The poultry products inspection regulations require that carcasses of poultry affected with any one or more of the several forms of the avian visceral leukosis complex be condemned (9 CFR 381.82). On March 1, 2019, FSIS received a petition from the National Chicken Council (NCC) https://www.fsis.usda.gov/wps/wcm/connect/85ae4905-fcc3-4f76-9586-f158f2618c41/19-01-Petition-National-Chicken-Council-03012019.pdf?MOD=AJPERES requesting that the Agency amend the regulations to designate avian leukosis as a trimmable condition rather than a condition that requires condemnation of the entire carcass. The petition also requests that FSIS rescind the regulations at 9 CFR 381.36(f)(3) that require young chicken establishments operating under the NPIS to provide a location at a point along the production line to permit an FSIS inspector to inspect for leukosis the first 300 carcasses of each flock, together with their corresponding viscera. In addition, the petition requests that FSIS rescind the regulations at 9 CFR 381.76(b)(6)(iv) that prescribe the 300-bird leukosis inspection procedure under the NPIS. The petition asserts that the current regulations related to leukosis are based on an outdated understanding of this poultry disease, impose unnecessary costs on industry, and present a potential barrier to young chicken establishments that may want to convert to NPIS. 1

To determine its response to the petition, the Agency evaluated the available scientific information on avian leukosis and reviewed the original basis for the regulations requiring condemnation of young chicken carcasses affected with avian leukosis. Based on this evaluation, FSIS concluded that there is scientific support for treating avian leukosis as a trimmable condition under 9 CFR 381.87 in all poultry establishments operating under FSIS' mandatory and voluntary inspection. Therefore, on July 16, 2020, FSIS issued a response granting the NCC petition, stating that FSIS has “determined that current scientific evidence supports treating avian leukosis as a trimmable condition and that the actions requested in your petition would reduce regulatory burdens on the industry.”

Avian Leukosis Complex (also referred to as avian leukosis) is a rare condition in chickens that includes three virally-induced, tumor-causing diseases, none of which are transmissible to humans. 2 Avian Leukosis Complex may also be referred to as avian oncogenic viruses. The three characterized diseases are Marek's Disease, Lymphoid Leukosis, and Reticuloendotheliosis. 3 The most common of the avian oncogenic viruses is Marek's Disease caused by Marek's Disease Virus (MDV), a DNA herpesvirus that is ubiquitous in the environment. 4 Lymphoid Leukosis, caused by the Avian Leukosis Virus (ALV), an RNA retrovirus, is the second most common disease of the avian oncogenic viruses. 5 Reticuloendotheliosis also a RNA retrovirus is the third of the avian oncogenic viruses. 6 Additionally, avian visceral leukosis is a rare manifestation of the viral disease leukosis in young chickens, and also not transmissible to humans. Also, if visceral leukosis does occur in young chickens it usually occurs on a flock basis.

Although avian leukosis does not present a human health concern, the poultry post-mortem inspection regulations cited above currently require the condemnation of carcasses affected with leukosis because the condition had historically rendered carcasses unwholesome or otherwise unfit for human food, and thus adulterated under the Poultry Products Inspection Act (PPIA; 21 U.S.C. 453(g)(3)). The current regulations at 9 CFR 381.82 require condemnation of the entire carcass and corresponding viscera if one or more lesions consistent with avian leukosis are observed on the viscera or carcass. Significantly, avian leukosis is the only condemnable disease in which lesions may develop on the viscera without necessarily manifesting itself on other parts of the carcass.

When the post-mortem avian leukosis inspection regulations were enacted, avian oncogenic (tumor-causing) viruses were a major cause of mortality to the poultry industry and birds affected with these viruses were covered in tumors and often paralyzed. Thus, the carcasses of these birds were considered unwholesome due to the extent of disease progression. However, because it is now common commercial practice to vaccinate each chicken flock for Marek's Disease and to breed leukosis-resistant birds, the occurrence of the condition described above is rare. As FSIS explained in the proposed rule “Modernization of Poultry Slaughter Inspection,” nationwide data from 1984 revealed that all forms of leukosis (skin, visceral, other viral leukoses) resulted in the condemnation of 0.017 percent of the approximately 7.4 billion young chickens slaughtered (77 FR 4408, 4422). While it is possible for a vaccinated bird to develop Marek's Disease, especially if the virus is highly virulent, the presentation of the disease is usually restricted to a few enlarged feather follicles, possibly a few lymphoid tumors on an organ, or an enlarged spleen. These are localized lesions that do not affect other parts of the carcass. In addition, these types of lesions are not specific to Marek's Disease, and the diagnosis cannot be confirmed by further testing because all birds that have been vaccinated will test positive for the disease. Since all birds are vaccinated for MDV with a modified-live vaccine, the virus is present in the tissues regardless of the presence of lesions. Thus, a positive test result for Marek's Disease is not necessarily an indicator of a diseased state that would render the carcass unwholesome.

The first evidence of Avian Leukosis and its viral etiology in poultry was documented in 1908. 7 At the time, viral oncology was a foreign concept and not much research progressed until the 1920s through the 1940s. During this time, the avian oncogenic viruses (still an unknown etiology, other than an unidentified virus) became a major cause of mortality to the expanding poultry industry, especially with the poultry industry shifting from low-density, low-producing backyard flocks to high-density, high-producing farms. 8 The birds infected with any of the avian oncogenic viruses were unhealthy, covered in tumors, and often paralyzed. The United States, as well as other groups across the world, started devoting more resources into researching the cause of the avian oncogenic viruses. 9

The research on the avian oncogenic viruses proliferated during the 1950s and 1960s; however, the exact etiology was still unknown at the time the PPIA was passed. Thus, when the regulations implementing the PPIA were promulgated, the presence of Avian Leukosis deemed a whole carcass condemnable, based on the typical extent of disease progression at that time. However, as discussed above, because of current commercial practices, Avian Leukosis is now rare and, if present, is usually restricted to a few localized lesions such as enlarged feather follicles, possibly a few lymphoid tumors on an organ, or an enlarged spleen, which do not render other parts of the carcass unwholesome or unfit for human food.

In August 2014, FSIS published the final rule that established the NPIS and required FSIS to inspect the first 300-birds from each flock of young chickens to determine whether leukosis is present in the flock (79 FR 49566, 49586). The preamble to the final rule noted that leukosis does not present a human health concern; however, under the final rule FSIS continued to require condemnation of the entire carcass of birds affected by visceral leukosis under the NPIS and other inspection systems, based on the past determination that the disease rendered poultry unsound or otherwise unfit for human food.

In response to a waiver request, FSIS conducted an evaluation on issues associated with avian leukosis in young chickens. The results of the evaluation show that avian leukosis does not present a human health concern. The literature review  10 found that while several studies confirmed the presence of antibodies to MDV, Avian Lymphoid Leukosis, and Reticuloendotheliosis viruses in people working in poultry slaughter and processing establishments, there have been no indications that these poultry diseases are involved in human disease, including cancer or Multiple Sclerosis. Furthermore, experimental laboratory studies have been unable to establish that any of the avian oncogenic viruses have the ability to infect and replicate in mammalian cells, including humans. 11

This recent research is consistent with findings extending back into the 1950's that assessed the public health risk of the three oncogenic viruses that occur in United States poultry. 12 The majority of research examined the public health risk of MDV because this virus is ubiquitous in the poultry farm environment and the vaccine for MDV is a modified live vaccine. A modified live vaccine of the MDV herpesvirus means that the virus infiltrates the cells and is persistently present in all cells of the bird. Everyone who raises, slaughters, processes, or eats chicken is exposed to the virus in the vaccine, regardless of the presence of any lesions. This level of profound exposure enabled researchers to conduct numerous epidemiological studies to assess the association between human disease and MDV. An extensive literature review on the public health impact related to MDV exposure performed in 1986 concluded that “[t]he large body of experimental evidence in both avian and human virology, serology, pathology, and epidemiology strongly supports the conclusion that no etiologic relationship exists between avian herpesviruses and human cancer.”  13 Additional studies after 1986 demonstrated the presence of antibodies against MDV in human populations, especially populations that are heavily exposed to MDV in poultry. 14 However, seroconversion, which is “the development of detectable antibodies in the blood that are directed against an infectious agent“, 15 is not a remarkable finding alone and is not unexpected considering the high prevalence of MDV in the environment. The presence of antibodies does not prove a causal relationship between the virus and human disease. 16

Under the NPIS, carcasses are presented to the online inspector after the carcasses have been sorted, washed, and trimmed by establishment employees. The carcasses are presented to the online inspector without the corresponding viscera because all poultry diseases and conditions, except for avian visceral leukosis, are readily identified by observing the carcass alone. To address avian visceral leukosis under the NPIS, an offline inspector observes the viscera of the first 300 birds slaughtered from each young chicken flock to determine whether the disease is present in the flock. As noted above, it is common commercial practice to vaccinate each chicken flock for Marek's Disease. On rare occasions, the vaccine is not effective. If the vaccine is not effective, visceral leukosis will be present on a flock basis. In the rare event that the disease is present, FSIS will adjust the NPIS inspection procedures and slow the line to inspect each carcass with its corresponding viscera and, if one or more lesions consistent with leukosis are observed in the viscera, the entire carcass must be condemned. However, if FSIS rescinds the regulations that require condemnation of carcasses affected by the avian leukosis complex, the 300-bird leukosis check for NPIS young chicken establishments would no longer be necessary because the carcasses of birds with leukosis lesions on their viscera would not be considered adulterated and any tumors present on the carcass, regardless of the cause, would be trimmed and removed by establishment employees before the carcass is presented to the FSIS online inspector.

Currently, under traditional inspection, FSIS inspection personnel perform inspection on each carcass and condemn carcasses affected by the avian leukosis complex. Under the proposed regulations in establishments under traditional inspection, after identifying lesions on young chicken viscera or carcasses, FSIS inspection personnel would direct establishment employees to trim and remove any tumors present on carcasses. If the disease has metastasized or if the entire carcass is otherwise affected, FSIS inspection personnel would condemn the entire carcass.

FSIS is proposing to rescind 9 CFR 381.82, the regulation that requires condemnation of poultry carcasses affected with one or more of the forms of the avian leukosis complex. Under the proposed rule, carcasses affected with avian leukosis would be addressed by 9 CFR 381.87, which provides that any organ or other carcass part affected with tumors may be trimmed and that the unaffected parts of the carcass may be inspected and passed. FSIS is also proposing to rescind 9 CFR 381.36(f)(3), the regulation that requires NPIS young chicken establishments to provide a leukosis inspection area along the slaughter line, as well as 9 CFR 381.76(b)(6)(iv), the regulation that prescribes inspection procedures for avian visceral leukosis in NPIS young chicken establishments. These regulations do not apply to turkey establishments operating under the NPIS because avian visceral leukosis is extremely rare in turkeys.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been designated as a “non-significant” regulatory action under section 3(f) of E.O. 12866. Accordingly, the proposed rule has not been reviewed by the Office of Management and Budget under E.O. 12866.

This proposed rule would benefit young chicken slaughter establishments by decreasing the number of carcasses condemned for leukosis. An average of 62,445 young chicken carcasses, which represents less than 0.01 percent of total young chickens slaughtered, 17 are condemned every year for leukosis, based on Agency data from 2015 to 2019. 18 Based on data from the NCC and the USDA Economic Research Service, the average market weight of a young chicken is 6.21 pounds  19 and the wholesale price is 0.91 cents per pound. 20 As such, these chickens would have a wholesale value of roughly $352,883 per year. Allowing establishments to address leukosis by trimming affected areas, rather than condemning the entire carcass, would result in industry cost savings of approximately $352,883 per year.

This proposed rule would also remove a potential barrier for young chicken establishments that want to convert to the NPIS by eliminating the need to reconfigure lines and make other changes to provide an inspection area for FSIS to conduct the 300-bird leukosis check. Converting to NPIS would benefit these establishments because they would have more flexibility to design and implement production measures tailored to their operations. The proposed rule would also reduce production costs for NPIS young chicken establishments by removing the inefficiencies associated with the current 300-bird leukosis checks, such as slowing the line if a leukosis positive flock is identified. Eliminating the 300-bird leukosis checks would also allow FSIS to shift inspection resources currently required for performing leukosis checks to other offline activities ensuring food safety.

This proposed rule is deregulatory and is not expected to result in additional costs to industry, consumers, or FSIS.

The FSIS Administrator has made a preliminary determination that this proposed rule would not have a significant economic impact on a substantial number of small entities in the United States, as defined by the Regulatory Flexibility Act (5 U.S.C. 601). FSIS does not expect this proposed rule to result in costs to small entities because only large and high-volume establishments are expected to operate under NPIS and need to hire and train additional employees to sort and trim carcasses. In non-NPIS establishments, FSIS inspectors would continue to direct establishment employees to trim localized defects. If finalized, FSIS expects that this proposed rule would lead to minimal cost savings across the industry. In 2018, total poultry industry revenue was estimated at $65.2 billion, 21 as such, the estimated cost savings of $352,883 would be less than .01 percent of industry revenue and would be considered an insignificant economic impact.

From 2015 to 2019, about 28 percent of the establishments that had poultry carcasses condemned for leukosis were classified as Hazard Analysis and Critical Control Point (HACCP) size small and about 15 percent were HACCP size very small. 22 Small and very small poultry establishments would benefit from the expected cost savings associated with trimming, if this proposed rule is finalized.

There are no paperwork or recordkeeping requirements associated with this proposed rule under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

FSIS and USDA are committed to achieving the purposes of the E-Government Act (44 U.S.C. 3601, et seq. ) by, among other things, promoting the use of the internet and other information technologies and providing increased opportunities for citizen access to Government information and services, and for other purposes.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under this rule: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) no administrative proceedings will be required before parties may file suit in court challenging this rule.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” E.O. 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

FSIS has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under E.O.13175. If a Tribe requests consultation, FSIS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information ( e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: (1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) email: program.intake@usda.gov.

USDA is an equal opportunity provider, employer, and lender.

Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS web page located at: https://www.fsis.usda.gov/federal-register.

FSIS will also announce and provide a link to it through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Constituent Update is available on the FSIS web page. Through the web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: https://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves and have the option to password protect their accounts.

For the reasons set forth in the preamble, FSIS is proposing to amend 9 CFR part 381 as follows:

Pursuant to the Energy Policy and Conservation Act (42 U.S.C. 6291 et seq. ), DOE must periodically review its energy conservation standards for covered consumer products and certain industrial equipment, including VRF multi-split systems ( see specifically 42 U.S.C. 6313(a)(6)(A)-(C)). DOE initiated a review of its existing standards for VRF multi-split systems through a notice of data availability and request for information (“NODA/RFI”) published in the Federal Register on July 8, 2019 (“2019 VRF NODA/RFI”). 84 FR 32328. The 2022 VRF NOPR was issued (signed) on February 9, 2022, see 87 FR 11335, 11354 (noting the document's signature date), after which DOE forwarded it to the Office of the Federal Register on February 10, 2022, for publication, and then the Office of the Federal Register placed it for public inspection on February 28, 2022, before ultimately publishing it in the Federal Register on March 1, 2022. 87 FR 11335.

In the 2022 VRF NOPR, DOE explained that because it lacks clear and convincing evidence to support adoption of standard levels more stringent than those contained in the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (“ASHRAE”) Standard 90.1, 1 the Department is proposing to adopt the ASHRAE levels, as required by statute. DOE concluded that it did not need to prepare an emissions analysis or monetization of emissions for this rulemaking in order to support the adoption of the ASHRAE levels.

In this NOPR, DOE also responded to a number of public comments submitted on the 2019 VRF NODA/RFI. One such comment was submitted by the Institute for Policy Integrity at New York University (“NYU”) School of Law (hereafter “Policy Integrity”), in which it commented that DOE should monetize the full benefits of emissions reductions and use the global estimate of the social cost of greenhouse gases (“GHG”). In responding to that comment, in the 2022 VRF NOPR, DOE noted generally DOE's practice to that point had been to use the social cost of greenhouse gases from the most recent update of the United States Government's Interagency Working Group (“IWG”) on Social Cost of Greenhouse Gases, which recommends global values be used for regulatory analysis, when DOE analyzes efficiency levels ( i.e., referencing its then-current practice). DOE continued its response by stating: “Because DOE is not conducting an economic analysis of levels more stringent than the ASHRAE Standard 90.1 levels in this notice, there is no corresponding consideration of emission reductions or the associated monetary benefits. As DOE is required by EPCA to adopt the levels set forth in ASHRAE Standard 90.1, DOE did not conduct an economic analysis or corresponding emissions analysis for the levels in ASHRAE Standard 90.1-2019.” 87 FR 11335, 11348.

The purpose of DOE's discussion of the IWG was simply to explain in the context of responding to Policy Integrity's comment how, at the time of the signing of the 2022 VFR NOPR (namely, on February 9, 2022), DOE routinely analyzed emissions reductions in those circumstances where DOE was analyzing efficiency levels more stringent than those contained in ASHRAE Standard 90.1. But, as noted, DOE's 2022 VRF NOPR simply made clear DOE's position that because the Department is proposing to adopt the standard levels in ASHRAE Standard 90.1, no emissions analysis or related monetization of emissions was being performed for this proposed rulemaking. Consequently, Policy Integrity's comment recommending how to appropriately monetize GHG emissions had no direct application or other effect in this proposed rulemaking.

The previous excerpt from the 2022 VRF NOPR was an accurate statement at the time the document was signed. After that document was signed and transmitted to the Federal Register , but before publication in the Federal Register , however, the U.S. District Court for the Western District of Louisiana in Louisiana v. Biden, No. 21-cv-1074-JDC-KK (Feb. 11, 2022) issued a preliminary injunction enjoining Federal agencies from utilizing the social cost of greenhouse gases values developed by the IWG for monetization of emissions impacts. Since that preliminary injunction was issued, out of an abundance of caution, DOE has ceased using greenhouse gas emissions monetization across its rulemakings. To avoid confusion, DOE concludes that clarification of the 2022 VRF NOPR comment response may therefore be necessary.

As stated in the 2022 VRF NOPR, DOE has not conducted any monetization of emission reduction in this rulemaking. Should circumstances arise in this or other rulemaking records where DOE would need to analyze standards more stringent than the levels in ASHRAE Standard 90.1, DOE acknowledges that any such analysis necessarily would comply with the prohibitions of the injunction issued in Louisiana v. Biden as long as that injunction remains in effect.

Accordingly, DOE clarifies its comment response in the 2022 VRF NOPR by noting that DOE is adhering to the prohibitions in the preliminary injunction issued on February 11, 2022, in Louisiana v. Biden, and reiterates that DOE did not monetize the benefits of reducing greenhouse gas emissions as part of the 2022 VRF NOPR. This clarification does not affect any of the proposed energy conservation standards, related analyses, and tentative conclusions contained in the 2022 VRF NOPR.

As published, a response to a comment in the 2022 VRF NOPR may result in ambiguity or confusion as to DOE's compliance with the preliminary injunction issued on February 11, 2022, in Louisiana v. Biden. Because this document simply clarifies the response to a public comment without making any substantive changes to the proposed energy conservation standards or related analyses, DOE finds that there is good cause under 5 U.S.C. 553(b)(B) to not issue prior notice to solicit public comment on the changes contained in this document. Issuing a separate document to solicit public comment would be unnecessary and contrary to the public interest.

DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the 2022 VRF NOPR remain unchanged for this proposed rule technical clarification. These determinations are set forth in the 2022 VRF NOPR. 87 FR 11335, 11349-11352.

This document of the Department of Energy was signed on March 9, 2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0153; Project Identifier MCAI-2021-01051-A” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Doug Rudolph, Aviation Safety Engineer, FAA, General Aviation & Rotorcraft Section, International Validation Branch, 901 Locust, Room 301, Kansas City, MO 64106. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2016-26-08, Amendment 39-18766 (82 FR 10859, February 16, 2017) (AD 2016-26-08) for all Pilatus Aircraft Ltd. Model PC-12, PC-12/45, PC-12/47, and PC-12/47E airplanes. AD 2016-26-08 was prompted by MCAI originated by EASA, which is the Technical Agent for the Member States of the European Union. EASA issued EASA AD 2016-0083, dated April 28, 2016, to require new maintenance tasks for the MLG attachment bolts and replacement of each MLG attachment bolt before exceeding its life limit.

AD 2016-26-08 requires incorporating revisions into the ALS of the existing FAA-approved maintenance program and inspecting the MLG attachment bolts for cracks and corrosion. The FAA issued AD 2016-26-08 to ensure the continued operational safety of the affected airplanes.

Since the FAA issued AD 2016-26-08, Pilatus received reports of failure of MLG actuator bottom attachment bolts, part number (P/N) 532.10.12.218, identified with “VLG” on the bolt head. These parts are from a specific vendor and are subject to hydrogen embrittlement. Accordingly, EASA superseded EASA AD 2016-0083, dated April 28, 2016, and issued EASA AD 2021-0005, dated January 7, 2021, to require a new 5 year life limit for the MLG actuator bottom attachment bolt identified with “VLG.”.

Pilatus subsequently added new life limits for the rudder bellcrank. As a result, EASA superseded its AD again and issued EASA AD 2021-0214, dated September 17, 2021 (the MCAI). The MCAI states:

You may examine the MCAI at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0153.

The FAA reviewed the following revisions, which contain the new life limit for certain MLG actuator bottom attachment bolts and new life limits for the rudder bellcrank.

• Pilatus PC-12, PC-12/45 and PC-12/47 Structural, Component and Miscellaneous Limitations-AMM Document No. 02049, Airworthiness Limitations, 12-A-04-00-00-00A-000A-A, Revision 41, dated July 5, 2021;

• Pilatus PC-12/47E Structural, Component and Miscellaneous Limitations-AMM Document No. 2300, Airworthiness Limitations, 12-B-04-00-00-00A-000A-A, Issue 01, Revision 25, dated July 8, 2021; and

• Pilatus PC-12/47E Structural, Component and Miscellaneous Limitations-AMM Document No. 02436, Airworthiness Limitations, 12-C-04-00-00-00A-000A-A, Issue 01, Revision 03, dated July 8, 2021.

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

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This proposed AD would not retain any of the actions of AD 2016-26-08. Instead, this proposed AD would require incorporating new revisions into the ALS of the existing AMM or the FAA-approved ICA. This AD would allow the owner/operator (pilot) to incorporate these revisions. Revising an AMM is not considered a maintenance action and may be done by a pilot holding at least a private pilot certificate. This proposed action would need to be recorded in the airplane's maintenance records to show compliance with this proposed AD.

The FAA estimates that this AD, if adopted as proposed, would affect 1,030 airplanes of U.S. registry. The FAA also estimates that it would take 1 work-hour per airplane to incorporate the revised ALS into the AMM or ICA. The average labor rate is $85 per work-hour.

Based on these figures, the FAA estimates the cost on U.S. operators to be $87,550 or $85 per airplane.

In addition, the FAA estimates that replacing a MLG actuator bottom attachment bolt, if necessary, would take 1 work-hour and would require parts costing $2,140 for a cost of $2,225 per airplane.

Replacing the rudder bellcrank, if necessary, would take 3 work-hours and would require parts costing $550 for a cost of $805 per airplane.

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

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

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

For the reasons discussed above, I certify that the proposed regulation:

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

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System (NAS) by lessening the dependency on ground based navigation.

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-2022-0173; Airspace Docket No. 19-AAL-59) 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-2022-0173; Airspace Docket No. 19-AAL-59.” 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 St., 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.

In 2003, Congress enacted the Vision 100—Century of Aviation Reauthorization Act (Pub. L., 108-176), which established a joint planning and development office in the FAA to manage the work related to the Next Generation Air Transportation System (NextGen). Today, NextGen is an ongoing FAA-led modernization of the nation's air transportation system to make flying safer, more efficient, and more predictable.

In support of NextGen, this proposal is part of a larger and comprehensive T-route modernization project in the state of Alaska. The project mission statement states: “To modernize Alaska's Air Traffic Service route structure using satellite based navigation Development of new T-routes and optimization of existing T-routes will enhance safety, increase efficiency and access, and will provide enroute continuity that is not subject to the restrictions associated with ground based airway navigation.” As part of this project, the FAA evaluated the existing Colored airway structure for: (a) Direct replacement ( i.e., overlay) with a T-route that offers a similar or lower Minimum Enroute Altitude (MEA) or Global Navigation Satellite System Minimum Enroute Altitude (GNSS MEA); (b) the replacement of the Colored airway with a T-route in an optimized but similar geographic area, while retaining similar or lower MEA; or (c) removal with no route structure (T-route) restored in that area because the value was determined to be insignificant.

The aviation industry/users have indicated a desire for the FAA to transition the Alaskan enroute navigation structure away from dependency on Non-Directional Beacons (NDB), and move to develop and improve the RNAV route structure. Due to Cape Newenham, AK, (EHM) NDB being on the list for decommissioning, the FAA proposes to amend RNAV route T-223 by replacing EHM with the ZIKNI, AK, waypoint (WP). The proposal would also remove the NONDA, AK, Fix from the legal description since it is not a turn point along the route.

The FAA is proposing an amendment to 14 CFR part 71 to amend RNAV route T-223 in the vicinity of Cape Newenham, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. The proposed route is described below.

T-223: The FAA proposes to amend T-223 by replacing the navigation point EHM with newly established ZIKNI, AK WP. Additionally the NONDA, AK, Fix will not be included in the legal description due to it not being a turn point along the route. The rest of the route will remain unchanged.

United States Area Navigation Routes are published in paragraph 6011 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 RNAV route 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:

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 (NAS).

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-2022-0120; Airspace Docket No. 22-AAL-15) 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-2022-0120; Airspace Docket No. 22-AAL-15.” 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 Operations Support Group, Western Service Center, Federal Aviation Administration, 2200 South 216th St., 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.

The aviation industry/users have indicated a desire for the FAA to transition the Alaskan en route navigation structure away from the dependency on NDBs. The advances in technology have allowed for alternate navigation methods to support decommissioning of high cost ground navigation equipment. The FAA has included Sumner Strait NDB in the vicinity of Level Island, AK on the schedule to be decommissioned. A non-rulemaking study was conducted in 2021 and the FAA received no objections to the removal of the NDB.

Colored Federal airway R-51 is dependent upon SQM and will result in the airway being unusable once the decommissioning occurs. The FAA proposes to revoke R-51 as a result.

The FAA is proposing an amendment to 14 CFR part 71 to revoke Colored Federal airway R-51 due to the decommissioning of SQM in the vicinity of Level Island, AK.

R-51: R-51 currently navigates between the Sumner Strait, AK, NDB and the Sitka, AK, NDB. The FAA proposes to revoke the route in its entirety.

Colored Federal airways are published in paragraph 6009(b) 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 Colored 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:

The Carolina Virginia Racing Association of Newport News, VA, notified the Coast Guard that it will be conducting the Sharptown Regatta from 10 a.m. to 5 p.m. on May 14, 2022 and those same hours on May 15, 2022. The high-speed power boat racing event consists of approximately 100 participating racing boats—including hydroplanes and runabouts of various classes—9 to 12 feet in length. The vessels will be competing in a counter-clockwise direction along a marked approximately 1-mile long course located on the Nanticoke River, adjacent to the Cherry Beach Park and Boat Ramp at Sharptown, MD. In addition, a non-race day of practice and testing will be conducted in the waterway from noon to 5 p.m. on May 13, 2022. Event planners have stated they will not have any spectators areas identified on the water for this 3-day event. Hazards from the power boat racing event include risks of injury or death resulting from near or actual contact among participant vessels and waterway users if normal vessel traffic were to interfere with the event. Additionally, such hazards include participants operating within designated navigation channels, as well as operating near approaches to a local public boat ramps, public recreation and fishing areas, and waterfront businesses and residences. The COTP Maryland-National Capital Region has determined that potential hazards associated with the power boat races would be a safety concern for anyone intending to participate in this event and for vessels that operate within specified waters of the Nanticoke River.

The purpose of this rulemaking is to protect event participants, non-participants and transiting vessels before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70041.

The COTP Maryland-National Capital Region is proposing to establish special local regulation from 11 a.m. on May 13, 2022, through 6 p.m. on May 15, 2022. The regulations would be enforced from 11 a.m. to 6 p.m. on May 13, 2022, from 9 a.m. to 6 p.m. on May 14, 2022, and from 9 a.m. to 6 p.m. on May 15, 2022. The regulated area would cover all navigable waters of the Nanticoke River within an area bounded by a line connecting the following points: From the shoreline downriver from the Maryland S.R. 313 (Sharptown Road) Highway Bridge, at position latitude 38°32′42″ N, longitude 075°43′19″ W, thence southeast across the Nanticoke River to the shoreline at latitude 38°32′38″ N, longitude 075°43′12″ W, thence north and east along the shoreline to latitude 38°33′08″ N, longitude 075°42′33″ W, thence northwest across the Nanticoke River to the shoreline at latitude 38°33′13″ N, longitude 075°42′42″ W, thence south and west along the shoreline to and terminating at the point of origin. The regulated area is approximately 1,500 yards in length and 300 yards in width.

This proposed rule provides additional information about areas within the regulated area, their definitions, and the restrictions that would apply to mariners. These areas include “Race Area,” “Buffer Area,” and “Milling Area.”

The proposed duration of the special local regulation and size of the regulated area is intended to ensure the safety of life on these navigable waters before, during, and after the high-speed power boat racing event, scheduled to take place from noon to 5 p.m. on May 13, 2022, from 10 a.m. to 5 p.m. on May 14, 2022, and, from 10 a.m. to 5 p.m. on May 15, 2022. The COTP and the Coast Guard Event PATCOM would have authority to forbid and control the movement of all vessels and persons, including event participants, in the regulated area. When hailed or signaled by an official patrol, a vessel or person in the regulated area would be required to immediately comply with the directions given by the COTP or Event PATCOM. If a person or vessel fails to follow such directions, the Coast Guard may expel them from the area, issue them a citation for failure to comply, or both.

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

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

The regulatory text we are proposing appears at the end of this document.

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

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

This regulatory action determination is based on the size and duration of the regulated area, which would impact a small designated area of the Nanticoke River for 25 total enforcement hours. This waterway supports tug and barge traffic year round and recreational vessel traffic, which at its peak, occurs during the summer season. Although this regulated area extends across the entire width of the waterway, the rule would allow vessels and persons to seek permission to enter the regulated area, and vessel traffic able to do so safely would be able to transit the regulated area as instructed by the Event PATCOM. Such vessels must operate at safe speed that minimizes wake and not loiter within the navigable channel while within the regulated area. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area.

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

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

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area for 25 total enforcement hours. Normally such actions are categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2022-0122 in the “SEARCH” box and click “SEARCH.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 100 as follows:

Invitation to Comment: We invite you to submit comments regarding the proposed priorities, requirements, definitions, and selection criteria. To ensure that your comments have maximum effect in developing the notice of final priorities, requirements, definitions, and selection criteria, we urge you to clearly identify the specific section of the proposed priority, requirement, definition, or selection criteria 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 these proposed priorities, requirements, definitions, and selection criteria. 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, definitions, and selection criteria 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, definitions, and selection criteria. 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 Programs: SE Grants, CMO Grants, and Developer Grants are three of six CSP grant programs that support various activities critical to the successful creation and implementation of charter schools. The major purposes of the CSP are to expand opportunities for all students, particularly traditionally underserved students, to attend charter schools and meet challenging State academic standards; provide financial assistance for the planning, program design, and initial implementation of charter schools; increase the number of high-quality charter schools available to students across the United States; evaluate the impact of charter schools on student achievement, families, and communities; share best practices between charter schools and other public schools; aid States in providing facilities support to charter schools; and support efforts to strengthen the charter school authorizing process.

SE Grants (ALN 84.282A) comprise the largest portion of CSP funds. These competitive grants are awarded to State entities (SEs) that, in turn, award competitive subgrants to eligible applicants for the purpose of opening new charter schools and replicating and expanding high-quality charter schools. Eligible applicants are charter school developers that have applied to an authorized public chartering agency to operate a charter school and have provided adequate and timely notice to that authority. A developer is an individual or group of individuals (including a public or private nonprofit organization), which may include teachers, administrators and other school staff, parents, or other members of the local community in which a charter school project will be carried out. 1 For-profit organizations are ineligible to apply for grants or subgrants under the CSP.

In addition to making subgrants to eligible applicants to open new charter schools and to replicate or expand high-quality charter schools, SE grantees may use grant funds to provide technical assistance to eligible applicants and authorized public chartering agencies in opening new charter schools and replicating and expanding high-quality charter schools; and work with authorized public chartering agencies in the State to improve authorizing quality, including developing capacity for, and conducting, fiscal oversight and auditing of charter schools. SE Grant funds may also be used for grant administration, which may include technical assistance and monitoring of subgrants for performance and fiscal and regulatory compliance, as required under 2 CFR 200.332(d).

If a State does not have an active CSP SE Grant, the Department may award Developer Grants (ALNs 84.282B and 84.282E) to eligible applicants in the State on a competitive basis to enable them to open new charter schools or to replicate or expand high-quality charter schools. Through CMO Grants (ALN 84.282M), the Department provides funds to non-profit charter management organizations (CMOs) on a competitive basis to enable them to replicate or expand one or more high-quality charter schools.

CSP SE Grants, CMO Grants, and Developer Grants are intended to support charter schools that serve elementary or secondary school students. Funds also may be used to serve students in early childhood education programs or postsecondary students. Section 4310 of the Elementary and Secondary Education Act of 1965, as amended (ESEA), defines “replicate” as opening a new charter school, or a new campus of a high-quality charter school, based on the educational model of an existing high-quality charter school; and “expand” as significantly increasing enrollment or adding one or more grades to a high-quality charter school (20 U.S.C. 7221i(9) and (7)). Section 4310 defines “high-quality charter school,” in pertinent part, as a charter school that shows evidence of strong academic results, which may include strong student academic growth, as determined by a State; has no significant issues in the areas of student safety, financial and operational management, or statutory or regulatory compliance; and has demonstrated success in significantly increasing student academic achievement, including graduation rates where applicable, for all students served by the charter school and for each of the subgroups of students defined in section 1111(c)(2) of the ESEA (20 U.S.C. 7221i(8)).

For CMO Grants and Developer Grants, these proposed priorities, requirements, definitions, and selection criteria are intended to supplement the regulatory priorities, requirements, definitions, and selection criteria in: Final Priorities, Requirements, Definitions, and Selection Criteria—Expanding Opportunity Through Quality Charter Schools Program; Grants to Charter Management Organizations for the Replication and Expansion of High-Quality Charter Schools (CMO NFP), published in the Federal Register on November 30, 2018 (83 FR 61532), and Final Priorities, Requirements, Definitions, and Selection Criteria—Expanding Opportunity Through Quality Charter Schools Program; Grants to Charter School Developers for the Opening of New Charter Schools and for the Replication and Expansion of High-Quality Charter Schools (Developer NFP), published in the Federal Register on July 3, 2019 (84 FR 31726).

Program Authority: Title IV, part C of the ESEA (20 U.S.C. 7221-7221j).

Proposed Priorities Applicable to CMO Grants and Developer Grants: We propose two priorities for CMO Grants and Developer Grants.

Background: Charter schools were envisioned to drive the creation of innovative approaches to teaching and learning for all students while being held accountable for academic performance. 2 The original proponents of charter schools anticipated that charter schools would be shaped by educators and offer opportunities for developing and sharing new instructional methods and resources that address the needs of students and families in the community. While that is the case in some charter schools, in others, teachers, parents, and community leaders have expressed concerns about not being included as active participants in charter school decision-making. 3 Such concerns may be due, in part, to limited requirements for community engagement. According to the National Resource Center on Charter School Finance and Governance, “most laws require only peripheral participation, such as garnering parent support for the school during the application process or keeping parents informed of student performance. These participation requirements do not take full advantage of charter schools' potential to draw on the knowledge and expertise of their parent community.”  4 Similarly, some charter schools may not fully engage other community members and organizations that are also well-positioned to help assess the educational aspirations and needs of students living in their neighborhoods and can offer important contributions to help improve the academic, financial, and organizational or operational performance of the school. 5 Charter schools and CMOs may have needs that community members and organizations can help meet, including, for example, specific teacher areas of expertise; facilities for activities such as arts, sports, or enrichment; or serving their students' well-being and readiness to learn. Similarly, community partnerships can expand options for courses that may not be available in a school, enhance independent study or skill development opportunities ( e.g., career and technical education or work-based learning), and build sustainability of program offerings. Community partnerships can also assess the receptiveness of a community to a new charter school.

Educator- and community-centered charter schools can provide opportunities to meet the needs of all students, particularly underserved students. Studies show that when teachers are engaged in educational decision-making and are given an opportunity to collaborate with administrators, it promotes a better learning environment for students that leads to increased student achievement and college and career readiness. 6 For example, charter schools can ensure meaningful input of educators by appointing multiple educators to their governing boards or purposefully developing instructional and operational models that proactively solicit and respond to educators' feedback. Additionally, community-centered charter schools are built on relationships that may enable them to be more transparent and collaborative in their design and practices, including proactively recruiting, enrolling, and retaining students of diverse backgrounds and abilities. 7 Community-centered charter schools may have established partnerships with local organizations and informal and formal processes to engage with and solicit input from local stakeholders on a regular basis.

Proposed Priority:

(a) Under this priority, an applicant must propose to open a new charter school, or replicate or expand a high-quality charter school, that is developed and implemented—

(1) With meaningful and ongoing engagement with current and former educators, including current and former teachers, including in founding the school, board governance, school-level decision-making related to curriculum and instruction, and day-to-day operations of the school; and

(2) Using a community-centered approach that includes an assessment of community assets, informs the development of the charter school, and includes the implementation of protocols and practices designed to ensure that the charter school will use and interact with community assets on an ongoing basis to create and maintain strong community ties.

(b) In its application, an applicant must provide a high-quality plan that demonstrates how its proposed project would meet the requirements in paragraph (a) of this priority, accompanied by a timetable with milestones.

Background: Research has shown that collaborations among charter schools and traditional public schools or traditional school districts (charter-traditional collaborations) have the potential to improve the quality of charter schools and traditional public schools. 8 In order to benefit the public school system as a whole, and students and families in the community, charter-traditional collaborations require significant investments of time and resources to address commonly shared barriers and challenges in both charter schools and traditional public schools. Successful charter-traditional collaborations can lead to information-sharing about best practices for developing systems and processes that benefit all families and students served by the members of the collaboration. 9

Some examples of charter-traditional collaborations that benefit students and families include: Sharing curriculum resources and instructional materials, including opportunities for students to have increased access to a more comprehensive set of course offerings; creating systems and structures for the delivery of shared, effective teacher and leader professional development and instructional practices, including through professional learning communities; developing strong principal pipeline programs; and shared transportation systems that increase student access to and diversity within schools while lessening the financial burden all schools encounter when providing transportation. 10

Under the proposed priority, an applicant must propose to collaborate with at least one traditional public school or traditional school district in an activity that would be beneficial to all partners in the collaboration and lead to increased educational opportunities and improved student outcomes.

Proposed Priority:

(a) Under this priority, an applicant must propose to collaborate with at least one traditional public school or traditional school district in an activity that is designed to benefit students and families served by each member of the collaboration, designed to lead to increased educational opportunities and improved student outcomes, and includes implementation of—

(1) One or more of the following services and resources:

(i) Curricular and instructional resources or academic course offerings.

(ii) Professional development opportunities for teachers and leaders, which may include professional learning communities, opportunities for teachers to earn additional certifications, such as in a high need area or National Board Certification, and partnerships with educator preparation programs to support teaching residencies.

(iii) Evidence-based (as defined in section 8101(21) of the ESEA) practices to improve academic performance for underserved students.

(iv) Policies and practices to create safe, supportive, and inclusive learning environments, including systems of positive behavioral intervention and support; and

(2) One or more of the following initiatives:

(i) Transparent enrollment and retention practices and processes that include clear and consistent disclosure of policies or requirements ( e.g., discipline policies, purchasing and wearing specific uniforms and other fees, or caregiver participation), and any services that are or are not provided, that could impact a family's ability to enroll or remain enrolled ( e.g., transportation services or participation in the National School Lunch Program).

(ii) A shared transportation plan and system that reduces transportation costs for partners in the collaboration and takes into consideration various transportation options, including public transportation and district-provided or shared transportation options, cost-sharing or free or reduced-cost fare options, and any distance considerations for prioritized bus services.

(iii) Other collaborations designed to address a significant barrier or challenge faced by both charter schools and traditional public schools and improve student outcomes.

(b) In its application, an applicant must provide a letter from each partnering traditional public school or school district demonstrating a commitment to participate in the proposed charter-traditional collaboration. Within 45 days of receiving a grant award, the applicant must submit to the Department a written agreement ( e.g., Memorandum of Understanding), signed by officials authorized to sign on behalf of the charter school and each partnering traditional public school or school district, that—

(1) Identifies and describes each member of the collaboration;

(2) States the purpose and duration of the collaboration;

(3) Describes the roles and responsibilities of each member of the collaboration, including key staff responsible for completing specific tasks;

(4) Describes how the collaboration will benefit each member, including how it will benefit students and families affiliated with each member and lead to increased educational opportunities and improved student outcomes, and specific and measurable, if applicable, goals;

(5) Describes the resources each member of the collaboration will contribute; and

(6) Contains any other relevant information.

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)).

Background: The ESEA requires SE Grant, CMO Grant, and Developer Grant applications to include specific information. In particular, SE Grant applications must address the application requirements in section 4303(f) of the ESEA, CMO Grant applications must address the application requirements in section 4305(b)(3) of the ESEA, and Developer Grant applications must address relevant application requirements in section 4303(f) of the ESEA. In addition to these statutory application requirements, we established additional application requirements for CMO Grants and Developer Grants in the CMO NFP and Developer NFP, respectively.

As a supplement to the application requirements in the ESEA, CMO NFP, and Developer NFP, the Department proposes new application requirements and assurances to help ensure the creation of new charter schools, and the replication and expansion of high-quality charter schools, that are: (1) Racially and socio-economically diverse; (2) driven by the needs of students and families in the community in which the charter school is or will be located; and (3) fiscally responsible and transparent, particularly with respect to contractual relationships with for-profit management organizations (also referred to as education management organizations (EMOs)). We reiterate that a charter school is, by definition, “a public school that . . . is operated under public supervision and direction,” and for-profit entities are ineligible to receive funding as a CSP project grantee or subgrantee (see section 4310(2)(B), (3), (4), and (5) of the ESEA). It is also a violation of CSP requirements for a grantee or subgrantee to relinquish full or substantial control of the charter school (and, thereby, the CSP project) to a for-profit management organization or other for-profit entity because, among other things, a grantee or subgrantee receiving CSP funds must establish and maintain proper internal controls and directly administer or supervise the administration of the project. See 2 CFR 200.302-303; and 34 CFR 75.701 and 76.701. A grantee or subgrantee that enters into a contract for goods or services must comply with the Federal procurement standards at 2 CFR 200.317-200.327, and applicable conflict of interest requirements, including that no employee, officer, or agent of the charter school may participate in the selection, award, or administration of a contract supported by Federal funds if he or she has a real or apparent conflict of interest.

Generally, the Department believes, based on experience administering the CSP, that the proposed application requirements and assurances would help facilitate the proper review and evaluation of CSP grant applications, thereby increasing the likelihood of successful grant and subgrant implementation. These proposed requirements and assurances would also help ensure that all students have access to high-quality, diverse, and equitable learning opportunities in their communities, which should be a goal of all public schools.

High-performing charter school authorizers generally require applicants for a charter ( i.e., to create a charter school) to present data on the academic achievement, demographics, and enrollment and retention rates of students in all surrounding public schools. These data help with assessing the extent to which the proposed charter school will meet the needs of, and enroll students that are representative of, the students in the community. Consistent with this part of the charter application process, we propose to require applicants for CMO Grants, Developer Grants, and subgrants under the SE Grant program to conduct a community impact analysis to inform the need, number, and types of charter schools to be created in a given community. The community impact analysis must describe how the plan for the proposed charter school takes into account the student demographics of the schools from which students are, or would be, drawn to attend the charter school. The community impact analysis must also describe the steps the charter school has taken or will take to ensure that the proposed charter school would not hamper, delay, or in any manner negatively affect any desegregation efforts in the public school districts from which students are, or would be, drawn or in which the charter school is or would be located, including efforts to comply with a court order, statutory obligation, or voluntary efforts to create and maintain desegregated public schools, and that it would not otherwise increase racial or socio-economic segregation or isolation in the schools from which the students are, or would be, drawn to attend the charter school. The focus of the community impact analysis on racial and socio-economic diversity builds on existing statutory and regulatory provisions that give priority to applicants that plan to operate or manage high-quality charter schools with racially and socio-economically diverse student bodies (see section 4305(b)(5)(A) of the ESEA; CMO NFP at 61542; and Developer NFP at 31734). Please note that an applicant that proposes to operate or manage a charter school in a racially or socio-economically segregated or isolated community still would be eligible to apply for funding, even if the student body of the charter school would be racially or socio-economically segregated or isolated due to community demographics. Such an applicant, like all other applicants, would be required to provide a community impact analysis describing how the plan for the proposed charter school takes into account the student demographics of the schools from which students are, or would be, drawn to attend the charter school, and the steps the applicant has taken or will take to ensure that the proposed charter school would not increase racial or socio-economic segregation or isolation in those schools.

Further, as autonomous public schools that create their operational, curricular, and policy procedures, charter schools are well positioned to draw on the knowledge and expertise of families and other stakeholders in the community to help shape school practices. As with Proposed Priority 1, the proposed community impact analysis requirements are designed to ensure that families play an active role in informing decision-making regarding the need for charter schools in a specific community and to strengthen requirements regarding how the community is engaged and integrated in the charter school planning and approval process.

Under section 4310(2)(B) of the ESEA, charter schools receiving CSP funds must be created by a developer as a public school or adapted by a developer from an existing public school and operated under public supervision and direction. While for-profit organizations are ineligible to apply for direct grants or subgrants under the CSP, some charter schools enter into contracts with for-profit EMOs for services. It is the responsibility of the grantee or subgrantee to ensure that such an agreement with an EMO is a contract, and not a subaward or subgrant, in accordance with 2 CFR 200.331. Arrangements under which a for-profit EMO, including a non-profit CMO operated by or on behalf of a for-profit entity, exercises full or substantial administrative control over the charter school (and, thereby, the CSP project) or over programmatic decisions are not permissible under CSP-funded projects, pursuant to 34 CFR 75.701 and 76.701, which require grantees and subgrantees, respectively, to directly administer or supervise the administration of their projects. EMOs provide a variety of services to charter schools—from limited management and financial support services to whole-school package offerings. Some examples of impermissible delegations of administrative control include situations in which the EMO controls all or a substantial portion of grant or subgrant funds and expenditures, including making programmatic decisions (also referred to as “sweeps contracts”); the EMO employs the school principal and a large proportion of the teachers; or the EMO makes decisions about curricula and instructional practices.

We propose application requirements designed to ensure that any charter school that receives CSP funds and enters, or plans to enter, into a contract with an EMO complies with all statutory and regulatory requirements, including applicable Federal procurement and conflict of interest standards in 2 CFR 200.317-200.327, and Federal regulations requiring grantees and subgrantees to establish and maintain effective internal and administrative control over the Federal award (2 CFR 200.303; and 34 CFR 75.701 and 76.701). The proposed application requirements also are designed to ensure fiscal transparency surrounding these contracts by requiring applicants to address whether they have entered or plan to enter into a contract with a for-profit management organization and, if so, to provide detailed information regarding the terms of the contract. This includes the amount of any CSP funding that would be used to pay for services under the contract and information about the governing board members, individuals who have a financial interest in the management organization, and any perceived or actual conflicts of interests. Applicants would also address how the applicant will ensure that it makes all programmatic decisions, maintains control over all program funds, directly administers or supervises the administration of the grant or subgrant in accordance with 34 CFR 75.701 and 76.701, and complies with the conflict of interest standards in 2 CFR 200.317-200.327.

Under section 4310(6) of the ESEA, an eligible applicant is defined as a charter school developer that has (1) applied to an authorized public chartering agency to operate a charter school and (2) provided adequate and timely notice to that authority. As noted above, eligible applicants in States that do not have an active SE Grant may apply to the Department for a direct grant under the Developer Grant program. Non-profit CMOs are the only eligible entities under the CMO Grant program and usually serve as the developer and apply for the charter on behalf of the charter schools that they fund through their grant. Because an applicant need not have received a charter to be eligible to apply for a CSP grant, there is inherent risk of an applicant receiving a CSP grant but ultimately not having its charter application approved. Given this risk, we propose requirements to better inform the Department of these situations, including by providing the expected timeline from the authorized public chartering agency to provide a final decision on the charter application and identifying any planning costs expected to be incurred before such decision. This information can, in turn, be used by the Department to establish guardrails, such as through grant conditions, to minimize risk.

Finally, to reinforce the proposed application requirements, we also propose assurances related to charter schools' contracts with EMOs; subgrant awards; reporting requirements; racial and socio-economic diversity of students and teachers in the charter school, and the impact of the charter school on racial and socio-economic diversity in the public school district and schools from which students are, or will be, drawn to attend the charter school; and ensuring that CSP funding for implementation of a charter school is provided only when a charter has been approved and a school facility has been secured.

We propose to apply one or more of the following application requirements in any year in which a competition is held under one or more of the following CSP grant programs: SE Grants, CMO Grants, or Developer Grants. We identify the program applicability for each proposed application requirement.

Proposed Requirements Applicable to CMO Grants and Developer Grants.

Proposed Requirement 1 for CMO Grants and Developer Grants:

Each applicant must provide a community impact analysis that demonstrates that there is sufficient demand for the proposed project and that the proposed project would serve the interests and meet the needs of students and families in the community or communities from which students are, or will be, drawn to attend the charter school, and that includes the following:

(a) Descriptions of the community support and unmet demand for the charter school, including any over-enrollment of existing public schools or other information that demonstrates demand for the charter school, such as evidence of demand for specialized instructional approaches.

(b) Descriptions of the targeted student and staff demographics and how the applicant plans to establish and maintain racially and socio-economically diverse student and staff populations, including proposed strategies (that are consistent with applicable legal requirements) to recruit, enroll, and retain a diverse student body and to recruit, hire, develop, and retain a diverse staff and talent pipeline at all levels (including leadership positions).

(c) Analyses of publicly available information and data, including citations and sources, on academic achievement, demographics, and enrollment trends of students in the public schools and school districts from which students are, or will be, drawn to attend the charter school, and an explanation of how the area from which the proposed charter school would reasonably expect to draw students was determined.

(d) An analysis of the proposed charter school's demographic projections and a comparison of such projections with the demographics of public schools and school districts from which students are, or will be, drawn to attend the charter school.

(e) Evidence that demonstrates that the number of charter schools proposed to be opened, replicated, or expanded under the grant does not exceed the number of public schools needed to accommodate the demand in the community, including projected enrollment for the charter schools based on analysis of community needs and unmet demand and any supporting documents for the methodology and calculations used to determine the number of schools proposed to be opened, replicated, or expanded.

(f) A robust family and community engagement plan designed to ensure the active participation of families and the community and that includes the following:

(1) How families and the community are or were engaged in determining the vision and design for the charter school, including specific examples of how families' and the community's input was, or is expected to be, incorporated into the vision and design for the charter school.

(2) How the charter school will meaningfully engage with both families and the community to create strong and ongoing partnerships.

(3) How the charter school will foster a collaborative culture that involves the families of all students, including underserved students, in school decision-making on an ongoing basis.

(4) How the charter school's enrollment and recruitment process will engage and accommodate families from various backgrounds, including by holding enrollment and recruitment events on weekends or during non-standard work hours, making translators available, and providing enrollment and recruitment information in widely accessible formats ( e.g., hard copy and online in multiple languages, large print or braille for visually-impaired individuals) through widely available and transparent means ( e.g., online and at community locations). 11

(5) How the charter school has engaged or will engage families and the community to develop an instructional model that will serve the targeted diverse student population and their families effectively.

(g) How the plans for the operation of the charter school will support and reflect the needs of students and families in the community, including considerations for how the school's location, or anticipated location if a facility has not been secured, will facilitate access for the targeted diverse student population ( e.g., access to public transportation or other transportation options, the demographics of neighborhoods within walking distance of the school, and transportation plans and costs for students who are not able to walk or use public transportation to access the school).

(h) A description of the steps the applicant has taken or will take to ensure that the proposed charter school would not hamper, delay, or in any manner negatively affect any desegregation efforts in the public school districts from which students are, or would be, drawn to attend the charter school, including efforts to comply with a court order, statutory obligation, or voluntary efforts to create and maintain desegregated public schools, and that it would not otherwise increase racial or socio-economic segregation or isolation in the schools from which the students are, or would be, drawn to attend the charter school.

Proposed Requirement 2 for CMO Grants and Developer Grants:

For any existing or proposed contract with a for-profit management organization (including a non-profit management organization operated by or on behalf of a for-profit entity), without regard to whether the management organization exercises full or substantial administrative control over the charter school or the CSP project, the applicant must include—

(a) The name and contact information of the management organization;

(b) A detailed description of the terms of the contract, including the cost ( i.e., fixed costs and estimates of any ongoing costs or fees) and percentage such cost represents of the school's total funding, amount of CSP funds proposed to be used towards such cost (with an explanation of why such cost is reasonable), duration, roles and responsibilities of the management organization, and steps the applicant will take to ensure that it pays fair market value for any services or other items purchased or leased from the management organization, makes all programmatic decisions, maintains control over all CSP funds, and directly administers or supervises the administration of the grant in accordance with 34 CFR 75.701;

(c) A description of any business or financial relationship between the charter school developer and the management organization, including payments, contract terms, and any property owned, operated, or controlled by the management organization or related individuals or entities that will be used by the charter school;

(d) The name and contact information for each member of the governing board of the proposed charter school;

(e) A list of all individuals who have a financial interest in the management organization, including—

(1) Descriptions of any affiliations or conflicts of interest for charter school staff, board members, and management organization staff;

(2) A list of all related individuals or entities providing contractual services to the charter school and the nature of those services; and

(3) Detailed descriptions of any actual or perceived conflicts of interest, the steps the applicant took or will take to avoid any actual or perceived conflicts of interest, and how the applicant resolved or will resolve any actual or perceived conflicts of interest to ensure compliance with 2 CFR 200.318(c);

(f) An explanation of how the applicant will ensure that the management contract is severable, severing the management contract will not cause the proposed charter school to close, the duration of the management contract will not extend beyond the expiration date of the school's charter, and renewal of the management contract will not occur without approval and affirmative action by the governing board of the charter school; and

(g) A description of the steps the applicant will take to ensure that it maintains control over all student records and has a process in place to provide those records to another public school or school district in a timely manner upon the transfer of a student from the charter school to another public school, including due to closure of the charter school, in accordance with section 4308 of the ESEA.

Proposed Requirement 3 for CMO Grants and Developer Grants:

An applicant that has applied to an authorized public chartering agency to operate a new, expanded, or replicated charter school, and has not yet received approval, must provide—

(a) A signed and dated copy of its application to the authorized public chartering agency;

(b) Documentation that it has provided notice to the authorized public chartering agency that it has applied for a CSP grant;

(c) A timeline from the authorized public chartering agency for providing a final decision on the charter application; and

(d) Any planning costs in its proposed budget that are expected to be incurred prior to the date the authorized public chartering agency expects to issue a decision on the applicant's charter application.

Proposed Requirements Applicable to SE Grants:

Background: Applicants for subgrants under the CSP SE Grant program are required to provide, as part of their subgrant application, a description of the roles and responsibilities of eligible applicants, partner organizations, and CMOs, including the administrative and contractual roles and responsibilities of such partners (section 4303(f)(1)(C)(i)(II) of the ESEA). Another goal of these proposed requirements is to ensure that CSP SE grantees are well positioned to oversee a high-quality peer review process as they make subgrant awards in their respective States to support opening new charter schools and replicating and expanding high-quality charter schools. Also, we want to ensure that, after making subgrant awards in their States, SE grantees fulfill their responsibility to monitor charter school subgrant award recipients, as required under 2 CFR 200.332(d). SEs are required to provide descriptions of how the SE will review applications from eligible applicants (section 4303(f)(1)(C)(ii) of the ESEA) as well as its plan to adequately monitor subgrant recipients under the SE's program (section 4303(g)(1)(D)(i) of the ESEA). The CSP SE Grant program supports many charter schools nationally, and the proposed new requirements for SE applicants to create subgrant application review and subgrantee monitoring plans present an opportunity for peer reviewers to evaluate the quality of these plans not only to inform funding decisions, but also to enhance the quality of charter schools in the areas of transparency, oversight, and accountability.

The proposed application requirements, which would supplement existing statutory requirements for SEs, would: Require subgrant applicants to provide a community impact analysis and submit more detailed information regarding the nature of any management contracts with for-profit EMOs, including non-profit CMOs operated by or on behalf of for-profit entities, as we are proposing to require of applicants for CMO Grants and Developer Grants; require SEs to give priority in making subgrants to charter schools that are educator-led and community-centered or that participate in collaborations among charter schools and traditional public schools or school districts (charter-traditional-district collaborations), as with the above priorities for CMO and Developer; require SEs to provide justification and supporting evidence for the planned number of subgrants and subgrant award amounts to ensure proposed projects are reasonable; and, as discussed in the previous paragraph, strengthen the requirements related to SEs' review of subgrant applications and monitoring of subgrants in their States.

Proposed Requirement 1 for SE Grants:

Each subgrant applicant must provide a community impact analysis that demonstrates that there is sufficient demand for the proposed project and that the proposed project would serve the interests and meet the needs of students and families in the community or communities from which the students are, or will be, drawn to attend the charter school, and that includes the following:

(a) Descriptions of the community support and unmet demand for the charter school, including any over-enrollment of existing public schools or other information that demonstrates demand for the charter school, such as evidence of demand for specialized instructional approaches.

(b) Descriptions of the targeted student and staff demographics and how the applicant plans to establish and maintain racially and socio-economically diverse student and staff populations, including proposed strategies (consistent with applicable legal requirements) to recruit, enroll, and retain a diverse student body and to recruit, hire, develop, and retain a diverse staff and talent pipeline at all levels (including leadership positions).

(c) Analyses of publicly available information and data on student academic achievement, demographics, and enrollment trends of students in schools in the public school district and schools from which students are, or will be, drawn or in which the charter school is or will be located, including citations and sources and an explanation of how the area from which the proposed charter school would reasonably expect to draw students was determined.

(d) An analysis of the proposed charter school's demographic projections and a comparison of such projections with the demographics of public schools and school districts from which students are, or will be, drawn to attend the charter school.

(e) Evidence that demonstrates that the number of charter schools proposed to be opened, replicated, or expanded under the grant does not exceed the number of public schools needed to accommodate the demand in the community, including projected enrollment for the charter schools based on analysis of community needs and unmet demand and any supporting documents for the methodology and calculations used to determine the number of schools proposed to be opened, replicated, or expanded.

(f) A robust family and community engagement plan designed to ensure the active participation of families and the community that includes the following:

(1) How families and the community are or were engaged in determining the vision and design for the charter school, including specific examples of how families' and the community's input was, or is expected to be, incorporated into the vision and design for the charter school.

(2) How the charter school will meaningfully engage with both families and the community to create strong and ongoing partnerships.

(3) How the charter school will foster a collaborative culture that involves the families of all students, including underserved students, in school decision-making on an ongoing basis.

(4) How the charter school's enrollment and recruitment processes will engage and accommodate families from various backgrounds, including by holding enrollment and recruitment events on weekends or non-standard work hours, making translators available, and providing enrollment and recruitment information in widely accessible formats ( e.g., hard copy and online in multiple languages, large print or braille for visually-impaired individuals) through widely available and transparent means ( e.g., online and at community locations). 12

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

EPA is proposing to take several related actions. EPA is proposing to determine that the Detroit nonattainment area is attaining the 2015 ozone NAAQS, based on quality-assured and certified monitoring data for 2019-2021, and that the Detroit area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus proposing to change the legal designation of the Detroit area from nonattainment to attainment for the 2015 ozone NAAQS. EPA is also proposing to approve, as a revision to the Michigan SIP, the State's maintenance plan for the area. The maintenance plan is designed to keep the Detroit area in attainment of the 2015 ozone NAAQS through 2035. EPA is proposing to approve the newly established 2025 and 2035 motor vehicle emissions budgets for the Detroit area and is initiating the adequacy process for these budgets. Finally, EPA is proposing to approve portions of Michigan's separate December 18, 2020, submittals, because they satisfy the applicable CAA requirements for a base year emissions inventory and emissions statement program for the Detroit area.

EPA has determined that ground-level ozone is detrimental to human health. On October 1, 2015, EPA promulgated a revised 8-hour ozone NAAQS of 0.070 parts per million (ppm). See 80 FR 65292 (October 26, 2015). Under EPA's regulations at 40 CFR part 50, the 2015 ozone NAAQS is attained in an area when the 3-year average of the annual fourth highest daily maximum 8-hour average concentration is equal to or less than 0.070 ppm, when truncated after the thousandth decimal place, at all of the ozone monitoring sites in the area. See 40 CFR 50.19 and appendix U to 40 CFR part 50.

Upon promulgation of a new or revised NAAQS, section 107(d)(1)(B) of the CAA requires EPA to designate as nonattainment any areas that are violating the NAAQS, based on the most recent three years of quality assured ozone monitoring data. The Detroit area was designated as a Marginal nonattainment area for the 2015 ozone NAAQS on June 4, 2018 (83 FR 25776) (effective August 3, 2018).

Section 107(d)(3)(E) of the CAA allows redesignation of an area to attainment of the NAAQS provided that: (1) The Administrator (EPA) determines that the area has attained the NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k) of the CAA; (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP, applicable Federal air pollutant control regulations, and other permanent and enforceable emission reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A of the CAA; and (5) the state containing the area has met all requirements applicable to the area for the purposes of redesignation under section 110 and part D of the CAA.

On April 16, 1992, EPA provided guidance on redesignations in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990 (57 FR 13498) and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in policy memoranda.

For redesignation of a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). An area is attaining the 2015 ozone NAAQS if it meets the 2015 ozone NAAQS, as determined in accordance with 40 CFR 50.19 and appendix U of part 50, based on three complete, consecutive calendar years of quality-assured air quality data for all monitoring sites in the area. To attain the 2015 ozone NAAQS, the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations (ozone design values) at each monitor must not exceed 0.070 ppm. The air quality data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in EPA's Air Quality System (AQS). Ambient air quality monitoring data for the 3-year period must also meet data completeness requirements. An ozone design value is valid if daily maximum 8-hour average concentrations are available for at least 90% of the days within the ozone monitoring seasons, 1 on average, for the 3-year period, with a minimum data completeness of 75% during the ozone monitoring season of any year during the 3-year period. See section 4 of appendix U to 40 CFR part 50.

EPA has reviewed the available ozone monitoring data from EGLE's monitoring sites in the Detroit area for the 2019-2021 period. These data have been quality assured, are recorded in the AQS, and were certified in advance of EPA's publication of this proposal. These data demonstrate that the Detroit area is attaining the 2015 ozone NAAQS. The annual fourth-highest 8-hour ozone concentrations and the 3-year average of these concentrations (monitoring site ozone design values) for all monitoring sites are summarized in Table 1.

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

With this action EPA proposes to amend the All Appropriate Inquiries Rule at 40 CFR part 312 to reference ASTM International's E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” and allow for its use to satisfy the requirements for conducting all appropriate inquiries under CERCLA. We published a direct final rule amending the All Appropriate Inquiries Rule to reference the ASTM E1527-21 standard and allow for its use to comply with the All Appropriate Inquiries Rule in the “Rules and Regulations” section in this issue of the Federal Register because we view this as a noncontroversial action and anticipate no adverse comment. We explained our reasons for this action in the preamble to the direct final rule.

If EPA receives no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We will then address all public comments in any subsequent final rule based on this proposed rule. We do not intend to institute a second comment period on this action. Any parties interested in commenting on this proposal must do so at this time or the direct final rule will take effect. For further information, please see the information provided in the ADDRESSES section of this document.

This action offers certain parties the option of using an available industry standard to conduct all appropriate inquiries. Parties purchasing potentially contaminated properties will be able to use the ASTM E1527-21 standard practice to comply with the all appropriate inquiries requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This proposed rule will not require any entity to use this standard. Any party who wants to claim protection from liability under one of CERCLA's landowner liability protections may follow the regulatory requirements of the All Appropriate Inquiries Rule at 40 CFR part 312, use the ASTM E1527-13 standard, use the ASTM E2247-16 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property,” or use the standard recognized in this proposed rule, the ASTM E1527-21 standard.

Entities potentially affected by this action, or who may choose to use the newly referenced ASTM standard to perform all appropriate inquiries, include public and private parties who, as bona fide prospective purchasers, contiguous property owners, or innocent landowners, are purchasing potentially contaminated properties and wish to establish a limitation on CERCLA liability in conjunction with the property purchase. In addition, any entity conducting a site characterization or assessment on a property with a brownfields grant awarded under CERCLA section 104(k)(2)(B)(ii) may be affected by this action. This includes state, local and Tribal governments that receive brownfields site assessment grants. A summary of the potentially affected industry sectors (by North American Industry Classification System (NAICS) codes) is displayed in the table below.

The list of potentially affected entities in the above table may not be exhaustive. Our aim is to provide a guide for readers regarding those entities that EPA is aware potentially could be affected by this action. However, this action may affect other entities not listed in the table. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT Section of this document.

Direct your comments to Docket ID No. EPA-HQ-OLEM-2021-0946. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

A. Submitting CBI: Do not submit any information that you consider to be CBI or otherwise protected through www.regulations.gov or email. You can only submit CBI to EPA via U.S. mail at: HQ EPA Docket Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC 20460. Clearly mark all information that you claim to be CBI. For CBI submitted on a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

B. Tips for Preparing Your Comments: When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date, and page number).

• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns and suggested alternative.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified.

The www.regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters or any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at https://www2.epa.gov/edockets/commenting-epa-dockets.

C. The docket: All documents in the docket are listed in the www.regulations.gov index. Certain types of information claimed as CBI, and other information whose disclosure is restricted by statute, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material, such as ASTM International's E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” will not be placed in EPA's electronic public docket but will be publicly available only in printed form in the official public docket. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the HQ EPA Docket Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20460. Please note: Due to public health concerns related to COVID-19, the EPA Docket Center and Reading Room are open to the public by appointment only, and walk-ins are not allowed. Visitors to the Reading Room must complete docket material requests in advance and then make an appointment to retrieve the material. Please contact the EPA Reading Room staff at (202) 566-1744 or via the Dockets Customer Service email at docket-customerservice@epa.gov to arrange material requests and appointments.

EPA is proposing to amend the All Appropriate Inquiries Rule that sets Federal standards for the conduct of “all appropriate inquiries” at 40 CFR part 312. The All Appropriate Inquiries Rule sets forth standards and practices necessary for fulfilling the requirements of CERCLA section 101(35)(B) as required to obtain CERCLA liability protection and for conducting site characterizations and assessments with the use of brownfields grants per CERCLA section 104(k)(2)(B)(ii).

On January 11, 2002, President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act (“the Brownfields Amendments”). In general, the Brownfields Amendments to CERCLA provide funds to assess and cleanup brownfields sites; clarify existing and establish new CERCLA liability provisions related to certain types of owners of contaminated properties; and provide funding to establish or enhance State and Tribal cleanup programs. The Brownfields Amendments revised some of the provisions of CERCLA section 101(35) and limited liability under section 107 for bona fide prospective purchasers and contiguous property owners, in addition to clarifying the requirements necessary to establish the innocent landowner liability protection under CERCLA. The Brownfields Amendments clarified the requirement that parties purchasing potentially contaminated property undertake “all appropriate inquiries” into prior ownership and use of property before purchasing the property to qualify for protection from CERCLA liability.

The 2002 Brownfields Amendments to CERCLA required EPA to develop regulations establishing standards and practices for how to conduct all appropriate inquiries. EPA promulgated regulations that set standards and practices for all appropriate inquiries on November 1, 2005 (70 FR 66070). In the regulation, EPA referenced, and recognized as compliant with the rule, the ASTM E1527-05 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Standard Process.” In December 2008, EPA used a direct final rule to amend the All Appropriate Inquiries Rule to recognize another ASTM standard as compliant, ASTM E2247-08 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property.” Both standards, the ASTM E1527-05 and the ASTM E2247-08, were subsequently revised by ASTM International, and the revised versions were referenced by EPA as compliant with the All Appropriate Inquiries Rule. EPA referenced the ASTM E1527-13 standard on August 15, 2013 (78 FR 49690) and referenced the ASTM E2247-16 standard on September 15, 2017 (82 FR 43310). Currently, the All Appropriate Inquiries Rule (40 CFR part 312) allows for the use of the ASTM E1527-13 standard or the ASTM E2247-16 standard to conduct all appropriate inquiries, in lieu of following requirements included in the Rule. Once this action is final, the All Appropriate Inquiries Rule also will allow for the use of the ASTM E1527-21 standard.

Recently, ASTM International published a revised standard for conducting Phase I environmental site assessments. This standard, ASTM E1527-21, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,” was reviewed by EPA, and determined by EPA to be compliant with the requirements of the All Appropriate Inquiries Rule.

This action will amend the All Appropriate Inquiries Rule to allow for the use of ASTM E1527-21 to conduct all appropriate inquiries as required under CERCLA for establishing the bona fide prospective purchaser, contiguous property owner, and innocent landowner liability protections.

With this proposed action, parties seeking liability relief under CERCLA's landowner liability protections, as well as recipients of brownfields grants for conducting site assessments, will be considered in compliance with the requirements for all appropriate inquiries if such parties comply with the procedures provided in the ASTM E1527-21, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” EPA determined that it is reasonable to promulgate this clarification as a direct final rule that is effective immediately, rather than delay promulgation of the clarification until after receipt and consideration of public comments. EPA made this determination based upon the Agency's finding that the ASTM E1527-21 standard is compliant with the All Appropriate Inquiries Rule, and the Agency sees no reason to delay allowing for its use in conducting all appropriate inquiries.

The Agency notes that this action will not require any party to use the ASTM E1527-21 standard. Any party conducting all appropriate inquiries to comply with CERCLA's bona fide prospective purchaser, contiguous property owner, and innocent landowner liability protections may continue to follow the provisions of the All Appropriate Inquiries Rule at 40 CFR part 312, or continue to use either the ASTM E1527-13 standard or use the ASTM E2247-16 standard.

This proposed action merely will allow for the use of the ASTM E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” for those parties purchasing potentially contaminated properties who want to use the ASTM E1527-21 standard in lieu of the following specific requirements of the All Appropriate Inquiries Rule.

The Agency notes that there are no legally significant differences between the regulatory requirements and the ASTM E1527 standards. To facilitate an understanding of the slight differences between the All Appropriate Inquiries Rule, the ASTM E1527-13 “Phase I Environmental Site Assessment Standard,” and the revised ASTM E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,” as well as the applicability of the E1527-21 standard for certain types of properties, EPA developed, and placed in the docket for this proposed action, the document “Comparison of All Appropriate Inquiries Regulation, the ASTM E1527-13 Phase I Environmental Site Assessment Process, and ASTM E1527-21 Phase I Environmental Site Assessment Process.” The document provides a comparison of the two ASTM E1527 standards.

EPA's proposed action includes no changes to the All Appropriate Inquiries Rule other than to add an additional reference to the new ASTM E1527-21 standard. EPA is not seeking comments on the standards and practices included in the All Appropriate Inquiries Rule published at 40 CFR part 312. Also, EPA is not seeking comments on the ASTM E1527-21 standard. EPA's only action with this proposed rule is recognition of the ASTM E1527-21 standard as compliant with the All Appropriate Inquiries Rule and, therefore, it is only this action on which the Agency is seeking comment.

EPA is proposing this action because the Agency wants to provide additional flexibility for brownfields grant recipients or other entities that may benefit from the use of the ASTM E1527-21 standard. We believe that this proposed action will allow for the use of a tailored standard that was developed by a recognized standards developing organization, reviewed by EPA, and determined to be equivalent to the Agency's All Appropriate Inquiries Rule. This action does not disallow the use of the previously recognized standards (ASTM E1527-13 or ASTM E2247-16), and it will not alter the requirements of the previously promulgated All Appropriate Inquiries Rule. In addition, this proposal potentially will increase flexibility for some parties who may make use of the new standard, without placing any additional burden on those parties who prefer to use either the ASTM E1527-13 standard or the ASTM E2247-16 or to follow the requirements of the All Appropriate Inquiries Rule when conducting all appropriate inquiries.

By proposing this action, EPA is fulfilling the intent and requirements of the National Technology Transfer and Advancement Act (NTTAA), Public Law 104-113.

For a complete discussion of all of the administrative requirements applicable to this action, see the discussion in the “Statutory and Executive Order Reviews” section to the preamble for the direct final rule that is published in the “Rules and Regulations” section in this issue of the Federal Register .

Under Executive Order 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821, January 21, 2011), this proposed action is not a “significant regulatory action” and is therefore not subject to OMB review. This action merely amends the All Appropriate Inquiries Rule to reference ASTM International's E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” and allow for its use to satisfy the requirements for conducting all appropriate inquiries under CERCLA. This action does not impose any requirements on any entity, including small entities. Therefore, pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), after considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Background

Under section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq. ), we are required to make a finding whether or not a petitioned action is warranted within 12 months after receiving any petition for which we have determined contains substantial scientific or commercial information indicating that the petitioned action may be warranted (“12-month finding”). We must make a finding that the petitioned action is: (1) Not warranted; (2) warranted; or (3) warranted, but precluded by other listing activity. We must publish a notification of these 12-month findings in the Federal Register .

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations at part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Lists of Endangered and Threatened Wildlife and Plants (Lists). The Act defines “species” as including any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1532(16)). The Act defines “endangered species” as any species that is in danger of extinction throughout all or a significant portion of its range (16 U.S.C. 1532(6)), and “threatened species” as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(20)). Under section 4(a)(1) of the Act, a species may be determined to be an endangered species or a threatened species because of any of the following five factors:

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself. However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the Act's definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

In conducting our evaluation of the five factors provided in section 4(a)(1) of the Act to determine whether Georgia bully and Rio Grande cooter meet the Act's definition of “endangered species” or “threatened species,” we considered and thoroughly evaluated the best scientific and commercial information available regarding the past, present, and future stressors and threats. In conducting our evaluation of the Blanco blind salamander, we determined that it either: (1) Does not meet the definition of a “species” under the Act, and, as a result, we conclude that it is not a listable entity; or (2) is extinct. We reviewed the petitions, information available in our files, and other available published and unpublished information for all of these species. Our evaluation may include information from recognized experts; Federal, State, and Tribal governments; academic institutions; foreign governments; private entities; and other members of the public.

The species assessment forms for these species contain more detailed biological information, a thorough analysis of the listing factors, a list of literature cited, and an explanation of why we determined that these species do not meet the Act's definition of an “endangered species” or a “threatened species.” A thorough review of the taxonomy, life history, and ecology of the Georgia bully and Rio Grande cooter is presented in each species' species status assessment (SSA) report. The species assessment form and the review report for the Blanco blind salamander contain more detailed taxonomic information, a list of literature cited, and an explanation of why we determined that the Blanco blind salamander either does not meet the Act's definition of a “species” or is extinct. This supporting information can be found on the internet at https://www.regulations.gov under the appropriate docket number (see ADDRESSES , above). The following are informational summaries for the findings in this document.

On April 20, 2010, the Service received a petition from the Center for Biological Diversity, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands Conservancy to list 404 aquatic, riparian, and wetland species, including Georgia bully ( Sideroxylon thornei ), as endangered or threatened species under the Act. On September 27, 2011, we published in the Federal Register (76 FR 59836) a partial 90-day finding that the petition presented substantial scientific or commercial information indicating that listing may be warranted for 374 of the species, including Georgia bully. The finding stated that the petition presented substantial information indicating that listing Georgia bully may be warranted due to disease or predation. This document constitutes the 12-month finding on the April 20, 2010, petition to list Georgia bully under the Act.

A member of the Sapotaceae family, Georgia bully is a shrub or small tree that grows up to 6 meters (20 feet) in height, and is sometimes multi-stemmed but not extensively clonal. Georgia bully is known to occur in Alabama, Georgia, and Florida. The species has been found in at least 29 counties and five watersheds (Altamaha, Apalachicola, Choctawhatchee-Escambia, Mobile Bay-Tombigbee, and Ogeechee) in 3 southeastern States: Alabama, Georgia, and Florida. The stronghold of the distribution is in the Apalachicola watershed in Georgia.

Georgia bully is restricted to riparian forests and forested wetlands ( i.e., swamps, bottomland forests, and depressional wetlands), where the species occurs most often in habitats developed over limestone ( i.e., calcareous substrates), particularly in Georgia. Georgia bully requires shaded to partly shaded habitat conditions within a mostly intact forest overstory. The species requires wet soils and periodic inundation from flooding to provide a competitive advantage to Georgia bully since many other plant species do not tolerate flooding disturbance ( e.g., decrease in oxygen, carbon dioxide, and light). Georgia bully reproduces sexually through pollination and fruit set, and asexually through vegetative means ( e.g., shoots, fragments, or clones).

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to Georgia bully, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary threats affecting Georgia bully's biological status include habitat destruction and modification (including urbanization and land use change), and impacts to hydrology from climate change. We examined a number of other factors, including inherent factors (small population size), nonnative and invasive species, disease (insect damage), and predation (deer herbivory), and found that these factors may exacerbate the effects of the primary factors, but do not rise to such a level that affected the species as a whole.

Causes of habitat destruction and modification are urbanization and conversion to agricultural and silvicultural uses, including forest structure alteration due to timber harvest. Georgia bully is expected to be influenced by changes to the hydrologic regime, including periods of drought and flooding. Extended periods of drought may allow other species that outcompete Georgia bully to become established. Increased flooding events may reduce the ability for Georgia bully seedlings to become established if habitat is saturated during the germination period.

Despite impacts from the primary stressors, the species has maintained the majority of its historical occurrences throughout its range. Georgia bully currently has 16 moderately or highly resilient populations across its range in 45 populations in 3 States. Each of the five watersheds where Georgia bully occurs contains at least two moderate or highly resilient populations. Moderate and highly resilient Georgia bully populations are able to recover from stochastic events and are characterized by larger populations with recruitment and/or reproduction in habitats with intact mature overstory, wide riparian vegetated buffers, and minimal hydrological alteration. Existing protections for the species are in place with approximately 46 percent of populations on protected lands, including the two largest populations. Threats continue to impact Georgia bully and its habitat, and effects from these impacts may result in a decrease in habitat quality and quantity across the species' range; however, ongoing conservation actions offer some protection to the species.

Our future scenarios assessment included four elements of change ( e.g., urbanization, land use, climate- influenced hydrology, and site-specific habitat factors) to assess the viability of Georgia bully at 30- and 60-year time steps. Upon examining the current trends and future forecast scenarios, we expect that the primary threats (habitat destruction and modification due to urbanization and land use change, and hydrology impacts associated with climate change) will continue to impact Georgia bully. Impacts to Georgia bully's population resiliency generally increase over time and with increased threats, including the threat of climate change effects. The species' representation has not declined between historical and most recent surveys, and the species' representation is expected to decline slightly under each future scenario. As moderate or highly resilient populations will persist across all watersheds, a broad level of representation is likely to be maintained over time. However, the adaptive capacity of the species will be reduced in the future as the projected population extirpations reduce the number of viable populations on the landscape, thus reducing the species potential ability to adjust to changing conditions. Georgia bully has retained redundancy based on multiple moderate and highly resilient populations being spread across its historical range in five watersheds; however, into the future, we expect the species' redundancy to decline as population resiliency is reduced, thereby impairing the species' ability to withstand and recover from catastrophic events such as storms and droughts. Although we predict some continued impacts from stressors in the future, we anticipate the species will be represented by moderate and highly resilient populations into the foreseeable future throughout its range, supported by the occurrence of 21 of the 45 known populations on protected lands and the species' ability to reproduce vegetatively ( e.g., shoots, fragments, or clonal) and through pollination and fruit set giving populations additional opportunities to maintain and expand. Given projections for quality and quantity of habitat and the number of healthy (moderate to high resiliency) populations, we conclude that the species is likely to maintain the ability to withstand stochasticity, catastrophic events, and novel changes in its environment for the foreseeable future. Based on these conditions, Georgia bully's current risk of extinction is very low. Furthermore, we did not find any evidence of a concentration of threats at any biologically meaningful scale in any portion of the species' range.

Therefore, we find that listing Georgia bully as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Georgia bully species assessment and other supporting documents (see ADDRESSES , above).

On July 11, 2012, the U.S. Fish and Wildlife Service (Service) received a petition to list 53 amphibians and reptiles, including the Rio Grande cooter ( Pseudemys gorzugi ), as endangered or threatened under the Act and to designate critical habitat. On July 1, 2015, we published a 90-day finding that the petition presented substantial scientific or commercial information indicating that listing may be warranted for 21 species, including the Rio Grande cooter (80 FR 37568). The finding stated that the petition presented substantial information indicating that listing the Rio Grande cooter may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; and regulatory mechanisms inadequate to address these threats. This document constitutes the 12-month finding on the July 11, 2012, petition to list the Rio Grande cooter under the Act.

The Rio Grande cooter is a medium-to-large freshwater turtle (100-370 millimeters (3.9-14.6 inches)) that lives in the spring pools, streams, and rivers found within portions of the Rio Grande/Río Bravo watershed of the United States and Mexico. The species' range includes the Pecos River basin of New Mexico and Texas; the Devils River basin of Texas; the Rio Grande basin of Texas (below the Big Bend region) and Coahuila, Nuevo León, and Tamaulipas, Mexico; the Río Salado basin of Coahuila, Nuevo León, and Tamaulipas, Mexico; and the Río San Juan basin of Coahuila, Nuevo León, and Tamaulipas, Mexico. Within these five major river basins, Rio Grande cooter habitat includes the freshwater systems and the riparian habitat adjacent to them. The current distribution of the species is similar to its historical distribution.

As a mostly aquatic species, adequate water quality and water quantity are central to the Rio Grande cooter's ability to forage, survive, and reproduce. Water must be of adequate depth to provide protection from predation and within temperature ranges that allow for thermoregulation. Further, contaminants and other harmful constituents in water must be absent or below thresholds that would cause acute or chronic toxicity to Rio Grande cooter or the resources upon which they rely for survival, growth and reproduction. The Rio Grande cooter also requires water flows that allow for individual movements for breeding, nesting, and retreating from areas of unsuitable habitat. Additionally, the Rio Grande cooter requires upland nesting habitat with loose soils near water where eggs will be adequately thermoregulated and safe from inundation, predation, and other disturbances during incubation.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Rio Grande cooter, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the Rio Grande cooter's biological status include hydrological alteration, pollution, climate change (increasing demands on the surface and ground water resources that provide or support habitat for the species due to effects on climate and weather associated with rising temperatures), and direct mortality. Rio Grande cooter has limited abundance information available across its range, with a few exceptions. Therefore, we assessed species viability based on presence-only data and the condition of the species' habitat.

Despite existing within an altered system in the Rio Grande watershed and the associated impacts from the primary stressors, the Rio Grande cooter currently has multiple resilient population analysis units (10 of 16 units characterized as Low or Moderate Risk) distributed throughout its known historical range. Because Rio Grande cooter has maintained multiple resilient population analysis units across a diversity of habitat types and within all five river basins in which it historically occurred—except for the Devils River basin, which contains a single unit categorized as low risk—the species has retained redundancy and representation at the species level. Based on these conditions, the current risk of extinction for the Rio Grande cooter is low. Although we project some continued impacts from the identified stressors into the foreseeable future under two future scenarios, our analysis indicates that the Rio Grande cooter will maintain multiple, resilient population analysis units distributed throughout its historical range within each of the five major river basins. Overall, the Rio Grande cooter is projected to either maintain current levels of resiliency, representation, and redundancy or have a slight decrease in resiliency (nine of 16 population analysis units being categorized as Low or Moderate Risk) while maintaining current levels of redundancy and representation into the foreseeable future. Thus, the best available information does not indicate that the magnitude and scope of individual stressors would cause the species to be in danger of extinction in the foreseeable future. Furthermore, we did not find any evidence of a concentration of threats at any biologically meaningful scale in any portion of the species' range.

Therefore, we find that listing the Rio Grande cooter as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Rio Grande cooter's species assessment and other supporting documents (see ADDRESSES , above).

On June 25, 2007, the Service received a petition from Forest Guardians (now WildEarth Guardians) requesting that the Service list 475 species in the Southwest Region as endangered or threatened under the Act with critical habitat. The Blanco blind salamander ( Eurycea robusta ) was included among the list of petitioned species. On December 16, 2009, we published in the Federal Register (74 FR 66866) a partial 90-day finding that the petition presented substantial scientific or commercial information indicating that listing may be warranted for 67 of the species, including the Blanco blind salamander. The finding stated that the petition presented substantial information indicating that listing the Blanco blind salamander may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from water pollutants and water withdrawal. This document constitutes the 12-month finding on the June 25, 2007, petition to list the Blanco blind salamander under the Act.

We have carefully assessed the best scientific and commercial information available regarding the Blanco blind salamander and evaluated the petition's claims that the species warrants listing under the Act. We determined the type specimen on which the species' description was based either represents a historical occurrence of the federally endangered Texas blind salamander ( Typhlomolge rathbuni ) or it represents a unique species that is no longer extant.

To be considered an endangered or threatened species under the Act, a species' taxonomy must be valid. In our evaluation of the species' status, we found evidence that the Blanco blind salamander does not exist as a current taxonomic entity. Several morphological characters of the Blanco blind salamander overlap or are identical to the Texas blind salamander; the Blanco blind salamander specimen's size may have been influenced by chemical fixation and preservation, and may not reflect the original size of the living individual; and hydrogeological connectivity would likely facilitate movement between the Blanco River site and locations the Texas blind salamander inhabits. Given this, we find that the Blanco blind salamander type specimen is likely a Texas blind salamander individual. If it is a Texas blind salamander, then the Blanco blind salamander is not a valid taxonomic entity and, therefore, is not a listable entity under the Act.

While the best available science does indicate that the specimen collected in 1951 is a Texas blind salamander, due to the inability to conduct conclusive genetic testing, we considered the status of the Blanco blind salamander out of an abundance of caution.

Based on the best available information, if the Blanco blind salamander was in fact a valid entity, we conclude that it is now extinct. When evaluating the possibility of extinction, we attempted to minimize the possibility of either (1) prematurely determining that the species is extinct where individuals exist but remain undetected, or (2) assuming the species is extant when extinction has already occurred. Our determinations of whether the best available information indicates that a species is extinct include an analysis of the following criteria: Detectability of the species, adequacy of survey efforts, and time since last detection. All three criteria require taking into account applicable aspects of a species' life history. Other lines of evidence may also support the determination and be included in our analysis. In conducting our analysis of whether the Blanco blind salamander is extinct, we considered and thoroughly evaluated the best scientific and commercial data available. We reviewed the information available in our files, and other available published and unpublished information. These evaluations include information from recognized experts, Federal and State governments, academic institutions, and private entities.

The Edwards Aquifer, in the area of southeastern Hays County, Texas, has been and continues to be intensively sampled for its diverse and unique groundwater fauna. Beginning in the late 19th century, caves, springs, and wells in the area have yielded many new species, including the Texas blind salamander and a contingent of endemic groundwater invertebrates.

Like species with similar characteristics, the Blanco blind salamander is likely to have a low detectability. However, despite being mostly subterranean, stygobitic ( i.e., living exclusively in groundwater, such as aquifers or caves) Eurycea salamanders are often surveyed at springs and caves. Surveys were conducted in 2006 to re-detect the Blanco blind salamander at the Blanco River site and several groundwater wells north of that site in Hays and Travis Counties, Texas. Additionally, researchers excavated three surface fissures in the dry bed of the Blanco River, but none of the excavations extended to subterranean voids, and no salamanders were observed. Groundwater wells were surveyed north of the Blanco River 8 to 25 kilometers (5 to 15 miles) away from the locality of the Blanco specimen and did not yield stygobitic Eurycea salamanders, although they did extend into subterranean habitats. Recent survey efforts of wells and springs in Hays County in 2020 and 2021 have also not resulted in discovery of Blanco blind salamanders or other stygobitic Eurycea salamanders to date. Conversely, Texas blind salamanders are regularly observed and collected during surveys of caves, spring openings, and groundwater wells by permitted researchers from several localities in the City of San Marcos, Texas.

Since 1951, no stygobitic Eurycea salamanders have been collected from the Blanco River or areas to the north of the river in Hays County. Despite its low detectability, given the combination of surveys at the original locality and repeated surveys from surface and subterranean habitats nearby, we conclude that these efforts were adequate to detect the Blanco blind salamander should individuals exist. If the Blanco blind salamander was a valid taxon, we have no evidence that the species has remained extant for the past 70 years; thus, we conclude it is extinct.

In conclusion, based on the best available information, we have determined that the Blanco blind salamander is not a valid taxonomic entity and, accordingly, does not meet the statutory definition of a listable entity under the Act. Additionally, even if our conclusion is incorrect and the Blanco blind salamander was a valid taxonomic entity, it has not been collected in over 70 years despite survey efforts; thus, we have no evidence it has remained extant. Because the Blanco blind salamander either does not meet the definition of a listable entity or is extinct, it does not warrant listing under the Act. A detailed discussion of the basis for this finding can be found in the Blanco blind salamander species assessment form and other supporting documents (see ADDRESSES , above).

We request that you submit any new information concerning the taxonomy of, biology of, ecology of, status of, or stressors to Blanco blind salamander, Georgia bully, or Rio Grande cooter to the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT , whenever it becomes available. New information will help us monitor these species and make appropriate decisions about their conservation and status. We encourage local agencies and stakeholders to continue cooperative monitoring and conservation efforts.

A list of the references cited in this petition finding is available in the relevant species assessment form, which is available on the internet at https://www.regulations.gov in the appropriate docket (see ADDRESSES , above) and upon request from the appropriate person (see FOR FURTHER INFORMATION CONTACT , above).

The primary authors of this document are the staff members of the Species Assessment Team, Ecological Services Program.

The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

To ensure that any action resulting from this proposed rule will be as accurate and as effective as possible, we request that you send relevant information for our consideration. The comments that will be most useful and likely to influence our decisions are those that you support by quantitative information or studies and those that include citations to, and analyses of, the applicable laws and regulations. Please make your comments as specific as possible and explain the basis for them. In addition, please include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.

You must submit your comments and materials concerning this proposed rule by one of the methods listed above in ADDRESSES . We will not accept comments sent by email or fax or to an address not listed in ADDRESSES . If you submit a comment via https://www.regulations.gov, your entire comment—including any personal identifying information, such as your address, telephone number, or email address—will be posted on the website. When you submit a comment, the system receives it immediately. However, the comment will not be publicly viewable until we post it, which might not occur until several days after submission.

If you mail a hardcopy comment directly to us that includes personal information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. All comments and materials we receive will be available for public inspection via https://www.regulations.gov. Search for FWS-R7-MB-2021-0172, which is the docket number for this rulemaking.

The Migratory Bird Treaty Act of 1918 (MBTA, 16 U.S.C. 703 et seq. ) was enacted to conserve certain species of migratory birds and gives the Secretary of the Interior the authority to regulate the harvest of these birds. The law further authorizes the Secretary to issue regulations to ensure that the indigenous inhabitants of the State of Alaska may take migratory birds and collect their eggs for nutritional and other essential needs during seasons established by the Secretary so as to provide for the preservation and maintenance of stocks of migratory birds (16 U.S.C. 712(1)).

The take of migratory birds for subsistence uses in Alaska occurs during the spring and summer, during which timeframe when the annual fall/winter harvest of migratory birds is not allowed. Regulations governing the subsistence harvest of migratory birds in Alaska are located in title 50 of the Code of Federal Regulations (CFR) in part 92. These regulations allow for the continuation of customary and traditional subsistence uses of migratory birds and prescribe regional information on when and where the harvesting of birds in Alaska may occur.

The migratory bird subsistence harvest regulations are developed cooperatively. The Alaska Migratory Bird Co-Management Council (Council or AMBCC) consists of the U.S. Fish and Wildlife Service, the Alaska Department of Fish and Game (ADFG), and representatives of Alaska's Native population. The Council's primary purpose is to develop recommendations pertaining to the subsistence harvest of migratory birds.

The Council generally holds an annual spring meeting to develop recommendations for migratory bird subsistence-harvest regulations in Alaska that would take effect in the spring of the next year. In 2021, the in-person spring meeting did not occur due to the coronavirus pandemic. Instead, the Council met virtually via teleconference on April 5, 2021, to approve subsistence harvest regulations that would take effect during the 2022 harvest season. The Council's recommendations were presented to the Pacific Flyway Council for review and subsequent submission to the Service Regulations Committee (SRC) for approval at the SRC meeting on September 28 and 29, 2021.

Per the collaborative process described above, this document proposes the following revisions to the regulations for the taking of migratory birds for subsistence uses in Alaska during the spring and summer.

In part 92, subpart A (general provisions), we propose to clarify the regulations defining excluded areas, which are those areas that are closed to subsistence harvest.

First, we propose revisions to clarify that subsistence hunters whose communities petitioned successfully to be added to the list of included areas appearing at 50 CFR 92.5(a)(2) may harvest migratory birds within the entirety of the subsistence harvest areas designated for their community, including portions of harvest areas that occur within designated excluded areas.

For example, portions of the subsistence harvest areas selected by communities in the Upper Copper River Region listed as eligible under 50 CFR 92.5(a)(2)(i) occur within the Matanuska-Susitna Borough, an excluded area that is otherwise closed to harvest (50 CFR 92.5(b)(2)). The regulations do not specify that these portions of designated harvest areas that occur in excluded areas are, in fact, open to subsistence hunting. To address this issue, we propose to amend 50 CFR 92.5(b) to make an exception to harvest closures in those portions of excluded areas that fall within subsistence harvest areas designated for specific communities that petitioned to be listed as eligible for participation in the spring-summer subsistence hunt (50 CFR 92.5(a)(2)).

This exception would not apply to subsistence harvest areas that have been generally designated for regions ( e.g., Bering Strait Norton Sound Region) or subregions ( e.g., Bering Strait Norton Sound Stebbins/St. Michael Area) listed as included areas at 50 CFR 92.5(a).

Second, to clarify the boundaries of areas that are closed to subsistence harvest, we propose to address an apparent inconsistency in some terms used in part 92. The regulations governing subsistence harvest of migratory birds were set forth August 16, 2002 (67 FR 53511). That rule defined the term “village” at 50 CFR 92.4 and also set forth provisions regarding areas that are excluded from eligibility to participate in the subsistence harvest of migratory birds. Under 50 CFR 92.5(b)(2), excluded areas include “[v]illage areas” located in Anchorage, the Matanuska-Susitna Borough, the Kenai Peninsula roaded area, the Gulf of Alaska roaded area, Southeast Alaska, and the Central Interior Excluded Area. The definition of “village” at 50 CFR 92.4 and use of the term “village areas” at 50 CFR 92.5(b)(2) to describe excluded areas has created confusion in determining the boundaries of closed areas. We never intended for the excluded areas set forth at 50 CFR 92.5(b)(2) to be only those portions of those areas that meet the definition of “village” at 50 CFR 92.4. Therefore, we propose to remove the term “village areas” from 50 CFR 92.5(b)(2) to clarify that excluded areas are closed to harvest in their entirety, except those portions that occur within a harvest area that has been designated for a specific community.

Third, we would clarify the language defining boundaries of the excluded areas of the Kenai Peninsula roaded area and the Gulf of Alaska roaded area. The geographic boundaries of the Kenai Peninsula roaded area and the Gulf of Alaska roaded area are undefined in the regulations, making the development of usable hunt maps imprecise and ambiguous. The proposed changes to the regulations would allow publication of maps that are accurate and reproducible into the future and interpretable by subsistence hunters and law enforcement officials.

Finally, we are including in this proposed rule a needed correction. The Chugach Community of Cordova should have been included in the list of included areas for the Gulf of Alaska region in subpart A following Council action in 2014. The omission of this community from the regulations was the result of an inadvertent oversight. The Chugach Community of Cordova does appropriately appear in the regulations for eligible subsistence-harvest areas in 50 CFR 92.31(j)(2). Therefore, we are proposing to add the Chugach Community of Cordova to the current list of included areas in 50 CFR 92.5(a)(2)(ii).

These proposed revisions to the regulations in subpart A are not anticipated to result in a significant increase in harvest of birds and eggs because spring and summer subsistence practices likely occur in these areas at the present time.

In 50 CFR 92.31, we propose to clarify the designated harvest area boundaries for the communities of Port Graham and Nanwalek in the Gulf of Alaska Region and for the community of Tyonek in the Cook Inlet Region. Current harvest area definitions in the regulations for these communities are incomplete (that is, they do not describe a complete polygon), and only partially define the boundaries of the harvest areas. The proposed revisions would allow publication of maps that are accurate and reproducible into the future and provide a clear definition of the harvest areas designated for the communities that subsistence hunters and law enforcement officials can interpret and follow in the field.

The Service has dual objectives and responsibilities for authorizing a subsistence harvest while protecting migratory birds and threatened species. Although these objectives continue to be challenging, they are not irreconcilable, provided that: (1) Regulations continue to protect threatened species, (2) measures to address documented threats are implemented, and (3) the subsistence community and other conservation partners commit to working together.

Mortality, sickness, and poisoning from lead exposure have been documented in many waterfowl species, including threatened spectacled eiders ( Somateria fischeri ) and the Alaska- breeding population of Steller's eiders ( Polysticta stelleri ). While lead shot has been banned nationally for waterfowl hunting since 1991, Service staff have documented the availability of lead shot in waterfowl rounds for sale in communities on the Yukon-Kuskokwim Delta and North Slope. The Service will work with partners to increase our education, outreach, and enforcement efforts to ensure that subsistence waterfowl hunting is conducted using nontoxic shot.

We have monitored subsistence harvest for the past 25 years through the use of household surveys in the most heavily used subsistence harvest areas, such as the Yukon-Kuskokwim Delta. Based on our monitoring of the migratory bird species and populations taken for subsistence, we find that this rule will provide for the preservation and maintenance of migratory bird stocks as required by the MBTA. Communication and coordination between the Service, the AMBCC, and the Pacific Flyway Council have allowed us to set harvest regulations to ensure the long-term viability of the migratory bird stocks.

Spectacled eiders and the Alaska-breeding population of Steller's eiders are listed as threatened species under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq. ). Their migration and breeding distribution overlap with areas where the spring and summer subsistence migratory bird hunt is open in Alaska. Neither species is included in the list of subsistence migratory bird species at 50 CFR 92.22; therefore, both species are closed to subsistence harvest. Under 50 CFR 92.21 and 92.32, the Service may implement emergency closures, if necessary, to protect Steller's eiders or any other endangered or threatened species or migratory bird population.

Section 7 of the ESA requires the Secretary of the Interior to review other programs administered by the Department of the Interior and utilize such programs in furtherance of the purposes of the ESA. The Secretary is further required to insure that any action authorized, funded, or carried out by the Department of the Interior is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat.

The Service's Alaska Region Migratory Bird Management Program is conducting an intra-agency consultation with the Service's Fairbanks Fish and Wildlife Field Office on this proposed rule. A biological opinion will be updated based on new information to ensure this rulemaking action is not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. Therefore, we expect this rule will comply with the ESA.

Implementation of the Service's 2013 Supplemental Environmental Impact Statement (SEIS) on the hunting of migratory birds resulted in changes to the overall timing of the annual regulatory schedule for the establishment of migratory bird hunting regulations and the Alaska migratory bird subsistence harvest regulations. The programmatic document, “Second Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Hunting of Migratory Birds (SEIS 20130139),” filed with the Environmental Protection Agency (EPA) on May 24, 2013, addresses compliance with the National Environmental Policy Act by the Service for issuance of the annual framework regulations for hunting of migratory game bird species. We published a notice of availability of the SEIS in the Federal Register on May 31, 2013 (78 FR 32686), and our Record of Decision on July 26, 2013 (78 FR 45376).

The 2013 SEIS moved the annual SRC meeting from July to October, and this procedural change has greatly shortened our period each year to publish the proposed regulations and solicit comments. We are further bounded by a subsistence harvest start date of April 2, 2022. Thus, we have established a 30-day comment period for this proposed rule (see DATES , above), and we will be conducting Tribal consultations within Alaska simultaneously. We believe a 30-day comment period gives the public adequate time to provide meaningful comments.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this proposed rule is not significant.

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

The Department of the Interior certifies that, if adopted as proposed, this proposed rule will not have a significant economic impact on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). A regulatory flexibility analysis is not required. Accordingly, a small entity compliance guide is not required. This proposed rule would legalize a preexisting subsistence activity, and the resources harvested will be consumed.

This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:

(a) Would not have an annual effect on the economy of $100 million or more. It would legalize and regulate a traditional subsistence activity. It would not result in a substantial increase in subsistence harvest or a significant change in harvesting patterns. The commodities that would be regulated under this rule are migratory birds. This proposed rule deals with legalizing the subsistence harvest of migratory birds and, as such, does not involve commodities traded in the marketplace. A small economic benefit from this rule would derive from the sale of equipment and ammunition to carry out subsistence hunting. Most, if not all, businesses that sell hunting equipment in rural Alaska qualify as small businesses. We have no reason to believe that this proposed rule would lead to a disproportionate distribution of benefits.

(b) Would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions. This proposed rule does not deal with traded commodities and, therefore, would not have an impact on prices for consumers.

(c) Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This proposed rule deals with the harvesting of wildlife for personal consumption. It would not regulate the marketplace in any way to generate substantial effects on the economy or the ability of businesses to compete.

We have determined and certified under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ) that this rule would not impose a cost of $100 million or more in any given year on local, State, or Tribal governments or private entities. The proposed rule would not have a significant or unique effect on local, State, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act is not required. Participation on regional management bodies and the Council requires travel expenses for some Alaska Native organizations and local governments. In addition, they assume some expenses related to coordinating involvement of village councils in the regulatory process. Total coordination and travel expenses for all Alaska Native organizations are estimated to be less than $300,000 per year. In a notice of decision (65 FR 16405; March 28, 2000), we identified 7 to 12 partner organizations (Alaska Native nonprofits and local governments) to administer the regional programs. The ADFG also incurs expenses for travel to Council and regional management body meetings. In addition, the State of Alaska would be required to provide technical staff support to each of the regional management bodies and to the Council. Expenses for the State's involvement may exceed $100,000 per year but should not exceed $150,000 per year. When funding permits, we make annual grant agreements available to the partner organizations and the ADFG to help offset their expenses.

Under the criteria in Executive Order 12630, this proposed rule would not have significant takings implications. This proposed rule is not specific to particular land ownership, but instead applies to the harvesting of migratory bird resources throughout Alaska. A takings implication assessment is not required.

Under the criteria in Executive Order 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. We discuss effects of this rule on the State of Alaska in the Unfunded Mandates Reform Act section, above. We worked with the State of Alaska to develop these proposed regulations. Therefore, a federalism summary impact statement is not required.

The Department, in promulgating this proposed rule, has determined that it would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.

Consistent with Executive Order 13175 (65 FR 67249; November 9, 2000), “Consultation and Coordination with Indian Tribal Governments,” and Department of the Interior policy on Consultation with Indian Tribes (December 1, 2011), we will send letters via electronic mail to all 229 Alaska federally recognized Indian Tribes. Consistent with Congressional direction (Pub. L. 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Pub. L. 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267), we also will send letters to approximately 200 Alaska Native corporations and other Tribal entities in Alaska soliciting their input as to whether or not they would like the Service to consult with them on the 2022 migratory bird subsistence harvest regulations.

We implemented the amended treaty with Canada with a focus on local involvement. The treaty calls for the creation of management bodies to ensure an effective and meaningful role for Alaska's indigenous inhabitants in the conservation of migratory birds. According to the Letter of Submittal, management bodies are to include Alaska Native, Federal, and State of Alaska representatives as equals. They develop recommendations for, among other things: Seasons and bag limits, methods and means of take, law enforcement policies, population and harvest monitoring, educational programs, research and use of traditional knowledge, and habitat protection. The management bodies involve village councils to the maximum extent possible in all aspects of management. To ensure maximum input at the village level, we required each of the 11 participating regions to create regional management bodies consisting of at least one representative from the participating villages. The regional management bodies meet twice annually to review and/or submit proposals to the Statewide body.

This rule does not contain any new collection of information that requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has previously approved the information collection requirements associated with subsistence harvest reporting and assigned the following OMB control numbers:

• Alaska Migratory Bird Subsistence Harvest Household Survey, OMB Control Number 1018-0124 (expires 04/30/2024), and

• Regulations for the Taking of Migratory Birds for Subsistence Uses in Alaska, 50 CFR part 92, OMB Control Number 1018-0178 (expires 04/30/2024).

The annual regulations and options are considered in the January 2022 Environmental Assessment, “Managing Migratory Bird Subsistence Hunting in Alaska: Hunting Regulations for the 2022 Spring/Summer Harvest.” Copies are available from the person listed under FOR FURTHER INFORMATION CONTACT or at https://www.regulations.gov.

Executive Order 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. This is not a significant regulatory action under this Executive Order; it allows only for traditional subsistence harvest and improves conservation of migratory birds by allowing effective regulation of this harvest. Further, this proposed rule is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action under Executive Order 13211, and a statement of energy effects is not required.