The Energy Policy and Conservation Act, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. These products include consumer furnaces, the subject of this document. (42 U.S.C. 6292(a)(5)). EPCA prescribed energy conservation standards for these products, and directed DOE to conduct two cycles of rulemakings to determine whether to amend these standards. (42 U.S.C. 6295(f)).

Under EPCA, DOE's energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption in limited instances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under. (42 U.S.C. 6297(d)).

As previously noted, EPCA established energy conservation standards for consumer furnaces, which are expressed in terms of minimum annual fuel utilization efficiency (“AFUE”). (42 U.S.C. 6295(f)(1)-(2)) Pursuant to EPCA, DOE was required to conduct two rounds of rulemaking to consider amended energy conservation standards for consumer furnaces. (42 U.S.C. 6295(f)(4)(B) and (C)) In satisfaction of the first round of rulemaking under 42 U.S.C. 6295(f)(4)(B), DOE published a final rule on November 19, 2007 (“November 2007 final rule”) that revised the initial standards for four classes of consumer furnaces ( i.e., non-weatherized gas furnaces (“NWGFs”), mobile home gas furnaces (“MHGFs”), weatherized gas furnaces (“WGFs”), and non-weatherized oil-fired furnaces (“NWOFs”), but left them in place for two product classes ( i.e., mobile home oil-fired furnaces (“MHOFs”) and weatherized oil-fired furnaces (“WOFs”)). 72 FR 65136, 65137. Compliance with the amended standards established in the November 2007 final rule was to be required beginning November 19, 2015. Id. at 72 FR 65136, 65169.

On June 27, 2011, DOE published a direct final rule (“DFR”) (“June 2011 DFR”) revising the energy conservation standards for consumer furnaces pursuant to the voluntary remand in State of New York, et al. v. Department of Energy, et al. 76 FR 37408, 37415. In the June 2011 DFR, DOE addressed the energy conservation standards for the same six product classes addressed in the November 2007 final rule ( i.e., NWGFs, MHGFs, WGFs, NWOF, MHOFs, and WOFs) plus electric furnaces. The June 2011 DFR amended the existing AFUE energy conservation standards for NWGFs, MHGFs, and NWOFs, and amended the compliance date (but left the existing standards in place) for WGFs. The June 2011 DFR also established electrical standby mode and off mode standards for NWGFs, MHGFs, NWOFs, MHOFs, and electric furnaces. DOE confirmed the standards and compliance dates promulgated in the June 2011 DFR in a notice of effective date and compliance dates published on October 31, 2011 (“October 2011 notice”). 76 FR 67037. After publication of the October 2011 notice, the American Public Gas Association sued DOE to invalidate the rule as it pertained to NWGFs. Petition for Review, American Public Gas Association, et al. v. Department of Energy, et al., No. 11-1485 (D.C. Cir. filed Dec. 23, 2011). On April 24, 2014, the Court granted a motion that approved a settlement agreement that was reached between DOE, APGA, and the various intervenors in the case, in which DOE agreed to a remand of the non-weatherized gas furnace and mobile home gas furnace portions of the June 2011 direct final rule in order to conduct further notice-and-comment rulemaking. Accordingly, the Court's order vacated the June 2011 DFR in part ( i.e., those portions relating to non-weatherized gas furnaces and mobile home gas furnaces) and remanded to the agency for further rulemaking. 86 FR 43120, 43124 (Aug. 6, 2021). As a result, the standards established by the June 2011 DFR for NWGFs and MHGFs did not go into effect. The court order left in place the standards for WGFs, NWOFs, MHOFs, WOFs, and electric furnaces. Amended standards for NWGFs and MHGFs are being addressed in a separate rulemaking. This RFI covers WGFs, NWOFs, MHOFs, WOFs, and electric furnaces.

On January 15, 2021, in response to a petition for rulemaking submitted by the American Public Gas Association, Spire, Inc., the Natural Gas Supply Association, the American Gas Association, and the National Propane Gas Association (83 FR 544883; Nov. 1, 2018) DOE published a final interpretive rule determining that, in the context of residential furnaces, commercial water heaters, and similarly situated products/equipment, use of non-condensing technology (and associated venting constitutes a performance-related “feature” under EPCA that cannot be eliminated through adoption of an energy conservation standard. 86 FR 4776 (“January 2021 Final Interpretive Rule”).

However, on December 29, 2021, DOE subsequently published a final interpretive rule that returns to the previous and long-standing interpretation (in effect prior to the January 15, 2021 final interpretive rule), under which the technology used to supply heated air or hot water is not a performance-related “feature” that provides a distinct consumer utility under EPCA. 86 FR 73947 (“December 2021 Final Interpretive Rule”).

EPCA also requires that, not later than 6 years after the issuance of any final rule establishing or amending a standard, DOE evaluate the energy conservation standards for each type of covered product, including those at issue here, and publish either a notification of determination that the standards do not need to be amended, or a NOPR that includes new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1)) If DOE determines not to amend a standard based on the statutory criteria, not later than 3 years after the issuance of a final determination not to amend standards, DOE must publish either a notification of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(3)(B)) DOE must make the analysis on which a determination is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6295(m)(2)).

In proposing new standards, DOE must evaluate that proposal against the criteria of 42 U.S.C. 6295(o), as described in the following section, and follow the rulemaking procedures set out in 42 U.S.C. 6295(p). (42 U.S.C. 6295(m)(1)(B)) If DOE decides to amend the standard based on the statutory criteria, DOE must publish a final rule not later than two years after energy conservation standards are proposed. (42 U.S.C. 6295(m)(3)(A)).

DOE is publishing this RFI to collect data and information to inform its decision consistent with its obligations under EPCA.

DOE must follow specific statutory criteria for prescribing new or amended standards for covered products. EPCA requires that any new or amended energy conservation standard prescribed by the Secretary of Energy (“Secretary”) be designed to achieve the maximum improvement in energy or water efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) The Secretary may not prescribe an amended or new standard that will not result in significant conservation of energy, or is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)).

To adopt any new or amended standards for a covered product, DOE must determine that such action would result in significant energy savings. (42 U.S.C. 6295(o)(3)(B)) The significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking. 3 For example, the United States has now rejoined the Paris Agreement on February 19, 2021. As part of that agreement, the United States has committed to reducing GHG emissions in order to limit the rise in mean global temperature. As such, energy savings that reduce GHG emission have taken on greater importance. Additionally, some covered products and equipment have most of their energy consumption occur during periods of peak energy demand. The impacts of these products on the energy infrastructure can be more pronounced than products with relatively constant demand. In evaluating the significance of energy savings, DOE considers differences in primary energy and FFC effects for different covered products and equipment when determining whether energy savings are significant. Primary energy and FFC effects include the energy consumed in electricity production (depending on load shape), in distribution and transmission, and in extracting, processing, and transporting primary fuels ( i.e., coal, natural gas, petroleum fuels), and thus present a holistic picture of the impacts of energy conservation standards. Accordingly, DOE evaluates the significance of energy savings on a case-by-case basis.

To determine whether a standard is economically justified, EPCA requires that DOE determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors:

DOE fulfills these and other applicable requirements by conducting a series of analyses throughout the rulemaking process. Table I.1 shows the individual analyses that are performed to satisfy each of the requirements within EPCA.

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 would modify the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2022-0027; Airspace Docket No. 21-ANM-70) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2022-0027; Airspace Docket No. 21-ANM-70.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th Street, Des Moines, WA 98198.

This document proposes to amend 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.

While conducting a routine flight inspection of V-356 in the vicinity of Mile High, CO, the FAA has determined that the Mile High, CO, (DVV) VHF Omnidirectional Radar and Tactical Air Navigational System (VORTAC) beacon is unusable on the airway below 18,000 mean sea level (MSL) between the FIDLE and ELORE intersections. The section of V-356 in this area is dependent upon the DVV signal for identification of the airway. The FAA is proposing to revoke the section between FIDLE and ELORE, since it can no longer be supported. There are several alternate routes that can be utilized when navigating between Red Table, CO and DVV, including V-134 to V-328, and V-361 to V-8, as well as other combinations of airways in between.

The FAA is proposing an amendment to 14 CFR part 71 to revoke the segment of the Domestic VOR Federal Airway V-356 between the FIDLE and ELORE intersection due to the lack of usable signal transmitted from DVV.

V-356: V-356 currently extends from Red Table, CO via the intersection of Red Table 058° and Mile High, CO 265° radials, to Mile High. The proposed route would revoke the segment between the intersection of Red Table 058° (T) 046° (M) and Kremling, CO 190° (T) 176° (M) radials and the intersection of Gill, CO 211° (T) 198° (M) and Mile High, CO 265° (T) 257° (M) radials. The rest of the route would remain unchanged.

Domestic VOR Federal Airways are published in paragraph 6010(a) of FAA Order JO 7400.11F dated August 10, 2021 and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Domestic VOR Federal Airway listed in this document would be published subsequently in FAA Order JO 7400.11.

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

The FAA has determined that this proposed 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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

Invitation to Comment: We invite you to submit comments regarding the proposed priorities, requirements, and definition. To ensure that your comments have maximum effect in developing the notice of final priorities, requirements, and definition, we urge you to clearly identify the specific section of the proposed priorities, requirements, or definition that each comment addresses.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from the proposed priorities, requirements, and definition. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect all public comments about the proposed priorities, requirements, and definition by accessing Regulations.gov . You may also inspect the comments in person. Please contact the person listed under FOR FURTHER INFORMATION CONTACT to make arrangements to inspect the comments in person.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for the proposed priorities, requirements, and definition. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Purpose of Program: The Project Prevent grant program provides grants to LEAs to increase their capacity to implement community- and school-based strategies to help prevent community violence and mitigate the impacts of exposure to community violence. Project Prevent grant funds allow LEAs to increase their capacity to identify, assess, and serve students exposed to community violence, helping LEAs to (1) offer affected students mental health services; (2) support conflict management programs; and (3) implement other community- and school-based strategies to help prevent community violence and to mitigate the impacts of exposure to community violence.

Program Authority: 20 U.S.C. 7281.

Background: Children and youth's exposure to community violence, whether as victims, justice-involved youth, or witnesses, is often associated with long-term physical, psychological, and emotional harms. Research has demonstrated that community violence is a risk factor for experiencing an adverse childhood experience (ACE) such as abuse, neglect, witnessing violence, or having a family member who is incarcerated, and has an impact on future violence and victimization in a community. 1 ACEs can lead children and youth to experience depression, anxiety, and post-traumatic stress disorder; have difficulty in, or disconnect from, school and the workforce; and engage in delinquency or violent acts, potentially perpetuating the conditions that contribute to a cycle of community violence.

