Table of Contents I. Synopsis of the Proposed Rule II. Introduction A. Authority B. Background III. Proposed Standards A. Benefits and Burdens of TSLs Considered for Electric Motor Standards B. Annualized Benefits and Costs of the Proposed Standards IV. Procedural Issues and Regulatory Review A. Review Under the Regulatory Flexibility Act 1. Description of Reasons Why Action Is Being Considered 2. Objectives of, and Legal Basis for, Rule 3. Description on Estimated Number of Small Entities Regulated 4. Description and Estimate of Compliance Requirements Including Differences in Cost, if Any, for Different Groups of Small Entities 5. Duplication, Overlap, and Conflict with Other Rules and Regulations 6. Significant Alternatives to the Rule V. Public Participation A. Submission of Comments B. Public Meeting VI. Approval of the Office of the Secretary I. Synopsis of the Proposed Rule

The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part C  2 of EPCA established the Energy Conservation Program for Certain Industrial Equipment. (42 U.S.C. 6311-6317). Such equipment includes electric motors, the subject of this rulemaking.

Pursuant to EPCA, any new or amended energy conservation standard must be designed to achieve the maximum improvement in energy efficiency that DOE determines is technologically feasible and economically justified. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(2)(A)) Furthermore, the new or amended standard must result in a significant conservation of energy. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(3)(B)) EPCA also provides that not later than 6 years after issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6316(a); 42 U.S.C. 6295(m))

Elsewhere in this Federal Register , DOE is issuing a direct final rule amending the energy conservation standards for electric motors, along with this proposed rule as required by EPCA. (42 U.S.C. 6295(p)(4)(A)(i)) The amended standard levels in that document were submitted in a joint recommendation (the “November 2022 Joint Recommendation”)  3 by the American Council for an Energy-Efficient Economy (“ACEEE”), Appliance Standards Awareness Project (“ASAP”), National Electrical Manufacturers Association (“NEMA”), Natural Resources Defense Council (“NRDC”), Northwest Energy Efficiency Alliance (“NEEA”), Pacific Gas & Electric Company (“PG&E”), San Diego Gas & Electric (“SDG&E”), and Southern California Edison (“SCE”), hereinafter referred to as “the Electric Motors Working Group.” In a letter comment submitted December 12, 2022, the New York State Energy Research and Development Authority (“NYSERDA”) expressed its support of the November 2022 Joint Recommendation and urged DOE to implement it in a timely manner. DOE has determined that the November 2022 Joint Recommendation complies with the requirements of EPCA for issuance of a direct final rule. (42 U.S.C. 6295(p)(4)(A)(i))

In accordance with these and other statutory provisions discussed in this document, DOE proposes new and amended energy conservation standards for electric motors. The proposed standards, which are expressed in full-load efficiency, are shown in Table I.1, Table I.2 and Table I.3.

I. Background

On May 4, 2023, FHFA published in the Federal Register a proposed rule to amend its regulation governing prudential management and operations standards, located at 12 CFR part 1236. See 88 FR 28433. The preamble discussion contains inadvertent typographical errors in reference to the regulation in sections II. and III.E. Sections II, and III.E. of the preamble discussions, therefore, should have referenced “the regulation” instead of “the proposed rule”. There are no corrections to the proposed amendments to the regulation text in 12 CFR 1236 or to its appendix. For additional details on the proposed rulemaking, please see the May 4, 2023, Federal Register publication at 88 FR 28433.

In the proposed rule document FR Doc. 2023-09320 of May 4, 2023 (88 FR 28433), the following corrections are made:

1. On page 28433, in the right column, second full paragraph, lines 1, 13-14, the phrase “The proposed rule” is corrected to read “The regulation”.

2. On page 28434, in the left column, in the first full paragraph, lines 1, 11, 14, 19-20, 24, the words “proposed rule” are corrected to read “regulation”.

3. On page 28434, in the left column, in the second full paragraph, line 1, the words “proposed rule” are corrected to read “regulation”.

4. On page 28436, in the left column, second full paragraph, line 18, the words “proposed rule” are corrected to read “regulation”.

Comments Invited

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

The FAA will consider all comments received by the closing date for comments, and will consider comments filed late if it is possible to do so without incurring delay. The FAA may change these special conditions based on the comments received.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in title 14, Code of Federal Regulations (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 FAA will also post a report summarizing each substantive verbal contact received about these special conditions.

Confidential Business Information (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 these special conditions contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to these special conditions, 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 the indicated comments will not be placed in the public docket of these special conditions. Send submissions containing CBI to the individual listed in the FOR FURTHER INFORMATION CONTACT section above. Comments the FAA receives, which are not specifically designated as CBI, will be placed in the public docket for these special conditions.

On February 17, 2021, Lufthansa applied for a supplemental type certificate for the installation of a UPS system in the Model A319-133 and A321-200 series airplanes. The Airbus Model A319-133 and A321-200 series airplanes are twin-engine, transport category airplanes. The Airbus Model A319-133 airplane has a maximum passenger seating capacity of 160, and a maximum takeoff weight of 154,322 pounds. The Airbus Model A321-200 airplane has a maximum passenger seating capacity 230, and a maximum takeoff weight of 213,848 pounds.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Lufthansa must show that the Model A319-133 and A321-200 series airplanes, as changed, continue to meet the applicable provisions of the regulations listed in Type Certificate No. A28NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Airbus Model A319-133 and A321-200 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A319-133 and A321-200 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

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

The Airbus Model A319-133 and A321-200 series airplanes will incorporate the following novel or unusual design features:

This design feature for this installation of a UPS system is based on supercapacitor technology.

Currently, there are no regulatory or industry standards for supercapacitors and their installation on transport category airplanes. Supercapacitors are used to provide power to non-essential cabin equipment when the normal power source is interrupted for a short period of time. In this design, the supercapacitor UPS system will allow connected equipment to be provided back-up power if normal electrical power source is interrupted and remain operational such as during power transfers as well as provide transient voltage surge suppression should harmful high voltage transients occur. The UPS is only used for systems not critical to continued safe flight and landing.

Since the supercapacitor is being used as a high capacity electrical storage device and functions similarly to rechargeable batteries, the special conditions used for lithium batteries are appropriate for supercapacitor installations and the hazardous conditions that could be presented. These special conditions are necessary to assist in the testing and installation of this supercapacitor on the aircraft.

Special condition 1 requires that the supercapacitor installation be designed to preclude propagation of a thermal event, such as self-sustained, uncontrolled increases in temperature or pressure. Special condition 1 is intended to ensure that the supercapacitor system is designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the supercapacitor designer. Therefore, other special conditions are intended to protect the airplane and its occupants if other failures occur.

Special conditions 2, 6, 8, and 9 are self-explanatory.

Special condition 3 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to supercapacitor installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Supercapacitors may contain an electrolyte that is a flammable fluid.

Special condition 4 requires that each supercapacitor installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring interconnection system (EWIS) components from corrosive fluids or gases that may escape in such a way as to cause a hazardous condition.

While special condition 4 addresses corrosive fluids and gases, special condition 5 addresses heat. Special condition 5 requires that each supercapacitor installation have provisions to prevent any hazardous effect on surrounding structure or adjacent systems, equipment or EWIS components, caused by the maximum amount of heat the supercapacitor installation can generate due to any failure of the supercapacitor installation or any of the individual supercapacitors. The means of meeting special conditions 4 and 5 may be the same, but the requirements are independent and address different hazards.

Special condition 7 requires that supercapacitor be disconnected or otherwise removed from its charging source without the need for crew intervention should the supercapacitor become overheated or fail in a manner that may create a safety hazard. This requirement applies to all supercapacitor installations and is not limited to those whose proper functioning is required for the safe operation of the airplane.

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

As discussed above, these special conditions are applicable to the Airbus Model A319-133 and A321-200 series airplanes. Should Lufthansa apply at a later date for a change to the supplemental type certificate to include another model incorporating the same novel or unusual design feature included on Type Certificate No. A28NM, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on Airbus Models A319-133 and A321-200 series airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Airbus Model A319-133 and A321-200 series airplanes, as modified by Lufthansa Technik AG.

Each supercapacitor installation must:

1. Be designed to preclude the occurrence of uncontrolled increases in temperature or pressure under all foreseeable operating conditions to prevent fire and explosion.

2. Not emit explosive or toxic gasses, in normal operation or as the result of its failure that may accumulate in hazardous quantities in any area of the airplane.

3. Meet the requirements of § 25.863.

4. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring interconnection system (EWIS) components from corrosive fluids or gases that may escape to cause a hazardous condition.

5. Have provisions to prevent any hazardous effect on surrounding structure or adjacent systems, equipment, or EWIS components, caused by the maximum amount of heat it can generate during any failure including any individual supercapacitors.

6. Have a means to prevent overheating or overcharging of the supercapacitor.

7. Have a means to automatically disconnect it from its charging source in the event of an over-temperature condition or failure.

8. Have a monitoring and alerting feature that alerts the flightcrew when the capacity has fallen below acceptable levels if its function is required for safe operation of the airplane. The flightcrew alerting must be in accordance with the requirements of § 25.1322.

9. Have a means to prevent insufficient charging if required for safe operation of the airplane.

Comments Invited

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-2023-1046; Project Identifier AD-2023-00253-T” 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 this 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 regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

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 Wayne Ha, Aviation Safety Engineer, Continued Operational Safety Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; phone: 562-627-5238; email: wayne.ha@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA has received a report of a 0.16-inch crack at STA 1640 frame web common to the lower hinge intercostal tee clip inboard and center holes of the upper fastener row on a 757-200 airplane with 27,754 flight cycles and 79,425 flight hours. The crack was found by an operator accomplishing a frame segment replacement as part of a repair following Boeing Service Bulletin 757-53A0108 inspections (which is required by AD 2020-20-10, Amendment 39-21266 (85 FR 63002, October 6, 2020) (AD 2020-20-10)). AD 2020-20-10 requires an inspection of the STA 1640 fuselage frame between S-11 and S-16 for existing frame repairs or replacements, a detailed inspection for any crack, nick, or gouge, and repetitive high frequency eddy current (HFEC) and low frequency eddy current (LFEC) inspections for cracking and repair. The FAA issued AD 2020-20-10 to address cracking of the fuselage frame at STA 1640, which could result in reduced structural integrity of the airplane.

A damage tolerance analysis showed that existing Maintenance Planning Data (MPD) tasks and the inspections specified in Boeing Alert Service Bulletin 757-53A0108 are not adequate to find any crack in the STA 1640 frame web area common to the lower hinge intercostal tee clip inboard and center holes of the upper fastener row. This STA 1640 frame web crack is attributed to fatigue caused by flight loads and pressurization of the fuselage with higher than predicted stresses at this location. Additionally, for airplanes with Aviation Partners Boeing (APB) blended or scimitar blended winglets installed in accordance with Supplemental Type Certificate (STC) ST01518SE, the compliance times will be reduced by a factor of two compared to airplanes without these winglets. This condition could result in an undetected crack in the STA 1640 frame web common to the lower hinge intercostal tee clip inboard and center holes of the upper fastener row. Such cracking if not addressed, could result in the inability of a principal structural element to sustain limit loads which could adversely affect the structural integrity of the airplane.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed Boeing Alert Requirements Bulletin 757-53A0121 RB, dated September 28, 2022. This service information specifies procedures for a maintenance records check of the left and right side STA 1640 frame web between S-9 and S-20 for existing repair; repetitive UT inspections of the frame web for any cracks; and applicable on-condition actions. On-condition actions include repair.

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

This proposed AD would require accomplishing the actions specified in the service information already described except for any differences identified as exceptions in the regulatory text of this proposed AD. For information on the procedures and compliance times, see this service information at regulations.gov under Docket No. FAA-2023-1046.

The FAA estimates that this AD, if adopted as proposed, would affect 309 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

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

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

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

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 this 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:

Comments Invited

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-2023-1047; Project Identifier MCAI-2022-01601-T” 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 this 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 regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

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 Gabriel Kim, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; email 9-avs-nyaco-cos@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2022-69, dated December 16, 2022 (Transport Canada AD CF-2022-69) (also referred to as the MCAI), to correct an unsafe condition for certain De Havilland Aircraft of Canada Limited (Type Certificate Previously Held by Bombardier, Inc.) Model DHC-8-401 and -402 airplanes. The MCAI states that several instances occurred where the maintenance crew using the MLG alternate extension system did not open the MLG aft doors. An investigation found that the associated cam assembly failed due to a fractured cam assembly lever, a damaged spring box assembly, or a broken alternate release cable assembly.

The FAA is proposing this AD to address possible cam assembly, spring box assembly, and alternate release cable assembly failures. The unsafe condition, if not addressed, could result in asymmetric main landing gear configuration at landing, and a runway excursion.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1047.

The FAA reviewed De Havilland Aircraft of Canada Limited Service Bulletin 84-32-159, dated June 28, 2019. This service information specifies procedures for performing a general visual inspection of the cam assembly (part number (P/N) 48510-5) for discrepancies (such as the cam assembly does not return to its original rested position, or signs of an increased gap between the roller and the cam guide); a general visual inspection of the alternate release cable assembly (or uplock cable assembly) (P/N 48503-3) for discrepancies (such as a broken cable); a one-time general visual inspection for discrepancies (such as any bend on the plunger) of the left and right MLG spring box assembly (P/N 48504-1); and corrective actions. Corrective actions include replacing the cam assembly with a new cam assembly, replacing the alternate release cable assembly with a new alternate release cable assembly, and replacing the spring box assembly with a new spring box assembly.

The FAA also reviewed De Havilland Aircraft of Canada Limited Service Bulletin 84-32-172, dated August 16, 2022, including Collins Aerospace Service Bulletin 48500-32-152, dated July 18, 2022. This service information specifies procedures for replacing the left and right MLG alternate release cable assemblies, P/N 48503-3, with the redesigned alternate release cable assembly, P/N 48503-5.

The FAA also reviewed De Havilland Aircraft of Canada Limited Temporary Revision 32-603, dated December 1, 2022, which describes aircraft maintenance manual (AMM) TASK 32-34-16-400-804, “Installation of the Alternate Extension Cables—Center Fuselage to Nacelle.”

The FAA also reviewed AMM TASK 32-34-26-400-801, “Installation of the MLG Alternate-Extension Cam-Mechanism Assembly” of Subject 32-34-26, “Cam Mechanism Assembly—MLG Alternative Extension” in Chapter 32, “Landing Gear,” of the De Havilland Aircraft of Canada Limited Aircraft Maintenance Manual, Revision 76, dated March 5, 2022.

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

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 the 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 that the unsafe condition described previously is likely to exist or develop in other products of the same type designs.

This proposed AD would require accomplishing the actions specified in the service information already described. This proposed AD would also prohibit the installation of affected parts.

The FAA estimates that this AD, if adopted as proposed, would affect 55 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA estimates the following costs to do any necessary on-condition action that would be required based on the results of any required action. The FAA has no way of determining the number of aircraft that might need this on-condition action:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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 this 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:

Background I. Overview

Section 13103 of Public Law 117-169, 136 Stat. 1818, 1921 (August 16, 2022), commonly known as the Inflation Reduction Act of 2022 (IRA), added new section 48(e) to the Internal Revenue Code (Code) to increase the amount of the energy investment credit determined under section 48(a) (section 48 credit) with respect to eligible property that is part of a qualified solar and wind facility that is awarded an allocation of environmental justice solar and wind capacity limitation (Capacity Limitation). This document contains proposed definitions and rules relating to the allocation of Capacity Limitation for calendar year 2023 (2023 Capacity Limitation).

The amount of the energy investment credit determined under the section 48 credit for a taxable year is generally calculated by multiplying the basis of each energy property placed in service during that taxable year by the energy percentage (as defined in section 48(a)(2)). Section 48(e) increases the section 48 credit by increasing the energy percentage used to calculate the amount of the section 48 credit (section 48(e) Increase) in the case of qualified solar and wind facilities that receive an allocation of Capacity Limitation. The term “qualified solar and wind facility” is defined in section 48(e)(2) to mean any facility that (i) generates electricity solely from a wind facility, solar energy property, or small wind energy property; (ii) has a maximum net output of less than 5 megawatts (as measured in alternating current); and (iii) is described in at least one of four categories in section 48(e)(2)(A)(iii) (and in part II of this Background).

As described in part III of this Background, section 48(e)(4)(A) directs the Secretary of the Treasury or her delegate (Secretary) to “provide procedures to allow for an efficient allocation” of Capacity Limitation to qualified solar and wind facilities. Later this year, the Treasury Department and the IRS expect to issue details for the program applicable for the calendar year 2023 Capacity Limitation, covering a comprehensive set of procedures and rules for applicants. The majority of the information regarding the program's details will be procedural rules. Some of the information that the Treasury Department and the IRS intend to include, however, will provide more substantive details that cover threshold definitions and requirements that must be established to make allocations efficiently and effectively. Those aspects of the program's details are the subject of this notice of proposed rulemaking. The Treasury Department and the IRS expect that final guidance will be reflected in regulations.

Depending on the category of the facility, an allocation of Capacity Limitation may result in a section 48(e) Increase equal to either 10 percentage points or 20 percentage points. Section 48(e)(1)(A)(i) provides for a section 48(e) Increase of 10 percentage points for eligible property that is located in a low-income community, as defined in section 45D(e) (Category 1 facility), or on Indian land, as defined in section 2601(2) of the Energy Policy Act of 1992 (25 U.S.C. 3501(2)) (Category 2 facility). Section 48(e)(1)(A)(ii) provides for a section 48(e) Increase of 20 percentage points for eligible property that is part of a qualified low-income residential building project (Category 3 facility) or a qualified low-income economic benefit project (Category 4 facility). Under section 48(e)(1)(A)(i), a Category 1 or Category 2 facility that also qualifies as a Category 3 or Category 4 facility is considered a Category 3 facility or Category 4 facility (as applicable).

Section 48(e)(2)(B) provides that a facility will be treated as part of a qualified low-income residential building project if such facility is installed on a residential rental building which participates in a covered housing program (as defined in § 41411(a) of the Violence Against Women Act of 1994 (34 U.S.C. 12491(a)(3)), a housing assistance program administered by the Department of Agriculture under title V of the Housing Act of 1949, a housing program administered by a tribally designated housing entity (as defined in § 4(22) of the Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4103(22)), or such other affordable housing programs as the Secretary may provide, and (ii) the financial benefits of the electricity produced by such facility are allocated equitably among the occupants of the dwelling units of such building.

Section 48(e)(2)(C) provides that a facility will be treated as part of a qualified low-income economic benefit project if at least 50 percent of the financial benefits of the electricity produced by such facility are provided to households with income of less than 200 percent of the poverty line (as defined in section 36B(d)(3)(A) of the Code) applicable to a family of the size involved, or less than 80 percent of area median gross income (as determined under section 142(d)(2)(B) of the Code).

For a qualified low-income residential building project and a qualified low-income economic benefit project, section 48(e)(2)(D) provides that electricity acquired at a below-market rate will be considered a financial benefit.

Section 48(e)(4) directs the Secretary to establish a program, within 180 days of enactment of the IRA, to allocate amounts of Capacity Limitation to qualified solar and wind facilities. Notice 2023-17, 2023-10 I.R.B. 505, established the program under section 48(e) to allow amounts of Capacity Limitation to be allocated to qualified solar and wind facilities eligible for the section 48 credit (Low-Income Communities Bonus Credit Program). 1 Under section 48(e)(4)(C), the total annual Capacity Limitation that may be allocated under the Low-Income Communities Bonus Credit Program is 1.8 gigawatts of direct current capacity for each of the calendar years 2023 and 2024. Under section 48(e)(4)(D), if the annual Capacity Limitation for any calendar year exceeds the aggregate amount allocated for such year, the excess is carried forward to the next year, but not beyond calendar year 2024. 2

Consistent with Notice 2023-17, the Treasury Department and the IRS propose to reserve a portion of the total annual Capacity Limitation of 1.8 gigawatts of direct current capacity for each facility category for calendar year 2023 as follows:

The proposed rules in this document would supplement the guidance provided in Notice 2023-17 to outline the specific application procedures, additional allocation criteria, and applicable definitions, among other information, necessary to submit an application to request an allocation of the Capacity Limitation for calendar year 2023 under the Low-Income Communities Bonus Credit Program. The Treasury Department and the IRS request comments on these proposed definitions and requirements. The Treasury Department and the IRS also request comment on whether these proposed definitions and requirements should apply for purposes of the Low-Income Communities Bonus Credit Program for calendar year 2024 and the program to be established under section 48E(h) for calendar year 2025 and future years. The Treasury Department and the IRS anticipate further evaluating the program for 2023 to determine what further guidance may be helpful or necessary in the future.

The proposed rules relate to specific definitions and requirements regarding the following topics: (1) the definition of facility based on single project factors; (2) the definition of “in connection with” to demonstrate what it means for energy storage technology to be considered part of eligible property of the qualified facility; (3) definitions of the terms “financial benefit” and “electricity acquired at a below market rate” under section 48(e)(2)(D), as well as a manner to apply such definitions, appropriately, to Category 3 facilities that are part of qualified low-income residential building projects and Category 4 facilities that are part of qualified economic benefit projects; (4) the definition of “located in” for relevant geographic criteria; (5) a rule for facilities placed in service prior to an allocation award; (6) reservations of Capacity Limitation allocation for applicant facilities that meet certain Additional Selection Criteria; (7) sub-reservations of Capacity Limitation allocation for facilities built in a low-income community; (8) application materials demonstrating facility viability in order to allow for an efficient allocation process; (9) documentation and attestations to be submitted when a facility is placed in service; and (10) post-allocation compliance including disqualification and recapture of section 48(e) Increases.

The term “qualified solar and wind facility” is defined in section 48(e)(2)(A) to mean any facility that (i) generates electricity solely from a wind facility, solar energy property, or small wind energy property; (ii) has a maximum net output of less than 5 megawatts (as measured in alternating current); and (iii) is described in at least one of the four categories described in section 48(e)(2)(A)(iii) (Category 1, 2, 3, or 4). The Treasury Department and the IRS are concerned that some applicants may attempt to circumvent the less than 5-megawatt output limitation provided in section 48(e)(2)(A)(ii) by artificially dividing larger projects into multiple facilities. To prevent applicants from dividing larger projects that should be regarded as a single facility under section 48(e)(2)(A), solely for the purpose of the Low-Income Communities Bonus Credit Program, the Treasury Department and the IRS propose to aggregate into a single “qualified solar and wind facility” multiple facilities or energy properties of the same type (solar or wind) that are operated as part of a single project consistent with the single-project factors provided in section 7.01(2)(a) of Notice 2018-59, 2018-28 I.R.B. 196 or section 4.04(2) of Notice 2013-29, 2013-20 I.R.B. 1085, as applicable.

Therefore, the Treasury Department and the IRS propose to define a single qualified solar or wind facility as any facility that (i) generates electricity solely from a wind facility, solar energy property, or small wind energy property; (ii) that has a maximum net output of less than 5 megawatts (as measured in alternating current); and (iii) that is described in at least one of the four categories described in section 48(e)(2)(A)(iii) (Category 1, 2, 3, or 4). In addition, for purposes of determining allocations, administering the program fairly, and avoiding abuse, the Treasury Department and the IRS propose that multiple solar or wind energy properties or facilities that are operated as part of a single project would be aggregated and treated as a single facility. Whether multiple facilities or energy properties are operated as part of a single project would depend on the relevant facts and circumstances and would be evaluated based on the factors provided in section 7.01(2)(a) of Notice 2018-59 or section 4.04(2) of Notice 2013-29, as applicable.

Section 48(e)(3) defines “eligible property” to mean energy property that (i) is part of a wind facility described in section 45(d)(1) for which an election to treat the facility as energy property was made under section 48(a)(5) (wind facility), or (ii) is solar energy property described in section 48(a)(3)(A)(i) (solar energy property) or qualified small wind energy property described in section 48(a)(3)(A)(vi) (small wind energy property), including energy storage technology (as described in section 48(a)(3)(A)(ix)) “installed in connection with” such qualifying energy property. The Treasury Department and the IRS propose to define “installed in connection with” for energy storage technology to demonstrate what is required for such energy storage technology to be considered eligible property under section 48(e)(3).

Under the proposed definition energy storage technology would be “installed in connection with” other eligible property if both (1) the energy storage technology and other eligible property are considered part of a single qualified solar and wind facility because the energy storage technology and other eligible property are owned by a single legal entity, located on the same or contiguous pieces of land, have a common interconnection point, and are described in one or more common environmental or other regulatory permits; and (2) the energy storage technology is charged no less than 50 percent by the other eligible property. The Treasury Department and the IRS also propose to add a safe harbor, which would deem the energy storage technology to be charged at least 50 percent by the facility if the power rating of the energy storage technology is less than 2 times the capacity rating of the connected wind facility (in kW alternating current) or solar facility (in kW direct current).

Section 48(e)(2)(D) provides that “electricity acquired at a below market rate” will not fail to be taken into account as a financial benefit. To clarify this language, the Treasury Department and the IRS propose definitions of the terms “financial benefit” and “electricity acquired at a below market rate” under section 48(e)(2)(D), as well as a manner to apply such definitions, appropriately, to qualified low-income residential building projects (section 48(e)(2)(B)) and qualified economic benefit projects (section 48(e)(2)(C)). The definitions and requirements would be different for an allocation in Category 3 (section 48(e)(2)(B)) and Category 4 (section 48(e)(2)(C)).

For a facility to be treated as part of a qualified low-income residential building project, section 48(e)(2)(B)(ii) provides that the financial benefits of the electricity produced by such facility must be allocated equitably among the occupants of the dwelling units of a residential rental building that participates in a covered housing program or other affordable housing program (qualified residential property). The Treasury Department and the IRS propose to reserve allocations under this category exclusively for applicants that would apply the financial benefits requirement under Category 3 in the following manner.

The Treasury Department and the IRS propose that financial benefit can be demonstrated through net energy savings as defined below. At least 50 percent of the financial value of net energy savings would be required to be equitably passed on to building occupants. This requirement would recognize that not all the financial value of the net energy savings can be passed on to building occupants because a certain percentage can be assumed to be dedicated to lowering the operational costs of energy consumption for common areas, which benefits all building occupants. The Treasury Department and the IRS propose to reserve allocations under this category exclusively for applicants that would equitably pass on net energy savings by distributing equal shares among the qualified residential property's units that are designated as low-income under the covered housing program, or by distributing proportional shares based on each dwelling unit's electricity usage.

This proposal accounts for the specific nature of facilities serving low-income residential buildings and facility ownership, as the facility may be third party owned or commonly owned with the building.

In scenarios where the facility and the qualified residential property have the same ownership, the Treasury Department and the IRS propose to define the financial value of net energy savings as the financial value equal to the greater of: (1) 25 percent of the gross financial value of the annual energy produced or (2) the gross financial value of the annual energy produced minus the annual costs to operate the facility. Gross financial value of the annual energy produced is calculated as the sum of (a) the total self-consumed kilowatt-hours produced by the qualified solar and wind facility multiplied by the applicable building's metered price of electricity and (b) the total exported kilowatt-hours produced by the qualified solar and wind facility multiplied by the applicable building's volumetric export compensation rate for solar and wind kilowatt-hours. The annual operating costs are calculated as the sum of annual debt service, maintenance, replacement reserve, and other costs associated with maintaining and operating the qualified solar and wind facility.

If the facility and building are commonly owned, a signed benefits sharing agreement between the building owner and the tenants would be required. The Treasury Department and the IRS request comments on how to adjust definitions of gross financial value to account for scenarios in which building occupants are compensating the facility owner for energy services.

In scenarios where the facility and the qualified residential property have different ownership and the facility owner enters into a power purchase agreement or other contract for energy services with the qualified residential property owner, the Treasury Department and the IRS propose to define net energy savings as equal to the greater of: (1) 50 percent of the financial value of the annual energy produced by the facility which accrues to the owner of the qualified residential property in the form of utility bill credit and/or cash payments for net excess generation or (2) the financial value of the annual energy produced by the facility which accrues to the owner of the qualified residential property in the form of utility bill credit and/or cash payments for net excess generation minus any payments made by the building owner to the facility owner for energy services associated with the facility in a given year. In these scenarios, the facility owner must enter into an agreement with the building owner for the building owner to distribute the savings to residents.

The Treasury Department and the IRS request comments on how to adjust definitions of gross financial value to account for scenarios in which building occupants are compensating the facility owner for energy services.

Regardless of ownership, residential buildings may have master-metered or sub-metered utilities. The financial benefits of the electricity produced by the facility cannot be distributed to residents in master-metered buildings in the same manner as in sub-metered buildings and is often administratively infeasible in certain sub-metered buildings. Therefore, the Treasury Department and the IRS propose that for sub-metered buildings, the tenants must receive the financial value associated with utility bill savings in the form of a credit on their utility bills. The U.S. Department of Housing and Urban Development (HUD) has issued guidance for residents of sub-metered HUD-assisted housing that participate in community solar, providing an analysis of how community solar credits may affect utility allowance and annual income for rent calculations. 3 The Treasury Department and the IRS propose that applicants follow the HUD guidance and future HUD guidance on this issue to ensure that tenants' utility allowances and annual income for rent calculations are not negatively impacted.

The Treasury Department and the IRS are aware that in some States or jurisdictions it may not be administratively, or legally, possible to apply utility bill savings on residents' electricity bills. The Treasury Department and the IRS request comments on this issue and how financial benefits, such as services and building improvements, can be provided to residents in such residential buildings.

For master-metered buildings, the Treasury Department and the IRS propose that because residents do not have individually metered utilities and do not receive utility bills, the building owner must pass on the savings through other means, such as by providing certain benefits to the building residents beyond those provided prior to the qualified solar and wind facility being placed in service. HUD has issued guidance for how residents of mastered-metered HUD-assisted housing can benefit from owners' sharing financial benefits accrued from an investment in solar energy generation. 4 The Treasury Department and the IRS propose that applicants follow the HUD guidance and future HUD guidance on this issue to ensure that tenants' utility allowances and annual income for rent calculations are not negatively impacted.

For a facility to be treated as part of a qualified low-income economic benefit project, section 48(e)(2)(C) requires that at least 50 percent of the financial benefits of the electricity produced by the facility be provided to qualifying low-income households. To satisfy this standard, the Treasury Department and the IRS propose to require that the facility serves multiple households and at least 50 percent of the facility's total output is distributed to qualifying low-income households under section 48(e)(2)(C)(i) or (ii). In addition, to further the overall goals of the program, the Treasury Department and the IRS propose to reserve allocations under this category exclusively for applicants that would provide at least a 20-percent bill credit discount rate for all such low-income households. The Treasury Department and the IRS propose defining a “bill credit discount rate” as the difference between the financial benefit distributed to the low-income household (including utility bill credits, reductions in the low-income household's electricity rate, or other monetary benefits accrued by the household) and the cost of participating in the program (including subscription payments for renewable energy and any other fees or charges), expressed as a percentage of the financial benefit distributed to the low-income household. The bill credit discount rate can be calculated by starting with the financial benefit distributed to the low-income household, subtracting all payments made by the low-income customer to the facility owner and any related third parties as a condition of receiving that financial benefit, then dividing that difference by the financial benefit distributed to the low-income household.

To ensure these requirements are met, verification of households' qualifying low-income status is required. Applicants are responsible for proof-of-income verification and would be required to submit documentation upon placing the qualified solar and wind facility in service that identifies each qualifying low-income household, the output allocated to each qualifying low-income household in kW, and the method of income verification utilized.

Applicants may use category eligibility or other income verification methods to qualify low-income households. Categorical eligibility consists of obtaining proof of household participation in a needs-based Federal, 5 State, Tribal, or utility program with income limits at or below the qualifying income level for the specific facility (qualifying program). State agencies (for example, state community solar/wind program administrators) can also provide verification of low-income status if the State program's income limits are at or below the qualifying income level for the qualified solar and wind facility. If a household is not enrolled in a qualifying program, additional income verification methods can be used such as: paystubs, tax returns, or income verification through crediting agencies and commercial data sources. Eligibility based on the applicant (or contractors or subcontractors) collecting self-attestations is not permissible.

A qualified solar and wind facility is treated as “located in a low-income community” or “on Indian Land” under section 48(e)(2)(A)(iii)(I) or located in a geographic area under the Additional Selection Criteria (see part II.C) if the facility satisfies the nameplate capacity test (Nameplate Capacity Test).

Under the Nameplate Capacity Test, a facility that has nameplate capacity (for example, wind and solar facilities) is considered located in or on the relevant geographic area if 50 percent or more of the facility's nameplate capacity is in a qualifying area. A facility's nameplate capacity percentage is determined by dividing the nameplate capacity of the facility's energy-generating units that are located in the qualifying area by the total nameplate capacity of all the energy-generating units of the facility.

Nameplate capacity for an electricity generating unit means the maximum electricity generating output that the unit is capable of producing on a steady state basis and during continuous operation under standard conditions, as measured by the manufacturer and consistent with the definition provided in 40 CFR 96.202. Energy-generating units that generate direct current (DC) power before converting to alternating current (AC) (for example, solar photovoltaic) should use the nameplate capacity in DC, otherwise the nameplate capacity in AC should be used (for example, wind facilities). Where applicable, the International Standard Organization (ISO) conditions are used to measure the maximum electricity generating output or usable energy capacity. The nameplate capacity of any energy storage technology installed in connection with the qualified solar and wind facility does not affect the assessment of the Nameplate Capacity Test.

As stated in section 4.05 of Notice 2023-17, the Treasury Department and the IRS propose that facilities placed in service prior to being awarded an allocation of Capacity Limitation would not be eligible to receive an allocation. As described in Notice 2023-17, one of the broad goals of the Low-Income Communities Bonus Credit Program is to increase adoption of and access to renewable energy facilities in low-income and other communities with environmental justice concerns. Facilities that were placed in service prior to the allocation process do not increase adoption of and access to renewable energy facilities as compared to the absence of the Low-Income Communities Bonus Credit Program. Further, section 48(e)(4)(E)(i) provides that a facility must be placed in service within four years of receiving an allocation of Capacity Limitation, supporting allocations to new facilities that have not yet been placed in service. Accordingly, the Treasury Department and the IRS continue to propose that facilities placed in service prior to being awarded an allocation of Capacity Limitation would not be eligible to receive an allocation.

Under section 48(e)(4)(C), the total annual Capacity Limitation is 1.8 gigawatts of direct current capacity for the calendar year 2023 program. Section 4.02 of Notice 2023-17 specified how the annual Capacity Limitation would be allocated across the four facility categories in 2023: Located in a Low-Income Community (Category 1), Located on Indian Land (Category 2), Qualified Low-Income Residential Building Project (Category 3), and Qualified Low-Income Economic Benefit Project (Category 4). Section 4.07 of Notice 2023-17 provided that applications would be accepted in a phased approach for calendar year 2023, during 60-day application windows. Based on public feedback in response to Notice 2023-17 and an updated assessment of operational capabilities set up to administer the program, a new approach is proposed.

The Treasury Department and the IRS anticipate that the number of eligible applicants seeking an allocation may exceed the total Capacity Limitation allocation available to be allocated. The Treasury Department and the IRS are designing an application process that both ensures that allocations are awarded to facilities that advance the program goals previously stated in Notice 2023-17 and facilitates an efficient allocation process.

Accordingly, the Treasury Department and the IRS propose an approach that includes an initial application window in which applications received by a certain time and date would be evaluated together, followed with a rolling application process if Capacity Limitation is not fully allocated after the initial application window closes. Facilities that meet at least one of the two categories of specified ownership and geographic criteria (Additional Selection Criteria) would receive priority for an allocation within each facility category described in section 48(e)(2)(A)(iii). The Treasury Department and the IRS propose that at least 50 percent of the total Capacity Limitation in each facility category would be reserved for facilities meeting Additional Selection Criteria in the following fashion.

In evaluating applications received during the initial application window, priority would be given to eligible applications for facilities meeting at least one of the two Additional Selection Criteria. If the eligible applications for Capacity Limitation for facilities that meet at least one of the two Additional Selection Criteria categories exceed the Capacity Limitation for a category, facilities meeting both of the Additional Selection Criteria categories would be prioritized for an allocation. A lottery system may be used in oversubscribed categories to decide among similarly situated applications (for example, facilities that meet both of the Additional Selection Criteria categories, facilities that meet only one of the two Additional Selection Criteria categories, facilities that do not meet either of the Additional Selection Criteria categories). An applicant could not administratively appeal the Capacity Limitation allocation decisions made under the Low-Income Communities Bonus Credit Program.

If eligible applications for facilities that meet at least one of the two Additional Selection Criteria categories received during the initial application window total less than 50 percent of the Capacity Limitation for a category, additional Capacity Limitation would be reserved during the rolling application period such that 50 percent of the total Capacity Limitation in the category would be reserved for these facilities.

The Treasury Department and the IRS would retain the discretion to reallocate Capacity Limitation across categories and sub-categories in order to maximize allocation in the event one category or sub-category is oversubscribed and another has excess capacity.

The Treasury Department and the IRS propose that the two Additional Selection Criteria are Ownership Criteria and Geographic Criteria.

The Ownership Criteria category is based on characteristics of the applicant that owns the qualified solar and wind facility. A qualified solar and wind facility would meet the Ownership Criteria if it is owned by a Tribal Enterprise, an Alaska Native Corporation, a renewable energy cooperative, a qualified renewable energy company meeting certain characteristics, or a qualified tax-exempt entity. If an applicant wholly owns an entity that is the owner of a qualified solar and wind facility, and the entity is disregarded as separate from its owner for Federal income tax purposes (disregarded entity), the applicant, and not the disregarded entity, is treated as the owner of the qualified solar and wind facility for purposes of the Ownership Criteria.

A “Tribal Enterprise” for purposes of the Ownership Criteria is an entity that is (1) an Indian Tribal government (as defined in section 30D(g)(9) of the Code) that owns at least a 51 percent interest in, either directly or indirectly (through a wholly owned corporation created under its Tribal laws or through a section 3 or section 17 Corporation), 6 and (2) the Indian Tribal government has the power to appoint and remove a majority (more than 50 percent) of the individuals serving on the entity's board of directors or equivalent governing board.

An “Alaska Native corporation” for purposes of the Ownership Criteria is defined in section 3 of the Alaska Native Claims Settlement Act, 43 U.S.C. 1602(m).

A “renewable energy cooperative” for purposes of the Ownership Criteria is an entity that develops qualified solar and/or wind facilities and owns at least 51 percent of a facility and is either (1) a consumer or purchasing cooperative controlled by its members who are low-income households (as defined in section 48(e)(2)(C)) with each member having an equal voting right, or (2) a worker cooperative controlled by its worker-members with each member having an equal voting right.

A “qualified renewable energy company” for purposes of the Ownership Criteria would be an entity that serves low-income communities and provides pathways for the adoption of clean energy by low-income households. In addition to its general business purpose, the Treasury Department and the IRS are considering the following requirements that a qualified renewable energy company would need to satisfy:

(1) At least 51 percent of the entity's equity interests are owned and controlled by (a) one or more individuals, (b) a Community Development Corporation (as defined in 13 CFR 124.3), (c) an agricultural or horticultural cooperative (as defined in section 199A(g)(4)(A) of the Code), (d) an Indian Tribal government (as defined in section 30D(g)(9)), (e) an Alaska Native corporation (as defined in section 3 of the Alaska Native Claims Settlement Act, 43 U.S.C. 1602(m)), or (f) a Native Hawaiian organization (as defined in 13 CFR 124.3);

(2) After applying the controlled group rules under section 52(a) of the Code, has less than 10 full-time equivalent employees (as determined under section 4980H(c)(2)(E) and (c)(4) of the Code) and less than $5 million in annual gross receipts in the previous calendar year;

(3) First installed or operated a qualified solar and wind facility as defined in section 48(e)(2)(A) two or more years prior to the date of application; and

(4) Has installed and/or operated qualified solar and wind facilities as defined in section 48(e)(2)(A) with at least 100 kW of cumulative nameplate capacity located in one or more Low-Income Communities as defined in section 48(e)(2)(A)(iii)(I).

The Treasury Department and the IRS specifically request comments on these proposed elements for determining whether a business is a qualified renewable energy company. The Treasury Department and the IRS also request comments on an administrable rule to ensure that qualified renewable energy companies are employing workers in the Low-Income Communities.

A “qualified tax-exempt entity” for purposes of the Ownership Criteria is:

(1) An organization exempt from the tax imposed by subtitle A of the Code by reason of being described in section 501(c)(3) or section 501(d);

(2) Any State, the District of Columbia, or political subdivision thereof, any territory of the United States, or any agency or instrumentality of any of the foregoing;

(3) An Indian Tribal government (as defined in section 30D(g)(9)), political subdivision thereof, or any agency or instrumentality of any of the foregoing; or

(4) Any corporation described in section 501(c)(12) operating on a cooperative basis which is engaged in furnishing electric energy to persons in rural areas.

The Geographic Criteria category is based on where the facility will be placed in service. To meet the Geographic Criteria, a facility would need to be located in a Persistent Poverty County (PPC)  7 or in a census tract that is designated in the Climate and Economic Justice Screening Tool (CEJST) as disadvantaged based on whether the tract is either (a) greater than or equal to the 90th percentile for energy burden and is greater than or equal to the 65th percentile for low income, or (b) greater than or equal to the 90th percentile for PM 2.5 exposure and is greater than or equal to the 65th percentile for low income. 8 The Treasury Department and the IRS propose that applicants who meet the Geographic Criteria at the time of application are considered to continue to meet the Geographic Criteria for the duration of the recapture period, unless the location of the facility changes.

A PPC is generally defined as any county where 20 percent or more of residents have experienced high rates of poverty over the past 30 years. For the purposes of the Low-Income Communities Bonus Credit Program, the Treasury Department and the IRS propose the PPC measure adopted by the U.S. Department of Agriculture to make this determination. The most recent measure, which would apply for the 2023 program year, incorporates poverty estimates from the 1980, 1990, 2000 censuses, and 2007-11 American Community Survey 5-year average.

Notice 2023-17 provided that 700 megawatts of 2023 calendar year Capacity Limitation would be reserved for Category 1. The Treasury Department and the IRS anticipate that Category 1 will receive the largest number of applications, and that most applications will be for small rooftop residential solar facilities. Therefore, the Treasury Department and the IRS propose to subdivide the 700 MW Capacity Limitation reservation for facilities seeking a Category 1 allocation with 560 megawatts reserved specifically for eligible residential behind the meter (BTM) facilities, including rooftop solar. The sub-reservation of a substantial portion of the allocation in Category 1 for eligible residential BTM facilities would help ensure that allocations are predominantly awarded to facilities serving residences and consumers, rather than facilities serving businesses. The remaining 140 megawatts of Capacity Limitation would be available for applicants with front of the meter (FTM) facilities as well as non-residential BTM facilities.

The Treasury Department and the IRS propose to define an eligible residential BTM facility as single-family or multi-family residential qualified solar and wind facility that does not meet the requirements for Category 3 and is BTM. A qualified wind and solar facility is BTM if: (1) it is connected with an electrical connection between the facility and the panelboard or sub-panelboard of the site where the facility is located, (2) it is to be connected on the customer side of a utility service meter before it connects to a distribution or transmission system (that is, before it connects to the electricity grid), and (3) its primary purpose is to provide electricity to the utility customer of the site where the facility is located. This also includes systems not connected to a grid and that may not have a utility service meter, and whose primary purpose is to serve the electricity demand of the owner of the site where the system is located.

The Treasury Department and the IRS propose to define a FTM facility. A facility is FTM if it is directly connected to a grid and its sole purpose is to provide electricity to one or more offsite locations via such grid; alternatively, FTM is defined as a facility that is not BTM.

Section 48(e)(4)(A) directs the Secretary to provide procedures to allow for an efficient allocation process. Additionally, section 48(e)(4)(E)(i) requires that facilities allocated an amount of Capacity Limitation be placed in service within four years of the date of allocation. To promote efficient allocation, and to better ensure that allocations will be awarded to facilities that are sufficiently viable and well defined to allow for a review for an allocation, and sufficiently advanced such that they are likely to meet the four-year placed-in-service deadline, the Treasury Department and the IRS propose to require applicants to submit certain documentation and attestations when applying for an allocation. Some requirements differ for FTM and BTM facilities and other requirements differ by Category and Additional Selection Criteria.

Under this proposed approach, applicants would be required to submit the following:

The Treasury Department and the IRS also propose to require facilities that received a Capacity Limitation allocation to report to the Department of Energy (DOE) that the facility has been placed in service, and to submit additional documentation or complete additional attestations with this reporting. At the time of application, applicants would not necessarily be able to demonstrate compliance with certain eligibility requirements, as the facility would not yet be operating at that time. Requiring placed in service reporting would allow for final verification that the facilities that were awarded a Capacity Limitation Allocation have met certain eligibility requirements under the Low-Income Communities Bonus Credit Program.

The applicant-owner would submit documentation or sign an attestation for the following:

The Treasury Department and the IRS recognize that because, under section 48(e)(4)(E)(i), an applicant has four years after the date of an allocation of Capacity Limitation to place eligible property in service, circumstances may change prior to the property being placed in service such that a facility is no longer eligible for the allocation it received. In addition, to promote an efficient allocation process consistent with section 48(e)(4)(A), the Treasury Department and the IRS want to discourage material changes in project plans, such as significant reductions in facility size that tie up Capacity Limitation that could otherwise be awarded to other qualified facilities.

Accordingly, the Treasury Department and the IRS propose that a facility that was awarded a Capacity Limitation allocation is disqualified from receiving that allocation if prior to or upon the facility being placed in service: (1) the location where the facility will be placed in service changes; (2) the nameplate capacity of the facility increases such that it exceeds the less than 5-megawatt alternating current output limitation provided in section 48(e)(2)(A)(ii) or decreases by the greater of 2 kW or 25 percent of the Capacity Limitation awarded in the allocation; (3) the facility cannot satisfy the financial benefits requirements under section 48(e)(2)(B)(ii) as planned (if applicable) or cannot satisfy the financial benefits requirements under section 48(e)(2)(C) as planned (if applicable); (4) the eligible property which is part of the facility that received the Capacity Limitation allocation is not placed in service within four years after the date the applicant was notified of the allocation of Capacity Limitation to the facility; or (5) the facility received a Capacity Limitation allocation based, in part, on meeting the Ownership Criteria and ownership of the facility changes prior to the facility being placed in service such that the Ownership criteria is no longer satisfied, unless a) the original applicant retains an ownership interest in the entity that owns the facility and b) the successor owner attests that after the five year recapture period, the original applicant that met the Ownership Criteria will become the owner of the facility or that this original applicant will have the right of first refusal.

Section 48(e)(5) requires the Secretary, by regulations or other guidance, to provide rules for recapturing the benefit of any section 48(e) Increase with respect to any property which ceases to be property eligible for such section 48(e) Increase (but which does not cease to be investment credit property within the meaning of section 50(a)). The period and percentage of such recapture is determined under rules similar to the rules of section 50(a). To the extent provided by the Secretary, such recapture may not apply with respect to any property if, within 12 months after the date the applicant becomes aware (or reasonably should have become aware) of such property ceasing to be property eligible for such section 48(e) Increase, the eligibility of such property for such section 48(e) Increase is restored. Such restoration of a section 48(e) Increase is not available more than once with respect to any facility.

The Treasury Department and the IRS propose that the following circumstances result in a recapture event if the property ceases to be eligible for the increased credit under section 48(e): (1) property described in section 48(e)(2)(A)(iii)(II) fails to provide financial benefits over the 5-year period after its original placed-in-service date; (2) property described under section 48(e)(2)(B) ceases to allocate the financial benefits equitably among the occupants of the dwelling units, such as not passing on to residents the required net energy savings of the electricity; (3) property described under section 48(e)(2)(C) ceases to provide at least 50 percent of the financial benefits of the electricity produced to qualifying households as described under section 48(e)(2)(C)(i) or (ii), or fails to provide those households the required minimum 20 percent bill credit discount rate; (4) for property described under section 48(e)(2)(B), the residential rental building the facility is a part of ceases to participate in a covered housing program or any other housing program described in section 48(e)(2)(B)(i), if applicable; and (5) a facility increases its output such that the facility's output is 5 MW AC or greater, unless the applicant can prove that the output increase is not attributable to the original facility but rather is output associated with a new facility under the 80/20 Rule (the cost of the new property plus the value of the used property). See Rev. Rul. 94-31, 1994-1 C.B. 16.

These proposed rules are proposed to apply to taxable years ending on or after the date that final rules adopting these proposed rules are published in the Federal Register .

Executive Orders 13563 and 12866 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

These proposed rules have been designated by the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) as subject to review under Executive Order 12866 pursuant to the Memorandum of Agreement (April 11, 2018) between the Treasury Department and the Office of Management and Budget (OMB) regarding review of tax rules. OIRA has determined that the proposed rulemaking is significant and subject to review under Executive Order 12866 and section 1(b) of the Memorandum of Agreement. Accordingly, the proposed rules have been reviewed by OMB.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (PRA) requires that a Federal agency obtain the approval of OMB before collecting information from the public, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit. The collections of information in these proposed regulations contain reporting and recordkeeping requirements that are required to obtain the section 48(e) Increase. This information in the collections of information would generally be used by the IRS and DOE for tax compliance purposes and by taxpayers to facilitate proper reporting and compliance. A Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

The recordkeeping requirements mentioned within this proposed regulation are considered general tax records under Section 1.6001-1(e). These records are required for IRS to validate that taxpayers have met the regulatory requirements and are entitled to receive section 48(e) Increase. For PRA purposes, general tax records are already approved by OMB under 1545-0123 for business filers, 1545-0074 for individual filers, and 1545-0047 for tax-exempt organizations.

The proposed regulation also mentions reporting requirements related to providing attestations and supporting documentation for initial application, supplemental documentation for specific facilities, and to confirm a facility is placed in service as detailed in this NPRM. These attestations and documentation would allow IRS to allocate Capacity Limitation and ensure taxpayers keep and maintain compliance for the credits. To assist with the collections of information, the DOE will provide certain administration services for the Low-Income Communities Bonus Credit Program. Among other things, the DOE will establish a website portal to review the applications for eligibility criteria and will provide recommendations to the IRS regarding the selection of applications for an allocation of Capacity Limitation. These collection requirements will be submitted to the Office of Management and Budget (OMB) under 1545-NEW for review and approval in accordance with 5 CFR 1320.11. The likely respondents are business filers, individual filers, and tax-exempt organization filers. A summary of paperwork burden estimates for the application and attestations is as follows:

Estimated number of respondents: 70,000.

Estimated burden per response: 60 minutes.

Estimated frequency of response: 1 for initial applications, 1 for follow-up documentation, and 1 for projects placed in service.

Estimated total burden hours: 210,000 burden hours.

IRS will be soliciting feedback on the collection requirements for the application and attestations. Commenters are strongly encouraged to submit public comments electronically. Written comments and recommendations for the proposed information collection should be sent to www.reginfo.gov/public/do/PRAMain, with copies to the Internal Revenue Service. Find this particular information collection by selecting “ Currently under Review—Open for Public Comments ” then by using the search function. Submit electronic submissions for the proposed information collection to the IRS via email at pra.comments@irs.gov (indicate REG-110412-23 on the Subject line). Comments on the collection of information should be received June 30, 2023. Comments are specifically requested concerning:

Whether the proposed collection of information is necessary for the proper performance of the functions of the IRS, including whether the information will have practical utility. The accuracy of the estimated burden associated with the proposed collection of information. How the quality, utility, and clarity of the information to be collected may be enhanced. How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) (RFA) imposes certain requirements with respect to Federal rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act (5 U.S.C. 551 et seq. ) and that are likely to have a significant economic impact on a substantial number of small entities. Unless an agency determines that a proposal is not likely to have a significant economic impact on a substantial number of small entities, section 603 of the RFA requires the agency to present an initial regulatory flexibility analysis (IRFA) of the proposed rule. The Treasury Department and the IRS have not determined whether the proposed rule would likely have a significant economic impact on a substantial number of small entities. This determination requires further study and an IRFA is provided in these proposed regulations. The Treasury Department and the IRS invite comments on both the number of entities affected and the economic impact on small entities.

Pursuant to section 7805(f), this notice of proposed rulemaking has been submitted to the Chief Counsel of Advocacy of the Small Business Administration for comment on its impact on small business.

The proposed regulations would provide guidance for purposes of participation in the program to allocate the environmental justice solar and wind capacity limitation under § 48(e) for the Low-Income Communities Bonus Credit Program. The proposed rule is expected to encourage applicants to invest in solar and wind energy. Thus, the Treasury Department and the IRS intend and expect that the proposed rule will deliver benefits across the economy and environment that will beneficially impact various industries.

The Small Business Administration estimates in its 2018 Small Business Profile that 99.9 percent of United States businesses meet its definition of a small business. The applicability of these proposed regulations does not depend on the size of the business, as defined by the Small Business Administration. As described more fully in the preamble to this proposed regulation and in this IRFA, these rules may affect a variety of different businesses across serval different industries.

The Treasury Department and the IRS expect to receive more information on the impact on small businesses through comments on this proposed rule and again when participation in the Low-Income Communities Bonus Credit Program commences.

The recordkeeping and reporting requirements would increase for applicants that participate in the Low-Income Communities Bonus Credit Program. Although the Treasury Department and the IRS do not have sufficient data to determine precisely the likely extent of the increased costs of compliance, the estimated burden of complying with the recordkeeping and reporting requirements are described in the Paperwork Reduction Act section of the preamble.

The Treasury Department and the IRS considered alternatives to the proposed regulations. For example, the Treasury Department and the IRS considered exclusively using a lottery system for all over-subscribed categories, rather than creating reservations for facilities meeting additional selection criteria. Although a lottery system may ultimately need to be used for an oversubscribed category, the Treasury Department and the IRS decided that it was important to propose reserving Capacity Limitation for facilities that meet certain additional selection criteria that further the policy goals of the Low-Income Communities Bonus Credit Program.

Additionally, when considering how to define “in connection with,” the Treasury Department and the IRS were mindful that the statute requires the energy storage technology to be installed in connection with a qualifying solar or wind facility to be eligible for an increase in the energy percentage used to calculate the amount of the section 48 credit. Different alternatives were considered on how to address this definition. For example, the Treasury Department and the IRS considered but ultimately decided not to incorporate the proposed safe harbor (deeming the energy storage technology to be charged at least 50 percent by the facility if the power rating of the energy storage technology is less than 2 times the capacity rating of the connected wind or solar) as part of the general rule to define “in connection with.” The proposed general rule instead requires the energy storage technology to have a sufficient nexus to the other eligible property because it is part of the single project and is significantly charged by the eligible property.

Another example where different alternatives were considered was with respect to application materials. Section 48(e)(4)(A) directs the Secretary to provide procedures to allow for an efficient allocation process, and section 48(e)(4)(E)(i) allows an applicant up to four years after receiving a Capacity Limitation allocation to place eligible property into service. Alternatives were considered on how best to balance these statutory requirements, considering practical issues for taxpayers and residents as well as the traditional structure and arrangement of these solar and wind transactions, including considerations on the type of facility (BTM or FTM) and the capacity of the facility. Among other things, the Treasury Department and the IRS considered whether an application for an interconnection agreement or an executed interconnection agreement should be required as part of the application materials. The proposed regulations are based on the view that the executed interconnection agreement, if applicable, is an essential documentation to demonstrate sufficient project maturity.

Additionally, the Treasury Department and the IRS considered a variety of bill credit discounts for Category 4 qualified low-income benefit project facilities. The bill credit discounts considered included 10 percent, 15 percent, or 20 percent. Alternatively, the Treasury Department and the IRS considered the option of a range of discounts from 10 percent to 20 percent from which applicants could choose which discount rate to provide low-income customers. However, to ensure that low-income customers are receiving meaningful financial benefits, the Treasury Department and the IRS decided to propose a 20 percent discount.

The proposed rule would not duplicate, overlap, or conflict with any relevant Federal rules. As discussed in the Explanation of Provisions, the proposed rules would merely provide requirements, procedures, and definitions related to the Low-Income Communities Bonus Credit Program. The Treasury Department and the IRS invite input from interested members of the public about identifying and avoiding overlapping, duplicative, or conflicting requirements.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a State, local, or Tribal government, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. This proposed rule does not include any Federal mandate that may result in expenditures by State, local, or Tribal governments, or by the private sector in excess of that threshold.

Executive Order 13132 (Federalism) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on State and local governments, and is not required by statute, or preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. These regulations do not have federalism implications and do not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive order.

Before these proposed rules are adopted as final rules, consideration will be given to comments that are submitted timely to the IRS as prescribed in this preamble under the ADDRESSES section. The Treasury Department and the IRS request comments on all aspects of the proposed rules. Any electronic or paper comments submitted will be made available at https://www.regulations.gov or upon request.

Guidance cited in this preamble is published in the Internal Revenue Bulletin and is available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at https://www.irs.gov.

The principal author of these proposed rules is the Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. However, other personnel from the Treasury Department and the IRS participated in their development.

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking PATCOM Patrol Commander § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

Tiki Lee's Dock Bar of Sparrows Point, MD, and David Schultz Airshows LLC of Clearfield, PA, notified the Coast Guard that they will be conducting the 2023 Tiki Lee's Shootout on the River Airshow from 7 to 8 p.m. on July 14, 2023, from 2 to 3 p.m. on July 15, 2023, and from 2 to 3 p.m. on July 16, 2023. High speed, low-flying civilian and military aircraft air show performers will operate within a designated, marked aerobatics box located on Back River, between Lynch Point to the south and Walnut Point to the north. The event is being held adjacent to Tiki Lee's Dock Bar, 4309 Shore Road, Sparrows Point, in Baltimore County, MD. Hazards from the air show include risks of injury or death resulting from aircraft accidents, dangerous projectiles, hazardous materials spills, falling debris, and near or actual contact among participants and spectator vessels or waterway users if normal vessel traffic were to interfere with the event. Additionally, such hazards include participants operating near a designated navigation channel, as well as operating adjacent to waterside residential communities. The COTP Maryland-National Capital Region has determined that potential hazards associated with the air show would be a safety concern for anyone intending to participate in this event and for vessels that operate within specified waters of Back 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 proposes to establish special local regulations from 6 p.m. on July 14, 2023, through 4 p.m. on July 16, 2023. The regulations would be enforced from 6 to 9 p.m. on July 14, 2023, from 1 to 4 p.m. on July 15, 2023, and from 1 to 4 p.m. on July 16, 2023. The regulated area would cover all navigable waters of Back River within an area bounded by a line connecting the following points: from the shoreline at Lynch Point at latitude 39°14′46″ N, longitude 076°26′23″ W, thence northeast to Porter Point at latitude 39°15′13″ N, longitude 076°26′11″ W, thence north along the shoreline to Walnut Point at latitude 39°17′06″ N, longitude 076°27′04″ W, thence southwest to the shoreline at latitude 39°16′41″ N, longitude 076°27′31″ W, thence south along the shoreline to the point of origin, located in Baltimore County, MD. The regulated area is approximately 4,200 yards in length and 1,200 yards in width.

This proposed rule provides additional information about areas within the regulated area and their definitions. These areas include “Aerobatics Box” and “Spectator Areas.”

The proposed duration of the special local regulations and size of the regulated area are intended to ensure the safety of life on these navigable waters before, during, and after activities associated with the air show, scheduled from 7 to 8 p.m. on July 14, 2023, from 2 to 3 p.m. on July 15, 2023, and from 2 to 3 p.m. on July 16, 2023. 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 2023 Tiki Lee's Shootout on the River Airshow 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. Operators of vessels already at berth desiring to move those vessels when the event is subject to enforcement would be required to obtain permission before doing so. 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. Official patrol vessels would direct spectators to the designated spectator area. Only participant vessels would be allowed to enter the aerobatics box. 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 Back River for 9 total enforcement hours. This waterway supports mainly 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 would be able to transit the regulated area as instructed by 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 proposed 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 proposed 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 potential effects of this proposed 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 lasting for 9 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. 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-2023-0461 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. Also, if you click on the Dockets tab and then the proposed rule, you should see a “Subscribe” option for email alerts. The option will notify you when comments are posted, or a final rule is published.

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:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

On February 17, 2023, Sean James notified the Coast Guard that it will be conducting a private fireworks display from 9:30 p.m. to 10 p.m. on July 1, 2023. The fireworks are to be launched from a barge in the center of Whites Bay approximately 167 yards from shore in Henderson Harbor, NY. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Buffalo (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a 140-yard radius of the barge.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 140-yard radius of the fireworks barge before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034.

The COTP is proposing to establish a safety zone from 9 to 10:30 p.m. on July 1, 2023. The safety zone would cover all navigable waters within 140 yards of a barge in Whites Bay located approximately 167 yards from shore in Henderson Harbor, NY. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9:30 to 10 p.m. fireworks display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. 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, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone which would impact a small designated area of Whites Bay for less than 1 hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard 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 proposed 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 proposed 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 potential effects of this proposed 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 a safety zone lasting 1.5 hours that would prohibit entry within 140 yards of a fireworks barge. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. 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-2023-0383 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. Also, if you click on the Dockets tab and then the proposed rule, you should see a “Subscribe” option for email alerts. The option will notify you when comments are posted, or a final rule is published.

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 165 as follows:

After considering the requests to extend the public comment period received from various parties, the EPA has decided to extend the public comment period until August 2, 2023. This extension will ensure that the public has additional time to review the proposed rule.

Rationale. On April 13, 2023, the U.S. Environmental Protection Agency (EPA) proposed a rule titled “National Emission Standards for Hazardous Air Pollutants: Ethylene Oxide Emissions Standards for Sterilization Facilities Residual Risk and Technology Review.” 88 FR 22790. The comment period on this proposed rule currently closes on June 12, 2023. The EPA has received numerous requests for additional time to review and comment on this proposed rule. The EPA has decided to extend the period by 15 days. The public comment period will now end on June 27, 2023.

Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2019-0178. All documents in the docket are listed in https://www.regulations.gov/ . Although listed, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. With the exception of such material, publicly available docket materials are available electronically in Regulations.gov .

Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2019-0178. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov/, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit electronically to https://www.regulations.gov/ any information that you consider to be CBI or other information whose disclosure is restricted by statute. This type of information should be submitted as discussed below.

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Our preferred method to receive CBI is for it to be transmitted electronically using email attachments, File Transfer Protocol (FTP), or other online file sharing services ( e.g., Dropbox, OneDrive, Google Drive). Electronic submissions must be transmitted directly to the OAQPS CBI Office at the email address oaqpscbi@epa.gov, and as described above, should include clear CBI markings and note the docket ID. If assistance is needed with submitting large electronic files that exceed the file size limit for email attachments, and if you do not have your own file sharing service, please email oaqpscbi@epa.gov to request a file transfer link. If sending CBI information through the postal service, please send it to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2019-0178. The mailed CBI material should be double wrapped and clearly marked. Any CBI markings should not show through the outer envelope.

Background

The U.S. Fish and Wildlife Service is the Federal agency delegated with the primary responsibility for managing migratory birds, including bald eagles and golden eagles. Our authority derives primarily from the Migratory Bird Treaty Act of 1918, as amended, 16 U.S.C. 703-12 (MBTA), which implements conventions with Great Britain (for Canada), Mexico, Japan, and the Russian Federation. The MBTA protects certain migratory birds from take, except as permitted under the MBTA. We implement the provisions of the MBTA through regulations in parts 10, 13, 20, 21, and 22 of title 50 of the Code of Federal Regulations (CFR). Regulations pertaining to migratory bird permits are set forth at 50 CFR part 21. In addition, the Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d (hereafter referred to as the Eagle Protection Act), prohibits take of bald eagles and golden eagles except pursuant to Federal regulations. The Eagle Protection Act authorizes the Secretary of the Interior to issue regulations to permit the “taking” of eagles for various purposes, including the protection of “other interests in any particular locality” (16 U.S.C. 668a), provided the taking is compatible with the preservation of eagles. Regulations pertaining to eagle permits are set forth at 50 CFR part 22.

The Service has long authorized activities under regulatory authorizations. The origins of the regulatory authorization “general exceptions to permit requirements” (50 CFR 21.12) can be traced back as far as 1944. This proposed rulemaking action would improve organization and transparency by redesignating the existing regulatory authorizations codified at 50 CFR 21.12(a)-(d) to their own sections. The Service also proposes new regulatory authorizations. Finally, we propose to modify the limitations on permits under the Airborne Hunting Act regulations (50 CFR part 19) to support emerging uses of technology for bird conservation.

We propose to revise existing regulatory authorizations and add new regulatory authorizations by amending various provisions in the regulations governing migratory bird permits (50 CFR part 21) and the regulations governing eagle permits (50 CFR part 22). Additional proposed amendments to 50 CFR parts 21 and 22 would update references to 50 CFR 21.12. We also propose to add a definition for “humane and healthful conditions” to 50 CFR 21.6 and 22.6, remove the current regulatory authorization for the possession of live migratory birds, and make clarifying changes to Federal authorizations under Airborne Hunting Act regulations (50 CFR 19.21). We describe each of the proposed regulations in more detail below in this preamble.

Regulatory authorizations are regulations that establish eligibility criteria and conditions for the take or possession of migratory birds by an entity without requiring a permit to conduct those activities. Regulatory authorizations can include conditions and recordkeeping, reporting, and inspection requirements but otherwise have a relatively low administrative burden and require little to no interaction with the Service. Regulatory authorizations are most appropriate for situations that have straightforward eligibility criteria, do not require case-by-case customization of conditions, and pose a low risk to migratory bird populations. Entities that are eligible for a regulatory authorization must comply with the required conditions, including records and reporting requirements, and are subject to enforcement for noncompliance.

The Service proposes modifications to five existing regulatory authorizations (currently in 50 CFR 21.12(a)-(d) and indicated with “proposed for revision” in the preamble headings below). These modifications clarify language in these existing authorizations that is unclear or has created unintended restrictions or allowances. In this rulemaking, the Service also proposes new regulatory authorizations. These regulatory authorizations are for activities currently authorized under existing permit types for the following purposes: salvage, activities by agency natural resource employees, and exhibition of eagle specimens. The proposed regulations are not authorizing a new activity: Instead, they are proposing to change the authorization mechanism from a permit to a regulatory authorization. After decades of issuance, these permit types have straightforward eligibility criteria, and the permit conditions do not require case-by-case customization, making them appropriate for a regulatory authorization.

Current regulations include a regulatory authorization that authorizes any person to remove a migratory bird from the interior of a building or structure (50 CFR 21.12(d)). We propose to redesignate this regulation to 50 CFR 21.14 and make clarifying revisions. We propose to expand the authorization from the current text of “residence or a commercial or government building” to “residence, business, or similar human-occupied building or structure.” We propose to amend current text that inadvertently excluded structures similar to buildings, such as belltowers. It is beneficial to birds and humans for us to allow removal of birds unintentionally trapped in the interior of any building or structure. As proposed, this authorization would not apply to birds or nests on the exterior of a building or structure. Removal of active nests on the exterior of buildings would continue to require a permit, such as in exterior eaves or bridges. We also propose additional text that would require any removal of birds to be undertaken under humane and healthful conditions and also include sources for technical assistance.

Current regulations require a permit for any person to salvage ( i.e., pick up) migratory birds found dead, including parts, feathers, nonviable eggs, and inactive nests. Salvage permits are currently issued under the special purpose permits regulations (50 CFR 21.95). We propose a new authorization at 50 CFR 21.16 for any person to salvage migratory birds found dead. Federal, State, or local guidance for safe handling and disposal of dead wildlife should be followed. All birds salvaged must be promptly disposed of by donation to a person or entity authorized to receive them, such as for purposes of education or science, or disposed of by complete destruction. Any person may contact the Service Migratory Bird Program to determine if an entity is authorized to receive donated birds. Birds may not be retained for personal use, sold, bartered, or traded.

We propose this authorization for two reasons. First, to address one-time salvage situations such as: a person who finds a migratory bird in good condition and seeks to put the remains to good use by donation to a nature center; or a person who picks up a dead bird to put it in the trash. It does not make sense to prohibit these everyday activities or to require a permit to conduct them. Second, this proposed regulatory authorization would also relieve the administrative burden of the permitting process for both the Service and for those who salvage birds with some regularity. Salvage permits have minimal issuance criteria and no customized permit conditions. To reduce the administrative burden for the public and the Service, we propose to replace the current permit requirement for salvage with a regulatory authorization.

The Service recognizes that bald eagles and golden eagles hold cultural significance for many Native American Tribes. In honor of our trust relationship with Native American Tribes, the proposed regulation limits the disposition of ( i.e., what can be done with) salvaged bald eagles and golden eagles. Current salvage permit conditions require that salvaged eagles, parts, and feathers be disposed of by donation to the Service's National Eagle Repository in Commerce City, CO, and that the Repository be contacted for donation instructions. Currently, persons without salvage permits who find an eagle must notify a local, State, or Federal wildlife agency that has authorization to salvage the eagle, parts, or feathers. The agency then sends the items to the National Eagle Repository. However, most wildlife agencies have limited capacity to engage in these activities, which results in many found eagles, parts, and feathers failing to reach the National Eagle Repository. The proposed regulation would help relieve this problem and increase the availability of eagles to members of federally recognized Tribes through the National Eagle Repository.

We propose to continue to require that any salvaged bald eagles or golden eagles be donated to the National Eagle Repository and to allow the National Eagle Repository to determine if eagles, parts, or feathers are unsuitable for distribution. However, the proposed rule provides that, if determined unsuitable by the National Eagle Repository, those items could be donated for scientific or exhibition purposes or completely destroyed. The proposed rule does not change the authorization for Native American Tribes to retain eagles with a Tribal eagle remains permit (50 CFR 22.60).

Current regulations authorize certain public entities to possess migratory bird specimens (50 CFR 21.12(b)(1)). We propose to redesignate this regulation to 50 CFR 21.18 and make the following revisions: We propose to restrict this authorization to possession of specimens only ( i.e., exclude live birds) and to expand this authorization to all public entities (as defined in 50 CFR 10.12). We propose additional revisions to incorporate current universal permit conditions required in possession permits for educational use under the special purpose regulations at 50 CFR 21.95.

We propose to adopt the following interpretation of the term “public” as part of this rulemaking. “Public” in relation to a museum, zoological park, or scientific or educational institution is currently defined in our general permit regulations at 50 CFR 10.12 as referring to museums, zoological parks, and scientific or educational institutions that are open to the general public and are either established, maintained, and operated as a governmental service or are privately endowed and organized but not operated for profit. We would interpret the following terms used in this definition of “public” as follows:

• “Open to the general public” means an entity that is open on a regularly scheduled basis during publicly posted hours of at least 400 hours per calendar year or conducts at least 12 public educational programs per year. The entity may charge a fee for entry or to attend programs. A program would not qualify as a public program if access is restricted to a limited group of individuals.

• “Governmental service” means services provided by government agencies, including Federal, State, Tribal, or local agencies, as well as services provided by entities operating on behalf of a government agency, such as contractors. Those operating on behalf of an agency must have documentation ( e.g., a letter from the agency) authorizing operation.

• “Nonprofit organization” means an entity that is privately endowed ( i.e., funded) and Internal Revenue Service tax-exempt under 26 U.S.C. 501(c)(3).

• The term “endowed” is synonymous with “funded” and does not require a minimum endowment to qualify as public. The Service recommends that an entity's financial health and stability should be sufficient to cover the operational costs associated with the activities conducted as well as costs that will cover migratory bird or eagle placement in the event the entity must close. In future rulemaking, the Service may consider a minimum endowment requirement for certain permit types, such as those involving the possession of live birds. Individuals and for-profit entities do not qualify as “public.”

This proposed regulation would not authorize the possession of live migratory birds without a permit. The current regulations at 50 CFR 21.12(b)(1) authorize possession of live birds without a permit in certain situations for qualifying entities. We are proposing to eliminate general authorization to possess live birds and instead require a permit for those activities. Elsewhere in this issue of the Federal Register , the Service has also published an advance notice of proposed rulemaking regarding the exhibition of live migratory birds and eagles for educational purposes (RIN 1018-BF58). Any entity currently operating under 50 CFR 21.12(b)(1) may continue activities currently authorized by the regulatory authorization until the Service finalizes the proposed educational use regulations. Certain aspects of this proposed rulemaking must be finalized before promulgating the educational use rulemaking. For that reason, it is not feasible to leave the current regulatory authorization for live bird possession in place until the educational use regulations are finalized. Therefore, the Service proposes to remove the existing regulatory authorization for live possession of migratory birds but allow currently excepted entities to continue operating as authorized until the educational use regulations are finalized, at which time those entities would have to comply with the new regulations.

Currently, an eagle exhibition permit (50 CFR 22.50) is required to possess eagle specimens for exhibition purposes, including mounts, feathers, parts, eggs, and nests. These permits are limited under the Eagle Protection Act to public museums, public scientific societies, or public zoological parks (16 U.S.C. 668a). We propose a regulatory authorization for public museums, public scientific societies, and public zoological parks to possess eagle specimens for exhibition use without a permit. This regulatory authorization does not include any taking of eagles, and any eagle specimens must have been legally obtained under the terms of a part 22 eagle permit. These permits have straightforward issuance criteria and conditions that are standard for all permittees. The majority of these permittees are government entities that display a single, mounted eagle in a visitor center or building entrance. To reduce the administrative burden for these public entities and the Service, we propose to remove the permit requirement and instead authorize possession under a regulatory authorization. We propose to create a new subpart in part 22 for this regulatory authorization that will have a similar structure to part 21, which sets forth regulations for the exceptions to permit requirements in subpart B.

We anticipate there would be no change in the availability of eagles for members of federally recognized Tribes as a result of this proposed action. Nearly all eagle specimens for exhibition use are already in possession. Any eagle specimens newly acquired for exhibition use must be approved by the National Eagle Repository as not suitable for Native American distribution. Authorization from the National Eagle Repository must accompany any newly acquired specimens before transfer to exhibition use.

The Eagle Protection Act (16 U.S.C. 668a) restricts authorization for scientific or exhibition purposes to “public museums, scientific societies, and zoological parks.” The Service uses a plain-English interpretation of “museum” and “zoological park,” by which a public museum is a building or place where objects are curated for and displayed to the public, and a zoological park is a place where living animals are kept in enclosures and displayed to the public. The Eagle Protection Act's inclusion of the term “scientific societies” does not readily have a plain-English interpretation. The Service proposes to adopt the following interpretation: A public scientific society is any entity that, as part of its purpose, promotes public knowledge about science or conducts research and makes data and findings available to the public. Public scientific societies may include government agencies, schools and universities, and nongovernmental organizations. Qualifying as a public museum, scientific society, or zoological park is only one of the criteria necessary to conduct eagle exhibition or eagle scientific collecting activities. We would continue to maintain appropriate standards for evaluating an entity's qualifications relative to the authorization requested.

A regulatory authorization currently authorizes licensed veterinarians to provide veterinary care of sick, injured, and orphaned migratory birds including eagles (50 CFR 21.12(c)). We propose to redesignate this regulation to 50 CFR 21.20 and make the following revisions: (1) edit the existing language to improve readability, (2) clarify what is included in veterinary care, and (3) clarify expectations regarding disposition of live and dead migratory birds. The proposed language is consistent with the rehabilitation regulations (50 CFR 21.76).

Regulations currently authorize natural resource and public health agency employees to address avian disease outbreaks (50 CFR 21.12(b)(2)) without a permit. We propose to redesignate this regulation to 50 CFR 21.32 and make the following revisions. We propose to clarify the existing language and expand the current scope of this authorization from disease outbreaks to all mortality events. A mortality event is an unforeseen event that kills an unexpectedly high number of individual birds in a particular location over a short period of time. The dead birds must exhibit similar pathological behavior prior to death or similar clinical signs. We propose to adopt the U.S. Geological Survey—National Wildlife Health Center's interpretation of “unexpectedly high” as five or more individuals (see usgs.gov/centers/nwhc ). The National Wildlife Heath Center is the science lead in the Department of Interior on the detection, control, and prevention of wildlife disease in the United States. The primary use of this regulatory authorization is to respond to avian infectious disease outbreaks, such as avian influenza or West Nile virus. Timely response is necessary to identify the cause of the outbreak, contain its spread, and reduce exposure and potential infection of humans, livestock, other domestic animals, and wildlife.

We propose to expand this authorization from infectious disease outbreaks to include other mortality events because many mortality events ( e.g., those caused by toxins or mass starvation) may have an unclear cause at the time of discovery. A timely response is necessary to ensure public safety until the cause can be determined. The proposed authorization also clarifies that take of asymptomatic birds for activities such as disease monitoring is not covered by this regulatory authorization. Instead, agencies conducting disease monitoring of asymptomatic, live birds should obtain a scientific collecting permit (50 CFR 21.73).

Service and State wildlife agency employees are authorized under special purpose permits (50 CFR 21.95) to salvage birds, use migratory bird specimens for educational programs, transport birds to medical care, and relocate birds in harm's way. The Service proposes to establish a new regulatory authorization for these activities at 50 CFR 21.34 and no longer require a permit. We propose this authorization to better facilitate agency employees conducting routine activities and reduce the administrative burden of the permit process on the Service and other natural resource agencies. The proposed regulation adopts the same permit conditions that the Service currently uses when issuing permits to employees of the Service and State wildlife agencies under the special purpose regulations at 50 CFR 21.95.

Currently, the Service issues permits to Federal and State wildlife agencies to conduct the activities as just described. The proposed authorization also includes natural resource agency employees of U.S. Territories and federally recognized Tribes. Most of the activities authorized under current permits are covered by the other proposed authorizations in subpart B, such as salvage (proposed 50 CFR 21.16), educational use (proposed 50 CFR 21.18 and 22.15), transportation to medical care (50 CFR 21.76), and relocation from inside of structures (proposed 50 CFR 21.14). This proposed authorization would authorize natural resource employees to possess sick, injured, or orphaned birds for up to 72 hours for transport to care and to humanely euthanize birds, if necessary. Natural resource agency employees are often in remote areas and are in the best position to provide humane care, without increasing bird stress by transporting long distances. Consistent with current permit conditions, this proposed regulatory revision would authorize the salvage of birds and relocation when birds or humans are at risk.

Regulations currently authorize Department of the Interior law enforcement personnel (50 CFR 21.12(a)) to conduct certain activities without a permit. We propose to redesignate this regulation to 50 CFR 21.40 and clarify that this authorization pertains to all law enforcement agencies authorized to enforce laws consistent with the MBTA or Eagle Protection Act. This authorization would be limited to personnel performing official law enforcement duties. We also propose allowing law enforcement agents to temporarily designate authority to another individual to acquire, possess, transport, or dispose of migratory birds on behalf of law enforcement in certain circumstances—for example, to pick up and dispose of a deceased bird in a remote area. The temporary delegation should be recorded in writing by the law enforcement agent delegating the authority. The document must record the name and contact information of both the individual authorized and the authorizing agent as well as the dates authorized and clearly explain the extent of the actions the individual is authorized to perform.

Regulations currently require any live wildlife to be possessed under “humane and healthful conditions” (50 CFR 13.41). We propose adding a definition to the definitions sections for migratory bird permits (50 CFR 21.6) and eagle permits (50 CFR 22.6) to define “humane and healthful conditions” as the phrase applies to the possession of live migratory birds and live bald eagles and golden eagles. The definition would be identical for both part 21 and part 22. The proposed definition includes both temporary ( e.g., trap-release activities) and long-term ( e.g., rehabilitation or exhibition activities) possession. The proposed definition also clarifies that humane and healthful conditions include all aspects of possession and care, such as handling, housing, feeding, watering, sanitation, ventilation, shelter, protection from predators and vermin, enrichment, veterinary care, and euthanasia.

We propose to remove the reference to the Minimum Standards for Wildlife Rehabilitation (2000) as guidelines for evaluating the adequacy of caging dimensions (50 CFR 21.76(e)(1)). The National Wildlife Rehabilitators Association and International Wildlife Rehabilitation Council recently published an updated Standards for Wildlife Rehabilitation (2021). Rather than proposing to amend the regulation each time the National Wildlife Rehabilitators Association updates its standards, we will propose to develop a public policy that identifies Standards for Wildlife Rehabilitation (2021) as the Service's standard guidance document for use in evaluating humane and healthful conditions at rehabilitation facilities.

The harassment of migratory birds does not require authorization under the MBTA. However, the Airborne Hunting Act (AHA; 16 U.S.C. 742j-1) prohibits the use of an aircraft to harass any wildlife, which includes migratory birds (50 CFR 19.11). Current regulations authorize the harassment of migratory birds under the AHA (50 CFR 19.21), but authorization is currently limited to activities that can be authorized under depredation permits (50 CFR 21.100).

The regulations in 50 CFR part 19 have not been substantively revised since they were issued on January 4, 1974. The AHA defines “aircraft” as “any contrivance used for flight in the air” (16 U.S.C. 742j-1(c)). In 1974, the meaning of an “aircraft” was limited to vehicles controlled by an onboard pilot. More recently, the meaning of “aircraft” has expanded to reflect the use of unmanned vehicles including drones.

Unmanned Aircraft Systems (UAS) are classified as “aircraft” by the U.S. Department of the Interior's Office of Aviation Services (Information Bulletin 13-05) and meet the AHA's definition; however, they are functionally very different from onboard-piloted aircraft. The use of UAS has expanded greatly and was understandably not envisioned at the time of the 1974 rulemaking. Many uses of UAS are beneficial to migratory bird conservation and safer for humans but fall outside the scope of depredation permits. For example, seabird research on rocky outcrops and islands has been limited because human access to these areas is difficult or unsafe. Human presence can also disturb the colony. However, UAS have been successfully used in these environments to count seabirds and monitor success. Raptors nests on human infrastructure such as towers provide another example where UAS use is beneficial to both humans and birds. Project proponents often must alter work on infrastructure if a nest has eggs or chicks present; however, humans climbing infrastructure to identify nest status can be unsafe for humans and birds if adult birds attempt to defend the nest. UAS can be used to quickly view into the nest and determine nest status. The Service considers use of UAS in both of these examples to be better for migratory birds, safer for humans, and also outside the scope of what can currently be permitted under depredation permits.

We propose to continue authorizing aircraft use (including UAS use) that may potentially harass migratory birds under migratory bird permits or eagle permits. However, we propose to expand this authorization to include any appropriate part 21 or part 22 permit, not just depredation permits. This proposed change will provide the necessary mechanisms to authorize the new and emerging uses of UAS that are consistent with the AHA's exception for permits that authorize “administration or protection of land, water, wildlife, livestock, domesticated animals, human life, or crops” (16 U.S.C. 742j-1(b)(1)).

Part 13 describes general permit procedures, including issuance of permits (§ 13.21). This regulation includes factors that disqualify a person from receiving a permit. These factors include conviction of a felony violation of the MBTA or Eagle Protection Act, prior revocation of permits for certain reasons, failure to pay fees and fines, and failure to submit reports. The Service considers regulatory authorizations to constitute a permit, as defined in 50 CFR 10.12. The regulation is the document issued by the Service which describes, authorizes, and limits the activity and is signed by the authorized official, the DOI Assistant Secretary of Fish, Wildlife, and Parks. To clarify that disqualifying also apply to regulatory authorizations, we propose adding § 21.5 and § 22.5, which would adopt the part 13 disqualifying factors for all activities authorized by permit, including regulatory authorizations in part 21 and part 22.

Because we are redesignating the regulatory authorizations to new CFR sections, we need to correct cross-references to these sections in other parts of our regulations. Affected sections include rehabilitation permits (§ 21.76), falconry standards and falconry permitting (§ 21.82), raptor propagation permitting (§ 21.85), and eagle scientific and exhibition permits (§ 22.50). We are not making any changes to the falconry regulations or raptor propagation regulations beyond updating regulation references. These proposed updates are administrative in nature; they do not change the species protected by the regulations or the permit requirements or any other requirements of the MBTA or its implementing regulations.

The public comment period begins with the publication of this document in the Federal Register and will continue through the date set forth above in DATES . Written comments that are received or postmarked by that date will become part of the public record associated with this proposed rulemaking action. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that the entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Executive Order 12866 provides that the Office of Management and Budget, 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 and calls for improvements in the Nation's regulatory system to promote predictability, 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.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small businesses, small organizations, and small government jurisdictions. However, no regulatory flexibility analysis is required if the head of an agency certifies the rule would not have a significant economic impact on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. We have examined this proposed rule's potential effects on small entities as required by the Regulatory Flexibility Act and determined that this action would not have an economic impact on any small entities. This proposed rule is deregulatory in nature. It would expand the scope of current regulatory authorizations as well as eliminate current permits by creating new authorizations. Thus, we certify that this proposed rule would not have a significant economic impact on a substantial number of small entities.

This is not a major rule under SBREFA (5 U.S.C. 804(2)). This proposed rule would not have an annual effect on the economy of $100 million or more; would not cause a major increase in costs or prices for consumers, individual industries, or Federal, State, or local government agencies, or geographic regions; and 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.

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

a. This proposed rule would not “significantly or uniquely” affect small governments. A small government agency plan is not required. The regulatory revisions would not affect small government activities in any significant way.

b. This proposed rule would not produce a Federal mandate of $100 million or greater in any year. Therefore, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with E.O. 12630, the proposed rule would not have significant takings implications. This proposed rule does not contain a provision for taking of private property, so a takings implication assessment is not required. This proposed rule is deregulatory in nature. It would expand the scope of current authorizations as well as eliminate current permits by creating new authorizations.

This proposed rule would not have sufficient federalism effects to warrant preparation of a federalism summary impact statement under E.O. 13132. It would not interfere with the States' abilities to manage themselves or their funds. No significant economic impacts are expected to result from the proposed regulations changes.

In accordance with E.O. 12988, the Office of the Solicitor has determined that this proposed rule would not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This proposed rule contains new information collections. All information collections require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501 et seq. ). We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. We will ask OMB to review and approve the information collection requirements contained in this rulemaking related to permit applications, reports, and related information collections under the MBTA.

As part of our continuing effort to reduce paperwork and respondent burdens, and in accordance with 5 CFR 1320.8(d)(1), we invite the public and other Federal agencies to comment on any aspect of this proposed information collection, including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response.

Comments that you submit in response to this proposed rulemaking are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

The information that we collect to determine eligibility to possess migratory birds and eagles by the general public, educators, and government agencies is the minimum necessary for us to determine if the applicant meets/continues to meet issuance requirements for the particular activity under the MBTA and Eagle Protection Act. The proposed new information collection requirements identified below require approval by OMB:

1. Written Petitions—Request for Waiver from Disqualification (50 CFR 21.5) —A conviction, or entry of a plea of guilty or nolo contendere, for a felony violation of the Lacey Act (18 U.S.C. 42, as amended), the Migratory Bird Treaty Act (16 U.S.C. 703-712), or the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) disqualifies any such person from exercising the authorization granted by regulation or permit under part 21, unless such disqualification has been expressly waived by the Director in response to a written petition.

2. Obtaining Landowner Permission to Access Land (50 CFR 21.16) —Regulations do not grant land access. Authorized individuals requiring access are responsible for obtaining permission from landowners when necessary and for complying with other applicable laws.

3. 3rd Party Notifications — National Eagle Repository (50 CFR 21.16) —Authorized individuals who salvage a whole bald eagle or golden eagle (eagle), part of an eagle ( e.g., wing or tail), or feathers must immediately contact the National Eagle Repository and follow the Repository's instructions on transferring the eagle, parts, or feathers to the Repository.

4. 3rd Party Notifications — Transfer of Live Migratory Birds (50 CFR 21.20) —Within 48 hours after hospitalization is no longer required, live migratory birds must be transferred to a federally permitted migratory bird rehabilitator. If unable to transfer a bird within that time, authorized individuals must contact their regional migratory bird permit office for assistance in locating a permitted migratory bird rehabilitator, authorization to continue care, or a recommendation to euthanize the bird.

5. 3rd Party Notifications — Endangered and Threatened Wildlife (50 CFR 21.20) —Licensed veterinarians must notify the appropriate Ecological Services Office within 24 hours of receiving a migratory bird that is also on the List of Endangered and Threatened Wildlife (50 CFR 17.11).

6. Requests for Written Authorization — National Eagle Repository (50 CFR 22.15) —Eagle specimens salvaged from the wild after [EFFECTIVE DATE OF FINAL RULE] must have written authorization from the National Eagle Repository for exhibition use.

7. Agency Designation Letter (50 CFR 21.34) —Individuals under the direct supervision of an agency employee ( e.g., volunteers or agents under contract to the agency) may, within the scope of their official duties, conduct the activities authorized by this authorization. An authorized individual must have a designation letter from the agency describing the activities that may be conducted by the individual and any date and location restrictions that apply.

8. Law Enforcement Authorization (50 CFR 21.40) —Law enforcement personnel may designate authorization to non-law-enforcement personnel to acquire, possess, transport, or dispose of migratory birds on the behalf of law enforcement under this authorization. Designations must include the name and contact information of the individual designated, dates valid, activities authorized, and name and contact information of the authorizing agent.

9. 3rd Party Notifications — Federally Permitted Rehabilitator (50 CFR 21.14, 21.34) —Authorized individuals must immediately contact a federally permitted migratory bird rehabilitator and follow the rehabilitator's instructions when:

a. § 21.14—Any birds removed by trapping must be immediately released to the wild in a humane and healthful manner, unless the bird becomes exhausted, ill, injured, or orphaned. In that case, the authorized individual must immediately contact a federally permitted migratory bird rehabilitator and follow the rehabilitator's instructions.

b. § 21.14—Authorized individuals may remove nests, eggs, and nestlings from the interior of a human-occupied building or structure. They are encouraged to seek the assistance of a federally permitted migratory bird rehabilitator or their regional Migratory Bird Permit Office prior to removing eggs or nestlings.

c. § 21.34—Natural resource agency employees may transport sick, injured, or orphaned birds in accordance with § 21.76(a). If transport is not feasible within 24 hours, they must follow the instructions of a federally permitted migratory bird rehabilitator to provide supportive care, retain in an appropriate enclosure for up to 72 hours, or euthanize the birds.

10. Tagging Requirements (50 CFR 21.16, 21.18) —

a. § 21.16—Specimens intended for donation with the date, location of salvage, and the name and contact information of the person who salvaged the specimen. The tag must remain with the specimen.

b. § 21.18—Each migratory bird specimen must remain tagged with the species, date, location, name of the donor, and donor's authorization for acquisition. Specimen tags may be temporarily removed during educational programs.

c. § 22.15—Each eagle specimen must remain tagged with the species, date, location, name of the donor, and the donor's authorization for acquisition. Specimen tags may be temporarily removed during educational programs.

11. Law Enforcement Notifications (50 CFR 21.16, 21.32) —

a. § 21.16—Authorized individuals must notify the Service Office of Law Enforcement if illegal activity is suspected or if five or more birds are found dead and there is a risk of mortality due to disease.

b. § 21.32—Authorized individuals investigating mortality events must notify the Service Office of Law Enforcement if illegal activity is suspected.

12. Verification of Legal Acquisition (50 CFR 21.18, 22.15) —

a. § 21.18—Migratory bird specimens must be acquired from persons authorized by permit or regulation to possess and donate such items. Authorized individuals are responsible for ensuring specimens were legally acquired.

b. § 22.15—Bald eagle and golden eagle specimens must be acquired from persons authorized by permit or regulation to possess and donate such items. Authorized individuals are responsible for ensuring specimens were legally acquired.

13. Records Retention Requirements (50 CFR 21.16, 21.18, 21.20, 22.15) —

a. § 21.16—Authorized individuals must maintain records of all donated birds, including eagles sent to the National Eagle Repository for 5 years. Records must include species, specimen type, date, location salvaged, and recipient. At any reasonable time upon request by the Service, the authorized individual must allow the Service to inspect any birds held under this authorization and to review any records kept.

b. § 21.18—Authorized individuals must maintain accurate records of operations on a calendar-year basis and retain these records for 5 years. Records must reflect the programs conducted, each specimen in possession, and, if applicable, specimen disposition. At any reasonable time upon request by the Service, the authorized individual must allow the Service to inspect any migratory bird specimens held under this regulatory authorization and review any records kept.

c. § 21.20—Licensed veterinarians must keep records for 5 years of all migratory birds held and treated under this authorization, including those euthanized. Records must include the species of bird, the type of injury, the date of acquisition, the date of death, cause of death, and disposition ( e.g., live bird transferred, remains destroyed, or remains donated). Authorized individuals must present upon request of inspection such specimens and documents at any reasonable time.

d. § 21.34—Agencies must keep records for 5 years of activities conducted under this authorization. The records must include the species and number of birds, the type of activity, date, and disposition.

e. § 22.15—Authorized individuals must maintain accurate records of operations on a calendar-year basis and retain these records for 5 years. Records must reflect the programs conducted, each specimen in possession, and, if applicable, specimen disposition. Exhibition use of specimens under the regulations in this section authorizes the Service to inspect any eagle specimens held under this regulatory authorization and review any records kept at any reasonable time. Authorized individuals must present such specimens and documents for inspection upon request.

14. 3rd Party Notifications — Educational Programs (50 CFR 21.18) —

a. § 21.18—Migratory bird specimens must be used for public educational programs or held for public archival purposes. Programs must include information about migratory bird ecology, biology, or conservation.

b. § 21.18—Specimens held for archival purposes must be properly archived and readily accessible to the public for research purposes.

c. § 22.15—Eagle specimens must be used for public educational programs or held for public archival purposes. Programs must include information about eagle ecology, biology, or conservation.

15. Notification Requirement—States (50 CFR 19.31) —Upon issuance of a permit by a State to a person pursuant to this section, the issuing authority will provide immediate notification to the Special Agent in Charge having jurisdiction.

16. Notification Requirement—States (50 CFR 19.31) —Any State issuing permits to persons to engage in airborne hunting or harassing of wildlife or any State whose employees or agents participate in airborne hunting or harassing of wildlife for purposes of administering or protecting land, water, wildlife, livestock, domestic animals, human life, or crops, shall file with the Director an annual report on or before July 1 for the preceding calendar year ending December 31.

Title of Collection: Regulatory Authorizations for Migratory Bird and Eagle Possession by the General Public, Educators, and Government Agencies; 50 CFR parts 21 and 22.

OMB Control Number: 1018-New.

Form Numbers: None.

Type of Review: New.

Respondents/Affected Public: Individuals; private sector; and State/local/Tribal governments.

Total Estimated Number of Annual Respondents: 4,001.

Total Estimated Number of Annual Responses: 4,001.

Estimated Completion Time per Response: Varies from 15 minutes to 1 hour, depending on activity.

Total Estimated Number of Annual Burden Hours: 3,111.

Respondent's Obligation: Required to obtain or retain a benefit.

Frequency of Collection: On occasion.

Total Estimated Annual Nonhour Burden Cost: None.

Send your written comments and suggestions on this information collection by the date indicated in DATES to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: PRB/PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or by email to Info_Coll@fws.gov. Please reference OMB Control Number 1018-BC76 in the subject line of your comments.

We have analyzed this rule in accordance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) and Department regulations at 43 CFR part 46. The proposed action is categorically excluded from further NEPA consideration under the departmental exclusion at 43 CFR 46.210 and as listed in 516 DM 8.5(C)(1): “the issuance, denial, suspension, and revocation of permits for activities involving fish, wildlife, or plants regulated under 50 CFR Chapter I, Subchapter B, when such permits cause no or negligible environmental disturbance. These permits involve endangered and threatened species, species listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), marine mammals, exotic birds, migratory birds, eagles, and injurious wildlife.” The Service considers regulatory authorizations, also called permit exceptions, to be a type of permit. Permit is defined in 50 CFR 10.12, and the Service considers the regulation to be the document issued by the Service which describes, authorizes, and limits the activity. In the case of regulations, the authorized official is the DOI Assistant Secretary of Fish, Wildlife, and Parks. Therefore, promulgation of a regulatory authorization that causes no or negligible environmental disturbance falls within the categorical exclusion for permits.

Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq. ), requires that the Secretary [of the Interior] shall review other programs administered by the Secretary and utilize such programs in furtherance of the purposes of this Act (16 U.S.C. 1536(a)(1)). It further states that the Federal agency must “ensure that any action authorized, funded, or carried out . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat” (16 U.S.C. 1536(a)(2)). This proposed rule would not affect endangered or threatened species or critical habitats.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated potential effects on federally recognized Indian Tribes and have determined that this rule would not interfere with Tribes' abilities to manage themselves, their funds, or Tribal lands. We add provisions to expand Tribal authorization and self-governance.

E.O. 13211 addresses regulations that significantly affect energy supply, distribution, and use, and requires agencies to prepare statements of energy effects when undertaking certain actions. This proposed rule is not a significant regulatory action under E.O. 13211, and no statement of energy effects is required.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

For the reasons described in the preamble, we propose to amend title 50, chapter I, subchapter B of the CFR, as set forth below:

Background

The U.S. Fish and Wildlife Service is the Federal agency delegated with the primary responsibility for managing migratory birds, including bald eagles and golden eagles. Our authority derives primarily from the Migratory Bird Treaty Act of 1918, as amended, 16 U.S.C. 703-712 (MBTA), which implements conventions with Great Britain (for Canada), Mexico, Japan, and the Russian Federation. The MBTA protects certain migratory birds from take, except as permitted under the MBTA. We implement the provisions of the MBTA through regulations in parts 10, 13, 20, 21, and 22 of title 50 of the Code of Federal Regulations (CFR). Regulations pertaining to migratory bird permits are set forth at 50 CFR part 21.

In addition, the Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d (Eagle Act), prohibits take of bald eagles and golden eagles except pursuant to Federal regulations. The Eagle Act authorizes the Secretary of the Interior to issue regulations to permit the “taking” of eagles for various purposes, including the protection of other interests in any particular locality (16 U.S.C. 668a), provided the taking is compatible with the preservation of eagles. Regulations pertaining to eagle permits are set forth at 50 CFR part 22.

The Service currently authorizes the exhibition of migratory birds under a Special Purpose Possession Live permit (FWS Form 3-200-10c) issued under the special purpose permit regulations (50 CFR 21.95). Exhibition of bald eagles and golden eagles currently requires an Eagle Exhibition Live permit (FWS Form 3-200-14) issued under 50 CFR 22.50. On September 21, 2010, the Service proposed a permit regulation for the possession and use of migratory birds in educational programs and exhibits (75 FR 57413). Comments received on the proposed regulation were generally supportive. However, the Service did not finalize the rule due to prioritizing other rulemakings. The Service is now seeking to reinitiate a rulemaking for migratory bird exhibition and eagle exhibition. However, enough has changed in the field of exhibition that the Service is seeking public input before preparing a new proposed rule.

We intend to propose new migratory bird exhibition regulations to authorize possession of live, non-releasable or captive-bred migratory birds for use in teaching people about migratory bird conservation and ecology. We also anticipate proposal of revisions to regulations authorizing eagle exhibition (50 CFR 22.50), in particular revisions for permittees that hold migratory bird exhibition permits or hold USDA exhibition licenses. The public response we receive in response to this advance notice of proposed rulemaking will help us develop proposed regulations that provide consistency and clarity in administration of permits for migratory bird and eagle exhibition. This includes ensuring that migratory birds, including eagles, are handled and cared for in humane and healthful conditions and held in a manner consistent with the protections afforded by the MBTA and Eagle Act.

Currently, the Service requires any individual or entity to obtain a special purpose permit that authorizes possession of one or more migratory birds and an eagle exhibition permit to exhibit one or more eagles. As part of the application process, we review the experience of the caretaker, bird enclosures, and bird husbandry practices. Each caretaker (subpermittee) and enclosure are authorized on the permit. Each bird is authorized on the permit, and a transfer request must be submitted and approved to receive or transfer a bird. The Service implemented these practices to ensure the humane care and handling of migratory birds, as other Federal regulations to ensure the humane care and handling of migratory birds did not exist at that time.

On February 21, 2023, the U.S. Department of Agriculture's Animal Care Program (USDA-Animal Care) published in the Federal Register (88 FR 10654) a final rule pertaining to the care of birds, which includes exhibition of migratory birds. The Service is responsible for the conservation of migratory birds. USDA-Animal Care is responsible for the humane care of animals. The Service's Migratory Birds Program and USDA-Animal Care seek to prevent conflicting regulations and minimize regulatory burden to exhibitors. The Service requests information and innovative approaches on how to best regulate the exhibition of migratory birds and exhibition of eagles, in light of the new USDA regulations. For simplicity, we use the term “exhibition” to refer to permits authorizing the public display of migratory birds or eagles. “Exhibition” includes the activities currently authorized under Migratory Bird Special Purpose Possession Live (Educational Use) permits (FWS Form 3-200-10c) as well as Eagle Exhibition permits (FWS Form 3-200-14).

To balance the roles of USDA-Animal Care and the Service's Migratory Birds Program, the Service is considering the following framework. The movement of migratory birds from the wild to exhibition would be regulated by the Service. The humane care of exhibition birds would be primarily regulated under the Animal Welfare Act (AWA; 7 U.S.C. 2131 et seq. ). To accomplish this, the Service would use an authorization tool called a regulatory authorization.

The Service has long authorized activities under regulatory authorizations. The origins of the regulatory authorization “general exceptions to permit requirements” (50 CFR 21.12) can be traced back as far as 1944. Regulatory authorizations are regulations that establish eligibility criteria and conditions for the take or possession of migratory birds by an entity without requiring a permit to conduct those activities. Regulatory authorizations can include conditions, recordkeeping, reporting, and inspection requirements but otherwise have a relatively low administrative burden and require little to no interaction with the Service. Regulatory authorizations are most appropriate for situations that have straightforward eligibility criteria, do not require case-by-case customization of conditions, and pose a low risk to migratory bird populations. Those who are eligible for a regulatory authorization must comply with the required conditions, including records and reporting requirements, and are subject to enforcement for noncompliance.

The Service is considering promulgating a regulatory authorization clarifying that Service permit is not required to exhibit migratory birds for AWA license holders. This regulatory authorization could require additional conditions for migratory birds beyond an AWA license, but a permit would not be required. If an AWA license is not required, the Service would continue to authorize exhibition permits for migratory birds and eagles.

Question 1. What regulatory authorization conditions should the Service require in addition to AWA license conditions? Regulatory authorization conditions apply to all migratory bird exhibitors conducting activities under the regulatory authorization ( i.e., all AWA licensees conducting activities with migratory birds). They are not customizable to individual situations but may be applied to a subset ( e.g., all exhibitors with a particular species or all exhibitors with a certain number of birds). These could include handler or trainer requirements, humane handling or training methods, enclosure and enrichment requirements, etc. For example, the regulatory authorization could state: “migratory birds may not be handled by the general public” or “migratory birds may be held but not otherwise touched by the general public.”

Question 2. The Service is seeking estimates of how many exhibitors are not likely to be required to or hold an AWA license. In brief, these are exhibitors with (1) four or fewer raptors including eagles, (2) no non-raptor migratory birds, and (3) no other species that require an AWA license, such as mammals (please see https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/new-bird-rule/awa-standards-for-birds for additional information on USDA's New Bird Rule). For these exhibitors who do not hold an AWA license, we are also seeking input on potential changes to the permitting regulations, including whether the Service should continue using special purpose permits (under 50 CFR 21.95) for migratory birds or promulgate a new regulation for migratory bird exhibition. Additionally, should the Service continue to have separate permits for migratory birds and eagles, or combine exhibition authorization for migratory birds and eagles into a single permit?

It is important that we maintain our role in reviewing the movement of birds from the wild to exhibition status. Under the regulatory authorization and exhibition permits, the Service would continue to regulate the movement of migratory birds to and from exhibition. Currently, this movement is primarily through rehabilitation patients being determined non-releasable and placed with exhibition entities. The Service is considering continuing the requirement that the transfer of any wild bird to exhibition must be approved by the Service prior to transfer. Rarely, but occasionally, it is appropriate for exhibition birds to be transferred to other permit types or released to the wild. The Service is considering continuing the requirement that the transfer from exhibition to another permit type or release to the wild must be approved by the Service prior to transfer. The Service is also considering not requiring Service approval of transfers between exhibitors.

Question 3. Should the Service continue to track transfers between exhibitors? If so, under what circumstances?

Question 4. The Service is considering being more restrictive in ensuring wild birds approved for exhibition are suitable for long-term captivity. Is this an appropriate role for the Service? Improved understanding of the effects of captivity on migratory birds suggests that captivity is not humane for many migratory birds, especially certain wild birds and injured birds. How should the Service design the information requested and review of transfer requests to ensure birds are suitable for exhibition use without being unduly burdensome to exhibitors or the Service?

As part of this rulemaking, the Service is considering addressing two areas for which we frequently receive questions: compensation and breeding of exhibition birds. Service regulations currently do not specify whether compensation is authorized for exhibition activities. The Service is considering specifically authorizing compensation for exhibition activities, as increased compensation provides more funds to adequately pay staff and humanely care for birds. We are considering defining compensation to align with AWA regulations, where compensation includes payment of program fees, merchandise sales, donations, or any other economic benefits related to exhibition of migratory birds or eagles. The Service seeks feedback on this approach.

Question 5. Should there be restrictions on compensation for exhibition, and if so, under what circumstances and conditions?

Currently, the breeding of exhibition birds is prohibited. The Service seeks public comment on whether breeding of exhibition birds should be authorized, and if so, under what circumstances and conditions.

Question 6. Should the breeding of exhibition birds be authorized, and if so, under what circumstances and conditions?

Exhibition activities are occasionally conducted by those who hold migratory birds under other permit types, such as falconry, raptor propagation, and others. For circumstances where exhibition is not the primary use of the migratory bird, the Service is considering the following three approaches. (1) For State-licensed falconers, a regulatory authorization where no permit is required for State-licensed falconers who receive less than a set amount in compensation per calendar year for exhibition programs ( e.g., $1,000). (2) For falconry schools, if a falconry school holds an AWA license, then an MBTA exhibition permit is not required. If the falconry school does not hold an AWA license, an MBTA exhibition permit is required. (3) For other MBTA permittees who conduct exhibition activities, but exhibition is not the primary use of the migratory bird, the following would apply: If the permittee holds an AWA license for exhibition, then an MBTA exhibition permit is not required. If the permittee does not qualify for an AWA license, exhibition authorization can be added to the existing MBTA permit ( e.g., raptor propagation, waterfowl sale and disposal, etc.).

Question 7. Do the three approaches described above make sense for those unique use cases? Are there other unique cases we have not considered?

Question 8. Should the Service change practice and allow marked, individual migratory birds to be held under multiple permits? For example, a banded raptor could be authorized for falconry, raptor propagation, and exhibition.

Please consider the following when preparing your comments:

a. Be as succinct as possible.

b. Be specific. Comments supported by logic, rationale, and citations are more useful than opinions.

c. State your suggestions and recommendations clearly with an expectation of what you would like the Service to do.

To promulgate a proposed rule, we will take into consideration all comments and any additional information we receive. Please note that submissions merely stating support for or opposition to the proposed action, without providing supporting information, will be noted but not considered by the Service in making a determination. We may hold workshops or informational sessions so that interested and affected people may provide further comments and input; if we do, we will provide notice of these workshops or sessions in the Federal Register , or on our website ( https://www.fws.gov/program/migratory-bird-permit ), or both.

Written comments we receive become part of the public record associated with this action. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that the entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Comments and materials we receive will be available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service Headquarters (see ADDRESSES , above).

The authority for this action is the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703-712) and the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d).

This notification establishes June 1, 2023, as the new control date for potential use in determining historical or traditional participation in the Limited Access General Category (LAGC) Northern Gulf of Maine (NGOM) Atlantic sea scallop fishery. Interested participants should locate and preserve all records that substantiate and verify their participation in the NGOM scallop fishery. Consideration of a control date does not commit the Council to develop any particular management regime or criteria for eligibility in the fishery. Any action to determine eligibility for the NGOM scallop fishery would require a change to the Fishery Management Plan (FMP) and would be considered through the normal Council process, including rulemaking, that would allow additional opportunities for public comment.

In 2008, Amendment 11 to the Atlantic Sea Scallop FMP (73 FR 20090; April 14, 2008) established the LAGC program and the NGOM management area. Scallop permit holders who qualified under Amendment 11 received LAGC A (Individual Fishing Quota) permits. Non-qualifiers that held a General Category permit by November 1, 2004, received LAGC B/C permits. A vessel issued an LAGC B permit (NGOM permit) could land up to 200 lb (90.8 kg) per day in the NGOM, until the NGOM total allowable catch had been reached, and a vessel issued an LAGC C permit (incidental permit) could land up to 40 lb (18.1 kg) per trip on non-scallop trips. Amendment 11 established that a vessel issued an LAGC A permit is allowed to permanently downgrade to an LAGC B/C. Further, a vessel issued an LAGC B/C can select to be issued either an LAGC B or an LAGC C permit on an annual basis.

In recent years, both scallop biomass and participation increased in the NGOM. In 2022, the Council addressed this growth by creating an 800,000-lb (362,873.9 mt) set-aside allocation for the LAGC fishery in the NGOM management area through Amendment 21 to the Scallop FMP (87 FR 1688; January 12, 2022). Amendment 21 allowed LAGC A and B permit holders to harvest up to 200 lb (90.8 kg) per day from the NGOM set-aside, and LAGC C permit holders are still allowed to harvest up to 40 lb (18.1 kg) per day while the NGOM is open for fishing. The vision statement for Amendment 21 stated that the LAGC component of the NGOM fishery would consist of “a fleet made up of relatively small vessels, with possession limits to maintain the historical character of this fleet and provide opportunities to various participants including vessels from smaller coastal communities” (87 FR 1688, 1693).

Following the implementation of Amendment 21, the number of LAGC vessels accessing the NGOM continued to increase, as was expected during the development of the amendment. In 2022, there were 26 LAGC permits that switched from Incidental (LAGC C) to NGOM permits (LAGC B), whereas there were no more than 5 of these category switches in any previous year. Also in 2022, 103 LAGC A and B permits were active in the NGOM, while a total of 556 LAGC permits were issued (212 A, 159 B, and 185 C).

On January 24, 2023, the Council voted to request a control date for LAGC permit category changes in the NGOM. The Council is concerned that the number of potential permits that can switch to an LAGC B permit to access the NGOM set-aside is large compared to the number of vessels historically active in the area. The Council requested that we establish a control date as the date of publication of this Advanced Notice of Proposed Rulemaking. This action notifies the public and fishery participants of possible rulemaking, should the Council consider future action that may limit LAGC permit category changes in the NGOM.

The control date is intended to disincentivize speculative entry, investment, or fishing activity in the NGOM scallop fishery while the Council considers if and how LAGC permit category changes in the fishery may be affected. The Council may use this control date for entry or participation qualification, along with additional criteria. Performance or fishing effort after the date of publication may not be treated the same as performance or effort before the control date. The Council may choose to use different qualification criteria that do not incorporate this control date. The Council may change the control date. The Council may also choose to take no further action to limit LAGC permit category changes in the NGOM scallop fishery. This control date is only intended for use in limiting LAGC permit category changes in the NGOM scallop fishery.