RBCS published a final rule with request for comments in the Federal Register on May 14, 2021, at 86 FR 26348. The final rule modified the interim rule with comment published in the Federal Register on May 28, 2010 (75 FR 30114), as amended by the correcting amendments published in the Federal Register on July 19, 2010 (75 FR 41695), and incorporated amendments to the Consolidated Farm and Rural Development Act (ConAct) made by the Agriculture Improvement Act of 2018 (2018 Farm Bill). The Agency implemented other changes to make the Rural Microentrepreneur Assistance Program (RMAP) run more efficiently, be more user-friendly and be more consistent with other RBCS programs.

Within the preamble to the final rule, the Agency addressed each of the 29 public comments that were received on the interim rule. RBCS carefully reviewed each of the comments and modified the regulation based on analysis of the responsive comments received as well as program delivery experience. The final rule allowed the Agency to: (a) Implement changes required by the 2018 Farm Bill, (b) address comments received after publication of the interim rule, and (c) implement the final regulation.

Due to the length of time that transpired between the publication of the interim rule and the final rule, the Agency invited comments from the public on the provisions outlined in the final rule. The comment period on the final rule closed July 13, 2021. Comments were received from four respondents. The comments provided and Agency responses are as follows:

Comment: “All the mandatory grants should be funded at the authorized 25 percent of the loan balances. We support this change. It can be difficult for financial intermediaries to secure adequate funding for technical assistance programs. This is a concern for any potential MDO that may consider utilizing the RMAP program for the first time. The adjustment recorded here will help minimize a clear disincentive by making it easier for a new entrant to manage necessary costs.”

Agency Response: The Agency agrees and the regulation at § 4280.313(a) was modified to allow for microlenders to receive up to 25 percent of their new loan amount as a technical assistance grant. Previously, this was limited to 25 percent of the first $400,000, then 5 percent of any amount above $400,000. The 2018 Farm Bill amended Section 379E of the Consolidated Farm and Rural Development Act (Contact) to require that annual grant amounts to Microenterprise Development Organizations (MDOs) be in an amount equal to not less than 20 percent and not more than 25 percent of the total outstanding balance of microloans made by MDOs. The Agency clarified the annual grant process at § 4280.313(a)(1) to enact this change. The previous regulation did not have a minimum threshold percentage for the replenishment of an MDO's technical assistance funds.

Comment: “USDA should relinquish its first lien position on all funds in the Rural Microentrepreneur revolving fund except those derived from the Rural Microenterprise loan itself. We recommend that USDA implement a process by which MDOs can request a drawdown of accumulated interest earnings within the Rural Microentrepreneur Revolving Fund (RMRF). The collateral provided to USDA by the cash in the RMRF, the loans outstanding, and the cash in the Loan Loss Reserve Fund (LLRF), should be adequate to protect USDA from losses. MDOs typically use the interest earnings from microloans to help cover costs of operating programs. Because USDA maintains a first lien position on all assets in the RMRF and does not provide a process by which MDOs can request a drawdown of accumulated earnings, MDOs are unable to use earnings from RMAP loans to help cover operating costs. This may dissuade some MDOs from utilizing the RMAP program, and we have heard at least one MDO identify this as the reason they left the program.”

Agency Response: The Agency disagrees with the release of its lien position in the revolving loan funds. The accounts serve as collateral for the Agency loan to the MDO, which is a debt obligation of the MDO and protects the Agency in cases of default by the MDO. The Agency disagrees with the commenter that MDOs are unable to use earnings from RMAP loans to help cover costs of operating programs. MDOs may use interest and fee earnings to make principal and interest payments to the Agency loan and to help cover operating costs in accordance with their annual operating budget. In addition, the Agency does permit the use of up to 10 percent of their technical assistance grant funds for administrative expenses from which they can operate their RMAP and other programs.

Comment: “The current methodology of calculating the annual MDO grant based on the amount of outstanding loan balances is inadequate. We recommend an adjustment to the methodology used to calculate the annual technical assistance grants to MDOs. At current, USDA calculates the technical assistance grant for the following fiscal year on June 30 of the prior fiscal year. USDA then subtracts the unspent balance from the prior year award from the new award. USDA is making this calculation 9 months into a 12-month grant contract. An MDO seeking to use their technical assistance award to support staff to provide continuous technical assistance to clients over a 12-month period receives a penalty for having 3 months of funds remaining when there are 3 months remaining in the contract. We recommend that USDA instead calculate the grant based on the loans outstanding on June 30 without regard for funds remaining in the prior year grant. USDA already requires grant spending to take place within the 12-month contract period, so there is no need to calculate the remaining balance at the end of 9 months from the grant for the following year.”

Agency Response: The Agency has a consistent process for the calculation of an MDO annual grant with its annual June 30 calculation date. An MDO can use their grant funds in each month of the year, thus the 9-month comment for use of the funds is not relevant. The annual grant award calculation must include the amount of any unused/remaining technical assistance funds from prior years to ensure that the total amount of awarded and available grant funds to an MDO does not exceed the 25 percent maximum amount.

Comment: “§ 4280.313(a)(1). We support this change. Technical assistance needs are ongoing. According to the Aspen Institute, the business owners who participate in technical assistance and training have higher rates of business survival, revenue growth, and employment growth than those who do not. Of the new business owners who receive technical assistance, 84 percent will still be operating their business five years later. The median revenue of these businesses will grow by 60 percent. Our ability to make ongoing technical assistance available can be the difference between business failure and success.”

Agency Response: Thank you for the comment.

Comment: “Rural Microentrepreneur Assistance Program—Seeking clarification on eligibility of microbusiness as it relates to location. Rural areas are growing and microbusinesses are expanding. Please provide feedback on the following scenarios. 1. Owners of business live in a rural area and business in located in an urban area. 2. Business has a location in an urban area and is expanding to a rural area and owners live in an urban area. Is there language to clarify eligibility?”

Agency Response: The eligible rural area determination is made by where the project is located and where the RMAP funds will be used. Businesses located in an urbanized area are not eligible to receive funding from this Rural Development program. A business located in an urbanized area that is expanding to a rural area may use RMAP funds only for the project and expenses in the rural area location. The location of the business owner has no impact on the project eligibility.

The Agency did not receive any significant adverse comments during the public comment period on the final rule, and therefore confirms the rule without change.

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register .

The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

The FAA will consider all comments received by the closing date for comments. The FAA may change these special conditions based on the comments received.

On September 30, 2018, Boeing applied for an amendment to Type Certificate No. T00001SE to include the new Model 777-9 series airplane. The Boeing Model 777-9 airplane, which is a derivative of the Boeing Model 777 airplane currently approved under Type Certificate No. T00001SE, is a twin-engine, transport-category airplane with seating for 495 passengers, and a maximum takeoff weight of 775,000 lbs.

Under the provisions of title 14, Code of Federal Regulations (14 CFR), § 21.101, Boeing must show that the Model 777-9 series airplane meets the applicable provisions of the regulations listed in Type Certificate No. T00001SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777-9 series airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-9 series airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

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

The Boeing Model 777-9 series airplane will incorporate the following novel or unusual design feature:

Electrical and electronic systems that perform critical functions, the loss of which may result in loss of flight controls and other critical systems and may be catastrophic to the airplane.

The Boeing Model 777-9 series airplane has a fly-by-wire flight control system that requires a continuous source of electrical power in order to maintain an operable flight control system. Section 25.1351(d), Operation without normal electrical power, requires safe operation in visual flight rule (VFR) conditions for at least five minutes after loss of normal electrical power excluding the battery. This rule is structured around a traditional design using mechanical control cables and linkages for flight control. These manual controls allow the crew to maintain aerodynamic control of the airplane for an indefinite period of time after loss of all electrical power. Under these conditions, a mechanical flight control system provides the crew with the ability to fly the airplane while attempting to identify the cause of the electrical failure, restart engine(s) if necessary, and attempt to re-establish some of the electrical power generation capability.

A critical assumption in § 25.1351(d) is that the airplane is in VFR conditions at the time of the failure. This is not a valid assumption in today's airline operating environment where airplanes fly much of the time in instrument meteorological conditions (IMC) on air traffic control defined flight paths. Another assumption in the existing rule is that the loss of all normal electrical power is the result of the loss of all engines. The five-minute period in the rule is to allow at least one engine to be restarted following an all-engine power loss in order to continue the flight to a safe landing. However, service experience on airplane models with similar electrical power system architecture as the Boeing Model 777-9 airplane has shown that at least the temporary loss of all electrical power for causes other than all-engine failure is not extremely improbable.

To maintain the same level of safety envisioned by the existing rule with traditional mechanical flight controls, the Boeing Model 777-9 series airplane design must not be time-limited in its operation under all reasonably foreseeable conditions, including loss of all normal sources of engine or auxiliary power unit (APU)-generated electrical power. Unless Boeing can show that the non-restorable loss of the engine and APU power sources is extremely improbable, Boeing must demonstrate that the airplanes can maintain safe flight and landing (including steering and braking on the ground for airplanes using steer/brake-by-wire and/or fly-by-wire speed brake panels) with the use of its emergency/alternate electrical power systems. These electrical power systems, or the minimum restorable electrical power sources, must be able to power loads that are essential for continued safe flight and landing, including those required for the maximum length of approved flight diversion.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Boeing Model 777-9 series airplane. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on one model series of airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Commercial Airplanes Model 777-9 series airplanes.

In lieu of 14 CFR 25.1351(d), the following special conditions apply:

(a) The applicant must show by test or a combination of test and analysis that the airplane is capable of continued safe flight and landing with all normal electrical power sources inoperative, as prescribed by paragraphs (a)(1) and (a)(2), below. For purposes of these special conditions, normal sources of electrical power generation do not include any alternate power sources such as the battery, ram air turbine, or independent power systems such as the flight control permanent magnet generating system. In showing capability for continued safe flight and landing, the applicant must account for systems capability, effects on crew workload and operating conditions, and the physiological needs of the flightcrew and passengers for the longest diversion time for which the applicant is seeking approval.

(1) In showing compliance with this requirement, the applicant must account for common-cause failures, cascading failures, and zonal physical threats.

(2) The applicant may consider the ability to restore operation of portions of the electrical power generation and distribution system if it can be shown that unrecoverable loss of those portions of the system is extremely improbable. The design must provide an alternative source of electrical power for the time required to restore the minimum electrical power generation capability required for safe flight and landing. The applicant may exclude unrecoverable loss of all engines when showing compliance with this requirement.

(b) Regardless of any electrical generation and distribution system recovery capability shown under paragraph (a) of these special conditions, sufficient electrical system capability must be provided to:

(1) Allow time to descend, with all engines inoperative, at the speed that provides the best glide distance, from the maximum operating altitude to the top of the engine restart envelope, and

(2) Subsequently allow multiple start attempts of the engines and auxiliary power unit (APU). The design must provide this capability in addition to the electrical capability required by existing part 25 requirements related to operation with all engines inoperative.

(c) The airplane emergency electrical power system must be designed to supply:

(1) Electrical power required for immediate safety, which must continue to operate without the need for crew action following the loss of the normal electrical power, for a duration sufficient to allow reconfiguration to provide a non-time-limited source of electrical power.

(2) Electrical power required for continued safe flight and landing for the maximum diversion time.

(d) If the applicant uses APU-generated electrical power to satisfy the requirements of these special conditions, and if reaching a suitable runway for landing is beyond the capacity of the battery systems, then the APU must be able to be started under any foreseeable flight condition prior to the depletion of the battery or the restoration of normal electrical power, whichever occurs first. Flight test must demonstrate this capability at the most critical condition.

(1) The applicant must show that the APU will provide adequate electrical power for continued safe flight and landing.

(2) The operating limitations section of the airplane flight manual (AFM) must incorporate non-normal procedures that direct the pilot to take appropriate actions to activate the APU after loss of normal engine-driven generated electrical power.

(e) As part of showing compliance with these special conditions, the tests to demonstrate loss of all normal electrical power must also take into account the following:

(1) The assumption that the failure condition occurs during night instrument meteorological conditions (IMC) at the most critical phase of the flight, relative to the worst possible electrical power distribution and equipment-loads-demand condition.

(2) After the un-restorable loss of normal engine generator power, the airplane engine restart capability is provided and operations continued in IMC.

(3) The airplane is demonstrated to be capable of continued safe flight and landing. The length of time must be computed based on the maximum diversion time capability for which the airplane is being certified. The applicant must account for airspeed reductions resulting from the associated failure or failures.

(4) The airplane must provide adequate indication of loss of normal electrical power to direct the pilot to the non-normal procedures, and the operating limitations section of the AFM must incorporate non-normal procedures that will direct the pilot to take appropriate actions.

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 the 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 makes the necessary updates for airspace areas within the National Airspace System.

Federal Aviation Administration Airspace Order JO 7400.11, Airspace Designations and Reporting Points, incorporated by reference in 14 CFR 71.1, is published yearly. Amendments referred to as “effective date straddling amendments” were published under Order JO 7400.11E (dated July 21, 2020, and effective September 15, 2020) but became effective under Order JO 7400.11F (dated August 10, 2021, and effective September 15, 2021). This action incorporates these rules into the current FAA Order JO 7400.11F.

Accordingly, as this is an administrative correction to update final rule amendments into FAA Order JO 7400.11F, notice and public procedure under 5 U.S.C. 553(b) are unnecessary. Also, to bring these rules and legal descriptions current, I find that good cause exists, under 5 U.S.C. 553(d), for making this amendment effective in less than 30 days.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by incorporating certain final rules into the current FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021, which are depicted on aeronautical charts.

FAA Order JO 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. 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's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface in Chester, SC; Lancaster, SC; Waxhaw, NC; and Lincolnton, NC, to support IFR operations in the area.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 38617, July 22, 2021) for Docket No. FAA-2021-0532 to amend Class E airspace extending upward from 700 feet above the surface at:

Chester Catawba Regional Airport, Chester, SC by increasing the airport radius to 9.0 miles, (previously 7.0 miles). In addition, this action proposed to update the airport's name to Chester Catawba Regional Airport, (previously Chester Municipal Airport).

Lancaster County-McWhirter Field Airport, Lancaster, SC by increasing the airport radius to 8.3 miles, (previously 7.0 miles) and within 4.0 miles each side of the 059° bearing from the airport extending from the 8.3-mile radius to 10.9 miles northeast of the airport. This action proposed to update the geographical coordinates of the Lancaster County-McWhirter Field Airport to coincide with the FAA's database.

JAARS-Townsend Airport, Waxhaw, NC by increasing the airport radius to 9.3 miles, (previously 7 miles). In addition, this action proposed to update the airport name to JAARS-Townsend Airport, (previously Waxhaw, JAARS-Townsend Airport).

Lincolnton-Lincoln County Regional Airport, Lincolnton, NC, by increasing the airport radius to 8.5 miles, (previously 6.4 miles). In addition, this action proposed to update the airport name to Lincolnton-Lincoln County Regional Airport, (previously Lincolnton, Lincoln County Airport), and update the geographical coordinates of the Lincolnton-Lincoln County Regional Airport to coincide with the FAA's database.

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 JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, 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 JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic routes, and reporting points.

The FAA is amending 14 CFR part 71 by amending the Class E airspace extending upward from 700 feet above the surface at:

Chester Catawba Regional Airport, Chester, SC by increasing the airport radius to 9.0 miles, (previously 7.0 miles). In addition, this action updates the airport name to Chester Catawba Regional Airport, (previously Chester Municipal Airport).

Lancaster County-McWhirter Field Airport, Lancaster, SC by increasing the airport radius to 8.3 miles, (previously 7.0 miles) and within 4.0 miles each side of the 059° bearing from the airport extending from the 8.3-mile radius to 10.9 miles northeast of the airport. This action also updates the geographical coordinates of the Lancaster County-McWhirter Field Airport to coincide with the FAA's database.

JAARS-Townsend Airport, Waxhaw, NC by increasing the airport radius to 9.3 miles, (previously 7 miles). In addition, this action updates the airport name to JAARS-Townsend Airport, (previously Waxhaw, JAARS-Townsend Airport).

Lincolnton-Lincoln County Regional Airport, Lincolnton, NC, by increasing the airport radius to 8.5 miles, (previously 6.4 miles). In addition, this action updates the airport name to Lincolnton-Lincoln County Regional Airport, (previously Lincolnton, Lincoln County Airport). This action also updates the geographical coordinates of the Lincolnton-Lincoln County Regional Airport to coincide with the FAA's database. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

FAA Order JO 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. 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 minimal. Since this is a routine matter that only affects air traffic procedures an 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 5-6.5a. 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.

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the typed of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CRF part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, CFR part 97, (is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

1. Pursuant to the Paperwork Reduction Act of 1995  1 and Office of Management and Budget's (OMB) implementing regulations at 5 CFR Part 1320, the Commission is required to display OMB control numbers and expiration dates of those control numbers on Commission information collections and forms. The Commission also provides OMB control numbers in its regulations at 18 CFR 389.101. This rule amends that regulation by providing that OMB control numbers for Commission information collections will henceforth no longer be provided in the Commission's regulations but instead will be provided on the Commission's website.

2. The purpose of this rule is to ensure that the public has the most current OMB control numbers for Commission information collections. Providing the OMB control numbers on the Commission's website is the most efficient and timely way to provide that information to the public. Therefore, rather than continually revising 18 CFR 389.101, the Commission will henceforth provide the public with the most up-to-date information on OMB control numbers at the Information Collections page at https://www.ferc.gov ( https://www.ferc.gov/enforcement-legal/legal/information-collections ). This rule accordingly revises 18 CFR 389.101 to direct the public to the Commission's website for OMB control numbers for Commission information collections.

3. OMB approves certain information collection requirements imposed by agency rule. 2 However, this rule does not contain any new or additional information collection requirements. Therefore, compliance with OMB's regulations is not required.

4. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 3

5. Part 380 of the Commission's regulations lists exemptions to the requirement to draft an Environmental Analysis or Environmental Impact Statement. Included is an exemption for procedural, ministerial, or internal administrative actions. 4 Accordingly, this rulemaking is exempt from the requirement to draft such documents under that provision.

6. The Regulatory Flexibility Act of 1980 (RFA)  5 generally requires a description and analysis of final rules that will have a significant economic impact on a substantial number of small entities. This rule concerns a modification of current Commission regulations and practices, by directing the public to where OMB control numbers are located. The Commission certifies that it will not have a significant economic impact upon participants in Commission proceedings. An analysis under the RFA is therefore not required.

7. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page ( http://www.ferc.gov ). At this time, the Commission has suspended access to the Commission's Public Reference Room due to the President's March 13, 2020 proclamation declaring a National Emergency concerning the Novel Coronavirus Disease (COVID-19).

8. The full text of this document is available on the Commission's Home Page, on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

9. User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at ferconlinesupport@ferc.gov , or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at public.referenceroom@ferc.gov .

10. The Commission is issuing this rule as a final rule without a period for public comment. Under 5 U.S.C. 553(b)(3)(A), notice-and-comment rulemaking procedures are unnecessary for “rules of agency organization, procedure, or practice.” This rule is therefore exempt from notice-and-comment rulemaking procedures, because it concerns the Commission's procedures and practices. In particular, the rule alters the means by which the Commission will provide the control numbers assigned by OMB to the Commission's information collection requirements. The rule will not significantly affect regulated entities or the general public.

11. This rule is effective December 3, 2021.

In consideration of the foregoing, the Commission amends part 385, chapter I, title 18, Code of Federal Regulations, as follows:

OSHA published three final rules containing inadvertent errors in the Incorporation by Reference section for Maritime, § 1915.5. The final rules were Updating OSHA Standards Based on National Consensus Standards, Personal Protective Equipment, published September 9, 2009 (74 FR 46350); Updating OSHA Standards Based on National Consensus Standards, Eye and Face Protection, published March 25, 2016 (81 FR 16085); and Standards Improvement Project-Phase IV, published May 14, 2019 (84 FR 21416). The agency is submitting this document to correct errors in these three final rules that included numerical and typographical errors, as well as move paragraph § 1915.5 (c) to paragraph (b)(3), so that all incorporation by reference (IBR) approval and contact language is contained in one paragraph (see 1 CFR part 51 and the Office of the Federal Register's (OFR's) IBR Handbook). In addition, this document updates the contact information for the National Archives and Records Administration (NARA) in former § 1915.5(c), National Safety Council in § 1915.5(d)(4) and (5), IHS Standards Store in § 1915.5(d)(6)(ii), (7)(ii) and (8)(ii), TechStreet Store in § 1915.5(d)(6)(iii), (7)(iii) and (8)(iii), International Safety Equipment Association (ISEA) in § 1915.5(d)(9) to (11), and American Society of Mechanical Engineers (ASME) in § 1915.5(e), American Conference of Governmental Industrial Hygienists (ACGIH) in § 1915.5(f), National Fire Protection Association (NFPA) in former § 1915.5(f)(1)(i), and ASTM International in § 1915.5(g). Paragraphs § 1915.5 (d)(7) and (d)(8) incorrectly cross-referenced part 1910 instead of part 1915. All of paragraph (f)(1)(i) was out of sequence and renumbered as paragraph (i). Table 1 summarizes the errors, omission, and updates by paragraph for § 1915.5. Additional revisions to meet Office of the Federal Register requirements, such as the removal of full paragraph citations for outlying sections, are included in the revision and republishing of § 1915.5.

OSHA has determined that these corrections are not subject to the procedures for public notice and comment specified in the Administrative Procedures Act (5 U.S.C. 553), and Section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)). This rulemaking only corrects minor errors and makes non-substantive codification changes. No stakeholder is likely to object to these corrections. Therefore, the agency finds good cause that public notice and comment are unnecessary within the meaning of 5 U.S.C. 553(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5.

James S. Frederick, Acting Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210, authorized the preparation of this notice pursuant to Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of Labor's Order 8-2020 (85 FR 58393 (Sept. 18, 2020)); 29 CFR part 1911; and 5 U.S.C. 553.

For the reasons set forth above, 29 CFR part 1915 is amended as follows:

a. This final rule revises the Department of the Army's (DA) regulation, 32 Code of Federal Regulations (CFR) part 507, for implementing the Army Heraldic Quality Control Program which was last published on May 18, 1998 (63 FR 27208). The revisions being finalized include a procedural change to manufacturer certification and insignia authorizations which add a five-year renewal period for manufacturer certification and insignia authorizations. This change insures the manufacturing base is current and insignia is periodically examined for quality. The second change is to the approving authority for the use of insignia images in commercial items. Pursuant to Title 10 U.S.C. 2260, Licensing of intellectual property: Retention of fees, the Secretary of the Army established the Army Trademark Licensing Program in 2006, formalizing the process for the licensing of marks owned by the Department of the Army, including heraldic insignia and other collective marks.

The authorities for this rule are 10 U.S.C. 7594; 15 U.S.C. 1051 et seq.; 10 U.S.C. 2260; 18 U.S.C. 701, 704; 36 U.S.C. 901. Title 10 U.S.C. 7594 grants the Secretary of the Army the authority to design flags, insignia, badges, medals, seals, decorations, guidons, streamers, finial pieces for flagstaffs, buttons, buckles, awards, trophies, marks, emblems, rosettes, scrolls, braids, ribbons, knots, tabs, cords and similar items for other military departments and to advise other Federal departments and agencies on matters of heraldry. Title 15 U.S.C. 1051 et seq. is the statutory basis for the ownership and control of trademarks, service marks, certification marks, and collective marks. Title 10 U.S.C. 2260 grants the Secretary of the Army the authority to license trademarks, service marks, certification marks, and collective marks owned or controlled by the Secretary of the Army. Title 18 U.S.C. 701 states manufacturing, selling and possession of any badge, identification card or insignia prescribed by the head of any department or agency of the United States is unlawful unless authorized by regulations made pursuant to law. Title 18 U.S.C. 704, also known as the “Stolen Valor Act” makes it illegal for a person to fraudulently claim having received a valor award specified in the Act, with the intention of obtaining money, property, or other tangible benefit by convincing another that he or she received the award. Title 36 U.S.C. 901 grants authority to the Secretary of Defense to approve a service flag and lapel button for display by members of the immediate family of an individual serving in the Armed Forces of the United States during any period of war or hostilities in which the armed forces are engaged. Persons must apply to the Secretary of Defense for a license to manufacture and sell the approved service flag. That authority was delegated in DoD Manual 1348.33 to the Secretary of the Army. (Available at https://www.esd.whs.mil/Directives/issuances/dodm/. )

Subpart A—Introduction. Includes discussion on purpose and applicability; references; provides a list of definitions, terms, and abbreviations; responsibly; outlines the responsibilities for the implementation of the program; statutory authority; identifies and defines the applicable statutes.

Subpart B—Manufacture and Sale of Decorations, Badges, and Insignia includes discussion on the process to become a certified manufacturer; provides requirements for the certification of insignia; discusses process to incorporate designs in commercial articles; discusses the possession and wear of decoration, service medal, badge, service ribbon, lapel button, or insignia.

Subpart C—Heraldic Quality Control Program discusses the program and the controlled heraldic items that fall under the program and identified insignia that are not authorized for commercial sale. This subpart also discusses penalties for violating the Quality Control Program and how complaints are processed.

Subpart D—License and Manufacture of the Service Flag and Service Lapel Button describes the application process for approval to make the Service Flag and Service Lapel Button.

The proposed rule was published in the Federal Register on June 12, 2020 (85 FR 35846-35852) for a 60-day comment period. The Department of the Army received 1 comment. The comment was not pertinent to the rule, so no action was taken and this rule is being finalized with no changes from the proposed rule.

This rule facilitates the Department of the Army Heraldic Quality Control Program and the manufacturing of all military decorations, medals, badges, insignia and their components and appurtenances. The manufacturer certification process requires the manufacturer to submit four samples of insignia to show they have the capability to make insignia in accordance with government specifications. The submitted samples have a negligible value, under ten dollars, and less than five manufactures apply each year. The recertification process consists of a review of a manufacturer's performance during the certification period. There is no cost to the manufacturer for the review and recertification process.

The Department of the Army does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule is not creating any new requirements for manufacturers of military insignia.

The Department of the Army certifies that this action does not include a mandate that may result in estimated costs to State, local or tribal governments in the aggregate or the private sector of $100 million or more.

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

The Department of the Army has determined that this action is not covered under the National Environmental Policy Act because the rule is not a major Federal action that significantly affects the quality of the human environment.

The Department of the Army has determined that the Paperwork Reduction Act does not apply. Manufacturers wanting to be certified provide general information already available to the public about the company such as name, address, points of contact, contact information and the type of insignia they want to produce. Annually, fewer than five manufacturers request certification.

The Department of the Army has determined that Executive Order 12630 does not apply because the rule does not impair private property rights.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). In accordance with the provisions of Executive Order 12866, this is not significant rule and was not reviewed by the Office of Management and Budget.

The Department of the Army has determined that Executive Order 13045 does not apply because this substantive action in rulemaking is neither economically significant nor does the action concern environment health or safety risks that may disproportionally affect children.

The Department of the Army has determined that Executive Order 13132 does not apply because this rule will not have a substantial effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among various levels of government.

On July 5, 2021, River Cities Community Sailing Program notified the Coast Guard that from noon to 5 p.m. on October 9 and Ocotber 10, 2021, it will be conducting a sailing regatta. In response, on August 4, 2021, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Special Local Regulation; Ohio River, Louisville, KY” [USCG-2021-0546] (86 FR 41909). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this sailing regatta. During the comment period that ended August 24, 2021, we received 0 comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the sailing regatta.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the sailing regatta to be used in this October 9 and 10, 2021 will be a safety concern for anyone within the area. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled event.

As noted above, we received no comments on our NPRM published August 4, 2021. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a special local regulation from noon to 5 p.m. on October 9, 2021 and October 10, 2021. The special local regulation will cover all navigable waters from mile marker 594 to 598 on the Ohio River. The duration of the zone is intended to ensure the safety of the sailing vessels during the regatta. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. To seek permission to enter, contact the COTP or the COTP's representative by Sector Ohio Valley command center at 502-779-5422. Those in the regulated area must comply with all lawful orders or directions given to them by the COTP or the designated representative.

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

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

This regulatory action determination is based on the size, location, and duration of the special local regulation. This special local regulation restricts transit on a four-mile stretch of the Ohio River for five hours on two days. Moreover, the Coast Guard will issue Broadcast Notice to Mariners (BNMs), Local Notices to Mariners (LNMs), and Marine Safety Information Bulletins (MSIBs) about this special local regulation so that waterway users may plan according for this restriction on transit, and the rule allows vessel to request permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received 0 comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a two day sailing competition held annually. 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:

On July 20, 2021, Ballard Marine Construction notified the Coast Guard that it would begin construction on the CBWTP Outfall Diffuser Improvements Project from 12:01 a.m. on October 1, 2021, through 11:59 p.m. on February 28, 2022, to remove and replace existing pipeline. On September 27, 2021, Ballard Marine Construction updated the start date to November 1, 2021. Work includes dredging and dive operations at Columbia River Mile 105.6. In response, on August 23, 2021, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; CBWTP Outfall Diffuser Improvements, Columbia River, Portland, OR” (86 FR 47044). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this construction project. During the comment period that ended September 7, 2021, we received no comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with the CBWTP Outfall Diffuser Improvements Project.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Columbia River (COTP) has determined that potential hazards associated with the construction project will be a safety concern for anyone within the designated area of the CBWTP Outfall Diffuser Improvements. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone during the scheduled construction period.

As noted above, we received no comments on our NPRM published August 22, 2021. The only changes in the regulatory text of this rule from the proposed rule in the NPRM are the clarifying additions of referencing the coordinates as being based on 1984 World Geodetic System (WGS 84) and the insertion of the abbreviation “COTP” after “Captain of the Port Sector Columbia River” in the definition of “designated representative.” In addition, the Coast Guard received notification on September 27, 2021, that the city of Portland is delaying the start date of the project. The safety zone will now begin on November 1, 2021, instead of October 1, 2021 as originally published in the NPRM.

This rule establishes a safety zone from 12:01 a.m. on November 1, 2021, through 11:59 p.m. on February 28, 2022. The safety zone will cover all navigable waters of the Columbia River, surface to bottom, approximately 300 yards to the east and west side of the Burlington Northern Railroad Bridge on the Oregon side of the Columbia River from the shoreline to the outside of the main navigational channel; specifically beginning at the shoreline at 45°37′26.2″ N, 122°41′46.91″ W, northeast to 45°37′33.206″ N, 122°41′37.699″ W, southeast to 45°37′23.4″ N, 122°41′18.1″ W, thence southwest to 45°37′16.27″ N, 122°41′30.75″ W, and along the shoreline back to the beginning point. The duration of the zone is intended to ensure the safety of vessels and these navigable waters while the construction project is underway. The duration of the zone is intended to ensure the safety of vessels and these navigable waters during the construction period. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the Columbia River during the construction project. Moreover, the Coast Guard will issue a Notice to Mariners about the zone, and the rule will allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 150 days that will prohibit vessel traffic to transit the area during construction operations. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

On August 11, 2021, the Environmental Protection Agency (EPA) made inadvertent codification errors when it approved elements of a SIP submission from Ohio regarding the infrastructure requirements of CAA section 110 for the 2015 ozone NAAQS. In the final rule published in the Federal Register on August 11, 2021 (86 FR 43962), on page 43964, EPA mistakenly included instructions to add entry “Section 110(a)(2) Infrastructure Requirements for the 2015 ozone NAAQS” immediately after entry “Section 110(a)(2) infrastructure requirements for the 2012 PM 2.5 NAAQS”, where the instructions should have said to add entry “Section 110(a)(2) Infrastructure Requirements for the 2015 ozone NAAQS” immediately after entry “Section 110(a)(2)(D) infrastructure requirements for the 2012 PM 2.5 NAAQS”. EPA also mistakenly identified the entry in the table entitled “EPA Approved Ohio Nonregulatory and Quasi-Regulatory Provisions” on page 43964 to read “Section 110(a)(2)(D) Infrastructure Requirements for the 2015 ozone NAAQS”, where the correct entry should read “Section 110(a)(2) Infrastructure Requirements for the 2015 ozone NAAQS”. Lastly, the citation for prongs 1 and 2 in the “Comments” column of the table on page 43964 should read “(D)(i)(I)” and not “(D)(i)(II)”.

This action amends the regulatory text to correct these errors. Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making this rule final without prior proposal and opportunity for comment because we are merely correcting incorrect citations in previous actions. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B).

This action is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedures Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). This action will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of governments, as specified by E.O. 13132 (64 FR 43255, August 10, 1999). In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by E.O. 13175 (65 FR 67249, November 9, 2000). This action is not subject to E.O. 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This action is also not subject to E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This technical correction action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The action also does not involve special consideration of environmental justice related issues as required by E.O. 12898 (59 FR 7629, February 16, 1994).

The Congressional Review Act (5 U.S.C. 801 et seq. ), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA had made such a good cause finding, including the reasons therefore, and established an effective date of October 4, 2021. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This correction to 40 CFR part 52 for Ohio is not a “major rule” as defined by 5 U.S.C. 804(2).

Accordingly, 40 CFR part 52 is corrected by making the following correcting amendments:

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

On June 21, 2021, EPA proposed to approve revisions to several sections of Title 35 of the Illinois Administrative Code, Part 243 (35 IAC 243), Subparts A (“General Provisions”) and B (“Standards and Measurement Methods”) requested by the Illinois Environmental Protection Agency on October 20, 2020 and February 16, 2021. See 86 FR 32366. An explanation of the applicable Clean Air Act (CAA) requirements, a detailed analysis of the revisions, and EPA's reasons for proposing approval were provided in the notice of proposed rulemaking and will not be restated here. The public comment period for this proposed rulemaking ended on July 21, 2021. EPA did not receive any comments on the proposal. Therefore, we are finalizing our action as proposed.

EPA is approving the revisions to 35 IAC 243 as outlined in Illinois' October 20, 2020 submittal, except for 35 IAC 243.108. EPA is also approving the revisions to 35 IAC 243 as outlined in Illinois' February 16, 2021 submittal.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Illinois Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 3, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

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

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

On June 23, 2021 (86 FR 32848), the EPA proposed to approve the following rule into the Arizona SIP:

We proposed to approve this rule because we determined that it complies with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

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

No comments were submitted. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule into the Arizona SIP. The December 11, 2019 version of Rule 510 will replace the previously approved version of this rule in the Arizona SIP.

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 3, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

This final rule, published as a proposed rule on May 14, 2021 (86 FR 26455), first amends the FTR to remove and reserve part 300-90. Originally, this part was included in the FTR due to the enactment of Public Law (Pub. L.) 111-292, the “Telework Enhancement Act of 2010,” codified at 5 U.S.C. 5711, which authorized the creation of agency telework travel expenses test programs subject to approval by the Administrator of General Services.

When submitting a test program proposal to GSA, agencies were directed to include an analysis of the expected cost and benefits and a set of criteria for evaluating the effectiveness of the program. Once approved, participating agencies were required to submit an annual report on the results of the test program, including overall costs and benefits.

Only one Federal agency, the United States Patent and Trademark Office (USPTO), requested and then implemented a telework travel expenses test program under this authority. When Public Law 116-283 became effective on January 1, 2021, it made the USPTO telework travel expenses program permanent. At that time, the law did not extend the Administrator of General Services' authority to approve telework travel expenses test programs, so it expired as of December 31, 2020, making part 300-90 no longer necessary.

GSA is also removing and reserving Appendix E to Chapter 301 of the FTR, “Suggested Guidance for Conference Planning,” first published January 10, 2000 (65 FR 1329). As noted in the title, the guidance is suggested, not a mandatory set of instructions agencies must follow when planning a conference. Some readers have found the word “suggested” in the title confusing and duplicative, considering similar regulatory instructions regarding conference planning are located in FTR part 301-74. GSA believes that general information on how to plan a conference, the focus of Appendix E, is now more widely available through non-Governmental and professional resources than it was when the Appendix was first published.

Finally, one reference to Appendix E that was in regulatory text is also removed in accordance with the above.

This rule removes and reserves both part 300-90 and Appendix E to Chapter 301 of the FTR. GSA received no comments in response to the proposed rule.

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

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the Congressional Review Act or CRA, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. OIRA has determined that this rule is not a major rule under 5 U.S.C. 804(2), therefore, GSA did not submit a rule report.

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This final rule is also exempt from the Administrative Procedure Act pursuant to 5 U.S.C. 553(a)(2) because it applies to agency management or personnel. Therefore, an Initial Regulatory Flexibility Analysis was not performed.

The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

Therefore, under the authority 5 U.S.C. 5707 and 5711, GSA removes 41 CFR parts 300-90, amends 301-74, and removes Appendix E to Chapter 301 as set forth below:

In FR Doc. 2021-16336 of August 4, 2021 (86 FR 42608), there were a number of technical errors that are identified and corrected in this correcting document. The provisions in this correction document are effective as if they had been included in the document published on August 4, 2021. Accordingly, the corrections are effective October 1, 2021.

There was a technical error in the simulation of Inpatient Psychiatric Facilities (IPF) payments that affected the impact analysis and the calculation of the final outlier fixed dollar loss threshold amount. In estimating the percentage of outlier payments as a percentage of total payments, we inadvertently applied provider information from the January, 2021 update of the Provider-Specific File (PSF) instead of the most recently available update from April, 2021. For fiscal year (FY) 2022, we finalized our proposal to update the IPF outlier threshold amount using FY 2019 claims data and the same methodology that we used to set the initial outlier threshold amount in the Rate Year 2007 IPF PPS final rule (71 FR 27072 and 27073). In accordance with that longstanding methodology, the calculation of estimated outlier payments should have used the April, 2021 provider information rather than the January, 2021 provider information.

As a result of the error in estimating outlier payments, the FY 2022 IPF PPS final rule overstated the estimate of increased transfers from the federal government to IPF providers. We estimated $80 million in increased transfers from the federal government to IPF providers; however, based on the corrected calculation of the outlier fixed dollar loss threshold amount, the correct estimate of increased transfers from the federal government to IPF providers should be $70 million. Also, as a result of the error in estimating outlier payments, the FY 2022 IPF PPS final rule incorrectly estimated and described the impact of the final rule on various provider types and the total number of providers included in the analysis.

On page 42608, in the third column, second bullet, seventh sub-bullet, the fixed dollar loss threshold amount should be changed from “$14,470” to “$16,040”.

On page 42609, the table summarizing Total Transfers and Cost reductions should reflect the corrected estimate of increased payments to IPFs during FY 2022, which should be corrected from $80 million to $70 million.

On page 42623, in the third column, in the third full paragraph, we incorrectly stated that IPF outlier payments as a percentage of total estimated payments were approximately 1.9 percent in FY 2021. The correct percentage should be 2.1 percent.

On page 42623, in the third column, in the third full paragraph, we incorrectly stated that we were decreasing the outlier threshold amount to $14,470. The correct update to the outlier threshold amount should be increased to $16,040.

On page 42634, in footnote 93, we made a typographical error and listed the date information was accessed as July 6 instead of July 16.

On page 42645, in the second column in the first full paragraph, we inadvertently omitted several words from the phrase “is this measure's objective” which should read “is not this measure's primary objective”.

On page 42647, in footnote 154, we inadvertently omitted the end of the footnote, which should read, “., Alcohol: A probable risk factor of COVID-19 severity, 7-20-2021. doi:10.1111/add.15194”.

On page 42649, in the third column, in the first full paragraph, we made a typographical error and referred to “a comprehensive program to address topped out” instead of “a comprehensive program to address tobacco use”.

On page 42657, in the last paragraph under subsection b, we inadvertently included the phrase “to no longer require facilities. . .”.

On page 42659, in Table 7, we inadvertently included the “Timely Transmission of Transition Record (Discharges from an Inpatient Facility to Home/Self Care or any Other Site of Care)” in the table.

On page 42661, in the last paragraph, last sentence, under V. Collection of Information Requirements, we inadvertently stated “We have not made any changes from what was proposed.”

On page 42669, in Table 15, we made a typographical error and listed the annual cost update for the removal of the Timely Transmission of Transition Record (Discharges from an Inpatient Facility to Home/Self Care or Any Other Site of Care) and the total cost update as (10,199,836.5050) instead of (10,199,836.50).

On page 42672, in the second column, we incorrectly stated that “we estimate that the total impact of these changes for FY 2022 payments compared to FY 2021 payments will be a net increase of approximately $80 million. This reflects an $75 million increase from the update to the payment rates (+$100 million from the 2nd quarter 2021 IGI forecast of the 2016-based IPF market basket of 2.7 percent, and −$25 million for the productivity adjustment of 0.7 percentage point), as well as a $5 million increase as a result of the update to the outlier threshold amount. Outlier payments are estimated to change from 1.9 percent in FY 2021 to 2.0 percent of total estimated IPF payments in FY 2022”. This paragraph should be revised to reflect that outlier payments are estimated to change from 2.1 percent in FY 2021 to 2.0 percent in FY 2022, and that the update to the outlier threshold will result in a $5 million decrease and a net increase of approximately $70 million in FY 2022 payments.

On page 42672 in the third column, in the fourth full paragraph under C. Detailed Economic Analysis, “$80 million” should be replaced with “$70 million” and “$5 million increase” should be replaced with “$5 million decrease”.

On pages 42674 and 42675, Table 18 reflects the impact to providers of updating the outlier fixed dollar loss threshold amount based on the inaccurate calculation of estimated FY 2021 outlier payments; therefore, Table 18 should be updated to reflect the correct calculations.

On page 42675 in the first column, in the second full paragraph under 3. Impact Results, we incorrectly stated that the number of IPFs included in the analysis for FY 2019 claims is 1,519. The correct number is 1,520 IPFs.

On page 42675, in the first column, in the third full paragraph, we incorrectly stated that “Based on the FY 2019 claims, we would estimate that IPF outlier payments as a percentage of total IPF payments are 1.9 percent in FY 2021.” The correct percentage should be 2.1 percent.

On page 42675, in the second column, in the first full paragraph, we incorrectly stated that “Based on the FY 2019 claims, the estimated change in total IPF payments for FY 2022 would include an approximate 0.1 percent increase in payments because we would expect the outlier portion of total payments to increase from approximately 1.9 percent to 2.0 percent.” This should be corrected to reflect that the estimated change in total IPF payments for FY 2022 would include an approximate 0.1 percent decrease in payments because we would expect the outlier portion of total payments to decrease from approximately 2.1 percent to 2.0 percent.

On page 42675, in the second column, in the second full paragraph and continuing into the first paragraph of the third column, we incorrectly stated the overall impact and the impact to certain provider types due to updating the outlier fixed dollar loss threshold amount. We stated that the overall impact across all hospital groups is an increase of 0.1 percent, however the overall impact is actually a decrease of 0.1 percent. We also stated that “the largest increase in payments due to this change is estimated to be 0.4 percent for teaching IPFs with more than 30 percent interns and residents to beds.” This should be corrected to reflect that the largest decreases in payments are estimated to be 0.4 percent for urban government IPF units and 0.4 percent for teaching IPFs with more than 30 percent interns and residents to beds.

On page 42676, in the first column, in the first full paragraph, we incorrectly stated that “The average estimated increase for all IPFs is approximately 2.1 percent based on the FY 2019 claims,” and that this overall increase includes “the overall estimated 0.1 percent increase in estimated IPF outlier payments as a percent of total payments from updating the outlier fixed dollar loss threshold amount.” These statements should be corrected to reflect that the average estimated increase for all IPFs is approximately 1.9 percent, and that this includes the overall estimated 0.1 percent decrease in estimated IPF outlier payments as a percent of total payments from updating the outlier fixed dollar loss threshold amount.

On page 42676, in the second column, in the first full paragraph, we incorrectly stated that “IPF payments are therefore estimated to increase by 2.1 percent in urban areas and 2.2 percent in rural areas based on this finalized policy. Overall, IPFs are estimated to experience a net increase in payments as a result of the updates in this final rule. The largest payment increase is estimated at 2.7 percent for IPFs in the South Atlantic region.” It is still correct that IPFs are estimated to experience a net increase in payments as a result of the updated in this final rule, however these statements should be corrected to reflect that IPF payments are estimated to increase by 1.8 percent in urban areas and 2.1 percent in rural areas, and that the largest increases are estimated at 2.5 percent for IPFs in the South Atlantic region and 2.5 percent for rural, government-owned IPF hospitals.

On page 42677, in the third column, in the first full paragraph, we incorrectly stated that the number of IPFs with data available in the PSF and with claims in our FY 2019 MedPAR claims dataset was 1,519. The correct number should be 1,520.

On page 42677, Table 19 incorrectly states that the estimate of annualized monetized transfers from the federal government to IPF Medicare providers is $80 million. This table should be corrected to reflect that the estimate of annualized monetized transfers from the federal government to IPF Medicare providers is $70 million.

On page 42677, under F. Regulatory Flexibility Act, in the third column, in line 10, we incorrectly stated that the number of IPFs in our database is 1,519. The correct number of IPFs in our database is 1,520.

In Addendum A of the FY 2022 IPF PPS final rule, we have corrected the outlier fixed dollar loss threshold amount from $14,470 to $16,040 on the CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/InpatientPsychFacilPPS/tools.

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the rule.

Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the Federal Register . This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.

We believe that this correcting document does not constitute a rule that would be subject to the notice and comment or delayed effective date requirements. This document corrects technical and typographic errors in the preamble of the FY 2022 IPF PPS final rule, but does not make substantive changes to the policies or payment methodologies that were adopted in the final rule. As a result, this correcting document is intended to ensure that the information in the FY 2022 IPF PPS final rule accurately reflects the policies adopted in that document.

In addition, even if this were a rule to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule or delaying the effective date would be contrary to the public interest because it is in the public's interest for IPFs to receive appropriate payments in as timely a manner as possible, and to ensure that the FY 2022 IPF PPS final rule accurately reflects our policies as of the date they take effect and are applicable. Furthermore, such procedures would be unnecessary, as we are not altering our payment methodologies or policies, but rather, we are simply correctly implementing the policies that we previously proposed, received comment on, and subsequently finalized. This correcting document is intended solely to ensure that the FY 2022 IPF PPS final rule accurately reflects these payment methodologies and policies. For these reasons, we believe we have good cause to waive the notice and comment and effective date requirements. Moreover, even if these corrections were considered to be retroactive rulemaking, they would be authorized under section 1871(e)(1)(A)(ii) of the Act, which permits the Secretary to issue a rule for the Medicare program with retroactive effect if the failure to do so would be contrary to the public interest. As we have explained previously, we believe it would be contrary to the public interest not to implement the corrections in this correcting document because it is in the public's interest for IPFs to receive appropriate payments in as timely a manner as possible, and to ensure that the FY 2022 IPF PPS final rule accurately reflects our policies.

In FR Doc. 2021-16336 of August 4, 2021 (86 FR 42608), make the following corrections:

1. On page 42608, in the third column, second bullet, seventh sub-bullet, in line 2, remove the number “$14,470” and add in its place “$16,040”.

2. On page 42609, in first row of the table, in the right column, remove “$80 million” and add in its place “$70 million”.

3. On page 42623, in the third column, in the third full paragraph,

a. In line 21, remove “$1.9 percent” and add in its place “2.1 percent”.

b. In line 23, remove the number “$14,470” and add in its place “$16,040”.

4. On page 42623, in the third column, in the third full paragraph, in line 27, remove the word “decrease” and add in its place “increase”.

5. On page 42634, in the second column; in line 3 from the bottom of the page, in footnote 93, remove the words “Accessed on 7/6/2021” and add in their place “Accessed on 7/16/2021”.

6. On page 42645, in the second column; in the first full paragraph, in line 6 and 7, remove the words “is this measure's objective” and add in their place “is not this measure's primary objective”.

7. On page 42647, in the second column; in footnote 154, revise the citation to read as follows, “Nemani et al., Association of Psychiatric Disorders With Mortality Among Patients With COVID-19, JAMA Psychiatry. 2021;78(4):380-386. doi:10.1001/jamapsychiatry.2020.4442; COVID-19 and people at increased risk, CDC, https://www.cdc.gov/drugoverdose/resources/covid-drugs-QA.html; U. Saengow et al., Alcohol: A probable risk factor of COVID-19 severity, 7-20-2021. doi:10.1111/add.15194”.

8. On page 42649, in the third column; the first full paragraph, the 20th line from the top of the page, remove the words “a comprehensive program to address topped out” and add in their place “a comprehensive program to address tobacco use”.

9. On page 42657, in the second column; the last paragraph under “b. Updated Reference to QualityNet Administrator in the Code of Federal Regulations”, the 32nd line from the top of the page, remove the words “We are finalizing our proposal to no longer require facilities to replace the term `QualityNet system administrator' with “QualityNet security official' at § 412.434(b)(3) as proposed” and add in their place “We are finalizing our proposal to replace the term `QualityNet system administrator' with “QualityNet security official' at § 412.434(b)(3) as proposed.”

10. On page 42659, revise Table 7 to read as follows:

11. On page 42661, in the third column; in the last paragraph under V. Collection of Information Requirements, the 8th line from the bottom of the page, remove the sentence “We have not made any changes from what was proposed” and add in its place “We have updated these estimates based on the proposals finalized in this final rule”.

12. On page 42669, revise Table 15 to read as follows.

13. On page 42672, below Table 15, in the second column, in the second full paragraph, remove the paragraph,

“We estimate that the total impact of these changes for FY 2022 payments compared to FY 2021 payments will be a net increase of approximately $80 million. This reflects an $75 million increase from the update to the payment rates (+$100 million from the 2nd quarter 2021 IGI forecast of the 2016-based IPF market basket of 2.7 percent, and −$25 million for the productivity adjustment of 0.7 percentage point), as well as a $5 million increase as a result of the update to the outlier threshold amount. Outlier payments are estimated to change from 1.9 percent in FY 2021 to 2.0 percent of total estimated IPF payments in FY 2022.”

“We estimate that the total impact of these changes for FY 2022 payments compared to FY 2021 payments will be a net increase of approximately $70 million. This reflects a $75 million increase from the update to the payment rates (+$100 million from the 2nd quarter 2021 IGI forecast of the 2016-based IPF market basket of 2.7 percent, and −$25 million for the productivity adjustment of 0.7 percentage point), as well as a $5 million decrease as a result of the update to the outlier threshold amount. Outlier payments are estimated to change from 2.1 percent in FY 2021 to 2.0 percent of total estimated IPF payments in FY 2022.”

14. On page 42672 in the third column, in the fourth full paragraph,

a. In line 2, remove “$80 million” and add in its place “$70 million”.

b. In line 6, remove the word “increase” and add in its place “decrease”.

15. On pages 42674 and 42675, revise Table 18 to read as follows:

16. On page 42675 in the first column, in the second full paragraph,

a. In line 2, remove the number “1,519” and add in its place “1,520”.

b. In line 6, remove “1.9 percent” and add in its place “2.1 percent”.

17. On page 42675, in the second column,

a. In the first full paragraph,

(1) In line 5, remove the sentence,

“Based on the FY 2019 claims, the estimated change in total IPF payments for FY 2022 would include an approximate 0.1 percent increase in payments because we would expect the outlier portion of total payments to increase from approximately 1.9 percent to 2.0 percent.”

“Based on the FY 2019 claims, the estimated change in total IPF payments for FY 2022 would include an approximate 0.1 percent decrease in payments because we would expect the outlier portion of total payments to decrease from approximately 2.1 percent to 2.0 percent.”

(2) In the second full paragraph and continuing into the first paragraph of the third column, remove the paragraph,

18. On page 42676,

a. In the first column, in the first full paragraph, remove the paragraph,

b. In the second column, in the first full paragraph, remove the paragraph,

19. On page 42677,

a. Above Table 15, in the third column, in the first full paragraph, in line 13, remove the number “1,519” and add in its place “1,520”.

b. Revise Table 19 to read as follows:

c. Below Table 19, in the third column, in line 10, remove the number “1,519” and add in its place “1,520”.

The BLM has authority to charge fees for processing applications and other documents relating to public lands under section 304 of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1734. In 2005, the BLM published a final cost recovery rule (70 FR 58854) that established new fees or revised fees and service charges for processing documents related to its minerals programs (“2005 Cost Recovery Rule”). In addition, the 2005 Cost Recovery Rule also established the method the BLM would use to adjust those fees and service charges for inflation on an annual basis.

The regulations at 43 CFR 3000.12(a) provide that the BLM will annually adjust fees established in subchapter C (43 CFR parts 3000-3900) according to changes in the Implicit Price Deflator for Gross Domestic Product (IPD-GDP), which is published quarterly by the U.S. Department of Commerce. See also 43 CFR 3000.10. This final rule updates those fees and service charges consistent with that direction. The fee adjustments in this final rule are based on the mathematical formula set forth in the 2005 Cost Recovery Rule. The public had an opportunity to comment on that adjustment procedure as part of the 2005 rulemaking. Accordingly, the Department of the Interior for good cause finds under 5 U.S.C. 553(b)(B) and (d)(3) that notice and public comment procedures are unnecessary and that the fee adjustments in this final rule may be effective less than 30 days after publication. See 43 CFR 3000.10(c).

As set forth in the 2005 Cost Recovery Rule, the fee updates are based on the change in the IPD-GDP. The BLM's minerals program publishes the updated cost recovery fees annually, at the start of each fiscal year (FY).

This final rule updates the current (FY 2021) cost recovery fees for use in FY 2022. The current fees were set by the cost recovery fee rule published on October 9, 2020 (85 FR 64056), effective October 9, 2020. The update in this final rule adjusts the FY 2021 fees based on the change in the IPD-GDP from the 4th Quarter of 2019 to the 4th Quarter of 2020.

Under this final rule, 33 fees will remain the same and 15 fees will increase. Of the 15 fees that are being increased by this final rule, 12 fees will increase by $5 each, and one fee will increase by $10. The largest increase, $45, will be applied to the fee for adjudicating a mineral patent application containing more than 10 claims, which will increase from $3,340 to $3,385. The fee for adjudicating a patent application containing 10 or fewer claims will increase by $20, from $1,670 to $1,690. It is important to note that the “real” values of the fees are not actually increasing, since real values account for the effect of inflation. In real terms, the values of the fees are simply being adjusted to account for the changes in the prices of goods and services produced in the United States.

The calculations that resulted in the new fees are included in the table below:

The BLM took the base values (or “existing values”) upon which it derived the FY 2021 cost recovery fees (or “existing fees”) and multiplied them by the percent change in the IPD-GDP (1.26 percent for this update) to generate the “IPD-GDP increases” (in dollars). The BLM then added the “IPD-GDP increases” to the “existing values” to generate the “new values.” The BLM then calculated the “new fees” by rounding the “new values” to the closest multiple of $5 for fees equal to or greater than $1, or to the nearest cent for fees under $1. The “new fees” are the updated cost recovery fees for FY 2022.

The source for IDP-GDP data is the U.S. Department of Commerce, Bureau of Economic Analysis, specifically, “Table 1.1.9. Implicit Price Deflators for Gross Domestic Product,” which the BLM accessed on May 13, 2021, on the web at https://apps.bea.gov/iTable/iTable.cfm?reqid=19&step=2#reqid=19&step=3&isuri=1&1921=survey&1903=13.

This document is not a significant rule, and the Office of Management and Budget has not reviewed this final rule under Executive Order 12866.

The BLM has determined that this final rule will not have an annual effect on the economy of $100 million or more. It will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The changes in this rule are much smaller than those in the 2005 Cost Recovery Rule, which did not approach the threshold in Executive Order 12866. For instructions on how to view a copy of the analysis prepared in conjunction with the 2005 Cost Recovery Rule, please contact one of the persons listed in the FOR FURTHER INFORMATION CONTACT section above.

This final rule will not create inconsistencies or otherwise interfere with an action taken or planned by another agency. This rule does not change the relationships of the onshore minerals programs with other agencies' actions. These relationships are included in agreements and memoranda of understanding that will not change with this rule.

In addition, this final rule does not materially affect the budgetary impact of entitlements, grants, or loan programs, or the rights and obligations of their recipients. This rule applies an inflationary adjustment factor to existing user fees for processing certain actions associated with the onshore minerals programs.

Finally, this final rule will not raise novel legal or policy issues. As explained earlier, this rule simply implements an annual process to account for inflation that was adopted by and explained in the 2005 Cost Recovery Rule.

This final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). As a result, a Regulatory Flexibility Analysis is not required. The Small Business Administration (SBA) defines small entities as individual, limited partnerships, or small companies considered to be at arm's length from the control of any parent companies if they meet the following size requirements as established for each North American Industry Classification System (NAICS) code:

The SBA would consider many, if not most, of the operators with whom the BLM works in the onshore minerals programs to be small entities. The BLM notes that this final rule does not affect service industries, for which the SBA has a different definition of “small entity.”

The final rule may affect a large number of small entities because 15 fees for activities on public lands will be increased. The adjustments result in no increase in the fees for processing 33 actions relating to the BLM's minerals programs. The highest adjustment, in dollar terms, is for adjudications of mineral patent applications involving more than 10 mining claims; that fee will increase by $45. It is important to note that the “real” values of the fees are not actually increasing, since real values account for the effect of inflation. In real terms, the values of the fees are simply being adjusted to account for the changes in the prices of goods and services produced in the United States. Accordingly, the BLM has concluded that the economic effect of the rule's changes will not be significant, even for small entities.

For the 2005 Cost Recovery Rule, the BLM completed a Regulatory Flexibility Act threshold analysis, which is available for public review in the administrative record for that rule. For instructions on how to view a copy of that analysis, please contact one of the persons listed in the FOR FURTHER INFORMATION CONTACT section above. The analysis for the 2005 Cost Recovery Rule concluded that the fees would not have a significant economic effect on a substantial number of small entities. The fee increases implemented in this rule are substantially smaller than those provided for in the 2005 Cost Recovery Rule.

This final rule is not a “major rule” as defined at 5 U.S.C. 804(2). The final rule will not have an annual effect on the economy greater than $100 million; it will not result in major cost or price increases for consumers, industries, government agencies, or regions; and it will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Accordingly, a Small Entity Compliance Guide is not required.

This final rule will not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. In accordance with Executive Order 13132, the BLM therefore finds that the final rule does not have federalism implications, and a federalism assessment is not required.

This final rule does not contain information-collection requirements that require a control number from the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). After the effective date of this rule, the new fees may affect the non-hour burdens associated with the following control numbers:

(1) 1004-0034, which expires August 31, 2021;  6

(2) 1004-0137, which expires October 31, 2021;

(3) 1004-0162, which expires October 31, 2021;

(4) 1004-0185, which expires December 31, 2021;

(5) 1004-0132, which expires July 31, 2023;

(6) 1004-0073, which expires April 30, 2023;

(7) 1004-0025, which expires February 28, 2022;

(8) 1004-0114, which expires April 30, 2023; and

(9) 1004-0121, which expires October 31, 2022.

As required by Executive Order 12630, the BLM has determined that this final rule will not cause a taking of private property. No private property rights will be affected by a rule that merely updates fees. The BLM therefore certifies that this final rule does not represent a governmental action capable of interference with constitutionally protected property rights.

In accordance with Executive Order 12988, the BLM finds that this final rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive order.

The BLM has determined that this final rule qualifies as a routine financial transaction and a regulation of an administrative, financial, legal, or procedural nature that is categorically excluded from environmental review under NEPA pursuant to 43 CFR 46.205 and 46.210(c) and (i). The final rule does not meet any of the 12 criteria for exceptions to categorical exclusions listed at 43 CFR 46.215. Therefore, neither an environmental assessment nor an environmental impact statement is required in connection with the rule (40 CFR 1508.4).

The BLM has determined that this final rule is not significant under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., because it will not result in State, local, private sector, or tribal government expenditures of $100 million or more in any one year, 2 U.S.C. 1532. This rule will not significantly or uniquely affect small governments. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act.

In accordance with Executive Order 13175, the BLM has determined that this final rule does not include policies that have tribal implications. Specifically, the rule would not have substantial direct effects on one or more Indian Tribes. Consequently, the BLM did not utilize the consultation process set forth in Section 5 of the Executive order.

In developing this final rule, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).

In accordance with Executive Order 13211, the BLM has determined that this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It merely adjusts certain administrative cost recovery fees to account for inflation.

The principal author of this final rule is Faith Bremner of the Division of Regulatory Affairs, Bureau of Land Management.

For reasons stated in the preamble, the Bureau of Land Management amends 43 CFR part 3000 as follows:

Previously, the agency offered its physical public reading room to allow for in-person inspection of its Federal Register publications; however, with the advent of modern technology, the need for such a room is obsolete as documents are electronically available to the public through regulations.gov and the agency's electronic reading room.

Currently, part 801 provides that the NTSB will maintain a “public reference room” in accordance with FOIA and notes the various records that will be made available in that room; however, with fewer visitors and the frequent use of the public reference room as a meeting space, the agency is closing its physical reading room and will make qualifying records available electronically. Consequently, the agency is issuing this interim final rule because technical amendments are necessary to remove all references to the “public reference room.”

Further, the agency will amend 49 CFR 801.52, which exempts internal personnel rules and practices of the NTSB from public disclosure under 5 U.S.C. 552(b)(2), FOIA's Exemption 2. Consistent with that exemption, § 801.52(b) pertains to records regarding internal matters of a relatively trivial nature that have no significant public interest, and predominately internal matters that the release would risk circumvention of a statute or agency regulation. However, the Supreme Court has since held that the exemption “encompasses only records relating to issues of employee relations and human resources.” Milner v. Department of the Navy, 131 S.Ct. 1259 (2011). Accordingly, the NTSB is issuing an interim final rule to remove paragraph (b) from 49 CFR 801.52.

Because the NTSB is an independent agency, this interim final rule does not require an assessment of its potential costs and benefits under section 6(a)(3) of Executive Order (E.O.) 12866, Regulatory Planning and Review, 58 FR 51735 (Sept. 30, 1993). In addition, the NTSB has considered whether this rule would have a significant economic impact on a substantial number of small entities, under the Regulatory Flexibility Act (5 U.S.C. 601-612). The NTSB certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

The NTSB does not anticipate this rule will have a substantial, direct effect on state or local governments or will preempt state law; as such, this rule does not have implications for federalism under E.O. 13132, Federalism, 64 FR 43255 (Aug. 4, 1999).

This rule complies with all applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, 61 FR 4729 (Feb. 5, 1996), to minimize litigation, eliminate ambiguity, and reduce burden. The NTSB has evaluated this rule under: E.O. 12898, Federal Actions to Address Environmental Judice in Minority Populations and Low-Income Populations, 59 FR 7629 (Feb. 16, 1994); E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks, 62 FR 19885 (Apr. 21, 1997); E.O. 13175, Consultation and Coordination with Indian Tribal Governments, 65 FR 67249 (Nov. 6, 2000); E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355 (May 18, 2001); and the National Environmental Policy Act, 42 U.S.C. 4321-47. Pursuant to the Paperwork Reduction Act, the NTSB has determined that there is no new requirement for information collection associated with this interim final rule. The NTSB has concluded that this interim final rule neither violates nor requires further consideration under those orders, statutes, E.O.s, and acts.

Accordingly, for the reasons stated in the Preamble, the NTSB amends 49 CFR part 801 as follows:

On January 7, 2021, we published a final rule defining the scope of the MBTA (16 U.S.C. 703 et seq. ) as it applies to conduct resulting in the injury or death of migratory birds protected by the MBTA (86 FR 1134) (hereafter referred to as the “January 7 rule”). The January 7 rule codified an interpretation of the MBTA set forth in a 2017 legal opinion of the Solicitor of the Department of the Interior, Solicitor's Opinion M-37050 (also referred to as the Jorjani Opinion), which concluded that the MBTA does not prohibit incidental take.

As initially published, the January 7 rule was to become effective 30 days later, on February 8, 2021. However, on February 4, 2021, USFWS submitted a final rule to the Federal Register correcting the January 7 rule's effective date to March 8, 2021, to conform with its status as a “major rule” under the Congressional Review Act, which requires a minimum effective date period of 60 days, see 5 U.S.C. 801(a)(3) and 804(2). The final rule extending the effective date of the January 7 final rule itself became effective when it was made available for public inspection in the reading room of the Office of the Federal Register on February 5, 2021, and was published in the Federal Register on February 9, 2021 (86 FR 8715). In that document, we also sought public comment to inform our review of the January 7 rule and to determine whether further extension of the effective date was necessary.

After further review, we decided not to extend the effective date of the January 7 rule beyond March 8. We acknowledged that the January 7 rule would remain in effect for some period of time even if it is ultimately determined, after notice and comment, that it should be revoked. But rather than extending the effective date again, we determined that the most transparent and efficient path forward was instead to immediately propose to revoke the January 7 rule. The proposed rule provided the public with notice of our intent to revoke the January 7 rule, subject to our final decision after consideration of public comments.

We have undertaken further review of the January 7 rule and considered public comments on our proposed revocation rule and determine that the January 7 rule does not reflect the best reading of the MBTA's text, purpose, and history. It is also inconsistent with the majority of relevant court decisions addressing the issue, including the decision of the District Court for the Southern District of New York on August 11, 2020 that expressly rejected the rationale offered in the rule. The January 7 rule's reading of the MBTA also raises serious concerns with Canada, a United States' treaty partner, and for the migratory bird resources protected by the MBTA and underlying treaties. Accordingly, we revoke the January 7 rule and remove the regulation codifying the interpretation set forth in the January 7 rule at 50 CFR 10.14.

At this time, we have not proposed replacement language for the Code of Federal Regulations. This rulemaking simply removes the current regulatory language. A Director's Order clarifying our current enforcement position was issued at the time of this final rule's publication and will come into effect on the effective date of this final rule (see DATES ). We will introduce new policies in the future, including a proposed regulation codifying an interpretation of the MBTA that prohibits incidental take and potentially a regulatory framework for the issuance of permits to authorize incidental take. Concurrent with this final rule, we have also published an advance notice of proposed rulemaking requesting public input on potential alternatives for authorizing incidental take of migratory birds and a Director's Order clarifying our current enforcement position. These new policies and regulatory actions will fully implement the new National Environmental Policy Act (NEPA) Record of Decision (ROD) associated with this revocation rule, which is available at https://www.fws.gov/regulations/mbta/resources.

The MBTA statutory provisions at issue in the January 7 rule have been the subject of repeated litigation and diametrically opposed opinions of the Solicitors of the Department of the Interior. The longstanding historical agency practice confirmed in the earlier Solicitor M-Opinion, M-37041, and upheld by most reviewing courts, had been that the MBTA prohibits the incidental take of migratory birds (subject to certain legal constraints). The January 7 rule reversed several decades of past agency practice and interpreted the scope of the MBTA to exclude any prohibition on the incidental take of migratory birds. In so doing, the January 7 rule codified Solicitor's Opinion M-37050, which itself had been vacated by the United States District Court for the Southern District of New York. This interpretation focused on the language of section 2 of the MBTA, which, in relevant part, makes it “unlawful at any time, by any means, or in any manner, to pursue, hunt, take, capture, kill” migratory birds or attempt to do the same. 16 U.S.C. 703(a). Solicitor's Opinion M-37050 and the January 7 rule argued that the prohibited terms listed in section 2 all refer to conduct directed at migratory birds, and that the broad preceding language, “by any means, or in any manner,” simply covers all potential methods and means of performing actions directed at migratory birds and does not extend coverage to actions that incidentally take or kill migratory birds.

As noted above, on August 11, 2020, a court rejected the interpretation set forth in Solicitor's Opinion M-37050 as contrary to the MBTA and vacated that opinion. Natural Res. Def. Council v. U.S. Dep't of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020) (“ NRDC ”). In late January 2021, two new lawsuits were filed that challenge the January 7 rule. Nat'l Audubon Soc'y v. U.S. Fish & Wildlife Serv., 1:21-cv-00448 (S.D.N.Y. filed Jan. 19, 2021); State of New York v. U.S. Dep't of the Interior, 1:21-cv-00452 (S.D.N.Y. filed Jan. 19, 2021). At the time the January 7 rule was published, the United States had filed a notice of appeal of the NRDC decision in the U.S. Court of Appeals for the Second Circuit. Since that time, the United States filed a stipulation to dismiss that appeal on February 25, 2021, and the Deputy Solicitor permanently withdrew M-37050 on March 8, 2021.

The District Court's decision in NRDC expressly rejected the basis for the January 7 rule's conclusion that the statute does not prohibit incidental take. In particular, the court reasoned that the plain language of the MBTA's prohibition on killing protected migratory bird species “at any time, by any means, and in any manner” shows that the MBTA prohibits incidental killing. See 478 F. Supp. 3d at 481. Thus, the statute is not limited to actions directed at migratory birds as set forth in the January 7 rule. After closely examining the court's holding, we are persuaded that it advances the better reading of the statute, including that the most natural reading of “kill” is that it also prohibits incidental killing.

The interpretation contained in the January 7 rule relies heavily on United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015) ( CITGO ). The Fifth Circuit is the only Circuit Court of Appeals to expressly state that the MBTA does not prohibit incidental take. In CITGO, the Fifth Circuit held that the term “take” in the MBTA does not include incidental taking because “take” at the time the MBTA was enacted in 1918 referred in common law to “[reducing] animals, by killing or capturing, to human control” and accordingly could not apply to accidental or incidental take. Id. at 489 (following Babbitt v. Sweet Home Chapter Cmtys. for a Great Or., 515 U.S. 687, 717 (1995) (Scalia J., dissenting) ( Sweet Home )). While we do not agree with the CITGO court's interpretation of the term “take” under the MBTA, we further note that CITGO does not provide legal precedent for construing “kill” narrowly. The CITGO court's analysis is limited by its terms to addressing the meaning of the term “take” under the MBTA; thus, any analysis of the meaning of the term “kill” was not part of the court's holding.

Moreover, as discussed below and even though it was dicta, we also disagree with the CITGO court's analysis of the term “kill.”

Although the CITGO court's holding was limited to interpreting “take,” the court opined in dicta that the term “kill” is limited to intentional acts aimed at migratory birds in the same manner as “take.” See 801 F.3d at 489 n.10. However, the court based this conclusion on two questionable premises.

First, the court stated that “kill” has little if any independent meaning outside of the surrounding prohibitory terms “pursue,” “hunt,” “capture,” and “take,” analogizing the list of prohibited acts to those of two other environmental statutes—the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq. ) and the Migratory Bird Conservation Act (16 U.S.C. 715 et seq. ). See id. The obvious problem with this argument is that it effectively reads the term “kill” out of the statute; in other words, the CITGO court's reasoning renders “kill” superfluous to the other terms mentioned, thus violating the rule against surplusage. See, e.g., Corley v. United States, 556 U.S. 303, 314 (2009).

Second, employing the noscitur a sociis canon of statutory construction (which provides that the meaning of an ambiguous word should be determined by considering its context within the words it is associated with), the Fifth Circuit argued that because the surrounding terms apply to “deliberate acts that effect bird deaths,” then “kill” must also. See 801 F.3d at 489 n.10. The January 7 rule also relied heavily on this canon to argue that both “take” and “kill” must be read as deliberate acts in concert with the other referenced terms. Upon closer inspection though, the only terms that clearly and unambiguously refer to deliberate acts are “hunt” and “pursue.” Both the CITGO court and the January 7 final rule erroneously determined that “capture” can also only be interpreted as a deliberate act. This is not so. There are many examples of unintentional or incidental capture, such as incidental capture in traps intended for animals other than birds or in netting designed to prevent swallows nesting under bridges. Thus, the CITGO court's primary argument that “kill” only applies to “deliberate actions” rests on the fact that just two of the five prohibited actions unambiguously describe deliberate acts. The fact that most of the prohibited terms can be read to encompass actions that are not deliberate in nature is a strong indication that Congress did not intend those terms to narrowly apply only to direct actions.

The NRDC court similarly rejected the January 7 rule's interpretation of the term “kill” and its meaning within the context of the list of actions prohibited by the MBTA. The court noted the broad, expansive language of section 2 prohibiting hunting, pursuit, capture, taking, and killing of migratory birds “by any means or in any manner.” 478 F. Supp. 3d at 482. The court reasoned that the plain meaning of this language can only be construed to mean that activities that result in the death of a migratory bird are a violation “irrespective of whether those activities are specifically directed at wildlife.” Id. The court also noted that the Sweet Home decision relied upon by the CITGO court and the January 7 rule actually counsels in favor of a broad reading of the term “kill,” even assuming Justice Scalia accurately defined the term “take” in his dissent. The Sweet Home case dealt specifically with the definition of “take” under the ESA, which included the terms “harm” and “kill.” The majority in Sweet Home was critical of the consequences of limiting liability under the ESA to “affirmative conduct intentionally directed against a particular animal or animals,” reasoning that knowledge of the consequences of an act are sufficient to infer liability, including typical incidental take scenarios. Id. at 481-82.

The NRDC court went on to criticize the use of the noscitur a sociis canon in Solicitor's Opinion M-37050 (a use repeated in the January 7 rule). The court reasoned that the term “kill” is broad and can apply to both intentional, unintentional, and incidental conduct. The court faulted the Solicitor's narrow view of the term and disagreed that the surrounding terms required that narrow reading. To the contrary, the court found the term “kill” to be broad and not at all ambiguous, pointedly noting that proper use of the noscitur canon is confined to interpreting ambiguous statutory language. Moreover, use of the noscitur canon deprives “kill” of any independent meaning, which runs headlong into the canon against surplusage as noted above. The court did not agree that an example provided by the government demonstrated that “kill” had independent meaning from “take” under the interpretation espoused by Solicitor's Opinion M-37050. By analogy, the court referenced the Supreme Court's rejection of the dissent's use of the noscitur canon in Sweet Home, which similarly gave the term “harm” the same essential function as the surrounding terms used in the definition of “take” under the ESA, denying it independent meaning. See id. at 484.

The CITGO court, M-37050, and the January 7 rule also cited potential constitutional concerns in rejecting an interpretation of the MBTA that prohibits incidental take—specifically that this interpretation results in implementing the MBTA in a vague and overbroad manner thus violating the constitutional right to due process. Although the NRDC court did not address these concerns because it found the language of the MBTA unambiguous in the context of its application to incidental take, these concerns also do not counsel in favor of rejecting that interpretation even if the relevant language is considered ambiguous. The constitutional concerns cited in the January 7 rule can be addressed simply by noting that the Act's reach within the context of incidental take is limited by applying the standard legal tools of proximate causation and foreseeability—as explained by the Tenth Circuit in United States v. Apollo Energies, 611 F.3d 679 (10th Cir. 2010) and in M-37041—and by adopting policies and regulations that eliminate potential prosecutorial overreach and absurd results. Upon revocation of this rule, we issued a Director's Order clarifying our current enforcement position and will consider developing a regulatory authorization framework, as explained below. These policies will eliminate any potential constitutional concerns by providing the public with adequate notice of the scope of potential liability under the MBTA and how any potential violations may be avoided or authorized.

In sum, after further review of the January 7 rule and the CITGO and NRDC decisions, along with the language of the statute, we now conclude that the interpretation of the MBTA set forth in the January 7 rule and Solicitor's Opinion M-37050, which provided the basis for that interpretation, is not the construction that best accords with the text, purposes, and history of the MBTA. It simply cannot be squared with the NRDC court's holding that the MBTA's plain language encompasses the incidental killing of migratory birds. Even if the NRDC court's plain-language analysis were incorrect, the operative language of the MBTA is at minimum ambiguous, thus USFWS has discretion to implement that language in a manner consistent with the conservation purposes of the statute and its underlying Conventions that avoids any potential constitutional concerns. Reference to case law in general or legislative history can be interpreted to bolster either interpretation as demonstrated by the relevant analysis in the January 7 rule versus that of the initial Solicitor's Opinion, M-37041, thus is of limited assistance if the relevant language is indeed ambiguous. In any case, the Service certainly has discretion to revoke the January 7 rule given the legal infirmities raised by the NRDC court and the rule's reliance on the CITGO decision.

To the extent that the primary policy justifications for the January 7 rule were resolving uncertainty and increasing transparency through rulemaking, we do not consider these concerns to outweigh the legal infirmities of the January 7 rule or the conservation purposes of the statute and its underlying Conventions. Interpreting the statute to exclude incidental take is not the reading that best advances these purposes or provides the most natural reading of section 2, which is underscored by the following additional reasons for revoking the current regulation.

First, the January 7 rule is undermined by the 2002 legislation authorizing military-readiness activities that incidentally take or kill migratory birds. In that legislation, Congress temporarily exempted “incidental taking” caused by military-readiness activities from the prohibitions of the MBTA; required the Secretary of Defense to identify, minimize, and mitigate the adverse effect of military-readiness activities on migratory birds; and directed USFWS to issue regulations under the MBTA creating a permanent exemption for military-readiness activities. Bob Stump National Defense Authorization Act for Fiscal Year 2003, Public Law 107-314, Div. A, Title III, section 315 (2002), 116 Stat. 2509 (Stump Act). This legislation was enacted in response to a court ruling that had enjoined military training that incidentally killed migratory birds. Ctr. for Biological Diversity v. Pirie, 191 F. Supp. 2d 161 and 201 F. Supp. 2d 113 (D.D.C. 2002), vacated on other grounds sub nom. Ctr. for Biological Diversity v. England, 2003 U.S. App. Lexis 1110 (D.C. Cir. Jan. 23, 2003). Notably, Congress did not amend the MBTA to define the terms “take” or “kill.” Instead, Congress itself uses the term “incidental take” and provides that the MBTA “shall not apply” to such take by the Armed Forces during “military-readiness activities.” Moreover, Congress limited the exemption only to military-readiness activities, i.e., training and operations related to combat and the testing of equipment for combat use. It expressly excluded routine military-support functions and the “operation of industrial activities” from the exemption afforded by the 2002 legislation, leaving such non-combat-related activities fully subject to the prohibitions of the Act. Even then, the military-readiness incidental take carve-out was only temporarily effectuated through the statute itself. Congress further directed the Department of the Interior (DOI or the Department) “to prescribe regulations to exempt the Armed Forces for the incidental taking of migratory birds during military readiness activities.”

This would be an odd manner in which to proceed to address the issue raised by the Pirie case if Congress' governing understanding at the time was that incidental take of any kind was not covered by the Act. Congress simply could have amended the MBTA to clarify that incidental take is not prohibited by the statute or, at the least, that take incidental to military-readiness activities is not prohibited. Instead, Congress limited its amendment to exempting incidental take only by military-readiness activities, expressly excluded other military activities from the exemption, and further directed DOI to issue regulations delineating the scope of the military-readiness carve-out from the incidental-take prohibitions of the Act. All of these factors indicate that Congress understood that the MBTA's take and kill prohibitions included what Congress itself termed “incidental take.”

In arguing that Congress's authorization of incidental take during military-readiness activities did not authorize enforcement of incidental take in other contexts, the January 7 rule cites the CITGO court's conclusion that a “single carve-out from the law cannot mean that the entire coverage of the MBTA was implicitly and hugely expanded.” CITGO, 801 F.3d at 491. It is true that the Stump Act did not, by its terms, authorize enforcement of incidental take in other contexts. It clearly could not do anything of the sort, based on its narrow application to military-readiness activities. Rather, the logical explanation is that Congress considered that the MBTA already prohibited incidental take (particularly given USFWS's enforcement of incidental take violations over the prior three decades) and there was no comprehensive regulatory mechanism available to authorize that take. Thus, it was necessary to temporarily exempt incidental take pursuant to military-readiness activities to address the Pirie case and direct USFWS to create a permanent exemption. This conclusion is supported by the fact that Congress specifically stated in the Stump Act that the exemption did not apply to certain military activities that do not meet the definition of military readiness, including operation of industrial activities and routine military-support functions.

On closer inspection, the CITGO court's analysis of the purposes behind enactment of the military-readiness exemption is circular. Assuming the military-readiness exemption is necessary because the MBTA otherwise prohibits incidental take only represents an implicit and huge expansion of coverage under the MBTA if it is assumed that the statute did not already prohibit incidental take up to that point. But Congress would have had no need to enact the exemption if the MBTA did not—both on its terms and in Congress's understanding—prohibit incidental take. The adoption of a provision to exempt incidental take in one specific instance is merely a narrowly tailored exception to the general rule and provides clear evidence of what Congress understood the MBTA to prohibit.

Second, further consideration of concerns expressed by one of our treaty partners counsels in favor of revoking the January 7 rule. The MBTA implements four bilateral migratory bird Conventions with Canada, Mexico, Russia, and Japan. See 16 U.S.C. 703-705, 712. The Government of Canada communicated its concerns with the January 7 rule both during and after the rulemaking process, including providing comments on the environmental impact statement (EIS) associated with the rule.

After the public notice and comment period had closed, Canada's Minister of Environment and Climate Change summarized the Government of Canada's concerns in a public statement issued on December 18, 2020 ( https://www.canada.ca/en/environment-climate-change/news/2020/12/minister-wilkinson-expresses-concern-over-proposed-regulatory-changes-to-the-united-states-migratory-bird-treaty-act.html ). Minister Wilkinson voiced the Government of Canada's concern regarding “the potential negative impacts to our shared migratory bird species” of allowing the incidental take of migratory birds under the MBTA rule and “the lack of quantitative analysis to inform the decision.” He noted that the “Government of Canada's interpretation of the proposed changes . . . is that they are not consistent with the objectives of the Convention for the Protection of Migratory Birds in the United States and Canada.” Additionally, in its public comments on the draft EIS for the MBTA rule, Canada stated that it believes the rule “is inconsistent with previous understandings between Canada and the United States (U.S.), and is inconsistent with the long-standing protections that have been afforded to non-targeted birds under the Convention for the Protection of Migratory Birds in the United States and Canada . . . as agreed upon by Canada and the U.S. through Article I. The removal of such protections will result in further unmitigated risks to vulnerable bird populations protected under the Convention.” After further consideration, we have similar concerns to those of our treaty partner, Canada.

The protections for “non-targeted birds” noted by the Canadian Minister are part and parcel of the Canada Convention, as amended by the Protocol between the United States and Canada Amending the 1916 Convention for the Protection of Migratory Birds in Canada and the United States, which protects not only game birds hunted and trapped for sport and food, but also nongame birds and insectivorous birds. For instance, the preamble to the Convention declares “saving from indiscriminate slaughter and of insuring the preservation of such migratory birds as are either useful to man or are harmless” as its very purpose and declares that “many of these species are . . . in danger of extermination through lack of adequate protection during the nesting season or while on their way to and from their breeding grounds.” Convention between the United States and Great Britain (on behalf of Canada) for the Protection of Migratory Birds, 39 Stat. 1702 (Aug. 16, 1916). Thus, whether one argues that the language of section 2 of the MBTA plainly prohibits incidental killing of migratory birds or is ambiguous in that regard, an interpretation that excludes incidental killing is difficult to square with the express conservation purposes of the Canada Convention. Moreover, until recently there had been a longstanding “mutually held interpretation” between the two treaty partners that regulating incidental take is consistent with the underlying Convention, as stated in an exchange of Diplomatic Notes in 2008. While Canada expressed its position before the final rule published on January 7, upon review, we now have determined that the concerns raised by the United States' treaty partner counsel in favor of revocation of the rule.

In addition to the Canada Convention, the January 7 rule may also be inconsistent with the migratory bird conventions with Mexico, Japan, and Russia. The Japan and Russia Conventions both broadly call for the parties to prevent damage to birds from pollution. See Convention between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, Mar. 4, 1972, 25 U.S.T. 3329 (Japan Convention); Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment, Nov. 19, 1976, 29 U.S.T. 4647 (Russia Convention). The Protocols amending the Canada and Mexico Conventions contain similar language calling for the parties to seek means to prevent damage to birds and their environment from pollution. See Protocol between the Government of the United States and the Government of Canada Amending the 1916 Convention Between the United Kingdom and the United States of America for the Protection of Migratory Birds, Dec. 14, 1995, S. Treaty Doc. No. 104-28, T.I.A.S. 12721; Protocol Between the Government of the United States of America and the Government of the United Mexican States Amending the Convention for the Protection of Migratory Birds and Game Mammals, May 5, 1997, S. Treaty Doc. No. 105-26.

Some of the relevant provisions include article IV of the Protocol with Canada, which states that each party shall use its authority to “take appropriate measures to preserve and enhance the environment of migratory birds,” and in particular shall “seek means to prevent damage to [migratory] birds and their environments, including damage resulting from pollution”; article I of the Mexico Convention, which discusses protecting migratory birds by “means of adequate methods[. . .]”; article VI(a) of the Japan Convention, which provides that parties shall “[s]eek means to prevent damage to such birds and their environment, including, especially, damage resulting from pollution of the seas”; and articles IV(1) and 2(c) of the Russia Convention, which require parties to “undertake measures necessary to protect and enhance the environment of migratory birds and to prevent and abate the pollution or detrimental alteration of that environment,” and, in certain special areas, undertake, to the maximum extent possible, “measures necessary to protect the ecosystems in those special areas . . . against pollution, detrimental alteration and other environmental degradation.”

The January 7 rule eliminates a source of liability for pollution that incidentally takes and kills migratory birds—a position that is difficult to square with the mutually agreed upon treaty provisions agreeing to prevent damage to birds from pollution. The January 7 rule does not directly affect natural resource damage assessments conducted under the Comprehensive Environmental Response Compensation and Liability Act, the Oil Pollution Act, and the Clean Water Act to determine compensation to the public for lost natural resources and their services from accidents that have environmental impacts, such as oil spills. However, for oil spills such as the BP Deepwater Horizon Gulf oil spill and the Exxon Valdez oil spill in Alaska, significant penalties were levied in addition to those calculated under natural resource damage assessments based on incidental-take liability under the MBTA. Those fines constituted a large proportion of the total criminal fines and civil penalties associated with historical enforcement of incidental take violations. As noted in the EIS, the January 7 rule eliminates the Federal Government's ability to levy similar fines in the future, thereby reducing the deterrent effect of the MBTA and the Federal Government's ability to mitigate some of the harm by directing these fines to the North American Wetlands Conservation Act fund for the protection and restoration of wetland habitat for migratory birds.

In sum, the issues raised by the Government of Canada raise significant concerns regarding whether the January 7 rule is consistent with the Canada Convention, and questions also remain regarding that rule's consistency with the other migratory bird Conventions. We note as well that the primary policy justifications for the January 7 rule were resolving uncertainty and increasing transparency through rulemaking. These concerns, however, do not outweigh the legal infirmities of the January 7 rule or the conservation objectives described above. In any case, the Service has issued a Director's Order concurrently with this rule that explains in more detail our enforcement priorities regarding incidental take of migratory birds and published an advance notice of proposed rulemaking to seek public input on an authorization framework. Both actions will provide the public with more clarity and transparency regarding compliance with the MBTA. On these bases, in addition to the legal concerns raised above, we revoke the January 7 MBTA rule.

On May 7, 2021, the Service published in the Federal Register (86 FR 24573) a proposed rule seeking public comment on whether the Service should revoke the final rule published on January 7, 2020, that defined the scope of the MBTA as it applies to conduct resulting in the injury or death of migratory birds protected by the Act. We solicited public comments on the proposed rule for 30 days, ending on June 7, 2021. We received 238 comments. Many comments included additional attachments ( e.g., scanned letters, photographs, and supporting documents). These comments represented the views of multiple State and local government agencies, private industries, nongovernmental organizations (NGOs), and private citizens. In addition to the individual comments received, 3 of those comments were petitions that contained a total of 42,610 individual signatures supporting the revocation of the January 7 rule. We solicited public comments on the following topics:

1. Whether we should revoke the rule, as proposed, and why or why not;

2. The costs or benefits of revoking the rule;

3. The costs or benefits of leaving the rule in place; and

4. Any reliance interests that might be affected by revoking the rule, or not revoking the rule.

The following text presents the substantive comments we received and the Service's response to them.

Comment: There are other statutes besides the MBTA that protect birds, including NEPA, that industry would still have to comply with, and birds would continue to benefit from those protections. State and local laws also prevent the unnecessary killing of birds; therefore, it is unnecessary for the Service to revoke the January 7 rule.

Service Response: The Service recognizes that there are numerous reasons why an entity would continue to implement best practices, including other Federal or State laws, industry standard practices, public perception, etc. These mechanisms could reduce impacts to birds in some circumstances, but do not provide the uniform conservation protections that Federal regulation can provide. In any case, proper interpretation of the MBTA does not change based on whether other statutes or practices may be protective of migratory birds. Rather, the interpretation must be guided by the MBTA itself. Here, the Service believes the best path forward is to revoke the January 7 rule as it presents an interpretation that is not the best interpretation of the MBTA.

Comment: Several commenters stated that they were against revocation of the rule because it would create uncertainty by returning to inconsistent enforcement discretion when incidental take occurs under the MBTA.

Service Response: The Service acknowledges that this final rule, by its terms, simply revokes the January 7 rule by removing the regulatory language at 50 CFR 10.14 and does not purport to replace that regulation with new regulatory language at this time. However, upon revocation of the rule, the Service expects to develop a comprehensive regulatory framework governing MBTA compliance and enforcement to reduce public uncertainty and provide consistent implementation of the MBTA. To begin that process, we issued an advanced notice of proposed rulemaking concurrently with publication of this final rule that requests public input on a potential regulatory framework for authorizing incidental take under the MBTA. In addition, while certainty in application of the law is a significant consideration, ultimately the Service must interpret and implement the MBTA in a manner that best effectuates Congress' intent. For the reasons explained herein, the Service believes that the January 7 rule does not reflect the best reading of the MBTA's text, purpose, and history and therefore should be revoked.

Comment: Several commenters stated they were against the revocation of the final rule as it would create undue economic burden and expose industry to prosecution.

Service Response: The Service acknowledges that implementing best practices to reduce bird mortality from some industry sectors can include increased costs. However, during the January 7 rulemaking process, most industry sectors informed the Service that they would continue to implement best practices regardless of our regulatory position. Thus, we do not expect a significant increase in economic burden on these industries. Moreover, while consideration of regulatory burdens is undoubtedly important, ultimately the Service's interpretation of the MBTA must be guided by the MBTA itself.

Comment: The proposed rule does not reconcile varying court decisions or discuss how the Service would address MBTA enforcement.

Service Response: Upon revocation of the January 7 rule, the Service will apply enforcement discretion and not prioritize investigating projects that implement best practices to avoid and minimize impacts to migratory birds. Enforcement of the MBTA would be applied consistent with applicable case law. As noted in the proposed rule preamble, reference to case law can be used to bolster either interpretation as demonstrated by the relevant analysis in the January 7 rule concluding that case law bolsters the interpretation that the MBTA does not prohibit incidental take versus the opposite conclusion in the initial Solicitor's Opinion, M-37041. Thus, case law is of limited assistance and cannot be reconciled in adopting either interpretation. On balance, we conclude that case law generally favors an interpretation that the MBTA prohibits incidental take as explained in M-37041, but we acknowledge there are cases, such as the CITGO case in the Fifth Circuit Court of Appeals, that adopt the opposite interpretation. In the longer term, the Service expects to implement a comprehensive regulatory framework governing MBTA compliance and enforcement to reduce public uncertainty and provide consistent implementation of the MBTA.

Comment: Some commenters stated that the rule should not be revoked until an enforcement policy, general permit system, or de minimis standard for incidental take is developed.

Service Response: Given the Service's conclusion that the January 7 rule does not reflect the best interpretation of the MBTA, the Service decided that the appropriate initial step is to immediately revoke that rule before the Service considers a replacement policy or regulation. The Service issued a Director's Order concurrently with this final rule that clarifies how the MBTA will be implemented and enforced after this final rule becomes effective. The Service will consider developing an appropriate regulatory framework to authorize incidental take consistent with application of best management practices in the future.

Comment: Several commenters stated that they were neutral regarding revocation of the rule, but that if the Service finalized revocation, it should then promulgate a rule that creates a permitting program so that industry would have a means of compliance and legal certainty.

Service Response: Upon revocation of the January 7 rule, the Service will evaluate options to develop a formal approach to authorize compliance with the MBTA in the context of incidental take of migratory birds.

Comment: Some commenters stated they will continue to use best practices to avoid and minimize bird mortality regardless of the regulatory approach adopted by the Service.

Service Response: The Service acknowledges and appreciates industry efforts to reduce impacts on migratory birds regardless of MBTA policy positions. The Service envisions any future regulatory approach to authorizing incidental take will be rooted in the implementation of industry best practices. We will continue to work with industry to provide guidance on the appropriateness and implementation of those best practices.

Comment: Some commenters stated that, while reversing the rule was a positive first step, it must be followed by rulemaking that establishes an incidental take permitting system.

Service Response: Upon revocation of the January 7 rule, the Service will evaluate options for developing a regulatory approach to resolve any uncertainties pertaining to MBTA compliance. In the short term, the Service issued a Director's Order clarifying our current enforcement position and an advanced notice of proposed rulemaking to inform development of a longer-term proposal to implement an incidental take authorization framework.

Comment: The Service should revoke the January 7 rule and return to the previous interpretation that incidental take is prohibited by the MBTA because that interpretation is more aligned with judicial precedent.

Service Response: We agree that the interpretation that incidental take is prohibited under the MBTA is consistent with judicial precedent in many jurisdictions and is the best interpretation of the law. Upon revocation of the January 7 rule, we will return to our prior interpretation that the MBTA prohibits incidental take. However, we will also engage in rulemaking to codify the interpretation that the MBTA prohibits incidental take to provide the public with greater clarity regarding what violations of the MBTA we will prioritize for enforcement.

Comment: One commenter argued that if the January 7 rule is revoked, all contracts affected by reliance on the January 7 rule need to be grandfathered to avoid impacting the terms under which those contracts were negotiated.

Service Response: Any contracts entered into that may be affected by reliance on the January 7 rule are not within the Service's jurisdiction to address. The Service does not have the authority to mandate any alteration of private contracts, nor does it believe it necessary to create a regulatory carve-out for contracts negotiated in good faith and placed into effect during the period between March 8 when the January 7 rule went into effect and the date this final rule will become effective (see DATES ). We will continue to work with companies on a case-by-case basis and encourage implementation or continued use of best management practices that avoid or minimize incidental take of migratory birds. We will consider any potential effect of reliance on the short-term applicability of the January 7 rule in working with those companies and in prioritizing our enforcement resources.

As noted above, the Service requested comments on specific reliance interests that might be affected by revocation of the rule. We received several comments such as this one that generally stated how reliance interests may be affected by revoking the rule but without providing specific instances to corroborate those statements. No commenters identified any specific circumstances or situations where entities had relied on the January 7 rule and as a result their reliance interest would be affected by the rule's revocation. Moreover, many commenters noted that entities would continue to implement best management practices and conservation measures for a variety of reasons despite the January 7 rule, including compliance with federal and state regulations other than the MBTA.

Comment: Revocation of the January 7 rule is appropriate because birds provide substantial economic benefits via recreational bird watching/hunting and fines for MBTA violations contribute to bird conservation actions.

Service Response: The Service agrees that birds provide significant economic benefits for bird watching, bird hunting, and general enjoyment by the American public. Birds also provide critical ecosystems services reducing the costs and need for pest control, pollination, and other services beneficial to humans.

Comment: Many commenters supported revocation of the January 7 rule and urged the Service to work with States and industries to find best practices to balance industry needs and bird protections.

Service Response: The Service has and will continue to work with Federal and State agencies, NGOs, and industry to identify, develop, and evaluate actions that either avoid or minimize the impacts to migratory birds. The Service will continue to develop policies and regulations to further develop this cooperative approach. This approach will provide a resilient, long-term framework for implementing the MBTA that will provide long-term certainty to the regulated community and improved conservation of migratory birds.

Comment: Revoking the January 7 rule is best for bird conservation and reduces the chance that a species may eventually need to be listed as threatened or endangered.

Service Response: The Service agrees that working with Federal and State agencies, NGOs, and industry to avoid and minimize the incidental take of migratory birds is critical to the conservation of migratory birds and may reduce the number of bird species that require protection under the Endangered Species Act in the long term.

Comment: Existing science supports leaving the January 7 rule in place because predators are a significant source of threats to migratory birds according to a Service website ( https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php ). Thus, the Service should focus its efforts and use scientifically sound conservation and policies to address those impacts.

Service Response: The Service agrees that predators are a source of mortality for birds. However, the rule the Service revokes applies to the incidental take of birds caused directly by human activities, not to predator impacts in general. Incidental take of birds is a leading cause of avian mortality, and the Service's revocation of the January 7 rule will help reduce the effects of incidental take on migratory bird populations. Moreover, proper interpretation of the MBTA does not change based on whether non-human factors adversely impact migratory birds. Rather, the interpretation must be guided by the MBTA itself.

Comment: The January 7 rule should be revoked because the MBTA has proven to be a highly successful tool for co-management, regulation, and mitigation of negative effects on migratory bird populations across State and international borders, strengthening the collaborative conservation efforts between State, Tribal, territorial, provincial, and Federal agencies as well as the four regional Flyway Councils. State agencies and their conservation partners have long expressed the need for the protections this rule would provide.

Service Response: The Service agrees the MBTA is one of the best tools for the conservation and management of migratory birds and looks forward to working with all stakeholders in developing additional steps to clarify its implementation of the MBTA in the context of incidental take. The Service will provide the public with opportunities to comment on reasonable implementation alternatives throughout that process.

Comment: Repeal of the January 7 rule would greatly expand the Service's interpretation of the MBTA and expose incidental-take violations to criminal prosecution.

Service Response: The commenter is correct that revoking the January 7 rule will allow for prosecution of actions that incidentally take migratory birds. The Service will rely on judicious use of enforcement discretion to determine whether to enforce the statute in these situations as it did for decades prior to the recent change in interpretation codified by the January 7 rule.

Comment: The interpretation of the MBTA codified at 50 CFR 10.14 by the January 7 rule better accords with the language and purpose of the MBTA as passed by Congress. Focusing on the plain language of the MBTA and appropriate canons of statutory construction results in an interpretation consistent with that codified at 50 CFR 10.14, which thus should not be revoked.

Service Response: We disagree with the commenter for the reasons spelled out in the preamble to this final rule. Applying canons of statutory construction to the relevant language in the MBTA has resulted in courts reaching opposite conclusions regarding whether the plain language of the MBTA prohibits or excludes incidental take of migratory birds.

Comment: The Service should consult with other Federal agencies, including the Department of Justice to ensure that this rulemaking is constitutional.

Service Response: This rulemaking has undergone a rigorous interagency review process, as required by Executive Order 12866.

Comment: The Service's interpretation of the MBTA is not entitled to Chevron deference because Chevron deference is an unconstitutional abdication of the judicial role of independent judgment, violates the separation of powers, and contravenes due process.

Service Response: The Service is revoking the January 7 rule because it does not represent the best interpretation of the MBTA, whether the operative statutory language is plain or ambiguous. We do not opine here on the constitutionality of Chevron deference. Any concerns about whether the case giving rise to the concept of Chevron deference was correctly decided are both outside the Service's jurisdiction under the MBTA and, more to the point, not directly relevant to our decision to revoke the January 7 rule.

Comment: The proposed rule incorrectly focuses on five of the acts prohibited by the MBTA in section 703. But section 703 prohibits 22 acts, almost all of which involve deliberate acts. Thus, application of the noscitur a sociis canon strongly favors interpreting the prohibited acts to involve deliberate actions. Even if “take,” “kill,” and even “capture” are ambiguous terms that could apply to both direct and indirect actions, there are 19 other terms that apply to direct actions; therefore, the most natural reading is that Congress intended all 22 terms to apply to deliberate acts directed at migratory birds.

Service Response: As both the proposed rule, the January 7 rule, and the Jorjani Opinion all conclude, the operative terms that are relevant to determining whether the MBTA prohibits incidental take are the five terms “hunt, pursue, capture, kill, and take.” The remaining 17 terms all relate to activities that comprise commercial use of migratory birds, which necessarily entail an act directed at migratory birds given they all require possession or attempted possession. The 17 actions related to commercial use are simply not relevant to whether the MBTA prohibits incidental taking or killing of migratory birds. Those actions are only relevant once a migratory bird has already been taken, captured, or killed. Given that at least two, and likely three, of the five operative terms are ambiguous and could apply to direct or incidental actions, application of the noscitur a sociis canon to bolster either interpretation is highly suspect.

Comment: The Service's reliance on the military-readiness authorization mandated by the Stump Act to demonstrate that Congress interpreted the MBTA at that time to prohibit incidental take is misplaced. The Stump Act stated that the MBTA does not apply to incidental take during military-readiness activities in the first place and mandated that the Service issue a regulation acknowledging that such activities are not subject to the MBTA. The Stump Act provides for the continued exemption of any incidental take caused by military-readiness activities rather than providing for an authorization of incidental take by the Service.

Service Response: This argument relies on a selective reading of the Stump Act. The Stump Act's statement that the MBTA does not apply to military-readiness activities was not a general statement of the MBTA's applicability at that time, but instead a specific and temporary exemption for incidental take caused by military- readiness activities until the Service developed and published a rule specifically exempting those activities. Far from proving that the Service never had authority to prohibit incidental take caused by military-readiness activities in the first place, the explicit temporary nature of the exemption strongly implies the exact opposite. Moreover, the rule promulgated by the Service with the concurrence of the Secretary of Defense as required by the Stump Act calls for suspension or withdrawal of the authorization if certain conditions occur. Thus, the permanence of the exemption is conditional. The Stump Act describes the relevant regulations to be prescribed as both “authorizing incidental take” and “to exempt the Armed Forces for the incidental take of migratory birds.” Thus, it is certainly reasonable to infer that the Service may condition that take as it did in the military-readiness rule whatever label is given to that authority.

Comment: The proposed revocation rule suggests that the Stump Act's explicit authorization of incidental take during military readiness activities “reflects a change in Congress' `governing understanding' of the MBTA, and that henceforth incidental take from any activity other than military readiness activities could be criminally prosecuted.”

Service Response: This is a mischaracterization of the proposed rule that echoes the Fifth Circuit's analysis of the Stump Act in CITGO. The Service does not argue that the military-readiness authorization represented a change in congressional interpretation of the MBTA that suddenly applied incidental take prohibitions to all activities not involving military readiness. In fact, the opposite is true. The Stump Act makes clear that Congress already interpreted the MBTA to prohibit incidental take and the military-readiness exception would simply not have been necessary if Congress had instead considered the MBTA to exclude incidental take at that time. If Congress had considered the scope of the MBTA to exclude incidental take at the time and simply wanted to shield the military from further litigation over its military-readiness activities, it could easily have signaled that intent and clarified that it did not consider the MBTA to prohibit incidental take. The specific exceptions from the authorization in the legislation for non-readiness activities such as the routine operation of installation operating support functions are best understood not to support a reading that the authorization was intended as a narrow exemption to shield the military from further MBTA litigation even though Congress considered the MBTA not to prohibit incidental take.

Comment: If the Service revokes the January 7 rule, it will be free to use the responsible-corporate-officer doctrine to bring criminal charges against corporate executives whose companies may cause incidental harm to migratory birds.

Service Response: Decisions regarding whether to file criminal charges are made by the Department of Justice, in accordance with publicly available policies of that Department. In the decades prior to the January 7 rule, the Service is not aware of charges having been brought by the Department of Justice against corporate executives for incidental take, under the MBTA, caused by their companies.

Comment: Application of the MBTA to incidental take is inconsistent with the Service's general regulation defining “take” to mean “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt [those acts].” 50 CFR 10.12. Each of these words connotes an active effort to harm a migratory bird and thus excludes actions that may incidentally and indirectly lead to such harm.

Service Response: This argument is simply an extension of the noscitur a sociis argument that relies on interpreting terms such as “kill,” “wound,” and “capture” as unambiguously referring to acts directed at migratory birds because of their placement in a list of other terms that can only be construed as directed at birds. However, the fact that those terms could equally apply to incidental conduct undermines that argument. Moreover, the Service clearly did not interpret its own regulation in that manner when it enforced the MBTA in the context of incidental take for over 40 years prior to publication of the Jorjani Opinion. Moreover, Executive Order 13186, which interprets the term “take” in 50 CFR 10.12 to apply to both intentional and unintentional take, has not been amended or repealed since its issuance in 2001 (66 FR 3853, January 17, 2001). The Service's interpretation of 50 CFR 10.12 to apply to incidental taking and killing in the context of the MBTA has been longstanding prior to 2017, and thus, the revocation rule is not breaking new ground and is not inconsistent with that regulation.

Comment: The revocation of an existing rule requires an environmental assessment under NEPA. Because the Service drafted an EIS to accompany the original rule after determining it was a major Federal action, revocation is also a major Federal action requiring further NEPA review.

Service Response: Revocation of the existing rule and a return to the Service's prior interpretation of the MBTA is addressed in the EIS associated with the January 7 rule as Alternative B. We have issued a new Record of Decision that reflects our selection of Alternative B and describes how we will implement that alternative. Supplementation of the prior EIS is not necessary as none of the criteria for supplementation have been met. Our determination that supplementing the prior EIS is not necessary is explained in more detail in the Record of Decision (ROD) associated with this revocation rule, which is available at https://www.fws.gov/regulations/mbta/resources.

Comment: It is improper to ignore three different circuit court conclusions that conclude the MBTA does not prohibit incidental take and instead rely on a district court decision.

Service Response: As explained in the preamble to this final rule, we have not ignored the conclusions of any of the circuit courts that have ruled on this issue. One circuit court has clearly held that the MBTA does not prohibit incidental take, and two circuit courts have held that it does. Other circuit courts have opined on the issue in dicta. We have assessed all these court decisions in reaching our decision to revoke the January 7 rule.

Comment: The Service should not write a regulation to declare the scope and meaning of a statute over 100 years after its enactment. The Service should revoke the January 7 rule but should not replace it with a regulation codifying a different interpretation of the MBTA.

Service Response: While we agree with the commenter that the January 7 rule should be revoked, we do not agree that the Service lacks authority to interpret the MBTA. Congress specifically provided the Secretary of the Interior with the authority to implement the MBTA. The Secretary has delegated that authority to the Service. Implementation of legislation often requires an agency to clarify language in the statute that is ambiguous and impliedly left to the agency's discretion to interpret and clarify. An agency may also clarify the plain meaning of a statute if it determines there is no ambiguity.

Comment: Revoking the January 7 rule would result in significant uncertainty and potentially harsh and inequitable consequences for key sectors of U.S. industry through a return to uneven enforcement discretion.

Service Response: The Service agrees that splits of opinion in circuit courts regarding the applicability of incidental take requires clarification, which the Service has the authority to address through enforcement discretion and policy. However, the Service has a history of working with industry to employ best practices to reduce incidental take under the MBTA and pursued only the most egregious offenders. Thus, the Service disagrees that application of enforcement discretion will result in “harsh and inequitable consequences.” Further, the Service will continue to develop clearer standards for regulation of incidental take to reduce uncertainty and to ensure enforcement is not uneven. We have also issued a Director's Order concurrently with this final rule that clarifies our current enforcement position and how the Service will prioritize enforcement actions when this rule becomes effective.

Comment: The Service should retain a bright-line standard that the MBTA does not prohibit incidental take. A bright-line rule provides important certainty to a wide range of entities.

Service Response: While we disagree that the MBTA does not prohibit incidental take, we agree that a bright-line standard is a preferable long-term solution to address actions that incidentally take migratory birds. We will continue to work, after publication of this revocation rule, to develop a bright-line standard governing regulation of incidental take under the MBTA that provides certainty to regulated entities.

Comment: Retaining the January 7 rule will not result in significant negative impacts to avian species because companies are already motivated to conserve those species through implementation of best management practices and are already subject to a wide range of other Federal, State, and local avian protection laws.

Service Response: The Service understands that a number of other Federal, State, and local laws and regulations provide some protection to birds. However, these laws and regulations vary by State, and companies are currently free to cease best practices that were undertaken based on compliance with the MBTA. This situation has significant potential for negative impacts to migratory birds from current and future industry projects.

Comment: Retaining the January 7 rule will promote better dialogue and more cooperation by removing the potential for negative repercussions resulting from candid communications with the Service. Companies will work more collaboratively with the Service in an environment of certainty and mutual understanding. Current efforts are supporting migratory birds and reducing impacts, including voluntary efforts like the Land-based Wind Energy Guidelines and Avian Protection Plan Guidelines for power lines, as well as grant programs like America's Conservation Enhancement Act of 2020, Neotropical Migratory Bird Conservation Act, Great American Outdoors Act, Farm Bills, and the North American Waterfowl Management Plan.

Service Response: The Service agrees that industries attempting to employ best practices deserve encouragement and support from the Service, including candid communications. The Service will continue to work collaboratively after revocation of this rule to create clear and achievable standards for regulated entities. The Service agrees that the grant programs mentioned help to conserve and restore habitat for migratory birds and that the guidelines provide useful suggestions that some industries may follow to help avoid or reduce incidental take of migratory birds. The Service concludes, however, that prohibition of incidental take is consistent with the best interpretation of the MBTA and that this tool is necessary to help slow the decline of many species of migratory birds.

Comment: One commenter stated that the January 7 rule should not be revoked because it provides regulatory certainty and supports current efforts to improve U.S. infrastructure.

Service Response: While the Service agrees that the January 7 rule provides regulatory certainty, we also believe that prohibition of incidental take is consistent with the best legal interpretation under the MBTA. Further, the Service has a long track record of working with industry to avoid and minimize incidental take while also allowing infrastructure plans to proceed. The Service disagrees with the assertion that revoking the January 7 rule will inevitably add significant cost and delays to the implementation of infrastructure programs, nor does it agree with the assertion that protecting migratory birds from incidental take will delay climate benefits provided by new, resilient infrastructure.

Comment: The Service has failed to provide an adequate rationale for its change in policy and position on whether the MBTA prohibits incidental take, and thus violates the Administrative Procedure Act.

Service Response: We respectfully disagree and refer the commenter to the detailed explanation and rationale provided in the preamble to this rule. It is important to note that this rule, by its terms, does nothing more than revoke the language at 50 CFR 10.14 that codifies an interpretation that the MBTA does not prohibit incidental take. We are not proposing replacement language at this time. However, we will propose to do so in the near future and continue to develop and publish policies and regulations that provide the public with greater certainty regarding compliance with the MBTA.

Comment: In the January 7 rule, the Service stated it had grave constitutional due process concerns with the prior agency practice of using enforcement discretion to implement the Service's prior interpretation that the MBTA prohibits incidental take. The Service has not explained why those due process concerns have disappeared in considering revocation of the January 7 rule.

Service Response: In promulgating this revocation rule, we reevaluated the constitutional concerns we previously categorized as grave. Our previous enforcement policy implemented prior to the Jorjani Opinion was exercised judiciously, focusing on implementation of best practices by various industries to mitigate incidental take of migratory birds. The Service's practice was to notify industries that their actions caused incidental take and give them an opportunity to implement best practices to avoid or mitigate that take prior to bringing any enforcement action. This approach is entirely consistent with that set forth by the Tenth Circuit Court of Appeals in United States v. Apollo Energies, an approach the court considered would alleviate any due process concerns associated with using enforcement discretion to implement the statute in the context of incidental take. A close examination of the past history of the Service's exercise of enforcement discretion simply does not invoke significant constitutional due process concerns. Moreover, after revocation of the January 7 rule, we will develop further policy to implement our interpretation that the MBTA prohibits incidental take to provide the public with greater certainty regarding enforcement, including promulgating a regulation that codifies our current interpretation of the MBTA. We have also issued a Director's Order concurrently with the publication of this rule that explains in more detail our enforcement priorities regarding incidental take of migratory birds and published an advance notice of proposed rulemaking to seek public input on an authorization framework. Both actions will provide the public with more clarity regarding compliance with the MBTA and alleviate any potential remaining constitutional due process concerns.

Comment: The Service should take public comment on alternatives to the proposed revocation rather than framing the proposed rule as a take-it-or-leave-it offer.

Service Response: At this stage, the Service simply proposed to revoke the January 7 rule and return to the longstanding prior agency practice of interpreting the MBTA to prohibit incidental take. The alternatives of keeping the rule in place or revoking it are entirely consistent with the alternatives proposed during development of the January 7 rule and analyzed in the accompanying EIS. Thus, the proposal to revoke that rule was entirely in keeping with the approach taken in the January 7 rule itself. As explained in the Record of Decision for this rulemaking, the Service will develop additional steps to clarify its implementation of Alternative B of the EIS developed in association with the January 7 rule. The Service will provide the public with opportunities to comment on reasonable implementation alternatives throughout that process.

Comment: Interpreting the MBTA to prohibit incidental take produces absurd results, such as prosecution of bird deaths caused by automobiles, airplanes, plate-glass modern office buildings, or picture windows in residential buildings.

Service Response: This concern is simply not borne out by the Service's past practice. The Service has not brought an enforcement action for any of the actions presented by the commenter as absurd targets of enforcement. Interpreting the MBTA to prohibit incidental take has not led to absurd results in the past, and this past practice demonstrates there is no reason to believe it will lead to absurd results in the future. The Service also notes, as reflected in the associated Record of Decision, that this revocation rule is simply the first step in a process to implement a fair and public process to clarify the scope of the MBTA as it relates to incidental take and explain how regulated entities may comply with the MBTA in that context.

Comment: Revoking the January 7 rule could potentially subject to criminal liability an effectively limitless number of lawful everyday activities. No one would have fair notice of which of their daily activities could cause them to commit a Federal crime, and no one can sufficiently conform their behavior to fully avoid that liability.

Service Response: We do not agree that simply revoking the January 7 rule will automatically subject a limitless number of everyday activities to potential criminal liability. That scenario has never been the case under the Service's past enforcement of the MBTA and will not be the case after revocation of the January 7 rule. Prior to issuance of the Jorjani Opinion, the Service followed the direction of the 10th Circuit Court of Appeals in the United States v. Apollo Energies case by providing potential violators with notice of any activities that are causing incidental take and an opportunity to correct or mitigate that take before considering moving forward with an enforcement action. The Service has published an enforcement policy in the form of a Director's Order concurrently with this rule and will provide further clarification regarding its approach to enforcing the MBTA after revocation of the January 7 rule. This approach will give the regulated community fair notice of what actions the Service will consider to be violations of the statute.

Comment: The Service should not use potential funding that could be generated by criminalizing incidental take as a basis for revoking the January 7 rule.

Service Response: The Service did not intend to suggest that funding of the North American Wetlands Conservation Act fund through criminal fines resulting from enforcement of incidental take provides a basis for revoking the January 7 rule. Our intent in including this information is to provide a complete accounting to the public on the effect of the January 7 rule's codification of an interpretation that the MBTA does not prohibit incidental take.

Comment: The Service should retain the January 7 rule and review all MOUs (memorandums of understanding) drafted pursuant to Executive Order 13186 to ensure they conform to the January 7 rule.

Service Response: Executive Order 13186 and any MOUs entered into to comply with the Executive order have remained in effect through both the January 7 rulemaking and this rulemaking to revoke the January 7 rule. The various interagency MOUs conform to the Executive Order and are not contingent on any rulemaking interpreting whether the MBTA prohibits or excludes incidental take.

Comment: The MBTA's reliance on criminal penalties may be an appropriate deterrence for illegal hunting or trade, but not for unintentional take. If the MBTA is read to apply to any and all take of migratory birds, the agency is left to decide, with minimal direction, what causes of bird mortality to pursue, and among those, what conduct warrants sanctions. However, the Service can easily provide greater certainty, and make better use of its own resources, through the issuance of a formal MBTA enforcement policy issued contemporaneously with adoption of the proposed revocation rule.

Service Response: The Service agrees that applying the MBTA to each and every case of incidental take of a migratory bird is not feasible or desirable and would not be an efficient use of agency resources. The Service also agrees that issuing a formal enforcement policy upon revocation of the January 7 rule would be beneficial and provide the public with greater certainty regarding what activities may be subject to enforcement. Therefore, the Service has issued an enforcement policy in the form of a Director's Order upon publication of this rule to revoke the January 7 rule as part of a broader strategy to provide the public with greater certainty regarding what the MBTA prohibits along with guidance to achieve compliance.

Comment: If the Service determines that revocation of the 2021 rule is necessary, the Service must take the appropriate steps to resolve the regulatory uncertainty and enforcement concerns that stem from that approach. In promulgating regulations and establishing a program to address incidental take, the Service must use the authority provided by section 2 of the MBTA to craft exceptions to the conduct prohibited under the MBTA.

Service Response: The Service will take this comment into account in considering whether to develop an authorization framework for incidental take after finalizing this revocation rule. The Service is considering various methods to standardize enforcement, provide public certainty, and authorize incidental take, but those issues are beyond the scope of this rulemaking. Developing regulations that authorize incidental take and provide specific exceptions are among the options the Service is considering.

Comment: If the January 7 rule is revoked, one State agency stated it will lose the benefit of being shielded from incidental take liability when conducting habitat-enhancement activities, such as prescribed burns. That State requested that the Service create an exemption for such activities and proposed specific language for the exemption.

Service Response: The Service will take this comment into account in considering whether to develop an authorization framework for incidental take after finalizing this revocation rule. We will also consider the request for exceptions or exemptions, as well as the specific language provided by the commenter, in such a framework. We recognize that habitat-enhancement activities, including prescribed burns, can result in incidental take in the short term but can also provide positive benefits to migratory birds in the medium-to-long term that may outweigh any short-term incidental take. For these reasons, prescribed burns following best management practices to enhance wildlife habitat were not a priority for enforcement during the several decades the Service interpreted the MBTA to prohibit incidental take prior to the change in interpretation precipitated by the Solicitor's Opinion, M-37050.

Comment: Given that the Trump administration's interpretation of the MBTA was found invalid by a Federal court, the commenter was concerned the Service's slow approach to revoking the rule and enacting new rules to protect migratory birds will leave vulnerable bird populations unprotected for an unnecessarily long period of time. We encourage the Service to move quickly to restart enforcement of the MBTA against industrial actions that lead to harm or death of birds.

Service Response: With this rule, the Service has revoked the January 7 rule. We have issued a Director's Order concurrently with this rule that explains our enforcement policy when the revocation rule becomes effective.

Comment: Revoking the January 7 rule is a necessary first step to comply with congressional language and intent and protect migratory birds from additional population declines. But the Service must not stop there. A robust regulatory system is necessary to reduce the rate of incidental take associated with many types of commercial, agricultural, and industrial activities. The energy and telecommunications sectors in particular must be better regulated to reduce incidental take.

Service Response: The Service does not intend revocation of the January 7 rule to be the last step in implementing the MBTA. The Service is considering various methods to standardize enforcement, provide public certainty, and authorize incidental take. Developing regulations that authorize incidental take by providing a permit system, regulatory authorizations, or specific exceptions are among the options the Service is considering.

Comment: The bycatch of seabirds in fisheries is a conservation concern that the Service can effectively mitigate through the establishment of a regulatory process that incorporates conservation measures into incidental take permits.

Service Response: The Service agrees that incidental bycatch of seabirds is a serious conservation concern. We will evaluate this proposal as we consider and develop methods that include standardization of enforcement, providing greater public certainty, and potential authorization of incidental take.

Comment: The SBREFA (Small Business Regulatory Enforcement Fairness Act) analysis and other potentially important analyses of the impacts of the proposed revocation were missing from the rulemaking docket.

Service Response: The Service completed the SBREFA analysis and all other required analyses and included the summary in the proposed rule preamble. Unfortunately, the documents themselves were not included in the rulemaking docket at www.regulations.gov with the proposed rule. To resolve this issue, the Service made the initial regulatory flexibility analysis and the revised regulatory impact analysis available for public review and comment prior to finalizing this rule and the Record of Decision (86 FR 38354, July 20, 2021).

Comment: One commenter recommended reopening public comment for 60 days with separate comment periods for the Regulatory Flexibility Act analysis.

Service Response: The Service concluded that a 30-day comment period was sufficient for this rulemaking. The Service also provided an additional 30-day comment period for public review of the Regulatory Flexibility Act analysis and regulatory impact analysis. The issues central to this rulemaking have already been vetted through multiple public comment periods for the January 7 rule and associated NEPA analysis and the rule extending the effective date of the January 7 rule. Therefore, the Service concluded a 30-day comment period is sufficient for this rulemaking.

Comment: The Service should allow Federal courts to determine the scope of what the MBTA proscribes and adopt prosecutorial guidelines that outline the circumstances in which the Federal Government will file criminal prosecutions under the MBTA. The executive branch has relied on the prosecutorial discretion approach to refrain from prosecuting MBTA cases where there was no element of intentional misconduct or grossly culpable negligence for decades. However, some unwarranted prosecutions have occurred. The executive branch should write fresh guidelines based on a standard of due care, rather than strict liability, with the benefit of stakeholder input rather than the Service codify its interpretation of the statute.

Service Response: The Service does not agree that waiting for Federal courts to coalesce around a specific interpretation of the MBTA is the correct path forward. Instead, the Service is developing regulations and policy to provide the public and the regulated community with a degree of certainty regarding what constitutes a violation of the MBTA. We agree that an enforcement policy may be a productive way to police incidental take under the MBTA, particularly in the near term; accordingly, we have issued a Director's Order concurrently with this final rule that explains how we will prioritize our enforcement resources in the context of incidental take.

Comment: Malicious intent must be present in order to warrant criminal proceedings for the take of migratory birds.

Service Response: The misdemeanor provision of the MBTA has long been interpreted by Federal courts as a strict liability crime. Requiring malicious intent before the Service initiates an enforcement action would not be consistent with the statutory language or the relevant court cases. However, as mentioned previously, the Service issued a Director's Order concurrently with this final rule that explains how we will prioritize our enforcement resources in the context of incidental take.

Because we are revoking the January 7 MBTA rule, we rely on the final EIS developed to analyze that rule in determining the environmental impacts of revoking it: “Final Environmental Impact Statement; Regulations Governing Take of Migratory Birds,” available on http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090. The alternatives analyzed in that EIS cover the effects of interpreting the MBTA to both include and exclude incidental take. In finalizing this rule, we have published an amended Record of Decision that explains our decision to instead select the environmentally preferable alternative, or Alternative B, in the final EIS. Any additional, relevant impacts on the human environment that have occurred subsequent to our initial Record of Decision are described in the amended Record of Decision.

In accordance with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” and the Department of the Interior's manual at 512 DM 2, we considered the possible effects of this rule on federally recognized Indian Tribes. The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty.

We evaluated the January 7 rule that this rule would revoke under the criteria in Executive Order 13175 and under the Department's Tribal consultation policy and determined that the January 7 rule may have a substantial direct effect on federally recognized Indian Tribes. We received requests from nine federally recognized Tribes and two Tribal councils for government-to-government consultation on that rule. Accordingly, the Service initiated government-to-government consultation via letters signed by Regional Directors and completed the consultations before issuing the January 7 final rule. During these consultations, there was unanimous opposition from Tribes to the reinterpretation of the MBTA to exclude coverage of incidental take under the January 7 rule. Thus, revoking the January 7 rule is consistent with the requests of federally recognized Tribes during those consultations.

E.O. 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. As noted above, this rule is a significant regulatory action under E.O. 12866, but the rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The action has not been otherwise designated by the Administrator of the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) as a significant energy action. Therefore, no Statement of Energy Effects is required.

Section 7 of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531-44), requires that the Secretary of the Interior shall review other programs administered by her and utilize such programs in furtherance of the purposes of the Act (16 U.S.C. 1536(a)(1)). It further states that each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat (16 U.S.C. 1536(a)(2)). We have determined that this rule revoking the January 7 rule regarding the take of migratory birds will have no effect on ESA-listed species within the meaning of ESA section 7(a)(2).

Executive Order (E.O.) 12866 provides that OMB-OIRA will review all significant rules. OMB-OIRA has determined that this rule is economically significant. OIRA has also determined that this is a major rule under Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act or CRA). 5 U.S.C. 804(2). See OIRA Conclusion of E.O. 12866 Regulatory Review of the MBTA, available at https://www.reginfo.gov/public/do/eoDetails?rrid=131383 (designating the MBTA rule as a major rule under the CRA). The CRA provides that major rules shall not take effect for at least 60 days after publication in the Federal Register (5 U.S.C. 801(a)(3)). This rule will therefore be submitted to each House of Congress and the Comptroller General in compliance with the CRA. 5 U.S.C. 801(a).

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

This final regulation revokes the January 7 MBTA rule. The legal effect of this rule removes from the Code of Federal Regulations (CFR) the interpretation that incidental take of migratory birds is not prohibited under the MBTA, based on the rationale explained in the preamble. As explained in the preamble, the Solicitor's Opinion (M-37050) that formed the basis for the January 7 rule was overturned in court and has since been withdrawn by the Solicitor's Office. By removing § 10.14 from subpart B of title 50 CFR, USFWS would revert to implementing the statute without an interpretative regulation governing incidental take, consistent with judicial precedent. This would mean that incidental take can violate the MBTA to the extent consistent with the statute and judicial precedent. Enforcement discretion will be applied, subject to certain legal constraints.

The Service conducted a regulatory impact analysis of the January 7 rule, which can be viewed online at http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090. In that analysis, we analyzed the effects of an alternative (Alternative B) where the Service would promulgate a regulation that interprets the MBTA to prohibit incidental take consistent with the Department's longstanding prior interpretation. By reverting to this interpretation, the Service views the incidental take of migratory birds as a potential violation of the MBTA, consistent with judicial precedent.

The primary benefit of this rule results from decreased incidental take. While we are unable to quantify the benefits, we expect this rule to result in increased ecosystem services and benefits to businesses that rely on these services. Further, benefits will accrue from increased birdwatching opportunities. The primary cost of this rule is the compliance cost incurred by industry, which is also not quantifiable based on current available data. Firms are more likely to implement best practice measures to avoid potential fines. Additionally, potential fines generate transfers from industry to the government. Using a 10-year time horizon (2022-2031), the present value of these transfers is estimated to be $149.3 million at a 7-percent discount rate and $174.6 million at a 3-percent discount rate. This would equate to an annualized value of $14.9 million at a 7-percent discount rate and $17.5 million at a 3-percent discount rate.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small businesses, small organizations, and small government jurisdictions. However, in lieu of an initial or final regulatory flexibility analysis (IRFA or FRFA), the head of an agency may certify on a factual basis that the rule would not have a significant economic impact on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. Thus, for an IRFA/FRFA to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b). We prepared a FRFA, briefly summarized below, to accompany this rule that can be viewed online at http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090.

This final rule may affect industries that typically incidentally take substantial numbers of birds and with which the Service has worked to reduce those effects (table 1). In some cases, these industries have been subject to enforcement actions and prosecutions under the MBTA prior to the issuance of M-37050. The vast majority of entities in these sectors are small entities, based on the U.S. Small Business Administration (SBA) small business size standards. It is important to note that many small businesses will not be affected under this rule. Only those businesses that reduced best management practices that avoid or minimize incidental take of migratory birds as a result of the issuance of M-37050 in January 2017 and the January 7, 2021, rule will incur costs. The following analysis determines whether a significant number of small businesses reduced best management practices and will be impacted by this rule.

Since the Service does not currently have a permitting system dedicated to authorizing incidental take of migratory birds, the Service does not have specific information regarding how many businesses in each sector implement measures to reduce incidental take of birds. Not all businesses in each sector incidentally take birds. In addition, a variety of factors would influence whether, under the previous interpretation of the MBTA, businesses would implement such measures. It is also unknown how many businesses continued or reduced practices to reduce the incidental take of birds since publication of the Solicitor's Opinion M-37050 or issuance of the January 7 rule. The Service specifically requested public comment on any reliance interests on the January 7 rule. We did not receive sufficient information on that issue during the public comment periods associated with the January 7 rule and associated NEPA analysis, the February 9 rule extending the effective date of the January 7 rule, or the proposed rule and no comments were submitted by any entities identifying reduced implementation of measures that would have to be reinstated when this rule becomes effective. We did receive comments that stated that they did not reduce best management practices after the January 7 rule. These comments support our estimate that most entities did not reduce best management practices as a result of the January 7 rule excluding incidental take from the scope of the MBTA. In revoking the January 7 rule, any subsequent incidental take of migratory birds could violate the MBTA, consistent with the statute and judicial precedent. Some small entities will incur costs if they reduced best management practices after M-Opinion 37050 was issued in January 2017 or after promulgation of the January 7, 2021, rule and will need to subsequently reinstate those practices if the January 7 rule is revoked, assuming they did not already reinstate such practices after vacatur of M-Opinion 37050.

Table 2 identifies examples of bird mitigation measures, their associated costs, and why available data are not extrapolated to the entire industry sector or small businesses. We requested public comment so we can extrapolate data, if appropriate, to each industry sector and any affected small businesses. In response, we received information from the solar industry, which we utilized in this analysis where applicable. Table 3 summarizes likely economic effects of the rule on the business sectors identified in table 1. In many cases, the costs of actions businesses typically implement to reduce effects on birds are small compared to the economic output of business, including small businesses, in these sectors. The likely economic effects summarized in table 3 were collected during the public comment periods associated with the January 7 rule and associated NEPA analysis, the February 9 rule extending the effective date of the January 7 rule, and the proposed rule.

We developed an IRFA out of an abundance of caution to ensure that economic impacts on small entities are fully accounted for in this rulemaking process and published it for public comment. We considered those comments and developed a FRFA that can be viewed online at http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090. After further review, we have determined that this rule will not have an impact on a substantial number of small entities. The January 7 rule was in effect for less than 1 year, and many comments from industries stated that they did not make changes in the implementation of best practices in response to the January 7 rule because they continued to follow various regulations and guidance (as shown in table 3). The Service expects the impact of this rule will be minimal because entities did not reduce best management practices as a result of the January 7 rule excluding incidental take from the scope of the MBTA. Therefore, we certify that this rule will not have a significant economic impact on a substantial number of small entities.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we have determined the following:

a. This rule would not “significantly or uniquely” affect small government activities. A small government agency plan is not required.

b. This rule would not produce a Federal mandate on local or State government or private entities. Therefore, this action is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with E.O. 12630, this rule does not contain a provision for taking of private property and would not have significant takings implications. A takings implication assessment is not required.

This rule will not create substantial direct effects or compliance costs on State and local governments or preempt State law. Some States may choose not to enact changes in their management efforts and regulatory processes and staffing to develop and or implement State laws governing birds, likely accruing benefits for States. Therefore, this rule would not have sufficient federalism effects to warrant preparation of a federalism summary impact statement under E.O. 13132.

In accordance with E.O. 12988, we determine that this rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) is not required. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

For the reasons described in the preamble, we hereby amend subchapter B of chapter I, title 50 of the Code of Federal Regulations as set forth below:

NMFS manages the Gulf reef fish fishery, which includes lane snapper, under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council (Council) and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) through regulations at 50 CFR part 622. All lane snapper weights discussed in this temporary rule are in round weight.

The stock ACL for Gulf lane snapper is 301,000 lb (136,531 kg). As specified in 50 CFR 622.41(k), if during a fishing year the sum of the commercial and recreational lane snapper landings exceeds the stock ACL, then during the following fishing year, if the sum of commercial and recreational landings reaches or is projected to reach the stock ACL, NMFS is required to close the commercial and recreational sectors for the remainder of that fishing year. In the 2020 fishing year, lane snapper landings exceeded the stock ACL by 57,638 lb (26,144 kg). For the 2021 fishing year, NMFS has determined that the 2021 stock ACL for Gulf lane snapper will be reached by October 18, 2021. Accordingly, this temporary rule closes the commercial and recreational sectors for Gulf lane snapper effective at 12:01 a.m., local time, on October 18, 2021, and both sectors will remain closed through the end of the current fishing year on December 31, 2021.

During the commercial and recreational closures, the commercial sale or purchase of lane snapper taken from the Gulf EEZ is prohibited and all harvest or possession in or from the Gulf EEZ of lane snapper is prohibited. The prohibition on possession of Gulf lane snapper also applies in Gulf state waters for a vessel issued a valid Federal charter vessel/headboat permit for Gulf reef fish. During the closures, the operator of a vessel with a valid commercial vessel permit for Gulf reef fish having lane snapper on board must have landed and bartered, traded, or sold such lane snapper prior to 12:01 a.m., local time, on October 18, 2021. The prohibition on the sale or purchase of lane snapper does not apply to fish that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, on October 18, 2021, and were held in cold storage by a dealer or processor.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.41(k), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment is unnecessary and contrary to the public interest. Such procedures are unnecessary because the regulations associated with the closure of the lane snapper commercial and recreational sectors at 50 CFR 622.41(k) have already been subject to notice and public comment, and all that remains is to notify the public of the closure. Prior notice and opportunity for public comment are contrary to the public interest because there is a need to immediately implement this action to protect the lane snapper stock and provide vessel owners and operators with as much time as possible to adjust their planned fishing. Prior notice and opportunity for public comment would require time and would potentially allow the sectors to exceed the stock ACL.

For the aforementioned reasons, the Assistant Administrator also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

The reef fish fishery of the Gulf is managed under the Fishery Management Plan (FMP) for Reef Fish Resources of the Gulf of Mexico (Reef Fish FMP), prepared by the Gulf of Mexico Fishery Management Council (Gulf Council). The CMP fishery is managed under the FMP for CMP Resources in the Gulf of Mexico and Atlantic Region (CMP FMP), prepared by the Gulf Council and South Atlantic Fishery Management Council. Both FMPs are implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

Amendment 26 to the Reef Fish FMP established an IFQ program for the commercial red snapper component of the Gulf reef fish fishery (71 FR 67447; November 22, 2006). Amendment 29 to the Reef Fish FMP established an IFQ program for the commercial grouper and tilefish components of the Gulf reef fish fishery (74 FR 44732; August 31, 2009). Regulations implementing these IFQ programs (50 CFR 622.21 and 622.22) require that IFQ participants have access to a computer and the internet and that they conduct administrative functions associated with the IFQ program, e.g., landing transactions, online. However, these regulations also specify that during catastrophic conditions, as determined by the RA, the RA may authorize IFQ participants to use paper-based forms to complete administrative functions for the duration of the catastrophic conditions. The RA must determine that catastrophic conditions exist, specify the duration of the catastrophic conditions, and specify which participants or geographic areas are affected.

The Generic Dealer Amendment established Federal dealer reporting requirements for federally permitted dealers in the Gulf and South Atlantic (79 FR 19490; April 9, 2014). The Gulf For-Hire Reporting Amendment implemented reporting requirements for Gulf reef fish and CMP owners and operators of for-hire vessels (85 FR 44005; July 21, 2020). Regulations implementing these dealer reporting requirements (50 CFR 622.5) and for-hire vessel reporting requirements (50 CFR 622.26 and 622.374) state that dealers must submit electronic reports and that Gulf reef fish and CMP vessels with the applicable charter vessel/headboat permit must submit electronic fishing reports of all fish harvested and discarded. However, these regulations also specify that during catastrophic conditions, as determined by the RA, the RA may waive or modify the reporting time requirements for dealers and for-hire vessels for the duration of the catastrophic conditions.

Hurricane Ida made landfall in the United States near Port Fourchon, Louisiana, in the Gulf as a Category 4 hurricane on August 29, 2021. Strong winds and flooding from this hurricane impacted communities throughout coastal Louisiana. This resulted in power outages and damage to homes, businesses, and infrastructure. As a result, the RA has determined that catastrophic conditions exist in the Gulf for the Louisiana parishes of Saint Tammany, Orleans, Saint Bernard, Plaquemines, Jefferson, Saint Charles, Lafourche, Terrebonne, Saint Mary, Iberia, Vermilion, and Cameron.

The RA previously authorized Federal dealers and Federal for-hire operators in these affected areas to delay reporting of trip tickets and for-hire logbooks to NMFS, and IFQ participants in this affected area to use paper-based forms, from September 2, 2021, through October 8, 2021 (86 FR 50287; September 8, 2021). As stated in that temporary rule, NMFS continues to monitor the conditions in this area.

NMFS has received numerous reports of continued damage to the infrastructure in coastal Louisiana, such as power outages and interruption of water service. Therefore, to provide Federal dealers and Federal for-hire operators in the affected area the continued flexibility to delay reporting of trip tickets and for-hire logbooks to NMFS, and allow IFQ participants in the affected area to use paper-based forms, NMFS extends the current catastrophic conditions determination through October 31, 2021. This determination remains in effect for the Louisiana parishes of Saint Tammany, Orleans, Saint Bernard, Plaquemines, Jefferson, Saint Charles, Lafourche, Terrebonne, Saint Mary, Iberia, Vermilion, and Cameron.

Dealers may delay electronic reporting of trip tickets to NMFS during catastrophic conditions. Dealers are to report all landings to NMFS as soon as possible. Assistance for Federal dealers in affected area is available from the NMFS Fisheries Monitoring Branch at 1-305-361-4581. NMFS previously provided IFQ dealers with the necessary paper forms and instructions for submission in the event of catastrophic conditions. Paper forms are also available from the RA upon request. The electronic systems for submitting information to NMFS will continue to be available to all dealers, and dealers in the affected area are encouraged to continue using these systems, if accessible.

Federal for-hire operators may delay electronic reporting of logbooks to NMFS during catastrophic conditions. Federal for-hire operators are to report all landings to NMFS as soon as possible. Assistance for Federal for-hire operators in affected area is available from the NMFS Southeast For-Hire Integrated Electronic Reporting Program at 1-833-707-1632. The electronic systems for submitting information to NMFS will continue to be available to all Federal for-hire operators, and for-hire operators are encouraged to continue using the these systems, if accessible.

The administrative program functions available to IFQ participants in the area affected by catastrophic conditions will be limited under the paper-based system. There will be no mechanism for transfers of IFQ shares or allocation under the paper-based system in effect during catastrophic conditions. Assistance in complying with the requirements of the paper-based system will be available via the NMFS Catch Share Support line, 1-866-425-7627 Monday through Friday, between 8 a.m. and 4:30 p.m., Eastern Time.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is consistent with the regulations in 50 CFR 622.5(c)(1)(iii), 622.21(a)(3)(iii), and 622.22(a)(3)(iii), which were issued pursuant to section 304(b) of the Magnuson-Stevens Act, and are exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest. Such procedures are unnecessary because the final rules implementing the Gulf IFQ programs, the Gulf and South Atlantic Federal dealer reporting requirements, and Gulf for-hire vessel reporting requirements have already been subject to notice and public comment. These rules authorize the RA to determine when catastrophic conditions exist, and which participants or geographic areas are affected by catastrophic conditions. The final rules also authorize the RA to provide timely notice to affected participants via publication of notification in the Federal Register , NOAA Weather Radio, Fishery Bulletins, and other appropriate means. All that remains is to notify the public that catastrophic conditions continue to exist, that IFQ participants may use paper forms, and that Federal dealers and Gulf for-hire permit holders may submit delayed reports. Such procedures are also contrary to the public interest because of the need to immediately implement this action because affected dealers continue to receive these species in the affected area and need a means of completing their landing transactions. With the continued power outages and damages to infrastructure that have occurred in the affected area due to Hurricane Ida, numerous businesses are unable to complete landings transactions, fishing reports, and dealer reports electronically. In order to continue with their businesses, IFQ participants need to be aware they can report using the paper forms, and Federal dealers and Gulf for-permit holders need to be aware that they can delay reporting.

For the aforementioned reasons, there is good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

Atlantic HMS fisheries, including northern albacore, swordfish, and bluefin tuna fisheries, are managed under the authority of the ATCA (16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ). The 2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. Section 635.27(e) implements the northern albacore annual quota recommended by ICCAT and describes the annual northern albacore quota adjustment process. Section 635.27(c) implements the ICCAT-recommended quotas and describes the quota adjustment process for both North and South Atlantic swordfish. Section 635.27(a) implements the ICCAT-recommended quota and describes the annual quota adjustment process for bluefin tuna. NMFS is required under the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest quotas under relevant international fishery agreements such as the ICCAT Convention, which is implemented domestically pursuant to ATCA.

Note that weight information for northern albacore and bluefin tuna below is shown in metric tons (mt) whole weight (ww), and both dressed weight (dw) and ww are shown for swordfish.

Since 1998, ICCAT has adopted recommendations regarding the northern albacore fishery. ICCAT Recommendation 17-04 on northern albacore (which supplemented Recommendation 16-06) includes a total allowable catch (TAC) of 33,600 mt for 2018 through 2020 and specific provisions regarding northern albacore conservation and management. The U.S. share of that TAC was a quota of 632.4 mt annually for 2019 and 2020, which is codified at § 635.27(e) and will remain in effect until changed.

At the 2020 Annual ICCAT meeting, the U.S. northern albacore quota was increased from 632.4 mt to 711.5 mt for 2021 (Recommendation 20-04). Given provisions in Recommendation 20-04, it is possible the U.S. northern albacore quota might change at the ICCAT annual meeting this November. In anticipation of such change and to decrease administrative burden, NMFS does not plan to alter the 50 CFR part 635 regulations to incorporate the 2021 quota increase at this time. Since domestic landings are typically less than 50 percent of the baseline, changing the regulations is unlikely to result in increased fishing opportunities or harvest since the domestic fishery is limited by other management measures other than the quota. The full 711.5 mt remains available, however, and NMFS will monitor landings and initiate rulemaking to update the baseline quota if landings reach 75 percent of the adjusted quota. Northern albacore landings for January through June 2021 were 119.6 mt (15 percent of the quota as adjusted under this action). After ICCAT reconvenes in 2021, NMFS would initiate appropriate rulemaking to address any changes made to the domestic quota.

Relevant to the northern albacore quota adjustment in this action, and as codified at § 635.27(e)(2), the maximum underharvest that a Contracting Party may carry forward from one year to the next is 25 percent of its initial catch quota, which would be 158.1 mt for the United States.

Consistent with regulations at § 635.27(e), NMFS adjusts the U.S. annual northern albacore quota for allowable underharvest, if any, in the previous year. NMFS makes such adjustments consistent with ICCAT carryover limits when complete catch information for the prior year is available and finalized. Under ICCAT Recommendation 17-04, the maximum underharvest that a Contracting Party may carry forward from one year to the next is 25 percent of its initial catch quota, which, relevant to 2021, would be 158.1 mt for the United States (25 percent of 632.4 mt).

For 2020, the adjusted quota was 790.5 mt (632.4 mt plus 158.1 mt of 2019 underharvest carried forward to 2020, based on 25 percent of the 632.4-mt quota in place for 2019) (83 FR 51391, October 11, 2018). The total 2020 northern albacore catch, which includes landings and dead discards, was 332.49 mt, which is an underharvest of 458.01 mt of the 2020 adjusted quota. Of this underharvest, 158.1 mt may be carried forward to the 2021 fishing year. Thus, the adjusted 2021 northern albacore quota is 632.4 mt plus 158.1 mt, totaling 790.5 mt.

Consistent with the North Atlantic swordfish quota regulations at § 635.27(c), NMFS adjusts the U.S. annual North Atlantic swordfish quota for allowable underharvest, if any, in the previous year. NMFS makes such adjustments consistent with ICCAT limits and when complete catch information for the prior year is available and finalized. Under ICCAT Recommendation 17-02, the U.S. North Atlantic swordfish baseline annual quota for 2018 through 2021 is 2,937.6 mt dw (3,907 mt ww). The maximum underharvest that the United States may carry forward from one year to the next is 15 percent of the baseline quota, which equals 440.6 mt dw (586 mt ww) for the United States. In 2020, the adjusted North Atlantic swordfish quota was 3,378.2 mt dw (2,937.6 mt dw baseline quota + 440.6 mt dw carried over from 2019).

The total 2020 U.S. North Atlantic swordfish catch, which includes landings and dead discards, was 1,100.08 mt dw, which is an underharvest of 2,278.12 mt dw of the 2020 adjusted quota. This underharvest exceeds the 440.6-mt dw underharvest carryover limit allowed under Recommendation 17-02. Thus, NMFS is carrying forward 440.6 mt dw, the maximum carryover allowed. The 2,937.6-mt dw baseline quota is increased by the underharvest carryover of 440.6 mt dw, resulting in a final adjusted North Atlantic swordfish quota for the 2021 fishing year of 3,378.2 mt dw (2,937.6 + 440.6 = 3,378.2 mt dw). From that adjusted quota, 50 mt dw will be allocated to the reserve category for inseason adjustments and research, and 300 mt dw will be allocated to the incidental category, which covers recreational landings and landings by incidental swordfish permit holders, in accordance with regulations at § 635.27(c)(1)(i). This results in an allocation of 3,028.2 mt dw (3,378.2−50−300 = 3,028.2 mt dw) for the directed category, split equally between two seasons in 2021 (January through June, and July through December) (Table 1).

Consistent with the South Atlantic swordfish quota regulations at § 635.27(c), NMFS adjusts the U.S. annual South Atlantic swordfish quota for allowable underharvest, if any, in the previous year. NMFS makes such adjustments consistent with ICCAT limits when complete catch information for the prior year is available and finalized. Under ICCAT Recommendation 17-03, the U.S. South Atlantic swordfish baseline annual quota for 2021 is 75.2 mt dw (100 mt ww) and the amount of underharvest that the United States can carry forward from one year to the next is 100 percent of the baseline quota (75.2 mt dw). Recommendation 17-03 continues to require the United States to transfer a total of 75.2 mt dw (100 mt ww) to other countries. These transfers are 37.6 mt dw (50 mt ww) to Namibia, 18.8 mt dw (25 mt ww) to Côte d'Ivoire, and 18.8 mt dw (25 mt ww) to Belize.

U.S. fishermen landed no South Atlantic swordfish in 2020. The adjusted 2020 South Atlantic swordfish quota was 75.1 mt dw due to nominal landings in previous years. Therefore, 75.1 mt dw of underharvest is available to carry over to 2021. NMFS is carrying forward 75.1 mt dw to be added to the 75.2 mt dw baseline quota. The quota is then reduced by the 75.2 mt dw of annual international quota transfers outlined above, resulting in an adjusted South Atlantic swordfish quota of 75.1 mt dw for the 2021 fishing year (Table 1).

Consistent with the regulations regarding annual bluefin tuna quota adjustment at § 635.27(a), NMFS annually announces the addition of available underharvest, if any, to the bluefin tuna Reserve category once complete catch information is available and finalized.

Due to the unprecedented situation in 2020, ICCAT canceled its annual meeting and conducted discussions via correspondence. Recognizing the significant challenges of complex decision making by correspondence, rollovers of expiring measures was ICCAT's default approach. For western Atlantic bluefin tuna, ICCAT adopted Recommendation 20-06, which rolled over the current TAC for 2020; provided for a 2021 stock assessment that would incorporate the most recent available data, including any new abundance indices; and specified TAC levels for 2022 and 2023 that would address overfishing based on the 2020 stock assessment update and management scenario 3 analyzed therein, unless ICCAT decides otherwise based on new Standing Committee on Research and Statistics (SCRS) advice. The status of the stock after the 2020 stock assessment update remained “no overfishing occurring/rebuilding status unknown.” Although the SCRS and ICCAT expressed concerns about the current overall TAC level resulting in overfishing in 2021, the projected change in biomass at this current TAC level is on par with the other management scenarios analyzed. Specifically, the update indicates that the current TAC level results in about a one percent greater decline in biomass for 2021 than a TAC level that has a 50 percent of ending overfishing. Furthermore, in the course of managing U.S. fisheries to achieve, but not exceed, the overall ICCAT-recommended U.S. quota, the United States has underharvested its overall quota over the past several years. Given recent trends, it is highly likely that the 2021 fishery will also underharvest the overall quota. Thus, carrying over the underharvest from 2020 would have neutral ecological impacts on the bluefin tuna stock. Similarly, the ecological impacts on other HMS species (as well as protected species) would be neutral because fishing strategies for target species are likely to remain similar under the same quota allocation methods. A full consideration of impacts of the 2021 bluefin tuna TAC and quota are detailed in the 2021 Annual Atlantic Bluefin Tuna Quota Adjustment Supplemental Environmental Assessment. Copies of the 2021 Supplemental Environmental Assessment can be requested as specified in the ADDRESSES section.

NMFS implemented relevant provisions of ICCAT western Atlantic bluefin tuna Recommendation 17-06 in a final rule that published in October 2018 (83 FR 51391, October 11, 2018). That rulemaking implemented the recommended annual U.S. baseline quota of 1,247.86 mt, plus an additional 25 mt to account for bycatch related to pelagic longline fisheries in the Northeast Distant gear restricted area (NED), for a total of 1,272.86 mt. The total annual U.S. bluefin tuna quota of 1,272.86 mt is codified at § 635.27(a) and will remain in effect until changed (for instance, if a new ICCAT western Atlantic bluefin tuna TAC recommendation is adopted). The maximum underharvest that a Contracting Party may carry forward from one year to the next is 10 percent of its initial catch quota, which, for the United States, is 127.29 mt for 2021 (10 percent of 1,272.86 mt). The relevant provisions remained the same in the 2020 ICCAT recommendation, Recommendation 20-06.

The United States is carrying forward the full, allowable 127.29 mt for 2021. In 2020, the adjusted bluefin tuna quota was 1,400.15 mt (baseline quota of 1,272.86 mt + 127.29 mt of 2019 underharvest carried over to 2020). The total 2020 bluefin tuna catch, including landings and dead discards, was 1,183.49 mt, which is an underharvest of 216.66 mt from the 2020 adjusted quota and exceeds the allowable carryover of 127.29 mt. When carrying over underharvest from one year to the next, NMFS uses the underharvest to augment the bluefin tuna Reserve category quota. Thus, for 2021, NMFS augments the Reserve category quota with the allowable carryover of 127.29 mt.

The codified Reserve category quota is 29.5 mt. Effective February 8, 2021, NMFS adjusted the Reserve category quota for 2021 to 168 mt by reallocating 164.5 mt of Purse Seine quota to the Reserve category (based on 2020 catch by Purse Seine category participants) and also transferring 26 mt of Reserve category quota to the General category (86 FR 8717; February 9, 2021). Effective August 4, 2021, NMFS transferred 30 mt from the Reserve category quota to the Harpoon category (86 FR 43420, August 9, 2021), leaving a total of 138 mt in the Reserve category. Effective September 9, 2021, NMFS transferred 113.8 mt from the Reserve category quota to the General category (86 FR 51016, September 14, 2021), leaving a total of 24.2 mt in the Reserve category. Thus, as of the effective date of this action (October 4, 2021), the adjusted 2021 Reserve category quota is 151.49 mt (24.2 mt + 127.29 mt).

NMFS is issuing this rule pursuant to 305(d) of the Magnuson-Stevens Act. NMFS designed the FMP to authorize the agency to take this action pursuant to MSA section 305(d) in a previous action taken pursuant to section 304(c). See 50 CFR 635.27. The NMFS Assistant Administrator (AA) has determined that this final rule is consistent with the 2006 Consolidated Atlantic HMS FMP, Amendment 13 to the 2006 Consolidated Atlantic HMS FMP, ATCA, and other applicable law.

Pursuant to section 553(b)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(B)), the AA finds that it is unnecessary and would be contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the reasons described below.

The rulemaking processes for Amendment 7 to the 2006 Consolidated HMS FMP in 2015 (79 FR 71509, December 2, 2014) and for the 2016 North and South Atlantic Swordfish Quota Adjustment Rule (81 FR 48719, July 26, 2016) specifically provided prior notice of, and accepted public comment on, the formulaic quota adjustment processes for the northern albacore, Atlantic bluefin tuna, and swordfish fisheries and the manner in which they occur. These processes have not changed, and the application of these formulas in this action does not have discretionary aspects requiring additional agency consideration. Thus, it is unnecessary to provide an opportunity for public comment on this action. There are no new quotas for 2021, and the quota formulas are the same as in previous years. NMFS therefore is issuing this temporary final rule to adjust the northern albacore, North and South Atlantic swordfish, and western Atlantic bluefin tuna quotas for 2021 without prior notice and an additional opportunity for comment. Similar actions to adjust the quotas based on the previous year's underharvest occur annually and the affected community expects similar adjustments in 2021. This action to adjust the 2021 quotas could not occur earlier in the year because final 2020 landings data were not available until now.

There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date and to make the rule effective upon publication in the Federal Register . The fisheries for northern albacore, North and South Atlantic swordfish, and bluefin tuna began on January 1, 2021. NMFS monitors northern albacore, North and South Atlantic swordfish, and bluefin tuna annual catch and measures the annual catch data against the applicable available quotas. Delaying the effective date of these quota adjustments would affect the regulated fisheries' reasonable opportunity to catch the available quotas. Adjusting the North and South Atlantic swordfish quota allows the United States to take advantage of the ICCAT allowance to carry over quota underharvest and to comply with the South Atlantic swordfish recommendation's obligation to transfer quota internationally. Adjusting the bluefin tuna Reserve category without the 30-day delay provides NMFS the flexibility to transfer quota from the Reserve to other fishing categories inseason after considering the regulatory determination criteria, including fishery conditions at the time of the transfer, while potentially avoiding premature fishery closures when quota is available.

This action is exempt from review under Executive Order 12866.

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

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