Under the Animal Welfare Act (AWA or the Act, 7 U.S.C. 2131 et seq. ), the Secretary of Agriculture is authorized to promulgate standards and other requirements governing the humane handling, care, treatment, and transportation of certain animals by dealers, exhibitors, operators of auction sales, research facilities, and carriers and intermediate handlers.

The Secretary has delegated responsibility for administering the AWA to the Administrator of the U.S. Department of Agriculture's (USDA's) Animal and Plant Health Inspection Service (APHIS). Within APHIS, the responsibility for administering the AWA has been delegated to the Deputy Administrator for Animal Care. Definitions, regulations, and standards established under the AWA are contained in 9 CFR parts 1, 2, and 3 (referred to below as the regulations).

Part 1 contains definitions for terms used in parts 2 and 3. Part 2 provides administrative regulations and sets forth institutional responsibilities for regulated parties. Part 3 provides standards for the humane handling, care, treatment, and transportation of covered animals. Part 4 addresses rules of practice governing proceedings under the AWA.

On September 17, 2020, APHIS announced in the Federal Register (85 FR 57998-58002, APHIS-2019-0001)  1 proposed changes to 9 CFR part 2 in order to address reforms called for in Title II, Section 2034(d) of the 21st Century Cures Act (21CCA). The 21CCA tasked the National Institutes of Health (NIH), the USDA, and the U.S. Food and Drug Administration (FDA) to identify inconsistent, overlapping, and unnecessarily duplicative regulations and policies associated with research using laboratory animals and to consider modifying, streamlining, or repealing those that are unnecessary or impose administrative burdens or excessive costs on regulated entities. 2 These changes will reduce or remove redundant registration, reporting, and review requirements of activities involving animals at AWA-registered research facilities while ensuring that research animals continue to receive humane care.

We solicited comments concerning our proposal for 60 days ending November 16, 2020. We received 61 comments by that date. 3 They were from animal welfare organizations; public and private universities, hospitals, and biomedical and other research institutions; a veterinary association; and members of the public. They are discussed below by topic.

Section 2.30(a)(1) currently requires that each research facility other than a Federal research facility register with the Secretary by completing and filing an initial registration form. 4 Facilities are also required to update their registration every 3 years by filing a registration update form  5 with the registrant's name, address, and contact information; USDA registration certificate numbers; and names of partners, officers, and the Institutional Official (IO) as applicable.

We proposed to eliminate the requirement in § 2.30(a)(1) to update the research facility registration every 3 years after the facility's initial registration. We proposed this change because § 2.30(c)(1) already requires such a facility to notify APHIS within 10 days of any change in the name, address, ownership, or any other change in operations affecting its status as a research facility. We also considered the registration update to be unnecessary because name, address, contact information, and registration certificate numbers are included in the annual report  6 that facilities are required to submit to APHIS in accordance with § 2.36 of the regulations. Eliminating the registration update requirement reduces administrative burden on institutions, removes needless duplicative procedures for providing information, and is consistent with the reforms mandated in the 21CCA.

A commenter disagreed with eliminating the registration update and asked that we provide data to help them assess the basis for this proposed change, particularly how it addresses USDA's claim of needless duplication. The commenter also questioned whether research facilities were complying with the requirement to report changes in operations to APHIS within 10 days and suggested that rather than being a redundant requirement, the registration update is an opportunity for research facilities to make up for changes that they had not otherwise reported to APHIS.

The registration update is duplicative and therefore unnecessary because a facility is already required under § 2.30(c)(1) to provide this information whenever there is a change in the name, address, or ownership, or other change in operations affecting its status as a research facility. Regarding the question of whether facilities are complying with reporting requirements, our records indicate consistent and substantial compliance with the requirement to report changes to facility operations within 10 days of the changes. We disagree with the commenter's implication that research facilities use the registration update to report changes to operations, as the update form does not include fields for such data and APHIS would consider any such changes to be improperly submitted.

As noted above, the current requirement in §  2.30(c)(1) for research facilities to notify the APHIS Animal Care Deputy Administrator in writing  7 of any change in the name, address, or ownership, or other change in operations affecting its status as a research facility within 10 days after making such a change would remain in the regulations. We proposed to add language to the requirement stating that a new Notification of Change form (APHIS Form 7033)  8 may be used to provide that information. In addition, we proposed to add a new provision to § 2.30 that clarifies the duration of a research facility's registration and conditions for its cancellation.

One commenter stated that eliminating the 3-year facility registration update form (APHIS Form 7011) and instead relying on the proposed APHIS Form 7033 risks losing certain information not required by the latter form, such as the checklist for the types of animals used at a facility. Other commenters stated that even though facilities are already required to notify APHIS within 10 days of any change in the name, address, or ownership, or any change in operations affecting its status as a research facility, facilities are not specifically required to let APHIS know of changes to types of animals used.

We disagree with the commenters. Neither the current registration update form nor the new change notification form is intended to capture changes to types of animals used. APHIS will continue to obtain detailed information about the types of animals used at facilities from the semiannual reviews and annual report, and through inspections of facilities during business hours.

Two commenters asked that APHIS clarify what constitutes a “change of operations” as the term appears in § 2.30(c)(1). One commenter added that it is unclear that any facility changes will compel the facility to complete APHIS Form 7033 or otherwise submit the required information without having more detail about what a change of operations means.

A change of operations includes any change affecting a facility's status as a research facility, including but not limited to whether the facility is conducting teaching, testing, or research activities using regulated species. Regarding the commenter's concern about research facilities completing proposed APHIS Form 7033, we note that under § 2.30(c)(1) they are already required to report changes in operations that affect their status as a research facility. The new form is intended to make it easier for facilities to provide the required information.

We noted in the proposed rule that a small number of research facilities become inactive each year. We determined that requiring inactive facilities to request inactive status and continue filing annual reports in accordance with §  2.30(c)(2) constitutes an unnecessary burden because these facilities are no longer using animals covered under the AWA or otherwise functioning as a research facility as the term is defined in § 1.1. For this reason, we proposed to remove the provisions requiring such facilities to request inactive status and file an annual report. Under the proposed change, facilities would no longer be identified as active or inactive, but instead be registered or unregistered. Accordingly, under proposed §  2.30(d)(1), a research facility that goes out of business or otherwise ceases to function as a research facility can request to have its registration canceled by writing to the Deputy Administrator.

Some commenters suggested that we revise the heading of proposed § 2.30(d) to read, “Cancellation and Resumption of a Registration” instead of “Duration of a Registration and Conditions for Cancellation of a Registration” to reflect more accurately the content of the paragraph.

We are making no changes in response to the commenters. The heading of paragraph (d) appropriately emphasizes the main point of the paragraph with respect to conditions of registration. We added the new paragraph to clarify the duration of a research facility's registration and conditions for its cancellation.

We proposed to add a provision in § 2.30(d)(2) stating that the Deputy Administrator may cancel a registration without a written request from the research facility, if he or she has reason to believe that a research facility has ceased to function as a research facility.

A commenter expressed concern about the provision that the Deputy Administrator may initiate a cancellation of a research facility's registration. The commenter noted that various reasons exist why a facility may choose to remain in active status without having animals, such as an inactive academic institution that has used non-covered species at one time and anticipates using covered species again. The commenter asked that we include language in the regulations explaining how a facility would provide this information if they chose to remain active.

We are making no changes in response to the commenter. Facilities would no longer be identified as having active or inactive status, but instead be either registered or unregistered. While facilities may have their reasons for wishing to remain in active status, one that ceases to function as a research facility, or has changed its method of operation so that it no longer uses, handles, or transports animals, does not need to be registered for regulatory purposes. Whenever it plans to resume activities as a research facility, the facility can submit a registration form in accordance with § 2.30(c)(3) at least 10 days prior to using, handling, or transporting animals again. We intend to provide for such a facility to be able to retain its previous registration number upon registering.

One commenter recommended that APHIS define the term “evidence of business activity” in greater detail.

We assume the commenter is referring to the phrase “evidence of business inactivity” we used in the preamble to the proposed rule when discussing duration of registration and conditions for cancellation. We noted in the preamble that such evidence of inactivity could include but not be limited to multiple unsuccessful attempts to contact the facility by phone or mail, or no activity apparent at the physical address listed in the registration.

A few commenters indicated that it is unclear how the USDA would formally notify the facility that their registration was under consideration to be cancelled or was actually cancelled. Another commenter suggested that APHIS should attempt to notify the facility with a letter stating that the registration will be canceled within a certain timeframe if there is no response challenging the cancellation. One commenter proposed that APHIS make at least four documented attempts to contact the facility, with the fourth being by certified mail, and allow four months for a response.

APHIS will make multiple attempts in writing and by phone during business hours to establish contact with a research facility before considering canceling its registration due to evidence of inactivity. Once we have determined that a facility is no longer functioning as a research facility as the term is defined in § 1.1, there is no regulatory need for the facility to remain registered.

Two commenters requested that the USDA provide a more tangible standard for cancelling a registration than “has reason to believe.” One commenter recommended that a potential standard could be when the Deputy Administrator “has developed credible evidence that demonstrates a research facility has ceased to function as a research facility.”

In the preamble of the proposed rule, we explained that the Deputy Administrator may cancel a registration if sufficient evidence exists that a facility has ceased to function as a research facility. However, in the regulatory text of proposed § 2.30(d)(2), we used the words “reason to believe.” We agree with the commenter's suggestion that the language should be more tangible and will amend paragraph (d)(2) accordingly by replacing “reason to believe” with “sufficient evidence showing”.

The same commenter asked that we include a provision by which a facility can contest or appeal the cancellation of a registration that it believes has been made in error.

We are making no changes in response to the commenter. APHIS will cancel a registration if the research facility requests it, or if we have sufficient evidence showing that a facility has ceased to function as a research facility. This evidence includes but is not limited to failure to submit an annual report or respond to multiple contact attempts. We note above that we will make several attempts in writing and by phone during business hours to establish contact with a facility before deciding to cancel its registration based on sufficient evidence of inactivity, so accordingly we see no need to include a provision to contest a cancellation. If a facility has questions about cancellations, they are encouraged to contact APHIS Animal Care. 9

We included in proposed paragraph (d)(3) the provision that if a research facility registration has been canceled but the facility wishes to resume operations or otherwise conduct regulated activities in the future, it is responsible for submitting an application to reregister at least 10 days prior to it using, handling, or transporting animals. No fees would be associated with reregistration.

A commenter requested that the USDA streamline the registration process so that it may be consistently completed within 10 business days of receipt in order to ensure that reregistration does not jeopardize funding or research plans.

We acknowledge the commenter's request but are making no changes to the process. APHIS typically completes the process of registering a facility within 10 business days of receiving the application for registration and intends to continue doing so.

The commenter also asked that we outline the steps we will take to provide flexible options for electronic registration and other measures to ensure timely processing and notification of registration status.

We are currently developing an electronic registration option that will provide greater flexibility and efficiency for stakeholders. We will inform the regulated community when electronic registration is available and where to access it.

A commenter recommended that APHIS place limitations on reregistration by requiring that research facilities pay the costs of their reregistration. The commenter suggested that without such a fee, research facilities unable to comply consistently with the AWA could use the cancellation and reregistration processes to avoid being cited for noncompliance.

We are making no changes in response to the commenter's recommendation. The AWA is silent on authorizing the Secretary to charge a fee for registration. Regarding the commenter's concern, if a facility is out of compliance with the regulations or otherwise has pending citations, canceling its registration will neither cancel the citations nor eliminate the possibility of APHIS taking enforcement action, as enforcement is a process distinct from registration.

Proposed § 2.30(d)(3) includes registration requirements for formerly registered facilities wishing to resume regulated activity. A few commenters recommended revising § 2.30(d)(3) to read “If a research facility plans to resume activity,” presumably to replace “If a research facility resumes operation or otherwise wishes to conduct regulated activities in the future . . . ”.

We did not intend to imply that formerly registered facilities could resume operation of regulated activities prior to registering again, so we agree with the language suggested by the commenters and will replace the proposed wording with “plans to resume regulated activity” in § 2.30(d)(3). We emphasize that unregistered facilities wishing to engage in regulated activities must submit APHIS Form 7011A at least 10 days prior to using, handling, or transporting animals. We intend to allow formerly registered facilities to retain their original registration number if they are registering again.

We noted in the proposed rule that § 2.31 requires the Institutional Animal Care and Use Committee (IACUC) for each registered research facility to assess the facility's animal program, facilities, and procedures and evaluate proposed research activities or significant changes in ongoing activities related to the care, treatment, housing, and use of research animals. In accordance with this section, the IACUC reviews the research facility's programs and facilities to determine compliance with AWA and institutional requirements. The IACUC also reviews proposed animal research activities or significant changes to ongoing activities and notifies the principal investigator (PI) and the research facility of its decision to approve or withhold approval.

Section § 2.31(c)(1) requires the IACUC of each research facility to review, at least once every 6 months, the research facility's program for humane care and use of animals using the AWA regulations as a basis for evaluation. Under § 2.31(c)(2), the IACUC is also required to inspect all of the research facility's animal facilities, including animal study areas, again using the AWA regulations as a basis for evaluation. The IACUC reports the outcome of these semiannual evaluations to the Institutional Official of the research facility in accordance with requirements in § 2.31(c)(3). In addition, the IACUC's functions under § 2.31(c)(4) include reviewing and investigating reports of noncompliance received from facility personnel, as well as public complaints, involving the care and use of animals at the research facility. If noncompliance with the AWA is found during these reviews and inspections, the IACUC is authorized to require modifications or suspend an activity involving animals in accordance with the specifications set forth in § 2.31(d)(6).

In order to approve newly proposed research activities or proposed significant changes in ongoing activities, the IACUC is also required to conduct a review of components of the proposed activities or significant changes related to the care and use of animals and determine that they meet the requirements listed in § 2.31(d)(1). Once a research activity or a significant change to an ongoing activity has been approved, paragraph (d)(5) of this section requires the IACUC to conduct continuing reviews of activities covered under the regulations at 9 CFR 1.1, et seq., at appropriate intervals as determined by the IACUC, but not less than annually.

We proposed to amend §  2.31(d)(5) by removing the continuing review requirement and adding the requirement for a complete review of activities at appropriate intervals as determined by the IACUC, but not less than every 3 years. As we noted in the proposed rule, we made this change in order to harmonize the USDA AWA regulations with the NIH requirement for a complete review of IACUC-approved activities at 3-year intervals.

Several commenters disagreed with our proposal to remove the continuing review requirement in § 2.31(d)(5) and add the requirement for a complete review. One commenter stated that an annual review of research activities and protocols is crucial to maintain transparency and accountability in animal research, and many expressed the view that these changes create too long of an interval between reviews to ensure animal welfare oversight. Another commenter stated that allowing IACUCs to conduct complete reviews “at appropriate intervals” no less than every 3 years would give IACUCs far too much leeway in reviewing activities and animal welfare oversight, and one stated that we provided no data to support a 3-year complete review, noting that it is unclear how the expanded review period comports with annual and semiannual inspections. One commenter stated that APHIS does not elucidate how it will ensure that the AWA standards of treatment will be adhered to with a relaxed review standard.

We acknowledge the concerns expressed by these commenters over whether IACUC reviews at research facilities are sufficiently frequent and thorough to ensure animal welfare. However, we emphasize that the two review types have different objectives, and that removing the continuing review and adding a complete review, as we have proposed, will actually enhance the thoroughness of review of animal activities with no effect on frequency and oversight—we explain this point below.

The purpose of the continuing review required in paragraph (d)(5) of the current regulations is not specified. In practice, however, it has consisted of the IACUC determining whether significant changes impacting animal welfare have occurred in a research activity since the time it was originally approved or last reviewed. We consider the continuing review to be redundant because, under § 2.31(c) and (d), any significant changes to an ongoing activity are already required to be reviewed by the IACUC. Further, the semiannual review of a research facility's program for humane care and use of animals covers animal use in all facility research activities to ensure that the approved activity continues to comply with regulatory and institutional requirements, and under paragraph (c)(3) any departures from the regulations found by the IACUC are required to be reported and addressed appropriately. In addition, under § 2.31(c)(4), the IACUC is required to review, and, if warranted, investigate complaints by the public or facility personnel involving the care and use of animals at the research facility at any time. Finally, removing the continuing review requirement has no effect on the IACUC approval process for new activities and significant changes to animal activities.

The complete review required by NIH at federally funded facilities involves a full evaluation of each new animal research activity—including all elements pertaining to animal welfare listed under § 2.31(d) and (e)—with resubmission and complete review of that activity every 3 years thereafter as if it were a new activity. The NIH requires the complete review of the entire activity protocol even if no significant changes have been made to it in that 3-year period, the rationale being that regulations or scientific developments germane to the activity may have changed during the period between reviews. The complete review does not affect the IACUC's authority under § 2.31(c)(3) to determine the best means of conducting the evaluations required by paragraphs (c)(1) and (2) of the facility's programs and facilities. A facility's programs include the animal activities, and the IACUC's evaluations required by paragraphs (c)(1) and (2) include monitoring after approval.

Based on the results of the complete review, the IACUC grants or withholds approval, or requires modifications to the activity. The purpose of the complete review is to ensure that all elements of animal use in a research activity, or changes to an ongoing activity, are humane and designed to minimize animal distress, and that alternatives to painful and distressing procedures have been considered and implemented to the extent possible.

We proposed harmonizing our review requirements with NIH by adding the complete review requirement because it ensures that every component in a research activity that uses animals is thoroughly evaluated. We note that under the current AWA regulations, no such equivalent review requirement exists. In other words, once approved, an animal research activity using AWA species that is not funded by the Public Health Service  10 can continue indefinitely without ever being fully revisited to ensure its underlying design or foundational assumptions are in step with current science and regulatory policy relating to animal welfare. The continuous review was never intended to serve this purpose, as it involves only periodic checks sufficiently covered by other reviews discussed above.

For the complete review, the PI will provide the IACUC with a written description of all current activities that involve the care and use of animals for review and approval. Changes such as but not limited to personnel, species, study objectives, and frequency of sample collections may be reviewed by the IACUC as frequently as necessary, but not less than every 3 years.

A commenter expressed concern that any violation of IACUC-approved protocols, such as performing procedures on animals beyond what was initially approved or experiencing more animal mortalities than was initially approved, would not necessarily be brought to the attention of the IACUC until the 3-year review, by which time it could be too late to take appropriate action.

We note the commenter's concern but reiterate that, under § 2.31(c), the IACUC is required to review the research facility's program for humane care and use of animals at least once every 6 months, which includes animal use in all facility research activities, and under paragraph (c)(3) any departures from the regulations found by the IACUC at any time are required to be reported and addressed appropriately. The IACUC may approve, require modifications, or withhold approval of such changes, using the AWA regulations as the basis for its decision. Requirements for submitting a proposal to make significant changes to an ongoing activity are listed in § 2.31(e). Furthermore, the IACUC may review animal use in an ongoing activity at any time if there are indications that it deviates from initially approved procedures.

One commenter stated that an annual review is essential for ensuring that when new alternatives in animal use become available, the IACUC and the PI can promptly consider them. Similarly, several commenters noted that advances in scientific knowledge are emerging so quickly that refinements for improving the humane treatment of animals in research activities may go unused in the long period between reviews.

In the interim 3-year period before a complete review occurs, the semiannual review, and the IACUC review and approval process for significant changes, remain in place for raising concerns about changes in a scientific method or the existence of alternatives that reduce or replace live animal use. In addition, the Animal Welfare Information Center remains a resource for the PI to consult regarding the latest alternatives. The AWA regulations under § 2.32(c)(5) require training of PIs and other facility staff in using this resource or that of the National Library of Medicine. If the PI decides to implement an alternative in a research activity based on new knowledge, then he or she can submit an amendment to the IACUC for review and approval at any time.

Two commenters cited a 2014 audit report by the USDA Office of Inspector General (OIG) that found a substantial number of research facilities reviewed in fiscal years 2009-2011 misreported animal use and that IACUCs did not approve, monitor, or report adequately on experimental procedures on animals. Citing these issues in the OIG audit, the commenters indicated that a full IACUC continuing review on at least an annual basis is needed to ensure compliance and protect animals.

We acknowledge the conclusions of the audit report, in which USDA-OIG recommended that APHIS provide research facilities with training or best practice guidelines for IACUC protocol reviews and approvals regarding experimental procedures. As noted in the audit report, APHIS agreed with the OIG recommendation and has since developed guidance for research facilities on protocol review and approval, including updating the Animal Care Inspection Guide with additional guidance on IACUC best practices. In addition, NIH and APHIS formed the Interagency Collaborative Animal Research Education Project, which involves frequent trainings to empower IACUCs and their institutions to improve animal welfare and increase compliance with Federal standards.

We reiterate that eliminating the continuing review does not affect the frequency or depth of reviews required to ensure the humane care and use of animals, and that addition of the complete review further addresses the commenter's concerns.

A few commenters indicated that reducing the frequency of protocol review will diminish efforts to follow the “Three R's”—reduction, refinement, replacement—thus undermining the spirit and intent of the independent policing inherent to the current AWA enforcement structure and limiting the IACUC's role.

We are making no changes in response to the comment. The IACUC's role is not limited or diminished as the result of removing the continuous review requirement, and addition of the complete review provides the committee with an additional strategy for ensuring animal welfare. We add that the IACUC has the authority to review the humane care and use of animals and all the research facility's animal facilities whenever deemed necessary to ensure compliance with the AWA.

A commenter stated that the proposed changes in review hamstring Congressional review and related agency reporting, as both reporting and funding may rely upon outdated data.

The annual continuing review is distinct from the annual report that facilities will still be required to submit to APHIS. The annual report provides data about the animals used by species and the level of pain and distress experienced during the annual reporting period. Furthermore, agency funding is not dependent on the annual report of animal use by research facilities.

One commenter stated that revising the review requirements lies outside the scope of the statutory source, explaining that APHIS does not explain whether the protection of animals would be adversely affected by reducing administrative burden in accordance with 2034(d) of the 21CCA.

We disagree with the commenter. The 21CCA tasked the NIH, in collaboration with the USDA and the FDA, to review regulations and policies for the care and use of laboratory animals and revise them appropriately to reduce administrative burden on investigators while maintaining the integrity and credibility of research findings and protection of research animals. The reduction in administrative burden will have no effect on animal welfare in research facilities, as there will be no change in the degree of IACUC and APHIS oversight.

A few commenters stated that harmonizing the IACUC review requirement with NIH requirements is insufficient to ensure animal welfare at research facilities, with one noting that serious animal welfare violations have been documented at NIH facilities in the past few years. Another commenter suggested that, instead of changing the USDA review, the NIH should conform to USDA's stronger annual review requirement. Another commenter stated that the proposal to align with the NIH review timeframe is based purely on convenience and is an inadequate reason to put animals in harm's way.

We reiterate that APHIS' addition of the complete review as a regulatory requirement ensures a thorough evaluation of research activity design and development with respect to maintaining animal welfare and is independent of NIH oversight activities. Together with semiannual inspections, monitoring of animal activities at an interval deemed necessary for each facility, and investigation of complaints as warranted, the level of animal welfare oversight at facilities will not be diminished by this change.

Another commenter suggested changing the requirement to a 2-year or less review interval, explaining that it would relieve burden while matching the NIH requirement of a complete review of IACUC-approved activities.

We are making no changes in response to the commenter. In keeping with the reforms of the 21CCA, our proposed changes eliminate the redundancy of the continuous review while retaining the semiannual review. Regarding the complete review, we reiterate that the IACUC may choose to review ongoing activities more frequently than 3 years as part of a program review.

In the proposed rule, we noted that the complete review would result in approval of an activity using animals for an interval approved by the IACUC, not to exceed 3 years after the review, unless the IACUC suspends the activity for nonconformance with the description of that activity as provided by the PI and approved by the IACUC under § 2.31(d)(6).

A commenter stated that in addition to a protocol expiring after 3 years or being terminated, it is likely that research facilities have methods to terminate an approved IACUC protocol other than those cited in the regulations. The commenter noted as one example a voluntary termination by the PI or the IACUC for a reason other than that described in § 2.31(d)(6), or suspension by the IO.

We are making no changes in response to the comment. However, we acknowledge the commenter's point that a facility may choose to terminate a research activity voluntarily for reasons not included in the regulations.

A commenter suggested we consider the way protocols are renewed on an annual basis in Canada following a full review.

We are making no changes in response to the commenter. We note that under the regulations, research facilities are currently required to submit an annual report and under the proposed regulatory changes will undertake the 3-year complete review. Consistent with the aims of the 21CCA, this change harmonizes our review requirements with NIH requirements for Public Health Service-funded studies.

As a final note on our proposed addition of the complete review to § 2.31(d)(5), we are amending the language we originally proposed to read “all activities” instead of “proposed activities” pertaining to requirements for submitting written descriptions of activities to the IACUC involving the care and use of animals. This change more accurately reflects what we intended and reinforces commenter concerns that both proposed and ongoing activities involving animal care and use fall under the review requirement.

We proposed to amend § 2.36(a) to eliminate the requirement for Chief Executive Officer (CEO) and IO signatures on a paper copy of the annual report. We noted that this guards against identity theft and allows for the facility representative to electronically submit the annual report on behalf of the CEO or IO while maintaining requirements for the facility annual report and practices. We also proposed to modify § 2.36(a) to inform registered research facilities and Federal research facilities that APHIS Forms 7023, 7023A, and 7023B may be used to submit the annual report information required in § 2.36(b).

Several commenters indicated that requiring the CEO or IO to sign the annual report makes them legally accountable and connected to the IACUC process and recommended against eliminating the requirement. One such commenter advised against eliminating the requirement for a signed paper copy of the report. Another commenter stated that, since the CEO or IO is ultimately responsible for making modifications to a facility and for ensuring that research protocols are modified as necessary for animal welfare purposes, his or her signature on the report confirms the awareness that such modifications are needed. The commenter added that if the annual report was submitted by the facility representative electronically, the CEO or IO may not be aware that modifications are needed for the facility to conform with the AWA. The commenter supported digital signature and electronic submission of the report but asked that we require CEO or IO signature.

We note that under the definition in § 1.1, the IO is the individual at a research facility who is authorized to legally commit on behalf of the research facility that the requirements of 9 CFR parts 1, 2, and 3 will be met. The IACUC is required to prepare a report of findings from the semiannual inspections to be given to the IO. The CEO and IO of the facility are legally responsible for facility and activity conformance with the AWA regardless of whether they actually sign the annual report.

Another commenter stated that changing the signature requirement is arbitrary and recommended against it, as APHIS does not consider its costs or alternatives to the revision.

We disagree that it is arbitrary because the change is consistent with the reforms called for in the 21CCA to reduce administrative burden. The costs of this change to the regulations are considered in the supporting economic analysis (see footnote 3 for a link to the analysis).

One commenter stated that IACUCs at taxpayer-funded State universities should open their meetings to the public.

This comment is beyond the scope of the rulemaking as we proposed no changes to IACUC meetings.

A commenter stated that we failed to show the cost savings to facilities of the proposed changes.

Information about costs can be found in the economic analysis prepared for this rulemaking.

Another commenter stated that cost savings and relief from regulatory burden would be achieved by moving away from animal experiments toward human-relevant research.

The comment is beyond the scope of this rulemaking as we did not address the topic of whether animal experimentation should be eliminated.

A commenter questioned whether the Secretary of Agriculture has the authority to delegate administration of the AWA to the APHIS Administrator. The commenter also stated that while the Administrative Procedure Act requires a “reasoned explanation” for finalizing proposed changes, the proposed rule does not explain how reducing duplicative requirements and administrative burden on research facilities, maintaining research integrity and oversight, and ensuring that research animals continue to receive humane care would result from the proposed provisions in the rule.

The delegation authority of the USDA Secretary is established by statute. 11 As for the relationship between reducing administrative burden while maintaining oversight and humane animal care, we respond that the reduction in burden does not impede current processes in place to ensure oversight, such as evaluating, at least semiannually, the research facility's program for humane care and use of animals, conducting reviews as determined necessary, and investigating public complaints as warranted.

In parts 2, 3, and 4 of the current regulations, we proposed and are making minor corrections in punctuation and wording to improve readability. In paragraphs (f)(6) and (7) of § 3.111, we are removing extraneous punctuation and wording. In §§ 4.10 and 4.11, we are adding pronouns that are more inclusive.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule with the changes discussed in this document.

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities.The analysis is summarized below. Copies of the full analysis are available on the Regulations.gov website (see footnote 3 in this document for a link to Regulations.gov ) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT .

APHIS is amending five requirements in the following three sections of the Animal Welfare Regulations. The five amendments in these three sections are summarized as follows:

• Paragraph (a)(1): Eliminate the requirement for research facility registration updates at 3-year intervals;

• Paragraph (c): Eliminate the requirement for a research facility to request being placed on inactive status if the facility has not used, handled, or transported animals for a period of at least 2 years;

• Paragraph (d): Clarify the duration of a registration and conditions for cancellation of a registration;

• Paragraph (d)(5): Replace continuing annual reviews of activities involving animals approved by the IACUC with reviews and approval by the IACUC at intervals not exceeding 3 years; and

• Paragraph (a): Eliminate the requirement for Chief Executive Officer and Institutional Official signatures on the reporting facility annual report.

APHIS solicited public comments concerning these amendments for 60 days ending November 16, 2020 and received 61 comments. Three commenters raised concerns that were specific and relevant to the Initial Regulatory Flexibility Analysis (IRFA). The commenters expressed concern that the changes could compromise humane animal care at research facilities. Processes in place under the regulations by which IACUC monitors animal activities will not be affected by the changes. These processes include semiannual inspections and the authority to investigate any complaints where warranted under 9 CFR 2.31.

APHIS has quantified annual savings for facilities that total approximately $80,000 from the changes in § 2.30(a)(1) and approximately $11,000 from the change in § 2.36(a). APHIS also expects that the changes to § 2.30(c)(2) and (3) will reduce administrative burden of certain inactive research facilities. APHIS expects that the change in § 2.31(d)(5) will be cost neutral; no quantifiable public information is available to show expected net cost savings from the change.

These changes are intended to reduce administrative burden on investigators, IACUC members, attending veterinarians, and other related facility staff, and will not affect the Animal Welfare regulations that ensure humane animal care during research, testing, experiments, or teaching. Facilities covered by this final rule include small entities.

Based on our review of available information, the APHIS Administrator has determined that this action will not have a significant economic impact on a substantial number of small entities.

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. The Act provides administrative procedures which must be exhausted prior to a judicial challenge to the provisions of this rule.

This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The information collection activities in this rule are approved under the Office of Management and Budget control number 0579-0036.

The Animal and Plant Health Inspection Service 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 information pertinent to E-Government Act compliance related to this rule, please contact Mr. Joseph Moxey, APHIS' Paperwork Reduction Act Coordinator, at (301) 851-2483.

Accordingly, we are amending 9 CFR parts 2, 3, and 4 as follows:

On October 1, 2021 (86 FR 54341), the NRC published a direct final rule amending its regulations in part 72 of title 10 of the Code of Federal Regulations to revise the Holtec International HI-STAR 100 Cask System listing in the “List of approved spent fuel storage casks” to renew, for an additional 40 years, the initial certificate and Amendment Nos. 1, 2, and 3 of Certificate of Compliance No. 1008. The renewal of the initial certificate and Amendment Nos. 1, 2, and 3 of Certificate of Compliance No. 1008 revises the certificate of compliance's conditions and technical specifications to address aging management activities related to the structures, systems, and components of the dry storage system to ensure that these will maintain their intended functions during the period of extended storage operations. In the direct final rule, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on December 15, 2021. The NRC did not receive any comments on the direct final rule. Therefore, this direct final rule will become effective as scheduled.

The NCUA's Chartering and Field of Membership Manual, incorporated as Appendix B to part 701 of its regulations (“Chartering Manual”)  1 implements the FOM requirements and limitations established by the Federal Credit Union Act (“the Act”)  2 for FCUs. At its December 17, 2020, meeting, the Board approved a notice of proposed rulemaking to revise the Chartering Manual's definition of “service facility.”  3 The definition of “service facility” pertains to the addition of groups and underserved areas to the FOM of a MCB FCU, one of three types of FCU charters permitted under the Act. Among the Act's requirements for adding a group to a MCB FCU is that the credit union must be “within reasonable proximity to the location of the group whenever practicable and consistent with reasonable standards for the safe and sound operation of the credit union.”  4 Similarly, one of the Act's requirements for adding an underserved area to a MCB FCU is that “the credit union establishes and maintains an office or facility” in the underserved area. 5 The Chartering Manual implements these geographical requirements by limiting MCB FCUs to adding only groups that are within the service area of one of the FCU's service facilities and requiring MCB FCUs adding an underserved area to establish within two years, and maintain, an office or service facility in the underserved area. 6 As discussed in greater detail in the proposed rule, the Chartering Manual defines “service facility” differently for group additions and underserved area additions, requiring a higher level of services for service facilities in underserved areas. 7 Under the existing rule, ATMs do not qualify as service facilities for purposes of underserved area additions. The existing rule also requires that FCUs adding a group or an underserved area around a shared facility either have an ownership interest in the shared branching network providing the facility or that the shared facility is local to the FCU. 8

The proposed rule would eliminate the ownership requirement for shared facilities, so that facilities of any shared branch network in which an FCU participates, regardless of ownership interest, would qualify as a service facility for the addition of groups or underserved areas. The proposed rule would also conform the definitions of service facility for group additions and underserved area additions, which would have resulted in ATMs, including shared ATMs, qualifying as service facilities for underserved area additions. Finally, the Board requested comments about whether the definition of service facility should further evolve to reflect the increasing role of technology in the provision of financial services by permitting FCUs' interactive websites and mobile banking applications to be considered service facilities.

The Board is issuing this rule pursuant to its authority under the FCU Act. Under the FCU Act, the NCUA is the chartering and supervisory authority for FCUs and the Federal supervisory authority for all federally insured credit unions (“FICUs”). 9 The FCU Act grants the Board a broad mandate to issue regulations governing both FCUs and FICUs. Section 120 of the FCU Act is a general grant of regulatory authority and authorizes the Board to prescribe rules and regulations for the administration of the FCU Act. 10

The Act requires the Board to develop regulations to establish the criteria for additions of groups and requires the Board to approve an MCB FCU's addition of underserved areas. 11 The Act does not use the term “service facility.” Rather, the Board adopted the term “service facility” to define the limits of reasonable proximity. 12 As discussed in the proposed rule, the Act does not dictate the agency's prior position requiring ownership in a shared branching network or its current decision to continue excluding ATMs from the definition of service facility for purposes of underserved area expansion.

Agencies must “use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.”  13 Accordingly, agencies cannot reverse rules adopted by notice-and-comment rulemaking by other, less transparent methods. 14 The term “service facility” appears in the Chartering Manual, which the Board has promulgated and amended using notice and comment rulemaking. The Board has engaged in notice and comment rulemaking to change its position regarding ownership requirements for shared branch networks.

The proposed rule provided for a 30-day public comment period, which closed on February 10, 2021. The NCUA received more than 700 comments on the proposed rule, 680 of which were identical or nearly identical form letters opposing the proposed rule. The form letter focused on opposing the proposed expansion of the definition of service facility to include ATMs in underserved areas and the request for comments on further expanding the definition of service facility. Of the 34 unique comments on the proposed rule, 21 commenters generally favored the rule and 13 commenters opposed it. Credit unions and related groups submitted the supportive comments, while banks, banking trade associations and individuals submitted the opposing comments, including the form letter.

Thirteen commenters specifically addressed the proposed removal of the ownership requirement for shared facilities, with ten supporting it and three opposed. The supportive comments echoed the Board's position in the proposed rule regarding the difficulty of obtaining ownership interests in some shared branching networks, the ongoing evolution in the delivery of financial services, and the fact that ownership, or lack thereof, of the entity offering the shared locations does not affect the services that members can receive at those locations. One commenter also noted that the costs of the shared facility ownership requirement might prevent smaller FCUs from being able to expand around shared locations. The opposing commenters, all banking trade associations, noted that relaxation of the ownership requirement would enable FCUs to expand nationwide. One opposing commenter also alleged that the Board did not sufficiently explain the reason for the change because consumers use ATMs the same way they did 20 years ago.

The Board is adopting the change to the service facility ownership requirement for group additions by MCB FCUs as proposed. The Board agrees with the commenters who note that the services available to credit union members are the same regardless of whether the credit union has an ownership interest in the facility. The Board also agrees that the ownership requirement has the potential to disadvantage smaller FCUs, for whom the investment necessary for ownership in a shared branching network may be cost-prohibitive. The Board does not dispute the opposing commenters' observation that permitting shared locations to qualify as service facilities enables MCB FCUs to add groups that may not have a location in reasonable proximity to a facility solely owned by and dedicated to a particular FCU. This potential, however, already exists under the current rule, except that only FCUs with the resources to invest in a shared branching network can utilize it. Far from being the “red herring” one commenter termed it, the barriers to using shared facilities to expand resulting from the ownership requirement are likely to fall most heavily on smaller, less resourced FCUs. Accordingly, the FCUs most likely to benefit from this change are precisely the type of community-based FCUs the opposing commenters indicate they prefer over what they term the “large, growth-oriented credit unions.”

Finally, the Board disagrees with the commenter who said the proposed rule did not sufficiently explain why its position has changed, because the services consumers access through ATMs has not changed. As discussed in the proposed rule, the Board examined the statutory language and intent and determined that its prior interpretation, requiring an ownership interest, was not dictated by the Act. 15 As also discussed, changes to the structure of shared branching arrangements, as well as consumers' increasing comfort with using electronic facilities that may be distant from the physical location of their financial institution, prompted the Board to consider this change. Nor does the language in the legislative history encouraging NCUA to “strongly favor placing groups with local credit unions”  16 dictate an ownership requirement. An FCU can be local to the location of a group if it can serve members of the group desiring credit union services, and it can serve those members through a shared facility regardless of ownership.

The elimination of the ownership requirement in the final rule is analogous to the Board's approach to other components of the reasonable proximity requirement. For example, the Board has always taken the view that the “reasonable proximity” requirement has a geographic component, but as there is no statutory constraint on the specific distance, the Board has declined to establish a parameter not required by the Act. 17 In other words, despite some misconceptions in the past, there is no specific mileage limit or test to determine reasonable proximity. Similarly, the Board is now eliminating a requirement imposed by regulation that is not mandated by statute.