Several Federal agencies have worked to address the issues surrounding children and youth's exposure to community violence. Since 1980, the Centers for Disease Control and Prevention has been studying patterns of violence and the effects of violence on communities and individuals, as well as advancing strategies to help prevent violence and mitigate the impacts of exposure to violence. 2 Furthermore, in 2010, Attorney General Eric Holder launched the Defending Childhood initiative to better understand and address the problem of children's exposure to community violence. As part of this initiative, in December 2012 the Attorney General's Task Force on Children Exposed to Violence released a report and national action plan that has helped inform the development of this program. The report recognized the duty of local coalitions of professionals from multiple disciplines across the full range of service systems (health care, schools, family services, law enforcement, and child advocacy centers), as well as families and other community members, to assess local challenges and resources, and develop strategies to reduce violence and the number of children exposed to violence. 3

In addition, in 2012 the U.S. Department of Health and Human Services launched a national effort to “reduce the pervasive, harmful, and costly health impact of community violence and trauma by integrating trauma-informed approaches throughout health, behavioral health, and related systems and addressing the behavioral health needs of people involved in or at risk of involvement in the criminal and juvenile justice systems.” This includes the outlining of “Principles and Guidance for a Trauma-Informed Approach.”  4

Community violence, which is defined in this document, is a significant public health, public safety, and community infrastructure concern nationwide and is a leading cause of death, injury, and intergenerational trauma for people in the United States. Community violence imposes enormous human, social, and economic costs, including disruption to employment and hindering of a community's social and economic development. 5 While the vast majority of young people are able to persevere, those who have been victims of violence are at substantially higher risk of being violently revictimized or killed. Additionally, both direct and indirect violence exposure have been associated with poor economic outcomes and poor health outcomes, including chronic illness, anxiety, depression, and substance use. 6

Programs facilitated in schools by counselors, mental health providers, and community leaders for students who have been exposed to or are at high risk of involvement in community violence have been shown to help students develop the social and emotional skills needed to navigate difficult circumstances outside of the classroom so that they are able to turn away from violence and reengage in school. 7 When properly implemented and consistently funded, coordinated, community-based strategies that use trauma-responsive care and interrupt cycles of community violence may produce lifesaving and cost-saving results in a short period of time. These strategies identify those at the highest risk and highest need, coordinate individualized wraparound resources, provide pathways to healing and stability, and monitor and support long-term success.

The Biden-Harris Administration is taking a number of steps to prioritize investment in community violence interventions. Community violence interventions are proven strategies for reducing gun violence and other violent crime in urban communities through approaches other than incarceration. 8 These approaches include outreach, conflict mediation, violence interruption, and trauma-informed school-based mental health services to effectively reduce community violence. Efforts to ensure public safety and reduce community violence may also be carried out collaboratively and in partnership with law enforcement, where appropriate, to build safer, thriving communities.

The Department proposes the following three priorities for this program. We may apply one or more of these priorities in any year in which this program is in effect.

Proposed Priority 1—Addressing the Impacts of Community Violence.

Background: In Proposed Priority 1, the Department recognizes the tremendous impact community violence has on the well-being of students. Children and youth exposed to violence are at risk for poor long-term behavioral and mental health outcomes regardless of whether they are victims, justice-involved youth, direct witnesses, or hear about the crime. For example, children and youth exposed to violence may experience behavioral health challenges, depression, anxiety, and post-traumatic stress disorder, which can negatively affect educational outcomes. Children and youth exposed to violence may also show increased signs of aggression starting in upper-elementary school. 9

Schools are often the center of the community for students and their families, providing students with the resources and referrals they need to meet their full potential. Consequently, the needs of children and youth often are best met through cross-agency collaboration and partnerships between schools and organizations in the community. Consistent with the Secretary's vision for community engagement to advance systemic change, the Department would use this priority to emphasize the importance and efficacy of a coordinated effort between schools and communities to lessen the short- and long-term effects that community violence has on students.

Proposed Priority: Projects that implement community- and school-based strategies to help prevent community violence and mitigate the impacts of children and youth's exposure to community violence in collaboration with local community-based organizations ( e.g., local civic or community service organizations, local faith-based organizations, or local foundations or non-profit organizations) and include community and family engagement in the implementation of the strategies.

Proposed Priority 2—Established Partnership with a Local Community-Based Organization.

Background: As described in the background to Proposed Priority 1, the needs of children and youth often are often best met through cross-agency collaboration and partnerships between schools and organizations in the community. In forging this collaboration, the Department places specific emphasis on the importance of structured and defined partnerships to efficiently and effectively implement community- and school-based intervention strategies to help prevent community violence and mitigate the impacts of exposures to community violence. In particular, memorandums of agreement (MOA) and memorandums of understanding (MOUs) signed by the authorized representative of a local community-based organization elevate the level of partnership between an LEA and a partner organization by clearly defining the roles, responsibilities, and resources that each entity will bring to the partnership.

We may use this priority as a complement to Proposed Priority 1 or other priorities for this program, or as a stand-alone priority.

Proposed Priority: An application that includes at least one memorandum of agreement (MOA) or memorandum of understanding (MOU) signed by the authorized representative of a local community-based organization that agrees to partner with the applicant on the proposed project and provide resources or administer services that are likely to substantially contribute to positive outcomes for the proposed project. The MOA or MOU must clearly delineate the roles and responsibilities of each entity.

Proposed Priority 3—Supporting Children and Youth from Low-Income Backgrounds.

Background: The neighborhoods where children and youth live and go to school can have a major impact on their health and well-being. Many children and youth in the United States live in neighborhoods with high rates of, and prevalence of risk factors associated with, violence-related injuries and deaths, crime, poverty, and other health and safety risks. Students from low-income backgrounds are more likely to live in places with these risks. 10 In a study that examined the characteristics of school shootings, the Government Accountability Office found that the number of school shootings generally increased relative to school poverty level. 11 Proposed Priority 3 is intended to allow the Department to support activities in LEAs that experience and are impacted by community violence at a disproportionate rate.

Proposed Priority: In its application, an applicant must demonstrate, based on Small Area Income and Poverty Estimates (SAIPE) data from the U.S. Census Bureau or, for an LEA for which SAIPE data are not available, the same State-derived equivalent of SAIPE data that the State uses to make allocations under part A of title I of the Elementary and Secondary Education Act of 1965, as amended (ESEA), one or more of the following:

(a) At least 25 percent of the students enrolled in the LEA to be served by the proposed project are from families with an income below the poverty line.

(b) At least 30 percent of the students enrolled in the LEA to be served by the proposed project are from families with an income below the poverty line.

(c) At least 35 percent of the students enrolled in the LEA to be served by the proposed project are from families with an income below the poverty line.

(d) At least 40 percent of the students enrolled in the LEA to be served by the proposed project are from families with an income below the poverty line.

(e) At least 45 percent of the students enrolled in the LEA to be served by the proposed project are from families with an income below the poverty line.

Types of Priorities: When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register . The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

The Department proposes the following program requirement and application requirements for this program. We may apply one or more of these requirements in any year in which the program is in effect.

Proposed Program Requirement:

Eligible Applicants: Eligible applicants for this program are local educational agencies (LEAs), as defined in 20 U.S.C. 7801(30).

Proposed Application Requirements:

(a) Severity and magnitude of the problem; identification of schools to be served by the proposed project. Applicants must—

(1) Identify the schools proposed to be served by project activities;

(2) Describe the community violence that affects students in those schools, including collaborating and coordinating with organizations and law enforcement (where appropriate), and with other organizations to utilize data and information such as incidents of community violence, gun crime and other violent crime, rates of child abuse and neglect, and other school and community crime and safety data, including on a per capita basis (such as homicides per 100,000 persons); prevalence of risk factors associated with violence-related injuries and deaths; findings from student mental health screenings or assessments, school climate surveys, and student engagement surveys; demographic data provided by U.S. Census surveys; and other relevant data and information; and

(3) Provide a comparison of the school and community data cited to similar data at the State or local level, if available.

(b) Collaboration and coordination with community-based organizations. Applicants must—

(1) Describe how they intend to work collaboratively with community-based organizations to achieve project goals and objectives;

(2) Provide evidence of collaboration and coordination through letters of support, memoranda of agreement, or memoranda of understanding from at least one community-based organization; and

(3) Describe how they will use grant program funds to supplement, rather than supplant, existing or new efforts to reduce community violence and mitigate the direct and indirect effects of community violence on students.

(c) Project activities. Applicants must propose to conduct three or more of the following:

(1) Appropriately tailored professional development opportunities for LEA and school mental health staff ( e.g., counselors, psychologists, and social workers), other specialized instructional support personnel, and other school staff, as appropriate, on how to screen for and respond to violence-related trauma and implement appropriate school-based interventions to help prevent community violence and mitigate the impacts of children and youth's exposure to community violence.

(2) Activities designed to improve the range, availability, and quality of school-based mental health services by hiring school and clinical psychologists, school counselors, or school social workers with expertise or training in violence prevention, trauma-informed care, and healing-centered strategies, and qualified to respond to the mental and behavioral health needs of students who have experienced trauma as a result of exposure to community violence.

(3) Training for school staff ( e.g., teachers, administrators, specialized instructional support personnel, and support staff), community partners, youth, and families on the effects of exposure to community violence, the importance of screening students, and how to screen and provide interventions to students exposed to community violence.

(4) Developing or improving processes to better target services to students who are exposed to community violence and to assess such students who may be experiencing mental, social, emotional, or behavioral challenges.

(5) Enhancing linkages between LEA mental health services and community mental health systems to help ensure affected students receive referrals to treatment as appropriate.

(6) Undertaking activities in collaboration and coordination with law enforcement to address community violence affecting students, to support victims' rights, and to promote public safety.

(d) Evidence-based, culturally competent, and developmentally appropriate programs and practices. Applicants must—

(1) Describe the continuum of evidence-based, culturally competent, and developmentally appropriate (as defined in 34 CFR 77.1(c)) programs and practices that will be implemented at the school and community level and how these programs and practices will be organized to provide differentiated support based on student need, to help break the cycle of community violence. These programs and practices must include all of the following:

(i) Interventions and activities that are available to all students in a school with the goal of preventing negative or violent behavior (such as harassment, bullying, fighting, gang participation, sexual assault, and substance abuse) and enhancing student knowledge and interpersonal and emotional skills regarding positive behavior (such as communication and problem-solving, empathy, and conflict management, de-escalation, and mediation).

(ii) Interventions and activities related to positive coping techniques, anger management, conflict management, de-escalation, and mediation, promotion of positive behavior, and development of protective factors.

(iii) Interventions and services, such as mentorship programming, that target individual students who are at a higher risk for committing or being a victim of violence.

(2) Describe the research and evidence supporting the proposed programs and practices and the expected effects on the target population.

(e) Framework for planning, implementation, and sustainability. Applicants must—

(1) Describe how the proposed project is integrated and aligned with the mission and vision of the LEA, including a description of the relationship of the project to the LEA's existing school safety or related plan;

(2) Describe the anticipated challenges to success of the project and how they will be addressed, such as sustaining project implementation beyond the availability of grant funds and mitigating turnover at the LEA leadership, school leadership, and staff levels; and

(3) Include a timeline of activities for—

(i) Planning that includes: Conducting a needs assessment that is comprehensive and examines areas for improvement, both within the school and the community, related to learning conditions that create a safe and healthy environment for students; creating a logic model (as defined in 34 CFR 77.1); completing resource mapping; selecting evidence-based, culturally competent, and developmentally appropriate programs; developing evaluation plans; and engaging community and school partners, families, and other stakeholders;

(ii) Implementation that includes: Training on and execution of evidence-based, culturally competent, and developmentally appropriate programs; continuing engagement with stakeholders; communicating and collaborating strategically with community partners; and evaluating program implementation; and

(iii) Sustainability that includes: Further developing and expanding on the project's successes beyond the end of the grant, at the school and community levels, in alignment with other related efforts.

(f) Planning period. Projects funded under this program may use up to 12 months during the first year of the project period for program planning. Applicants that propose a planning period must provide sufficient justification for why this program planning time is necessary, provide the intended outcomes of program planning in Year 1, and include a description of the proposed strategies and activities to be supported.

The Department proposes to establish a definition of “community violence” for use in this program. We may apply it in any year in which this program is in effect.

Community violence means firearm injuries, assaults, homicides, and other acts of interpersonal violence committed outside the context of a familial or romantic relationship.

Final Priorities, Requirements, and Definition: We will announce the final priorities, requirements, and definition in a document published in the Federal Register . We will determine the final priorities, requirements, and definition after considering responses to the proposed priorities, requirements, and definition and other information available to the Department. This document does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Under Executive Order 12866, it must be determined whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing the proposed priorities, requirements, and definition only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on an analysis of anticipated costs and benefits, we believe that the proposed priorities, requirements, and definition are consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action does not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

In accordance with the Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

The Department believes that this proposed regulatory action would not impose significant costs on eligible entities, whose participation in our programs is voluntary, and costs can generally be covered with grant funds. As a result, the proposed priorities, requirements, and definition would not impose any particular burden except when an entity voluntarily elects to apply for a grant. The proposed priorities, requirements, and definition would help ensure that the Project Prevent grants program selects high-quality applicants to implement activities that meet the goals of the program. We believe these benefits would outweigh any associated costs.

Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.

The Secretary invites comments on how to make the proposed priorities, requirements, and definition easier to understand, including answers to questions such as the following:

• Are the requirements in the proposed regulations clearly stated?

• Do the proposed regulations contain technical terms or other wording that interferes with their clarity?

• Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

• Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections?

• Could the description of the proposed regulations in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed regulations easier to understand? If so, how?

• What else could we do to make the proposed regulations easier to understand?

To send any comments that concern how the Department could make the proposed priorities, requirements, and definition easier to understand, see the instructions in the ADDRESSES section.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

The Secretary certifies that this proposed regulatory action would not have a significant economic impact on a substantial number of small entities. The U.S. Small Business Administration Size Standards define proprietary institutions as small businesses if they are independently owned and operated, are not dominant in their field of operation, and have total annual revenue below $7,000,000. Nonprofit institutions are defined as small entities if they are independently owned and operated and not dominant in their field of operation. Public institutions are defined as small organizations if they are operated by a government overseeing a population below 50,000.

The small entities that this proposed regulatory action would affect are LEAs. Of the impacts we estimate accruing to grantees or eligible entities, all are voluntary. Therefore, we do not believe that the proposed priorities, requirements, and definition would significantly impact small entities beyond the potential for increasing the likelihood of their applying for, and receiving, competitive grants from the Department.

As part of its continuing effort to reduce paperwork and respondent burden, the Department provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ). This helps ensure that the public understands the Department's collection instructions, respondents provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents.

The proposed requirements contain information collection requirements. Under the PRA the Department has submitted these requirements to OMB for its review.

A Federal agency may not conduct or sponsor a collection of information unless OMB approves the collection under the PRA and the corresponding information collection instrument displays a currently valid OMB control number. Notwithstanding any other provision of the law, no person is required to comply with, or is subject to penalty for failure to comply with, a collection of information if the collection instrument does not display a currently valid OMB control number.

In the notice of final priorities, requirements, and definition we will display the control number assigned by OMB to any information collection proposed in this document and adopted in the notice of final priorities, requirements, and definition.

For the years that the Department holds a Project Prevent grant competition, we estimate 150 LEAs will apply and submit an application. We estimate that it will take each LEA 40 hours to complete and submit the application, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The total burden hour estimate for this collection is 6,000 hours. At $97.28 per hour (using mean wages for Education and Childcare Administrators  12 and assuming the total cost of labor, including benefits and overhead, is equal to 200 percent of the mean wage rate), the total estimated cost for 150 LEAs to complete the Project Prevent application is approximately $583,680.

Consistent with 5 CFR 1320.8(d), the Department is soliciting comments on the information collection. We must receive your comments on the collection activities contained in these proposed priorities, requirements, and definition on or before February 28, 2022. Comments related to the information collection activities must be submitted electronically through the Federal eRulemaking Portal at www.regulations.gov by selecting the Docket ID number ED-2021-OESE-0122 or via postal mail, commercial delivery, or hand delivery by referencing the Docket ID number and the title of the information collection request at the top of your comment. Comments submitted by postal mail or delivery should be addressed to the PRA Coordinator of the Strategic Collections and Clearance Governance and Strategy Division, U.S. Department of Education, 400 Maryland Ave. SW, LBJ, Room 6W208D, Washington, DC 20202-8240.

We consider your comments on this proposed collection of information in—

• Deciding whether the proposed collection is necessary for the proper performance of our functions, including whether the information will have practical use;

• Evaluating the accuracy of our estimate of the burden of the proposed collection, including the validity of our methodology and assumptions;

• Enhancing the quality, usefulness, and clarity of the information we collect; and

• Minimizing the burden on those who must respond. This includes exploring the use of appropriate automated, electronic, mechanical, or other technological collection techniques.

Accessible Format: On request to the program contact person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of the Department published in the Federal Register , in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

On July 10, 2013, the Delaware Department of Natural Resources and Environmental Control (DNREC) submitted a revision to the Delaware SIP which comprises revisions to Title 7 of Delaware's Administrative Code (7 DE Admin. Code) 1108—Sulfur Dioxide Emissions from Fuel Burning Equipment. The revision to 7 DE Admin. Code 1108 will reduce the amount of sulfur in fuel oils used in fuel burning units. 1 The revised regulation also establishes the date of compliance and adds necessary record keeping and recording provisions to ensure compliance with the regulation. The revision removes start up, shut down and malfunction provisions that were previously included in the Delaware SIP. On August 19, 2016, EPA received a supplemental letter from DNREC withdrawing a portion of Section 3.0 of 7 DE Admin. Code 1108 from the July 10, 2013, SIP submittal subject to EPA's review. The portion removed from the 2013 submittal is the last sentence of Section 3.0 which states, “In order to employ an emission control rather than sulfur content limits as a means of complying with this Regulation, an owner or operator of fuel burning equipment must demonstrate to the Department in advance that the equivalent emission will be achieved.” This provision will be retained as a State enforceable only requirement. 2 Delaware's August 19, 2016, letter is available in the docket for this rulemaking and online at www.regulations.gov .

The revision consists of an amendment to the Delaware SIP to reduce the maximum allowable sulfur content limit for distillate and residential fuels. If the SIP revision were approved, the sulfur content limit for distillate fuel would be lowered to 15 ppm by weight. The sulfur content limit for a residential fuel would be lowered to 0.5% by weight. For any other fuel, the sulfur content would remain 1.0% by weight. The combustion of sulfur-containing fuel oil releases sulfur dioxide (SO 2 ) emissions, which contribute to the formation of regional haze and fine particulate matter (PM 2.5 ), all of which impact the environment and human health. Regional haze impairs visibility through scattering and absorption of light. PM 2.5 pollution exposure has been linked to a variety of health problems. In addition to improving public health and the environment, decreased emissions of SO 2 will contribute to the attainment or maintenance, or both, of the SO 2 and PM 2.5 national ambient air quality standards (NAAQS).

In addition, the July 10, 2013, SIP submission partially responds to a SIP call issued by EPA to address startup, shutdown and malfunction (SSM) events which are contrary to the CAA and existing EPA guidance. 3 On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized an action (2015 SSM SIP Action) that clarified, restated, and updated EPA's interpretation that SSM exemption and affirmative defense SIP provisions are inconsistent with CAA requirements. In the 2015 SSM SIP Action, EPA also issued a finding that certain SIP provisions in 36 states (applicable in 45 statewide and local jurisdictions) are substantially inadequate to meet CAA requirements and thus issued a “SIP call” for each of the identified SIP provisions. 80 FR 33840. See also 78 FR 12460 (February 22, 2013) (proposed finding for SIP call). Delaware was among the 36 states that received a 2015 SIP call. EPA established a due date, November 22, 2016, for states subject to the SIP call to submit corrective SIP revisions.

Several provisions in the Delaware SIP were identified in the 2015 SIP call as substantially inadequate to meet CAA requirements. This included 7 DE Admin. Code 1108, Section 1.2 (Sulfur Dioxide Emissions from Fuel Burning Equipment), which stated that “[t]he provisions of this regulation shall not apply to the start-up and shutdown of equipment which operates continuously or in an extended steady state when emissions from such equipment during start-up and shutdown are governed by an operation permit issued pursuant to the provisions of 2.0 of 7 DE Admin. Code 1102.” This SIP submission from Delaware that is the subject of this action contains a revised version of 7 DE Admin. Code 1108 to delete the language identified in the 2015 SSM SIP call formerly at Section 1.2. That language provided impermissible exemptions from the low sulfur fuel oil provisions where sources obtained permits from Delaware.

This SIP revision amends 7 DE Admin. Code 1108 sections 1.0 through 3.0 and adds sections 4.0 and 5.0. The amendments to section 1.0 (General provisions) remove language related to the start-up and shutdown of equipment and provide clarity to existing language pertaining to the fact that catalyst regeneration only applies to catalyst regeneration in fluid catalytic cracking operations.

The amendments to section 2.0 (Limit on Sulfur Content of Fuel): (1) Remove language related to oil sampling methods and sulfur concentrations of residual and distillate fuels; (2) establish a compliance date of July 1, 2016, such that no person shall offer for sale, sell, deliver, or purchase any fuel having a sulfur content greater than the applicable limits established within the regulations, when such fuel is intended for use in any fuel burning equipment; (3) lower sulfur content in residual fuel from 1% by weight to 0.5% by weight; (4) lower sulfur content in distillate fuel from 3,000 ppm to 15 ppm; and (5) establish a transitional period through June 30, 2017, for distillate fuel stored, offered for sale, sold, delivered, purchased, and used in Delaware prior to July 1, 2016, having a sulfur content greater than the limits specified within this regulation. 4

The amendments to section 3.0 (Emission Control in Lieu of Sulfur Content Limits of 2.0 of This Regulation) remove language and add clarifying language related to any fuel burning equipment employing emission controls of SO 2 such that fuel burning equipment with controls achieving equal or better reductions are not subject to fuel sulfur limits.

Section 4.0 (Sampling and Testing Methods and Requirements): (1) Establishes sampling and testing requirements for oil samples using standard American Society for Testing and Materials (ASTM) methods ASTM D4057-06; (2) establishes sampling and testing requirements for sulfur concentrations of residual and distillate fuels using the standard ASTM method D2622-10; and (3) allows the use of any alternative method found in 40 Code of Federal Regulations (CFR) 80.580 and/or approved by EPA and DNREC, to provide flexibility.

Section 5.0 (Recordkeeping and Reporting) establishes certification and recordkeeping requirements for any person subjected to limits on sulfur content of fuel, when selling or delivering any fuel oil to be used in Delaware.

In addition, this SIP revision removes section 1.2, which EPA determined in its June 12, 2015, SSM SIP Action to be substantially inadequate to meet CAA requirements and, therefore, SIP called pursuant to CAA section 110(k)(5). The provision was one of several that were identified as inadequate from the Delaware SIP because they impermissibly provide exemptions from otherwise applicable emissions limitations during periods of startup and shutdown. 5

This proposed SIP revision to implement low sulfur fuel oil provisions is expected to reduce regional haze and visibility impairment in Delaware. Additionally, decreased emissions of SO 2 will contribute to the attainment, maintenance, or both, of the SO 2 and PM 2.5 NAAQS in Delaware and the surrounding areas.

Delaware's SIP revision, which incorporate amendments made to 7 DE Admin. Code 1108, will lower the maximum allowable sulfur content limit combusted or sold in Delaware and aid in reducing SO 2 emissions. These emissions are a cause of regional haze and reducing them will help Delaware and the surroundings areas to attain and maintain the SO 2 and PM 2.5 NAAQS. EPA has determined that this SIP revision meets the requirements of the CAA. Therefore, EPA is proposing to approve the July 10, 2013, SIP revision which sets sulfur limits for combustion and sale in Delaware, as amended by Delaware on August 19, 2016. EPA is soliciting public comment on the issues discussed in this document. These comments will be considered before taking final action.

In addition, based on Delaware's removal of the language in section 1.2, which EPA identified in the 2015 SSM SIP Action as an impermissible SSM exemption provision, EPA proposes to find that this SIP revision adequately addresses the specific deficiency that EPA identified in the 2015 SSM SIP Action with respect to section 1.2 of the Delaware SIP. If EPA were to finalize approval of the SIP revision and finalize the finding that this SIP revision adequately addresses the SIP call, the SIP call for section 1.2 of the Delaware SIP would be resolved. The remaining portions of the SIP call issued to Delaware in 2015 would remain in effect pending future EPA action.

In this document, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference of the state rules being approved. In accordance with requirements of 1 CFR 51.5, EPA is thus proposing to incorporate by reference Delaware's Sulfur Dioxide Emissions from Fuel Burning Equipment requirements as described in 7 DE Admin. Code 1108, not including the last sentence of section 3.0, which Delaware withdrew from this SIP revision. EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

In addition, this proposed rule, regarding fuel oil sulfur limits for combustion and sale in the State of Delaware, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Supplementary Information section is arranged as follows:

The EPA is proposing to approve revisions to the New York SIP submitted by the State of New York on February 3, 2021 and October 15, 2020 that pertain to existing regulations, Title 6 of the New York Code of Rules and Regulations (6 NYCRR Part 219, “Incinerators” (Part 219), and 6 NYCRR Part 222, “Distributed Generation Sources” (Part 222), respectively. The EPA is also proposing to approve attendant revisions to 6 NYCRR Part 200 (Part 200), Section 200.9, “General Provisions, Reference materials” (Section 200.9).

These revisions include additional control strategies that will reduce NO X and PM emissions from major sources throughout the state. The EPA is proposing to approve New York's SIP submittals listed within this action as a SIP-strengthening measure for New York's ozone and PM SIP. The EPA is also proposing to approve New York's SIP submittal since it incorporates additional reasonably available control technology/reasonably available control measures (RACT/RACM) rules for NO X at Municipal and Private Solid Waste Incineration Units.

In March 2008, EPA revised the health-based National Ambient Air Quality Standard (NAAQS) for ozone to 0.075 parts per million (ppm) averaged over an 8-hour time frame (2008 8-hour Ozone Standard). See 73 FR 16435 (March 27, 2008). In October 2015, the EPA revised this standard to 0.070 ppm averaged over an 8-hour time frame (2015 8-hour Ozone Standard). See 80 FR 65291 (October 26, 2015).

On May 21, 2012, the EPA finalized its attainment/nonattainment designations for areas across the country with respect to the 2008 8-hour Ozone Standard and, on July 20, 2012, the designations became effective. See 77 FR 30160 (May 21, 2012). The New York-Northern New Jersey-Long Island Connecticut metropolitan area (NYMA) was designated by the EPA as a “marginal” nonattainment area for the 2008 ozone NAAQS. 1 In 2016, the EPA determined that the NYMA did not attain the 2008 ozone standard by the July 20, 2015 attainment date and was reclassified from a “marginal” to a “moderate” nonattainment area. See 81 FR 26697 (May 4, 2016). SIPs for “moderate” nonattainment areas were due by January 1, 2017. See id. On April 30, 2018, the EPA finalized its attainment/nonattainment designations for most areas across the country as to the 2015 8-hour Ozone Standard, in which the NYMA was designated by the EPA as a “moderate” nonattainment area. See 83 FR 25776 (June 4, 2018). On September 23, 2019, the EPA reclassified the NYMA to “serious” nonattainment as to the 2008 8-hour Ozone Standard. See 84 FR 44238 (August 23, 2019). The serious area attainment date and the deadline for RACT measures not tied to attainment was July 20, 2021. See id.

On September 21, 2006, the EPA retained the primary and secondary 24-hour PM 10 standard of 150 micrograms per cubic meter of air (µg/m 3 ), as an average over a 24-hour period, not to be exceeded more than once per year on average over a 3-year period, that was initially promulgated on June 2, 1987. See 71 FR 61144 (October 17, 2006); see also 52 FR 24634 (July 1, 1987).

On October 17, 2006, the EPA strengthened the primary and secondary 24-hour PM 2.5 NAAQS to 35 µg/m 3 . See 71 FR 61144. On November 13, 2009, the EPA promulgated designations for the revised 24-hour PM 2.5 standard set in 2006, designating the NY-NJ-CT area as “nonattainment.” See 74 FR 58688. On June 27, 2013, New York submitted a request to redesignate the New York portion of the NY-NJ-CT nonattainment area, from “nonattainment” to “attainment.” As part of this request, New York also submitted a maintenance plan to ensure that New York's portion of the NYMA would continue attainment through 2025. On April 18, 2014, the EPA took final action to approve New York's SIP revision to redesignate the New York portion of the NY-NJ-CT to “attainment” for the 2006 24-hour PM 2.5 NAAQS. See 79 FR 21857.

On December 14, 2012, the EPA promulgated a revised primary NAAQS for PM 2.5 for the annual standard, setting the level at 12 micrograms per cubic meter (µg/m 3 ) calculated as an annual average, which is averaged over a three-year period. See 78 FR 3086.

On January 15, 2015, the EPA finalized its attainment/nonattainment designations for areas across the country with respect to the revised primary PM 2.5 NAAQS and on April 15, 2015, the designations became effective. See 80 FR 2206. The NYMA was designated by the EPA as an “Unclassifiable/Attainment” area for the revised primary PM 2.5 NAAQS. See id.

On February 3, 2021 and October 15, 2020, the New York State Department of Environmental Conservation (NYSDEC or New York), submitted to the EPA proposed revisions to the SIP, which included State adopted revisions to three regulations contained in Part 219, “Incinerators,” and Part 222, “Distributed Generation Sources” with effective dates of March 14, 2020 and March 25, 2020, respectively. New York also submitted attendant revisions to Part 200, Section 200.9, “General Provisions, Reference materials. These revisions are applicable statewide, with the exception of Part 222 which will only be applicable to sources located within the NYMA. These revisions will provide NO X and PM 2.5 emission reductions statewide and will address, in part, attainment of the 2008 and 2015 8-hour Ozone Standards within the NYMA and maintain New York State's attainment of the PM NAAQS.

The NYSDEC revised 6 NYCRR Part 219, by repealing and replacing 6 NYCRR Subpart 219-4, “Human and Animal Crematories,” to better reflect the current state of cremation technology and reduce emissions of PM from new animal and human crematories constructed in the state. New York also repealed and reserved 6 NYCRR Subparts 219-5 and 219-6, requiring the existing units subject to these requirements comply with the more stringent standards under the revised 6 NYCRR Subpart 219-4 (Subpart 219-4). New York also revised 6 NYCRR Subpart 219-1 (Subpart 219-1) and Part 200, Section 200.9 to clarify various definitions used throughout Part 219. In addition, New York is adding a new 6 NYCRR Subpart 219-10, “Reasonably Available Control Technology (RACT) for Oxides of Nitrogen (NO X ) at Municipal and Private Solid Waste Incineration Units” (Subpart 219-10), to impose 24-hour and annual average RACT NO X emission limits for private and municipal waste combustion units.

NYSDEC revised Subpart 219-1 and Part 200, Section 200.9 to incorporate minor edits to definitions used throughout Part 219, in order to provide clarity to applicable owners or operators. The newly revised Subpart 219-4 applies to all new, modified, and existing cremation units used for the cremation of human and animal remains throughout the New York State. Under this regulation, owners and operators of applicable cremation units must comply with the PM emission limitations and operating requirements. 6 NYCRR Section 219-4.1 was revised to add definitions for existing, modified, and new cremation units. 6 NYCRR Section 219-4.2 was revised to address that Subpart 219-4 is applicable to all new, modified, and existing cremation units used for animal and human remains.

6 NYCRR Section 219-4.3 was revised to implement the PM emission limits for new, modified, and existing cremation units. Under Section 219-4.3, no owner or operator may cause or allow emissions of particulates into the outdoor atmosphere from an existing cremation unit to exceed 0.08 grains per dry standard cubic foot of flue gas (0.08 gr/dscf), corrected to 7 percent oxygen. And no person may cause or allow emissions of particulates into the outdoor atmosphere from a new or modified cremation unit to exceed 0.05 gr/dscf, corrected to 7 percent oxygen.

Under 6 NYCRR Section 219-4.4, the owner and operator of cremation units must comply with various operating requirements including: An opacity limit, a minimum secondary combustion chamber temperature and residence time during cremation, installation of an continuous temperature monitoring instruments and continuous recording requirement, a prohibition on the combustion of certain materials, preparation of a cremation certification form prior to cremation, and a prohibition on the charging of remains in excess of the manufacturer's rated capacity of the cremation unit.

6 NYCRR Section 219-4.5 was revised to establish the emission testing and modeling requirements for cremation units. Owners or operators of affected cremation units must demonstrate compliance with this Subpart by either conducting onsite testing or stack testing. 6 NYCRR Section 219-4.6 establishes operator training and certification requirements for crematory operators. 6 NYCRR Section 219-4.7 outlines the annual inspection and maintenance requirements for the cremation units. 6 NYCRR Section 219-4.8 describes the recording requirements for crematory facilities.

6 NYCRR Section 219-4.9 was revised to describe the compliance schedule for existing cremation units that are subject to the requirements under Subpart 219-4. Section 219-4.9 outlines that owner or operator of an existing cremation unit must obtain appropriate operator certifications, as described in 6 NYCRR Section 219-4.6, within 12 months of the effective date of 6 NYCRR Subpart 219-4 for each uncertified operator at the facility. Owners and operators also must demonstrate compliance with the requirements of this Subpart no later than 60 months from the effective date of 6 NYCRR Subpart 219-4.

New York has repealed and reserved 6 NYCRR Subparts 219-5 and 219-6, requiring that the existing units subject to those requirements comply with the more stringent standards under the new Subpart 219-4.

Subpart 219-10 is new and applies to all new, modified, and existing municipal and private solid waste incineration units. 6 NYCRR Section 219-10.2 establishes the 24-hour and annual average NO X emissions limitation and describes the procedures that affected facilities can use to demonstrate that they have installed RACT. 2 Both the 24-hour and annual average NO X emission limits vary between the combustion technology utilized by the owner or operator. Incineration units that utilize Mass Burn Waterwall or Rotary Combustor technology must comply with presumptive RACT limits, while owners or operators of other combustion technologies must perform a facility-specific RACT analysis. The analysis must include proposed 24-hour and annual average NO X emission limitations, the available NO X control technology, the projected effectiveness of the technologies considered, and the costs for installations and operation for each of the technologies. The RACT analysis was to be submitted to the NYSDEC by June 30, 2021. Approved RACT determinations will be submitted by the NYSDEC to the EPA for approval as separate SIP revisions.

6 NYCRR Section 219-10.3 outlines the compliance demonstration for the owners or operators of a municipal or private solid waste incineration unit subject to this Subpart. Under 6 NYCRR Section 219-10.3, owners or operators of a municipal or private solid waste incineration applicable to this Subpart must demonstrate compliance within one year of the date of issuance of a permit modification issued pursuant to the requirements of this Subpart. Owners or operators applicable to this shall install, calibrate, maintain, and operate a Continuous Emissions Monitoring System (CEMS) for measuring the oxides of nitrogen discharged to the atmosphere from the municipal or private solid waste incineration units.

The EPA reviewed both New Jersey and Connecticut's PM emission limits for human and animal cremation units and compared those limits with the limits adopted by NYSDEC in this rule. 3 The EPA has observed that New York's PM limits are more stringent than both New Jersey and Connecticut's for similar crematory technologies.

The EPA has also reviewed New Jersey and Connecticut's NO X emission limits for municipal and private solid waste incineration units with similar combustion technology and compared those limits with the limits adopted by NYSDEC in this rule. 4 The EPA observed that Connecticut adopted similar RACT emission limits, on a 24-hour average, for Mass Burn Waterwall combustors. The EPA also observed that NO X emission limits outlined within New York's rule will be as stringent as New Jersey's for similar combustion technologies.

The EPA has reviewed New York's SIP submittal, which seeks to incorporate revisions to 6 NYCRR Part 219, “Incinerators. After evaluating Part 219 for consistency with the CAA, EPA regulations, and EPA policy, the EPA proposes to find that the submission fully addresses the ozone nonattainment requirement found in CAA Section 172, 42 U.S.C. Section 7502, and proposes to approve this revision. The EPA also proposes that the submission addresses the PM requirements found in CAA Section 175A, 42 U.S.C. Section 7505a.

New York revised Part 222 to impose more stringent NO X control requirements on sources operated as part of demand response programs or designated as price-responsive “economic” generation sources in New York City, Long Island, and Rockland and Westchester counties. Distributed Generation (DG) units enrolled within demand response programs are often low-level NO X controlled diesel-fired engines that contribute significant NO X emissions within the NYMA during High Electrical Demand Days. The revisions to Part 222 essentially entail control requirements beginning in 2021 with additional phased-in control requirements beginning in 2025. Both control requirements will increase the stringency of emissions limits for these engines used in non-emergency applications.

Part 222 was revised to include revisions of several definitions, a change in application and permitting requirements, a change in control requirements for economic dispatch sources, and revisions to emission testing and recordkeeping. DG sources are stationary reciprocating or rotary internal combustion engines used by host facilities or sites to supply electricity into the distribution grid or produce electricity for use at the host facilities or both. This includes, but is not limited to, emergency power generation stationary internal combustion engines and demand response sources. The demand response program is an emergency program sponsored by the New York Independent System Operator (NYISO) or distribution utilities in New York to call upon owners of low-level NO X controlled distributed generation engines to generate electricity for host facilities on high demand days, to reduce demand on the electrical grid and preserve its reliability. Economic dispatch sources are defined as distributed generation sources used to provide electricity for general use to a building, structure, or collection of structures in place of electricity supplied by the distribution utilities. Economic dispatch sources are also considered as price-responsive generation sources which are distributed generation sources used to provide electricity for short periods of time when the cost of electricity supplied by the distribution utility is high. The revised Part 222 applies to owners and operators of distributed generation sources classified as economic sources located within the NYMA with a maximum mechanical output rating of 200 horsepower (hp) or greater where the potential to emit of NO X at a facility is less than 25 tons/year.

6 NYCRR Section 222.1 was revised to incorporate the applicability of Part 222. 6 NYCRR Section 222.2 was revised to amend the definitions that apply to this Part, which include: Compression ignition, demand response program, demand response source, demand response event, distribution utility, distributed generation source, economic dispatch source, lean burn engine, maximum load relief, model year, rich burn engine, spark ignition, and three-way catalyst controls. The definitions of Part 200, as well as 6 NYCRR Subpart 200.1 and Subpart 201-2 of still apply to Part 222 unless they are inconsistent with the definitions outlined within 6 NYCRR Section 222.2.

6 NYCRR Section 222.3 was revised to specifically require owners or operators of a distributed generation source to obtain a permit or registration certificate in accordance with 6 NYCRR Part 201 prior to the operation as an economic dispatch source. The revisions also require owners or operators to notify NYSDEC, in writing by March 15, 2021 or 30 days prior to operating, whichever is later, their distributed generation source as an economic dispatch source.

6 NYCRR Section 222.4 (Section 222.4) was revised to implement the control requirements of economic dispatch sources that will be subject to Part 222. Effective May 1, 2021, depending upon the engine and fuel type, economic dispatch sources must comply with presumptive NO X emission limits, or at least be a model year of 2000, or must be equipped with control technology (Phase One). 5 As of May 1, 2025, the second and final phase of NO X emission limits for economic dispatch sources will become effective. Depending on the engine and fuel type, owners and operators must comply with more stringent NO X emission limits than the Phase One limits. Section 222.4 allows owners or operators of impacted sources to request an extension of the compliance date for the 2025 NO X control requirements in Part 222. Owners or operators that request additional time to install controls or install new engines or turbines must provide evidence to NYSDEC; in any case, the extension may not exceed two years beyond the 2025 compliance date. Also, emission test reports that demonstrate compliance with the control requirements outlined in Section 222.4 must be submitted and approved by NYSDEC before a distributed generation source may be operated as an economic dispatch source on or after May 1, 2025.

6 NYCRR Section 222.5 was revised to require owners or operators to submit the emission test reports outlined in Section 222.4. This section also describes how the emission test reports must be submitted, the emission test methods, and additional protocols required.

6 NYCRR Section 222.6 (Section 222.6) was revised to include the recordkeeping provisions required by owners and operators subject to Part 222. NYSDEC may enter a facility during normal operating hours to inspect an economic dispatch source subject to the requirements of Part 222, and inspect any records, papers, logbooks, and operational data maintained pursuant to Part 222. Facilities subject to Part 222 must also maintain records regarding hours of operation and fuel use for a period of five years. Section 222.6 also requires that owners or operators to conduct stack testing to demonstrate compliance with the emission standards detailed in Part 222 for economic dispatch sources that will operate on May 1, 2025 and beyond.

New York has revised Section 222.4 (control requirements) to require more stringent NO X emission limits on sources used in demand response programs or designated as economic dispatch sources in the NYMA. New York has estimated that once the phased-in controls requirements are implemented by the May 1, 2025 compliance date, actual NO X emissions in the State will be reduced by 5 tons per day. The following summarizes the revised control requirements from Section 222.4 that are expected to result in NO X reductions beginning on May 1, 2025:

For combustion turbines firing natural gas, presumptive NO X emission limits are reduced to 25 parts per million on a dry volume basis corrected to 15 percent oxygen.

For combustion turbines firing oil, presumptive NO X emission limits are reduced to 42 parts per million on a dry volume basis corrected to 15 percent oxygen.

For spark ignition engines firing natural gas, presumptive NO X emission limits are reduced to 1.0 grams per brake horsepower-hour.

For compression-ignition engines firing distillate oil with nameplate rating less than 750 hp, presumptive NO X emission limits are reduced to 0.30 grams per brake horsepower-hour.

For compression-ignition engines firing distillate oil with nameplate rating greater than or equal to 750 hp, presumptive NO X emission limits are reduced to 0.50 grams per brake horsepower-hour.

The EPA believes that the new presumptive emission limits and other control requirements will result in additional NO X reductions throughout the State thereby strengthening New York's ozone SIP and will help the State reach attainment for the 2008 and 2015 ozone standards.

The EPA agrees with New York's evaluation that the newly-adopted regulation will lead to an estimated reduction of 3.5 tons per day in 2021 and 5 tons per day by 2025 for demand response sources. A 3.5 or 5 ton per day reduction in NO X emissions is a necessary step towards meeting New York's obligation under Section 110 of the CAA. This reduction will result in NO X reductions throughout the NYMA, strengthen New York's ozone SIP, and help the State reach attainment for the 2008 and 2015 ozone NAAQS. The EPA evaluated the provisions of Part 222 for consistency with the CAA, EPA regulations, and EPA policy and proposes to find that the submission fully addresses the ozone nonattainment requirements found in CAA Section 172, 42 U.S.C. 7502, and proposes to approve this revision.

New York also made administrative changes to Part 200 (“General Provisions”) which reflect the revisions to Part 219 and Part 222 discussed above. Specifically, the revisions to Part 200 will add new references in Section 200.9, “Referenced Material”, Table 1. The revisions to Table 1 of Section 200.9 include all documents referenced in New York's amendments to Part 219 and Part 222. It is important to note that EPA is proposing to approve only those respective revisions made to Part 200, specifically Section 200.9 as amended on March 14, 2020 and March 25, 2020.

The EPA evaluated New York's submittal for consistency with the Act, EPA regulations, and EPA policy. EPA proposes that the revisions discussed above (6 NYCRR Part 200, “General Provisions”, Part 219, “Incinerators,” and Part 222, “Distributed Generation Sources,” with effective dates of March 14, 2020 and March 25, 2020, respectively) meet the SIP requirements of the Act. The EPA is proposing to approve Part 219 and Part 222. The EPA is also proposing to approve attendant revisions to Part 200, Section 200.9, “General Provisions, Reference material. These revisions meet the requirement of the Act and EPA's regulations, and are consistent with EPA guidance and policy. EPA is taking this action pursuant to Section 110 and Part D of the Act and EPA's regulations.

In this document, the EPA is also proposing to incorporate by reference NYSDEC rules discussed in sections IV and V of this preamble in accordance with the requirements of 1 CFR 51.5. The EPA has made and will continue to make these materials available through the docket for this action, EPA-R02-OAR-2021-0572, at https://regulations.gov, and at the EPA Region II Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501);

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

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

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

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

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

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

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

On September 9, 2021, the New Hampshire Air Resources Division (ARD) submitted a revision to its State Implementation Plan (SIP) consisting of amendments to Env-A 1500, Conformity. This revision consists of minor administrative language changes, updated definitions and references to Federal rules, and clarifications to roles and responsibilities for Federal, state, and municipal partners.

Transportation Conformity is required under Section 176(c) of the Clean Air Act to ensure that Federally-supported highway, transit projects, and other activities are consistent with (“conform to”) the purpose of the SIP. Conformity currently applies to areas that are designated nonattainment, and those redesignated to attainment after 1990 (maintenance areas) with plans developed under section 175A of the Clean Air Act, for the following transportation related criteria pollutants: Ozone, particulate matter (PM 2.5 and PM 10 ), carbon monoxide (CO), and nitrogen dioxide (NO 2 ). Conformity to the purpose of the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the relevant national ambient air quality standards. The transportation conformity regulation is found in 40 CFR part 93, subpart A and provisions related to conformity SIPs are found in 40 CFR 51.390.

General Conformity is a requirement of section 176(c) of the Clean Air Act (CAA) Amendments of 1990. General Conformity is a safeguard that no action by the Federal government interferes with a SIP's protection of the National Ambient Air Quality Standards (NAAQS). Under General Conformity, any action by the Federal government cannot: Cause or contribute to any new violation of any standard in any area; interfere with provisions in the applicable SIP for maintenance of any standard; increase the frequency or severity of any existing violation of any standard in any area; or delay timely attainment of any standard, any required interim emission reductions, or any other milestones, in any area. The general conformity regulation is found in 40 CFR part 93, subpart B and provisions related to conformity SIPs are found in 40 CFR 51.851.

On April 5, 2010, EPA revisited the Federal General Conformity Requirements Rule to clarify the conformity process, authorize innovative and flexible compliance approaches, remove outdated or unnecessary requirements, reduce the paperwork burden, provide transition tools for implementing new standards, address issues raised by Federal agencies affected by the rules, and provide a better explanation of conformity regulations and policies (75 FR 17254). This April 2010 General Conformity rule eliminated the Federal regulatory requirement for states to adopt and submit general conformity SIPs, instead making submission of a general conformity SIP a state option.

EPA previously approved a version of EnvA-1500 into the New Hampshire SIP on November 29, 2013 (78 FR 71504). For transportation conformity, the September 9, 2021, revision contains updated references to the Code of Federal Regulations (CFR), updates to public comment period timeframes, and clarifications to roles of interagency partners. Specifically, the rule updates multiple references to the CFR to the April 1, 2018, version from April 1, 2011. The rule also changes language for a public comment for planning organizations and New Hampshire Department of Transportation (NHDOT) from “a minimum of 10 days” to “between 10 and 30 days,” to match language in the NHDOT Statewide Transportation Improvement Program (STIP) Revision Procedures.

The New Hampshire submittal also provides updated language to project-level conformity determinations for carbon monoxide (CO) hot spot areas. EPA notes that New Hampshire's twenty-year maintenance period for the CO NAAQS expired on January 29, 2021. As a result of this maintenance period expiration, conformity requirements for the CO standard, including hot spot analyses, also expired. 1 No conformity or project level hot spot analyses are required for the State's CO maintenance area, but the language would continue to apply in the event of a future more stringent CO NAAQS and/or future nonattainment classification.

The NH submittal contains updated language for General Conformity. As noted above, States are not required to submit state-level General Conformity regulations into the SIP, rather they can rely upon the federal provisions. The New Hampshire submittal adequately refers to the General Conformity Federal rule for implementation and contains only minor changes in references to the 2018 Code of Federal Regulations, as mentioned above.

EPA is proposing to approve New Hampshire's Env-A 1500 Conformity into the New Hampshire SIP. This revision and proposed approval are consistent with the CAA. EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference of NH's updated Env-A 1500, Conformity, as discussed in sections I. and II. of this preamble, into 40 CFR part 52. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

The following outline is provided to aid in locating information in this preamble.

The EPA is proposing to deny the requested revisions in the AF&PA petition and is proposing regulatory revisions to the definition of paper recycling residuals under the authority of sections 2002(a)(1) and 1004(27) of the Resource Conservation and Recovery Act (RCRA), as amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the Clean Air Act (CAA) directs the EPA to establish standards for Commercial and Industrial Solid Waste Incinerators (CISWI), which burn solid waste. Section 129(g)(6) of the CAA provides that the term “solid waste” is to be established by the EPA under RCRA (42 U.S.C. 7429(g)(6)). Section 2002(a)(1) of RCRA authorizes the Agency to promulgate regulations as are necessary to carry out its functions under the Act. The statutory definition of “solid waste” is stated in RCRA section 1004(27).

Categories and entities potentially affected by this action, either directly or indirectly, include, but may not be limited to the following:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities potentially impacted by this action. This table lists examples of the types of entities which the EPA is aware could potentially be affected by this action. Other types of entities not listed could also be affected. To determine whether your facility, company, business, organization, etc., is affected by this action, you should examine the applicability criteria in this rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2020-0550, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

Due to public health concerns related to COVID-19, the EPA Docket Center and Reading Room are open to the public by appointment only. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets.

The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.

The NHSM regulations establish standards and procedures for identifying when non-hazardous secondary materials burned in combustion units are solid wastes. The RCRA statute defines “solid waste” as “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material . . . resulting from industrial, commercial, mining, and agricultural operations, and from community activities.” (RCRA section 1004(27) (emphasis added)). The key concept is that of “discard” and, in fact, this definition hinges on the meaning of the phrase “other discarded material,” since this term encompasses all other examples provided in the definition.

The meaning of “solid waste,” as defined under RCRA, is of particular importance as it relates to section 129 of the CAA. If a material or any portion thereof is a solid waste under RCRA, a combustion unit burning it is required to meet the CAA section 129 emission standards for solid waste incineration units. If the material is not a solid waste, combustion units are required to meet the CAA section 112 emission standards. CAA section 129 further states that the term “solid waste” shall have the meaning “established by the Administrator pursuant to the Solid Waste Disposal Act.” Id at section 7429(g)(6). The Solid Waste Disposal Act, as amended, is commonly referred to as RCRA.

The Agency first solicited comments on how the RCRA definition of solid waste should apply to NHSMs when used as fuels or ingredients in combustion units in an advanced notice of proposed rulemaking (ANPRM), which was published in the Federal Register on January 2, 2009 (74 FR 41). The EPA then published an NHSM proposed rule on June 4, 2010 (75 FR 31844), which the EPA finalized on March 21, 2011 (76 FR 15456).

In the March 21, 2011 rule, the EPA finalized standards and procedures to be used to identify whether NHSMs are solid wastes when used as fuels or ingredients in combustion units. “Secondary material” was defined for the purposes of that rulemaking as any material that is not the primary product of a manufacturing or commercial process, and can include post-consumer material, off-specification commercial chemical products or manufacturing chemical intermediates, post-industrial material, and scrap (codified at 40 CFR 241.2). “Non-hazardous secondary material” is a secondary material that, when discarded, would not be identified as a hazardous waste under 40 CFR part 261 (codified at 40 CFR 241.2). Traditional fuels, including historically managed traditional fuels ( e.g., coal, oil, natural gas) and “alternative” traditional fuels ( e.g., clean cellulosic biomass) are not secondary materials and thus, are not solid wastes under the rule unless discarded (codified at 40 CFR 241.2).

A key concept included in the March 21, 2011 rule is that NHSMs used as non-waste fuels in combustion units must meet the legitimacy criteria specified in 40 CFR 241.3(d)(1). Application of the legitimacy criteria helps ensure that the fuel product is being legitimately and beneficially used and not simply being discarded through combustion. To meet the legitimacy criteria, the NHSM must be managed as a valuable commodity, have a meaningful heating value and be used as a fuel in a combustion unit that recovers energy, and contain contaminants or groups of contaminants at concentration levels comparable to (or lower than) those in traditional fuels which the combustion unit is designed to burn.

Based on these criteria, the March 21, 2011 rule identified the following NHSMs as not being solid wastes:

• The NHSM that meets the legitimacy criteria and is used as a fuel and that remains within the control of the generator (whether at the site of generation or another site the generator has control over) (40 CFR 241.3(b)(1));

• The NHSM that meets the legitimacy criteria and is used as an ingredient in a manufacturing process (whether by the generator or outside the control of the generator (40 CFR 241.3(b)(3));

• Discarded NHSM that has been sufficiently processed to produce a fuel or ingredient that meets the legitimacy criteria (40 CFR 241.3(b)(4)); or

• On a case-by-case petition process, NHSM that has been determined to have been handled outside the control of the generator, has not been discarded and is indistinguishable in all relevant aspects from a fuel product, and meets the legitimacy criteria (40 CFR 241.3(c)).

In 2013, the EPA amended the NHSM rules to “clarify several provisions in order to implement the non-hazardous secondary materials rule as the agency originally intended.”  1 While the 2013 final rule did not contain any provisions specific to creosote-treated wood or CTRT, the EPA noted that AF&PA and the American Wood Council submitted a letter with supporting information on December 6, 2012, seeking a categorical non-waste determination for CTRT combusted in any unit. 2 The EPA discussed at the time that the Agency was reviewing the petition and also asked petitioners to provide additional information regarding CTRT, including industry sectors that burn CTRT; types of combustion units; types of traditional fuels that could otherwise be burned in these combustion units; extent of use of CTRT in non-industrial boilers; and laboratory analyses of CTRT for the contaminants, as defined under 40 CFR 241.2, known to be significant components of creosote, such as polycyclic aromatic hydrocarbons. The EPA also provided notice that, assuming the additional information supported the petitioners' representations, the Agency intended to propose a categorical non-waste fuel determination for CTRT.

On February 8, 2016 (81 FR 6687), the EPA published final NHSM rule amendments that provided a categorical non-waste fuel determination for CTRT that undergo, at a minimum, metal removal and shredding or grinding and are used as fuel in units designed to burn both biomass and fuel oil as part of normal operations and not solely as part of start-up or shut-down operations. 3 In addition, the final rule included a special provision for units at major source pulp and paper mills or power producers subject to 40 CFR part 63, subpart DDDDD that were designed to burn biomass and fuel oil as part of normal operations, but are modified ( e.g., oil delivery mechanisms are removed) in order to use natural gas instead of fuel oil. These units may continue to combust the CTRT as product fuel if the following conditions are met: (A) CTRT must be burned in an existing ( i.e., commenced construction prior to April 14, 2014) stoker, bubbling bed, fluidized bed, or hybrid suspension grate boilers; and (B) CTRT can comprise no more than 40 percent of the fuel that is used on an annual heat input basis.

A similar categorical non-waste fuel determination approach was applied to creosote-borate and mixtures of creosote and certain non-creosote treated railroad ties ( i.e., other treated railroad ties, or OTRT) in the February 7, 2018 NHSM rule amendments. 4

The Agency is responding to a rulemaking petition (“the petition”) requesting amendments to the NHSM regulations, initially promulgated on March 21, 2011, and amended on February 7, 2013, February 8, 2016, and February 7, 2018 under the Resource Conservation and Recovery Act (RCRA).

The petition was received on December 7, 2018; petitioners included American Forest and Paper Association (AF&PA), Association of American Railroads (AAR), Treated Wood Council (TWC), American Short Line and Regional Railroad Association (ASLRRA), and American Wood Council (AWC). The petition requested the following amendments to the NHSM regulations: (1) Change from mandatory to “should consider” the legitimacy criterion for comparison of contaminants in the NHSM to the traditional fuel the unit is designed to burn found at 40 CFR 241.3(d)(1)(iii); (2) remove associated designed to burn and other limitations for creosote-treated railroad ties found at 40 CFR 241.4(a)(7)-(a)(10); and (3) revise the definition of paper recycling residuals (PRR) that can be burned as non-waste found at 40 CFR 241.2 to remove the limit on non-fiber materials.

One outcome that the petitioners seek to achieve with their requested regulatory changes is to expand the national capacity for burning CTRT as non-waste fuel. Creosote was introduced as a wood preservative in the late 1800s to prolong the life of railroad ties. As creosote is a byproduct of coal tar distillation, and coal tar is a by-product of making coke from coal, creosote is considered a derivative of coal. Approximately 17 million railroad ties are removed from service each year in the U.S. After railroad ties are removed from service, they are transferred for sorting/processing. Based on information provided by industry, 5 the processing of the railroad ties into fuel by the reclamation/processing companies involves several steps. Metals (spikes, nails, plates, etc.) are removed using a magnet, once or several times during the process. The railroad ties are then ground or shredded to a specified size depending on the particular needs of the end-use combustor, with chip size typically between 1-2 inches. This step occurs in several phases, including primary and secondary grinding, or in a single phase. Once the railroad ties are ground to a specific size, additional metal is removed if present and there is further screening based on the particular needs of the end-use combustor. Depending on the configuration of the facility and equipment, screening occurs concurrently with grinding or at a subsequent stage. Throughout the process, a non-toxic surfactant may be applied to the railroad ties being processed to minimize dust. Once the processing of CTRT is complete, the CTRT are sold directly to the end-use combustor for energy recovery.

Use of CTRT as an alternative fuel may have the potential to produce various environmental benefits including reducing fossil fuel use, 6 increasing the heat value of the fuel mix and improving the combustion temperature and conditions. 7 Additionally, combusting CTRT provides an alternative to landfill disposal, which studies have shown may reduce methane emissions from anaerobic decay and extend landfill capacity. Even when accounting for energy recovery of the methane generated from landfill disposal of CTRT, the fuel offset from combusting CTRT for energy recovery is estimated to be 20 times greater than energy recovery from landfill gas. 8

However, as noted in the 2011 NHSM final rule, creosote is produced from the process of distillation of coal tar for the purpose of creating a wood preservative, not a fuel, and creosote has different chemical concentrations than coal. In particular, CTRT has elevated levels of hexachlorobenzene, a CAA 112 Hazardous Air Pollutant (HAP), as well as other HAPs, when compared to coal. (76 FR 15483, March 21, 2011). Thus the 2016 NHSM non-waste determination is limited to CTRTs that are used as fuel in specific types of units where CTRTs have contaminants at levels comparable to or lower than the traditional fuel that combustion units are designed to burn.

In addition, the EPA has also recently become aware of reported problems associated with processing CTRT for use as fuel. Grinding CTRT can create dust that may blow onto neighboring properties. Processing CTRT into fuel can also be associated with other, more-generalized issues like excess noise from grinding, loud night-time operations, and the smell of creosote. These issues, combined with public concerns, led the Georgia state legislature to ban the combustion of CTRT for commercial electricity generation in June 2020. 9 The public complaints that prompted this legislative action were associated with two power plants that received modified permits allowing them to combust fuel oil and CTRT in 2018. 10 Since that time, the Georgia Environmental Protection Division received at least 23 complaints related to these combustors at the two plants. 11 About half of these complaints involved the smell of creosote or smoke and air quality concerns; issues associated with dust, excess noise, and runoff were also alleged five times each. Five complaints attributed headaches and burning eyes and airways to the effect of creosote combustion at the plants.

Based on EPA discussions with Georgia Environmental Protection Division, it appears that inefficient boiler operations, particularly during start-up and shut-down operations, (which were subsequently corrected) and CTRT grinding were most likely to blame for the community complaints. 12 Notably, the large majority of complaints were associated with the facility where grinding operations took place. Additionally, the Georgia legislation banning CTRT combustion for commercial energy generation created an exemption for any boiler that “also provides steam or electricity to any co-located forest products processing plant.”  13 This provision was added to the legislation to allow a CTRT-combusting paper mill in southern Georgia to continue its operations because it had not prompted similar citizen complaints. 14

As was done in Georgia, state and local governments have authority under their state solid waste and water programs, as well as local ordinances, to address citizen complaints associated with the management and processing of CTRT prior to their use as a non-waste fuel, including problems associated with dust, excess noise, and runoff. CTRT remain solid waste until processed to produce a non-waste fuel per 40 CFR 241.3(b)(4) and thus remain under such solid waste regulatory authority. In addition, a federal non-waste determination under 40 CFR part 241 does not affect a state's authority to regulate a non-hazardous secondary material as a solid waste under the state's RCRA Subtitle D solid waste management program.

It remains unclear how frequently CTRT processing causes community concerns and how processors and state and local governments have responded. EPA is aware of a handful of cases outside of Georgia in which similar concerns were raised by communities where CTRT grinding takes place, 15 but EPA lacks comprehensive information on the frequency and extent of such issues and challenges. These environmental concerns may impact a material's classification as an NHSM. In order to fulfill the “valuable commodity” legitimacy criterion required of NHSM burned as fuel (40 CFR 241.3(d)(1)(i)), the material must be “managed in a manner consistent with the analogous fuel or otherwise be adequately contained to prevent releases to the environment.” Likewise, when no analogous fuel exists, the material must be “adequately contained so as to prevent releases to the environment. EPA is requesting comment on CTRT processing to help the Agency determine whether it is standard practice to manage CTRT intended for combustion as an NHSM in a manner that fulfills the “valuable commodity” legitimacy criterion by preventing environmental releases.

DoD is proposing to amend the DFARS to implement section 871 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91). Section 871 established new direction at 10 U.S.C. 2322a, Requirement for consideration of certain matters during acquisition of noncommercial computer software. The statute requires that DoD, as part of any negotiation for such software, consider all noncommercial computer software and related materials necessary to meet the needs of the agency. This rule provides direction to DoD both to improve acquisition planning and to identify and negotiate for software deliverables and license rights at a fair and reasonable price before contract award. DoD published an advance notice of proposed rulemaking (ANPR) on January 14, 2020, at 85 FR 2101 and hosted a public meeting on February 18, 2020, to obtain the views of interested parties. DoD accepted public comments through March 16, 2020. Two respondents submitted public comments in response to the ANPR.

DoD is interested in continuing a dialogue with experts and interested parties in Government and the private sector regarding amending the DFARS to implement section 871 of the NDAA for FY 2018, which requires DoD to consider all noncommercial computer software and related materials necessary to meet the needs of the agency.

Registration: Individuals wishing to participate in the virtual meeting must register by February 24, 2022, to facilitate entry to the meeting. Registration for the virtual meeting will be valid also for the additional discussion time, if DoD determines additional time is needed (see the DATES section of this preamble). Interested parties may register for the meeting by sending the following information via email to osd.dfars@mail.mil and include “Public Meeting, DFARS Case 2018-D018” in the subject line of the message:

• Full name.

• Valid email address, which will be used for admittance to the meeting.

• Valid telephone number, which will serve as a secondary connection method. Registrants must provide the telephone number they plan on using to connect to the virtual meeting.

• Company or organization name.

• Whether the individual desires to make a presentation.

Pre-registered individuals will receive instructions for connecting using the Zoom video conferencing software not more than one week before the meeting is scheduled to commence.

Presentations: Presentations will be limited to 5 minutes per company or organization. This limit may be subject to adjustment, depending on the number of entities requesting to present, in order to ensure adequate time for discussion. If you wish to make a presentation, please submit an electronic copy of your presentation via email to osd.dfars@mail.mil no later than the registration date for the specific meeting. Each presentation should be in PowerPoint to facilitate projection during the public meeting and should include the presenter's name, title, organization affiliation, telephone number, and email address on the cover page.

Correspondence, Comments, and Presentations: Please cite “Public Meeting, DFARS Case 2018-D018” in all correspondence related to the public meeting. There will be no transcription at the meeting. The submitted presentations will be the only record of the public meeting and will be posted to the following website at the conclusion of the public meeting: https://www.acq.osd.mil/dpap/dars/technical_data_rights.html.

DoD reviewed the public comments submitted in response to the ANPR in the development of the proposed rule. One respondent provided a comment that indicated concurrence with the rule. A discussion of the remaining comments and the changes made to the rule as a result of those comments are provided as follows:

DFARS 227.7202-1 and 227.7203-2 were clarified in response to public comments. New text was added to DFARS 227.7203-2 to provide additional guidance on assessing life-cycle needs. Several changes were made to terms in the proposed rule as follows:

• The term “related data” was replaced with related recorded information;

• The description of required software libraries was revised to further clarify its scope; and

• The Government's minimum needs in DFARS 227.7103-2(b)(1) and 227.7203-2(b)(1) were clarified.

The proposed definition of data at DFARS 227.001 was deleted. DFARS 227.7203-2(b)(1) was revised to align with the text in DFARS 227.7103-2(b)(1). The definition of restricted rights was revised to permit the Government to make and use a reasonable number of copies of computer software for the purposes described in the contract clauses at DFARS 252.227-7014, Rights in Technical Data—Noncommercial Items, and 252.227-7018, Rights in Noncommercial Technical Data and Computer Software—Small Business Innovation Research (SBIR) Program.

Comment: The respondent expresses concern that the rule addresses functions that are normally performed by program managers, engineers, configuration managers, and other program personnel and places those responsibilities on contracting personnel. The respondent recommends that these requirements would be best addressed within a program's intellectual property (IP) strategy.

Response: DoD acknowledges that the requirements for program personnel are currently addressed in DoD instructions (DoDIs), such as DoDI 5000.87, Operation of the Software Acquisition Pathway, and DoDI 5010.44, Intellectual Property (IP) Acquisition and Licensing. DFARS 227.7203-2(a) currently provides for contracting officers to work closely with program personnel when developing requirements to meet the Government's needs. Currently, DFARS 227.7203-2(b) delineates the responsibilities of data managers in assessing life-cycle needs, and 227.7203-2(c) requires contracting officers to ensure that solicitations and contracts include certain requirements for software deliverables. The rule proposes to revise this language because the statute impacts the direction related to assessments of life-cycle needs, solicitations, and contracts.

Comment: The respondent asserts that the plain language in paragraphs (a) and (b) of 10 U.S.C. 2322a make it clear that Congress intended for the provision to only apply to noncommercial computer software.

Response: Although the statute relates to the acquisition of noncommercial computer software, the statute also discourages reliance on “external or additional computer software or technical data” with no limitations with respect to commerciality. DoD revised DFARS 227.7203-2(c)(6) to clarify that the proposed rule is limited to noncommercial computer software, except in cases where the software relies on additional internal or external commercial computer software or technical data. The proposed rule permits reliance on additional internal or external computer software when such software is commercially available with the necessary license rights. DFARS 227.7202-1 and 227.7203-2 have been revised to address the relationship between noncommercial software and commercial software while maintaining the policies set forth in DFARS 227.7202-1(c).

Comment: The respondent expresses concern that the proposed rule could be interpreted as requiring the contracting officer to acquire all forms of noncommercial computer software in all instances, rather than tailoring acquisitions to meet DoD's actual needs. The respondent recommends an emphasis on the life-cycle needs for a program or system, including software maintenance.

Response: DFARS 227.7203-1(a) provides that DoD may acquire only the computer software and computer software documentation, and the rights in such software or documentation, necessary to satisfy agency needs. This direction remains unchanged. The proposed rule does require the assessment of life-cycle needs to address acquisition of software at appropriate times in the life cycle of a product, program, or system.

Comment: The respondent recommends that the rule consider whether the software was developed at private expense to incentivize investment of private funds into noncommercial software development to meet DoD needs. The respondent also recommends DoD consider alternatives to the delivery of source code and related software design details.

Response: DoD concurs with the comment and revised DFARS 227.7203-2(b)(2)(ii) to include consideration of alternatives to the delivery of source code and related software design details for privately developed noncommercial computer software.

Comment: The respondent states that the proposed DFARS 227.7203-2 should not refer to “necessary” or “associated” license rights when discussing the need to acquire specific types of software. There is a risk that this could be misinterpreted as requiring a separate licensing scheme that is not subject to the existing noncommercial software licensing policies in DFARS 227.7203-1.

Response: Existing policies in DFARS 227.7203-1 and 227.7203-2 address these concerns. Contracting officers must ensure consistency with DFARS 227.7203-1(c), which prohibits a contractor from being required to sell or relinquish to DoD greater rights than required under DFARS 227.7203-5(a)(3) through (6).

Comment: The respondent states a concern that the proposed new definition for data is not needed to implement 10 U.S.C. 2322a and would ultimately cause confusion within the acquisition workforce. The respondent also expresses concerns about the new term “related data” and recommends “related computer software documentation” instead.

Response: DoD concurs and has removed the definition of data from the proposed rule. To avoid confusion about the scope of the term “related data” and better align with the broader scope of the term “related materials” in 10 U.S.C. 2322a, “related data” has been changed to “related recorded information,” which is more consistent with 10 U.S.C. 2302(4) and existing DFARS terminology.

Comment: The respondent asserts that DFARS 227.7203-2 should use terminology used in other acquisition documents, such as those contained in a Data Item Description (DID). The respondent expresses concerns with the terms “required software libraries” and “software revision history.”

Response: The term “required software libraries” is intended to implement the term “required libraries” in 10 U.S.C. 2322a. DFARS 227.7203-2(b)(2)(i) and 227.7203-2(c)(6)(ii) have been revised to include examples of required software libraries. The term “software revision history” has been changed to “software version history” consistent with the term “software version” used in the “Software Version Description” DID, DI-IPSC-81442A.

Comment: The respondent recommends that a parenthetical should be added to ensure the policy change of DFARS 239.101 is only used where there is a written determination by the “head of the contracting authority.”

Response: DFARS 239.101(1) currently requires a written determination by the head of the contracting activity.

Comment: Although the respondent acknowledges that this recommendation is not within the scope of implementing 10 U.S.C. 2322a, the respondent recommends that DoD's future rulemaking address the specific Government-industry recommendations included in the 2018 Report submitted by the Government-Industry Advisory Panel on Technical Data Rights (the “Section 813 Panel Final Report”).

Response: To the extent that such recommendations align with other proposed revisions made to implement 10 U.S.C. 2322a, DoD considered recommendations in the Section 813 Panel Final Report. DoD is proposing various DFARS revisions that adopt recommendations made in the Section 813 Panel Final Report.

DFARS 227.7100 and 227.7200 were revised to remove a reference to 10 U.S.C. 2325 that was revoked in 1994 (Pub. L. 103-355) and to correct the citation to Executive Order 12591. DFARS 227.7100 and 227.7200 were also revised to emphasize the importance of assessing life-cycle needs.

DFARS 227.7203-2(b)(2)(i)(B) through (D) were revised to be consistent with acquisition policies in section 3.2 of DoDI 5000.87, which is closely aligned with the subject matter of this case. DFARS 227.7203-2(c)(6) was also revised to clarify the contracting officer's responsibilities with respect to this section. DFARS 237.102 was revised to add references to 227.7202 and 227.7203, emphasizing the need to consider this guidance in service contracts.

The definition of technical data in the contract clauses at DFARS 252.227-7013, 252.227-7015, and 252.227-7018 has been revised to clarify the types of information excluded from the definition in 10 U.S.C. 2302.

This proposed rule does not create any new solicitation provisions or contract clauses. It does not change the applicability of any existing provisions or clauses included in solicitations and contracts valued at or below the simplified acquisition threshold or for commercial items, including commercially available off-the-shelf items.

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

As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will send a copy of the interim or final rule and the “Submission of Federal Rules Under the Congressional Review Act” form to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the Federal Register . This rule is not anticipated to be a major rule under 5 U.S.C. 804.

DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the statutory requirements are directed at the internal processes of the Government rather than contractors. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

DoD is proposing to implement section 871 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91). Section 871 established new direction at 10 U.S.C. 2322a, Requirement for consideration of certain matters during acquisition of noncommercial computer software. The statute requires that DoD, as part of any negotiation for such software, consider all noncommercial computer software and related materials necessary to meet the needs of the agency.

The objective of the rule is to ensure that the Government identifies and acquires all software necessary to meet its needs at appropriate times in the life cycle of a product, program, or system. The legal basis for the rule is section 871 of the NDAA for FY 2018.

The rule may impact small entities that are awarded DoD contracts for noncommercial computer software, to include contracts under the Small Business Innovation Research and Technology Transfer Programs. Based on data from the Federal Procurement Data System (FPDS) and the Electronic Data Access (EDA) for FY 2019 through FY 2020, DoD estimates that an average of 6,263 unique small entities are awarded an average of 30,146 contract actions for noncommercial software annually.

This proposed rule does not impose any new reporting, recordkeeping or other compliance requirements.

This proposed rule does not duplicate, overlap, or conflict with any other Federal rules.

There are no known alternatives which would accomplish the stated objectives of the applicable statute.

DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2018-D018), in correspondence.

Although the Paperwork Reduction Act (44 U.S.C. chapter 35) applies to this rule, these changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved under Office of Management and Budget (OMB) Control Number 0704-0369, entitled “DFARS Subpart 227.71, Rights in Technical Data; and Subpart 227.72, Rights in Computer Software and Computer Software Documentation, and related provisions and clauses.”

Therefore, 48 CFR parts 227, 237, 239, and 252 are proposed to be amended as follows:

The revisions and addition read as follows: