing under the final rule, but will not provide a transcript to the CBCA. The opportunity costs of time for the court reporter services for a transcript would be $730 per arbitration case ($45.63 per hour wages for Court Reporters and Simultaneous Captioners × 16 hours of arbitration time = $730).

The estimated total cost to FEMA, including staff time, expert witnesses, and transcript services, would be $24,782 per case. Table 6 presents the cost of each component by opportunity cost of time and other costs.

Why we need to publish a rule. Under the Act, a species may be removed from the Federal List of Endangered and Threatened Plants (List) (“delisted”) if it is determined that the species has recovered and no longer meets the definition of an endangered or threatened species. Removing a species from the List can only be completed by issuing a rule.

What this document does. This rule delists Cumberland sandwort from the Federal List of Endangered and Threatened Plants based on the species' recovery.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We must consider these same factors in delisting a species.

We have determined that Cumberland sandwort is not in danger of extinction now nor likely to become so in the foreseeable future based on a comprehensive review of its status and listing factors. Specifically, our recent review indicated: (1) An increase in the known number of occurrences of the species within its geographically restricted range, and increased abundance in some occurrences; (2) resiliency to existing and potential threats; (3) the protection of 66 extant occurrences located on Federal and State conservation lands by regulations or management plans to prevent habitat destruction or removal of plants; and (4) the implementation of beneficial management practices. Accordingly, Cumberland sandwort no longer meets the definition of an endangered or threatened species under the Act.

Peer review and public comment. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought peer review of our April 27, 2020, proposed rule to delist the species (85 FR 23302). The Service sent the proposed rule to five independent peer reviewers and received three responses. The purpose of peer review is to ensure that our determination is based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in the biology, habitat, and threats to the species.

On April 27, 2020, we published in the Federal Register (85 FR 23302) a proposed rule to remove Cumberland sandwort from the Federal List of Endangered and Threatened Plants ( i.e., to delist the species). Please refer to that proposed rule for a detailed description of previous Federal actions concerning this species. The proposed rule and supplemental documents are provided at http://www.regulations.gov under Docket No. FWS-R4-ES-2019-0080.

We made no substantive changes to the proposed rule in this final rule. We made minor editorial changes in this rule in response to comments we received on the proposed rule.

In our April 27, 2020, proposed rule to delist Cumberland sandwort (85 FR 23302), we requested that all interested parties submit written comments on the proposed delisting and our draft post-delisting monitoring (PDM) plan by June 26, 2020. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposed delisting and draft PDM plan. A newspaper notice inviting general public comments was published in the Fentress Courier (major local newspaper) and also announced using online and social media sources. We received one substantive comment from the public, which is discussed below under (1) Comment, and no requests for a public hearing.

In addition, we reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the proposed delisting rule and PDM plan for Cumberland sandwort. The peer reviewers generally concurred with our methods and conclusions, and they provided additional information, clarifications, and suggestions to improve the final delisting rule. Peer reviewer comments are summarized below under (2) Comment through (4) Comment, and incorporated into this final rule as appropriate.

(1) Comment: One commenter expressed concern that the unique habitat of the species would be less protected if the species were delisted.

Our response: Cumberland sandwort habitats on both State and Federal conservation lands will remain protected by rules, regulations, or plans governing the establishment or management of those lands. The species is also still State-protected where it occurs. At this time, Cumberland sandwort meets the standard for delisting under the Act: It no longer meets the Act's definitions of an “endangered species” or a “threatened species.” We will continue to work with recovery partners to maintain the species' recovered state and conduct post-delisting monitoring, as well.

(2) Comment: One peer reviewer requested clarification concerning whether abundance estimates, in addition to hand drawn maps and the numbers of patches depicted on the maps, were used in determining population resiliency indices and evaluating population trends. The reviewer also asked how estimates of abundance were determined.

Our response: We explain below under Framework for Monitoring and Evaluating Trends that we used visual estimates of abundance or discrete counts of individuals, where available, to supplement data provided on hand drawn maps when determining population resiliency indices and evaluating population trends.

(3) Comment: One peer reviewer informed us that data on global forest loss ( https://earthenginepartners.appspot.com/science-2013-global-forest ) were available to use in quantifying forest loss in portions of the watersheds where Cumberland sandwort is found.

Our response: We used the data available at the reference provided by the peer reviewer to provide an objective basis for evaluating whether we correctly identified evidence of logging activity in forests near Cumberland sandwort occurrences. Based on this evaluation, we correctly identified locations where logging activities had taken place in the vicinity of Cumberland sandwort occurrences when preparing the April 27, 2020, proposed rule to delist Cumberland sandwort (85 FR 23302).

(4) Comment: One peer reviewer asked whether disturbance from recreational use was likely to increase in proportion to human population growth and increased participation in outdoor activities. The reviewer also asked how Cumberland sandwort population trends in sites where management had occurred to reduce the threat of inadvertent trampling by recreationists compared to population trends in unmanaged sites where the threat of trampling existed.

Our response: We address this comment below under Habitat Loss and Curtailment of Range where we discuss the lack of a clear trend in available data regarding visitation rates to lands where Cumberland sandwort occurs. We also added a discussion comparing population trends in sites where protective measures have been installed to reduce the threat of trampling to trends that have been observed in other sites where the risk of trampling has been previously recorded but no protective measures have been installed.

Below, we present a thorough review of the taxonomy, life history, ecology, and overall status of this plant, referencing data from the 2013 5-year review (Service 2013) where appropriate.

Cumberland sandwort ( Arenaria cumberlandensis ), a member of the Pink family (Caryophyllaceae), was first recognized and described as a species in 1979 (Wofford and Kral 1979, entire). This species, along with several other species of Arenaria, was transferred to the genus Minuartia while retaining the specific epithet (McNeill 1980, entire). The species is listed as Minuartia cumberlandensis (Wofford and Kral) McNeill in A Fifth Checklist of Tennessee Vascular Plants (Chester et al. 2009, p. 43), the Integrated Taxonomic Information System (ITIS) (2019), and Flora of North America (2019). However, an examination of the taxonomy of Minuartia using DNA sequences determined that all species in Minuartia section Uninerviae should be elevated to genus Mononeuria, along with Geocarpon minimum (Dillenberger and Kadereit 2014, p. 79). The Flora of the Southern and Mid-Atlantic States accepted this recommendation, assigning the name Mononeuria cumberlandensis (B.E. Wofford & Kral) Dillenberger & Kadereit to Cumberland sandwort (Weakley 2015, p. 820). Although changes have been made to the species' taxonomy since the time of listing, we are removing the species from the List of Endangered and Threatened Plants using the name by which it was initially listed, Arenaria cumberlandensis (= Mononeuria cumberlandensis ).

The following description of Cumberland sandwort is modified from Wofford and Kral (1979, pp. 257-259) and Kral (1983, pp. 363-364). This species is a delicate perennial that occurs in small cushionlike clumps, with upright stems 10 to 15 centimeters (cm) (4 to 6 inches (in)) tall that are slender and triangular in shape. Leaves are opposite, 2 to 3 cm (0.8 to 1.2 in) long and 1 to 3 millimeters (mm) (0.04 to 0.12 in) wide, and are thin and bright green in color, with glassy margins. Basal leaves are longer and wider than those at the top of the stems. The flowers are symmetrical, five-parted, and usually solitary at the end of the stems. The sepals (a part of the flower that provides protection for the flower in bud and sometimes provides support for petals when in bloom) are green and inconspicuously three-veined, and the white petals usually have five green veins. The fruit is a 3- to 3.5-mm-long (0.12- to 0.14-in) ovoid capsule containing numerous reddish-brown reticulated (having the form or appearance of a net) seeds that are 0.5 to 0.7 mm (0.02 to 0.03 in) long.

The mild conditions of the sheltered habitat where Cumberland sandwort occurs allow rosettes (circular arrangement of leaves) to persist through winter and produce abundant, leafy stems in the spring (Winder 2004, p. 5). The species flowers from May through August, with some flowers persisting as late as November (Wofford and Kral 1979, p. 259; Winder 2004, p. 5).

Cumberland sandwort inhabits fine-grained, sandy soils that comprise the floors of the interior of “rockhouses” (cave-like recesses produced by differential weathering of sandstone). These habitats are typically behind the dripline of overlying cliffs, ledges, and solution pockets of cliffs, where these features are found in Pennsylvanian sandstones on the Cumberland Plateau in southern Kentucky and northern Tennessee (Horton 2017, entire). The species occupies sites that generally share characteristics of high levels of shade, moisture, and humidity, and relatively constant, cool temperatures (Wofford and Smith 1980, p. 7), although some smaller occurrences occupy drier and warmer sites. Few other species are directly associated with Cumberland sandwort microsites, but the following species are important indicators that suitable habitat conditions are present within a given rockhouse or bluff site: Silene rotundifolia (round-leaved catchfly); Thalictrum clavatum (mountain meadow-rue); Heuchera parviflora (little-flowered alumroot); Ageratina luciae-brauniae (Lucy Braun's snakeroot); Stenanthium diffusum (diffuse feather-bells); and the bryophytes Vittaria appalachiana (Appalachian shoestring fern), Bryoxiphium norvegicum (Norway bryoxiphium moss), and Scopelophila cataractae (cataract scopelophila moss) (Tennessee Department of Environment and Conservation (TDEC) 2011b, p. 5).

When Cumberland sandwort was listed as endangered (53 FR 23745; June 23, 1988), the species was known from 11 occurrences (Wofford and Smith 1980, pp. 9-18), which were treated as 5 populations. Of these occurrences, 1 was in McCreary County, Kentucky, and 10 were distributed among four Tennessee counties (Fentress, Morgan, Pickett, and Scott). The species recovery plan (Service 1996, pp. 6-8) reported that 28 occurrences were extant (including the 11 from the June 23, 1988, listing rule), 27 of which were partly or entirely located on publicly owned conservation lands. One of these 28 occurrences was in McCreary County, Kentucky, and the remaining 27 were distributed among the four Tennessee counties reported in the listing rule. All occurrences reported in the listing rule and species recovery plan were located in the South Fork Cumberland River drainage. Of these 28 occurrences, all but 3 were extant as of 2017 (TNHID 2018).

As explained below, documentation to verify past or present existence is lacking for two of the three occurrences we did not determine to be extant as of 2017, raising questions regarding their validity. The “Middle Creek 2” occurrence reported in the recovery plan was apparently based on an observation reported by a National Park Service (NPS) archaeologist, but staff of the TDEC Division of Natural Areas (TDNA) were unable to confirm the presence of Cumberland sandwort at the mapped location, which they attribute to a mapping error when the occurrence was reported. The Morgan County, Tennessee, occurrence reported in the recovery plan, with only the site name “Sunbright” given for location information, also cannot be verified. No citation was provided in the recovery plan for this record, and no record existed for this site in the Tennessee Natural Heritage Inventory Database (TNHID) (2018), maintained by the Natural Heritage Program at TDNA. A search of herbarium records for Cumberland sandwort from Morgan County, Tennessee, produced no specimens from the vicinity of Sunbright (SERNEC Data Portal 2018). However, a new extant occurrence record was documented in TNHID for Scott County, based on the label for a specimen collected in 2002 from a site not previously known to be occupied by Cumberland sandwort.

The Big Branch occurrence reported in the recovery plan was not recorded in the TNHID (2018), so no attempts have been made to relocate this occurrence. Staff from NPS reported the occurrence in comments provided after reviewing the draft recovery plan (NPS 1995). We provided information to TDNA on the Big Branch occurrence reported by NPS, and there is now a historical record for this occurrence in the TNHID.

In order to evaluate the current status of Cumberland sandwort, we used data from Natural Heritage Programs in Kentucky (KNHP 2018) and Tennessee (TNHID 2018) to determine the location and condition of mapped element occurrences. An element occurrence (E.O.) is a fundamental unit of information in the NatureServe Natural Heritage methodology, and is defined as “an area of land and/or water in which a species . . . is, or was present” (NatureServe 2004). There were 64 extant occurrences of Cumberland sandwort reported in the 2013 5-year review. As of 2018, there were 71 extant occurrences, distributed among the five counties where the species was reported to be extant when the recovery plan was published: 1 in McCreary County, Kentucky (Kentucky Natural Heritage Program (KNHP) 2018); 1 in Morgan County, 26 in Fentress County, 38 in Pickett County, and 5 in Scott County, Tennessee (TNHID 2018). Of these occurrences, 12 occur within the Obey River drainage in Tennessee; 11 of these occurrences have been discovered since 2005 on recently acquired, State-owned conservation lands, and 1 on privately owned lands in 2016. The remaining 59 occurrences lie within the South Fork Cumberland River drainage, and all but 1 of these occurrences is in Tennessee. Four of the occurrences in the South Fork Cumberland River drainage are located on privately owned lands in Tennessee; the remainder are located on State or Federal conservation lands. In addition to these 71 natural occurrences of Cumberland sandwort, one introduced occurrence has been established in McCreary County, Kentucky, on the Daniel Boone National Forest (DBNF) (Pence et al. 2011, entire).

In a study of populations in Tennessee, Cumberland sandwort was found to possess “fairly high” levels of genetic variation (Winder 2004, pp. 16-19). Observed levels of heterozygosity were consistent with expected effects of frequent mating among closely related individuals, or inbreeding (Winder 2004, p. 19), a common phenomenon in small populations due to the greater likelihood that most or all individuals in the population will be closely related (Allendorf and Luikart 2007, p. 306). Greater genetic similarity was found among populations within about 4 kilometers (km) (2.5 miles (mi)) of one another, but a wide range of values were observed at distances of 4 to 25 kilometers (2.5 to 15.5 mi), beyond which populations were consistently dissimilar (Winder 2004, p. 27). Thus, Cumberland sandwort populations generally are genetically independent of one another and have been for a significant period of time, with possible exceptions where gene flow could occur among densely clustered populations in close geographic proximity to one another (Winder 2004, p. 28). The majority of the genetic variation found in the species is retained within a central cluster of populations located in Pickett County, Tennessee, and in Laurel Fork (Fentress County), Tennessee (Winder 2004, p. 37). The genetic structure of the sole Kentucky population and its relation to sites sampled in Tennessee are unknown.

The TDEC Natural Heritage Program began monitoring Cumberland sandwort in Tennessee during 2000, visually estimating abundance in 34 sites as part of a project to conduct surveys for new locations and update records for previously known occurrences of the species (TDEC 2000, entire). The number of occurrences monitored has increased to 55, and TDEC has categorized sites into three tiers of differing priority, with the highest priority sites ( i.e., Tier 1) being the most frequently monitored (TDEC 2007, p. 5):

• Tier 1 sites have a history of site disturbance related to recreational use or illicit digging of Native American artifacts.

• Tier 2 sites face fewer immediate threats in the less frequently visited sites they occupy.

• Tier 3 sites faced no imminent threats at the time of categorization.

Designating tiers provides for more frequent monitoring of sites with a greater likelihood of being adversely affected by known threats that could warrant management intervention. Tier 1 sites are monitored every 1 to 3 years, Tier 2 sites every 3 to 6 years, and Tier 3 sites every 6 to 10 years (TDEC 2007, p. 5). In addition to monitoring during 2000 and 2006 (before the tier system was developed), TDEC monitored Tier 1 sites during 2010 and 2011 (TDEC 2011a, entire), 2014 (TDEC 2014, entire), and 2017 (TDEC unpublished data). Tier 2 sites were monitored during 2011 through 2012 (TDEC 2012, entire), and Tier 3 sites were monitored during 2016 and 2017 (TDEC unpublished data).

The Service receives monitoring data in the form of written reports and occurrence-level summary data provided in the TNHID (2018). We used these summary data to determine which sites in each tier had been monitored in 2 or more years, making it possible to assess whether Cumberland sandwort had declined, remained stable, or increased either in estimated abundance or area occupied. Available abundance data were typically produced by visually estimating numbers of plants, although precise count data were available in some instances. Based on data provided in the TNHID, 18 occurrences are in Tier 1, 24 in Tier 2, and 13 in Tier 3 for which such data were available. Tier 1 occurrences have been monitored an average of 4.7 times, with time between initial and the most recent monitoring events averaging 15.8 years. Tier 2 occurrences have been monitored an average of 2.4 times over an average timespan of 8.4 years. Tier 3 occurrences have been monitored an average of 2.4 times over an average timespan of 12.1 years. Fifteen occurrences in Tennessee have been monitored only once or have not, as yet, been assigned to a monitoring tier.

After reviewing all available monitoring data, TDEC assessed whether individual occurrences had declined, remained stable, or increased over the time that they have been monitored (McCoy 2018, pers. comm.). However, statistical trend analysis of Cumberland sandwort monitoring data from Tennessee is not feasible for two reasons: first, estimates of abundance generated in 2000 and in later monitoring events lack adequate precision for statistically analyzing change in abundance over time, and second, visual estimates of area occupied by the species can introduce potential for observer bias because these areas are not precisely measured. However, the preparation of hand-drawn maps by TDEC botanists, beginning with the initial monitoring effort in 2000, allows tracking persistence and stability of individual patches within occupied sites and detecting substantial changes in their estimated size. Maps are also updated to depict new patches that might form due to recruitment of individuals in previously unoccupied habitat. Estimates of abundance, where available, provided supplemental data for qualitatively evaluating trends within mapped patches of habitat. Based on the best available data, of the 18 Tier 1 occurrences, 2 demonstrate evidence of decline, 13 are stable, and 3 have increased. Of the 24 Tier 2 occurrences that have been monitored on two or more occasions, 5 demonstrate evidence of decline, 18 are stable, and 1 has increased. Of the 13 Tier 3 occurrences, 2 have declined, 10 are stable, and 1 has increased (McCoy 2018, pers. comm.).

Section 4(f) of the Act (16 U.S.C. 1531 et seq. ) directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the list.

Recovery plans provide a roadmap for us and our partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery and assess the species' likely future condition. However, they are not regulatory documents and do not substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species, or to delist a species is ultimately based on an analysis of the best scientific and commercial data available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.

There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more criteria may have been exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and that the species is robust enough that it no longer meets the definition of an endangered species or a threatened species. In other cases, we may discover new recovery opportunities after having finalized the recovery plan. Parties seeking to conserve the species may use these opportunities instead of methods identified in the recovery plan. Likewise, we may learn new information about the species after we finalize the recovery plan. The new information may change the extent to which existing criteria are appropriate for identifying recovery of the species. The recovery of a species is a dynamic process requiring adaptive management that may, or may not, follow all of the guidance provided in a recovery plan.

The Cumberland Sandwort Recovery Plan (Service 1996, pp. iv, 10) included recovery criteria to indicate when threats to the species have been adequately addressed and prescribed actions that were thought to be necessary for achieving those criteria. Below we discuss our analysis of available data and our determination as to whether recovery criteria for Cumberland sandwort have been achieved.

The objective of the recovery plan is to delist the Cumberland sandwort. Recovery criteria in the plan state that Arenaria cumberlandensis (Cumberland sandwort) will be considered for reclassification from endangered to threatened status when 30 geographically distinct, self-sustaining occurrences are protected in four counties in Tennessee and Kentucky and have maintained stable or increasing numbers for 5 consecutive years. The species will be considered for delisting when 40 geographically distinct, self-sustaining occurrences are protected and have maintained statistically stable or increasing numbers for 5 consecutive years. At least 12 of these occurrences must be in counties other than Pickett County, Tennessee.

Methods were chosen for monitoring that minimize trampling of Cumberland sandwort and disturbance of the sandy soil substrate the species occupies. The tradeoff of using this method to minimize disturbance is the inability to statistically analyze trends for individual occurrences or Cumberland sandwort as a species. To address this limitation, we developed a framework for using available distribution and monitoring data, aerial photography, and qualitative assessment of trends for each occurrence to evaluate whether recovery criteria for Cumberland sandwort have been achieved.

Using this framework, we assessed the species' viability based on the three conservation biology principles of resiliency, representation, and redundancy (Shaffer and Stein 2000, entire). Resiliency is the ability to sustain populations in the face of environmental variation and transient perturbations. To be resilient, a species must have healthy populations that are able to sustain themselves through the range of possible environmental conditions. The greater the number of healthier populations, the more resiliency a species possesses. Representation is the range of variation or adaptive diversity found in a species, and is the source of a species' ability to adapt to near- and long-term changes in the environment. Maintaining adaptive diversity requires conserving both ecological and genetic diversity, which enable a species to be more responsive and adaptive to change and, therefore, more viable. Finally, redundancy protects species against the unpredictable and highly consequential events for which adaptation is unlikely, allowing them to withstand catastrophic events. Redundancy spreads risk and is best achieved by having multiple populations widely distributed across a species' range.

We characterized the resiliency of 69 of the 71 extant Cumberland sandwort occurrences using available data on three factors (complete data were not available for two of the extant occurrences): Occurrence size expressed as estimated abundance or areal coverage, recorded observations of threats causing disturbance to plants or the substrates in which they were rooted, and assessment of general forest conditions from recorded observations or evaluation of aerial photography, for the reasons that follow. Occurrence size influences resiliency because smaller populations are at greater risk of (1) losing genetic variation due to drift (change in the frequency of alleles in a population due to random, stochastic events), and (2) inbreeding, which decreases the likelihood that an individual will receive pollen from a compatible mate and produce viable offspring (Allendorf and Luikart 2007, pp. 122-123). Small populations also may face higher risks of extinction due to diminished resilience to demographic and environmental stochasticity (Münzbergová 2006, p. 143). Demographic stochasticity is the variation in vital rates ( i.e., probabilities of survival and reproduction) among individuals of a given age or life-cycle stage, at a given point in time, while environmental stochasticity is variation in vital rates over time, affecting all individuals of a given age or stage similarly (Lande 1988, p. 1457). Incorporating available data regarding disturbance to Cumberland sandwort plants or the substrates where they occur into the resiliency assessment serves as a proxy indicating whether physical conditions are appropriate to support multiple life stages. Undisturbed substrates contribute to Cumberland sandwort resiliency by providing suitable sites for germination, growth, and reproduction to occur. Similarly, evaluating forest condition in the vicinity of Cumberland sandwort occurrences is a proxy indicating whether ecological conditions are likely to support resilience to environmental variation. The presence of contiguous forest vegetation in the vicinity of Cumberland sandwort occurrences helps to maintain suitable hydrology and microclimate, potentially buffering severity of stress resulting from environmental perturbations, such as drought. We evaluated representation by considering the distribution of resilient occurrences among the counties and watersheds from which the species is known. Finally, we evaluated redundancy based on the overall number of resilient occurrences distributed throughout its range.

In evaluating resiliency, we used estimates of abundance, where available, combined with estimates of areal coverage to provide a basis for categorizing occurrences into groups of low, medium, or high abundance. Occurrences with fewer than 100 individuals (Heschel and Page 1995, pp. 128-131; Münzbergová 2006, p. 148) or with areal coverage less than 1 square meter (m 2 ) were ranked “low”; occurrences with 100-1,000 individuals or with areal coverage ranging from 1 to 5 m 2 were ranked “medium”; and occurrences with more than 1,000 individuals or areal coverage greater than 5 m 2 were ranked “high.” We ranked substrate conditions at each occurrence based on recorded observations of threats (TDEC 2011b, pp. 37-44). Substrate conditions were ranked “high” for sites with no record of disturbance; “medium” for sites with moderate risk of exposure to the threat based on limited historical evidence of digging for archeological artifacts ( i.e., relic digging) or trampling by humans or wildlife in limited areas within available habitat; and “low” for sites with high risk of exposure as indicated by recent evidence of relic digging or trampling throughout available habitat. We used aerial imagery available through Google Earth Pro TM to determine whether forests in the general vicinity of Cumberland sandwort occurrences exhibited signs of timber harvest, as indicated by substantially reduced tree densities; presence of logging equipment trails; or conversion to nonnative, evergreen forest types. We used available data on global forest loss to provide an objective basis for confirming our determination of locations where timber harvest was suspected to have taken place (Hansen et al. 2013, entire). Forest conditions were ranked “high” in locations where late seral forest was present upslope and downslope of occupied sites and in adjacent areas; “medium” in locations where risk of exposure to the threat was moderate based on evidence of logging having occurred within the prior 15 years in the vicinity of, but not immediately upslope, downslope, or adjacent to, occurrences; and “low” in sites where risk of exposure was high based on evidence of logging within the prior 15 years in the forest immediately surrounding the occupied habitat.

Of the 69 occurrences that we could evaluate for all three resiliency factors, 12 were ranked as low in abundance, 27 ranked medium, and 30 ranked high. Substrate conditions ranked low at 12, medium at 25, and high at 32 occurrences. We were able to evaluate forest conditions at all 71 extant occurrences, with the following results: 8 occurrences ranked low, 3 ranked medium, and 60 ranked high.

Using the ranks for the three resiliency factors (abundance, substrate condition, and forest condition), we calculated an overall resiliency index for 68 of the 70 Tennessee occurrences (see Table 1, below) and the sole Kentucky occurrence. We assigned numerical scores of one for factor ranks of “low,” two for “medium” ranks, and three for “high” ranks. Using these scores, we calculated a weighted average, wherein factor ranks for abundance were given twice the weight of factor ranks for substrate and forest condition, due to the importance of population size in maintaining genetic variation and determining resilience to demographic and environmental stochasticity (Sgrò et al. 2011, p. 329). The resulting resiliency index for an occurrence ranges from one to three and is categorized as follows:

• Low rank for scores of 1.5 or less;

• Low-medium rank for scores greater than 1.5 and less than 2.0;

• Medium rank for scores greater than 2.0 and less than 2.5;

• Medium-high rank for scores greater than 2.5 and less than 3.0;

• High rank for scores of 3.0.

Available data for the Kentucky occurrence indicate that the species abundance rank is medium at that location and that the occurrence is not exposed to threats from trampling or relic digging. This location, in Big South Fork National Scenic River and Recreation Area (BSF), is protected from timber harvesting, and available data indicate that surrounding forests are undisturbed. These factors produced an overall resiliency rank of medium for this occurrence.

In Tennessee, 56 occurrences had overall resiliency ranks of medium or higher. Table 1 shows the resiliency ranks for 68 of the 70 Tennessee occurrences. All of the stable and increasing trends in the medium, medium-high, and high resiliency ranks represent counts of occurrences considered self-sustaining, as required by recovery criteria.

For the purpose of evaluating Cumberland sandwort's status with respect to recovery criteria, we define self-sustaining to include those populations that had an overall resiliency index rank of medium or higher and that TDEC determined were stable or increasing (see Table 1, above) based on available monitoring data, as described above in Species Information. For the Kentucky occurrence, available data indicate that the occurrence is stable. We consider 66 occurrences on Federal or State conservation lands (see Table 2, below), as well as 2 occurrences located on private lands where land use is restricted by conservation easements, to be protected. Using these definitions, 42 protected occurrences (including the 1 in Kentucky) are self-sustaining (Table 1, above, presents data for Tennessee). These occurrences have been known to exist for an average of 21 years, with a range of 7 to 44 years spanning the first and most recent observations recorded for the species in these sites. These data support the conclusion that one criterion for removing Cumberland sandwort from the List has been exceeded, i.e., that there be at least 40 geographically distinct, protected, and self-sustaining occurrences that have been stable or increasing for at least 5 years.