For underserved areas, the current definition of “service facility” is more limited and allows fewer kinds of facilities to qualify. Specifically, for underserved areas, a service facility currently includes credit union-owned electronic facilities (other than ATMs) that take deposits, accept loan applications, and disburse loans. 18 Credit union branches, certain shared branches, mobile branches, and offices operated on a regularly scheduled weekly basis also meet the current criteria for a service facility in an underserved area expansion. Shared locations to which an FCU has access by virtue of participating in a shared branching network without an ownership interest do not meet the criteria for a service facility in an underserved area under the current rule. ATMs are also excluded, even if wholly owned by the FCU. The proposed rule would have changed the definition to allow all shared facilities, including ATMs, to qualify as service facilities, without any requirement for ownership in the shared facility.

The 680 form letter submissions as well as an additional 14 commenters opposed the addition of ATMs as service facilities for adding underserved areas. Opposing commenters stated the legislative history of this provision of the Act indicates that Congress did not intend for an ATM to qualify as a service facility for underserved areas and questioned whether an ATM could provide the level of service needed in underserved areas. Only 21 commenters favored this change; these commenters asserted that expanding the definition of service facility would allow more FCUs to serve underserved areas. The plain language of the Act does not prohibit including ATMs in the definition of service facility for underserved areas, and the Board agrees that expanding the definition of service facility to include ATMs would increase service to underserved areas. Nevertheless, after considering the comments and upon further review, the Board has determined to adopt only a portion of the proposed changes to the definition of service facility.

The final rule allows shared facilities, other than ATMs, to count as service facilities for underserved areas, provided the FCU's agreement with the shared branching network allows for the shared location to receive share deposits, accept loan applications, and disburse loan proceeds. Shared facilities which permit an FCU to offer these services may be service facilities in underserved areas, regardless of whether the FCU has an ownership interest in the entity providing the shared facility. An ownership interest in a shared facility for purposes of adding an underserved area is not required for the same reasons that an ownership interest in a shared facility for purposes of adding a group is not required.

The final rule, however, continues to impose additional requirements for service facilities in an underserved area. As in the existing rule, ATMs are not included in the definition of service facility. The final rule also retains the requirement in the current rule that a service facility for an underserved area must be a location that provides all three of the listed services—receiving shares for deposit, accepting loan applications, and disbursing loan proceeds. This means that, as stated in a 2012 Office of General Counsel Opinion Letter, so-called “video teller machines” that provide the above three services are service facilities for purposes of underserved areas, regardless of ownership. 19 The Board has determined this approach will allow more FCUs to offer services to underserved areas while still ensuring that members added in underserved areas receive a high level of services. The Board anticipates that this final rule could improve access to fair, safe and affordable financial services to individuals in underserved areas especially in minority and rural communities.

As discussed in the preamble to the proposed rule, the current definition for “service facility” in the Chartering Manual's glossary would benefit from clarification because it does not include a complete definition specific to each type of proposed FOM addition. Although the current definition references requirements for underserved area service facilities in the final sentence, it does not include the requirements for facilities in underserved areas to be a place where shares are accepted, loan applications are accepted, and loan proceeds are disbursed. The proposed rule would have conformed the definitions of service facility and removed this source of confusion. As noted above, however, the Board determined to retain the existing requirements related to service facilities for underserved areas, so the definition of service facility continues to depend on the context.

The definition of service facility in the Chartering Manual glossary in the final rule reflects the elimination of the ownership requirements for shared facilities. It also now more fully captures the additional requirements for service facilities in underserved areas by incorporating the complete definition of service facility for the purposes of underserved area additions from Chapter 3 of the Chartering Manual.

The proposed rule also requested comments on the general issue of whether the Board's definitions of terms like “service facility” should further evolve to include a credit union's transactional website and mobile banking applications. This was another area of focus for the form letter, so the vast majority of commenters opposed consideration of such a change. No regulatory changes were proposed in this regard, and the Board is not contemplating further action on this issue at this time. However, the Board is mindful of the increased usage of digital banking platforms by credit union members and will continue to monitor the situation.

The Regulatory Flexibility Act (RFA) generally requires that, in connection with a notice of proposed rulemaking, an agency prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of a proposed rule on small entities. A regulatory flexibility analysis is not required, however, if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities (defined for purposes of the RFA to include FICUs with assets less than $100 million) and publishes its certification and a short, explanatory statement in the Federal Register together with the rule.

The final rule changes the criteria for service facilities of MCB FCUs by eliminating the ownership requirement for shared facilities. As of June 30, 2021, there are 1,342 MCB FCUs, of which 933 have assets less than $100 million. Of these 933 MCB FCUs with assets less than $100 million, 243 are already participating in a shared branching network. This means that the remaining 690 MCB FCUs under $100 million may have additional incentive to participate in shared branching, as they will be able to use shared locations as a basis for expanding their FOM to additional groups or underserved areas regardless of ownership.

The ability to add additional members will not have a significant impact on small FCUs. The negative effect on small FCUs whose members gain eligibility for membership in another credit union under these changes is also likely minimal. Although this rule is anticipated to economically benefit FCUs that choose to expand their FOMs, NCUA certifies that it will not have a significant economic impact on a substantial number of small credit unions.

The Paperwork Reduction Act of 1995 (PRA) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. 20 The NCUA may not conduct or sponsor, and the respondent is not required to respond to an information collection unless it displays a valid OMB control number.

In accordance with the PRA, the information collection requirements included in this final rule has been submitted to OMB for approval under control number 3133-0015.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, the NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This rulemaking will not have a substantial direct effect on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. The NCUA has determined that this final rule does not constitute a policy that has federalism implications for purposes of the executive order.

The NCUA has determined that this final rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999. 21

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) generally provides for congressional review of agency rules. 22 A reporting requirement is triggered in instances where the NCUA issues a final rule as defined by section 551 of the Administrative Procedure Act. 23 An agency rule, in addition to being subject to congressional oversight, may also be subject to a delayed effective date if the rule is a “major rule.” The NCUA does not believe this rule is a “major rule” within the meaning of the relevant sections of SBREFA. As required by SBREFA, the NCUA has submitted this final rule to the Office of Management and Budget (“OMB”) for it to determine if the final rule is a “major rule” for purposes of SBREFA. The NCUA also will file appropriate reports with Congress and the Government Accountability Office so this rule may be reviewed.

For the reasons stated above, the Board amends 12 CFR part 701 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 757-200, -200PF, -200CB, and -300 series airplanes. The NPRM published in the Federal Register on April 9, 2021 (86 FR 18482). The NPRM was prompted by crack indications found in the lower aft wing skin bolt holes where the flap tracks attach to the track support fitting. In the NPRM, the FAA proposed to require repetitive HFEC inspections for cracking of the lower aft wing skin aft edge at certain flap tracks, and repair if necessary. The FAA is issuing this AD to address undetected cracking in the lower aft wing skin, which could result in the inability of the structure to carry limit load and could adversely affect the structural integrity of the airplane.

The FAA received comments from five commenters, including Aviation Partners Boeing, Delta Air Lines, United Airlines, FedEx, and Boeing. The following presents the comments received on the NPRM and the FAA's response to each comment.

Aviation Partners Boeing (APB) and Delta Air Lines (DAL) requested that references to “Aviation Partner Boeing” at several places in the proposed AD be corrected to “Aviation Partners Boeing.” APB noted that this typographical error appeared in paragraphs (g)(2), (h)(3), and (h)(4) of the proposed AD. DAL also noted the typographical error in the “Related Service Information Under 1 CFR Part 51” section of the proposed AD.

The FAA acknowledges the error and has corrected those references in this AD at the places noted.

DAL requested that the qualifying statement of paragraph (g)(2) of the proposed AD be revised or greater clarity added to paragraphs (g)(1) and (2) of the proposed AD regarding the status of aircraft modified in accordance with Aviation Partners Boeing Service Bulletin AP757-57-001, Revision 1, dated May 18, 2012, which removes winglets installed per supplemental type certificate (STC) ST01518SE. DAL stated that, because the compliance times for aircraft affected by Aviation Partners Boeing Alert Service Bulletin AP757-57-011, dated August 21, 2020, are shortened and additional inspection areas included, it is unlikely that accomplishment of Aviation Partners Boeing Service Bulletin AP757-57-001, Revision 1, dated May 18, 2012, would restore the aircraft to a configuration that could use the inspection times and locations defined in paragraph (g)(1) of the proposed AD, even though they would no longer be regarded as having blended winglets or scimitar blended winglets installed.

The FAA agrees with the request to revise the qualifying statement of paragraph (g)(2) of this AD. For aircraft modified in accordance with STC ST01518SE that subsequently have the STC winglets removed by Aviation Partners Boeing Service Bulletin AP757-57-001, Revision 1, dated May 18, 2012, the wing modification does not get removed, therefore Aviation Partners Boeing Alert Service Bulletin AP757-57-011, dated August 21, 2020, would still be applicable. The qualifying statement of paragraph (g)(2) of this AD has been changed to read, “For airplanes on which Aviation Partners Boeing blended winglets or scimitar blended winglets are installed using STC ST01518SE, or on which such winglets have been installed and subsequently removed.”

Boeing requested that the Summary and paragraph (e) of the proposed AD be rewritten to clarify that the unsafe condition prompting the proposed AD was not discovered on a Model 757 airplane. The commenter stated that the subject sentence may be misleading as is. Boeing noted that crack indications were found in a Model 737-300 airplane, which has a similar configuration to the Model 757 airplane in this area, but there are no reports of cracking in the area for a Model 757 airplane.

The FAA agrees with the request to clarify. The suggested clarification has been added to the Summary and paragraph (e) of this AD.

FedEx requested confirmation that the HFEC inspection described in Boeing Alert Service Bulletin 757-57A0074, dated June 11, 2020, will be sufficient to detect the described unsafe condition. FedEx noted that the proposed AD is based on a crack originating from a fastener hole. FedEx stated that, due to the relatively low depth penetration of HFEC, the inspection specified in the service information will not likely detect a crack until it has propagated through to the free edge of the lower aft wing skin.

The FAA has determined that the HFEC inspection will be sufficient to detect the unsafe condition. This is a proactive AD for the 757 fleet, based on a crack finding in a Model 737 airplane with a similar design. The unsafe condition exists when a fastener hole crack reaches the lower aft wing skin aft edge. Crack growth analysis has determined that the existing structural integrity of the Model 757 airplanes in this area is such that HFEC inspections at the intervals specified in the applicable service information would be able to detect a crack propagating from a fastener hole to the lower aft wing skin aft edge.

Boeing requested that the APB service information be added to the “Proposed AD Requirements in This NPRM” section of the NPRM. The commenter stated that the addition of the APB bulletin information in the statement would inform the reviewer of all applicable service information addressed by the proposed AD.

The FAA agrees that APB service information should have been included in the referenced section of the NPRM. However, the referenced section does not appear in this final rule. This AD has not been changed with regard to this request.

Boeing requested that “Note 1 to paragraph (g)” be changed to “Note 1 to paragraph (g)(1)” because as worded it implies that the Boeing service bulletin gives additional guidance for the APB bulletin, but it only gives additional guidance for the specified Boeing requirements bulletin.

The FAA agrees and has made the specified change.

United Airlines, DAL, and Boeing asked that the Related Service Information under 1 CFR part 51 paragraph be clarified to include HFEC inspections at flap track numbers 1 and 8 for aircraft with blended winglets or scimitar blended winglets. The commenters stated that the APB service bulletin requires additional inspections other than those required in the Boeing requirements bulletin. DAL noted that if the intent is to not require inspections at flap track numbers 1 and 8, paragraph (h) of the proposed AD should be revised to clarify that intent.

The FAA agrees with the request and notes that the intent is to require inspections at all flap track numbers specified in the applicable service information. The FAA has revised the “Related Service Information Under 1 CFR Part 51” section of this AD accordingly. The FAA has also revised the “Costs of Compliance” section to clarify the difference in work hours between the two bulletins.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Boeing Alert Requirements Bulletin 757-57A0074 RB, dated June 11, 2020. This service information specifies procedures for repetitive HFEC inspections for cracking of the lower aft wing skin aft edge at flap track numbers 2 and 7 attachment locations, and repair. The FAA also reviewed Aviation Partners Boeing Alert Service Bulletin AP757-57-011, dated August 21, 2020, which specifies procedures for repetitive HFEC inspections for cracking of the lower aft wing skin aft edge at flap track numbers 1, 2, 7, and 8 attachment locations, and repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 483 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this AD.

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

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

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

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

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

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

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA Emergency AD 2021-0235-E, dated October 28, 2021 (EASA AD 2021-0235-E), to correct an unsafe condition for Airbus Helicopters (formerly Eurocopter) Model EC 130 T2 helicopters, all serial numbers, on which Airbus Helicopters Modification 074581 has been embodied in production.

This AD was prompted by a report of degradation of the rear transmission shaft bearing support on a Model EC130T2 helicopter and the determination that all of the attachment rivets of the transmission shaft bearing support were sheared. The investigation is still on-going to identify the root cause of this degradation. The FAA is issuing this AD to address sheared attachment rivets of the transmission shaft bearing support. This condition, if not addressed, could lead to failure of the tail rotor drive shaft and subsequent loss of yaw control of the helicopter. See EASA AD 2021-0235-E for additional background information.

EASA AD 2021-0235-E requires repetitive visual inspections of the rivets on the rear transmission shaft bearing support and of the local structure for cracking and, if any rivet on the rear transmission bearing support is missing, loose, or sheared, or any visible crack is present, accomplishment of applicable corrective actions ( e.g., repair).

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

These helicopters have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all pertinent information and determining that the unsafe condition exists and is likely to exist or develop on other helicopters of the same type design.

This AD requires accomplishing the actions specified in EASA AD 2021-0235-E, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2021-0235-E will be incorporated by reference in this FAA final rule. This AD would, therefore, require compliance with EASA AD 2021-0235-E in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0235-E does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0235-E. Service information referenced in EASA AD 2021-0235-E for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-1009.

The FAA considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking then.

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because sheared attachment rivets of the transmission shaft bearing support could lead to failure of the tail rotor drive shaft and subsequent loss of yaw control of the helicopter. In addition, the compliance time for the required action is shorter than the time necessary for the public to comment and for publication of the final rule. The initial visual inspection of the rivets on the rear transmission shaft bearing support and of the local structure for cracking and missing, loose, or sheared rivets must be accomplished before next flight or within seven days after the effective date of this AD, whichever occurs first. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-1009; Project Identifier MCAI-2021-01173-R” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Andrea Jimenez, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 1600 Stewart Ave., Suite 410, Westbury, NY 11590; telephone (516) 228-7330; email andrea.jimenez@faa.gov . Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

The FAA estimates that this AD affects 64 helicopters of U.S. Registry. The FAA estimates the following costs to comply with this AD.

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this AD.

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

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

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

For the reasons discussed, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2020-53, dated December 7, 2020 (TCCA AD CF-2020-53) (also referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain 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. 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-2021-0382.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain 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 May 27, 2021 (86 FR 28501). The NPRM was prompted by a determination that new airworthiness limitations for structural inspections and safe life components are necessary. The NPRM proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new airworthiness limitations. The FAA is issuing this AD to address reduced structural integrity and reduced controllability of the airplane. 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 Wisconsin Airlines (Air Wisconsin) requested that the FAA withdraw the NPRM. Air Wisconsin stated that the FAA should require the normal approval routing for revisions to the maintenance requirements manual (MRM) and review the tasks for genuine safety of flights concerns. Air Wisconsin opined that MHI RJ Aviation was trying to force FAA approval of any revision to their maintenance review board (MRB), which then intrudes on an operator's ability to reasonably manage their approved maintenance program. Air Wisconsin concluded that, if successful, the FAA will not need to be asked again to review any revision to any of the documents MHI RJ Aviation wants to push through but will only go to Transport Canada to issue an AD.

The FAA disagrees with the request to withdraw the NPRM. The FAA approved the MRM at Revision 23 and Revision 24 via the Implementation Procedures for Airworthiness (IPA) agreement in place between the U.S. and Canada. The IPA agreement can be found on FAA's website if Air Wisconsin would like to review it further.

In addition, this AD is necessary to address the identified unsafe condition. The FAA issues ADs to require actions to address unsafe conditions that are not otherwise being addressed (or are not addressed adequately) by normal maintenance procedures. The FAA may address such unsafe conditions by requiring revisions to existing maintenance or inspection programs, as applicable, as a condition under which airplanes may continue to be operated. Since the specific revision of the airworthiness limitations issued at the time an airplane is produced must be followed for that airplane, as specified in 14 CFR 21.31(c). Later revisions of the airworthiness limitation document are not required to be incorporated into the maintenance or inspection program for that airplane unless an AD mandates those revisions. Therefore, the FAA has determined that it is necessary to issue this final rule.

Air Wisconsin stated that paragraph (e) of the proposed AD specifies that these are “new” airworthiness limitations for structural inspections and safe life components; however many, if not all of these already exist in the FAA-approved MRM at Revision 21. Air Wisconsin also noted that paragraph (f) of the proposed AD states to comply with this AD “within the compliance times specified, unless already done” and noted that not all the tasks in MRM Revision 23 are newly introduced.

The FAA agrees to clarify that for any tasks already in an operator's maintenance or inspection program, there is no action required by this AD as the operator has already incorporated those tasks into its maintenance or inspection program. Only new or more restrictive airworthiness limitations must be incorporated. The FAA has revised the Summary, Related Service Information under 1 CFR part 51, and paragraph (e) of this AD to better describe the airworthiness limitations as “new or more restrictive” airworthiness limitations.

Air Wisconsin asked how “unapproved” actions could already be done. Air Wisconsin stated “Revision 23 or 24 [of the MRM] have not been FAA approved” and are referred to in the service information specified in paragraph (g)(1) of the proposed AD. Air Wisconsin also stated that paragraph (g)(2) of the proposed AD refers to service information that requires the incorporation of “FAA unapproved version of the MRM revision 23 or subsequent” and said it seems as though this is a flagrant usurpation to force FAA approval of a document previously rejected by the FAA.

The FAA notes that both MRM Revision 23 and 24 are FAA approved via the IPA agreement in place with TCCA. In addition, the FAA has confirmed that the MRM at Revision 23 and 24 were never rejected by the FAA. The FAA approval process is not affected by this AD.

The background of the NPRM refers to the MCAI that provides more clarity that there may be some tasks revised, added, or deleted. As the Revision 23 and 24 of the MRM are published and FAA approved, prior to mandating the MRM as identified in this AD, operators might have already complied with the actions in the documents. Therefore, operators could have already complied with the actions prior to the effective date of this AD.

For clarity, the FAA is mandating the tasks specified in the MRM at Revision 23 at least at this time. However, as noted in the service information, operators may incorporate the specified items in revision 23 or subsequent revisions of the MRM. Operators cannot incorporate specified items in any revision before revision 23.

Air Wisconsin requested that the FAA clarify if AMOCs are needed for operators that have an approved reliability program. Air Wisconsin stated that paragraph (h) of the proposed AD states that “after the existing maintenance or inspection program has been revised as required by paragraph (g), no alternative actions ( e.g., inspections) or intervals may be used unless the actions and intervals are approved as an AMOC.”

The FAA acknowledges the commenter's request and has revised paragraph (h) of this AD for clarification. An AMOC is not needed when operators incorporate a subsequent revision of the MRM completely. The FAA has revised paragraph (h) of this AD to remove the reference to the AMOC paragraph to state “After the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions ( e.g., inspections) or intervals may be used unless they are approved as specified in the provisions of paragraphs 2.B.(2)(a) and 2.B.(3)(a) of the Accomplishment Instructions of MHI RJ Service Bulletin 670BA-05-001, dated August 27, 2020.”

Air Wisconsin requested that the FAA clarify if AMOCs are needed for changes in the intervals that occur in subsequent revisions. Air Wisconsin noted that intervals may be different due to when they were incorporated. Air Wisconsin asked, if MHI RJ Aviation changes the intervals in subsequent revisions, would MHI RJ Aviation be required to request a global AMOC to accommodate the subsequent interval change.

The FAA notes that operators are not required to incorporate later revisions of the MRM unless the FAA mandates those revisions in a new AD. However, for operators that do incorporate any later revisions of the MRM after Revision 23, an AMOC is not required. The FAA further notes that whichever subsequent revision an operator incorporates, it must do so completely. An AMOC is only needed if an operator wants to incorporate a different interval than the interval specified in the MRM that the operator has incorporated for compliance with this AD.

Air Wisconsin requested that FAA clarify how the FAA, or anyone else, would determine if an operator is in compliance with the tasks. Air Wisconsin stated the MHI RJ Service Bulletin 670BA-05-001, dated August 27, 2020, does not specify intervals for the tasks. Further, Air Wisconsin requested that the FAA explain how operators would show compliance with the proposed AD in five years.

The FAA notes that as required by paragraph (g)(1) of this AD everything within paragraph 2.B.(2)(a) of the Accomplishment Instructions of MHI RJ Service Bulletin 670BA-05-001, dated August 27, 2020, must be followed completely. Specifically that paragraph states “Make sure that your approved maintenance program includes all the applicable items listed in the revision 23 or subsequent of the MRM (Manual CSP B-53) Part 2 Airworthiness Limitation Items (ALIs), Section 2 Structural Inspections and obey the instructions . . . .” The MRM contains the intervals (repeat cut-in and repeat compliance times as well as the threshold), in addition to the other category items specified in the service bulletin. The FAA notes that requiring restrictive airworthiness limitation tasks must be mandated through an AD in order to ensure U.S. operators comply with the task restrictions and timeframe. This AD requires incorporation of these tasks and compliance with these tasks is required by 14 CFR 91.403(c).

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

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

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

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

MHI RJ Aviation ULC has issued MHI RJ Service Bulletin 670BA-05-001, dated August 27, 2020. This service information describes new or more restrictive airworthiness limitations for structural inspections and safe life components.

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

The FAA estimates that this AD affects 554 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

The TCCA, which is the aviation authority for Canada, has issued TCCA AD CF-2020-32, dated September 25, 2020 (TCCA AD CF-2020-32), to correct an unsafe condition for all Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. The NPRM published in the Federal Register on April 1, 2021 (86 FR 17087). The NPRM was prompted by a report of cracking in certain components on left and right sides of the aft WTBF structure near the tie-rod attachment at a certain fuselage station; this cracking likely resulted from excessive tie-rod preload. The NPRM proposed to require inspecting the aft WTBF structure for any cracking or damage, adjusting the load on the two tie-rods at a certain fuselage station, and repair if necessary, as specified in TCCA AD CF-2020-32.

Since the NPRM was issued, the TCCA has issued TCCA AD CF-2020-32R1, dated April 23, 2021 (TCCA AD CF-2020-32R1), which provides extended compliance times for airplanes on which a certain WTBF reinforcement modification has been accomplished. The applicability of TCCA AD CF-2020-32R1 is the same as in TCCA AD CF-2020-32; therefore, there is no change to the applicability of this AD. In addition, TCCA AD CF-2020-32R1 does not add any new requirements; the change to the compliance time is relieving. Operators can address the unsafe condition identified in this AD by accomplishing the actions specified in either TCCA AD CF-2020-32 or TCCA AD CF-2020-32R1.

The FAA is issuing this AD to address such cracking, which could lead to loss of aft WTBF integrity and result in damage due to parts departing the airplane, loss of the radio altimeter, and effects on airplane stability and performance. See TCCA ADs CF-2020-32 and CF-2020-32R1 for additional background information.

The FAA received comments from two commenters, including Airbus Canada Limited Partnership (Airbus Canada) and Delta Air Lines (DAL). Additionally, on July 20, 2021, the FAA, Airbus Canada, and DAL had a meeting to clarify some of DAL's comments. A record of that meeting can be found in the docket for this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.

Airbus Canada requested clarification on the use of “approved” in “later-approved revision” stated in paragraph (h)(5) of the proposed AD. Airbus Canada pointed out that the referenced document is not an approved document and is not listed on the TCCA or FAA type certificate data sheet as an approved publication. Airbus Canada stated that it found that the phrase seemed to imply authority involvement in approving that document, but TCCA's involvement, per Canadian regulations, is to find whether implementation of that document is appropriate and sufficient to rectify an unsafe condition.

DAL stated that including “approved” in the phrase “or later approved revisions” changes the definition of “applicable [aircraft maintenance publication] AMP [data module] DM” as provided in the TCCA AD CF-2020-32. DAL stated that the aircraft maintenance publication is an FAA-accepted document, not an FAA-approved document. DAL requested that if the FAA retains “or later approved revision,” that the FAA then provide its approval of Issue 006 of the document in the final rue. DAL also stated that if Airbus Canada revises the document, operators are not generally aware of corresponding changes to data modules, and operators would not be able to use the later revision without FAA approval and would not be able to do the inspection.

The FAA agrees to clarify. The FAA does not have jurisdiction over TCCA regulatory requirements. However, U.S. operators must follow FAA requirements and regulations for compliance with FAA ADs. For the purposes of this AD, Airbus Canada Limited Partnership AMP DM BD500-A-J53-82-55-04AAA-720A-A (Aft fairing strut, Wing To Body Fairing (WTBF)—Install procedure) Issue 006, dated June 26, 2020, is the approved version specified in TCCA AD CF-2020-32 and TCCA AD CF-2020-32R1. Operators must have approval to use later revisions of referenced documents. If the phrase “or later revision” is not modified, operators could comply with a document containing changes that have not been reviewed and approved by TCCA, the FAA, or the design approval organization (DAO) for Airbus Canada to mitigate the unsafe condition. The FAA has revised paragraph (h)(6) of this AD to specify that later revisions must be approved by the Manager, New York ACO Branch, FAA; or TCCA; or Airbus Canada's TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.

DAL stated that TCCA has released a Revision 01 to the TCCA AD CF-2020-32, which specifies revised compliance times and references revised service information that contains information for airplanes delivered with a new configuration. DAL requested that the proposed AD be revised to incorporate the later revision instead of the original TCCA AD CF-2020-32.

The FAA agrees to reference the later revision as an optional method of compliance. TCCA has issued TCCA AD CF-2020-32R1, which extends the repetitive inspection intervals for airplanes on which the modification to strengthen the support structure of the aft WTBF has been accomplished. The FAA has revised paragraphs (g), and (h)(1) through (7) of this AD to reference TCCA AD CF-2020-32R1 and has added and re-designated lower level paragraphs in paragraph (h) of this AD.

DAL requested that the FAA revise the cost estimate to increase the number of airplanes estimated to be affected by the AD requirements. DAL pointed out that the applicability statement in paragraph (c) of the proposed AD identified all Model BD-500-1A10 and BD-500-1A11 airplanes as being affected by the proposed requirements. DAL stated that it has 48 of these airplanes and is aware of another operator taking delivery of these airplanes, which is more than the 11 airplanes estimated in the Cost of Compliance section of the NPRM.

The FAA agrees to revise the Cost of Compliance section to increase the number of airplanes estimated to be affected by the requirements of this AD. As of September 15, 2021, the database that was used to provide the estimate for the NPRM shows 54 U.S.-registered airplanes that could be affected by this AD, which supports DAL's request. The FAA has revised the cost estimate accordingly.

DAL requested an exception be added to paragraph (h) of the AD to allow DAL to use Airbus Canada service information for inspection instructions. DAL stated that, given that many of their airplanes have had longeron repairs or replacements after delivery with components designed and made under an owner-operator produced parts (OOPP) process, it would not be able to comply with the inspections due to a statement in the service information that excludes use of the service information on airplanes that do not have systems and parts that were installed at delivery or as changed by a service bulletin. DAL stated that until Airbus Canada develops a WTBF configuration that does not crack, it concurs with the inspection requirement and wants to be able to use the inspection instructions to comply with the proposed AD.

The FAA disagrees. If an operator or owner is unable to comply with requirements due to an airplane configuration that does not conform to the configurations addressed by service information, operators or owners must request an alternative method of compliance (AMOC) as specified in paragraph (i)(1) of this AD. AMOC requests should include sufficient data to show that the proposed alternate solution is complete and addresses the unsafe condition. The FAA also does not consider it appropriate to include various provisions or exceptions in an AD applicable only to a single operator's unique circumstances. The FAA has not changed this AD in this regard.

DAL stated that it has installed longerons that it designed and manufactured under its OOPP program, and is concerned about not being able to acquire repair instructions as instructed in the event that those certain longerons are found to be cracked. DAL has stated that Airbus Canada would not be able to provide support for OOPP. DAL pointed out that paragraph (i)(2) of the proposed AD states that for any requirement to obtain instructions from a manufacturer, that it should use a method approved by the Manager, New York ACO Branch, FAA; or TCCA; or Airbus Canada's TCCA Design Approval Organization (DAO). DAL proposed that the proposed AD be revised to add an exception that states that replacement of damaged structural elements would be acceptable in lieu of a repair.

The FAA disagrees with the request. Paragraph (i)(2) provides for receiving instructions from the Manager, New York ACO Branch, FAA, or TCCA in lieu of instructions from Airbus Canada's DAO if the DAO cannot provide repair instructions. Also, paragraph (i)(1) of this AD provides procedures to request an AMOC to the methods required to be used in this AD. AMOCs are issued after an AD has been issued and sufficient data has been provided to show that the proposed alternate solution is complete and addresses the unsafe condition. The FAA also does not consider it appropriate to include various provisions or exceptions in an AD applicable only to a single operator's unique circumstances. The FAA has not changed this AD in this regard.

DAL noted that paragraph (h)(6) of the proposed AD specified reporting requirements. DAL perceived reporting requirements as a tool to be used mostly to support efforts to understand statistical probabilities of failure. DAL then considered that reporting findings in situations where the airplane configuration deviates from the configuration that the manufacturer is analyzing is possibly disruptive to prediction models, and suggested revising the AD to exempt operators from reporting in cases where the affected parts have been previously repaired or replaced, particularly if it is a non-conforming configuration.

The FAA does not agree to add an exemption for airplanes on which an affected part has been repaired or replaced, even if it is not in a configuration that conforms to a manufacturer's configuration. Reasons to have a reporting requirement can extend beyond statistical analysis for fatigue or aging of a part, and information from non-conforming configurations can be beneficial in determining a corrective action. The FAA has not changed this AD regarding this issue.

DAL also requested that the compliance time for reporting inspection results be extended from 30 days to 180 days after the inspection. DAL considered the 30 days to be too onerous considering how long heavy maintenance visits take and that an inspection could be conducted at the start of the visit, but the paper records might not be received until 60 days after the inspection. DAL noted that an extended time window will allow findings to be batched together for a group report and preclude undue compliance issues related to late reporting.

The FAA disagrees with the request. TCCA specified 30 days and that aligns with the FAA's standardized compliance time for inspection reports. The FAA and Airbus Canada concur with TCCA's decision. The manufacturer uses the reports to analyze the findings and to develop new service information that incorporates those findings. However, once this AD is published, any person may request approval of an AMOC under the provisions of paragraph (i)(1) of this AD. The FAA has not changed this AD regarding this issue.

DAL requested that the proposed exception in paragraph (h)(2) of the proposed AD be removed. DAL explained that both TCCA ADs CF-2020-32 and CF-2020-32R1 state to repair cracks or damage by using certain service information, and that the steps state that the damage is to be reported to and dispositioned by Airbus Canada, but no mention of any fly-on allowance for documented crack or damage findings.

The FAA disagrees with the request. In both TCCA ADs CF-2020-32 and CF-2020-32R1, there is no phrase that specifically states that the repair is to be done before further flight. Therefore, operators might inadvertently determine that the compliance times specified in both TCCA ADs CF-2020-32 and CF-2020-32R1 are for both accomplishing the inspections and repairs. The FAA found it necessary to clarify that it does not intend to allow flight with known cracking. The FAA has not changed this AD regarding this issue.

DAL requested that the Discussion section of the NPRM be updated to reflect new information on the number of aft WTBF configurations. DAL pointed out that the Discussion section stated that “the cracking reportedly begins earlier on airplanes with the latest of the two aft WTBF configurations.” DAL acknowledged that the statement may have been true at the time of drafting, but added that the FAA should be informed that there is a third WTBF configuration which includes additional structure.

The FAA concurs with the request, however the content of the Discussion section of the NPRM is not repeated in this AD.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products.

TCCA ADs CF-2020-32 and CF-2020-32R1 specify procedures for doing repetitive detailed visual inspections of the aft WTBF structure for any cracking or damage (including, but not limited to, cracking), adjusting the load on the two tie-rods at fuselage station (FS) 973, reporting inspection results, and repairing any cracked or damaged WTBF structure. These documents are unique because TCCA AD CF-2020-32R1 includes revised compliance times for certain airplanes. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA considers that this AD is an interim action. If final action is later identified, the FAA might consider further rulemaking then.

The FAA estimates that this AD affects 54 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates that it would take about 1 work-hour per product to comply with the reporting requirement in this AD. The average labor rate is $85 per hour. Based on these figures, the FAA estimates the cost of reporting on U.S. operators to be $4,590, or $85 per product.

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this AD.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a 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 displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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:

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0085, dated March 19, 2021 (EASA AD 2021-0085) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Airbus SAS Model A350-941 and -1041 airplanes. EASA AD 2021-0085 superseded EASA AD 2021-0018, dated January 15, 2021.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A350-941 and -1041 airplanes. The NPRM published in the Federal Register on July 6, 2021 (86 FR 35413). The NPRM was prompted by a report of a broken forward guide arm found during a passenger door emergency opening test. Investigation results indicated that the opening speed of the door was higher than expected, likely caused by a reduced damping due to oil leakage of the passenger door DEOA. The NPRM proposed to require repetitively replacing certain forward and aft guide arms on the passenger door, inspecting the forward and aft guide arm support brackets for damage, modifying certain DEOAs, and repairing damage if necessary, and also proposed to provide an optional terminating action for the repetitive replacements, as specified in EASA AD 2021-0085.

The FAA is issuing this AD to address failure of a passenger door to perform its intended function during an emergency opening, which could result in reduced evacuation capacity from the airplane and injury to occupants. See the MCAI for additional background information.

The FAA received comments from one commenter. The following presents the comments received on the NPRM and the FAA's response to each comment.

Delta Air Lines Inc. (DAL) asked that the FAA add a new exception paragraph to the proposed AD to allow the replacement of DEOA part number (P/N) FE396001001 with DEOA P/N FE396001004, FE396001005, or FE396001006 (or later model), in addition to DEOA P/N FE396001003 currently included in the instructions. DAL stated that the RC (required for compliance) instructions appear to limit operators to install only P/N FE396001003. DAL sent in a request for clarification from Airbus in which Airbus clarified that DEOA P/N FE396001001 can be replaced with DEOA P/N FE396001003, FE396001004, FE396001005, or FE396001006, since P/Ns FE396001003, FE396001004, FE396001005, and FE396001006 are interchangeable.

The FAA agrees with the commenter's request, for the reasons provided. The FAA has added the exception in paragraph (h)(6) of this AD.

DAL also asked that the FAA add another new exception paragraph to the proposed AD, as follows: “For this AD, DEOAs which are not `new' may be used when completing the instructions in Airbus Service Bulletin A350-52-P049, Rev 00, Option 2, as long as they fit the definition of a `serviceable part' per EASA AD 2021-0085, and do not have part number [P/N] FE396001001 ( i.e., P/N FE396001003, FE396001004, FE396001005, FE396001006 or later).” DAL stated that, the DEOA replacement in Option 2 of Airbus Service Bulletin A350-52-P049, dated January 15, 2021, provides instructions to install a “new” DEOA. However, DAL believes that the word “serviceable” should be used rather than “new” in the instructions. DAL noted that Airbus may have inadvertently limited operators to only “new” actuators when otherwise “used” serviceable DEOAs would be acceptable per the definitions of “serviceable part” in the referenced service information. DAL added that it understands that the supply of these DEOAs is low worldwide, and serviceable parts, as defined by EASA AD 2021-0085, may not necessarily be “new.” They may be overhauled, repaired, upgraded, modified, etc. DAL stated that such a DEOA will still be compliant with EASA AD 2021-0085, as long as the DEOA is in the “serviceable” configuration and does not have P/N FE396001001 ( i.e., has P/N FE396001003, FE396001004, FE396001005, FE396001006, or later). Because DAL is planning to ship affected (discrepant) P/N FE396001001 DEOAs back to the original equipment manufacturer (OEM) for modification, and P/N FE396001001 may be modified to become a “serviceable part,” the possibility exists that DAL could receive serviceable parts (DEOAs other than P/N FE396001001) that may not necessarily be “new” according to the associated delivery documents.

The FAA agrees with the commenter's request, for the reasons provided. DEOAs that are “serviceable” may be used during accomplishment of the instructions in Airbus Service Bulletin A350-52-P049, Option 2, provided the part fits the definition of a “serviceable part” per EASA AD 2021-0085. The FAA has added the exception in paragraph (h)(7) of this AD.

DAL asked that paragraph (h) be revised to add an exception to Airbus Service Bulletin A350-52-P049, which states to use CML 04SBA3 varnish polyurethane to protect the identification plate during modification or replacement of the door actuator. DAL stated that the proposed AD should allow the use of CA8800/B900 in lieu of CML 04SBA3.

The FAA agrees with the commenter's request. Airbus has granted DAL permission to use the material CA8800/B900 in lieu of the CML 04SBA3 materials. The FAA has added this exception in paragraph (h)(10) of this AD.

DAL asked that the compliance time in paragraph (2) of EASA AD 2021-0085 be clarified in the proposed AD as an exception. DAL stated that 15 days means 15 days “in-service” on an airplane. DAL stated that EASA AD 2021-0085 contains no provisions for used spare doors on which the 15-day guide arm replacement required by that paragraph may have already been exceeded. DAL noted that an operator could have a spare door (or acquire a spare door) that may have previously had an emergency opening with an affected DEOA, and may not have had the guide arms replaced within 15 days, and if the operator wishes to install the spare door, the replacement requirement cannot be complied with in 15 days, since 15 days may have already elapsed. DAL concluded that any installation of a spare door that has had an emergency opening with the affected actuator would require requesting an alternative method of compliance (AMOC) for the guide arm replacement time.

The FAA disagrees with the request. The grace period of 15 days is sufficient to accomplish the task and is unrelated to on-aircraft usage. For spare parts subject to this AD for which the grace period has elapsed, the AD actions would be required prior to reinstallation on an airplane. No change to the AD is made in this regard.

DAL asked that the proposed AD be revised to add an exception to correct the cotter pin part number identified as P/N MS24665-155 in Airbus Service Bulletin A350-52-P050, dated December 15, 2020, which is referenced in the EASA AD. DAL stated that the proposed AD should allow the use of cotter pins having the correct P/N MS24665-300.

The FAA agrees with the commenter's request. Airbus issued Operators Information Transmission (OIT)—SBIT 21-0014, dated July 8, 2021, to inform operators that P/N MS24665-155 is an incorrect part number for a cotter pin. Therefore, the FAA has added an exception in paragraph (h)(8) of this AD, which requires the use of cotter pins having P/N MS24665-300 instead of cotter pin P/N MS24665-155.

DAL asked that the proposed AD include an exception to correct the location to mark the CSC number. DAL stated that Airbus Service Bulletin A350-52-P049, dated January 15, 2021, specifies instructions to mark the new CSC number on the door label. DAL noted that an exception should require the new CSC number to be marked on the identification plate instead. DAL stated that the terms “door label” and “identification plate” appear to be used interchangeably in the referenced service information. DAL noted that as written, the instructions specified in Airbus Service Bulletin A350-52-P049 are confusing because there is both an identification plate and a door label on the door in the referenced figures; therefore, the instructions incorrectly state to mark the new CSC number on the door label instead of the identification plate. DAL requested confirmation from Airbus that the instructions were incorrect and was informed that the intent of the referenced service information is to mark the new CSC number on the identification plate and not the door label. Airbus issued Repair Design Approval Form (RDAF) 80876584/008/2021#A, dated February 8, 2021, to provide DOA confirmation of the incorrect instructions. The RDAF confirmed that the door label is not to be altered, and the re-identification is to be done to the identification plate only.

The FAA agrees with the commenter's request, for the reasons provided. The instructions specified in Airbus Service Bulletin A350-52-P049 incorrectly specify marking the new CSC number on the door label. Therefore, the FAA has added an exception in paragraph (h)(8) of this AD, which requires the new CSC number to be marked on the identification plate.

DAL asked for clarification of the terminology used since the terms “rod” and “guide arms” are used interchangeably in Airbus Service Bulletin A350-52-P050, dated December 15, 2020, but not in the proposed AD. DAL stated that in order to reduce potential confusion as to which part is to be replaced, the proposed AD should include a statement that clearly defines that the terms “rod” and “guide arms” are used interchangeably.

The FAA agrees that “guide arms” and “rods” mean the same thing. The term “guide arms” is used in the preamble of this AD; however, those terms are not specifically cited in the regulatory text. Therefore, the FAA has not changed this AD in this regard.

DAL asked that the proposed AD include an exception to allow the return of affected actuators to the OEM after accomplishing the instructions in Airbus Service Bulletin A350-52-P049, dated January 15, 2021. DAL stated that Option 2 of Airbus Service Bulletin A350-52-P049 provides instructions to replace the affected part (DEOA P/N FE396001001) and discard the DEOA with P/N FE396001001 upon replacement. However, DAL stated it intends to ship the removed DEOA back to the OEM for upgrade per its retrofit agreement instructions, rather than discarding the DEOA. DAL requested that the final rule state that return of affected actuators to the OEM is acceptable when accomplishing the instructions in Airbus Service Bulletin A350-52-P049.

The FAA acknowledges the commenter's request; however, this AD does not include a requirement that affected parts must be returned to the OEM. Returning affected parts is at the operator's discretion. However, the FAA has added an exception in paragraph (h)(11) of this AD to provide clarification that returning affected parts is not required by this AD.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products.

EASA AD 2021-0085 describes procedures for repetitively replacing the forward and aft guide arms following any passenger door emergency opening, modifying the airplane so that there is a maximum of one affected DEOA per door pair (left- and right-hand sides), inspecting the forward and aft guide arm support brackets for damage, and repair. EASA AD 2021-0085 also describes procedures for the optional replacement of each affected DEOA having P/N FE396001001, which is terminating action for the repetitive replacements. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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 the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it makes the necessary updates for airspace areas within the National Airspace System.

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

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

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

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

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

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

Entities potentially regulated by this action are those facilities that primarily engage in the recovery of liquid hydrocarbons from oil and gas field gases and which manufacture, process, or otherwise use chemicals listed at 40 CFR 372.65 and meet the reporting requirements of EPCRA section 313, 42 U.S.C. 11023, and PPA section 6607, 42 U.S.C. 13106. These facilities are categorized under Standard Industrial Classification (SIC) code 1321 and North American Industry Classification System (NAICS) code 211130. In response to OMB's revisions to the NAICS codes effective January 1, 2017, EPA amended 40 CFR part 372 to include the relevant 2017 NAICS codes for TRI reporting. EPA also modified the list of exceptions and limitations previously included in the CFR for the applicable NAICS codes for TRI reporting purposes.

If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

This action is taken under EPCRA sections 313(b) and 328, 42 U.S.C. 11023(b) and 11048. Specifically, EPCRA section 313(b)(1)(B), 42 U.S.C. 11023(b)(1)(B), states that the Agency may “add or delete Standard Industrial Codes for purposes of subparagraph (A), but only to the extent necessary to provide that each Standard Industrial Code is relevant to the purposes of this section.” In addition, Congress granted EPA broad rulemaking authority under EPCRA section 328, 28 U.S.C. 11048, which provides that the “Administrator may prescribe such regulations as may be necessary to carry out this chapter.”

EPA is adding NGP facilities to the list of industry sectors subject to reporting under EPCRA section 313 and PPA section 6607. With this addition, NGP facilities will be subject to TRI reporting for the year beginning January 1, 2022, and required to file reports by July 1, 2023.

EPA is adding this industry sector to the EPCRA section 313 list because doing so will meaningfully increase the information available to the public on releases and other waste management of listed chemicals from the NGP sector and further the purposes of EPCRA section 313. In total, there are approximately 1.4 million people living within three miles of at least one of the NGP facilities EPA identified. As detailed in Unit IV.C. of this notice, some NGP facilities are located in communities where there are potential Environmental Justice considerations.

This action also addresses a petition (Ref. 1) submitted to EPA via a letter dated October 24, 2012, from the Environmental Integrity Project (EIP), together with 16 other organizations, and later joined by two additional organizations (collectively, Petitioners) under section 553(e) of the Administrative Procedure Act (APA) that asked EPA to add the Oil and Gas Extraction industrial sector (SIC code 13) to the scope of industrial sectors covered by the reporting requirements of the TRI. On October 22, 2015, EPA granted, in part, the petition insofar as it requested that EPA commence the rulemaking process to propose adding NGP facilities to the scope of TRI. EPA denied the remainder of the petition. The petition and related documents, including EPA's response, can be found in Docket ID No. EPA-HQ-TRI-2013-0281.

EPA considered the incremental costs and benefits associated with this rulemaking. EPA estimates the total incremental costs to be approximately $11,846,000 to $18,044,000 in the first year and approximately $5,641,000 to $8,593,000 in the steady state. In addition, EPA performed a screening analysis on small entities and determined this rulemaking will not have a significant economic impact on a substantial number of small entities. A more detailed discussion is included in Unit IV.C.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997), as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This regulatory action changes reporting requirements for NGP facilities and does not have any direct impact on human health or the environment. However, for communities living near NGP facilities, there is the potential for new information about toxic chemical releases and waste management practices occurring in those communities to become available through the TRI reporting data. A more detailed discussion is included in Unit IV. C.

As discussed in the proposed rule of January 6, 2017 (82 FR 1651) (FRL-9953-68) (Ref. 2), EPA proposed to add NGP facilities to the scope of the industrial sectors covered by the reporting requirements of section 313 of EPCRA and section 6607 of the PPA. In the proposed rule, the Agency asserted that adding these facilities would meaningfully increase the information available to the public on releases and other waste management of listed chemicals from the NGP sector and further the purposes of EPCRA section 313. In the proposed rule, EPA estimated in 2017 that at least 282 NGP facilities in the U.S. would meet the TRI employee threshold (10 full-time employees or equivalent) and manufacture, process, or otherwise use (threshold activities) at least one TRI-listed chemical in excess of applicable threshold quantities. Collectively, NGP facilities in the U.S. manufacture, process, or otherwise use at least 21 different TRI-listed chemicals, including n-hexane, hydrogen sulfide, toluene, benzene, xylene, and methanol.

Upon publication of the proposed rule, EPA initially provided a 60-day comment period. EPA then granted an additional 60 days to allow interested parties further time to prepare their comments (82 FR 12924) (FRL-9959-41). The public comment period for the proposed rule closed on May 6, 2017. EPA received 5,933 comments on the proposed rule.

The Agency received 5,470 duplicate or significantly similar comments, leaving 463 unique comments received, of which 25 comments received were substantive and related to the proposal. Eleven of those comments were submitted by private citizens, one of which was submitted anonymously (Docket ID EPA-HQ-TRI-2016-0127, 0202, 0218, 0251, 0268, 0269, 0393, 0452, 0453, 0470, 0486). Three comments submitted by industry groups requested an extension to the original comment period (0023, 0024, 0025). Comments were submitted from the following public interest non-governmental organizations (NGOs): Environmental Action Center (EAC) (0343), Earthworks (0375), Environmental Integrity Project (EIP) (0334), Westmoreland Marcellus Citizens' Group (0435), and Western Governors' Association (0481). Comments were also received from the following industry groups: American Petroleum Institute (API) (0483), GPA Midstream (0475), Marcellus Shale Coalition (0474), MarkWest (0484), and the Texas Pipeline Association (TPA) (0478). A comment received from Black Warrior Riverkeeper (0292) was not relevant to the proposed action.

Comments received from the public interest mass mail campaigns were supportive of the proposed rule. With the exception of Western Governors' Association, all comments received from private citizens and public interest NGOs were supportive of the proposed rule, although some provided recommendations to include more information in the final rule. Comments received from industry groups were not supportive of the rule. EPA's responses to all substantive comments relevant to the proposed rule are detailed in the remainder of this Unit.

Several commenters argued that the Petition that EIP submitted to EPA was not authorized by law and therefore should neither have been considered nor granted in part. Commenters stated that the statutory provisions for TRI-related petitions are in EPCRA, are only intended for changes to the chemical list, and do not allow the public to petition for changes to the list of industry sectors that are subject to TRI reporting requirements. One commenter stated that the Congressional implication, therefore, is that other types of petitions involving TRI are not allowed. Other commenters stated that the Agency failed to address many considerations that are relevant to the decision to add NGP facilities to the industry sector list for EPCRA section 313 TRI reporting.

The Agency disagrees with the commenters' arguments that the Petition that EIP submitted to EPA was not authorized by law and should not have been granted in part. The Administrative Procedure Act (APA) governs the process by which federal agencies develop and issue regulations. The APA includes requirements for publishing notices of proposed and final rulemaking in the Federal Register , and it provides opportunities for the public to comment on notices of proposed rulemaking. Under the APA, federal agencies must give interested persons the right to petition for the issuance, amendment, or repeal of a rule. 5 U.S.C. 553(e). Accordingly, EIP submitted the petition under the APA to request that EPA issue a rule to add oil and gas industry sectors to the scope of the TRI program. That EPCRA also provides citizens the opportunity to petition EPA for specific rulemaking actions, specifically to request that the Agency modify the list of chemicals applicable to TRI reporting requirements, does not supplant the general petition process that the APA provides. Rather, the specific EPCRA petition procedure provides a specific timeframe and requirements for petitions that request changes to the TRI list of covered chemicals.

EPCRA section 313(b)(1)(B), 42 U.S.C. 11023(b)(1)(B), states that EPA “may add or delete [SIC] Codes . . . to the extent necessary to provide that each [SIC] code to which this section applies is relevant to the purposes of [the TRI].” In addition, Congress granted EPA broad rulemaking authority under EPCRA section 328, 28 U.S.C. 11048, to “prescribe such regulations as may be necessary to carry out this chapter.”

The addition of NGP facilities to the scope of the industrial sectors covered by the reporting requirements of EPCRA section 313 will meaningfully increase the information available to the public on releases and other waste management of listed chemicals from the NGP sector. Thus, addition of this industrial sector is relevant and necessary to carry out the purposes of the TRI.

Some commenters believed that there was a lack of time, both to submit comments on the proposed rule and to comply with the rule if finalized. These commenters argued that there was not sufficient time for them to adequately analyze all the supporting documents related to the proposed rule and that historically the Agency held extensive outreach prior to releasing any proposal to add additional sectors required to report to TRI. One commenter requested the EPA “allow sufficient lead time to comply with the rule” if finalized, recommending reports not be due until at least 2019 (0475). One commenter stated that a consultation with states within which these facilities operate should have occurred to determine the necessity of adding NGP facilities to the TRI, considering the presence of state regulations.

EPA provided adequate notice to all interested stakeholders, including the public, industry, and the States, regarding its proposal to add NGP facilities to the scope of TRI. On October 24, 2012, the EIP and sixteen other organizations submitted a Petition to EPA, requesting that the Agency add the Oil and Gas Extraction sector, SIC code 13, to the scope of sectors covered by TRI under section 313 of EPCRA. EPA published a Federal Register notice on January 3, 2014 (79 FR 393) (FRL-9904-82-OEI) acknowledging receipt of the petition from EIP and placing the Petition in the public docket. On February 25, 2014, API met with EPA to better understand EPA's intentions for the petition. The Agency also received comments submitted from industry trade groups in response to the EIP petition, which EPA made available in the public docket.

On October 22, 2015, EPA granted, in part, the petition insofar as it requested that EPA commence the rulemaking process to propose adding NGP facilities to the scope of TRI Ref. 3) and published its response in the public docket. On January 6, 2017, the Agency proposed to add NGP facilities to the scope of the industrial sectors covered by the reporting requirements of EPCRA section 313. The initial 60-day comment period was January 6 to March 7, 2017. In response to requests from multiple stakeholders, the Agency extended the comment period for an additional 60 days from March 7, 2017 to May 6, 2017. Therefore, there was sufficient notice for the proposal of adding NGP facilities to TRI. States also had sufficient time to comment and request consultation with the Agency. Further, TRI is a federal program designed to provide information to the public and decisionmakers across all governmental levels. TRI reporting requirements do not conflict with state regulation of NGP facilities; rather, they help inform such regulation.

EPA agrees that sufficient lead time should be provided to comply with the final rule, and has provided sufficient time in the rule finalized in this action. EPCRA 313(a) provides that reporting shall be submitted annually on or before July 1 and shall contain data reflecting waste management occurring during the preceding calendar year. Accordingly, this final rule is effective December 27, 2021 and shall apply for the reporting year beginning January 1, 2022, such that the first reports are due July 1, 2023. This timeframe provides ample time for facilities to make reasonable estimates of releases and waste management quantities for chemicals that they manufacture, process, or otherwise use.

One commenter suggested that EPA expand the description of the proposed rule from mostly focusing on why it is adding NGP facilities to the scope of industries required to report under TRI, to also encompassing reasons for not requiring the rest of the Oil and Gas Extraction Industry sector to report under TRI. Another commenter asserted that the proposed rule did not sufficiently explain why it limits the scope of the addition to NGP facilities alone, and that while EPA explains that it will add NGP facilities to the list of TRI reporting industries, the Agency insufficiently explains what this limited scope means for chemical release data reporting and why the Agency decided on such a limited scope.

In its response to the EIP Petition, the Agency provided its rationale for proposing to add only NGP facilities from the Oil and Gas Extraction sector at that time. As detailed in EPA's rationale in the Petition Response (available at https://www.regulations.gov/document/EPA-HQ-TRI-2013-0281-0047 in regulations.gov ), considerations of the EPCRA statutory definition of “facility,” as well as numerous other EPA activities addressing the oil and gas sector, warranted focusing this rulemaking on NGP facilities specifically.

Several comments from industry suggested that the data EPA evaluated to support the proposed addition of NGP facilities were used improperly and incorrectly identified the number of U.S. NGP facilities that may trigger TRI reporting requirements. For example, in Table 2.2 of EPA's economic analysis for the proposed rule (Ref. 4), EPA based its estimates of chemical forms TRI would receive on the number of facilities Canada's National Pollutant Release Inventory (NPRI), a program analogous to TRI, already covers that would be required to report (estimating that it would receive 242 forms from 31 reporting facilities with 10 or more full-time employees (FTEs) and reporting a TRI chemical, or 7.81 forms per facility). API contends that EPA should have included in its estimates those facilities with fewer than 10 FTEs, not reporting a TRI chemical, that would thus not report to TRI, (which would result in less than one form per facility). API contends that this shows the reporting would provide little benefit to further the purposes of EPCRA section 313.

EPA analyzed data from multiple sources and used modeling techniques to identify the estimated universe of NGP facilities that could trigger TRI reporting requirements if EPA were to add NGP facilities to the scope of industrial sectors covered by TRI (Ref. 4). These data sources included the U.S. Energy Information Administration survey (EIA-757 survey), Canada's NPRI, EPA's Risk Management Plan (RMP) Program, and EPA's Greenhouse Gas Reporting Program (GHGRP). Based on these datasets, EPA estimated that NGP facilities in the U.S. collectively manufacture, process, or otherwise use more than 21 different TRI-listed chemicals. These chemicals include n-hexane, hydrogen sulfide, toluene, benzene, xylene, and methanol. Since the proposed rule, EPA updated its analysis and now estimates that between 321 and 489 NGP facilities in the U.S. would meet the TRI employee threshold (10 full-time employees or equivalent) and manufacture, process, or otherwise use at least one TRI-listed chemical in excess of applicable threshold quantities (Ref. 5). Thus, because EPA is basing its estimates of facilities that would report to TRI only on the counts of NGP facilities with 10 or more full-time employees or equivalent and not the entire universe of NGP facilities in the U.S., EPA's estimated facility counts are commensurable with the 31 NPRI facilities and associated forms-per-facility ratios identified in the NPRI data. EPA's analysis clearly establishes that there are facilities within the candidate NGP industry group whose reporting can reasonably be anticipated to increase the information made available pursuant to EPCRA section 313, or otherwise further the purpose of EPCRA section 313. Furthermore, based upon information submitted to the NPRI and the 2017 EIA-757 survey of NGP facilities, as well as based on EPA's understanding of the sector, EPA expects that TRI reporting by U.S. NGP facilities will provide substantial release and waste management data.

There were a few commenters who believed that EPA improperly used Canada's NPRI data to evaluate NGP facilities in the U.S. The commenters believe that EPA's use of the NPRI data overestimated the number of NGP facilities and number of TRI chemicals that would trigger thresholds to be reported under EPCRA section 313. One commenter expressed concern that EPA utilized NPRI data selectively by using it only to identify chemicals used in the NGP industry, but not to recognize from those same NPRI data that reported releases are almost exclusively to air, are therefore already reported to air emissions programs, and no releases to other media or other unique information would be reported to TRI (0334). Another commenter, though supportive of the rule, recommended EPA base its information factor conclusion on evidence from the actual facilities it would regulate rather than surrogate data from the NPRI.

EPA disagrees that it improperly used Canada's NPRI data. The NPRI data provide information on what chemicals and associated quantities are universally used in the NGP industry. EPA used the NPRI data alongside other domestic information sources ( e.g., EIA-757) to estimate what chemicals and associated quantities are likely used by NGP facilities in the U.S. As detailed in Unit III.G.2 of this notice, data reported to TRI include releases to media, including air, but also many other data elements—such as pollution prevention and other source reduction activities—not reported to air programs. That releases reported by Canadian NGP facilities to NPRI are predominantly to air does not render EPA's inferences on chemical usage improper or unsound, nor does it have a bearing on the utility of air emissions data and associated information reported to TRI. As stated in Unit III.G.2 of this notice, TRI is a nationwide database that places data in a central, publicly accessible location. Further, TRI data provide unique benefits in that they are collected annually; they reflect chemical emissions to multimedia, including air, water, and land; and they encompass source reduction and other pollution practices. Simply put, TRI reporting involves more than reporting on releases to air, and increasing the TRI dataset to include reporting from NGP facilities would provide access to data not otherwise available from other programs, and in a format that is readily accessible and designed for public use.

One commenter expressed concern that EPA did not provide sufficient justification as to why the inclusion of NGP facilities under TRI should be revisited and why NGP facilities should ultimately be made subject to EPCRA section 313 reporting. Two other commenters, though in support of the rule, recommended that EPA reconsider its decision to limit the scope of the addition to processing facilities, and instead include extraction and mid-stream compressor facilities. Another commenter suggested that EPA include its rationale in the final rule for limiting the scope of the proposed addition to processing facilities.

EPA disagrees that it has not provided sufficient justification for revisiting the inclusion of NGP facilities under TRI. In its 1997 sector addition rulemaking, EPA considered the addition of the oil and gas industry group to TRI. At that time, EPA indicated that one consideration for not including the industry group was concern over how a “facility” would be defined for purposes of reporting in EPCRA section 313 (61 FR 33592) (FRL-5379-3). That issue, in addition to other questions, led EPA to not include, at the time, the oil and gas industry group as a whole.

However, EPA has since determined that NGP facilities are appropriate for addition to the scope of TRI. The triennial survey of NGP facilities by the by the EIA (EIA-757 survey) (Ref. 6), identifies 478 NGP facilities in the lower 48 states as of 2017. The continued growth of natural gas production since 2014 also provides justification for revisiting the inclusion of NGP facilities (Ref. 5). EPA estimated that over half of those facilities would annually meet TRI reporting thresholds and, if covered by the reporting requirements of TRI, be required to submit TRI information to EPA. The information likely to be obtained from these facilities is not readily available elsewhere.

As described in the petition response (Ref. 3), when the three factors that EPA considered in the 1997 TRI sector addition (Ref. 7) are applied to NGP facilities, the chemical factor and activity factor are met by most NGP facilities—many TRI-listed chemicals are regularly manufactured, processed, or otherwise used at these facilities. With respect to the information factor ( i.e., the third factor), the addition of NGP facilities to TRI would meaningfully increase the information available to the public and further the purposes of EPCRA section 313. As stated in Unit III.B.1 of this notice, using information from Canada's NPRI, a program analogous to TRI and which covers NGP facilities, EPA estimates that NGP facilities in the U.S. collectively manufacture, process, or otherwise use more than 21 different TRI-listed chemicals. These chemicals include n-hexane, hydrogen sulfide, toluene, benzene, xylene, and methanol. In contrast, related facilities, such as extraction or compressor facilities, are not likely to meet the TRI full-time employee or activity thresholds, as EPA concluded in the 1997 TRI sector addition (Ref. 7).

Because TRI coverage of NGP facilities would meet the chemical, activity, and information factors, and based on the number of NGP facilities that would be required to report to TRI, the Agency has provided adequate rationale for their addition to TRI.

Some commenters stated that the proposed rule would provide redundant data, and it is unnecessary to include NGP facilities on TRI because other regulatory programs already collect these data. Commenters assert that much of these data are already in the public domain and that NGP facilities already report spills and releases, track waste disposal activities, and obtain air permits and report deviations from permit conditions. In addition, commenters expressed that the focus of TRI is to increase the level of publicly available information to help communities plan for response actions in the event of a release. Commenters also expressed that NGP facilities “do not pose the same level of risk as other facilities that Congress and EPA have deemed significant enough to include in the TRI” (0478) as well as that hazardous air pollutants (HAPs) are already covered under the National Emission Standards for Hazardous Air Pollutants (NESHAP), which minimize risk of accidental releases. One commenter further expressed concern that NGP facility release data reported to TRI could be misunderstood or mischaracterized by the public, in that most NGP facility releases are authorized by permits ( e.g., Clean Air Act permitting) and thus are planned and controlled.

EPA disagrees that the data reporting that the rule would require is not relevant to the purposes of TRI. TRI's central focus is to provide information to federal, state, and local governments and the public, including citizens of communities surrounding covered facilities; to inform persons about releases of toxic chemicals to the environment; to assist governmental agencies, researchers, and other persons in the conduct of research and data gathering; to aid in the development of appropriate regulations, guidelines, and standards; and for other similar purposes. Further, though planning for an emergency response action is not a primary focus of TRI, information collected under TRI do help inform decision-making related to potential risk concerns. Moreover, the addition of NGP facilities would meaningfully increase the information available to the public on releases and other waste management of listed chemicals from the NGP sector and further the purposes of EPCRA section 313. Further, TRI is a nationwide database that places data in a central, publicly accessible location, and TRI data are uniform and commensurable, better enabling meaningful comparisons, analyses, and trend determinations.

The Agency is aware that the public may misunderstand or misrepresent TRI data. Misuse or misinterpretation of information does not mean that the basis for collecting the information is invalid. EPA finds that the appropriate solution to this issue for TRI is education and outreach, rather than a decision not to include an otherwise eligible industry group on TRI. However, any potential for misconstruing TRI data is not unique to NGP facilities or the data they would submit. Further, EPA finds the activities and processes NGP facilities conduct are analogous to those of the Petroleum Refineries sector (NAICS 324110), which is a covered sector under TRI. Thus, including NGP facilities would provide information to TRI similar to what facilities in the petroleum refineries sector already provide. EPA provides a “Factors to Consider When Using Toxics Release Inventory Data” document to help stakeholders understand how to use TRI appropriately (accessible at https://www.epa.gov/sites/production/files/2019-03/documents/factors_to_consider_march_2019.pdf ). EPA is amenable to recommendations on how to further improve stakeholders' ability to make use of TRI data.

Some commenters referred to existing federal and state regulations, among them EPA's National Emissions Inventory (NEI) program, which already impose compliance obligations on NGP facilities, as sufficient and a reason for EPA to withdraw the proposed rule.

The Agency disagrees. Although EPA's NEI program also collects and publishes air emissions data pertaining to NGP facilities, TRI reporting by these facilities would offer key benefits the NEI does not provide. First, the NEI is limited to air emissions, whereas TRI requires disclosure of releases to air, land, and water, as well as waste management and pollution prevention information. Second, the NEI is published on a triennial basis, whereas TRI data are collected and published annually. Third, the different purposes of the two programs drive different uses of the data they collect. TRI was developed to provide the public with information about the disposition of toxic chemicals in their communities, whereas the NEI was developed to collect data to support air modeling and risk assessments at the national level.

Further, any generation or collection of overlapping data by TRI is not unique to NGP facilities. As stated in its information collection request (ICR) (Ref. 8), EPA anticipates some overlap of TRI and other programs, and notes that section 313(g)(2) of EPCRA specifies that respondents may use readily available data collected pursuant to other provisions of law to complete the EPCRA section 313 reports.

Finally, information required by these other statutes may not provide readily accessible multi-media release and transfer, inventory, or pollution prevention data with the same scope, level of detail, chemical coverage, and frequency of collection as data currently included in TRI. As described in Unit III.G.2, given TRI's community-right-to-know foundations, TRI data are designed to be especially accessible and easy to use, and the systems that offer them to the public over the Web provide numerous analysis, download, and visualization tools. Thus, the rule provides benefits that other regulations and programs do not.

Some commenters stated that EPA's proposed rule underestimates the costs of compliance, the burden and related cost of reporting for NGP facilities, and associated cost of collecting economic data. Commenters also suggested that EPA does not take into account the full operational activities of NGP facilities and that the burden analysis that EPA conducted only considers cost to prepare and submit forms; the analysis does not account for costs associated with tracking and analysis of chemicals activity that do not reach reporting thresholds but nonetheless must be tracked as part of determining TRI reporting applicability. One commenter pointed to the 44 pages of guidance that EPA has published on the subject of threshold calculations alone as evidence of ambiguity and resultant baseline burden imposed on facilities to merely determine their reporting obligation. Another commenter suggested EPA reduce the scope of the final rule to focus only on the approximately 21 chemicals used by NGP facilities and not require reporting from NGP facilities on other TRI chemicals.

As detailed in Unit III.F.2 of this notice, according to a triennial survey of NGP facilities by the EIA (EIA-757 survey), described further in the economic analysis EPA prepared for this rulemaking (Ref. 4), there were 517 NGP facilities in the lower 48 states as of 2012. Since the proposed rule, an updated EIA survey estimated there were 478 such facilities as of 2017 (Ref. 5). EPA estimates that more than half of these facilities would annually meet TRI reporting thresholds for one or more of 21 different TRI-listed chemicals and, if covered by the reporting requirements of TRI, would be required to submit TRI information to EPA. The information likely to be obtained from these facilities is not readily available elsewhere.

EPA disagrees that it has underestimated burden by failing to account for activities ancillary to Form R or A submittal, such as rule familiarization ( i.e., staff at a facility that is reporting under EPCRA section 313 for the first time must read the reporting package and become familiar with the reporting requirements, which includes the time needed to review instructions, and the time needed to train personnel to respond to a collection of information), reporter compliance determination, or non-reporter compliance determination ( i.e., those eligible facilities that will complete compliance determination but will not file a Form R or Form A). As described in the economic analysis of the proposed addition (Ref. 30) and included in the docket for the proposed rule, the new methodology used to estimate reporting burden in the proposed rule—Ratio-Based Burden Methodology (RBBM)—is a restructured and simplified formulation of the previously employed methodology; OMB approved this new methodology, which was published on April 28, 2011 (Ref. 35). When estimating reporting burden using RBBM, the Nominal Form R unit burden is the base number and Form A unit burden is set at 61.5% of that value. These unit burdens reflect burden associated with form activities including rule familiarization, reporter compliance determination, calculations and form completion, and recordkeeping. In addition to Form R and Form A burden, total TRI Program burden is captured by adding non-form burden—associated with supplier notification, non-reporter compliance determination, and petitions—to form burden.

EPA disagrees with TPA's assertion that quantity of guidance on a subject is indicative of that subject's complexity and resulting burden that this rule would place on NGP facilities to assess their reporting obligations and prepare and submit reports. The 44 pages of guidance on threshold calculations to which TPA refers is a compendium of questions EPA has received over time from facilities across all TRI-covered industry sectors. It is not reasonable to suggest that a single NGP facility or all NGP facilities in aggregate would encounter a comparable quantity, or even a substantive portion, of those unique scenarios that all facilities in all covered industry sectors have identified in the TRI program's 35 years of existence where detailed guidance was provided. Further, EPA disagrees with TPA's suggestions that the Agency's offering of an “advanced concepts” training course and a threshold screening tool demonstrate the complexity of reporting. That some facilities have dealt with complexities does not lead to the conclusion that all facilities will face complexities. Indeed, TPA fails to identify any specific complexity that NGP facilities would face, whether shared by all covered facilities or specifically by NGP facilities due to this sector's unique activity characteristics.

Where reporting requirements for NGP facilities overlap with other state and federal laws, as several commenters have identified, the Agency finds that because facilities already collect data and have mechanisms in place to do so, any additional burden increment from reporting to TRI on such overlapping requirements will be minimal. Finally, EPA disagrees that NGP facilities otherwise subject to reporting should be restricted to only report on the 21 TRI-listed chemicals EPA has identified as associated with the NGP industry. As described at 42 U.S.C. 11023(a) and (b)(1)(A) and (B), EPA has authority to require reporting from covered facilities on all TRI-listed chemicals. While EPA has identified 21 TRI-listed chemicals associated with the NGP industry, the burden of determining what other TRI-listed chemicals or chemical categories is not associated with a specific facility is minimal. Requiring NGP facilities to report to TRI on chemicals and chemical categories in addition to the 21 that EPA has associated with the NGP industry is consistent with furthering the purposes of EPCRA section 313.

Some commenters (0483, 0474, 0478) suggested that EPA consider E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs), which they claim specifies that any new regulation should impose zero incremental costs and that EPA identify two existing regulations to be eliminated to offset any potential incremental costs of a new regulation. Commenters believe that, in contravention of E.O. 13771, the proposed rule creates undue burden with limited benefit and is incompatible with the objective of energy independence and economic growth. API also stated that in EPA's response to the EIP petition on October 22, 2015, the Agency wrote that NGP facilities are already subject to a wide range of multi-media requirements, suggesting that the existence of these requirements bolsters its position that this action is in contravention of E.O. 13771.

Executive Order 13771 of January 30, 2017 was revoked on January 20, 2021. Thus, EPA finds that comments referencing E.O. 13771 are moot. EPA has delineated its response to concerns of undue and unwarranted burden in Unit III.C.4. of this notice.

Some commenters believed that the statutory definition of “facility,” as applied to NGP facilities in the context of this rule, is flawed and creates confusion among industry and significant burden in understanding TRI reporting requirements. One commenter stated that the unique definitions of facility under other (non-TRI) statutes and programs used by EPA in its TRI estimations inflated the actual number of NGP facilities that may need to report if the rule were finalized and NGP were added as a covered industry sector under TRI. One commenter stated that the definition of facility results in coverage of small and insignificant sources of emissions and contends that the occasional inclusion of remote non-NGP operations in reporting to TRI is an unintended consequence that goes beyond Congressional intent. Commenters further cite previously identified issues with how to apply the definition of “facility” to the entire Oil and Gas Industrial Sector as mentioned in the 1996 proposed rule (finalized in 1997), when EPA deferred adding the oil and gas extraction industry group “because of questions regarding how particular facilities should be identified,” (61 FR 33588) (FRL-5379-3), and assert that these questions apply to the proposed NGP rule as well. On the other hand, some commenters felt that EPA should interpret the facility definition more “broadly” to capture a collectively large source of potential environmental contamination from the Oil and Gas Industrial Sector more broadly.

EPCRA section 329(4) defines the term “ facility” to mean “all buildings, equipment, structures, and other stationary items which are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person ) . . . .” 42 U.S.C. 11049(4). See also, 40 CFR 372.3, which reflects the statutory definition and provides that a facility may contain more than one establishment, which the term establishment being defined as an economic unit, generally at a single physical location, where business is conducted or where services or industrial operations are performed. EPA disagrees that its application of the statutory definition of “facility” to the NGP facilities that are the subject of this rule is flawed. This rule does not add the entire Oil and Gas Industrial Sector to the TRI, and thus the “questions regarding how particular facilities should be identified” (61 FR 33588) (FRL-5379-3) at play in the 1996 proposed and 1997 final rule are not at play here. As EPA explained at pages 5-6 of its response to the EIP Petition, available at https://www.regulations.gov/document/EPA-HQ-TRI-2013-0281-0047, “[u]nlike the remainder of this industrial sector . . ., natural gas processing plants readily meet the statutory definition of `facility' at EPCRA section 329(4), 42 U.S.C. 11049(4).”

EPA also disagrees with the recommendation to apply the facility definition more “broadly” as part of this addition, such that geographically discrete oil and gas operations under common ownership should constitute a single facility under EPCRA. This comment to apply the “facility” definition more “broadly,” like the EIP petition, references Sierra Club, Inc. v. Tyson Foods, Inc., 299 F. Supp. 2d 693 (W.D. Ky. 2003), where discrete chicken houses spaced 50 to 60 feet apart, under common ownership, were considered a single facility under EPCRA. As detailed in its petition response, EPA finds the average physical distances separating oil and gas operations far exceed those at issue in Sierra Club, Inc. v. Tyson Foods, Inc. However, there will be situations where distances between sites will warrant such sites being considered one facility for TRI-reporting purposes. As an example, in scenarios where sites that would otherwise be contiguous or adjacent are separated by a right of way, such sites are considered one facility for Section 313 reporting purposes. Further, as indicated in the proposed rule, contiguous or adjacent sites with a common owner or operator can result in such sites being included in the reporting required by an NGP facility, though these contiguous or adjacent sites would otherwise not trigger reporting had they been geographically distant from the TRI-covered NGP facility. In light of the statutory definition of “facility,” which specifically provides that such adjacent or contiguous facilities under common ownership are a single facility, the Agency disagrees that inclusion of such facilities in reporting to TRI is contrary to Congressional intent.

Although it is true that RMP and GHGRP have unique definitions of “facility,” which differ from EPCRA and may cause EPA's estimates of NGP facilities to be higher or lower than those that would ultimately report to TRI, EPA finds that data from these programs are appropriate for modeling the universe of NGP facilities in the U.S. that would report to TRI as a range—the lower bound estimate of which is 321 facilities—as well as estimating burden and determining if the addition would increase information made available pursuant to EPCRA section 313.

One commenter recommended that EPA clarify issues related to how facilities determine their NAICS classification by referencing the 2012 NAICS in the proposal, as significant changes were made to six of the NAICS sectors in 2017.

TRI requires facilities to determine their own NAICS code(s), based on their on-site activities and by conducting NAICS keyword and 2- to 6-digit searches on the U.S. Census Bureau website. Further, facilities may include multiple establishments that may have different NAICS codes as distinct and separate economic units. For TRI reporting, these facilities determine which economic activity contributes the majority or plurality of the facility's revenue. If the total value added of the products produced, shipped, or services provided at establishments with covered NAICS codes is greater than 50 percent of the value added of the entire facility's products and services, the entire facility meets the NAICS code criterion. If an establishment with a covered NAICS code has a value added of services or products shipped or produced that is greater than any other establishment within the facility (40 CFR 372.22(b)(3)), the facility also meets the NAICS code criterion. A final rule was published in the Federal Register on December 26, 2017 (82 FR 60906) (FRL-9970-02) to adopt 2017 NAICS codes for reporting year (RY) 2017 and subsequent reporting years. Accordingly, this final rule adds the portion of the industry sector categorized under NAICS 211130 to the scope of TRI requirements. Qualifiers for NAICS codes are common in TRI reporting requirements.

One commenter claimed that prior case law (the comment cited Barrick Goldstrike Mines, Inc. v. Whitman, 26 F. Supp. 2d 28, 41 (D.D.C. 2003), and Nat'l Min. Ass'n v. Browner, 2001 WL 1886840, No. CIV. A. 97 N 2665, at *6 (D. Colo. 2001)) “established (1) that under EPCRA section 313, the term `manufacture' of TRI chemicals is limited to the creation of the TRI chemical or compound as a result of human or industrial activities, and naturally occurring TRI chemicals and compounds originally present in a raw material feedstock will not be considered as `manufactured' within the meaning of EPCRA section 313 and (2) the corollary that activities involving unaltered naturally occurring chemicals and compounds cannot be considered as `processing' within the meaning of EPCRA section 313 as the activity of `processing' requires the predicate of the EPCRA section 313 `manufacture' of the TRI chemical.” (0482) This commenter contends that activities involving naturally occurring chemicals and compounds cannot be considered for manufacturing and processing thresholds. Based on this contention, the commenter asserts that EPA has overestimated the number of chemicals and facilities expected to trigger thresholds and thus provided a flawed rationale for the rule.

EPA disagrees with the commenters' interpretation of cited case law. The courts did not determine that manufacture is limited to the creation of the TRI chemical; the courts instead held that preparation of a listed chemical can only be considered “processing,” per the EPCRA definition, where the chemical has already been “manufactured” by some other activity. Further, it was noted that manufacture includes activities such as preparation. When natural gas is extracted from the Earth, it may contain chemical components other than methane. During and after extraction, the natural gas and its components undergo various separation and preparation activities. When it reaches an NGP facility, the natural gas is no longer the naturally-occurring, raw material it was at the time of extraction; it has already undergone preparation activities prior to and upon arriving at the NGP facility. The NGP facility then continues preparing and processing the natural gas—separating certain impurities and other components, among other activities—and distributes into commerce the methane gas and certain other products. EPA finds these activities constitute “processing” within the meaning of EPCRA section 313(b)(1)(C)(ii) and 40 CFR 372.3, and align with longstanding interpretations of the processing threshold activity, such as facilities that primarily recover sulfur from natural gas (originally added by Congress when enacting the statute), and the Petroleum Refineries sector, which are already covered under TRI.

In this action, EPA is adding NGP facilities to the list of facilities subject to EPCRA section 313 reporting requirements.

The proposed rule contained information on EPA's review of the natural gas liquid extraction sector and these specific NGP facilities (Ref. 2). NGP facilities are stationary surface facilities that receive gas from a gathering system that collects raw natural gas from many nearby wells and prepares the gas for delivery to the NGP facilities. These NGP facilities further process the natural gas (composed primarily of methane) to industrial or pipeline specifications and extract heavier liquid hydrocarbons from the prepared field natural gas. During this process, natural gas liquids (NGLs) ( i.e., hydrocarbons heavier than methane) and contaminants ( e.g., hydrogen sulfide, carbon dioxide, and nitrogen) are separated from the natural gas stream, resulting in processed, pipeline-quality natural gas. NGLs are fractionated on-site into isolated streams ( e.g., ethane, propane, butanes, natural gasoline) or shipped off-site for subsequent fractionation or other processing. Hydrogen sulfide is often either disposed through underground injection or reacted into sulfuric acid or elemental sulfur, while carbon dioxide and nitrogen may be emitted to the atmosphere. The processed pipeline-quality natural gas is then transferred to consumers via intra- and inter-state pipeline networks. NGLs are primarily used as feedstocks by petrochemical manufacturers or refineries. SIC 1321 (Natural Gas Liquids) and NAICS 211130 (Natural Gas Liquid Extraction) comprise establishments that recover liquid hydrocarbons from oil and gas field gases (see discussion in Unit I.A. of this notice). NAICS 211130 includes facilities that recover sulfur from natural gas—such facilities already report TRI data to EPA because they are in SIC 2819 (Industrial Inorganic Chemicals, Not Otherwise Classified), which is a manufacturing sector covered by TRI. Current regulations only require NAICS 211130 facilities that recover sulfur from natural gas to report TRI data ( i.e., facilities in SIC 2819). Specifically, 40 CFR 372.23(b), which covers NAICS codes that correspond to SIC codes 20 through 39, lists NAICS 211130 but states: “Limited to facilities that recover sulfur from natural gas and previously classified under SIC 2819, Industrial Inorganic chemicals, Not Elsewhere Classified.” By adding SIC 1321 to the scope of industry sectors covered by TRI and including SIC 1321 into the qualifier for the NAICS 211130 listing, EPA is expanding TRI coverage to include all NGP facilities that meet TRI-reporting thresholds.

This rule does not add to TRI coverage of natural gas field facilities that only recover condensate from a stream of natural gas, lease separation facilities that separate condensate from natural gas, or natural gas pipeline compressor stations that supply energy to move gas through transmission or distribution lines into storage. Additional examples of operations that this rule does not add to TRI coverage include Joule-Thompson valves, dew point depression valves, and isolated or standalone Joule-Thompson skids. The industrial operations described in this paragraph often occur at or close to extraction sites and are typically classified under NAICS codes other than 211130 ( e.g., NAICS 221210 (Distribution of Natural Gas)), and thus are not within the scope of the NAICS code addition. However, the term “facility” is defined by EPCRA section 329(4) as all buildings, equipment, structures, and other stationary items which are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person) 42 U.S.C. 11049(4). Accordingly, operations described in this paragraph could be part of a single “facility” with TRI reporting and recordkeeping requirements if they are contiguous or adjacent to “buildings, equipment, structures, and other stationary items” with a common owner or operator that are in a covered TRI industrial sector.

Some NGP facilities are already subject to TRI reporting requirements because NGP facilities that recover sulfur from natural gas are part of a manufacturing sector that was originally subjected to reporting to TRI by Congress. Specifically, the scope of TRI sectors subject to reporting includes SIC code 2819 (Industrial Inorganic Chemicals, Not Elsewhere Classified), which was one of the manufacturing sectors in SIC 20-39 originally required to report to TRI by Congress. SIC code 2819 crosswalks to several manufacturing sector NAICS codes, including 211130 (Natural Gas Extraction), but only to the extent that it includes facilities that engage in sulfur recovery from natural gas.

Thus, when EPA began to use NAICS codes for TRI reporting purposes, the Agency listed NAICS 211112 (for 2002, 2007 and 2012 NAICS) with a qualifier to limit TRI coverage of the sector to facilities that fit SIC code 2819. The 2017 NAICS for Natural Gas Extraction was updated to NAICS 211130. See 40 CFR 372.23(b) (211130—Natural Gas Extraction): “Limited to facilities that recover sulfur from natural gas (previously classified under SIC 2819, Industrial Inorganic chemicals, NEC (recovering sulfur from natural gas)).”

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes the federal executive policy on environmental justice (EJ). Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make EJ part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the U.S. Executive Order 14008 (86 FR 19, February 1, 2021) reiterated a commitment to securing EJ and, among other provisions, directed agencies to make achieving EJ a part of their missions by developing programs, policies, and activities to address the cumulative impacts of environmental, health, and climate-related issues in disadvantaged communities.

This regulatory action changes reporting requirements for NGP facilities and does not have any direct impact on human health or the environment. However, for communities living near NGP facilities, there is the potential for new information about toxic chemical releases and waste management practices occurring in those communities to become available through the TRI reporting data.

To better understand how many people live near these facilities and the demographics of those communities, EPA used the EJSCREEN environmental justice screening and mapping tool (Ref. 10) to aggregate information about their populations and demographics. EJSCREEN uses information about the population living in each Census block group contained within a user-defined radius to estimate the total population and related demographic indicator information. In past screening experience, EPA has found it helpful to establish a suggested starting point for the purpose of identifying geographic areas that may warrant further EJ consideration, analysis, or outreach. For early applications of EJSCREEN, EPA identified the 80th percentile filter as that initial starting point. See Technical Information about EJSCREEN at https://www.epa.gov/ejscreen/technical-information-about-ejscreen for more information (Ref. 11).

Latitude and longitude information was available for all but seven facilities included in the upper bound estimate of the universe of affected NGP facilities, enabling EPA to make use of EJSREEN for 482 of the affected NGP facilities. Using EJSREEN, EPA summarized population demographics using a one- and three-mile radius around each facility to identify and understand EJ impacts in communities and help identify a community's potential vulnerability to environmental and health concerns.

In total, there are approximately 1.4 million people living within three miles of at least one of the 482 NGP facilities identified. Demographic information about the number of these facilities exceeding the 80th national percentile value is included below. Some NGP facilities are located in communities where there are potential EJ considerations. For example, 41 NGP facilities are located in a three-mile radius of communities where the low-income indicator exceeds the 80th percentile. Note that potential EJ impacts in communities can be different when considered at distances other than the one- or three-mile radii considered in the analysis provided below.

It is important to note that one of the TRI program's primary goals is to engage in outreach to promote sustainability, inform community-based environmental decision-making, and work toward environmental justice with the goal of achieving environmental protections for all communities. To meet this goal, the TRI program: Builds awareness of TRI resources through focused communications; Promotes discussion and collaboration among data users through webinars and conferences; Assists individual users and communities with analyses and interpretation; Engages with community and academic stakeholders to enhance understanding and use of data; and Develops tailored resources for supporting environmental justice and tribal research.

The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the person listed under FOR FURTHER INFORMATION CONTACT .

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

The information collection activities in this rule have been submitted for approval to OMB under the PRA, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document that EPA prepared is assigned EPA ICR No. 2560.01 and OMB Control No.: 2070-[NEW] (Ref.8). You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.

Currently, the facilities subject to the reporting requirements under EPCRA section 313 and PPA section 6607 may use either EPA Toxic Chemicals Release Inventory Form R (EPA Form 1B9350- 1), or EPA Toxic Chemicals Release Inventory Form A (EPA Form 1B9350-2). The Form R must be completed if a facility manufactures, processes, or otherwise uses any listed chemical above threshold quantities and meets certain other criteria. For the Form A, EPA established an alternative threshold for facilities with low annual reportable amounts of a listed toxic chemical. A facility that meets the appropriate reporting thresholds, but estimates that the total annual reportable amount of the chemical does not exceed 500 pounds per year, can take advantage of an alternative manufacture, process, or otherwise use threshold of 1 million pounds per year of the chemical, provided that certain conditions are met, and submit the Form A instead of the Form R. In addition, respondents may designate the specific chemical identity of a substance as a trade secret pursuant to EPCRA section 322 (42 U.S.C. 11042) and 40 CFR part 350. OMB has approved the reporting and recordkeeping requirements related to Forms A and R, supplier notification, and petitions under OMB Control number 2070-0212 (EPA Information Collection Request (ICR) No. 2613.05) and those related to trade secret designations under OMB Control 2050-0078 (EPA ICR No. 1428.11). As such, this ICR is intended to amend the existing ICR to include the following additional details:

Respondents/affected entities: NGP facilities.

Respondent's obligation to respond: Mandatory (EPCRA section 313).

Estimated number of respondents: 321 to 489.

Frequency of response: Annual.

Total estimated burden: 181,000 to 276,000 burden hours in the first year and approximately 86,000 to 131,000 burden hours in the steady state. Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: approximately $11,846,000 to $18,044,000 in the first year and approximately $5,641,000 to $8,593,000 in the steady state.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. The small entities subject to the requirements of this action are NGP facilities. The Agency determined in its original economic analysis that the 282-444 facilities estimated to be impacted by this action are linked to 76-90 parent entities, of which 32-41 qualify as small businesses as defined by the RFA, all of which are estimated to incur an annualized cost impact of less than 1%. Details of this analysis are presented in the EPA economic analysis (Ref. 4). As the fundamentals of that analysis apply here as well, the final rule is not expected to significantly impact a substantial number of small entities.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This action does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This rule will not impose substantial direct compliance costs on Indian Tribal Governments. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997), as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy and has not otherwise been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

This rulemaking does not involve technical standards. As such, NTTAA section 12(d), 15 U.S.C. 272 note, does not apply to this action.

In accordance with Executive Order 12898 (59 FR 7629, February 16, 1994) and Executive Order 14008 (86 FR 7619, January 27, 2021), EPA finds that this action will not result in disproportionately high and adverse human health, environmental, climate-related, or other cumulative impacts on disadvantaged communities. As discussed in more detail in Unit IV.C., EPA used the EJSCREEN environmental justice screening and mapping tool to better understand how many people live near these facilities and the demographics of those communities. The information collected through TRI reporting will serve to inform communities living near NGP facilities, and there is the potential for new information about toxic chemical releases and waste management practices occurring in those communities to become available through the TRI reporting data.

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

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR part 372 as follows:

The original FCCS provided guidance for implementing the Debt Collection Act of 1982, Public Law 97-365 on a government-wide basis. NEH implemented the FCCS in 1986 in its Claims Collection regulation, set forth at 45 CFR 1177 et seq. As mandated by the DCIA, in 2000, DOJ and Treasury jointly promulgated the revised FCCS, set forth at 31 CFR 900-904, to reflect the DCIA's legislative changes to federal debt collection procedures. The revised FCCS superseded the original FCCS. As a result, NEH is revising its Claims Collection regulation to conform with the DCIA and the current FCCS.

In accordance with the requirements of the DCIA and the revised FCCS, this rule revises NEH's rules and procedures for the administrative collection, offset, compromise, suspension, and termination of collection activity for civil claims for money, funds, or property, as defined by 31 U.S.C. 3701(b). Additionally, this rule revises the rules and procedures that NEH will use to refer applicable civil claims to Treasury, Treasury-designated debt collection centers, or DOJ for collection by further administrative action or litigation. This rule affects NEH's debtors, but it does not apply to claims between federal agencies.

This rule incorporates the following changes to NEH's current Claims Collection regulation (45 CFR 1177, et seq. ):

One demand letter should be sufficient. The demand letter will include: (1) The applicable standards NEH follows for imposing any interest, penalties, or administrative costs; (2) NEH's policies regarding its use of collection agencies, federal salary offset, tax refund offset, administrative offset, and litigation; (3) any rights the debtor may have to seek review of NEH's determination of the debt and to enter into a reasonable repayment agreement; and (4) information regarding NEH's remedies to enforce payment of the debt.

In all appropriate instances, NEH and debtors will exchange mutual releases of non-tax liabilities when compromising a claim.

The principal claim amount for which NEH is authorized to compromise, suspend, or terminate collection activity—without concurrence by DOJ—will increase from $20,000 to $100,000. Additionally, the minimum claim amount that NEH may refer to DOJ for litigation will increase from $600 to $2,500.

There are new procedures for transferring or referring delinquent debt to Treasury or a Treasury-designated debt collection center for debt collection.

There are new debt collection procedures for disbursing officials to follow when conducting mandatory centralized administrative offset.

There are new debt collection procedures for mandatory credit bureau reporting.

There are new debt collection procedures prohibiting federal financial assistance, which includes grants, cooperative agreements, contracts, loans, loan guarantees, and loan insurance to debtors, unless waived by NEH's Chairperson (the “Chairperson”) or the Chairperson's designee.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget for review.

This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This rulemaking does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This rulemaking meets the applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988. Specifically, this rulemaking is written in clear language designed to help reduce litigation.

Under the criteria in Executive Order 13175, NEH evaluated this rulemaking and determined that it will not have any potential effects on Federally recognized Indian Tribes.

Under the criteria in Executive Order 12630, this rulemaking does not have significant takings implications. Therefore, a takings implication assessment is not required.

NEH finds good cause to issue this regulation as a direct final rule, without prior notice and comment, because the agency views it as a noncontroversial amendment and anticipates no significant adverse comment. This rulemaking merely conforms NEH's claims collection regulation to the standards of agency practice and procedure previously jointly promulgated by DOJ and Treasury according to the DCIA. Therefore, under 5 U.S.C. 553(b)(3)(A), this rule is not subject to the Administrative Procedure Act's requirements for a notice of proposed rulemaking.

This rulemaking will not have a significant adverse impact on a substantial number of small entities, including small businesses, small governmental jurisdictions, or certain small not-for-profit organizations.

This rulemaking does not impose an information collection burden under the Paperwork Reduction Act. This action contains no provisions constituting a collection of information pursuant to the Paperwork Reduction Act.

This rulemaking does not contain a Federal mandate that will result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year.

This rulemaking will not have a significant effect on the human environment.

This rulemaking will not be a major rule as defined in section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rulemaking will not result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

All information about NEH required to be published in the Federal Register may be accessed at www.neh.gov. The website https://www.regulations.gov contains electronic dockets for NEH's rulemakings under the Administrative Procedure Act of 1946.

To ensure this rulemaking was written in plain and clear language so that it can be used and understood by the public, NEH modeled the language of this rulemaking on the Federal Plain Language Guidelines.

Atlantic HMS fisheries, including BFT fisheries, are managed under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ). The 2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. Section 635.27 divides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States among the various domestic fishing categories, per the allocations established in the 2006 Consolidated HMS FMP and its amendments. NMFS is required under the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest quotas under relevant international fishery agreements such as the ICCAT Convention, which is implemented domestically pursuant to ATCA.

The baseline General, Reserve, and Harpoon category quotas are 555.7 mt, 29.5 mt, and 46 mt respectively. The General category baseline subquota for the December time-period is 28.9 mt. On December 23, 2020, NMFS transferred 19.5 mt of BFT quota from the December 2021 subquota time-period to the January through March 2021 subquota time-period resulting in an adjusted subquota of 9.4 mt for the December 2021 time period (85 FR 83832, December 23, 2020).

To date for 2021, NMFS has published several actions that adjusted the Reserve and Harpoon category quotas (86 FR 8717, February 9, 2021; 86 FR 43420, August 9, 2021; 86 FR 51016, September 14, 2021; 86 FR 54659, October 4, 2021; 86 FR 54873, October 5, 2021). The current adjusted Reserve and Harpoon category quotas are 11.5 mt and 76 mt, respectively. Per § 635.27(a)(5), the Harpoon category fishery automatically closed for the year on November 15, 2021. At that time, 20.2 mt of the Harpoon category quota remained unharvested.

Under § 635.27(a)(9), NMFS has the authority to transfer quota among fishing categories or subcategories after considering determination criteria provided under § 635.27(a)(8). NMFS has considered all of the relevant determination criteria and their applicability to this inseason quota transfer. These considerations include, but are not limited to, the following:

Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock (§ 635.27(a)(8)(i)), biological samples collected from BFT landed by General category fishermen and provided by tuna dealers provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT in the General category would support the continued collection of a broad range of data for these studies and for stock monitoring purposes.

NMFS also considered the catches of the General category quota to date (including during the summer/fall and winter fisheries in the last several years) and the likelihood of closure of that segment of the fishery if no adjustment is made (§ 635.27(a)(8)(ii) and (ix)). To date, preliminary landings data indicate that the Harpoon category landed 55.8 mt of the 76 mt adjusted Harpoon category quota before closing. Transferring 20.2 mt from the Harpoon category to the December 2021 subquota time-period would result in 29.6 mt (9.4 mt + 20.2 mt = 29.6 mt) being available to the General category in December, restoring the December subquota to roughly its base amount prior to the December 23, 2020 transfer (85 FR 83832). Without a quota transfer at this time, NMFS would likely need to close the General category fishery shortly after opening, and participants would have to stop BFT fishing activities while commercial-sized BFT remain available in the areas where General category permitted vessels operate at this time of year. Transferring 9.5 mt of quota from the Reserve category in this same action would provide limited additional opportunities to harvest the U.S. BFT quota while avoiding exceeding it, leave 2 mt (11.5 mt−9.5 mt = 2 mt) in the Reserve category to account for any BFT mortalities associated with research and/or any overharvests that may occur in December, and result in a total of 39.1 mt (29.6 mt + 9.5 mt = 39.1 mt) being available for the General category December 2021 subquota time period.

Regarding the projected ability of the vessels fishing under the General category quota to harvest the additional amount of BFT quota transferred before the end of the fishing year (§ 635.27(a)(8)(iii)), NMFS considered General category landings over the last several years and landings to date this year. Landings are highly variable and depend on access to commercial-sized BFT and fishing conditions, among other factors, such as the restrictions that some dealers placed on their purchases of BFT from General category participants this year. Thus, this quota transfer would allow fishermen to take advantage of the availability of BFT on the fishing grounds and provide a reasonable opportunity to harvest available U.S. BFT quota.

NMFS also considered the estimated amounts by which quotas for other gear categories of the BFT fishery might be exceeded (§ 635.27(a)(8)(iv)) and the ability to account for all 2021 landings and dead discards. In the last several years, total U.S. BFT landings have been below the available U.S. quota such that the United States has carried forward the maximum amount of underharvest allowed by ICCAT from one year to the next. NMFS recently took such an action to carryover the allowable 127.3 mt of underharvest from 2020 to 2021 (86 FR 54659). NMFS will need to account for 2021 landings and dead discards within the adjusted U.S. quota, consistent with ICCAT recommendations, and anticipates having sufficient quota to do that.

NMFS also considered the effects of the adjustment on the BFT stock and the effects of the transfer on accomplishing the objectives of the FMP (§ 635.27(a)(8)(v) and (vi)). This transfer would be consistent with established quotas and subquotas, which are implemented consistent with ICCAT recommendations (established in Recommendation 17-06 and maintained in Recommendation 20-06), ATCA, and the objectives of the 2006 Consolidated HMS FMP and amendments. In establishing these quotas and subquotas and associated management measures, ICCAT and NMFS considered the best scientific information available, objectives for stock management and status, and effects on the stock. This quota transfer is in line with the established management measures and stock status determinations. Another principal consideration is the objective of providing opportunities to harvest the available General category quota without exceeding the annual quota, based on the objectives of the 2006 Consolidated HMS FMP and its amendments, including to achieve optimum yield on a continuing basis and to allow all permit categories a reasonable opportunity to harvest available BFT quota allocations (related to § 635.27(a)(8)(x)). Specific to the General category, this includes providing opportunities equitably across all time-periods.

Given these considerations, NMFS is transferring 9.5 mt of the available 11.5 mt of Reserve category quota, and 20.2 mt from the Harpoon category quota to the General category. Therefore, NMFS adjusts the General category December 2021 subquota to 39.1 mt, adjusts the Reserve category quota to 2 mt to account for any BFT mortalities associated with research, and adjusts the Harpoon category quota to 0 mt. The General category fishery will remain open until December 31, 2021, or until the adjusted General category quota is reached, whichever comes first.

NMFS will continue to monitor the BFT fishery closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustments, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General category and HMS Charter/Headboat vessel owners are required to report the catch of all BFT retained or discarded dead within 24 hours of the landing(s) or the end of each trip, by accessing hmspermits.noaa.gov or by using the HMS Catch Reporting app or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustments ( e.g., quota adjustment, daily retention limit adjustment, or closure) are necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register . In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act and regulations at 50 CFR part 635 and is exempt from review under Executive Order 12866.

The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the 2006 Consolidated HMS FMP and its amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to implement the quota transfer for the December 2021 time-period is contrary to the public interest as such a delay would likely fail to prevent the closure of the General category fishery when the baseline subquota for the December time-period is met and the need to re-open the fishery, with attendant costs to the fishery, including administrative costs and lost fishing opportunities. The delay would preclude the fishery from harvesting BFT that are available on the fishing grounds and that might otherwise become unavailable during a delay. This action does not raise conservation and management concerns. Transferring quota from the Reserve and Harpoon categories to the General category does not affect the overall U.S. BFT quota, and the adjustment would have a minimal risk of exceeding the ICCAT-allocated quota. NMFS notes that the public had an opportunity to comment on the underlying rulemakings that established the U.S. BFT quota and the inseason adjustment criteria. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For these reasons, there also is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effective date.

The Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission) cooperatively manage bluefish from Maine to Florida under the Atlantic Bluefish Fishery Management Plan (FMP). This joint Bluefish FMP was adopted in 1990. Since that time, the only substantial changes to management measures were made through Amendment 1 to the FMP in 2000, which established most measures and regulations currently managing the fishery, based on fishery data from 1981-1989. The Council and Commission initiated Amendment 7 to the FMP as a joint action in December 2017 to respond to changes in the bluefish fishery that have occurred over the past several decades while the FMP has remained largely unaltered. When first initiated, Amendment 7 was intended to address a comprehensive range of management issues, from updating the goals and objectives of the FMP to the allocation and transfer of quota between the commercial and recreational sectors.

Following the 2019 operational stock assessment's determination of the bluefish stock as overfished, the Council and the Commission's Bluefish Management Board (Board) added a rebuilding plan to the list of measures in Amendment 7. On June 8, 2021, the Council and Board took final action to adopt Amendment 7 in its entirety, with the intent that the measures would be effective and be used to set specifications for the 2022 fishing year, beginning on January 1, 2022.

NMFS published a Notification of Availability (NOA) for Amendment 7 in the Federal Register on September 1, 2021 (86 FR 48968), with a comment period ending on November 1, 2021. NMFS published a proposed rule for this action in the Federal Register on September 13, 2021 (86 FR 50866), with a comment period ending on October 13, 2021. See the Comments and Responses section for additional detail. The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) allows NMFS as the implementing agency to approve, partially approve, or disapprove measures recommended by the Council in a regulatory amendment based on whether the measures are consistent with the FMP, the Magnuson-Stevens Act and its National Standards, and other applicable law. After considering public comment on both the NOA and proposed rule, NMFS approved Amendment 7 in its entirety on November 12, 2021. This rule implements the management measures of Amendment 7.

The purpose of this action is to implement a rebuilding plan for bluefish, as required by the Magnuson-Stevens Act, and to update the FMP using the best scientific information available to respond to changes in the fishery over time. NMFS approved all measures proposed in Amendment 7, as approved by the Council and Commission. This action implements Amendment 7 to the Bluefish FMP, as described below. For a more detailed description of each measure, see the Federal Register notice on the proposed rule prepared for this action.

Amendment 7 revises the bluefish goals and objectives that were adopted in 1991 to better reflect the current fishery. The following revisions were developed with extensive input from the public to better guide management of the bluefish fishery.

• Goal 1: Conserve the bluefish resource through stakeholder engagement to maintain sustainable recreational fishing and commercial harvest.

○ Objective 1.1: Achieve and maintain a sustainable spawning stock biomass and rate of fishing mortality.

○ Objective 1.2: Promote practices that reduce release mortality within the recreational and commercial fishery.

○ Objective 1.3: Maintain effective coordination between the National Marine Fisheries Service, Council, Commission, and member states by promoting compliance and to support the development and implementation of management measures.

○ Objective 1.4: Promote compliance and effective enforcement of regulations.

○ Objective 1.5: Promote science, monitoring, and data collection that support and enhance effective ecosystem-based management of the bluefish resource.

• Goal 2: Provide fair and equitable access to the fishery across all user groups throughout the management unit.

○ Objective 2.1: Ensure the implementation of management measures provides fair and equitable access to the resource across all user groups within the management unit.

○ Objective 2.2: Consider the economic and social needs and priorities of all groups that access the bluefish resource in the development of new management measures.

○ Objective 2.3: Maintain effective coordination with stakeholder groups to ensure optimization of economic and social benefits.

This action allocates 14 percent of the annual catch limit (ACL) to the commercial fishery, and 86 percent to the recreational fishery, representing a 3-percentage point shift from the prior split (17 percent commercial and 83 percent recreational). The initial sector allocations were based on landings data from 1981-1989, and these revised sector allocations are based on updated landings data from 2009-2018. Catch data from 1981-2018, and landings data from 2014-2018, also resulted in the same allocation percentages.

The coastwide commercial quota for bluefish is allocated annually to each state within the management unit from Maine to Florida based on a percentage determined in the FMP. Amendment 7 revises these commercial quota allocations among the states based on a recent, representative 10 years of landings data (2009-2018) for the commercial fishery to better capture how the stock and fishing activity have shifted over time. These revised allocations also include a 0.1-percent minimum default allocation to ensure that no state in the management unit is excluded from the commercial fishery entirely. This action will also phase in the changes in quota allocation over a period of seven years, beginning in 2022.

The 2019 operational assessment determined that the Atlantic bluefish stock is overfished but not subject to overfishing. Amendment 7 implements a rebuilding plan using a constant fishing mortality model (F = 0.154) to rebuild the stock in seven years, beginning in fishing year 2022. This rebuilding plan was selected because it allows for the least disruption to industry and minimizes negative socio-economic impacts, while still rebuilding the stock within the 10-year period required by the Magnuson-Stevens Act. This rebuilding will be reviewed and revised as necessary every 2 years, as required by section 304(e)(7) of the Magnuson-Stevens Act. Specifications for the 2022 fishing year will be included in a separate rulemaking action and will be based on this rebuilding plan.

This action revises the sector transfer measures within the Bluefish FMP to allow quota to be transferred in either direction between the fishery sectors (from commercial to recreational or vice versa). This amendment also revises the maximum transfer cap to be 10-percent of the acceptable biological catch, allowing the size of the transfer to scale with the biomass of the stock. Sector transfers may not occur when the bluefish stock is overfished or subject to overfishing.

This amendment revises how management uncertainty is accounted for during the specifications process. Previously, the fishery-level ACL could be reduced by a buffer to account for sources of management uncertainty before quota is allocated to the separate commercial and recreational fishery sectors. This action revises the specifications process so that quota is allocated to each sector first, and then a management uncertainty buffer may be applied separately within each sector. This targeted approach provides more management flexibility, and allows for the identification of sources of management uncertainty that are specific to one sector, but may not be present in the other.

We received 10 comments during the NOA and proposed rule comment periods. Three of the comments received were unrelated to the bluefish fishery and this action and are not addressed further. Of the comments received that were relevant to this action, there was balanced support for, and opposition to, this amendment. No changes were made to the proposed measures in this final rule as a result of these comments.

Comment 1: An anonymous commenter strongly supported this action, specifically the rebuilding plan, noting the long-term biological and economic benefits.

Response 1: NMFS agrees and is approving Amendment 7 in its entirety, including the rebuilding plan.

Comment 2: Two comments from for-hire recreational head boat captains expressed distrust in the data used to develop this action. The commenters stated that the recreational fishery is catching more bluefish than the commercial gillnet vessels and should be allocated more quota. Neither commenter believes that overfishing of bluefish is occurring, and both think that the recreational quotas should be increased while commercial quotas should be decreased.

Response 2: The best scientific information available was used to develop this action and calculate the percentages of the quota to be reallocated to each sector. Additionally, this action used a more recent time period as the basis for the recreational and commercial allocations to better reflect the current conditions of the stock and the fishery. Catch data do indicate that over 85 percent of bluefish caught on the Atlantic coast are caught by the recreational sector. As a result, Amendment 7 does increase the amount of annual quota allocated to the recreational sector and decrease the amount to the commercial sector in its sector reallocation; to better reflect the needs of the overall fishery. NMFS agrees that overfishing does not appear to be occurring at this time.

Comment 3: A fisheries wholesaler from Florida submitted a comment expressing concern about the loss of commercial quota to Florida under this action, as well as a lack of confidence in the Marine Recreational Information Program (MRIP) data used for the recreational fishery. The commenter suggested that the proposed state allocations be reconsidered to account for unforeseen bad weather in recent years, which skewed landings lower in some states (such as Florida). The commenter also suggested that MRIP be improved, especially with regard to accounting for dead discards and the difference between private anglers and charter/party/head boat catch.

Response 3: The commercial quota reallocation in this action is based on the best scientific data available, and the percentages allocated to each state were calculated using landings data from a 10-year period that should balance out any outlier years due to bad weather. The new commercial allocations are intended to be the best representation of where the bluefish stock is shifting, and where the fishery has been operating in recent years in an effort to minimize the need for state-to-state transfers. However, those transfers are still available as a tool to prevent a state overage in years of high landings. NMFS is also phasing in the implementation of the commercial quota reallocation over seven years to allow states and industry to adjust to the changes more easily.

Comment 4: One commenter expressed strong support for the action, noting specific approval of the rebuilding plan and the increased regulatory flexibility introduced by Amendment 7. This commenter also asked what agency regulates the bluefish fishery, and enforces and manages the commercial fishery quotas; as well as if any regulations are in place to reduce the damaging effects of gillnets.

Response 4: NMFS agrees and is approving and implementing Amendment 7. By doing this, and as described in the EA and supporting documents, NMFS is the agency responsible for managing the Federal bluefish fishery and the measures in this amendment. Further, all of the details of the gear requirements and fishery impacts are described in the EA for this action and the Bluefish FMP.

Comment 5: An anonymous college student submitted a comment in support of Amendment 7. However, the commenter misunderstood the rebuilding plan measures in this action as a plan to stockpile/restock rivers and spawning “bodies of water” with juvenile bluefish to increase the coastal populations, which is inaccurate. The comment also includes a few questions about impacts to habitat and other fish species.

Response 5: The rebuilding plan included in this action works toward an improved stock status by managing catch limits and minimizing fishing mortality of bluefish, not by restocking spawning grounds or affecting recruitment. All of the questions about impacts of Amendment 7 are clearly addressed and described in the EA for the action.

Comment 6: A commenter from New Jersey wrote that while it is important to restrict bluefish catch to rebuild the stock, the recreational possession limit for shore anglers and boat fishermen should be the same at five fish.

Response 6: This amendment does not address the recreational management measures, such as bag limits. These measures are reviewed during the annual specifications process.

There are no changes to the measures from the proposed rule.

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that Amendment 7 to the Atlantic Bluefish FMP is necessary for the conservation and management of the Atlantic bluefish fishery, and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

The Council reviewed the regulations for this action and deemed them necessary and appropriate to implement consistent with section 303(c) of the Magnuson-Stevens Act.

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

This final rule does not duplicate, conflict, or overlap with any existing Federal rules.

This action contains no information collection requirements under the Paperwork Reduction Act of 1995.

A final regulatory flexibility analysis (FRFA) was prepared for this action pursuant to 5 U.S.C. 604(a), and is included in this final rule. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' responses to those comments, and a summary of the analyses completed to support the action. A public copy of the EA containing the IRFA is available from the Council (see ADDRESSES ). The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated here.

NMFS did not receive any comments in response to the IRFA or regulatory flexibility analysis (RFA) process. Refer to the Comments and Responses section of this rule's preamble for more detail on the public comments that were received on this action. No changes to the proposed rule were made as a result of public comments.

This final rule affects those small entities engaged in commercial fishing operations in the Atlantic bluefish fishery (those with commercial bluefish permits), and those with Federal party/charter recreational permits for bluefish. Private recreational anglers are not considered “entities” under the RFA, thus economic impacts on private anglers are not considered here. For the purposes of the RFA analysis, the ownership entities (or firms), not the individual vessels, are considered to be the regulated entities. Ownership entities are defined as those entities or firms with common ownership personnel as listed on the permit application. Because of this, some vessels with bluefish permits may be considered to be part of the same firm because they may have the same owners. To identify these small and large firms, vessel ownership data from the permit database were grouped according to common owners and sorted by size. In terms of RFA, a business primarily engaged in commercial fishing is classified as a small business if it has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. A business primarily engaged in for-hire (party/charter) fishing is classified as a small business if it has combined annual receipts not in excess of $8 million.

The current ownership data set used in this analysis is based on calendar years 2018-2020 (the most recent and complete data available). According to the vessel ownership database, 526 commercial fishing affiliate firms landed bluefish during the 2018-2020 period, with 521 of those entities categorized as small businesses, and 5 categorized as large businesses. The 3-year average (2018-2020) combined gross receipts (all species combined) for all small entities only was $197,251,017 and the average bluefish receipts was $899,490; this indicates that bluefish revenues contributed approximately 0.46 percent of the total gross receipts for these small entities.

For the recreational for-hire (party/charter) fishery, 361 for-hire affiliate firms reported revenue from recreational fishing for various species from 2018-2020. All 361 of those firms are categorized as small businesses. It is not possible to derive what proportion of the overall revenues for these for-hire firms came from fishing activities for an individual species. Nevertheless, given the popularity of bluefish as a recreational species in the Mid-Atlantic and New England, it is likely that revenues generated from bluefish may be somewhat important for many of these firms at certain times of the year. The 3-year average (2018-2020) combined gross receipts (all for-hire fishing activity combined) for these small entities was $49,916,903, ranging from less than $10,000 for 105 entities (lowest value $46) to over $1,000,000 for 8 entities (highest value $3.6 million).

There are no new reporting, recordkeeping, or other compliance requirements included in this final rule.

As noted in the proposed rule and the IRFA, this amendment implements several measures that could potentially impact small businesses in both the commercial and recreational sectors of the bluefish fishery; most notably the reallocation of quota among the sectors and states, the rebuilding plan, and the revision of the sector quota transfer measures. The approved measures (preferred alternatives) for these main issues were chosen and developed with the intent to minimize negative impacts to small businesses, while still achieving the overall purpose and need of the action.

In the reallocation of quota between the commercial and recreational sectors, the 3-percentage point shift to the recreational sector is more representative of how the overall fishery currently operates based on the most recent catch data. While this may have a slight negative impact on commercial businesses, it would comparably benefit recreational businesses. There were other alternatives considered for this sector reallocation, but the difference in their economic impacts were negligible. Revisions to the sector transfer measures could also further mitigate any potential negative impacts to small businesses from the sector reallocation. The amendment now allows quota (in amounts up to 10-percent of the year's acceptable biological catch) to be transferred from either sector to the other (from commercial to recreational or vice versa) during the specifications process. This management tool allows for additional flexibility and supplementation of quota to either sector in a year when the assigned allocations may not support the business needs of the sector.

Similar to the sector reallocations, the approved measures for the reallocation of commercial quota among the states is based on a recent 10 years of landings data, and is intended to be a better representation of how and where bluefish are already harvested to minimize the need for inseason state transfers. Because these alternatives do not affect the total amount of quota available in the fishery, but rather how it is distributed geographically, it is unlikely that they would have a direct economic impact on commercial businesses as a whole. However, the alternatives may have a disproportionate, indirect impact on some businesses more than others. The range of alternatives considered for how to reallocate this quota among the states did not have a difference in potential impacts when compared to the preferred alternative. To mitigate potential negative effects on entities in states that would experience the largest degree of change in commercial allocation, all changes in allocation are being phased in equally over seven years; making the difference in quota allocation that each state experiences each year much smaller (one seventh of the total), and thus minimizing the immediate magnitude of any potential negative effects as a result.

In terms of the rebuilding plan, the constant fishing mortality rebuilding plan was chosen because it contains more gradual changes to the stock with higher allowed quotas; maximizing economic stability and minimizing disruption of business operations while still rebuilding the stock within the necessary 10 years.

Overall, NMFS does not anticipate significant economic impacts on small entities as a result of implementing the measures of this amendment. While most measures have the potential to impact small businesses, these impacts are expected to largely be indirect and to have minimal direct economic effects. Public input was solicited and considered throughout the development of this amendment, and the economic impact on small businesses was minimized wherever possible, as detailed in the choices noted above.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as a small entity compliance guide was prepared and will be sent to all holders of Federal permits issued for the bluefish fishery. In addition, copies of this final rule and guide ( i.e., permit holder letter) are available from NMFS at the following website: https://www.fisheries.noaa.gov/species/bluefish#management.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: