The U.S. Department of Homeland Security (DHS) U.S. Customs and Border Protection (CBP) published a notice of proposed rulemaking in the Federal Register , 86 FR 15136 (March 22, 2021), proposing to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements. In concert with that rulemaking, DHS/CBP issued an updated system of records notice, “DHS/CBP-018 Customs Trade Partnership Against Terrorism System of Records” in the Federal Register at 86 FR 15136 (March 22, 2021), outlining that (1) DHS/CBP updated its description of how CBP collects and maintains information pertaining to prospective, ineligible, current, or former trade partners that participate in the CTPAT Program; other entities and individuals in their supply chains; and members of foreign governments' secure supply chain programs that have been recognized by CBP, through a mutual recognition arrangement or comparable arrangement, as being compatible with the CTPAT Program; (2) DHS/CBP expanded the categories of records to include date of birth (DOB); country of birth; country of citizenship; travel document number; immigration status information; driver's license information; Trusted Traveler membership type and number; Registro Federal de Contribuventes (RFC) Persona Fisica (for Mexican Foreign Manufacturers, Highway Carriers, and Long Haul Carriers Only); and the U.S. Social Security number beyond sole proprietors to now include the collection from all individuals listed as associated with partner companies; (3) to clarify that CTPAT members may also submit information to DHS/CBP under the CTPAT Trade Compliance program, to include importer self-assessments and other documentation; and (4) to clarify and expand several previously issued routine uses.

DHS/CBP invited comments on both the Notice of Proposed Rulemaking (NPRM) and System of Records Notice (SORN).

DHS received no comments on the NPRM and one non-substantive comment on the SORN. After full consideration of the public comment, the Department will implement the rulemaking as proposed for the reasons described in the NPRM and as described here in the final rule.

For the reasons stated in the preamble, DHS amends Chapter I of Title 6, Code of Federal Regulations, as follows:

Section 109 of the Atomic Energy Act of 1954 (AEA), as amended by the Nuclear Non- Proliferation Act of 1978 (NNPA), authorizes and directs the NRC, after consultation with the Secretaries of State, Energy, and Commerce, to exercise its export licensing authority over “items or substances” determined by the Commission to be “especially relevant from the standpoint of export control because of their significance for nuclear explosive purposes” (42 U.S.C. 2139(b)). Since 1978, under this authority the NRC has exercised jurisdiction over all exports of deuterium, including heavy water, as well as deuterium gas and other deuterated compounds for both nuclear and non-nuclear end uses. In the early years of the nuclear energy industry, deuterium oxide (heavy water) was largely produced for use in nuclear reactors. High-purity reactor grade heavy water, which has a deuterium concentration of 99.75 percent or greater, has been used to operate reactors with natural uranium.

In the last decade, the market for deuterium has significantly expanded and evolved beyond nuclear reactor use. Non-nuclear use of deuterium includes, but is not limited to manufacture of advanced electronics, deuterated solvents, deuterated pharmaceuticals, hydrogen arc-lamps, neutron generators, and tracers in hydrological, biological, and medical studies. Despite this market change, the NRC has continued to control all exports of deuterium under the general or specific export licensing provisions in part 110 of title 10 of the Code of Federal Regulations (10 CFR), “Export and Import of Nuclear Equipment and Material.” The NRC has determined, in consultation with the Executive Branch, that it is appropriate to revise its regulations and transfer the export licensing control of non-nuclear end use of deuterium to the Department of Commerce as was done for the non-nuclear end use of nuclear grade graphite in 2005 (70 FR 41937; July 21, 2005).

Under current NRC regulations, if an export of deuterium is not authorized under the general license in § 110.24, then a specific NRC export license is required. Paragraph (a) of the general license authorizes export of deuterium to countries that are not embargoed destinations (§ 110.28) or restricted destinations (§ 110.29) in quantities of 10 kg or less (50 kg of heavy water) with an annual limit of 200 kg (1,000 kg heavy water) to any one country. Paragraph (b) of § 110.24 authorizes deuterium export to restricted countries (§ 110.29) in quantities of 1 kg or less (5 kg of heavy water) with an annual limit of 5 kg (25 kg of heavy water) to any one restricted country.

Over the past 10 years, the quantity of deuterium exported for non-nuclear end use has steadily increased. A growing number of companies have been required to obtain specific licenses to export deuterium for non-nuclear use because the quantity exceeded the general license quantity thresholds. The NRC's recent licensing experience has shown that deuterium has been exported almost exclusively for non-nuclear industrial and research end use, prompting the reevaluation of NRC licensing requirements concerning these non-nuclear end use exports. Other supplier nations have export controls over deuterium but have limited them to cover exports “for use in a nuclear reactor.” This limitation appears in both the Nuclear Non-Proliferation Treaty Exporters Committee (Zangger Committee) and the Nuclear Suppliers Group (NSG) clarification of items on the Trigger List; see, for example, International Atomic Energy Agency INFCIRC/209/Rev.5 (March 2020)  1 and INFCIRC/254/Rev.14/Part 1 (October 2019), 2 respectively. The United States is a member of the Zangger Committee and a participating government of the NSG.

The history of the use of deuterium exported under the NRC's authority indicates that deuterium has not been diverted for known illicit purposes to produce weapons-grade material or for use in unsafeguarded nuclear activities. To the extent that any risk of diversion may exist, exports of deuterium for non-nuclear end use will continue to be controlled by the Department of Commerce, and appropriate control mechanisms exist within national regulatory authorities and the international community to detect efforts to divert deuterium for known illicit purposes.

The NRC is revising its regulations that govern the export and import of nuclear equipment and material in 10 CFR part 110. The revisions are necessary to reflect technological advances involving the use of deuterium, including heavy water, as well as deuterium gas and deuterium or deuterated compounds (deuterium) for non-nuclear industrial and research activities. These changes will also harmonize U.S. export control of deuterium with international standards.

Based on the foregoing, the NRC has determined, after consultation with the Executive Branch, including the Departments of State, Energy, Defense, and Commerce, that deuterium for non-nuclear end use is not an item or substance that is “especially relevant from the standpoint of export control because of [its] significance for nuclear explosive purposes.” The Executive Branch concurs in the NRC's determination. The NRC has not, however, made the same finding under Section 109b. of the AEA with respect to exports of deuterium for nuclear end use, which the NRC will continue to regulate as a material “especially relevant for export control because of [its] significance for nuclear explosive purposes.” The NRC is also retaining authority for licensing exports of plants for the production, separation, or purification of heavy water, deuterium and deuterium compounds and especially designed or prepared assemblies or components for these plants. As such, no changes are being made to § 110.8(g) or appendix K to 10 CFR part 110.

The definition of Deuterium in § 110.2 is being revised to include what deuterium for nuclear end use means in the context of shared jurisdiction with Department of Commerce's Bureau of Industry and Security. The revised definition is consistent with the Zangger Committee Understandings documented in INFCIRC/209 and the NSG Guidelines documented in INFCIRC/254/Part 1.

The general license authorizing the export of deuterium for nuclear end use remains under NRC jurisdiction. The general license for the export of deuterium for nuclear end use found in § 110.24 is being revised to reflect that NRC jurisdiction applies to deuterium exports for nuclear end use only.

This final rule eliminates the licensing burden on exporters of deuterium for non-nuclear end use which, under current industry trends, constitutes the majority of deuterium being exported. Removing exports of deuterium for non-nuclear end use from 10 CFR part 110 also reduces recordkeeping and reporting requirements for those licensees who will no longer require specific licenses for exports of deuterium for non-nuclear end use.

Accordingly, the NRC concludes, with the concurrence of the Executive Branch, that exports of deuterium for non-nuclear end use are not especially relevant from the standpoint of export control because of their lack of significance for nuclear explosive purposes, and that control over such exports is most appropriately vested with the Department of Commerce. The NRC has determined that this rule will pose no unreasonable risk to the public health and safety or the common defense and security. The Department of Commerce is publishing regulations establishing licensing controls over this class of material in the RULES category of this issue of the Federal Register .

During the 60-day delay in the effective date for both rules, the NRC will contact existing licensees and persons with pending license applications affected by this transfer of jurisdiction to the Department of Commerce to ensure an uninterrupted transition from one regulatory authority to another.

This final rule revises the definition for Deuterium to clarify the difference between deuterium used for nuclear end use versus non-nuclear end use and to recognize the Department of Commerce as the regulatory authority for exports of deuterium for non-nuclear end use.

This final rule revises paragraph (d) to include the phrase “for nuclear end use” after deuterium to clarify that the NRC has export authority over deuterium for nuclear end use only.

This final rule adds the phrase “for nuclear end use” to clarify that the general license for deuterium only applies to exports of deuterium for nuclear end use.

This final rule revises paragraph (b)(5)(iii), redesignates paragraph (b)(5)(iv) as paragraph (b)(5)(v) and adds new paragraph (b)(5)(iv) to add “for nuclear end use” after “heavy water” to clarify that Commission review of license applications under this section only applies to an application to export 250 kilograms of heavy water for nuclear end.

This final rule revises paragraph (a)(4), redesignates paragraphs (a)(5) through (a)(10) as paragraphs (a)(6) through (a)(11), and adds new paragraph (a)(5) to clarify that Executive Branch review under this section only applies to an application to export of deuterium for nuclear end use.

This final rule revises paragraph (b) to add the phrase “for nuclear end use” to clarify that NRC export licensing jurisdiction over deuterium is limited to nuclear end use.

This final rule revises paragraph (a)(1) to add the phrase “for nuclear end use” after each mention of deuterium to clarify that reporting requirements for exports of deuterium only apply to exports of deuterium for nuclear end use.

This final rule revises paragraph (b)(3) to add the phrase “for nuclear end use” to clarify that the NRC will notice the receipt of export applications for 10,000 kilograms or more of heavy water for nuclear end use, excluding exports of heavy water to Canada for nuclear end use.

Because this rule involves a foreign affairs function of the U.S., the notice and comment provisions of the Administrative Procedure Act do not apply (5 U.S.C. 553(a)(1)).

The Regulatory Flexibility Act does not apply to regulations for which a Federal agency is not required by law, including the rulemaking provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), to publish a general notice of proposed rulemaking (5 U.S.C. 604). As discussed in this document under Section IV, “Rulemaking Procedure,” this final rule is exempt from the requirements of 5 U.S.C. 553(b). Accordingly, the NRC also determines that the requirements of the Regulatory Flexibility Act do not apply to this final rule.

The NRC has sole control of the export of deuterium for nuclear applications. There is no other alternative to amending the regulations at 10 CFR part 110 to reflect changing circumstances. This final rule will reduce the burden on licensees and the cost to the public without posing an unreasonable risk to the public health and safety or to the common defense and security.

The NRC has not prepared a backfit analysis for this final rule. This final rule does not involve any provision that would impose a backfit, nor is it inconsistent with any issue finality provision, as those terms are defined in 10 CFR chapter I.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

This final rule does not contain a collection of information as defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995.

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

This final rule is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 110:

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2019-17R1, dated June 18, 2020 (TCCA AD CF-2019-17R1, dated June 18, 2020) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for MHI RJ Aviation ULC (type certificate previously held by Bombardier, Inc.) Model CL-600-2C10 (Regional Jet Series 700, 701 & 702) airplanes, Model CL-600-2C11 (Regional Jet Series 550) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, CL-600-2D24 (Regional Jet Series 900) airplanes, and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0309.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to MHI RJ Aviation ULC Model CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2C11 (Regional Jet Series 550), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. The NPRM published in the Federal Register on April 20, 2021 (86 FR 20461). The NPRM was prompted by reports and a design review indicating that there could be corrosion on the MLG outer cylinder assemblies and certain MLG dressed shock strut assemblies; primer was not correctly applied at the gland nut thread relief groove and chamfer areas on certain MLG outer cylinders during production; and CIC was inadvertently removed from certain MLG forward and aft trunnion pins and grease adapter assemblies during maintenance. The NPRM proposed to require detailed inspections for corrosion on the MLG outer cylinder assemblies, certain MLG dressed shock strut assemblies, and the MLG outer cylinder at the gland nut threads, thread relief groove, and chamfer; a detailed inspection for the presence of CIC on the MLG forward and aft trunnion pins and grease adapter assemblies; applicable corrective actions; application of primer, paint, and CIC as applicable; re-identification of certain part numbers; and marking of the MOD STATUS field of the nameplate of certain parts. The FAA is issuing this AD to address undetected corrosion on the MLG forward and aft trunnion pins, and the gland nut interface on certain MLG outer cylinders, which could result in an MLG collapse. See the MCAI for additional background information.

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

Air Line Pilots Association, International (ALPA) stated that it supports the NPRM.

SkyWest Airlines (SkyWest) requested that the proposed AD be separated into two AD actions. The commenter recommended that one AD address the MLG outer cylinder assemblies and dressed shock strut assemblies and the other AD address the MLG forward and aft trunnion pins. The commenter stated that there are multiple service bulletins and requirements specified in the proposed AD that are related to different MLG components.

The FAA disagrees with the commenter's request. The FAA acknowledges that this AD includes requirements for different MLG components and specifies multiple service bulletins; however, these MLG components are interrelated. In order to address the identified unsafe condition the requirements must be completed at the same time. In addition, the AD body is organized to facilitate an owner/operator's compliance with the requirements of this AD. Each header for paragraphs (g) through (k) of this AD identifies the affected MLG component and the applicable actions. The FAA has not changed this AD in regard to this issue.

SkyWest requested that paragraph (l) of the proposed AD, Credit for Previous Actions, be revised to include the applicable vendor service bulletins published by Goodrich. The commenter stated that this would alleviate the need to request multiple alternative methods of compliance (AMOCs) for airplanes on which the MLG gear is returned from overhaul with only the actions described in the Goodrich service bulletins accomplished rather that the actions described in the corresponding Bombardier service bulletins. The commenter noted that each Bombardier service bulletin specified in paragraph (l) of the proposed AD refers to a corresponding Goodrich service bulletin.

The FAA agrees to clarify what must be done if certain actions required by this AD have already been accomplished. Paragraph (f) of this AD states “Comply with this AD within the compliance times specified, unless already done.” If an operator has already accomplished some of the actions required by this AD then only the remaining actions need to be completed. Therefore, for airplanes that have already incorporated the actions described in UTC Aerospace Systems (Goodrich Aerospace Canada Ltd) Service Bulletin 49101-32-72, Goodrich Service Bulletin 49200-32-44, or Goodrich Service Bulletin 49200-32-80 prior to the effective date of this AD, only the remaining requirements described in the corresponding Bombardier service bulletins need to be completed on those airplanes.

The FAA does not agree with granting complete credit for the actions required by paragraphs (g), (i), and (j) of this AD using only the procedures described in the applicable Goodrich service bulletins. There are additional actions required for these inspections, including corrective actions and operational tests, that are included in the Bombardier service bulletins but not in the corresponding Goodrich service bulletins.

In regards to paragraph (l) in this AD, Credit for Previous Actions, the intent of that paragraph is to provide credit for actions required by paragraphs (g), (h), and (j) of this AD if those actions were performed before the effective date of this AD using the certain earlier revisions of the applicable Bombardier service bulletins specified in paragraph (l) of this AD or equivalent service information. The FAA has not changed this AD in regard to this issue.

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

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

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

Bombardier has issued the following service information.

• Service Bulletin 670BA-32-024, Revision C, dated February 11, 2015, which describes procedures for a detailed visual inspection of the MLG outer cylinder assemblies and dressed shock strut assemblies for corrosion of the outer cylinder gland nut thread interface and relief area, and corrective actions including repair and corrosion removal.

• Service Bulletin 670BA-32-034, Revision B, dated December 21, 2018, which describes procedures for a detailed visual inspection of the inside diameter of the MLG trunnion pins for discrepancies including the condition of paint and CIC and evidence of corrosion, and corrective actions including replacement and rework of the trunnion pins as applicable.

• Service Bulletin 670BA-32-039, dated February 29, 2012, which describes procedures for inspections of the inner diameter of the MLG forward and aft trunnion pins for discrepancies including corrosion and inadequate CIC, and corrective actions including application of CIC and replacement of corroded forward and aft trunnion pins with serviceable parts.

• Service Bulletin 670BA-32-052, dated February 9, 2015, which describes procedures for a detailed visual inspection of the gland nut thread relief groove and chamfer surface for the condition of the protective coating and for discrepancies including evidence of corrosion or rework at the gland nut thread relief groove and chamfer surface of the MLG shock strut outer cylinder assemblies, and corrective actions including corrosion removal.

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

Although certain service information specifies to return damaged MLG trunnion pins to Goodrich Landing Gear, that action would not be required by this AD.

The FAA estimates that this AD affects 562 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the cost estimate.

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

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

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

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

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

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

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

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

The 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 airspace for Portsmouth International Airport at Pease, Portsmouth, NH, to support IFR operations in the area.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 37090, July 14, 2021) for Docket No. FAA-2021-0357 to amend Class D airspace and remove Class E surface airspace area designated as an extension to Class D and Class E airspace, and amend Class E airspace extending up from 700 feet above the surface for Portsmouth International Airport at Pease, Portsmouth, NH. In addition, the FAA is updating the airport name to Portsmouth International Airport at Pease, as well as the geographical coordinates of the airport.

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 D and E airspace designations are published in Paragraphs 5000, 6004, and 6005, respectively, 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 Class D airspace, increasing the radius to 4.7 miles from 4.5 miles, removing Class E airspace area designated as an extension to Class D and Class E surface area as it is no longer necessary, and amending Class E airspace extending upward from 700 feet above the surface at Portsmouth International Airport at Pease, Portsmouth, NH, due to the decommissioning of the PEASE VOR/DME and cancellation of the associated approach procedures (SIAPs). This action updates the airport name to Portsmouth International Airport at Pease (formerly Pease International Tradeport). In addition, the FAA updates the geographic coordinates of the airport and Littlebrook Air Park to coincide with the FAA's database. These changes are necessary for continued safety and management of IFR operations in the area. Also, the reference to Newburyport, MA, and Boston, MA, Class E airspace areas are omitted from the Class E5 descriptor, as this airspace is shared amongst the airports.

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 and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. 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.

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

This action extends the prohibition against certain flights in the specified areas of the Dnipro Flight Information Region (FIR) (UKDV)  1 by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when the operator of such aircraft is a foreign air carrier. Specifically, this amendment continues to prohibit all persons described in paragraph (a) of SFAR No. 113, 14 Code of Federal Regulations (CFR), § 91.1607, from conducting civil flight operations in the specified areas of the Dnipro FIR (UKDV) until October 27, 2023, due to hazards to the safety of U.S. civil aviation associated with continuing hostilities along the line of contact between Ukraine and Russian-backed separatists and heightened tensions between Russia and Ukraine. These circumstances result in a continued inadvertent risk to U.S. civil aviation operations due to the potential for miscalculation or misidentification.

The FAA is responsible for the safety of flight in the U.S. and the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. Sections 106(f) and (g) of title 49, United States Code (U.S.C.), subtitle I, establish the FAA Administrator's authority to issue rules on aviation safety. Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the agency's authority. Section 40101(d)(1) provides that the Administrator shall consider, in the public interest, among other matters, assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Section 40105(b)(1)(A) requires the Administrator to exercise this authority consistently with the obligations of the U.S. Government under international agreements.

The FAA is promulgating this rulemaking under the authority described in 49 U.S.C. 44701, General requirements. Under that section, the FAA is charged broadly with promoting safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security.

This regulation is within the scope of the FAA's authority because it continues to prohibit the persons described in paragraph (a) of SFAR No. 113, § 91.1607, from conducting flight operations in the specified areas of the Dnipro FIR (UKDV) due to hazards to the safety of U.S. civil flight operations, as described in the preamble to this final rule.

Section 553(b)(B) of title 5, U.S., authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Section 553(d) also authorizes agencies to forgo the delay in the effective date of a final rule for good cause found and published with the rule. In this instance, the FAA finds good cause exists to forgo notice and comment because notice and comment would be impracticable and contrary to the public interest. In addition, it is contrary to the public interest to allow any lapse of effectivity of the prohibition of U.S. civil flights in the areas to which this SFAR applies, making it appropriate to waive any delay in effective date.

The risk environment for U.S. civil aviation in airspace managed by other countries with respect to the safety of flight is often fluid in circumstances involving weapons capable of targeting, or otherwise negatively affecting, U.S. civil aviation, as well as other hazards to U.S. civil aviation associated with fighting, extremist and militant activity, or heightened tensions. This fluidity and the need for the FAA to rely upon classified information in assessing these risks make issuing notice and seeking comments impracticable and contrary to the public interest. With respect to the impracticability of notice and comment procedures, the potential for changes in the risks to U.S. civil aviation significantly limits how far in advance of a new or amended flight prohibition the FAA can usefully assess the risk environment. Furthermore, to the extent that these rules and any amendments to them are based upon classified information, the FAA is not legally permitted to share such information with the general public, who cannot meaningfully comment on information to which they are not legally allowed access. As a result, engaging in notice and comment would be impracticable.

Additionally, while there is a public interest in having an opportunity for the public to comment on agency action, it is crucial that the FAA's flight prohibitions, and any amendments thereto, reflect the agency's current understanding of the risk environment for U.S. civil aviation. This allows the FAA to protect the safety of U.S. operators' aircraft and the lives of their passengers and crews without over-restricting U.S. operators' routing options.

As described in the preamble to this rule, extending the flight prohibition for U.S. civil aviation operations in the specified areas of the Dnipro FIR (UKDV) is necessary due to continuing safety-of-flight hazards associated with the continuing hostilities along the line of contact between Ukraine and Russian-backed separatists and heightened tensions between Russia and Ukraine. Inadvertent risk to U.S. civil aviation operations continues to exist due to the potential for miscalculation or misidentification. Such circumstances establish that engaging in notice and comment for this rule would be impracticable and contrary to the public interest. Accordingly, the FAA finds good cause exists to forgo notice and comment and any delay in the effective date for this rule.

On April 25, 2014, the FAA published SFAR No. 113, § 91.1607, which prohibited certain flight operations in a portion of the Simferopol FIR (UKFV) after Russia unlawfully seized Crimea from Ukraine. 2 In the months that followed, the violence and the associated risks to civil aviation expanded to encompass the entirety of the Simferopol and Dnipro FIRs (UKFV and UKDV, respectively). In addition to a series of attacks on military aircraft flying at low altitudes, two aircraft operating at high altitudes were shot down over eastern Ukraine. The first was a Ukrainian Antonov An-26, which was shot down on July 14, 2014, while flying at 21,000 feet, southeast of Luhansk, Ukraine. The second was Malaysia Airlines Flight 17 (MH 17), which was shot down on July 17, 2014, while flying over Ukraine at 33,000 feet, just west of the Russian border. All of the 298 passengers and crew on board MH 17 perished.

The FAA determined the use of weapons capable of targeting and shooting down aircraft flying on civil air routes at cruising altitudes posed a dangerous threat to U.S. civil aviation operating in the Simferopol and Dnipro FIRs (UKFV and UKDV, respectively). On July 18, 2014, Coordinated Universal Time (UTC), the FAA issued NOTAM FDC 4/2182, which prohibited U.S. civil aviation operations in the entire Simferopol and Dnipro FIRs (UKFV and UKDV, respectively). The FAA subsequently incorporated the flight prohibition into SFAR No. 113, § 91.1607, on December 29, 2014. 3

In 2018, the FAA determined security and safety conditions had stabilized sufficiently in certain portions of the Simferopol and Dnipro FIRs (UKFV and UKDV, respectively), for U.S. civil aviation operations to resume safely. 4 However, the FAA also determined continuing hazards to U.S. civil aviation existed in certain specified areas of the Simferopol and Dnipro FIRs (UKFV and UKDV, respectively). 5

In the October 2018 final rule, the FAA determined an inadvertent risk to civil aviation associated with ongoing violence continued to exist in the eastern portion of the Dnipro FIR (UKDV). This violence involved localized skirmishes and the potential for large-scale fighting. The FAA was concerned this situation could lead to certain air defense forces misidentifying or engaging civil aviation. The FAA determined these threats were concentrated in the eastern portion of the Dnipro FIR (UKDV) within the Russian-controlled area and in close proximity to the line of contact that bordered that area. While the potential for fluctuating levels of military engagement continued along the line of contact in eastern portions of the Dnipro FIR (UKDV), the military situation had begun to stabilize, which reduced the risk of a large-scale conflict that might extend into the western portion of the Dnipro FIR (UKDV). The FAA determined these circumstances indicated the level of risk to civil aviation in the western portion of the Dnipro FIR (UKDV) had diminished from the level of risk that had existed when the FAA initially prohibited U.S. civil aviation operations in the entire Dnipro FIR (UKDV) in NOTAM FDC 4/2182. As a result, the FAA amended its flight prohibition for the Dnipro FIR (UKDV) to allow U.S. civil aviation to resume flight operations in the western portion of the Dnipro FIR (UKDV) from the surface to unlimited, west of a line drawn direct from ABDAR (471802N 351732E) along airway M853 to NIKAD (485946N 355519E), then along airway N604 to GOBUN (501806N 373824E). The October 2018 final rule also provided an exception to permit takeoffs and landings at Kharkiv International Airport (UKHH), Dnipro International Airport (UKDD), 6 and Zaporizhzhia International Airport (UKDE).

The FAA determined in the October 2020 final rule that the situation in the specified areas of the Dnipro FIR (UKDV) continued to present an unacceptable level of risk to U.S. civil aviation. This inadvertent risk arose from the ongoing violence based on localized skirmishes and the potential for large-scale fighting in the eastern portion of the Dnipro FIR (UKDV), particularly near the line of contact bordering the Russian-controlled area. The FAA remained concerned these skirmishes and the risk for potential large-scale fighting could lead to the misidentification or engagement of civil aviation by certain air defense forces. The various military and militia elements in the region continued to have access to a variety of anti-aircraft weapons systems, including man-portable air defense systems and possibly more advanced surface-to-air missile (SAM) systems with the capability to engage aircraft at higher altitudes.

Despite a cease-fire arrangement between Ukraine and Russia, which went into effect in December 2019, conflict-related air defense activity in eastern Ukraine also indicated the existence of an inadvertent risk to U.S. civil aviation operations in the eastern portion of the Dnipro FIR (UKDV). On April 5, 2020, Ukrainian forces shot down a Russian military unmanned aircraft flying over the Donetsk region in the eastern portion of the Dnipro FIR (UKDV). On April 10, 2020, the Organization for Security and Cooperation in Europe (OSCE) Special Monitoring Mission (SMM) to Ukraine lost an unmanned aircraft to small-arms fire. Russian-led forces in eastern Ukraine regularly used SAMs, small-arms ground fire, and Global Positioning System (GPS) jamming to target OSCE SMM unmanned aircraft, including in the eastern portion of the Dnipro FIR (UKDV). In October 2019, a Ukrainian military official indicated in public statements that Ukraine had lost numerous unmanned aircraft to Russian GPS interference throughout the conflict, though the true number of unmanned aircraft lost remained unconfirmed.

Although the situation had remained mostly stable since 2018, skirmishes and attacks within the Dnipro FIR (UKDV) and sub-adjacent Ukrainian territory continued to occur with little or no warning. As a result of the significant, continuing unacceptable risk to the safety of U.S. civil aviation operations in the specified areas of the Dnipro FIR (UKDV), the FAA extended the expiration date of SFAR No. 113, § 91.1607, from October 27, 2020, to October 27, 2021.

During the first quarter of the calendar year 2021, an increasing number of cease-fire violations in the eastern portion of the Dnipro FIR (UKDV) occurred, particularly near the line of contact bordering the Russian-controlled area. In addition, by late March 2021, Russia had deployed additional military capabilities, including ground forces, tactical fighter aircraft, and air defense equipment, to occupied Crimea and to western Russia in close proximity to the Russia-Ukraine border. Russia's military force mobilization, increased cease-fire violations along the established line of contact in eastern Ukraine, and heightened political rhetoric had the potential to escalate tensions further and result in increased military activities in the region, which elevates the level of risk to U.S. civil aviation operations. Russian military exercises near the Russia-Ukraine border further strained regional tensions.

Jamming and electronic warfare activity, which could affect civil aircraft navigation or communications systems, also increased in the border region. On April 8 and 9, 2021, the OSCE's SMM to Ukraine reported two UAS flights experienced GPS interference while conducting monitoring missions along the line of contact. The April 9, 2021, SMM UAS flight experienced GPS interference resulting in an attempted orbit maneuver to regain the GPS signal prior to executing an emergency landing. OSCE indicated increased GPS interference occurred since March 21, 2021, along the line of contact.

Overall, circumstances in the region presented an increased potential inadvertent risk to U.S. civil aviation operations due to the potential for miscalculation or misidentification. Heightened regional tensions contributed to the inadvertent shoot down of Malaysia Airlines Flight 17 (MH 17) over eastern Ukraine in July 2014. Although this risk was greatest in the specified areas of the Dnipro FIR (UKDV) in which SFAR No. 113, § 91.1607, prohibits U.S. civil aviation operations, it also extended beyond those areas. As a result, the FAA issued two advisory Notices to Airmen (NOTAMs): NOTAMs KICZ A0012/21  7 and KICZ A0013/21. 8 In late April 2021, Russia declared its military readiness exercise had met its objectives and announced forces deployed to the Russia-Ukraine border region would begin returning to their respective bases. By early to mid-May 2021, this redeployment activity had begun, reducing tensions and the associated risks to civil aviation in the Simferopol FIR (UKFV), the Kyiv FIR (UKBV), and the Dnipro FIR (UKDV) from their peak. Consequently, the FAA cancelled NOTAM KICZ A0013/21 on May 13, 2021. NOTAM KICZ A0012/21 remains in effect.

An unacceptable level of inadvertent risk to U.S. civil aviation operations remains in the specified areas of the Dnipro FIR (UKDV) described in this final rule, which include the airspace over and near the line of contact where most of the recent cease-fire violations occurred. While tensions between Ukraine and Russia have lowered from their peak earlier this year, they remain elevated, in part due to the recent period of heightened Russian military force posturing in Crimea and along the Russia-Ukraine border and increases in cease-fire violations. In addition, the conflict between Ukraine and Russian-back separatists in eastern Ukraine continues. These circumstances result in a continued inadvertent risk to U.S. civil aviation operations due to the potential for miscalculation or misidentification.

Therefore, as a result of the significant, continuing unacceptable risk to the safety of U.S. civil aviation operations in the specified areas of the Dnipro FIR (UKDV), the FAA extends the expiration date of SFAR No. 113, § 91.1607, from October 27, 2021, to October 27, 2023.

Further amendments to SFAR No. 113, § 91.1607, might be appropriate if the risk to U.S. civil aviation safety and security changes. In this regard, the FAA will continue to monitor the situation and evaluate the extent to which persons described in paragraph (a) of this rule might be able to operate safely in the specified areas of the Dnipro FIR (UKDV).

The FAA also republishes the details concerning the approval and exemption processes in sections V and VI of this preamble, consistent with other recently published flight prohibition SFARs, to enable interested persons to refer to this final rule for comprehensive information about requesting relief from the FAA from the provisions of SFAR No. 113, § 91.1607.

Finally, the FAA makes several technical revisions to the rule to reflect current naming conventions and clarify the description of the airspace in which U.S. civil aviation operations remain prohibited. This rule contains updated names for the Dnipro FIR (UKDV) and the Dnipro International Airport (UKDD) to reflect Ukraine's current nomenclature. This rule also describes the specified areas of the Dnipro FIR (UKDV) in a manner that is easier for operators to understand. Previously, paragraph (b) of SFAR No. 113, § 91.1607, described the boundaries of the specified areas of the Dnipro FIR (UKDV), from surface to unlimited, in terms of airways and detailed waypoints with their corresponding latitudes and longitudes. Meanwhile, paragraph (f) of the rule described the boundaries of the Dnipro FIR (UKDV) in terms of a series of waypoints and their corresponding latitudes and longitudes and international borders. Because paragraph (f) is no longer necessary, this rule contains a clarifying sentence to paragraph (b) to describe the flight prohibition. The boundaries of the area in which the FAA prohibits U.S. civil aviation operations that are subject to this rule remain unchanged.

In some instances, U.S. Government departments, agencies, or instrumentalities may need to engage U.S. civil aviation to support their activities in the specified areas of the Dnipro FIR (UKDV) described in this rule. If a department, agency, or instrumentality of the U.S. Government determines that it has a critical need to engage any person described in paragraph (a) of SFAR No. 113, § 91.1607, including a U.S. air carrier or commercial operator, to transport civilian or military passengers or cargo or conduct other operations in the specified areas of the Dnipro FIR (UKDV), that department, agency, or instrumentality may request the FAA to approve persons described in paragraph (a) of SFAR No. 113, § 91.1607, to conduct such operations.

The requesting U.S. Government department, agency, or instrumentality must submit the request for approval to the FAA's Associate Administrator for Aviation Safety in a letter signed by an appropriate senior official of the requesting department, agency, or instrumentality. 9 The FAA will not accept or consider requests for approval from anyone other than the requesting U.S. Government department, agency, or instrumentality. In addition, the senior official signing the letter requesting FAA approval must be sufficiently positioned within the requesting department, agency, or instrumentality to demonstrate that the organization's senior leadership supports the request for approval and is committed to taking all necessary steps to minimize aviation safety and security risks to the proposed flights. The senior official must also be in a position to: (1) Attest to the accuracy of all representations made to the FAA in the request for approval, and (2) ensure that any support from the requesting U.S. Government department, agency, or instrumentality described in the request for approval is in fact brought to bear and is maintained over time. Unless justified by exigent circumstances, requesting U.S. Government departments, agencies, or instrumentalities must submit requests for approval to the FAA no less than 30 calendar days before the date on which the requesting department, agency, or instrumentality wishes the proposed operation(s) to commence.

The requestor must send the request to the Associate Administrator for Aviation Safety, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591. Electronic submissions are acceptable, and the requesting entity may request that the FAA notify it electronically as to whether the FAA grants the request for approval. If a requestor wishes to make an electronic submission to the FAA, the requestor should contact the Air Transportation Division, Flight Standards Service, at (202) 267-8166, to obtain the appropriate email address. A single letter may request approval from the FAA for multiple persons described in SFAR No. 113, § 91.1607, or multiple flight operations. To the extent known, the letter must identify the person(s) the requester expects the SFAR to cover on whose behalf the U.S. Government department, agency, or instrumentality seeks FAA approval, and it must describe—

• The proposed operation(s), including the nature of the mission being supported;

• The service the person(s) covered by the SFAR will provide;

• To the extent known, the specific locations in the specified areas of the Dnipro FIR (UKDV) where the proposed operation(s) will occur, including, but not limited to, the flight path and altitude of the aircraft while it is operating in the specified areas of the Dnipro FIR (UKDV) and the airports, airfields, or landing zones at which the aircraft will take off and land; and

• The method by which the requesting department, agency, or instrumentality will provide, or how the operator will otherwise obtain, current threat information and an explanation of how the operator will integrate this information into all phases of the proposed operations ( i.e., the pre-mission planning and briefing, in-flight, and post-flight phases).

The request for approval must also include a list of operators with whom the U.S. Government department, agency, or instrumentality requesting FAA approval has a current contract(s), grant(s), or cooperative agreement(s) (or its prime contractor has a subcontract(s)) for specific flight operations in the specified areas of the Dnipro FIR (UKDV). The requestor may identify additional operators to the FAA at any time after the FAA issues its approval. Neither the operators listed in the original request nor any operators the requestor subsequently seeks to add to the approval may commence operations under the approval until the FAA issues them an Operations Specification (OpSpec) or Letter of Authorization (LOA), as appropriate, for operations in the specified areas of the Dnipro FIR (UKDV). The approval conditions discussed below apply to all operators. Requestors should send updated lists to the email address they obtain from the Air Transportation Division by calling (202) 267-8166.

If an approval request includes classified information, requestors may contact Aviation Safety Inspector Stephen Moates for instructions on submitting it to the FAA. His contact information appears in the FOR FURTHER INFORMATION CONTACT section of this final rule.

FAA approval of an operation under SFAR No. 113, § 91.1607, does not relieve persons subject to this SFAR of the responsibility to comply with all other applicable FAA rules and regulations. Operators of civil aircraft must comply with the conditions of their certificates, OpSpecs, and LOAs, as applicable. Operators must also comply with all rules and regulations of other U.S. Government departments, agencies, or instrumentalities that may apply to the proposed operation(s), including, but not limited to, regulations issued by the Transportation Security Administration.

If the FAA approves the request, the FAA's Aviation Safety organization will send an approval letter to the requesting U.S. Government department, agency, or instrumentality informing it that the FAA's approval is subject to all of the following conditions:

(1) The approval will stipulate those procedures and conditions that limit, to the greatest degree possible, the risk to the operator, while still allowing the operator to achieve its operational objectives.

(2) Before any approval takes effect, the operator must submit to the FAA:

(a) A written release of the U.S. Government from all damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising out of or related to the approved operations in the specified areas of the Dnipro FIR (UKDV); and

(b) The operator's written agreement to indemnify the U.S. Government with respect to any and all third-party damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising out of or related to the approved operations in the specified areas of the Dnipro FIR (UKDV).

(3) Other conditions the FAA may specify, including those the FAA might impose in OpSpecs or LOAs, as applicable.

The release and agreement to indemnify do not preclude an operator from raising a claim under an applicable non-premium war risk insurance policy the FAA issues under chapter 443 of title 49, U.S.C.

If the FAA approves the proposed operation(s), the FAA will issue an OpSpec or LOA, as applicable, to the operator(s) identified in the original request and any operators the requestor subsequently adds to the approval, authorizing them to conduct the approved operation(s). In addition, as stated in paragraph (3) of this section V.B., the FAA notes that it may include additional conditions beyond those contained in the approval letter in any OpSpec or LOA associated with a particular operator operating under this approval, as necessary in the interests of aviation safety. U.S. Government departments, agencies, and instrumentalities requesting FAA approval on behalf of entities with which they have a contract or subcontract, grant, or cooperative agreement should request a copy of the relevant OpSpec or LOA directly from the entity with which they have any of the foregoing types of arrangements, if desired.

Any operations not conducted under an approval the FAA issues through the approval process set forth previously may only occur in accordance with an exemption from SFAR No. 113, § 91.1607. A petition for exemption must comply with 14 CFR part 11. The FAA will consider whether exceptional circumstances exist beyond those the approval process described in the previous section contemplates. To determine whether a petition for exemption from the prohibition this SFAR establishes fulfills the standard of 14 CFR 11.81, the FAA consistently finds necessary the following information:

• The proposed operation(s), including the nature of the operation;

• The service the person(s) covered by the SFAR will provide;

• The specific locations in the specified areas of the Dnipro FIR (UKDV) where the proposed operation(s) will occur, including, but not limited to, the flight path and altitude of the aircraft while it is operating in the specified areas of the Dnipro FIR (UKDV) and the airports, airfields, or landing zones at which the aircraft will take off and land;

• The method by which the operator will obtain current threat information and an explanation of how the operator will integrate this information into all phases of its proposed operations ( i.e., the pre-mission planning and briefing, in-flight, and post-flight phases); and

• The plans and procedures the operator will use to minimize the risks identified in this preamble, to the proposed operations, to establish that granting the exemption would not adversely affect safety or would provide a level of safety at least equal to that provided by this SFAR. The FAA has found comprehensive, organized plans and procedures of this nature to be helpful in facilitating the agency's safety evaluation of petitions for exemption from flight prohibition SFARs.

The FAA includes, as a condition of each such exemption it issues, a release and agreement to indemnify, as described previously.

The FAA recognizes that, with the support of the U.S. Government, the governments of other countries could plan operations that may be affected by SFAR No. 113, § 91.1607. While the FAA will not permit these operations through the approval process, the FAA will consider exemption requests for such operations on an expedited basis and in accordance with the order of preference set forth in paragraph (c) of SFAR No. 113, § 91.1607.

If a petition for exemption includes security-sensitive or proprietary information, requestors may contact Aviation Safety Inspector Stephen Moates for instructions on submitting it to the FAA. His contact information is listed in the FOR FURTHER INFORMATION CONTACT section of this final rule.

Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603 et seq., requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act of 1979 (Pub. L. 96-39), as codified in 19 U.S.C. Chapter 13, prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Agreements Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as codified in 2 U.S.C. Chapter 25, requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

In conducting these analyses, the FAA has determined this final rule has benefits that justify its costs. This rule is a significant regulatory action, as defined in section 3(f) of Executive Order 12866, as it raises novel policy issues contemplated under that Executive order. As 5 U.S.C. 553 does not require notice and comment for this final rule, 5 U.S.C. 603 and 604 do not require regulatory flexibility analyses regarding impacts on small entities. This rule will not create unnecessary obstacles to the foreign commerce of the United States. This rule will not impose an unfunded mandate on State, local, or tribal governments or on the private sector by exceeding the threshold identified previously.

This action extends without change the prohibition against certain U.S. civil flight operations in the specified areas of the Dnipro FIR (UKDV) for two additional years due to significant, continuing hazards to U.S. civil aviation in that airspace, as described in the preamble to this final rule. Because this rule does not apply to the western portion of the Dnipro FIR (UKDV), U.S. civil operators and airmen may continue to operate in that area. This action also continues to permit U.S. civil flight operations to the extent necessary to conduct takeoffs and landings at three Ukrainian international airports near the western boundary of SFAR No. 113, § 91.1607, in the Dnipro FIR (UKDV).

The FAA acknowledges the continued prohibition of U.S. civil aviation operations in the specified areas of the Dnipro FIR (UKDV) might result in additional costs to some U.S. operators, such as increased fuel costs and other operational-related costs. However, the FAA expects the benefits of this action to exceed the costs because it will result in the avoidance of risks of fatalities, injuries, and property damage that could occur if a U.S. operator's aircraft were shot down (or otherwise damaged) while operating in the specified areas of the Dnipro FIR (UKDV). The FAA will continue to monitor and evaluate the safety and security risks to U.S. civil operators and airmen as a result of conditions in the specified areas of the Dnipro FIR (UKDV) and the surrounding region.

The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever 5 U.S.C. 553 or any other law requires an agency to publish a general notice of proposed rulemaking for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553, after that section or any other law requires publication of a general notice of proposed rulemaking. The FAA concludes good cause exists to forgo notice and comment and to not delay the effective date for this rule. As 5 U.S.C. 553 does not require notice and comment in this situation, 5 U.S.C. 603 and 604 similarly do not require regulatory flexibility analyses.

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to this Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this final rule and determined that its purpose is to protect the safety of U.S. civil aviation from risks to their operations in the specified areas of the Dnipro FIR (UKDV), a location outside the U.S. Therefore, the rule complies with the Trade Agreements Act of 1979.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million.

This final rule does not contain such a mandate. Therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires the FAA to consider the impact of paperwork and other information collection burdens it imposes on the public. The FAA has determined no new requirement for information collection is associated with this final rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, the FAA's policy is to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined no ICAO Standards and Recommended Practices correspond to this regulation. The FAA finds this action is fully consistent with the obligations under 49 U.S.C. 40105(b)(1)(A) to ensure the FAA exercises its duties consistent with the obligations of the United States under international agreements.

While the FAA's flight prohibition does not apply to foreign air carriers, DOT codeshare authorizations prohibit foreign air carriers from carrying a U.S. codeshare partner's code on a flight segment that operates in airspace for which the FAA has issued a flight prohibition for U.S. civil aviation. In addition, foreign air carriers and other foreign operators may choose to avoid, or be advised or directed by their civil aviation authorities to avoid, airspace for which the FAA has issued a flight prohibition for U.S. civil aviation.

The FAA has analyzed this action under Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, and DOT Order 5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be informed of environmental considerations and take those considerations into account when making decisions on major Federal actions that could have environmental impacts anywhere beyond the borders of the United States. The FAA has determined this action is exempt pursuant to Section 2-5(a)(i) of Executive Order 12114 because it does not have the potential for a significant effect on the environment outside the United States.

In accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 8-6(c), the FAA has prepared a memorandum for the record stating the reason(s) for this determination and has placed it in the docket for this rulemaking.

The FAA has analyzed this rule under the principles and criteria of Executive Order 13132. The agency has determined this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, this rule will not have federalism implications.

The FAA analyzed this rule under Executive Order 13211. The agency has determined it is not a “significant energy action” under the executive order and will not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609 promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609 and has determined that this action will have no effect on international regulatory cooperation.

Except for classified material, all documents the FAA considered in developing this rule, including economic analyses and technical reports, may be accessed from the internet through the docket for this rulemaking.

Those documents may be viewed online at https://www.regulations.gov using the docket number listed above. A copy of this rule will be placed in the docket. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at https://www.federalregister.gov and the Government Publishing Office's website at https://www.govinfo.gov. A copy may also be found at the FAA's Regulations and Policies website at https://www.faa.gov/regulations_policies.

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Commenters must identify the docket or notice number of this rulemaking.

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601) requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the persons listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations, as follows:

The Department of Commerce is publishing this final rule in conjunction with a U.S. Nuclear Regulatory Commission (NRC) final rule being published in this issue of the Federal Register to revise its regulations to remove the NRC's licensing authority for exports of deuterium for non-nuclear end use. The responsibility for the licensing of exports of deuterium for non-nuclear end use is being transferred to the Department of Commerce's Bureau of Industry and Security (BIS). BIS is publishing this final rule to include deuterium under its export licensing jurisdiction under the Export Administration Regulations (EAR). This Commerce final rule describes the changes made to the EAR to control the deuterium moved from the export control authority of the NRC to the export control authority of BIS under the EAR. Exports of deuterium for nuclear end use will remain under the NRC's export licensing jurisdiction.

Section 109 of the Atomic Energy Act of 1954 (AEA), as amended by the Nuclear Non-Proliferation Act of 1978 (NNPA), authorizes and directs the NRC, after consultation with the Secretaries of State, Energy, and Commerce, to exercise its export licensing authority over “items or substances” determined by the Commission to be “especially relevant from the standpoint of export control because of their significance for nuclear explosive purposes” (42 U.S.C. 2139(b)). Since 1978, under this authority, the NRC has exercised jurisdiction over all exports of deuterium, including heavy water, as well as deuterium gas and other deuterated compounds for both nuclear and non-nuclear end uses. In the early years of the nuclear energy industry, deuterium oxide (heavy water) was largely produced for use in nuclear reactors. High-purity reactor grade heavy water, which has a deuterium concentration of 99.75 percent or greater, has been used to operate reactors with natural uranium.

In the last decade, the market for deuterium has significantly expanded and evolved beyond nuclear reactor use. Non-nuclear use of deuterium includes but is not limited to production of: Advanced electronics, deuterated solvents, deuterated pharmaceuticals, hydrogen arc-lamps, neutron generators, and tracers in hydrological, biological, and medical studies.

Despite this market change, the NRC has continued to control all exports of deuterium under the general or specific export licensing provisions in 10 CFR part 110. The NRC has determined, in consultation with the Executive Branch, that it is appropriate to revise its regulations and transfer the export licensing control of non-nuclear end uses of deuterium to the Department of Commerce, as was done for the non-nuclear end uses of nuclear graphite in 2005 (70 FR 41937; July 21, 2005).

Over the past 10 years, the quantity of deuterium exported for non-nuclear end use has steadily increased. A growing number of companies have been required to obtain specific licenses to export deuterium for non-nuclear use because the quantity exceeded the general license quantity thresholds. As stated in the NRC final rule published in this edition of the Federal Register in conjunction with this Commerce final rule, the NRC's recent licensing experience has shown that deuterium has been exported almost exclusively for non-nuclear industrial and research end uses, prompting the reevaluation of NRC licensing requirements concerning these non-nuclear end use exports. Other supplier nations have export controls over deuterium but have limited them to cover exports “for use in a nuclear reactor.” This limitation appears in both the Nuclear Non-Proliferation Treaty Exporters Committee (Zangger Committee) and the Nuclear Suppliers Group (NSG) clarifications of items on the Trigger List. The United States is a member of the Zangger Committee and a Participating Government of the NSG.

As stated in the NRC final rule published in conjunction with this Commerce final rule, the history of the use of deuterium exported under the NRC's authority indicates that deuterium has not been diverted for known illicit purposes to produce weapons-grade material or for use in unsafeguarded nuclear activities. To the extent that any risk of diversion may exist, exports of deuterium for non-nuclear end use will continue to be controlled by the Department of Commerce under the EAR, and appropriate control mechanisms exist within national regulatory authorities and the international community to detect efforts to divert deuterium for known illicit purposes. Exports and reexports of deuterium for non-nuclear end use will be controlled for Nuclear Proliferation (NP) Column 2 under the EAR. A license will be required for all destinations controlled for NP 2 reasons, which means an authorization (a BIS license or license exception) will be required under the EAR for exports and reexports to these destinations. In addition, the end-use and end-user controls under part 744 of the EAR will impose restrictive license requirements for exports, reexports, and transfers (in-country) involving end uses and end users that would be contrary to U.S. export control interests, e.g., under § 744.2 (Restrictions on certain nuclear end uses), § 744.6 (Restrictions on certain activities of U.S. persons), and to entities of concern ( e.g., Entity List and Denied Persons List). The U.S. NRC took this robust control structure under the EAR into account when determining that appropriate destination, end-user, and end-use based controls will be in place to appropriately control the deuterium for non-nuclear end use. The following section describes the changes made to the EAR to control the deuterium moved from the export control authority of the NRC to the export control authority of BIS under the EAR.

This final rule revises the heading, the License Requirement Note, and the Related Controls paragraph, Related Definitions paragraph and the Items paragraph in the List of Items Controlled section to control deuterium under ECCN 1C298 as described below. The deuterium added to ECCN 1C298 will be controlled for the same reason and have the same license exception eligibility as the graphite controlled under 1C298, so no changes are made to the Reasons for Control paragraph in the License Requirements section and License Exceptions section. The deuterium, as referenced above, will be controlled for NP Column 2, and License Exceptions LVS, and GBS will not be available.

This final rule revises the heading of ECCN 1C298 by adding the term deuterium in addition to the graphite that is already controlled under 1C298. Both graphite and deuterium will be controlled under ECCN 1C298 when the graphite or deuterium is intended for use other than in a nuclear reactor and meets the additional control parameters under Items paragraphs .a or .b of 1C298. Because this final rule is adding Items paragraphs .a and .b in the List of Items Controlled section to further describe the graphite and deuterium controlled under ECCN 1C298, this final rule removes the control text from the heading that described what graphite was controlled under the ECCN prior to this final rule being published. This removed control text from the heading is being added as new items paragraph .a under 1C298.

This final rule revises License Requirement Note to ECCN 1C298 to make one conforming change. This final rule adds the term `deuterium' to specify that all graphite and deuterium, as defined in ECCN 1C298, intended for use in a nuclear reactor is subject to the export licensing authority of the NRC.

This final rule adds a Related Controls paragraph (3) in the List of Items Controlled section of ECCN 1C298 to provide greater detail on the deuterium, including any deuterium compound, that, when intended for use in a nuclear reactor, is subject to the export licensing authority of the NRC.

This final rule adds a new Related Definition for Deuterium in the List of Items Controlled section of ECCN 1C298. This ECCN-specific definition specifies `Deuterium' means deuterium and any deuterium compound, including heavy water, in which the ratio of deuterium atoms to hydrogen atoms exceeds 1:5000.

Lastly, this final rule revises the Items paragraph in the List of Items Controlled section to add Items paragraphs .a and .b. This final rule adds Items paragraph .a to identify the graphite controlled under ECCN 1C298. As referenced above, this is the same control parameter text that was previously in the heading, but is now being moved to items paragraph .a under ECCN 1C298. This final rule adds Items paragraph .b to identify the `deuterium,' including any deuterium compound, including heavy water that when it meets the control parameter text of this paragraph .b will be controlled under ECCN 1C298. Specifically, `deuterium' not for use in a nuclear reactor will be controlled under ECCN 1C298.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (codified, as amended, at 50 U.S.C. Sections 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

1. Executive Orders 13563 and 12866 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Commerce estimates that this rule will result in a minimal increase to the number of license requests submitted to BIS annually.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number.

This rule involves the following OMB-approved collections of information subject to the PRA: 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 29.6 minutes for a manual or electronic submission; 0694-0096 “Five Year Records Retention Period,” which carries a burden hour estimate of less than 1 minute; and 0607-0152 “Automated Export System (AES) Program,” which carries a burden hour estimate of 3 minutes per electronic submission. This rule changes the respondent burden by increasing the estimated number of submissions by 20. Specifically, BIS estimates that this control of deuterium under the EAR will result in an increase of twenty license applications submitted annually to BIS. The additional burden falls within the estimated burden approved by OMB for the following information collections: 0694-0088, 0694-0096, and 0607-0152.

Any comments regarding these collections of information, including suggestions for reducing the burden, may be submitted online at https://www.reginfo.gov/public/do/PRAMain. The particular information collection may be found by using the search function and entering either the title of the collection or the OMB Control Number.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to section 1762 of the Export Control Reform Act of 2018 (50 U.S.C. 4801-4852), this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

For the reasons stated in the preamble, part 774 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

The Department of Commerce published a final rule on September 15, 2021 (86 FR 51456), establishing a Concrete Masonry Products Research, Education, and Promotion Order, as authorized by the Concrete Masonry Products Research, Education, and Promotion Act of 2018. The final rule incorrectly reported the email address found in the For Further Information Contact section of the rule. Please see the corrected email address in the FOR FURTHER INFORMATION CONTACT section of this correction.

In a notice published in the Federal Register of March 7, 2018 (83 FR 9715), we announced that we filed a color additive petition (CAP 8C0312) submitted by GW Cosmetics GmbH (GW), c/o EAS Consulting Group, LLC, 1700 Diagonal Rd., Suite 750, Alexandria, VA 22314. The petition and its supporting documents proposed to amend the color additive regulations in part 73 (21 CFR part 73), Listing of Color Additives Exempt from Certification, to provide for the safe use of silver nitrate as a color additive, at a level of up to 4 percent by weight in the final product, in professional-use only cosmetics to color eyebrows and eyelashes in persons age 16 and older.

Silver nitrate is a highly purified inorganic compound obtained as the recrystallized precipitate from the concentrated reaction mixture of silver and excess nitric acid at elevated temperatures, followed by drying the decanted, filtered, and washed crystals. Silver nitrate has the chemical formula AgNO 3 . Although silver nitrate is colorless, when it comes into contact with argentaffin, the melanin-rich protein filaments in the hair, it is reduced to black-brown metallic silver, which remains in the filaments (Ref. 1). GW formulates the silver nitrate into a viscous gel, which limits migration of the gel components into the eye during and after the application procedure, thereby minimizing potential extraneous staining or irritation.

Under section 721(b)(4) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 379e(b)(4)), a color additive cannot be listed for a proposed use unless the data and information available to FDA establish that the color additive is safe for that use. Our color additive regulations in § 70.3(i) (21 CFR 70.3(i)) define “safe” to mean that there is convincing evidence establishing with reasonable certainty that no harm will result from the intended use of the color additive. As part of our safety evaluation to establish with reasonable certainty that a color additive is not harmful under its intended conditions of use, we consider the color additive's manufacturing and stability; the projected human exposure to the color additive and any impurities resulting from the petitioned use of the color additive; the additive's toxicological data; and other relevant information (such as published literature) available to us.

To support the safety of the intended use of silver nitrate, GW provided estimates of the systemic exposure to silver from the petitioned use of silver nitrate using various published dermal absorption values. However, as we explain in a separate memorandum (Ref. 2), we consider the most comprehensive measure of skin penetration of silver to come from a recent published mass balance percutaneous penetration study that determined the distribution of silver penetrating the different layers of human skin (Ref. 3). Therefore, we used these published dermal absorption values, expressed as a dermal absorption percentage of the amount of silver applied, and assumptions made in GW's exposure estimate, to estimate that the dermal exposure to silver from the intended use of silver nitrate would be 0.15 micrograms (µg) silver/person (p)/day (d) per application. Since the exposure to silver could also be affected by the duration of the silver nitrate's contact with the skin at the application site, we further refined the exposure based on an exaggerated upper-bound application time of 3 minutes (Ref. 2). Thus, the maximum estimated dermal exposure to silver from the intended use of silver nitrate to color eyebrows and eyelashes is estimated to be 0.3 nanograms (ng)/p/d per application and exposure to silver nitrate is estimated to be 0.5 ng/p/d per application (Ref. 2).

In the evaluation of the safe use of an ingredient or substance that can be absorbed systemically ( e.g., a color additive for use in a cosmetic), we consider overall probable exposure (Ref. 4). We calculated the oral cumulative estimated daily intake (CEDI) of silver to be 72 µg/p/d in our previous evaluations (Ref. 5). The conservative estimate of systemic exposure to silver from its color additive use in a high-viscosity gel formulation applied to eyebrows and eyelashes (0.3 ng/p/d per application) is approximately 0.0004 percent of the CEDI (Ref. 4). However, the systemic exposure to silver is likely to be far less than the estimate of 0.3 ng/p/d per application due to three default factors and assumptions used in that estimate. First, a dermal retention factor of 0.1 (10 percent) for a “leave-on” ( i.e., not intended to be rinsed off) product was used, although excess gel is intended to be removed as directed; second, a 20 percent skin “reach” factor ( i.e., 20 percent of the applied silver nitrate gel is in contact with the skin) was used, though this number is likely much less, provided the gel is thoroughly removed from the eyebrows or eyelashes as directed; and third, a 1 in 10 day use factor was used, which is likely to be conservative when considering exposure over a lifetime. For example, GW notes that the coloring effects should last up to 6 weeks. Therefore, if an individual decreases their use from once every 10 days to once every 2 weeks, there would be a 30 percent decrease in the exposure to silver. Furthermore, silver binds tightly to protein and would not be expected to transfer from the protein in the hair follicles (Ref. 4).

Considering the very low percentage (0.0004 percent) of the CEDI represented by our estimated systemic exposure from the intended use of silver nitrate as a color additive for dyeing eyebrows and eyelashes, and the likelihood that probable systemic exposure to silver is orders of magnitude lower than the 0.3 ng/p/d per application estimate, we conclude that the exposure to silver from the petitioned intended use is negligible, and it does not impact the CEDI of silver (Ref. 4).

To establish that silver nitrate is safe for use as a color additive to color eyebrows and eyelashes, GW provided data from two in vitro ocular irritation assays conducted with the proposed silver nitrate gel. Both of these in vitro studies, using colorimetric measurements as predictors of ocular irritancy, indicate that the silver nitrate gel product contains severe eye irritating ingredient(s). However, the color of this product interferes with colorimetric measurement portion of these studies, limiting the utility of these studies to non-colorimetric dependent portions of the assessment. Colorimetric results cannot be used to determine the ocular irritancy of a colorant such as silver nitrate; therefore, the assays provided only limited value to the current safety assessment. Nevertheless, the color of silver nitrate does not affect the histological assessment portion included in one of the in vitro studies. The histopathological results from one in vitro assay performed on bovine corneas treated with the silver nitrate gel did not reveal any significant physical effects or potential for damage, even following a 10-minute continuous exposure with full immersion (Refs. 5 and 6). In comparison, GW's proposed upper-bound application time of the silver nitrate gel is only 3 minutes. Additionally, the viscosity of the silver nitrate gel formulation limits entry into the eye during and after application to eyelashes. The ocular exposure to silver nitrate would be incidental and would initiate ocular tearing, which would dilute the silver nitrate concentration (Ref. 6). Additionally, we are requiring the instruction “Rinse eyes immediately if product comes into contact with them” on the label of cosmetic products containing this color additive. We expect this instruction will further minimize the chances of potential harm. Therefore, we expect no permanent ocular damage (Ref. 6).

GW also submitted results from a single-application, intended-use study in human subjects. The study included a pretreatment step with a preparation gel not containing silver nitrate to open hair cuticles prior to application of GW's silver nitrate gel to both eyebrows and eyelashes. During and after the study, only two adverse effects were identified in a limited number of users, which included burning sensations in the eyes (most occurrences were “slight” in degree and lasted less than 1 minute after the removal of the product, as self-reported by the study subjects) and skin staining primarily beneath the eyebrows (which was infrequent). We also found no clinically significant findings related to the eye (Ref. 7), which is consistent with the corneal histopathology findings. Based on these results, we conclude that potential ocular irritancy ( i.e., burning sensations) and skin staining present minimal risks to safety. Furthermore, we expect they will be mitigated by statements required to be on the label of a cosmetic product containing silver nitrate. See 21 CFR 73.2550(d)(2).

This final rule includes an age use limitation to help ensure that professionals apply silver nitrate cosmetics only to individuals with fully mature facial size and structural development. The human eye and associated structures generally reach full adult size and structural development by 12 years of age. Therefore, limiting the age use to 16 years and older provides a safety margin for those few individuals whose facial size and structures might not have fully developed by age 12 (Ref. 7).

This final rule includes a restriction on distribution or direct sale to consumers and a professional-use only limitation to increase the likelihood that professionals who are trained in and knowledgeable about applying cosmetics will apply the silver nitrate product. “Professional” in this rule means an individual who, as part of an occupation, is permitted by the jurisdiction in which the individual practices to apply cosmetics for dyeing eyebrows and eyelashes.

This final rule includes a limited application time to limit the amount of any potential systemic absorption of the silver nitrate. Silver nitrate absorption in the skin is time dependent; therefore, limiting the skin contact time will result in a negligible level of systemic absorption. We did not identify any evidence suggesting that GW's intended conditions of use of silver nitrate are of toxicological concern (Ref. 6).

Based on the totality of the safety data and our conclusion that the systemic exposure to silver nitrate under the conditions of use is negligible, we conclude that there is a reasonable certainty of no harm from the intended use of silver nitrate in professional-use only cosmetics to color eyebrows and eyelashes of persons age 16 and older at a level of up to 4 percent by weight in the final product. To mitigate the risk of adverse effects from the use of silver nitrate in these cosmetic products, the labeling of the cosmetic product must include statements about the potential ocular irritancy and skin staining, an age use limitation, professional-use only designation, and limited application time.

We received two comments in response to our filing of the color additive petition. One comment, however, did not address silver nitrate or color additives. The other comment claimed that the assumption that only trained beauticians or cosmetologists will be applying this product to consumers poses public health concerns because States have their own requirements regarding the licensure of makeup artists. The comment also stated that applying this product to the eyes and the surrounding area poses serious health concerns. The comment claimed that silver nitrate is considered highly toxic and that the gel containing the silver nitrate will travel down the hair shaft directly onto the skin and into the eye.

Regarding the professional-use only status of the product, we acknowledge that FDA does not regulate the professional practice of applying those cosmetics to consumers. This final rule includes a professional-use only limitation, along with a restriction on distribution or direct sale to consumers, to increase the likelihood that professionals who are trained in and knowledgeable about applying cosmetics will apply the silver nitrate product. As explained above, we reviewed data and information to establish that silver nitrate when applied as a gel under the conditions described herein is safe for its intended use. As demonstrated in the testing conditions that were described in the submitted petition, the silver nitrate gel product, when applied as intended, was not toxic and did not result in ocular damage. In this case, the intended use of silver nitrate is in specific professional-use only cosmetics, and we have determined that this intended use is safe.

Regarding the safety of applying this product to the eyes and the surrounding areas, we have determined, as explained in the discussion of our safety evaluation, that the intended use of silver nitrate as a color additive in certain cosmetic products is safe.

FDA reviewed the data and information in the petition, and other available relevant material, and determined the petitioned use of silver nitrate, at a level of up to 4 percent by weight in the final viscous gel product, in professional-use only cosmetics to color eyebrows and eyelashes is safe. We further conclude that the color additive will achieve its intended technical effect and is suitable for the petitioned use. Consequently, we are amending the color additive regulations in part 73 to provide for the safe use of this color additive as set forth in this document. In addition, based upon the factors listed in 21 CFR 71.20(b), we conclude that certification of silver nitrate is not necessary for the protection of public health.

In accordance with § 71.15 (21 CFR 71.15), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT ). As provided in § 71.15, we will delete from the documents any materials that are not available for public disclosure.

We considered the environmental effects of this rule, as stated in the March 7, 2018, Federal Register notice of petition for CAP 8C0312. We have concluded that the action will not have a significant impact on the human environment, and that an environmental impact statement is not required. We did not receive any new information or comments that would affect this determination. Our finding of no significant impact and the evidence supporting that finding, contained in an environmental assessment, may be seen in the Dockets Management Staff (see ADDRESSES ) between 9 a.m. and 4 p.m., Monday through Friday.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

This rule is effective as shown in the DATES section, except as to any provisions that may be stayed by the filing of proper objections. If you will be adversely affected by one or more provisions of this regulation, you may file with the Dockets Management Staff (see ADDRESSES ) either electronic or written objections. You must separately number each objection, and within each numbered objection you must specify with particularity the provision(s) to which you object, and the grounds for your objection. Within each numbered objection, you must specifically state whether you are requesting a hearing on the particular provision that you specify in that numbered objection. If you do not request a hearing for any particular objection, you waive the right to a hearing on that objection. If you request a hearing, your objection must include a detailed description and analysis of the specific factual information you intend to present in support of the objection in the event that a hearing is held. If you do not include such a description and analysis for any particular objection, you waive the right to a hearing on the objection.

Any objections received in response to the regulation may be seen in the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at https://www.regulations.gov. We will publish notice of the objections that we have received or lack thereof in the Federal Register .

The following references marked with an asterisk (*) are on display at the Dockets Management Staff (see ADDRESSES ) and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they also are available electronically at https://www.regulations.gov. References without asterisks are not on public display at https://www.regulations.gov because they have copyright restriction. Some may be available at the website address, if listed. References without asterisks are available for viewing only at the Dockets Management Staff. FDA has verified the website addresses, as of the date this document publishes in the Federal Register , but websites are subject to change over time.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 73 is amended as follows:

Purpose: As noted above, this final rule incorporates classification changes adopted by the Nice Agreement that will become effective on January 1, 2022. Specifically, this rule adds new goods to, or deletes existing goods from, two class headings to further define the types of goods appropriate to the class.

Summary of Major Provisions: The USPTO is revising § 6.1 of 37 CFR part 6 to incorporate classification changes and modifications, as listed in the Nice Classification (11th ed., ver. 2022), published by WIPO, that will become effective on January 1, 2022.

The Nice Agreement is a multilateral treaty, administered by WIPO, that establishes the international classification of goods and services for the purposes of registering trademarks and service marks. As of September 1, 1973, this international classification system is the controlling system used by the United States, and it applies, for all statutory purposes, to all applications filed on or after September 1, 1973, and their resulting registrations. See 37 CFR 2.85(a). Every signatory to the Nice Agreement must utilize the international classification system.

Each state party to the Nice Agreement is represented in the Committee of Experts of the Nice Union (Committee of Experts), which meets annually to vote on proposed changes to the Nice Classification. Any state that is a party to the Nice Agreement may submit proposals for consideration by the other members of the Committee of Experts, in accordance with agreed-upon rules of procedure. Proposals are currently submitted on an annual basis to an electronic forum on the WIPO website, commented upon, modified, and compiled by WIPO for further discussion and voting at the annual Committee of Experts meeting.

In 2013, the Committee of Experts began annual revisions to the Nice Classification. The annual revisions, which are published electronically and enter into force on January 1 each year, are referred to as versions and identified by edition number and the year of the effective date ( e.g., “Nice Classification, 10th edition, version 2013” or “NCL 10-2013”). Each annual version includes all changes adopted by the Committee of Experts since the adoption of the previous version. The changes consist of: (1) The addition of new goods and services to, and deletion of goods and services from, the Alphabetical List, and (2) any modifications to the wording in the Alphabetical List, the class headings, and the explanatory notes that do not involve the transfer of goods or services from one class to another.

Beginning on January 1, 2023, new editions of the Nice Classification will be published electronically every three years and include all changes adopted since the previous annual version, as well as goods or services transferred from one class to another or new classes that have been created since the previous edition.

Due to the worldwide impact of COVID-19, the International Bureau (IB) at WIPO announced on March 16, 2021, that the 31st session of the Committee of Experts would be held in a hybrid format, with WIPO participating at the WIPO headquarters in Geneva and states participating via an online platform. The annual revisions contained in this final rule consist of modifications to the class headings that were incorporated into the Nice Agreement through e-voting during the 31st session of the Committee of Experts, from April 19-23, 2021. Under the Nice Classification, there are 34 classes of goods and 11 classes of services, each with a class heading. Class headings generally indicate the fields to which goods and services belong. Specifically, this rule adds new goods to, or deletes existing goods from, two class headings, as set forth in the discussion of regulatory changes below. The changes to the class headings further define the types of goods appropriate to the class. As a signatory to the Nice Agreement, the United States adopts these revisions pursuant to article 1.

The USPTO is revising § 6.1 as follows:

A. Administrative Procedure Act: The changes in this rulemaking involve rules of agency practice and procedure, and/or interpretive rules. See Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 97 (2015) (Interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers.” (citation and internal quotation marks omitted)); Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (Rule that clarifies interpretation of a statute is interpretive.); Bachow Commc'ns Inc. v. FCC, 237 F.3d 683, 690 (D.C. Cir. 2001) (Rules governing an application process are procedural under the Administrative Procedure Act.); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (Rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims.).

Accordingly, prior notice and opportunity for public comment for the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law. See Perez, 575 U.S. at 101 (Notice and comment procedures are required neither when an agency “issue[s] an initial interpretive rule” nor “when it amends or repeals that interpretive rule.”); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), do not require notice and comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” (quoting 5 U.S.C. 553(b)(A))).

B. Regulatory Flexibility Act: As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 or any other law, neither a Regulatory Flexibility Act analysis nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is required. See 5 U.S.C. 603.

C. Executive Order 12866 (Regulatory Planning and Review): This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

D. Executive Order 13563 (Improving Regulation and Regulatory Review): The USPTO has complied with Executive Order 13563 (Jan. 18, 2011). Specifically, the USPTO has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole, and provided online access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

E. Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

F. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes, (2) impose substantial direct compliance costs on Indian tribal governments, or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

G. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

H. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

I. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

J. Executive Order 12630 (Taking of Private Property): This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

K. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ), the USPTO will submit a report containing the final rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this rulemaking are not expected to result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this rulemaking is not expected to result in a “major rule” as defined in 5 U.S.C. 804(2).

L. Unfunded Mandates Reform Act of 1995: The changes set forth in this rulemaking do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of $100 million (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of $100 million (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

M. National Environmental Policy Act of 1969: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

N. National Technology Transfer and Advancement Act of 1995: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions that involve the use of technical standards.

O. Paperwork Reduction Act of 1995: This final rule does not involve information collection requirements that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information has a currently valid OMB control number.

P. E-Government Act Compliance: The USPTO is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes.

For the reasons given in the preamble and under the authority contained in 15 U.S.C. 1112, 1123 and 35 U.S.C. 2, as amended, the USPTO is amending part 6 of title 37 as follows:

Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particulate matter (PM 2.5 ) ( e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil dust) and their precursors ( e.g., sulfur dioxide (SO 2 ), nitrogen oxides (NO X ), and in some cases, ammonia (NH 3 ) and volatile organic compounds (VOC)). Fine particle precursors react in the atmosphere to form PM 2.5 which impairs visibility by scattering and absorbing light. Visibility impairment ( i.e., light scattering) reduces the clarity, color, and visible distance that one can see. PM 2.5 can also cause serious health effects (including premature death, heart attacks, irregular heartbeat, aggravated asthma, decreased lung function, and increased respiratory symptoms) and mortality in humans and contributes to environmental effects such as acid deposition and eutrophication.

In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the prevention of any future, and the remedying of any existing, anthropogenic impairment of visibility in 156 national parks and wilderness areas designated as mandatory Class I federal areas. Congress added section 169B to the CAA in 1990 to further address regional haze issues, and EPA subsequently promulgated the Regional Haze Rule (RHR). 1 The RHR established a requirement to submit a regional haze SIP which applies to all 50 states, the District of Columbia, and the Virgin Islands. 2 Each jurisdiction was required to submit a SIP addressing regional haze requirements for the first implementation period no later than December 17, 2007. 3

Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards natural visibility conditions, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate “Best Available Retrofit Technology” as determined by the state. On July 6, 2005, EPA published the Guidelines for BART Determinations Under the Regional Haze Rule at Appendix Y to 40 CFR part 51 (BART Guidelines) to assist states in the BART evaluation process. Under the RHR and the BART Guidelines, the BART evaluation process consists of three steps: (1) An identification of all BART-eligible sources, (2) an assessment of whether the BART-eligible sources are subject to BART, and (3) a determination of the BART controls. 4 States must conduct BART determinations for all BART-eligible sources that may reasonably be anticipated to cause or contribute to any visibility impairment in a Class I area, or in the alternative, adopt an emissions trading program or other alternative program as long as the alternative provides greater reasonable progress towards improving visibility than BART. In making a BART determination for a fossil fuel-fired electric generating plant with a total generating capacity in excess of 750 megawatts, a state must use the approach set forth in the BART Guidelines. A state is generally encouraged, but not required, to follow the BART Guidelines in other aspects.

On September 22, 2008, Mississippi submitted a SIP revision to address regional haze in Class I areas impacted by emissions from the State and subsequently amended that submittal on May 9, 2011. EPA finalized a limited approval and a limited disapproval of Mississippi's regional haze SIP in June 2012 because of deficiencies in the regional haze SIP arising from the State's reliance on CAIR as an alternative to BART for the State's BART-eligible EGUs. 5 See 77 FR 38191 (June 27, 2012) (limited approval); 77 FR 33642 (June 7, 2012) (limited disapproval). In the limited disapproval action, EPA did not subject Mississippi to a Federal Implementation Plan (FIP). Mississippi had requested that EPA not issue a FIP and instead provide the State with additional time to correct the deficiencies in its regional haze SIP through a SIP revision. 6

Through a letter dated April 23, 2020, 7 Mississippi submitted a draft SIP revision addressing BART for 14 EGUs formerly subject to CAIR (draft BART SIP) to EPA for parallel processing and provided public notice for comment on the same date. The State's public comment period closed on May 23, 2020. Mississippi submitted its final BART SIP to EPA on August 13, 2020.

The RHR requires each state to submit progress reports that evaluate progress towards the RPGs  8 for each mandatory Class I area within the state and for each Class I area outside the state which may be affected by emissions from within the state. See 40 CFR 51.308(g). In addition, the provisions of 40 CFR 51.308(h) require each state to submit, at the same time as each progress report, a determination of the adequacy of the state's existing regional haze plan. The first progress report is due five years after submittal of the initial regional haze plan and must be submitted as a SIP revision. Mississippi submitted its progress report for the first implementation period and a determination of the adequacy of the State's existing regional haze plan to EPA on October 4, 2018. 9

In a NPRM published on August 4, 2020 (85 FR 47134), EPA proposed to approve Mississippi's draft BART SIP via parallel processing. Contingent on the Agency finalizing its proposal to approve the BART SIP, EPA also proposed to approve the Progress Report under 40 CFR 51.308(g) and the State's determination of adequacy under 40 CFR 51.308(h). The details of these submissions and the rationale for EPA's proposed approval of the two submissions are further explained in the NPRM. Subsequently, Mississippi submitted its final BART SIP on August 13, 2020, and EPA has concluded that there are no significant changes between the draft and final BART SIPs that warrant a different approach at the final rule stage. 10

The comment period for the NPRM originally closed on September 3, 2020. EPA reopened the comment period until October 5, 2020, based on a request from Sierra Club for visibility modeling files related to the NPRM and for a 30-day extension. 11

EPA received one set of adverse comments from Sierra Club and the National Parks Conservation Association (hereinafter collectively referred to as the “Commenter”) regarding the proposed approval of Mississippi's BART SIP. These comments are included in the docket for this rulemaking. EPA has summarized the comments and provided responses below. 12

Comment 1: The Commenter asserts that EPA cannot approve Mississippi's BART SIP because neither the Agency nor the State reviewed the visibility modeling used to exempt every EGU in Mississippi from BART. The Commenter then focuses on Mississippi Power Company—Plant Daniel (Plant Daniel), claiming that EPA admits it has not verified the visibility modeling analyses for this facility and that EPA could not have verified the analyses because the Agency does not possess any of the underlying modeling files. The Commenter also argues that EPA violated CAA section 307(d) by failing to include the modeling files in the rulemaking docket.

Response 1: EPA disagrees with the Commenter. In formulating the NPRM, EPA had received from MDEQ all of the modeling files needed to thoroughly review the visibility modeling analyses for all six operational BART-eligible facilities, 13 including Plant Daniel, to assess whether these sources are subject to BART. For each facility, EPA reviewed these modeling files as well as the BART exemption modeling report included in the BART SIP, MDEQ's exemption analysis, the modeling protocol for each facility, 14 and the Visibility Improvement State and Tribal Association of the Southeast (VISTAS) Modeling Protocol. 15 Based upon EPA's thorough review of these documents and modeling files, the Agency proposed to approve the SIP submission.

The Commenter is correct that EPA does not possess the meteorological data input files (meteorological files) used in the modeling. However, this did not affect EPA's ability to meaningfully review the SIP for several reasons. First, MDEQ provided EPA with all of the other input and output files used in the visibility modeling. The Agency, by analyzing the model input and output files that MDEQ did provide, was able to confirm that the modeling used the correct meteorological data and VISTAS meteorological domain. 16 Thus, EPA did not need to review the meteorological files.

Second, the meteorological files used here were standard files originally developed for VISTAS. They were used by the states in Region 4 to support their regional haze SIPs during the first implementation period and continue to be used by many facilities in the southeastern United States for major source preconstruction permit modeling. To date, EPA has already approved numerous SIPs relying on the same files. Thus, these were not new data files specifically developed by these BART-eligible sources that would merit additional scrutiny.

Third, to the extent the Commenter thinks that EPA should scrutinize the meteorological files every time it reviews visibility modeling conducted for a haze SIP, EPA disagrees. The Act vests the Agency with discretion in reaching its technical determinations as well as in how to best marshal its limited resources to meet statutory mandates. Based on EPA's long experience with visibility and preconstruction permit modeling, the Agency generally does not believe that re-assessing standard meteorological files every time they are used by a state or source is the best use of scarce Agency resources. Furthermore, the Commenter has not alleged, much less demonstrated, any deficiency with the meteorological files.

EPA also disagrees with Commenter's claim that EPA violated CAA section 307(d) by not placing the modeling files in the docket. To begin with, CAA section 307(d) does not apply to this SIP action at all. See CAA section 307(d)(1) (expressly listing actions to which CAA section 307(d) applies and not including SIPs). Thus, the Commenter's claim lacks merit.

In any event, the Commenter does not and cannot claim any prejudice as a result of the alleged deficiency. EPA did not post the modeling files to the electronic docket for the proposed rulemaking because the majority of these files are a file type that is not on the list of acceptable file types for upload into the Federal Docket Management System (FDMS). 17 However, the NPRM provided EPA contacts that the public could reach out to for further information, and the Commenter requested the input files for Plant Daniel from the listed EPA contacts during the initial 30-day public comment period. EPA promptly provided the Commenter with all the files in its possession and worked with MDEQ to obtain the meteorological files. Due to the limited amount of time remaining in the comment period after the Commenter received the meteorological files, the Commenter requested an extension of the comment period for an additional 30 days. EPA granted the request, affording the Commenter ample time to review the files and perform its own modeling. 18

Comment 2: The Commenter states that EPA cannot approve MDEQ's determination that Plant Daniel is not subject to BART because that determination is based on unenforceable emissions reductions and an unjustified 2015-2018 emissions baseline in lieu of the 2001-2003 baseline the Commenter prefers. The Commenter advances several supporting arguments. First, the Commenter contends that the BART SIP must contain enforceable BART emission limitations for the facility pursuant to CAA sections 110(a)(2) and 110(k)(3), section 51.308(d)(3) of the RHR, and sections IV and V of the BART Guidelines.

Second, citing to section IV.D.4.d of the BART Guidelines, the Commenter asserts that the emissions baseline should represent a realistic depiction of anticipated annual emissions and, if a utility projects that future operating parameters will differ from past practice and the projection has a deciding effect in the BART determination, those operating parameters or assumptions must be enforceable limitations in the SIP. The Commenter then argues that the baseline used in the Plant Daniel BART modeling analysis is improper because it accounts for flue gas desulfurization (FGD) systems on Units 1 and 2 that are not associated with federally enforceable emission limitations commensurate with BART. The Commenter states that MDEQ's email regarding the enforceability of the FGD emissions limitations identified in Plant Daniel's title V permit application is focused solely on SO 2 and is conclusory, vague, unenforceable, and insufficient to create an enforceable emissions limit for determining whether Plant Daniel is subject to BART.

Third, the Commenter further asserts that the baseline used in Plant Daniel's modeling is improper because it is inconsistent with the RHR's provision regarding baseline visibility conditions and the facility's potential emissions. According to the Commenter, the RHR requires states to determine baseline visibility conditions using a 2000-2004 emissions baseline and it is nonsensical to use a baseline from nearly two decades later.

Finally, the Commenter also claims that the 2015-2018 baseline is arbitrary and capricious as it does not realistically depict potential impacts from Plant Daniel because the facility's capacity factor has steadily dropped since 2015. The Commenter argues that the emissions reductions due to this reduced capacity are not enforceable, and therefore, should not serve as the emissions baseline for the purposes of determining whether the facility is subject to BART.

Response 2: EPA disagrees with the Commenter. The CAA, RHR, and BART Guidelines do not require the result the Commenter seeks. Under the CAA's cooperative federalism framework, states have the primary responsibility for implementing federal standards by promulgating SIPs, and EPA must approve SIP revisions that meet CAA requirements. The CAA and RHR require states to classify a BART-eligible source as a BART-subject source if it may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatory Class I federal area, but they do not set forth any specific, additional criteria for determining whether a source is subject to BART. 19 For states that do not choose to treat all BART-eligible sources as BART-subject sources, section III of the BART Guidelines provides recommendations on how to determine which BART-eligible sources are subject to BART. The recommendations address, among other things, how to establish a contribution threshold, what kind of modeling to use, how to develop a modeling protocol, and the selection of an emissions baseline for states such as Mississippi that opt to use an individual source attribution approach. They do not, however, recommend or require that the emissions baseline correspond to enforceable limitations.

Here, Mississippi used the 24-hour average actual emission rate from the highest emitting day over a three-year period from 2015 to 2018, after the source installed new control equipment for SO 2 . As explained further below, EPA believes this was a reasonable choice. More generally, EPA has reviewed Mississippi's BART exemption determination for Plant Daniel and concluded that Mississippi reasonably exercised the discretion provided by the CAA and RHR. Therefore, EPA must approve Mississippi's BART SIP revision as it relates to Plant Daniel. 20

EPA now addresses and rejects the Commenter's supporting arguments. First, contrary to the Commenter's assertions, the CAA, RHR, and the BART Guidelines do not require a subject-to-BART determination to be based on enforceable emissions limits or reductions. The CAA sections cited by the Commenter are general SIP provisions that do not specifically address subject-to-BART determinations. Section 110(a)(2)(A) generally requires a SIP to contain enforceable limitations and other control measures to meet the applicable requirements of the Act. As the Commenter notes, this obligation only applies with respect to measures that are “necessary or appropriate to meet the applicable requirements” of the Act, but the provision does not otherwise define the scope of the applicable requirements to which it applies.

The portion of sections 110(a)(2)(C) that the Commenter refers to requires states to demonstrate, in developing infrastructure SIPs, that the state has statutes, regulations, or other provisions that provide for the enforcement of emission limitations included in the SIP pursuant to other applicable requirements of the Act. 21 Similarly, section 110(a)(2)(E) requires that states have adequate personnel, funding, and authority to adequately implement the provisions of the SIP that are included pursuant to other applicable requirements of the Act. 22 The Commenter has not alleged that the State provides inadequate enforcement or implementation of its existing SIP provisions.

Section 110(k)(3) requires EPA to approve SIP revisions that meet all applicable requirements of the Act, but it also does not define the parameters of the applicable requirements of the Act. In fact, none of these sections address whether SIPs must contain enforceable limits to support subject-to-BART determinations. To the contrary, CAA section 169A(b)(2) directly addresses this issue and requires SIP limits only for BART-eligible sources that “may reasonably be anticipated to cause or contribute to any impairment of visibility” in a Class I area. These sources are “subject to BART.” See 40 CFR 51.308(e)(1)(ii); see also BART Guidelines at section III (providing guidelines for determining which sources are subject to BART). For these sources, the State must conduct a BART determination and impose SIP limits representing BART. See CAA section 169A(b)(2); 40 CFR 51.308(e), (e)(1)(ii). Conversely, a source that is not reasonably anticipated to cause or contribute to visibility impairment is not subject to BART, and there is thus no need for either a BART determination or corresponding enforceable emission limits. As the NPRM and this final rulemaking notice explain, Plant Daniel is not subject to BART, and therefore, does not need enforceable limits that represent BART.

The provisions of the RHR and BART Guidelines cited by the Commenter are also inapplicable because they only address sources that are subject to BART. The Commenter cites generally to 40 CFR 51.308(d)(3), which requires each regional haze SIP to contain a long-term strategy (LTS). The LTS is the compilation of all control measures a state will use during the implementation period of the SIP submittal to meet any applicable RPGs. Although the LTS must include BART emissions limits, Plant Daniel is not subject to BART. Thus, Plant Daniel does not have any BART emissions limits that must be included in the LTS. See 40 CFR 51.308(e), (e)(1)(ii) (requiring limits representing BART only for sources that are subject to BART).

Similarly, the Commenter's reliance on sections IV and V of the BART Guidelines is misplaced. Section IV of the BART Guidelines addresses BART determinations ( i.e., the analysis of BART options for subject-to-BART sources). Section V addresses how enforceable limits reflecting BART are to be established. Both sections, however, deal specifically with sources that are subject to BART. Plant Daniel, as already noted, is not subject to BART, and thus, these sections of the BART Guidelines are inapposite. By contrast, section III, which the Commenter conspicuously neglects to cite, specifically addresses how to determine whether a source is subject to BART and recommends the use of actual, not enforceable, emissions levels.

The Commenter's allegations regarding section IV.D.4.d of the BART Guidelines is misplaced for the same reason. As just explained, that portion of the Guidelines only applies to sources that are subject to BART, and Plant Daniel is not subject to BART. In addition, even if section IV.D.4.d of the BART Guidelines was applicable to subject-to-BART determinations, it would not preclude the baseline approach used for Plant Daniel because that baseline relies on past actual emissions from 2015-2018, not on future operating parameters. See 82 FR 60520, 60533-34 (December 21, 2017) (explaining that use of recent actual emissions data is consistent with BART Guidelines section IV.D.4.d); Nat'l Parks Conservation Ass'n v. EPA, 788 F.3d 1134, 1143 (9th Cir. 2015) (upholding EPA's use of 2008-2010 emissions notwithstanding the lack of corresponding enforceable limitations because they reflected “a realistic depiction of anticipated annual emissions for the source”).

The Commenter's assertion that the Plant Daniel subject-to-BART evaluation must use a 2000-2004 emissions baseline is also based on inapplicable provisions of the RHR. The 2000-2004 period established in 40 CFR 51.308(d)(2)(i) is the baseline for purposes of measuring reasonable progress at Class I areas. Neither the RHR nor the BART Guidelines requires the use of this particular timeframe as the baseline for a subject-to-BART determination.

Finally, EPA disagrees that Mississippi's use of the 2015-2018 baseline for Plant Daniel was arbitrary and capricious. The three-year period relied on by the State, from October 1, 2015, through September 30, 2018, was a reasonable exercise of discretion for three reasons. First, while the Commenter takes issue with the potential for an increased annual capacity factor in the future, the visibility modeling is not based on the annual capacity factor, but rather based on the maximum daily emissions over a three-year time period. The model is run for every day over a three-year period using the same maximum day emissions. Based on these daily model results, the model estimates the 98th percentile highest visibility impacts for each year. Then, the highest of the three yearly 98th percentile impacts, or the 22nd highest visibility impact over the three years, whichever is more conservative, is compared to the state's BART contribution threshold, which is 0.5 dv for Mississippi. Since the highest daily emissions are used for each day in the modeling, the Commenter fails to allege how an increase in capacity factor here would affect the maximum daily emissions or the visibility modeling results. In any event, the Commenter's suggestion that emissions might increase in the future is beside the point; as already noted, the BART Guidelines specifically recommend the use of past actual emissions data.

Second, the emissions data used was from the most recent three years when the modeling was conducted. That is, the source did not cherry pick data from three years of low emissions, but simply used the most recent data from after the FGD was installed and operating.

Third, prior to the start of the modeled period, the facility had installed control equipment for the purposes of complying with legal requirements outside of the regional haze program. Specifically, Plant Daniel installed low NO X burners on Units 1 and 2 in 2008 and 2010, respectively, to ensure compliance with CAIR, 23 and later installed FGD on these units in 2015 to comply with EPA's Mercury and Air Toxics Standards (MATS). Plant Daniel's federally-enforceable title V permit  24 requires compliance with MATS  25 and applicable New Source Performance Standard (NSPS)  26 emissions limits for SO 2 , and Acid Rain Program  27 and applicable NSPS  28 emissions limits for NO X . 29 The operation of the above equipment has resulted in significant emissions reductions that reduced visibility impacts at the Breton Wilderness Area (Breton). The State chose to use an emissions baseline with data beginning shortly after the most recent emission control equipment, FGD, was installed. EPA is, moreover, not aware of evidence that any of these controls will be removed in the future.

Given the above facts, EPA believes the State's decision to use the more recent baseline was reasonable. Cf. Nat'l Parks Conservation Ass'n v. EPA, 788 F.3d 1134, 1143 (9th Cir. 2015) (approving EPA's decision to rely on a more recent, albeit unenforceable, emissions baseline in determining BART where there was “no reason to believe that [the source] would change course and remove the additional combustion controls it had already installed”).

Comment 3: The Commenter contends that the modeling underlying the Plant Daniel BART exemption analysis demonstrates that the source should be subject to BART using a corrected emissions baseline. The Commenter asserts that Plant Daniel excluded several days in May and November 2017 with high SO 2 emissions from the emissions baseline on the grounds that they were attributable to startup, shutdown, and malfunction (SSM) events. The Commenter claims that these days should have been included in the modeling baseline because they are not associated with SSM events and are not identified in the facility's MATS compliance reports.

The Commenter conducted its own BART exemption modeling for Units 1 and 2 at Plant Daniel using emissions input data from 2015-2018 that includes the excluded days. Using the revised emissions input data, the existing modeling protocol, and the 2001-2003 meteorological modeling inputs, the Commenter's revised CALPUFF modeling predicts that the visibility impact at Breton from Units 1 and 2 at Plant Daniel using the 8th highest (98th percentile) day is 0.55 dv, exceeding Mississippi's 0.5 dv subject-to-BART contribution threshold. According to the Commenter, the modeling results also show that visibility impairment due to Plant Daniel during most of the high impact days is dominated by nitrates which underscores the need to evaluate NO X BART for the facility. The Commenter also ran the model using emissions from 2001-2003 and concluded that the modeled visibility impact using the 8th highest day from Units 1 and 2 exceeds 2.5 dv at Breton.

Response 3: EPA does not agree that the emissions baseline used in the BART modeling needs to be corrected as suggested by the Commenter. Although the Commenter is correct that certain excluded high-emission days were not associated with SSM, the State nonetheless reasonably excluded these days because they did not “reflect steady-state operating conditions during periods of high capacity utilization.”  30 Rather, the source was temporarily testing new coal blends on these days, and thus, experienced atypical and higher than normal emissions during this time. 31

Regarding the excluded days in May and November 2017 referenced by the Commenter, the BART SIP does not identify these dates as SSM. The BART modeling protocol for Plant Daniel, located in Appendix L.3.2 of the BART SIP, states that the modeled emissions excluded “startup, shutdown, or other nonrepresentative operations, etc.” as identified in Appendix E of the protocol. Table E-1 of the protocol, titled “Summary of Days with Nonrepresentative Emissions,” lists the days between October 1, 2015, to September 30, 2018, with periods of nonrepresentative operations and describes the nature of the operations. Dates associated with startups, malfunctions, and shakedowns are marked accordingly whereas the operations on the excluded days in May and November 2017 are described as “test burn/additional FGD pumps not in operation” or “test burn/OFA damper not tuned” (test burn days). 32

EPA obtained clarification from Mississippi Power via MDEQ that the company excluded the test burn days in May and November 2017 from the model because they represent atypical operations, not SSM. 33 On the days in Table E-1 marked with a test burn entry, Plant Daniel tested blending Powder River Basin subbituminous coal with Illinois Basin bituminous coal to determine the effects of the test coal blends on boiler operations and auxiliary equipment. In order to obtain baseline data on the impacts of these test coal blends on unit operations, Plant Daniel did not optimize the boiler, the emission controls, and the auxiliary equipment for extended operation with these test blends. If Plant Daniel were to use the test coal blends as part of normal operations, the source avers that the boiler and auxiliary equipment would be tuned appropriately, resulting in lower SO 2 and NO X emission rates than those experienced during the tests.

The Commenter correctly noted that the source also did not identify these days on its MATS compliance reports as test burn days. The MATS compliance reporting asks facilities to answer, “Did the facility burn new types of fuel during the reporting period?” and the source answered “No.” This was because there was no change in fuel type. MATS defines “fuel type” as “each category of fuels that share a common name or classification” ( e.g., bituminous coal, subbituminous coal);  34 Plant Daniel burns a blend of bituminous (West Elk) and subbituminous (Powder River Basin) coal during normal operations;  35 and the facility burned a blend of the same fuel types—bituminous and subbituminous coal—on the test burn days. In other words, although the source changed the coal blend it burned, it did not change the “fuel type” as defined by MATS.

Excluding the test burn days from the BART exemption modeling is consistent with the BART Guidelines and the VISTAS BART Modeling Protocol because they do not represent normal operations. The BART Guidelines state that “emissions estimates used in the models are intended to reflect steady-state operating conditions during periods of high capacity utilization.”  36 Although the Guidelines go on to specifically discourage the use of emissions reflecting SSM, SSM is only one example of an event that does not represent steady-state operating conditions where “such emission rates could produce higher than normal effects than would be typical of most facilities.” Further, the VISTAS BART Modeling Protocol states that “source emissions should be defined using the maximum 24-hour actual emission rate during normal operation for the most recent 3 or 5 years” for CALPUFF modeling. 37 The Plant Daniel modeling protocol in Appendix L.3.2 of the BART SIP explains that the modeling excluded the days identified in Table E-1 pursuant to the BART Guidelines because those days included periods of nonrepresentative operations. 38 Based on the information submitted by Plant Daniel and MDEQ, EPA believes that MDEQ reasonably concluded that the test burn days do not represent steady-state operations, and thus, appropriately excluded them from the modeling analysis consistent with EPA's BART Guidelines and the VISTAS BART Modeling Protocol.

Regarding the Commenter's assertion that modeled visibility impairment due to Plant Daniel at Breton is dominated by nitrates which underscores the need to evaluate NO X BART, the dominance of one visibility impairing pollutant over another at a Class I area is irrelevant to a subject-to-BART determination. If the total modeled visibility impairment from a source due to NO X , SO 2 , and PM combined meets or exceeds Mississippi's BART contribution threshold, the source is subject-to-BART. In this instance, MDEQ determined that Plant Daniel is not subject-to-BART based on modeling the visibility impacts of all three pollutants (including NO X ), and therefore, no BART determination is required for NO X , SO 2 , or PM. 39

Regarding the Commenter's use of a 2001-2003 baseline emissions period, EPA disagrees that the State was required to use that specific period for modeling visibility impacts. The State reasonably determined that the facility's use of the 2015-2018 updated baseline period reflecting operation of new SO 2 and NO X controls is appropriate, as discussed in Response 2.

Comment 4: The Commenter claims that although Plant Daniel is regularly able to achieve SO 2 emission rates as low as 0.03 lbs/MMBtu, spikes up to 0.6 to 0.8 lbs/MMBtu indicate that the facility operates its FGD systems periodically or inefficiently. According to the Commenter, the spikes appear to be the result of occasional scrubber bypass and an unlawful failure to impose a federally enforceable requirement to continually achieve an emissions limit commensurate with BART.

Response 4: As discussed in the NPRM and this notice, Plant Daniel is not subject to BART, and therefore, no BART emissions limits are required. Furthermore, as discussed in Responses 2 and 3, Mississippi reasonably exercised its discretion in selecting the 2015-2018 baseline for the subject-to-BART modeling for Plant Daniel and excluding the spikes associated with the test burn days. EPA has nonetheless evaluated the Commenter's assertions that Plant Daniel is experiencing spikes in its SO 2 emission rates due to alleged scrubber inefficiency or intermittent scrubber operation.

The majority of the spikes shown in Figure 2 of the Commenter's October 5, 2020, submission occurred after the baseline period ended on September 30, 2018. 40 EPA requested supplemental information from MDEQ regarding these post-baseline period spikes, and in response, Mississippi Power explained that the spikes beginning in the third quarter of 2018 do not reflect actual SO 2 emissions because they are the result of data substitution in accordance with 40 CFR 75.33 and Appendix A to 40 CFR part 75 (Specifications and Test Procedures) due to FGD bypasses during malfunction/emergency events. 41 The bypasses were infrequent (less than one percent of unit operating time) and short in duration (less than two hours). Due to the short duration of each bypass, the bypass continuous emission monitoring system (CEMS) did not have time to calibrate and provide valid emissions data. A combination of short duration events beginning in September 2018 and associated CEMS data invalidation resulted in CEMS availability dropping below 90 percent, triggering data substitution requirements under Part 75. Part 75 requires data to be substituted at the maximum potential concentration when CEMS availability is less than 90 percent, resulting in the spikes shown on Figure 2 beginning in the third quarter of 2018. 42 Mississippi Power affirmed in its response that it operates the FGD systems efficiently and at all times, except during SSM events, 43 and notes that MATS requires continuous operation of the FGD system. 44

Comment 5: The Commenter argues that Mississippi's BART SIP arbitrarily fails to address BART for NO X emissions from EGUs and that the State cannot rely on CSAPR as a BART alternative. The Commenter claims that Mississippi has not corrected its SIP to formally adopt CSAPR in lieu of source-specific BART for NO X emissions so that it could rely on CSAPR as a BART alternative and claims that CSAPR is not a valid BART alternative for the following reasons. First, Mississippi cannot exempt Plant Daniel from NO X BART without going through the BART exemption process, the State has not demonstrated that Plant Daniel meets the BART exemption requirements, and the State has not obtained the concurrence of the Federal Land Managers (FLMs) to exempt the source from BART. Second, the CSAPR “Better than BART” (CSAPR BTB) rule is flawed because it evaluated CSAPR allocations that are more stringent than now required, used presumptive BART limits that are less stringent than required under the statute, and failed to account for uncertainties in emissions reductions under CSAPR. Third, the CSAPR BTB rule is no longer valid given the substantial changes in CSAPR allocations and compliance deadlines, including the United States Court of Appeals for the District of Columbia Circuit's (D.C. Circuit's) 2015 invalidation of certain states' emission budgets and EPA's withdrawal of Texas from the CSAPR trading program. Fourth, NO X emissions from Mississippi's EGUs are only covered by CSAPR during the ozone season, and therefore, CSAPR does not protect Breton and other Class I areas during the remaining seven months of the year. The Commenter attached comments submitted by Earthjustice, National Parks Conservation Association, and Sierra Club on the CSAPR BTB rule.

Response 5: Mississippi did not rely on CSAPR BTB in its SIP submission, nor does EPA rely on CSAPR BTB in the Agency's approval. Therefore, all comments addressing the State's or EPA's application of CSAPR BTB in this SIP action are incorrect. Moreover, EPA did not purport to revisit CSAPR BTB in this action. All comments generally addressing the validity of CSAPR BTB are therefore beyond the scope. EPA notes that the Commenter's general claims regarding CSAPR BTB have been and are being addressed in separate proceedings. 45 Finally, to the extent the Commenter is asserting that the sole mechanism by which Plant Daniel can be exempted from BART is under CAA section 169A(c), that is incorrect. See Am. Corn Growers Ass'n v. EPA, 291 F.3d 1, 8 (D.C. Cir. 2002) (rejecting this argument). The subject-to-BART assessment provides a separate method for exempting BART-eligible sources such as Plant Daniel.

Based on the rationale articulated in the NPRM and in this final rule, EPA is approving the August 13, 2020, BART SIP and finds that it corrects the deficiencies that led to the limited approval and limited disapproval of the State's regional haze SIP. EPA is therefore withdrawing the limited disapproval of the regional haze SIP and replacing the prior limited approval with a full approval of the regional haze SIP as meeting all regional haze requirements of the CAA for the first implementation period. EPA is also approving Mississippi's October 4, 2018, Progress Report as meeting the applicable regional haze requirements set forth in 40 CFR 51.308(g) and the State's determination of adequacy under 40 CFR 51.308(h).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 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. These actions merely approve state law as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law. For that reason, these actions:

• Are not significant regulatory actions 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);

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

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

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

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

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

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

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

• Do 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).

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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing these actions 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 . These actions are 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 these actions must be filed in the United States Court of Appeals for the appropriate circuit by December 6, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of these actions 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. These actions may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

The Commission submitted revised information collection requirements for review and approval by OMB, as required by the Paperwork Reduction Act (PRA) of 1995, on August 3, 2021, which were approved by OMB on September 8, 2021. The information collection requirements are contained in the Commission's Second Report and Order, FCC 20-176 published at 86 FR 2904, January 13, 2021. The OMB Control Number is 3060-1270. If you have any comments on the burden estimates listed in the following, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, 45 L Street NE, Washington, DC 20554. Please include the OMB Control Number, 3060-1270, in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov .

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval on September 8, 2021, for the information collection requirements contained in 47 CFR amendatory §§ instruction 3 adding 1.50004(c), (d)(1), (g), (h)(2), (j) through (n), and amendatory instruction 5 adding § 1.50007 published at 86 FR 2904, January 13, 2021. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1270.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1270.

OMB Approval Date: September 8, 2021.

OMB Expiration Date: September 30, 2024.

Title: Protecting National Security Through FCC Programs.

Form Number: FCC Form 5640 and FCC Form 5641.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit.

Number of Respondents and Responses: 3,500 respondents; 10,250 responses.

Estimated Time per Response: 0.5-12 hours.

Frequency of Response: Annual, semi-annual and recordkeeping requirements.

Obligation to Respond: Mandatory and required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 1603-1604.

Total Annual Burden: 27,400 hours.

Total Annual Cost: 1,125,000.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: The Commission is not requesting that respondents submit confidential information to the FCC. However, respondents may request confidential treatment of their information under 47 CFR 0.459 of the Commission's rules.

Needs and Uses: On November 22, 2019, the Commission adopted the Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs, WC Docket No. 18-89, Report and Order, Order, and Further Notice of Proposed Rulemaking, 34 FCC Rcd 11423 (2019) ( Report and Order ). The Report and Order prohibits future use of Universal Service Fund (USF) monies to purchase, maintain, improve, modify, obtain, or otherwise support any equipment or services produced or provided by a company that poses a national security threat to the integrity of communications networks or the communications supply chain.

On March 12, 2020, the President signed into law the Secure and Trusted Communications Networks Act of 2019 (Secure Networks Act), Public Law 116-124, 133 Stat. 158 (2020) (codified as amended at 47 U.S.C. 1601-1609), which among other measures, directs the FCC to establish the Secure and Trusted Communications Networks Reimbursement Program (Reimbursement Program). This program is intended to provide funding to providers of advanced communications service for the removal, replacement and disposal of certain communications equipment and services that pose an unacceptable national security risk ( i.e., covered equipment and services) from their networks. The Commission has designated two entities—Huawei Technologies Company (Huawei) and ZTE Corporation (ZTE), along with their affiliates, subsidiaries, and parents—as covered companies posing such a national security threat. See Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs—Huawei Designation, PS Docket No. 19-351, Memorandum Opinion and Order, 35 FCC Rcd 14435 (2020); Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs—ZTE Designation, PS Docket No. 19-352, Memorandum Opinion and Order, DA 20-1399 (PSHSB rel. Nov. 24, 2020).

On December 10, 2020, the Commission adopted the Second Report and Order implementing the Secure Networks Act, which contained certain new information collection requirements. See Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs, WC Docket No. 18-89, Second Report and Order, 35 FCC Rcd 14284 (2020) ( Second Report and Order ). These requirements will allow the Commission to receive, review and make eligibility determinations and funding decisions on applications to participate in the Reimbursement Program that are filed by certain providers of advanced communications service. These new information collection requirements will also assist the Commission in processing funding disbursement requests and in monitoring and furthering compliance with applicable program requirements to protect against waste, fraud, and abuse.

On December 27, 2020, the President signed into law the Consolidated Appropriations Act, 2021, appropriating $1.9 billion to “carry out” the Reimbursement Program and amending the Reimbursement Program eligibility requirements to expand eligibility to include providers of advanced communications service with 10 million or fewer subscribers. See Public Law 116-260, Division N—Additional Coronavirus Response and Relief, Title IX—Broadband internet Access Service, §§ 901, 906, 134 Stat. 1182 (2020). The Commission has interpreted the term “provider of advanced communications service” to mean “facilities-based providers, whether fixed or mobile, with a broadband connection to end users with at least 200 kbps in one direction.” Second Report and Order, 35 FCC Rcd at 14332, para. 111. Participation in the Reimbursement Program is voluntary but compliance with the new information collection requirements is required to obtain Reimbursement Program support.

The Secure Networks Act requires all providers of advanced communications service to annually report, with exception, on whether they have purchased, rented, leased or otherwise obtained covered communications equipment or service on or after certain dates. 47 U.S.C. 1603(d)(2)(B). The Second Report and Order adopted a new information collection requirement to implement this statutory mandate. See Secure Networks Act section 5. If the provider certifies it does not have any covered equipment and services, then the provider is not required to subsequently file an annual report, unless it later obtains covered equipment and services. Second Report and Order at para. 215.

The Commission therefore revises this information collection contained in the Second Report and Order adopted by the Commission on December 10, 2020. A previously approved information collection requirement was also eliminated as it was no longer necessary.

As part of GSA's regulatory reform efforts, GSA has been performing a comprehensive review of the regulatory requirements in the GSAR. GSA identified designation and prescription errors related to clauses and provisions. Additionally, GSA identified GSAR clause and provision identification and incorporation issues as well as inconsistencies among deviation citations within GSAR part 552. The amendments in this case will result in conformance with Federal Acquisition Regulation (FAR) and GSAR drafting guidelines.

Title 40 of the United States Code (U.S.C.) Section 121 authorizes GSA to issue regulations, including the GSAR, to control the relationship between GSA and contractors.

The amendments to the GSAR are minor and reflect only technical edits and editorial corrections. More specifically, this case makes several editorial amendments to GSAR clause and provision designations and prescriptions; updates the GSAR policy for using subpart 552.1, updates the GSAR policy for the identification of deviations and alternates, and updates the GSAR policy for incorporating GSAR provisions and clauses by reference; and makes additional editorial corrections related to GSAR clauses and provision prescription.

First, this case makes corrections to bring clause and provision designations and prescriptions up-to-date and in conformance with FAR and GSAR current drafting guidelines. Additionally, makes a number of editorial changes to address errors related to the designation and prescription of several clauses and provisions. For example, subpart 552.2 incorrectly identifies the following GSAR clause as “552.217-73 Notice Regarding Information Collection Requirements” though the correct identification is “552.215-73 Notice”.

Second, this case amends several GSAR provision titles and clause titles to bring them in conformance with FAR and GSAR drafting guidelines concerning the use of deviations. GSAR 552.103 is also being amended to update the policy on identification of deviations to provisions and clauses that meet the definition of deviation in FAR 1.401. Under FAR 1.401(a), a deviation is the “issuance or use of a policy, procedure, solicitation provision . . ., contract clause . . ., method, or practice of conducting acquisition actions of any kind at any stage of the acquisition process that is inconsistent with the FAR”. A GSAR provision or clause that is used in lieu of a FAR provision or clause is a deviation, and therefore, should be indicated as such. For example, GSAR clause 552.227-70 Government Rights (Unlimited) is a deviation to FAR clause 52.227-17 Rights in Data-Special Works; however, the GSAR currently does not identify the clause as being a deviation. As a result, the clause title is being amended to reflect the clause being a deviation.

Third, this case amends the GSAR policy found in 552.101-70 and 552.102 for purposes of reflecting current requirements around the use and incorporation of GSAR provisions and clauses. Lastly, this case makes additional technical amendments throughout the GSAR to conform with the amendments covered by this case. For example, GSAR subpart 519.7 and part 549 are being made non-regulatory due to existing GSAM requirements are non-regulatory.

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 rule has been reviewed and determined by the Office of Management and Budget (OMB) not to be a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

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 “major 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. A major rule cannot take effect until 60 days after it is published in the Federal Register . This rule has been reviewed and determined by OMB not to be a “major rule” under 5 U.S.C. 804(2).

The statute that applies to the publication of the GSAR is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This rule is not required to be published for public comment, because GSA is not issuing a new regulation that has a significant effect or imposes any requirements on contractors or offerors; rather, because this is a noncontroversial action that only impacts the agency's internal acquisition policies and procedures related to correcting GSAR errors and updating GSAR drafting policies and procedures.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) does not apply to this rule, because an opportunity for public comment is not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see Section VI. of this preamble). Accordingly, no regulatory flexibility analysis is required and none has been prepared.

This rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, GSA amends 48 CFR parts 503, 511, 512, 513, 514, 515, 517, 519, 522, 523, 527, 528, 529, 532, 536, 537, 538, 539, 541, 542, 543, 546, 549, 552, and 570 as set forth below:

On June 28, 2019 (84 FR 31146), at the recommendation of the Pacific Coast Fishery Management Council (Council), NMFS published a final rule that authorized the use of EM in place of human observers to meet requirements for 100-percent at-sea monitoring for catcher vessels in the groundfish trawl catch share fishery (Trawl Rationalization Program). EM video systems are used to record catch and discards by the vessel crew while at sea. Vessel operators are responsible for recording catch and discards in a logbook, which is then used to debit individual fishing quota (IFQ) accounts and cooperative allocations. After an EM vessel completes a fishing trip, the vessel operator submits the video data to their third-party EM service provider for analysis to be used to audit the vessel operator's self-reported discard logbooks. The June 2019 final rule established requirements for vessel owners and operators and EM service providers participating in the EM program, and for first receivers receiving catch from EM trips. The June 2019 rule had an implementation date of January 1, 2021.

At its June 2020 meeting, the Council recommended a delay in program implementation until January 1, 2022. The Council wanted to provide more time for industry and the Pacific States Marine Fisheries Commission (PSMFC) to develop a model for industry to fund PSMFC for review of video from their fishing trips. NMFS published a subsequent proposed rule (85 FR 53313; August 28, 2020) and final rule (85 FR 74614; November 23, 2020) that delayed implementation of the EM program until January 1, 2022 to provide additional time for industry and prospective service providers to prepare for implementation. PSMFC has been reviewing video data from the experimental EM Exempted Fishing Permit (EFP) program, funded by NMFS, since 2015. The Council recommended this delay, and NMFS implemented it, in order to increase industry buy-in and for success of the EM program at reducing monitoring costs for the fishery.

At the June 2021 meeting, the Council discussed delaying implementation of all EM program regulations until at least January 1, 2023. The Council and the industry have expressed interest in developing a mechanism for the industry to fund video review and storage by PSMFC, and reducing concerns regarding confidentiality and Federal record retention. The Council subsequently transmitted a letter to NMFS recommending a delay in implementation of the EM program regulations and extending the EM EFPs. At its September 2021 meeting, the Council made a final recommendation that the EM program be delayed until January 2024 at the earliest. NMFS is implementing this recommendation through this interim final rule.

NMFS has already received applications from prospective companies interested in obtaining an EM service provider permit for 2022. NMFS intends to consider any permit applications already received when the permanent program begins. Any applications for EM service provider permits or EM Authorizations received by NMFS prior to October 6, 2021 will be considered for future approval when the EM program becomes effective. When reviewing these applications, NMFS will issue a determination on whether it is necessary for applicants to submit updated or additional application materials.

This action amends § 660.603(b), which describes EM provider permits and responsibilities, and § 660.604(e), which describes vessel and first receiver responsibilities. This interim final rule removes the specific dates by which NMFS will begin accepting EM service provider and EM Authorization permit applications for the 2022 fishing year. These dates were, respectively, May 1, 2021, and September 1, 2021. This rule will instead create a notification provision through which NMFS will provide public notice at least 90 days prior to the date on which it would begin accepting initial applications. As noted above, NMFS has already received several EM service provider permit applications and will consider and review these applications, in addition to any new applications, when the program is fully implemented. Upon review NMFS will make a determination regarding the status of each application and may request updated or additional information as necessary.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this interim final rule is consistent with the Pacific Coast Groundfish Fishery Management Plan, other provisions of the Magnuson-Stevens Act, and other applicable law.

The Assistant Administrator for Fisheries finds that, pursuant to 5 U.S.C. 553(b)(3)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable, unnecessary, or contrary to the public interest. Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking. This action has critical timing needs. The regulatory changes under this action must be in place prior to January 1, 2022, which is the current effective date of EM program regulatory requirements. If these changes are not in place before that date, NMFS would need to expend limited agency resources to temporarily implement the program ( i.e., process, review and issue permits) until the rulemaking is completed. Additionally, the regulatory changes under this action must be published in advance of the January 1, 2022 effective date to ensure sufficient time to notify EM service providers and vessels potentially seeking to submit applications for EM authorizations for the 2022 fishing year about changes to the program. This advance notice will allow the EM service providers and vessels to better plan for the 2022 fishing year and avoid them committing time and resources to a program that will be delayed for at least two years. This action would change the effective date until such time as determined appropriate by NMFS and the Council to fully implement the EM program, no earlier than January 1, 2024. For these reasons, NMFS finds good cause exists to issue this interim final rule without advance notice in a proposed rule or an opportunity for public comment on this action. For the same reasons, NMFS also finds good cause, pursuant to 5 U.S.C. 553(d)(3), to waive the 30-day delay in the date of effectiveness, so that this interim final rule may become effective upon publication in the Federal Register .

Although NMFS is waiving prior notice and opportunity for public comment, we are requesting comments on this interim final rule until November 5, 2021. NMFS encourages the public to participate in this rulemaking by submitting comments containing relevant information, data, or views. This interim final rule may be amended based on comments received. Please see ADDRESSES for more information on the ways to submit comments.

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

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

This final rule does not contain a change to a collection of information requirement for purposes of the Paperwork Reduction Act of 1995. The existing collection of information requirements would continue to apply under the following OMB Control Number(s): 0648-0785, West Coast Region Groundfish Trawl Fishery Electronic Monitoring Program.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows: