This rule affecting 7 CFR part 1217 (herein the “Order”) is authorized by the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments and would not have significant Tribal implications.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act (7 U.S.C. 7423) provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

Section 519 of the 1996 Act (7 U.S.C. 7418) provides that a person subject to an order may file a written petition with U.S. Department of Agriculture (USDA) stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, must be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.

This rule changes the eligibility requirements for nominees representing domestic manufacturers on the Board. The Board administers the Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order (Order) with oversight by the USDA. Pursuant to the Order, assessments are collected from domestic manufacturers and importers, and are used for research and promotion projects designed to strengthen the position of softwood lumber in the marketplace. This change was recommended to the Secretary by the Board at its February 26, 2020, meeting, and will contribute to the effective administration of the program.

Section 1217.40 provides for the establishment of the Board. The Board is comprised of manufacturers for the U.S. market who manufacture and domestically ship or import 15 million board feet or more of softwood lumber in the United States during a fiscal period. In November 2018, the Board recommended revising the Board composition from 19 to 14 members over a three-year period. The Board took into consideration the consolidation of the softwood lumber industry since the inception of the program, along with the number of companies eligible to be represented on the Board. Additionally, the Board recommended that U.S. Board members reside in the region they represent. This was intended to ensure that entities from outside the U.S. that own softwood lumber entities within the U.S. could only represent a U.S. region on the Board if the individual seeking nomination resided in the respective region. The recommendation was finalized in a rule that was published in the Federal Register on September 25, 2019 (84 FR 50294). The 2021 Board and each subsequent Board shall be comprised of 14 members, 10 of whom shall represent domestic manufacturers and four of whom shall represent importers. Domestic manufacturer Board members represent three regions: U.S. South Region; U.S. West Region; and Northeast and Lake States Region. The Order prescribes that domestic manufacturer representatives reside in the region they represent.

The Board met on February 26, 2020, and recommended the Order be revised to allow a domestic manufacturer's representative to seek nomination in any of the regions where the manufacturer they represent has manufacturing operations. The current Order limits manufacturer representatives to seek nomination only in the region where he or she resides. The Board conducted nominations under the newly implemented provisions and found that clarification in the Order was needed to reflect the multi-regional nature of manufacturers rather than the individual nominee. Several domestic manufacturers have operations in multiple U.S. regions. Revising the Order to allow a person to seek nomination in one of the regions where the manufacturer they represent has operations will provide flexibility to the Order, while maintaining the intent that Board members representing domestic manufacturers reside in the U.S. This change will help facilitate program operations. Therefore, § 1217.40 (b)(1), (b)(1)(i), (b)(1)(ii), and (b)(1)(iii) will be revised accordingly.

In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) is required to examine the impact of the action on small entities. Accordingly, AMS has considered the economic impact of this action on such entities.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to the actions so that small businesses will not be disproportionately burdened. The Small Business Administration (SBA) defines, in 13 CFR part 121, small agricultural service firms (domestic softwood lumber manufacturers and importers) as those having annual receipts of no more than $8 million. 1

The Random Lengths Publications, Inc.'s yearly average framing lumber composite price was $356 per thousand board feet (mbf) in 2019. Dividing the $8 million threshold that defines an agricultural service firm as small by this price results in a maximum threshold of 22.5 million board feet (mmbf) of softwood lumber per year that a domestic manufacturer or importer may ship to be considered a small entity for purposes of the RFA. Table 1 shows the number of entities and the amount of volume they represent that may be categorized as small or large based on the SBA definition.

As shown in Table 1, there are a total of 1,396 domestic manufacturers and importers of softwood lumber based on 2019 data. Of these, 1,000 entities, or 72 percent, shipped or imported less than 22.5 mmbf and would be considered small based on the SBA definition. These 1,000 entities domestically manufactured or imported 3.25 billion board feet (bbf) in 2019, less than 5 percent of total volume. The revision to the Board eligibility requirements will not disproportionately burden small domestic manufacturers and importers of softwood lumber.

This rule revises § 1217.40 (b)(1), (b)(1)(i), (b)(1)(ii), and (b)(1)(iii) to allow domestic softwood lumber manufacturer representatives to seek nomination in any of the regions where the manufacturer they represent has manufacturing operations. The Order is administered by the Board with oversight by the USDA. In accordance with the program requirements, assessments are collected from domestic manufacturers and importers, and are used for research and promotion projects designed to strengthen the position of softwood lumber in the marketplace. Revising the Order to allow a person to seek nomination in one of the regions where the softwood lumber manufacturer has operations will provide flexibility to the Order, while maintaining the intent that Board members representing domestic manufacturers reside in the U.S.

Regarding alternatives, the Board considered not changing the nominee eligibility requirements; however, the entire Board determined that making this change will better align the Order provisions with industry practices and will help facilitate Board operations. This change was discussed at the Industry Relations and Governance Committee meeting on February 18, 2020, and at the Board meeting on February 26, 2020.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements that are imposed by the Order have been approved previously under OMB control number 0581-0093. This rule will not result in a change to the information collection and recordkeeping requirements previously approved and will impose no additional reporting and recordkeeping burden on domestic manufacturers and importers of softwood lumber.

As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

A proposed rule concerning this action was published in the Federal Register on May 11, 2020 (85 FR 27690). A 30-day comment period ending June 10, 2020, was provided to allow interested persons to submit comments.

Two comments were received in response to the proposed rule. One commenter supported the change stating that it will give the board more flexibility in seeking the best qualified people to serve on the Board. The other comment was outside the scope of this action.

After consideration of all relevant material presented, including the information and recommendations submitted by the Board, the comment received, and other available information, it is hereby found that this rule, as hereinafter set forth, is consistent with and will effectuate the purposes of the 1996 Act.

For the reasons set forth in the preamble, 7 CFR part 1217, is amended as follows:

This AD is a final rule that involves requirements affecting flight safety, and the FAA did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, the FAA invites you to participate in this rulemaking by submitting written comments, data, or views. The FAA also invites comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. The FAA will file in the docket all comments received, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. The FAA will consider all the comments received and may conduct additional rulemaking based on those comments.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2018-0092-E, dated April 20, 2018, to correct an unsafe condition for Wytwórnia Sprzętu Komunikacyjnego “PZL-Świdnik” Spółka Akcyjna (WSK “PZL-ŚWIDNIK” S.A.) Model PZL W-3A and PZL W-3AS helicopters with a serial number up to 3X.10.12 inclusive. EASA advises of an occurrence reported of finding cracks on the Main XMSN case housing. EASA further advises investigation results indicate the cracking mode has features of fatigue deterioration, but the root cause has not been determined. Accordingly, the EASA AD requires repetitive inspections of the Main XMSN case and, based on the inspection results, replacing certain parts. EASA also requires reporting the inspection results to PZL-Świdnik S.A. EASA considers its AD an interim action and further AD action may follow. EASA states this condition, if not detected and corrected, could lead to structural failure and loss of load carrying capabilities of the Main XSMN, possibly resulting in loss of helicopter control.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA of the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all information provided by EASA and determining the unsafe condition exists and is likely to exist or develop on other helicopters of the same type design.

The FAA reviewed WYTWÓRNIA SPRZĘTU KOMUNIKACYJNEGO “PZL-Świdnik” Spólka Akcyjna Mandatory Bulletin No. BO-37-18-294, dated April 12, 2018, which specifies using a light source and mirror to inspect the Main XSMN case for indications of possible cracks, such as paint coat chipping, surface scratches, and oil leaks. This service information also specifies reporting certain information to PZL-Świdnik S.A., performing more in-depth inspections by performing a ground run test and checking for chalk mark discoloration, and if a crack exists, replacing the Main XSMN case before further flight.

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

The AD requires within 5 hours time-in-service (TIS), and thereafter at intervals not to exceed 25 hours TIS, for all PZL Model PZL W-3A helicopters serial number up to and including 3X.10.12 with Main XMSN case part number (P/N) 64.21.0105 or P/N 64.22.0161 installed on WR-3 Main XMSN P/N 64.21.3000 or P/N 64.21.4000, visually inspecting the Main XMSN case for a crack, a surface scratch, any paint coat chipping, and any oil leak and removing the Main XMSN from service before further flight if any of those conditions exist.

The EASA AD applies to Model PZL W-3AS helicopters, whereas this AD does not because that model is not FAA type-certificated. The EASA AD requires reporting certain information to PZL-Świdnik S.A., whereas this AD does not.

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

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

There are no costs of compliance associated with this AD because there are no helicopters with this type certificate on the U.S. Registry.

Section 553(b)(3)(B) of the Administrative Procedure Act (5 U.S.C.) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking.

There are no helicopters with this type certificate on the U.S. Registry. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are unnecessary pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the reasons stated above, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to all GE Aviation Czech s.r.o. M601D-11, M601E-11, M601E-11A, M601E-11AS, M601E-11S, M601F, H80, H80-100, H80-200, H75-100, H75-200, H85-100, and H85-200 model turboprop engines. The SNPRM published in the Federal Register on February 4, 2020 (85 FR 6110) (“the SNPRM”). The FAA preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on January 24, 2018 (83 FR 3287) (“the NPRM”). The NPRM proposed to require installing a modified engine outlet system. The NPRM was prompted by a review by the manufacturer that identified the possibility of a PT rotor overspeed and the uncontained release of PT blades. The FAA is issuing this AD to address the unsafe condition on these products.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2017-0151, dated August 18, 2017 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2017-0967.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA received no comments on the SNPRM, on the determination of the cost to the public, or the impact of the proposed rule on small entities.

The FAA reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed.

The FAA reviewed GE Aviation ASB ASB-M601E-72-00-00-0070[03], ASB-M601D-72-00-00-0053[03], ASB-M601F-72-00-00-0036[03], ASB-M601T-72-00-00-0029[03], ASB-M601Z-72-00-00-0039[03], ASB-H75-72-00-00-0011[03], ASB-H80-72-00-00-0025[03], and ASB-H85-72-00-00-0007[03] (single document; formatted as service bulletin identifier[revision number]), dated July 24, 2018. The ASB describes procedures for removal and replacement of the engine outlet system hardware. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 42 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

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

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

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354, codified as amended at 5 U.S.C. 601-612) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” Public Law 96-354, 2(b), Sept. 19, 1980. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

The FAA published an Initial Regulatory Flexibility Analysis (IRFA) in the proposed rule to aid the public in commenting on the potential impacts to small entities. The FAA considered the public comments in developing the final rule and this Final Regulatory Flexibility Analysis (FRFA). A FRFA must contain the following:

(1) A statement of the need for, and objectives of, the rule;

(2) A statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments;

(3) The response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments;

(4) A description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available;

(5) A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record;

(6) A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

This AD was prompted by a review by the manufacturer that identified the possibility of a PT overspeed and the uncontained release of PT blades. The FAA is issuing this AD to prevent uncontained release of the PT blades. This AD requires installing a modified engine outlet system. The unsafe condition, if not addressed, could result in failure of the PT blades, uncontained release of the blades, damage to the engine, and damage to the airplane.

The FAA did not receive any public comments on the SNPRM.

The Chief Counsel for Advocacy of the Small Business Administration (SBA) did not file any comments in response to the proposed rule. Thus, the FAA did not make any changes to the proposed rule in the final rule.

This AD applies to all GE Aviation Czech s.r.o. M601D-11, M601E-11, M601E-11A, M601E-11AS, M601E-11S, M601F, H75-100, H75-200, H80, H80-100, H80-200, H85-100, and H85-200 turboprop engines. These engines are typically installed on airplanes that are owned and operated by aerial application businesses, which is a small segment of the aviation industry. These airplanes, also known as “crop-dusters,” spread fertilizer, insecticides, fungicides, and weed killers. 1

The FAA searched the 2018 Aircraft Registration database that contains the records of all U.S. Civil Aircraft maintained by the FAA's Aircraft Registration Branch and identified 42 airplanes with GE H80 series engines or equivalent turboprop engines installed. The Aircraft Registration database shows that 38 companies own these 42 airplanes, 4 companies own 2 airplanes, while the remaining 34 companies own 1 airplane each. Based on these registration records, the FAA assumes that approximately each entity or business owned one airplane.

By using the Small Business Administration (SBA)'s size standards and the North American Industry Classification System (NAICS) code classifications, the FAA is able to determine whether a business is small or not. These entities operate under NAICS code 115112, Soil Preparation, Planting, and Cultivating. The size standards for this NAICS code as provided by SBA's Size Standards Table  2 is $7.5 million in annual revenues. Therefore, entities generating less than $7.5 million in annual revenues would be treated as small businesses for the purposes of this analysis.

The FAA assumes that all 38 operators above that are affected by this AD are small businesses because $700,000 annual revenue for a first-class, used turbine agricultural aviation plane  3 is a reasonable industry estimate. On average, entities operating in the aerial application industry generate approximately $700,000 each year ($700,000 × 1 crop-duster airplane), which is below $7.5 million revenue size standards for NAICS code 115112. Therefore, the FAA assumes all 38 registered company owners or operators to be small entities.

There are no record-keeping costs or other compliance costs associated with this final rule.

There is no direct safety alternative to the modification of the engine outlet system. The modification addresses a safety issue aimed at preventing an uncontained release of the PT blades. Compliance cost of this AD comes from the removal and replacement of the exhaust system parts. Estimated compliance cost per engine is identified below.

Labor cost = 64 repair hours per engine * $85 Mean Hourly Wage = $5,440.

Cost of Parts = $63,000 per engine (Source: GE Aviation Czech).

$5,440 labor per engine + $63,000 parts per engine = $68,440 compliance cost per engine.

To estimate the revenue impacts of the AD on these 38 small operators, the FAA used the total estimated one-time costs of compliance per each engine ($68,440) and divided it by the estimated annual revenue of each entity ($700,000). The FAA determined all 38 small businesses that would be affected by this AD would experience impacts of approximately 10 percent of their annual revenue during the implementation of this AD ($68,440 ÷ $700,000).

Therefore, the FAA determined that this AD rule will have a significant economic impact on a substantial number of small entities.

The FAA determined that this AD would not have federalism implications under Executive Order 13132. This 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 AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to supersede AD 2017-02-07, Amendment 39-18786 (82 FR 10267, February 10, 2017) (“AD 2017-02-07”). AD 2017-02-07 applied to Airbus Helicopters Model MBB-BK 117 C-2 helicopters, serial numbers up to and including 9750, and Model MBB-BK 117 D-2 helicopters, serial numbers up to and including 20110, with a hydraulic module plate assembly part number B291M0003103 with a single locking attachment point installed. The SNPRM published in the Federal Register on February 27, 2020 (85 FR 11315). The FAA preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on December 5, 2017 (82 FR 57390). The NPRM proposed to retain the initial inspection and torque requirements of AD 2017- 02-07 and require replacing each single locking attachment point mechanism with a double locking attachment point mechanism. The SNPRM proposed to add a requirement to reposition the aft grounding straps and inspect the clamping effect of the aft attachment points when the double locking attachment hardware is installed, and for helicopters that have previously installed the double locking attachment hardware, the SNPRM proposed to add an alternative clamp effect inspection requirement. The SNPRM also corrected the torque application requirement proposed in the NPRM to just each forward (not aft) attachment point.

The NPRM was prompted by EASA AD No. 2017-0047, dated March 13, 2017, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition on Airbus Helicopters Deutschland GmbH (formerly Eurocopter Deutschland GmbH) Model MBB-BK117 C-2, MBB-BK117 C-2e, MBB-BK117 D-2 and MBB-BK117 D-2m helicopters. EASA advises that the hydraulic plate assembly on certain MBB-BK117 models has four attachment points on the fuselage secured by a single locking mechanism. According to EASA, a design reassessment revealed stiffness of the hydraulic plate may be insufficient to withstand the in-service loads in the event one of the four single locking attachment points fails. The EASA AD requires a repetitive inspection and one-time torque tightening of the attachment points until replacement of the single locking attachment hardware with double locking attachment hardware.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comment received. One commenter commented in support of the SNPRM.

The FAA has reviewed the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

The EASA AD specifies performing the visual inspection of each attachment point at intervals not exceeding 400 flight hours. This AD does not require a repetitive inspection. This AD requires the replacement of each single locking attachment point mechanism with a double locking attachment point mechanism within 300 hours TIS instead, which makes subsequent inspections unnecessary. Since EASA has not revised or superseded its AD to incorporate Revision 3 of the service information, the EASA AD does not require inspecting the clamping effect of the aft joints, torque tightening the bolts, and corrective action if necessary for helicopters with a hydraulic module plate assembly with double locking attachment hardware installed in accordance with Airbus Helicopters Alert Service Bulletin (ASB) No. ASB MBB-BK117 C-2-29A-003 or ASB No. ASB MBB-BK117 D-2-29A-001, both Revision 2 and dated February 1, 2017.

The FAA reviewed Airbus Helicopters ASB No. ASB MBB-BK117 C-2-29A-003 for Model MBB-BK 117 C-2 helicopters and ASB No. ASB MBB-BK117 D-2-29A-001 for Model MBB-BK 117 D-2 helicopters, both Revision 3 and dated December 19, 2017. Until the attachment points are modified with double locking attachment mechanisms, this service information specifies a repetitive visual inspection for condition and correct installation of the attachment points and replacing the affected parts if there is a crack. This service information also specifies a tightening torque check of the forward attachment points after the initial inspection and replacing the affected parts if torque cannot be applied. This service information specifies procedures to replace the single locking attachment hardware with double locking attachment hardware.

For certain helicopters with a hydraulic module plate assembly with the double locking attachment hardware installed, this revision of the service information contains procedures to inspect the clamping effect of the aft attachment points and torque tightening the screw joints (bolts). If a bolt can be turned while applying this torque, the service information specifies instructions to replace the split pin, washer, and self-locking castellated nut, check the bolt for wear and replace it if necessary, change the position of the aft grounding strap, check the electrical bonding, and apply PU-Lacquer to the grounding connection.

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

The FAA also reviewed Airbus Helicopters ASB No. ASB MBB-BK117 C-2-29A-003 for Model MBB-BK 117 C-2 helicopters and ASB No. ASB MBB-BK117 D-2-29A-001 for Model MBB-BK 117 D-2 helicopters, both Revision 1 and dated October 14, 2016, and both Revision 2 and dated February 1, 2017. Revisions 1 and 2 of this service information contain the same visual inspection and torque tightening check procedures as Revision 3. Revision 2 of this service information adds the procedures to replace the single locking attachment hardware with double locking attachment hardware and contains the same forward locking attachment hardware replacement procedures as Revision 3.

The FAA estimates that this AD affects 167 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. The FAA estimates the cost of labor at $85 per work-hour.

Visually inspecting the four attachment points takes about 0.75 work-hour for an estimated cost of $64 per helicopter and $10,688 for the U.S. fleet. Inspecting the torque of the attachment points takes about 0.25 work-hour for an estimated cost of $21 per helicopter and $3,507 for the U.S. fleet. Replacing any of the attachment point parts takes a minimal amount of time and parts cost about $48 per attachment point. Installing four double locking attachment point mechanisms takes a minimal amount of time and parts cost about $400 per helicopter and $66,800 for the U.S. fleet.

For certain double locking attachment hardware aft joints, inspecting the clamping effect and applying torque takes about 1 work-hour for an estimated cost of $85 per helicopter. If required, inspecting and replacing parts, repositioning the aft grounding strap, inspecting the electrical bonding, and applying lacquer to the grounding connection takes about 0.5 work-hour and parts cost about $15 for an estimated cost of $58 per helicopter.

According to Airbus Helicopters' service information, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage by Airbus Helicopters. Accordingly, the FAA has included all costs in this cost estimate.

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

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

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

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

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

2. Will not affect intrastate aviation in Alaska, and

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2016-07-13, Amendment 39-18458 (81 FR 20222, April 7, 2016) (“AD 2016-07-13”), and AD 2018-03-22, Amendment 39-19195 (83 FR 6455, February 14, 2018) (“AD 2018-03-22”). AD 2016-07-13 and AD 2018-03-22 applied to certain GE Aviation Czech s.r.o. M601D-11, M601E-11, M601E-11A, M601E-11AS, M601E-11S, and M601F model turboprop engines. The NPRM published in the Federal Register on February 21, 2020 (85 FR 10099). The NPRM was prompted by the discovery of damage to certain engine PT disks and a review by the manufacturer that determined that certain engine PT rotors have less overspeed margin than originally declared during product certification. The NPRM was also prompted by the manufacturer identifying additional P/Ns and S/Ns of engine PT disks affected by damage or non-conformity since publishing AD 2016-07-13 and AD 2018-03-22. The NPRM proposed to require an inspection of the engine PT disk and, if found damaged, its replacement with a part eligible for installation. The NPRM also proposed to require the removal of certain engine PT disks identified by P/N installed on the affected engines. The FAA is issuing this AD to address the unsafe condition on these products.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2019-0143, dated June 13, 2019 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2019-1021.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA received no comments on the NPRM or on the determination of the cost to the public.

The FAA reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. The FAA has determined that these minor changes.

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

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

The FAA reviewed GE Aviation Alert Service Bulletin (ASB) ASB-M601E-72-50-00-0069[02], ASB-M601D-72-50-00-0052[02], ASB-M601T-72-50-00-0028[02], ASB-M601F-72-50-00-0035[02], and ASB-M601Z-72-50-00-0038[02] (single document; formatted as service bulletin identifier[revision number]), dated June 11, 2019. The ASB provides procedures for replacing the engine PT disk. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 24 GE Aviation Czech s.r.o. M601 turboprop engines installed on airplanes of U.S. registry. The FAA estimates that 12 affected turboprop engines are “Group 1” engines and 12 are “Group 2” engines.

The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the required inspections. The FAA has no way of determining the number of engines that might need this replacement:

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

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

This AD is a final rule that involves requirements affecting flight safety, and the FAA did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, the FAA invites you to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time.

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 file in the docket all comments received, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. The FAA will consider all the comments received and may conduct additional rulemaking based on those comments.

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 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 Kristi Bradley, Aerospace Engineer, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email kristin.bradley@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.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2018-0070, dated March 27, 2018, to correct an unsafe condition for Wytwórnia Sprzętu Komunikacyjnego “PZL-Świdnik” Spółka Akcyjna (WSK, “PZL-ŚWIDNIK” S.A.) Model PZL W-3A and PZL W-3AS helicopters with M/R vibration absorber star part number (P/N) 30.23.005.01.04 installed. EASA advises that corrosion was found on the M/R vibration absorber star during routine maintenance. EASA advises subsequent investigation could not identify the root cause of the corrosion. EASA states this condition, if not detected and corrected, could lead to structural failure of the M/R vibration absorber star, possibly resulting in damage to the main or tail rotor and subsequent loss of control of the helicopter.

Accordingly, the EASA AD requires repetitive inspections of the M/R vibration absorber star, and depending on the outcome of the inspections, repair or replacement. The EASA AD also requires inspecting an M/R vibration absorber star before installation on a helicopter.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA of the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all information provided by EASA and determining the unsafe condition exists and is likely to exist or develop on other helicopters of the same type design.

WYTWORNIA SPRZĘTU KOMUNIKACYJNEGO “PZL-Świdnik” Spolka Akcyjna has issued Mandatory Bulletin No. BO-37-18-291, dated March 13, 2018, which specifies repetitively inspecting the M/R vibration absorber star for paint coating damage and for signs of corrosion. Depending on the inspection results, this service information specifies inspecting for corrosion under the bolt heads that secure the M/R vibration absorber star to the bracket and mechanically removing the paint coating on the M/R vibration absorber star to inspect further for corrosion. This service information also specifies removing corrosion and repairing mechanical damage that is within allowable limits. Additionally, this service information specifies emailing sketches showing the polishing depth in repaired M/R vibration absorber star surfaces to PZL Świdnik S.A. Finally, this service information specifies contacting PZL Świdnik S.A. for any corrosion or mechanical damage that reaches the maximum total polishing depth or for corrosion under a bolt head.

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

This AD requires visually inspecting certain areas of the M/R vibration absorber star within an initial compliance time based on the helicopter serial number, and thereafter, repeating the inspections at intervals not to exceed 300 hours time-in-service (TIS) or 12 months, whichever occurs first. This AD requires inspecting the M/R vibration absorber star for paint coating delamination, blistering, and discoloration, and missing paint coating, a scratch, a dent, a nick, and corrosion. If there is any paint coating delamination, blistering, or discoloration, or missing paint, a scratch, a dent, a nick, or corrosion, this AD requires mechanically removing any remaining paint coating. If there is no scratch, dent, nick, or corrosion, this AD requires repairing the paint coating. If there is a scratch, a dent, a nick, or corrosion less than the accumulated maximum total polishing depth of 0.5 mm, this AD requires repairing the surface. If there is a scratch, a dent, a nick, or corrosion that exceeds the accumulated maximum total polishing depth of 0.5 mm, this AD requires removing the M/R vibration absorber star from service. This AD also requires inspecting under each bolt head P/N 30.23.000.08.04 for corrosion. Lastly, this AD requires inspecting an M/R vibration absorber star before being installed on any helicopter.

The EASA AD applies to Model PZL W-3AS helicopters, whereas this AD does not because that model is not FAA type-certificated. The EASA AD requires reporting certain information to PZL Świdnik S.A., whereas this AD does not. The EASA AD requires contacting PZL Świdnik S.A., if the accumulated maximum total polishing depth exceeds 0.5 mm or if there is corrosion under the bolt head, whereas this AD requires repairing or replacing the affected part in accordance with FAA approved repair procedures or removing the affected part from service.

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

There are no costs of compliance associated with this AD because there are no helicopters of this type certificate on the U.S. Registry.

Section 553(b)(3)(B) of the Administrative Procedure Act (5 U.S.C.) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking.

There are no helicopters with this type certificate on the U.S. Registry. Therefore, notice and opportunity for prior public comment are unnecessary pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the reasons stated above, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

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

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

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

For the reasons discussed, I certify that this AD:

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

2. Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-18-02, Amendment 39-19381 (83 FR 53802, October 25, 2018), (“AD 2018-18-02”). AD 2018-18-02 applied to certain Austro Engine GmbH model E4 engines and all Austro Engine GmbH model E4P engines. The NPRM published in the Federal Register on March 17, 2020 (85 FR 15079). The NPRM was prompted by reports of considerable wear of the timing chain on the affected engines. The NPRM proposed to retain the requirements of AD 2018-18-02 for amending certain AFMs to limit the use of windmill restarts to emergency procedures. The NPRM also proposed to remove the requirement in AD 2018-18-02 for replacing the timing chain. The FAA is issuing this AD to address the unsafe condition on these products.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2017-0103R1, dated February 25, 2019 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0136.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA received no comments on the NPRM or on the determination of the cost to the public.

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

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

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

The FAA reviewed Diamond Aircraft (DA) Temporary Revision (TR) TR-MÄM-42-973, dated August 12, 2016, for the Diamond Aircraft Industries (DAI) model DA 42 NG Airplane Flight Manual (AFM) and DA TR TR-MÄM-62-240, dated August 12, 2016, for the DAI model DA 62 AFM. These TRs define the removal of the normal operation procedure for windmilling restart for the respective airplanes. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 211 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all RRD Trent 1000-A, Trent 1000-A2, Trent 1000-AE, Trent 1000-AE2, Trent 1000-C, Trent 1000-C2, Trent 1000-CE, Trent 1000-CE2, Trent 1000-D, Trent 1000-D2, Trent 1000-E, Trent 1000-E2, Trent 1000-G, Trent 1000-G2, Trent 1000-H, Trent 1000-H2, Trent 1000-J2, Trent 1000-K2, and Trent 1000-L2 model turbofan engines. The NPRM published in the Federal Register on April 30, 2020 (85 FR 23929). The NPRM was prompted by the manufacturer identifying 38 LPC front cases that have non-optimal properties that could inhibit their ability to contain certain engine failures. The NPRM proposed to require removing the LPC front case from service and replacing it with a part eligible for installation. The FAA is issuing this AD to address the unsafe condition on these products.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2019-0286, dated November 26, 2019 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0424.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comment received. Boeing Commercial Airplanes supported the NPRM.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule as proposed.

The FAA reviewed Rolls-Royce plc Alert Non-Modification Service Bulletin (NMSB) Trent 1000 72-AK294, dated July 16, 2019. The NMSB contains the serial numbers of the affected LPC front cases, the engine serial numbers on which these LPC front cases are installed, and the date to remove each engine from service. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects three engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-08-02, Amendment 39-19255 (83 FR 17746, April 24, 2018), (“AD 2018-08-02”). AD 2018-08-02 applied to all RRD Trent 1000-A2, Trent 1000-AE2, Trent 1000-C2, Trent 1000-CE2, Trent 1000-D2, Trent 1000-E2, Trent 1000-G2, Trent 1000-H2, Trent 1000-J2, Trent 1000-K2, and Trent 1000-L2 model turbofan engines. The NPRM published in the Federal Register on April 30, 2020 (85 FR 23925). The NPRM was prompted by IPC blade separations resulting in engine failures. Subsequently, the manufacturer identified cracking of parts in-service resulting in the need to require new inspections using new inspection thresholds and intervals. The manufacturer also determined the need to add an optional terminating action, amend the asymmetric power condition for engine inspection, and require an inspection after a cabin depressurization event. The NPRM proposed to require new inspections based on updated inspection thresholds and intervals for these IPC parts. The NPRM also proposed to add an optional terminating action, amend the asymmetric power condition for engine inspection, and require an inspection after a cabin depressurization event. The FAA is issuing this AD to address the unsafe condition on these products.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2019-0250, dated October 9, 2019 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0009.

The FAA gave the public the opportunity to participate in developing this AD. The FAA has considered the comment received. Boeing Commercial Airplanes supported the NPRM.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed.

The FAA reviewed Rolls-Royce plc (RR) Alert Non-Modification Service Bulletin (NMSB) Trent 1000 72-AK313, Revision 1, dated August 22, 2019; and RR Service Bulletin (SB) Trent 1000 72-J941, Revision 1, dated February 6, 2019, and Initial Issue, dated December 6, 2018. RR Alert NMSB Trent 1000 72-AK313 defines the initial inspection threshold and repeat inspection intervals for Trent 1000 IPC stage 1 blade, stage 2 blade, and IPC shaft stage 2 dovetail posts. RR SB Trent 1000 72-J941 describes procedures for modifying the engine by installing the redesigned IPC stage 1 and stage 2 rotor blades. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA reviewed RR Alert NMSB Trent 1000 72-AJ819, Revision 4, dated May 3, 2019; RR Alert NMSB Trent 1000 72-AJ814, Revision 5, dated May 3, 2019; and RR Alert NMSB Trent 1000 72-AK092, Revision 4, dated May 3, 2019. RR Alert NMSB Trent 1000 72-AJ819 describes procedures for performing a visual borescope inspection of the IPC stage 2 rotor blades and IPC shaft stage 2 dovetail posts. RR Alert NMSB Trent 1000 72-AJ814 describes procedures for performing an ultrasonic inspection (USI) of the IPC stage 1 rotor blades. RR Alert NMSB Trent 1000 72-AK092 describes procedures for performing a USI of the IPC stage 2 rotor blades.

The FAA estimates that this AD affects 7 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the mandated inspection. The FAA has no way of determining the number of engines that might need these replacements:

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

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

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

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

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

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

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

This action amends, with modifications to reflect changed conditions in Libya and the associated risks to U.S. civil aviation safety, the prohibition against certain U.S. civil flight operations in the Tripoli FIR (HLLL) by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when the operator of such aircraft is a foreign air carrier. Specifically, this amendment prohibits all persons described in paragraph (a) of SFAR No. 112, § 91.1603 of title 14, Code of Federal Regulations (CFR), from conducting flight operations in the territory and airspace of Libya at all altitudes due to the geographic expansion and escalation of the ongoing conflict between the Tripoli-based Government of National Accord (GNA) and the Tobruk-based Libyan National Army (LNA) for control over Libya's government, territory, and resources. This amendment incorporates the flight prohibition contained in NOTAM KICZ A0026/19, issued on October 23, 2019, into SFAR No. 112, § 91.1603. This amendment also continues the prohibition against all flights by U.S. civil operators and airmen at altitudes below FL300 in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya. Cumulatively, the result is that U.S. civil operators and airmen may only operate in the Tripoli FIR (HLLL) if they remain outside the territory and airspace of Libya and at altitudes at or above FL300, unless they have received an exemption or approval from the FAA. Consequently, U.S. operators continue to have the option of using several airways connecting western Africa with the Middle East, provided that they operate at altitudes at or above FL300 while they are in the Tripoli FIR (HLLL).

This action also extends the expiration date of this SFAR from March 20, 2021, to March 20, 2023. The FAA also republishes the approval process and exemption information for this SFAR, consistent with other recently published flight prohibition SFARs, and makes minor administrative revisions.

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

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

This regulation is within the scope of the FAA's authority because it prohibits the persons described in paragraph (a) of SFAR No. 112, § 91.1603, from conducting flight operations at all altitudes in the territory and airspace of Libya due to the geographic expansion and escalation of the ongoing conflict between the Tripoli-based GNA and the Tobruk-based LNA for control over Libya's government, territory, and resources, as described in the preamble to this final rule. Under the same authority, this action also continues the FAA's prohibition on U.S. civil flight operations at altitudes below FL300 in the remainder of the Tripoli FIR (HLLL), due to the hazards in that airspace, also described in the preamble to this final rule.

Section 553(b)(3)(B) of title 5, U.S. Code, authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Section 553(d) also authorizes agencies to forgo the delay in the effective date of the final rule for good cause found and published with the rule. In this instance, the FAA finds good cause exists to forgo notice and comment because notice and comment would be impracticable and contrary to the public interest. In addition, it is contrary to the public interest to delay the effective date of this amendment.

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

Under these conditions, public interest considerations also favor not issuing notice and seeking comments for these rules and any amendments to them. While there is a public interest in having an opportunity for the public to comment on agency action, there is a greater public interest in having the FAA's flight prohibitions, and any amendments thereto, reflect the agency's most current understanding of the risk environment for U.S. civil aviation. This allows the FAA to protect the safety of U.S. operators' aircraft and the lives of their passengers and crews without over-restricting U.S. operators' routing options. The FAA has identified a need to prohibit all persons described in paragraph (a) of SFAR No. 112, § 91.1603, from conducting flight operations at all altitudes in the territory and airspace of Libya due to the geographic expansion and escalation of the ongoing conflict between the Tripoli-based GNA and the Tobruk-based LNA for control over Libya's government, territory, and resources. The FAA has also identified a need to continue to prohibit U.S. civil flight operations at altitudes below FL300 in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya due to the continuing hazards in that airspace described in the preamble of this final rule.

For these reasons, the FAA finds good cause to forgo notice and comment and any delay in the effective date for this final rule.

As a result of safety and national security concerns regarding flight operations in the Tripoli FIR (HLLL) during the Libyan Revolution and its aftermath, the FAA prohibited U.S. civil flight operations at all altitudes in the entire Tripoli FIR (HLLL) between March 2011 and March 2019. 1 In its March 2019 final rule (84 FR 9950), the FAA found security and safety conditions had sufficiently improved to allow U.S. civil flights to operate in the Tripoli FIR (HLLL) at altitudes at or above FL300. 2 Extremist/militant elements operating in Libya were believed not to possess anti-aircraft weapons capable of threatening U.S. civil aviation operations at or above FL260, and there was a lower risk of civil-military de-confliction concerns at cruising altitudes at or above FL300. Additionally, while there were, and continue to be, two air navigation service providers (ANSPs) operating in the Tripoli FIR (HLLL), 3 the FAA determined that this situation posed a minimal safety risk to U.S. civil overflight operations. The Tripoli-based ANSP, which is recognized by the International Civil Aviation Organization (ICAO), had publicized overflight instructions in the Aeronautical Information Publication and a NOTAM containing overflight procedures for civil aviation operations in the Tripoli FIR (HLLL). The FAA also had not received any reports of the two ANSPs providing conflicting guidance to civil aircraft or otherwise behaving in ways that would pose safety of flight concerns for international overflights. Based on this assessment, the FAA determined that overflights of the Tripoli FIR (HLLL) could be conducted safely at altitudes at or above FL300, subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Libya.

However, as described in the March 2019 final rule, the FAA found an extension of the flight prohibition was necessary for the Tripoli FIR (HLLL) at altitudes below FL300 to safeguard against continuing hazards to U.S. civil aviation. These hazards related to continued instability in Libya; fighting involving various militia, extremist, and militant elements; the ready availability of anti-aircraft-capable weapons to extremists and militants; and aerial activity by foreign sponsors supporting various elements operating in Libya that might not be adequately de-conflicted with civil air traffic. The risks to U.S. civil aviation were greatest at airports in Libya and during low altitude operations near airports or in areas of actual or potential fighting.

The FAA also noted in its March 2019 final rule that Libya remained politically unstable, with a fragile security situation. 4 Since the fall of Muammar Gaddafi's regime, Libya had struggled with a power vacuum, a limited security apparatus, and limited territorial control. Multiple extremist and militant groups with footholds in Libya were armed with anti-aircraft-capable weapons. Various militia, extremist, and militant groups continued to vie for strategic influence and control of vital infrastructure, including airports, resulting in flight disruptions and damage to aircraft and airport facilities on various occasions in 2017 and 2018. Violent extremists and militants active in Libya possessed, or had access to, a wide array of anti-aircraft-capable weapons posing a risk to U.S. civil aviation operating at altitudes below FL260.

Additionally, foreign sponsor aerial activities, including a variety of unmanned aircraft systems (UAS), other military aircraft operations, and the potential for electronic interference from counter-UAS measures, presented a civil-military de-confliction challenge for civil aircraft operating at altitudes below FL300. While the FAA recognized that aircraft overflying the Tripoli FIR (HLLL) at altitudes at or above FL300 could potentially encounter electronic interference from counter-UAS measures, such interference would not present a significant flight safety hazard. At cruising altitudes at or above FL300, the FAA expects pilots would have sufficient time to recognize the interference and respond to it by using other instruments or navigation aids.

Accordingly, in the March 2019 final rule, based on the improved safety and security conditions in the Tripoli FIR (HLLL) at altitudes at or above FL300, the FAA modified its flight prohibition for U.S. civil aviation to permit overflights of the Tripoli FIR (HLLL) at altitudes at and above FL300, subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Libya. However, as a result of the significant continuing risk to the safety of U.S. civil aviation operating at altitudes below FL300 in the Tripoli FIR (HLLL), the FAA maintained its prohibition on U.S. civil flight operations in the Tripoli FIR (HLLL) at those altitudes and extended the expiration date of SFAR No. 112, § 91.1603, from March 20, 2019, to March 20, 2021.

Following the publication of the March 20, 2019, final rule, the FAA became concerned about increased hazards to U.S. civil overflights of northwestern Libya at or above FL300 related to the ongoing conflict for control of the capital, Tripoli. LNA forces had begun operations aimed at seizing control of Tripoli, including Tripoli International Airport (HLLT). The GNA, with support of militias, had conducted counterattacks, including tactical airstrikes on LNA forces. The LNA had declared a military zone and was threatening to shoot down aircraft operating in portions of northwestern Libya.

Both GNA and advancing LNA forces had access to advanced man-portable air defense systems (MANPADS) and likely had access to anti-aircraft artillery. These ground-based anti-aircraft weapon systems presented a risk to U.S. civil aviation at altitudes below FL300. However, LNA forces had fighter aircraft capable of intercepting civil aircraft operating at altitudes at and above FL300 in the self-declared military zone in northwestern Libya. While the LNA fighter aircraft threat was likely intended for GNA-associated military aircraft, an inadvertent risk remained for U.S. civil aviation operations at all altitudes in northwestern Libya due to potential miscalculation or misidentification. As a result of this evolving threat, on April 6, 2019, the FAA issued NOTAM KICZ A0012/19, prohibiting U.S. civil flight operations at all altitudes in the territory and airspace of Libya from west of 17 degrees east longitude and north of 29 degrees north latitude.

Subsequently, on October 23, 2019, the FAA issued KICZ NOTAM A0026/19, which prohibited U.S. civil aviation operations in the entire territory and airspace of Libya at all altitudes. The FAA assessed the area of unacceptable inadvertent risk to U.S. civil aviation operations at all altitudes had spread to the entire territory and airspace of Libya due to the geographic expansion of the ongoing conflict between the GNA and the LNA for control over Libya's government, territory, and resources. The conflict featured increased foreign intervention and the employment of advanced weapons systems. Foreign state actors continued to provide material and technical assistance to rival factions, including surface-to-air missile (SAM) systems, UAS, and jamming equipment.

In addition, since mid-2019, each side had conducted air strikes targeting military airfields co-located with international civil airports. These attacks utilized both tactical combat aircraft and, increasingly, long-range UAS. Foreign-operated armed UAS had conducted multiple strikes on competing airports or airbases, resulting in the destruction of multiple parked aircraft, including civil transport aircraft. The FAA was concerned these strikes could lead to an increased air defense posture, including advanced SAM capabilities, to protect airport or airbase operations or fielded forces, which would pose an inadvertent risk to U.S. civil aviation. During 2019, the increased air strikes prompted GNA- and LNA-aligned forces to increase force protection measures, such as jamming, air strikes, and the deployment of SAM systems capable of reaching as high as 49,000 feet. Each side had employed anti-aircraft weapons to defend against air strikes. In September 2019, the LNA reportedly shot down a foreign-operated UAS during an attempted attack on the airbase at Jufra. In addition to foreign-operated air defense capabilities, both GNA and LNA forces had, and continue to have, access to advanced MANPADS, some of which have a maximum altitude of 25,000 feet; anti-aircraft artillery; and possible training, technical, and material support from international partners.

In addition, more advanced, higher-altitude air defense systems were reportedly in Libya. As of mid-June 2019, a Pantsir S-1 (SA-22) SAM system was reportedly deployed to defend Jufra. The SA-22 has an effective range of 20 kilometers (10.8 nautical miles) and a maximum altitude of 15,000 meters (49,000 feet). The FAA was concerned the SA-22 could be relocated in response to the dynamic threat environment, and could be repositioned to defend the base at Al Khadim, Libya, with little or no warning. Al Khadim was located outside the area of northwestern Libya where the FAA had previously prohibited U.S. civil flight operations at all altitudes.

In addition, air strikes had prompted LNA-aligned forces to redeploy long-range UAS and SAMs to locations outside the area of northwestern Libya where they had previously been located. The relocation of these SAMs presented an inadvertent risk to U.S. civil aviation at altitudes above FL300 in the territory and airspace of Libya. The FAA also was concerned that GNA-and LNA-aligned forces might expand their use of UAS air strikes to attack opposition aircraft at airbases that are usually co-located with international civil airports, presenting a risk to civil aircraft operating at or near such airports.

While the anti-aircraft capabilities and jamming were likely intended to defend against military aircraft, an inadvertent risk remained for U.S. civil aviation operations at all altitudes in the territory and airspace of Libya due to potential miscalculation or misidentification and the mobility of some of the advanced weapons systems involved. Increased foreign involvement had resulted in an unacceptable inadvertent risk to U.S. civil aviation operations in the territory and airspace of Libya due to command and control and airspace de-confliction challenges, increased lethality of UAS operations, and the introduction of more advanced, higher-altitude anti-aircraft systems. Due to these hazards, NOTAM KICZ A0026/19 prohibited U.S. civil flight operations at all altitudes in the territory and airspace of Libya.

Since the issuance of NOTAM KICZ A0026/19, the risks to U.S. civil aviation operations in the territory and airspace of Libya have further increased due to increased foreign intervention. Clashes continue for control of the capital, Tripoli, which the LNA has attempted to capture since early 2019, and these attacks have increasingly targeted aviation. The escalation has resulted in further expansion of foreign sponsorship of, and intervention in support of, both the LNA and GNA. This support involves third party forces, as well as deployment of advanced weapons, including advanced fighter aircraft, weaponized UAS, SAM systems, and, likely, jammers. Both sides have conducted air strikes, utilizing tactical combat aircraft and long-range, armed UAS to target airport infrastructure and aircraft on the ground at airports. In May 2020, Russia deployed multiple fighter aircraft to Libya to provide close air support to its private military contractors and the LNA and protect their operations from attacks by manned aircraft and weaponized UAS. The foreign states supporting the LNA and GNA also have deployed anti-aircraft weapons and self-protection jamming systems to mitigate the air threat. The combination of these activities poses airspace de-confliction concerns and an inadvertent risk of in-flight engagement of civil aircraft as a result of possible misidentification or miscalculation.

Since November 2019, there have been several GNA UAS shot down near Tripoli's Mitiga International Airport (HLLM), and one LNA UAS and one LNA MiG-23 shot down near Tripoli. The most recent of those reported shoot downs occurred on January 28, 2020, when GNA forces claimed to have downed a UAS operating near Misrata. As a result of weapons activity posing a potential threat to civil aviation, the GNA closed Mitiga International Airport (HLLM) on multiple occasions during January and February 2020. In addition, LNA leader General Haftar announced on January 23, 2020, that LNA forces would engage any military or civil aircraft operating from Mitiga International Airport (HLLM).

The two sides' failure to reach a ceasefire agreement, combined with the recent spate of aircraft shoot downs and the potential for additional deployments of advanced weapons capabilities, present a further increasing risk to civil aviation operations in the territory and airspace of Libya at all altitudes. Additional airstrikes targeting Libyan airports, and the associated air defense reactions, could increase, posing a risk to civil aircraft on the ground and in flight. The GNA and LNA possess anti-aircraft artillery and MANPADS, some of which have a maximum altitude of up to 25,000 feet (7,620 meters).

However, more advanced, higher-altitude air defense systems have been deployed to Libya. In addition to the SA-22 deployment previously described, a foreign sponsor associated with the GNA reportedly deployed multiple variants of anti-aircraft weapons to provide a layered air defense in Tripoli. This deployment included a medium range I-Hawk SAM and a Korkut 35mm air defense gun. In addition, both the GNA and LNA may augment their air defense operations with increased Global Positioning System (GPS) and radio frequency jamming. The FAA assesses that the escalating fighting, increased foreign intervention, and deployment of additional air defense capabilities present an increasing risk to U.S. civil aviation operations in the territory and airspace of Libya at all altitudes. For these reasons, this final rule incorporates the flight prohibition on U.S civil aviation operation in the territory and airspace of Libya at all altitudes, contained in NOTAM KICZ A0026/19, into SFAR No. 112, § 91.1603.

In addition, the FAA assesses that the hazards to the safety of U.S. civil aviation operations at altitudes below FL 300 described in the preamble to the March 2019 final rule remain of concern in those portions of the Tripoli FIR (HLLL) that are outside the territory and airspace of Libya. 5 The FAA also notes that foreign military manned and unmanned tactical aircraft may operate or approach targets from off the northern coast, presenting airspace de-confliction challenges at altitudes below FL300. Additionally, there is the potential for GPS interference bleed over that may impact flights operating over the southern Mediterranean Sea in the Tripoli FIR (HLLL). For these reasons, this rule also continues the prohibition against all flights by U.S. civil operators and airmen at altitudes below FL300 in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya.

For all of the reasons described in this preamble, the FAA also extends the expiration date of SFAR No. 112, § 91.1603, until March 20, 2023. The FAA will continue to actively monitor the situation and evaluate the extent to which U.S. civil operators and airmen might be able to operate safely in the territory and airspace of Libya and the Tripoli FIR (HLLL). Amendments to SFAR No. 112, § 91.1603, could be appropriate if the risk to aviation safety and security changes. The FAA may amend or rescind SFAR No. 112, § 91.1603, as necessary, prior to its expiration date.

By this action, the FAA also republishes the details concerning the approval and exemption processes in Sections V and VI of this preamble, consistent with other recently published flight prohibition SFARs, to enable interested persons to refer to this final rule for comprehensive information about requesting relief from the FAA from the provisions of SFAR No. 112, § 91.1603. The FAA also makes minor administrative revisions to the approval process and SFAR No. 112, § 91.1603, in this final rule.

In some instances, U.S. government departments, agencies, or instrumentalities may need to engage U.S. civil aviation to support their activities in the territory and airspace of Libya or in the rest of the Tripoli FIR (HLLL). If a department, agency, or instrumentality of the U.S. Government determines that it has a critical need to engage any person described in SFAR No. 112, § 91.1603, including a U.S. air carrier or commercial operator, to conduct a charter to transport civilian or military passengers or cargo or other operations, at all altitudes in the territory and airspace of Libya or at altitudes below FL300 in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya, that department, agency, or instrumentality may request the FAA to approve persons described in SFAR No. 112, § 91.1603, to conduct such operations.

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

The letter must be sent to the Associate Administrator for Aviation Safety, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591. Electronic submissions are acceptable, and the requesting entity may request that the FAA notify it electronically as to whether the approval request is granted. If a requestor wishes to make an electronic submission to the FAA, the requestor should contact the Air Transportation Division, Flight Standards Service, at (202) 267-8166, to obtain the appropriate email address. A single letter may request approval from the FAA for multiple persons described in SFAR No. 112, § 91.1603, or for multiple flight operations. To the extent known, the letter must identify the person(s) expected to be covered under the SFAR on whose behalf the U.S. Government department, agency, or instrumentality is seeking FAA approval, and it must describe—

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

• The service to be provided by the person(s) covered by the SFAR;

• To the extent known, the specific locations in the territory and airspace of Libya at all altitudes, and in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya at altitudes below FL300, where the proposed operation(s) will be conducted, including, but not limited to, the flight path and altitude of the aircraft while it is operating in those areas and the airports, airfields, or landing zones at which the aircraft will take off and land; and

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

The request for approval must also include a list of operators with whom the U.S. Government department, agency, or instrumentality requesting FAA approval has a current contract(s), grant(s), or cooperative agreement(s) (or its prime contractor has a subcontract(s)) for specific flight operations in the territory and airspace of Libya at any altitude or in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya at altitudes below FL300. The requestor may identify additional operators to the FAA at any time after the FAA approval is issued. Both the operators listed in the original request and any operators that the requestor subsequently seeks to add to the approval must be identified to the FAA and obtain an Operations Specification (OpSpec) or Letter of Authorization (LOA) from the FAA, as appropriate, for operations in the territory and airspace of Libya at any altitude or in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya at altitudes below FL300, as applicable, before such operators commence operations. The approval conditions discussed below apply to all operators, whether included in the original list or subsequently added to the approval. Updated lists should be sent to the email address to be obtained from the Air Transportation Division by calling (202) 267-8166.

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

FAA approval of an operation under SFAR No. 112, § 91.1603, does not relieve persons subject to this SFAR of their responsibility to comply with all other applicable FAA rules and regulations. Operators of civil aircraft must comply with the conditions of their certificate, OpSpecs, and LOAs, as applicable. Operators must also comply with all rules and regulations of other U.S. Government departments or agencies that may apply to the proposed operation(s), including, but not limited to, regulations issued by the Transportation Security Administration.

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

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

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

(a) A written release of the U.S. Government from all damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising out of or related to the approved operations in the territory and airspace of Libya at all altitudes and in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya at altitudes below FL300; and

(b) The operator's written agreement to indemnify the U.S. Government with respect to any and all third-party damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising from or related to the approved operations at all altitudes in the territory and airspace of Libya and in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya at altitudes below FL300.

(3) Other conditions that the FAA may specify, including those that may be imposed in OpSpecs or LOAs, as applicable.

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

If the FAA approves the proposed operation(s), the FAA will issue an OpSpec or a LOA, as applicable, to the operator(s) identified in the original request authorizing them to conduct the approved operation(s), and will notify the department, agency, or instrumentality that requested the FAA approval of any additional conditions beyond those contained in the approval letter.

Any operations not conducted under an approval the FAA issues through the approval process set forth previously must be conducted under an exemption from SFAR No. 112, § 91.1603. A petition for exemption must comply with 14 CFR part 11. The FAA will consider whether exceptional circumstances exist beyond those contemplated by the approval process described in the previous section. In addition to the information required by 14 CFR 11.81, at a minimum, the requestor must describe in its submission to the FAA—

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

• The service to be provided by the person(s) covered by the SFAR;

• The specific locations in the territory and airspace of Libya at all altitudes, and in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya at altitudes below FL300, where the proposed operation(s) will be conducted, including, but not limited to, the flight path and altitude of the aircraft while it is operating in those areas and the airports, airfields, or landing zones at which the aircraft will take off and land;

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

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

Additionally, the release and agreement to indemnify, as referred to previously, are required as a condition of any exemption that may be issued under SFAR No. 112, § 91.1603.

The FAA recognizes that the operations SFAR No. 112, § 91.1603, might affect could include operations planned for the governments of other countries with the support of the U.S. Government. While the FAA will not permit these operations through the approval process, the FAA will consider exemption requests for such operations on an expedited basis and prior to other exemption requests.

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

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

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

This action amends, with modifications to reflect changed security conditions in Libya and the associated risks to U.S. civil aviation safety, the SFAR prohibiting certain flight operations in the Tripoli FIR (HLLL). This action prohibits U.S. civil flight operations in the territory and airspace of Libya at all altitudes, incorporating the flight prohibition contained in NOTAM KICZ A0026/19 into the SFAR, as a result of the significant hazards to U.S. civil aviation detailed in the preamble of this final rule. This action also extends the expiration date of the SFAR for an additional two years and continues the prohibition against all U.S. civil flights at altitudes below FL300 in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya. As a result of this rule, U.S. civil operators and airmen may only operate in the Tripoli FIR (HLLL) if they remain outside the territory and airspace of Libya and at altitudes at or above FL300, unless they have received an exemption or approval from the FAA.

Consequently, U.S. operators have the option to continue using several airways connecting western Africa with the Middle East, provided that they operate at altitudes at or above FL300 in the Tripoli FIR (HLLL) and remain outside of Libyan territorial airspace. In addition, U.S. Government departments, agencies, and instrumentalities may take advantage of the approval process on behalf of U.S. operators and airmen with whom they have a contract, grant, or cooperative agreement, or with whom their prime contractor has a subcontract. U.S. operators and airmen who do not have any of the foregoing types of arrangements with the U.S. Government may petition for exemption from this rule.

The FAA acknowledges the expanded flight prohibition in NOTAM KICZ A0026/19, which this final rule incorporates into SFAR No. 112, § 91.1603, may result in additional costs to some U.S. operators, such as increased fuel costs and other operational-related costs. However, the FAA expects the costs of this action are exceeded by the benefits of avoided risks of fatalities, injuries, and property damage that could result from a U.S. operator's aircraft being shot down (or otherwise damaged) while operating in the territory and airspace of Libya at all altitudes or in those portions of the Tripoli FIR (HLLL) outside the territory and airspace of Libya at altitudes below FL300. The FAA will continue to monitor and evaluate the risks to U.S. civil operators and airmen as a result of security conditions in the territory and airspace of Libya, as well as in the rest of the Tripoli FIR (HLLL).

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

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

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

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

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

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

In keeping with U.S. obligations under the Convention on International Civil Aviation, the FAA's policy is to conform to ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has determined there are no ICAO Standards and Recommended Practices that correspond to this regulation.

The FAA finds that this action is fully consistent with the obligations under 49 U.S.C. 40105(b)(1)(A) to ensure that the FAA exercises its duties consistently with the obligations of the United States under international agreements.

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

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

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

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

The FAA analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

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

This rule is not subject to the requirements of Executive Order 13771 because it is issued with respect to a national security function of the United States.

An electronic copy of a rulemaking document may be obtained from the internet by—

• Searching the Federal Document Management System (FDMS) Portal at http://www.regulations.gov;

• Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies; or

• Accessing the Government Publishing Office's website at http://www.govinfo.gov.

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

Except for classified material, all documents the FAA considered in developing this rule, including economic analyses and technical reports, may be accessed from the internet through the Federal Document Management System Portal referenced previously.

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

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations, part 91, as follows:

We are making technical amendments to correct §§ 230.497 and 232.405. Specifically, this document amends Instructions 25 and 28 published in the Adopting Release. Instruction 25.a is amended to correct a citation to Form N-2; and Instruction 25.b is removed, with subsequent instructions renumbered accordingly. Instruction 28.b is removed, with subsequent instructions renumbered accordingly; newly-designated Instruction b is amended to correct an unneeded direction to remove a heading; and newly-redesignated Instruction 28.d is amended to redesignate Note 2 to rule 405 of Regulation S-T as Note 1 to rule 405 of Regulation S-T.

On November 6, 2019 the Coast Guard published a notice of proposed rulemaking entitled Drawbridge Operation Regulations; Lacombe Bayou, LA in the Federal Register (84 FR 59741), to seek public comments on whether the Coast Guard should consider modifying the current operating schedule to the Tammany Trace drawbridge. We received 0 comments.

The Coast Guard is issuing this rule under authority 33 U.S.C. 499.

St. Tammany Parish (STP) requested to change the operating requirements for the Tammany Trace swing bridge across Lacombe Bayou, mile 5.2, at Lacombe, St. Tammany Parish, Louisiana. This bridge currently opens on signal according to 33 CFR part 117.5. STP requested to open the bridge if vessels provide 2 hours advance notification.

This bridge spans the Tammany Trace which is a park area that is used by pedestrians and bicyclists. The park is open from 7 a.m. to 7:30 p.m. daily. The bridge operates during park hours and is secured in the open to navigation position when the park is closed. This bridge has a vertical clearance of 9.7 feet above mean high water in the closed to vessel position and unlimited vertical clearance in the open to vessel traffic position. This waterway is primarily used by recreational boaters in the Lacombe area and does not support commercial activity. The STP bridge operators also perform park official activities including bike, pedestrian and equestrian operations and maintenance. There are few vessel movements through this bridge. From 2015 through 2017 the bridge opened 197 times for vessel passage. This equates to less than 3 bridge openings per month.

This change allows the parish to coordinate and schedule Tammany Trace requirements and provide for the reasonable needs of navigation.

There were no comments on this rule change. The Coast Guard provided a comment period of 30 days. Based on the infrequent number of times that this bridge has opened for vessel traffic over 3 years this rule provides vessels with a reasonable ability to use the waterway. We identified no impacts on marine navigation with this proposed rule.

The Coast Guard has developed this 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 protesters.

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. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget (OMB) and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the lack of commercial vessel traffic on this waterway, and the recreational boats that routinely transit the bridge under the proposed schedule. Those vessels with a vertical clearance requirement of less than 9.7 feet above mean high water may transit the bridge at any time, and the bridge will open in case of emergency at any time. This regulatory action takes into account the reasonable needs of vessel and vehicular traffic.

The Regulatory Flexibility Act of 1980 (RFA), 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 received 0 comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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 rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no 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 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 rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f). The Coast Guard has determined 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 rule promulgates the operating regulations or procedures for drawbridges and s categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact 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.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

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

On February 5, 2020, EPA proposed to approve a revision to the Minnesota SIP, which included amendments to rules governing air emission permits, the removal of regulations unnecessary for Minnesota to attain and maintain the National Ambient Air Quality Standards, and the addition of new and previously deferred air program rules. 85 FR 6482. The notice of proposed rulemaking provided an explanation of the Clean Air Act (CAA) requirements, a detailed analysis of the revisions, and EPA's reasons for proposing approval. This action will not restate that information. The public comment period for this proposed rule ended on March 6, 2020.

During the comment period, EPA received only one comment. This comment, sent from an anonymous commenter, consists solely of quotes from the 2007 animated film Bee Movie. The comment is included in the docket for this action.

EPA Region 5 is publishing this direct final Notification of Deletion of the Scrap Processing Site from the NPL. The NPL constitutes Appendix B of 40 CFR part 300, which is the NCP, which EPA promulgated pursuant to Section 105 of CERCLA of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 40 CFR 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

Section II of this preamble explains the criteria for deleting sites from the NPL. Section III of this preamble discusses the procedures that EPA is using for this action. Section IV of this preamble discusses where to access and review information that demonstrates how the deletion criteria have been met at the Scrap Processing Site. Section V of this preamble discusses EPA's action to delete the Scrap Processing Site from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA Section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Scrap Processing Site:

(1) EPA consulted with the State of Wisconsin prior to developing this direct final Notification of Deletion and the Notification of Intent to Delete co-published today in the “Proposed Rules” section of the Federal Register .

(2) EPA has provided the State thirty (30) working days for review of this action and the parallel Notification of Intent to Delete prior to their publication today, and the State, through the WDNR, concurred with the deletion of the Scrap Processing Site from the NPL on July 16, 2020.

(3) Concurrently with the publication of this direct final Notification of Deletion, an announcement of the availability of the parallel Notification of Intent to Delete is being published in a major local newspaper, The Star News. The newspaper advertisement announces the 30-day public comment period concerning the Notification of Intent to Delete the Scrap Processing Site from the NPL.

(4) EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at https://www.regulations.gov, Docket ID No. EPA-HQ-SFUND-2005-0011 and at https://www.epa.gov/superfund/scrap-processing.

If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notification of Deletion in the Federal Register before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notification of Intent to Delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The EPA placed a copy of its Final Close Out Report for the Site and other documents supporting the proposed deletion in the deletion docket. The material provides the explanation of EPA's rationale for the deletion and demonstrates how it meets the deletion criteria. This information is made available for public inspection in the deletion docket available at https://www.regulations.gov, Docket ID No. EPA-HQ-SFUND-2005-0011 and at https://www.epa.gov/superfund/scrap-processing.

EPA, with concurrence of the State of Wisconsin, through the WDNR, has determined that all appropriate response actions under CERCLA, other than operation and maintenance, monitoring institutional controls, and five-year reviews have been completed at the Scrap Processing Site. Therefore, EPA is deleting the Scrap Processing Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective September 25, 2020 unless EPA receives adverse comments by August 26, 2020. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final Notification of Deletion before its effective date and the deletion will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the Notification of Intent to Delete and the comments already received. There will be no additional opportunity to comment.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

You may be potentially affected by this action if you manufacture (including import), process, or distribute in commerce chemical substances and mixtures in the class of long-chain perfluoroalkyl carboxylate (LCPFAC) and perfluoroalkyl sulfonate chemical substances. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Manufacturers (including importers) of one or more of subject chemical substances (NAICS codes 325 and 324110); e.g., chemical manufacturing and petroleum refineries.

• Fiber, yarn, and thread mills (NAICS code 31311).

• Carpet and rug mills (NAICS code 314110).

• Home furnishing merchant wholesalers (NAICS code 423220).

• Carpet and upholstery cleaning services (NAICS code 561740).

• Manufacturers of computer and other electronic products, appliances, and components (NAICS codes 324 and 335).

• Manufacturers of surgical and medical instruments (NAICS 339112).

• Merchant wholesalers (NAICS codes 423 and 424).

• Stores and retailers (NAICS codes 442, 442, 444, 448, 451, 454).

• Providers of other support services (NAICS code 561990).

Other types of entities not listed in this unit could also be affected. The NAICS codes have been provided to assist you and others in determining whether this action might apply to certain entities.

This action may affect certain entities through pre-existing import certification and export notification rules under TSCA. Persons who import any chemical substance governed by a final SNUR are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements and the corresponding regulations at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Those persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. Additionally, persons who export or intend to export a chemical substance that is the subject of a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b); see also 40 CFR part 707, subpart D and 40 CFR 721.20). Under the existing TSCA import certification and export notification rules, persons who import a chemical substance covered under this final rule as part of an article would be exempt from TSCA section 13 import certification, and persons who export or intend to export a chemical substance as part of an article would be exempt from the TSCA section 12(b) export notification requirements. See Unit V. for more information on the applicability of the import certification and export notification requirements.

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

TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in TSCA section 5(a)(2). TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of the following factors:

• The projected volume of manufacturing and processing of a chemical substance,

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance,

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance,

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorizes EPA to consider any other relevant factors. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B)(i) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture (including import) or process the chemical substance for that use (15 U.S.C. 2604(a)(1)(B)(i)). TSCA furthermore prohibits such manufacturing or processing from commencing until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination (15 U.S.C. 2604(a)(1)(B)(ii)). Additionally, TSCA section 5(a)(5) (15 U.S.C. 2604(a)(5)), as amended in 2016, authorizes EPA to require notification for the import or processing of a chemical substance as part of an article or category of articles under TSCA section 5(a)(1)(A)(ii) (15 U.S.C. 2604(a)(1)(A)(ii)) if EPA makes an affirmative finding in a rule under TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) that the reasonable potential for exposure to the chemical substance through the article or category of articles subject to the rule justifies notification. As described in Unit V., the general SNUR provisions are found at 40 CFR part 721, subpart A.

In the Federal Register of January 21, 2015 (80 FR 2885) (FRL-9915-63), EPA proposed a SNUR for Long-Chain Perfluoroalkyl Carboxylate and Perfluoroalkyl Sulfonate Chemical Substances (Ref. 1). In the Federal Register of March 3, 2020 (85 FR 12479) (FRL-10003-21) (Ref. 2), EPA supplemented the 2015 proposed SNUR to be responsive to the article consideration provision at section 5(a)(5), added with the passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), which states that articles can be subject to notification requirements as a significant new use provided that EPA makes an affirmative finding in a rule that the reasonable potential for exposure to a chemical from an article or category of articles justifies notification.

EPA's response to public comments received on both the 2015 proposed rule and the 2020 supplemental proposed rule are provided in a Response to Comments document that is available in the docket and summarized in Unit XII. (Ref. 3). Please consult the Federal Register documents of January 21, 2015 (Ref. 1) and March 3, 2020 (Ref. 2) for further background information for this final rule.

This final SNUR will require persons to notify EPA at least 90 days before commencing:

1. The manufacturing (including importing) or processing of a subset of LCPFAC chemical substances for any use that was not ongoing after December 31, 2015;

2. The manufacturing (including importing) or processing of all other LCPFAC chemicals substances for which there were no ongoing uses as of January 21, 2015 (the date of the original 2015 proposal);

3. The import of a subset of LCPFAC chemicals as part of a surface coating on articles; and

4. The import of perfluoroalkyl sulfonate chemical substances as part of carpets.

This final SNUR will preclude the commencement of such manufacturing and processing until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination.

In the Federal Register of April 24, 1990 (55 FR 17376; FRL-3658-5), EPA decided that the intent of TSCA section 5(a)(1)(B) is best served by designating a use as a significant new use as of the date of publication of the proposed rule rather than as of the effective date of the final rule. Uses arising after the publication of the proposed rule are distinguished from uses that exist at publication of the proposed rule. The former would be new uses, the latter would be ongoing uses, except that uses that are ongoing as of the publication of the proposed rule would not be considered ongoing uses if they have ceased by the date of issuance of a final rule. This rule was published on January 21, 2015 and contains two significant new use dates. The first significant new use date is the date that the 2015 proposed rule published and applies to: The manufacturing or processing of all LCPFAC chemicals substances, other than those listed in the list of LCPFAC chemical substances in Unit II.; the import of articles containing a subset of LCPFAC chemical substances as part of a surface coating; and the import of perfluoroalkyl sulfonate chemical substances as part of carpets. The second significant new use date is December 31, 2015, for the manufacturing or processing of a subset of LCPFAC chemical substances, those listed in the list of LCPFAC chemical substances in Unit II. for any use. The chemical substances listed in the list of LCPFAC chemical substances in Unit II. correspond to the chemical substances that the principal manufacturers and processors of LCPFAC chemical substances participating in the 2010/2015 PFOA Stewardship Program agreed to phaseout by the end of 2015. Ongoing uses are described in the Response to Comment for this rule (Unit XII. and Ref. 3) and are reflected in updates to the regulatory text.

In the supplement to the proposed rule (Ref. 2), EPA requested comment on whether EPA could adopt a de minimis threshold for determining “reasonable potential for exposure” and if so, how that de minimis threshold could be established. Additionally, EPA requested comment on whether or not the Agency should include a safe harbor provision for importers of articles that can demonstrate their use was ongoing prior to the effective date of this rule. EPA appreciates the comments received. In this final rule, EPA is not finalizing a de minimis threshold for determining “reasonable potential for exposure” or a safe harbor provision. EPA will, however, continue to engage with interested stakeholders on these two issues. A further discussion of the comments received relating to a de minimis threshold and a safe harbor provision are included in the Response to Comment for this rule (Unit XII. and Ref. 3).

These SNUR amendments are necessary to ensure that EPA receives timely advance notice of any future manufacturing (including importing) and processing of LCPFAC and perfluoroalkyl sulfonate chemical substances for new uses that may produce changes in human and environmental exposures. Additionally, section 7352 of the National Defense Authorization Act of 2020 mandates that EPA take final action on the 2015 proposal no later than June 22, 2020.

The rationale and objectives for this rule are explained in Unit III.

EPA has evaluated the potential costs of establishing SNUR reporting requirements for potential manufacturers (including importers) and processors of the chemical substances included in this final rule. This Economic Analysis (Ref. 4), which is available in the docket, is discussed in Unit IX., and is briefly summarized here.

In the event that a SNUN is submitted, costs are estimated to be approximately $23,000 per SNUN submission for large business submitters and about $10,000 for small business submitters. The rule may also affect firms that plan to import articles that may be subject to the SNUR. Although there are no specific requirements in the rule for these firms, they may choose to undertake some activity to assure themselves that they are not undertaking a significant new use. In the accompanying Economic Analysis for this SNUR (Ref. 4), EPA provides example steps (and their respective costs) that an importer might take to identify LCFPAC chemical substances in articles. These can include gathering information through agreements with suppliers, declarations through databases or surveys, or use of a third-party certification system. EPA is unable to predict, however, what, if any, particular steps an importer might take; thus, potential total costs were not estimated. Importers may require suppliers to provide certificates of testing analysis of the products or perform their own laboratory testing of certain articles. An estimate of article testing cost is provided in Exhibit 3-7 of the Economic Analysis. While testing costs will vary depending on the specific chemical being tested for, the complexity of the article and sample preparation required, and the exact fees of the laboratory chosen for the analysis, an average of $150 per article tested is given in the Exhibit.

This final SNUR modifies the requirements for a subset of LCPFAC chemical substances in the existing SNUR at 40 CFR 721.10536 by:

1. Designating manufacturing (including importing) or processing of LCPFAC chemical substances listed in the list of LCPFAC chemical substances in this unit for any use that was no longer ongoing after December 31, 2015, as a significant new use; and

2. Designating manufacturing (including importing) or processing of perfluorooctanoic acid (PFOA) or its salts, which are considered LCPFAC chemical substances, and all other LCPFAC chemical substances for any use not ongoing as of January 21, 2015, the date on which the proposed rule was published, as a significant new use.

For this final SNUR, EPA is also making the exemption at 40 CFR 721.45(f) inapplicable for persons who import LCPFAC chemical substances listed in the list of LCPFAC chemical substances in this unit and PFOA or its salts (see examples in this unit) as part of a surface coating on articles because there is reasonable potential for exposure to LCPFAC chemical substances, including PFOA, if these chemical substances are incorporated as surface coatings in articles and then imported. As was originally proposed in 2015, the article exemption still applies to LCPFAC chemical substances not listed in this unit or that are not PFOA or its salts, with the exception of the import of carpets, for which the import exemption is already inapplicable (78 FR 62443, October 22, 2013; FRL-9397-1). The other provision of 40 CFR 721.45(f), respecting processing a chemical substance as part of an article, remains applicable. These LCPFAC chemical substances are:

• Perfluorooctyl iodide (CAS Registry No. (CASRN) 507-63-1; TSCA Chemical Inventory Name: Octane, 1,1,1,2,2,3,3,4,4,5,5,6,6,7,7,8,8-heptadecafluoro-8-iodo-).

• Tetrahydroperfluoro-1-decanol (CASRN 678-39-7; TSCA Chemical Inventory Name: 1-Decanol, 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,10-heptadecafluoro-).

• Perfluoro-1-dodecanol (CASRN 865-86-1; TSCA Chemical Inventory Name: 1-Dodecanol, 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11,12,12,12-heneicosafluoro-).

• Perfluorodecyl iodide (CASRN 2043-53-0; TSCA Chemical Inventory Name: Decane, 1,1,1,2,2,3,3,4,4,5,5,6,6,7,7,8,8-heptadecafluoro-10-iodo-).

• 1,1,2,2-Tetrahydroperfluorododecyl iodide (CASRN 2043-54-1; TSCA Chemical Inventory Name: Dodecane, 1,1,1,2,2,3,3,4,4,5,5,6,6,7,7,8,8,9,9,10, 10-heneicosafluoro-12-iodo-).

• Perfluorodecylethyl acrylate (CASRN 17741-60-5; TSCA Chemical Inventory Name: 2-Propenoic acid, 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11, 12,12,12-heneicosafluorododecyl ester).

• 1,1,2,2-Tetrahydroperfluorodecyl acrylate (CASRN 27905-45-9; TSCA Chemical Inventory Name: 2-Propenoic acid, 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,10-heptadecafluorodecyl ester).

• 1,1,1,2,2,3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11,12,12-Pentacosafluoro-14-iodotetradecane (CASRN 30046-31-2; TSCA Chemical Inventory Name: Tetradecane, 1,1,1,2,2,3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11,12,12-pentacosafluoro-14-iodo-).

• 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11,12,12,13,13,14,14,14-Pentacosafluorotetradecan-1-ol (CASRN 39239-77-5; TSCA Chemical Inventory Name: 1-Tetradecanol, 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11,12,12,13,13,14,14,14-pentacosafluoro-).

• 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11,12,12,13,13,14,14,15,15,16,16,16-Nonacosafluorohexadecan-1-ol (CASRN 60699-51-6; TSCA Chemical Inventory Name: 1-Hexadecanol, 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11,12,12,13,13,14,14,15,15,16,16,16-nonacosafluoro-).

• 1,1,1,2,2,3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11,12,12,13,13,14,14-Nonacosafluoro-16-iodohexadecane (CASRN 65510-55-6; TSCA Chemical Inventory Name: Hexadecane, 1,1,1,2,2,3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11,12,12,13,13,14,14-nonacosafluoro-16-iodo-).

• Sodium;2-methylpropane-1-sulfonate (CASRN 68187-47-3; TSCA Chemical Inventory Name: 1-Propanesulfonic acid, 2-methyl-, 2-[[1-oxo-3-[(.gamma.-.omega.-perfluoro- C4-16-alkyl)thio]propyl]amino] derivs., sodium salts).

• 1,1,2,2-Tetrahydroperfluoroalkyl (C8-C14) alcohol (CASRN 68391-08-2; TSCA Chemical Inventory Name: Alcohols, C8-14, .gamma.-.omega.-perfluoro).

• Thiols, C8-20, gamma-omega-perfluoro, telomers with acrylamide (CASRN 70969-47-0; TSCA Chemical Inventory Name: Thiols, C8-20, .gamma.-.omega.-perfluoro, telomers with acrylamide).

• Silicic acid (H 4 SiO 4 ), sodium salt (1:2), reaction products with chlorotrimethylsilane and 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,10-heptadecafluoro-1-decanol (CASRN 125476-71-3; TSCA Chemical Inventory Name: Silicic acid (H 4 SiO 4 ), sodium salt (1:2), reaction products with chlorotrimethylsilane and 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,10-heptadecafluoro-1-decanol).

• Thiols, C4-20, gamma-omega-perfluoro, telomers with acrylamide and acrylic acid, sodium salts) (CASRN 1078712-88-5; TSCA Chemical Inventory Name: Thiols, C4-20, .gamma.-.omega.-perfluoro, telomers with acrylamide and acrylic acid, sodium salts).

• 1-Propanaminium, 3-amino-N-(carboxymethyl)-N,N-dimethyl-, N-(2-((gamma-omega-perfluoro-C4-20-alkyl)thio)acetyl) derivs., inner salts (CASRN 1078715-61-3; TSCA Chemical Inventory Name: 1-Propanaminium, 3-amino-N-(carboxymethyl)-N,N-dimethyl-, N-[2-[(.gamma.-.omega.-perfluoro-C4-20-a lkyl)thio]acetyl] derivs., inner salts).

• Polyfluoroalkyl betaine (generic) (CASRN is CBI; EPA Accession No. 71217; TSCA Chemical Inventory Name: Polyfluoroalkyl betaine (PROVISIONAL)).

• Modified fluoroalkyl urethane (generic) (CASRN is CBI; EPA Accession No. 89419; TSCA Chemical Inventory Name: Modified fluoroalkyl urethane (PROVISIONAL)).

• Perfluorinated polyamine (generic) (CASRN is CBI; EPA Accession No. 274147; TSCA Chemical Inventory Name: Perfluorinated polyamine (PROVISIONAL)).

The term LCPFAC refers to the long-chain category of perfluorinated carboxylate chemical substances with perfluorinated carbon chain lengths equal to or greater than seven carbons and less than or equal to 20 carbons. The category of LCPFAC chemical substances also includes the salts and precursors of these perfluorinated carboxylates. See Unit II.A. of the 2015 proposed rule (Ref. 1) for further discussion of the LCPFAC category. In addition to the subset of LCPFAC chemical substances identified in the list above, PFOA and its salts are subject to the final rule. PFOA and its salts are considered LCPFAC chemical substances. PFOA and examples of PFOA salts with CASRNs and chemical names are as follows:

• Pentadecafluorooctanoyl fluoride (CASRN 335-66-0; TSCA Chemical Inventory Name: Octanoyl fluoride, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro-).

• Perfluorooctanoic acid (CASRN 335-67-1; TSCA Chemical Inventory Name: Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro- (PFOA)).

• Silver perfluorooctanoate (CASRN 335-93-3; TSCA Chemical Inventory Name: Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro-, silver (+) salt (1:1)).

• Sodium perfluorooctanoate (CASRN 335-95-5; TSCA Chemical Inventory Name: Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro-, sodium salt (1:1)).

• Potassium perfluorooctanoate (CASRN 2395-00-8; TSCA Chemical Inventory Name: Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro-, potassium salt (1:1)).

• Ammonium perfluorooctanoate (CASRN 3825-26-1; TSCA Chemical Inventory Name: Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro-, ammonium salt (1:1) (APFO).

EPA is also amending the existing SNUR at 40 CFR 721.9582 for perfluoroalkyl sulfonate chemical substances to make the exemption at 40 CFR 721.45(f) inapplicable for persons who import perfluoroalkyl sulfonate chemical substances as part of carpets, which is being finalized as proposed. The perfluoroalkyl sulfonate chemical substances for which EPA is modifying an existing SNUR are currently listed in 40 CFR 721.9582(a)(1). In this rule, which is consistent with the proposal and 40 CFR 721.9582, the term perfluoroalkyl sulfonates refers to a category of perfluorinated sulfonate chemical substances of any chain length. In the 2015 proposed rule, as was past practice, perfluoroalkyl sulfonates chemical substances were referred to as “PFAS” chemical substances. EPA, however, recognizes that the acronym PFAS is now used for “perfluoroalkyl and polyfluoroalkyl substances.” Moving forward, EPA will use PFAS as an acronym for perfluoroalkyl and polyfluoroalkyl substances.

LCPFAC and perfluoroalkyl sulfonate chemical substances have been found in the blood of the general human population, as well as in wildlife, indicating that exposure to these chemical substances is widespread (Refs. 5, 6, and 7). PFOA and its salts, which are considered LCPFAC chemical substances, have been a primary focus of studies related to the LCPFAC class of chemical substances. PFOA is persistent, widely present in humans and the environment, has a half-life in humans of 2.3-3.8 years, and can cause adverse effects in laboratory animals, including cancer and developmental and systemic toxicity (Refs. 5, 8, 9, 10, and 11). Human epidemiology data report associations between PFOA exposure and high cholesterol, increased liver enzymes, decreased vaccination response, thyroid disorders, pregnancy-induced hypertension and preeclampsia, and cancer (testicular and kidney) (Ref. 12). PFOA precursors, chemicals which degrade or may degrade to PFOA, are also present worldwide in humans and the environment and, in some cases, might be more toxic and be present at higher concentrations than PFOA (Refs. 13, 14, 15, 16, and 17). Multiple pathways of exposure, including through drinking water, food, house dust, and release from treated articles, are possible (Ref. 18).

Perfluoroalkyl sulfonate chemical substances degrade ultimately to perfluoroalkylsulfonic acid (PFASA), which can exist in the anionic form under certain environmental conditions (Ref. 15). PFASA is highly persistent in the environment and has a tendency to bioaccumulate (Ref. 15). While most studies of perfluoroalkyl sulfonate chemical substances to date have focused primarily on perfluorooctane sulfonate (PFOS), structure-activity relationship analysis indicates that the results of those studies are applicable to the entire category. Available test data have raised concerns about their potential developmental, reproductive, and systemic toxicity (Refs. 5, 6, 13, and 19).

In the absence of a regulation, manufacture or processing for the significant new uses proposed on January 21, 2015 (Ref. 1), may begin at any time, without prior notice to EPA. As explained in the January 21, 2015, proposal (Ref. 1), EPA is concerned that commencement of the manufacture or processing for any new uses, including resumption of past uses, of LCPFAC and perfluoroalkyl sulfonate chemical substances could increase the magnitude and duration of exposure to humans and the environment.

The manufacture of LCPFAC chemical substances listed in Unit II. was discontinued after December 31, 2015, as committed by the principal manufacturers and processors of LCPFAC chemical substances participating in the 2010/2015 PFOA Stewardship Program. Given that these chemical substances have been discontinued, EPA expects the presence of LCPFAC chemical substances in humans and the environment to decline over time as has been observed in the past when production and use of other persistent chemicals have ceased (Ref. 20). At this time, EPA is aware, and has provided an exemption for, the processing of select chemical substances listed in Unit II. that continues from the use of existing stocks for specific uses. The processing of existing stocks of these LCPFAC chemical substances is expected to decline over time as stocks of these chemicals are depleted. Similarly, EPA also expects ongoing uses of other LCPFAC chemicals substances to decline because the manufacture and processing for those uses have declined or ceased, as indicated by industry communication, market research, information submitted to EPA under the Chemical Data Reporting (CDR) rule, and comments received related to the proposed rule (Ref. 1) and supplement to the proposed rule (Ref. 2). In addition, EPA expects the presence of perfluoroalkyl sulfonate chemical substances to decline in humans and the environment because perfluoroalkyl sulfonates are no longer imported as part of carpets. EPA is concerned that the manufacturing or processing of these chemical substances for significant new uses could be reinitiated in the future. If reinitiated, EPA believes that such use could significantly increase the magnitude and duration of exposure to humans and the environment to these chemical substances.

Consistent with EPA's past practice for issuing SNURs under TSCA section 5(a)(2), EPA's decision to propose a SNUR for a particular use of a chemical substance is not based on an extensive evaluation of the hazard, exposure, or potential risk associated with that use. Rather, EPA's determination that a use constitutes a significant new use requires a notice, upon receipt of which EPA would conduct an assessment. If a person decides to begin manufacturing or processing any of these chemicals for a significant new use, the notice to EPA allows the Agency to evaluate the use according to the specific parameters and circumstances surrounding the conditions of use.

Enacted on June 22, 2016, the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. 114-182) amended several sections of TSCA and added section 5(a)(5), Article Consideration, which states that EPA “may require notification under this section for the import or processing of a chemical substance as part of an article or category of articles” if EPA affirmatively finds in a rule under section 5(a)(2) that the reasonable potential for exposure to the chemical substance through the article or category of articles justifies notification. In the 2015 proposal (Ref. 1), EPA proposed to make the exemption from notification requirements for persons who import the chemical substance as part of an article inapplicable for the import of a subset of LCPFAC chemical substances in “all” articles. After careful consideration, and in order to align the 2015 proposed rule with the new requirements under TSCA, EPA issued a supplemental proposal to require submission of a significant new use notice for the import of a subset of LCPFAC chemical substances “as part of a surface coating on articles” as opposed to “all articles.” The supplemental proposal better defined the articles subject to the rule by defining the subject articles by the category: “imported articles where certain LCPFAC chemical substances are part of a surface coating on the articles.” While the 2020 supplemental and the 2015 proposed SNUR differ in language, EPA believes that the difference in impact will be minimal. LCPFAC chemical substances can be applied to articles as a surface coating. By lifting the articles exemption for articles that contain certain LCPFAC chemical substances as part of a surface coating, EPA believes that it has captured the majority of article applications of these chemical substances. Other than instances where LCPFAC chemicals may be used to manufacture fluoropolymer membranes, EPA is unaware of any other uses of LCPFAC chemical substances in articles other than as a surface coating. EPA may propose future SNURs for the import of other articles containing LCPFAC chemical substances as appropriate.

Products such as paints and coatings, lubricants, and fire-fighting foam are not articles. As defined at 40 CFR 704.3, article means a manufactured item (1) which is formed to a specific shape or design during manufacture, (2) which has end use function(s) dependent in whole or in part upon its shape or design during end use, and (3) which has either no change of chemical composition during its end use or only those changes of composition which have no commercial purpose separate from that of the article, and that result from a chemical reaction that occurs upon end use of other chemical substances, mixtures, or articles; except that fluids and particles are not considered articles regardless of shape or design. Examples of articles that could contain LCPFAC chemical substances as part of a surface coating include, but are not limited to, apparel, outdoor equipment, automotive parts, carpets, furniture, and electronic components.

As detailed in the March 3, 2020 supplemental proposal (Ref. 2), given that the release of LCPFAC chemical substances from surface coatings on articles has been shown to occur and that these releases can reasonably be expected to result in exposure to the users of articles and the general public (Refs. 21, 22, 23, 24, and 25), EPA has reason to anticipate that importing articles that have certain LCPFAC chemical substances as part of a surface coating would create a reasonable potential for exposure to these LCPFAC chemical substances, and that EPA should have an opportunity to review the use before such use could occur. Therefore, in light of the evidence before EPA (including the studies referenced below), EPA affirmatively finds under TSCA section 5(a)(5) that notification for import is justified by the reasonable potential for exposure to certain LCPFAC chemical substances when part of surface coatings on articles. If a person wants to recommence a significant new use, existence of the SNUR ensures the submission of a SNUN, thereby allowing EPA to evaluate potential uses (before those uses would begin) for any hazards, exposures and risks that might exist.

During the public comment period for the supplemental proposal (Ref. 2), several commenters questioned if EPA had adequately shown the reasonable potential for exposure from articles containing LCPFAC chemical substances as part of a surface coating or the risks associated with such potential exposure. One commenter asked that EPA provide linking data between presence of LCPFAC chemical substances in the general population and the release of LCPFAC chemical substances from coatings. EPA believes that the reasonable potential for exposure has been addressed through the studies cited in both this final rule and the supplement to the proposed rule (Refs. 2, 5, 23, 25, and 26). EPA has provided support that there is a reasonable potential for exposure through the citation of peer-reviewed literature, which documents that LCPFAC chemical substances either have the reasonable potential to migrate from articles or that LCPFAC chemical substances do migrate from articles. In order to require notification for the import or processing of an article under TSCA section 5, it is not necessary to definitively show or illustrate the mechanisms by which exposure to a chemical substance through an article may occur. Since the use designated as a significant new use does not currently exist, EPA defers a detailed consideration of potential exposures related to that use until there is a specific condition of use and data to review. EPA's standard for an affirmative finding is consistent with the statutory language requiring a reasonable potential for exposure (rather than a certainty of exposure.

As stated in the supplemental proposal, a coating is a material applied in a thin layer to a surface as a protective, decorative, or functional film. This term often refers to paints such as lacquers or enamels, but also refers to films applied to other materials including, but are not limited to, paints, varnishes, sealants, adhesives, inks, maskants, and temporary protective coatings. During the public comment period for the 2020 supplemental proposal (Ref. 2), several commenters asked EPA to define “surface coating” and to include a definition in the regulatory text. EPA does not intend to finalize a regulatory definition of “surface coating.” Rather, EPA will be issuing guidance within a reasonable timeframe of the final rule. EPA is not defining this term due to the many different ways that LCPFAC chemical substances could be applied to an article as part of a surface coating and how a given article could move through the supply chain from manufacture to disposal. EPA believes that this approach ensures that EPA will have the opportunity to conduct a detailed consideration of potential exposures related to these uses when there is a specific condition of use to review. If EPA receives a SNUN, EPA will evaluate the potential releases from the article with information specific to that article.

Articles that have surface coatings that contain certain LCPFAC chemical substances that have been cured or undergone chemical reaction after being applied to an article are subject to this rule. Even when LCPFAC are bound within the matrix of the coating, they can still be released from the coating over time and present a reasonable potential for exposure. These surface coatings have been unambiguously shown to be a source of LCPFAC in the environment (Refs. 23, 25, 27, and 28), even when adhered to surfaces in accordance with practices reported in patents (Refs. 23 and 25), and hence, present the reasonable potential for exposure to the chemical substance through the category of articles subject to the rule.

As noted in Unit V. of the proposed rule (Ref.1), EPA is retaining the exemption at 40 CFR 721.45(f) for persons who process chemical substances as part of articles because existing stocks of articles still contain LCPFAC or perfluoroalkyl sulfonate chemical substances. EPA considers recycling to be a form of processing (Ref. 29). Because the processing of articles containing LCPFAC or perfluoroalkyl sulfonate chemical substances is ongoing, it cannot be subject to a SNUR. If EPA finds reason to believe that the processing of articles containing LCPFAC or perfluoroalkyl sulfonate chemical substances has ceased, EPA may issue a future SNUR on the processing of articles that contain these chemical substances. See Comment-Response 7 in the Response to Comment document for additional discussion of the ongoing processing of these chemical substances (Ref. 3).

Based on the considerations in Unit III.A., EPA wants to achieve the following objectives with regard to the significant new uses of LCPFAC and perfluoroalkyl sulfonate chemical substances that are designated in the January 21, 2015, proposal (Ref. 1) and the March 3, 2020, supplemental proposal (Ref. 2):

1. EPA would receive notice of any person's intent to manufacture (including import) or process the chemical substances for the described significant new use before that activity begins.

2. EPA would have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing the chemical substances for the described significant new use.

3. EPA would be able to either determine that the significant new use is not likely to present an unreasonable risk, or to take necessary regulatory action associated with any other determination, before the described significant new use of the chemical substance occurs.

According to TSCA section 5(a)(2), EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

1. The projected volume of manufacturing and processing of a chemical substance.

2. The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

3. The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

4. The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorizes EPA to consider any other relevant factors to determine what would constitute a significant new use of the LCPFAC and perfluoroalkyl sulfonate chemical substances subject to this final rule, as discussed in this unit. EPA considered relevant information about the toxicity of these substances, trends in blood levels, likely human exposures and environmental releases associated with possible uses, and the four factors listed in TSCA section 5(a)(2).

As discussed in Unit III.A., since the manufacture (including import) and processing of LCPFAC and perfluoroalkyl sulfonate chemical substances for these uses has been discontinued in the United States, exposure will decrease over time. EPA expects their presence in humans and the environment to decline over time. If any of the new uses of LCPFAC and perfluoroalkyl sulfonate chemical substances were to resume after having been phased out, EPA believes that such uses could both change the type and form and increase the magnitude and duration of human and environmental exposure to the substances, constituting a significant new use. Based on consideration of the statutory factors discussed herein, EPA has determined the following uses are significant new uses:

• Manufacturing (including importing) or processing of LCPFAC chemical substances listed in the list of LCPFAC chemical substances in Unit II. for any use that is no longer ongoing after December 31, 2015.

• Manufacturing (including importing) or processing of PFOA or its salts for any use not ongoing as of the date on which the proposed rule was published (Ref. 1).

• Manufacturing (including importing) or processing of all other LCPFAC chemical substances for any use not ongoing as of January 21, 2015, the date on which the proposed rule was published (Ref. 1).

EPA believes any new use of certain LCPFAC chemical substances as part of a surface coating of an article could increase the duration and magnitude of human and environmental exposure to the chemical substances, as discussed in the March 3, 2020, supplement to proposed SNUR (Ref. 2). Based on these considerations, EPA has determined that: Importing LCPFAC chemical substances listed in the list of LCPFAC chemical substances in Unit II. and PFOA or its salts (See Unit I. for examples of PFOA salts) as part of a surface coating of an article, for uses not ongoing as of the date on which the 2015 proposed rule was published (Ref. 1), constitutes a significant new use and warrants making the exemption at 40 CFR 721.45(f) inapplicable to importers of such articles.

Evidence supports that there is a reasonable potential for exposure to the chemical substances subject to this SNUR through their importation as part of a surface coating of an article. EPA should have an opportunity to review such uses before they can resume. Persons subject to this SNUR are required to notify EPA at least 90 days prior to commencing manufacture (including import) or processing of the chemical substances for the new use. This required notification provides EPA with the opportunity to evaluate any intended significant new use of the regulated chemical substances and, if necessary, an opportunity to protect against potential unreasonable risks.

EPA has determined that the import of fluoropolymer dispersions and emulsions and articles containing fluoropolymers in articles is not a significant new use because, at the time of the 2015 proposed rule, EPA believed this use to be ongoing and did not propose to include this use in the SNUR. Ongoing uses cannot be subject to a SNUR. Since proposing the SNUR in 2015, EPA has received comment that the use fluoropolymer dispersions and emulsions made with PFOA has ceased. Because EPA did not propose and take comment on lifting the exemption for the import of fluoropolymer dispersions and emulsions, and fluoropolymers as part of articles, EPA has not included it in this final rule. At this time, EPA is not making inapplicable any of the standard exemptions at 40 CFR 721.45 for fluoropolymer dispersions and emulsions, and fluoropolymers as part of articles. Yet, EPA may issue a future SNUR on the manufacture and processing of fluoropolymer dispersions and emulsions and articles containing fluoropolymers.

In a previous rule (78 FR 62443, October 22, 2013; FRL-9397-1), EPA designated all uses of the perfluoroalkyl sulfonate chemicals identified in 40 CFR 721.9582 as significant new uses, except the ongoing uses specified in 40 CFR 721.9582 (a)(3) through (a)(5). The Agency has determined that the manufacture (including import) and processing of any of the perfluoroalkyl sulfonate chemical substances subject to this rule have been discontinued, including the importing of these chemical substances as part of carpets. EPA believes any new use of perfluoroalkyl sulfonate chemicals substances as part of carpets could increase the duration and magnitude of human and environmental exposure to the chemical substances, as discussed in the January 21, 2015, proposed SNUR (Ref. 1). The category of articles subject to the SNUR has not been modified since the 2015 proposed rule; therefore, EPA does not need to modify any of its considerations in order to make the finding under section 5(a)(5). Based on the information provided in the 2015 proposed SNUR, EPA affirmatively finds under TSCA section 5(a)(5) that notification for import is justified by the reasonable potential for exposure to perfluoroalkyl sulfonate chemicals as part of carpets. Based on these considerations, EPA has determined that: Importing perfluoroalkyl sulfonate chemicals identified in 40 CFR 721.9582 as part of carpets, which were not ongoing as of January 21, 2015, the date on which the proposed rule was published (Ref. 1), constitutes a significant new use and warrants making the exemption at 40 CFR 721.45(f) inapplicable to importers of carpets.

The general provisions for SNURs appear under 40 CFR part 721, subpart A, and they apply to this rule except as modified by the rule. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the final rule. However, EPA is making the exemption at 40 CFR 721.45(f) inapplicable to persons who import LCPFAC chemicals substances listed in the list of LCPFAC chemical substances in Unit II. and PFOA or its salts as part of a surface coating of an article (See Unit I. for examples of PFOA salts). Additionally, EPA is making the exemption at 40 CFR 721.45(f) inapplicable to persons who import perfluoroalkyl sulfonate chemicals substances listed in 40 CFR 721.9582 as part of carpets. As a result, persons subject to the provisions of this final rule would not be exempt from submitting a significant new use notice if they import those LCPFAC chemical substances, including PFOA or its salts, as part of a surface coating of an article or if they import perfluoroalkyl sulfonate chemical substances as part of carpets. However, EPA is retaining the exemption at 40 CFR 721.45(f) for persons who process chemical substances as part of an article because existing stocks of articles may still contain LCPFAC or perfluoroalkyl sulfonate chemical substances. Provisions relating to user fees appear at 40 CFR part 700. Additionally, TSCA, as amended by the Lautenberg Act, makes the provision at 40 CFR 721.45(h) inapplicable.

According to 40 CFR 721.1(c), persons subject to SNURs must comply with the same notice requirements and EPA regulatory procedures as described in 40 CFR part 720 for submitters of Premanufacture Notices (PMNs) under TSCA section 5(a)(1)(A), at least to the extent there is no conflict with the provisions at part 721. In addition, the information submission requirements of TSCA sections 5(b) and 5(d)(1) and the exemptions authorized by TSCA sections 5(h)(1), (h)(2), (h)(3), and (h)(5) apply to SNURs.

Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such other regulatory action as is required by TSCA section 5(a)(3) before the manufacturing (including importing) or processing for the significant new use can commence. If EPA determines that the significant new use is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the Federal Register , a statement of EPA's finding.

Persons who export or intend to export a chemical substance identified in the proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b). The regulations that interpret TSCA section 12(b) appear at 40 CFR part 707, subpart D. In accordance with 40 CFR 707.60(b), this final SNUR does not trigger notice of export for articles. Persons who import a chemical substance identified in a final SNUR are subject to the TSCA section 13 import certification requirements, codified at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Such persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The TSCA section 13 import certification requirement applies to articles containing a chemical substance or mixture if so required by the Administrator by a specific rule under TSCA. At this time, EPA is not requiring import certification for these chemical substances as part of articles. The EPA policy on import certification appears at 40 CFR part 707, subpart B.

As discussed in the Federal Register of April 24, 1990 (55 FR 17376) (FRL-3658-5) (Ref. 30), EPA has decided that the intent of TSCA section 5(a)(1)(B) best served by designating a use as a significant new use as of the date of publication of the proposed rule (including the posting of a pre-publication copy of the rule) rather than as of the effective date of the final rule. If uses begun after publication of the proposed rule were considered ongoing rather than new, it would be difficult for EPA to establish significant new uses, because a person could defeat the SNUR by initiating the proposed significant new use before the rule became final, and then argue that the use was ongoing as of the effective date of the final rule. Thus, persons who began commercial manufacture or processing of LCPFAC and perfluoroalkyl sulfonate chemical substances after the proposal was published on January 21, 2015, must cease such activity before the effective date of this final rule. These persons would have to comply with all applicable SNUR notice requirements and wait to resume the commercial manufacture or processing of the subject chemical substances until EPA has made a determination. Uses arising after the publication of the proposed rule are distinguished from uses that exist at publication of the proposed rule. The former would be new uses, the latter would be ongoing uses, except that uses that are ongoing as of the publication of the proposed rule would not be considered ongoing uses if they have ceased by the date of issuance of a final rule. Public commenters on the proposed rule and the supplement to the proposal identified ongoing uses, which have been captured in the Response to Comments in Unit XII. (Ref. 3) and are not covered by this SNUR. Ongoing uses cannot be subject to a SNUR.

EPA recognizes that TSCA section 5 does not usually require developing new information ( e.g., generating test data) before submission of a SNUN; however, there is an exception: development of information is required where the chemical substance subject to the SNUR is also subject to a rule, order, or consent agreement under TSCA section 4 (see TSCA section 5(b)(1)). Also pursuant to TSCA section 4(h), which pertains to reduction of testing of vertebrate animals, EPA encourages consultation with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies or NAMs), if available, to generate any recommended test data. EPA encourages dialogue with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h).

In the absence of a TSCA section 4 test rule covering the chemical substance, persons are required to submit only information in their possession or control and to describe any other information known to or reasonably ascertainable by them (15 U.S.C. 2604(d); 40 CFR 721.25, and 40 CFR 720.50). However, as a general matter, EPA recommends that SNUN submitters include information that would permit a reasoned evaluation of risks posed by the chemical substance during its manufacturing (including importing), processing, use, distribution in commerce, or disposal. EPA encourages persons to consult with the Agency before submitting a SNUN. As part of this optional pre-notice consultation, EPA would discuss specific information it believes may be useful in evaluating a significant new use.

Submitting a SNUN that does not itself include information sufficient to permit a reasoned evaluation may increase the likelihood that EPA will either respond with a determination that the information available to the Agency is insufficient to permit a reasoned evaluation of the health and environmental effects of the significant new use or, alternatively, that in the absence of sufficient information, the manufacturing (including importing), processing, distribution in commerce, use, or disposal of the chemical substance may present an unreasonable risk of injury to health or the environment.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs and define the terms of any potentially necessary controls if the submitter provides detailed information on human exposure and environmental releases that may result from the significant new uses of the chemical substance.

EPA recommends that submitters consult with the Agency prior to submitting a SNUN to discuss what information may be useful in evaluating a significant new use. Discussions with the Agency prior to submission can afford ample time to conduct any tests that might be helpful in evaluating risks posed by the chemical substance. According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 721.25 and 40 CFR 720.40. E-PMN software is available electronically at http://www.epa.gov/opptintr/newchems.

EPA has evaluated the potential costs of establishing SNUR reporting requirements for potential manufacturers and processors of the chemical substance included in this final rule (Ref. 4). In the event that a SNUN is submitted, average costs are estimated at approximately $23,000 per SNUN submission for large business submitters and about $10,000 for small business submitters. These estimates include the cost to prepare and submit the SNUN (averaging about $7,100), and the payment of a user fee. Businesses that submit a SNUN would be subject to either a $16,000 user fee required by 40 CFR 700.45(c)(2)(ii), or, if they are a small business, a reduced user fee of $2,800 (40 CFR 700.45(c)(1)(ii)). The costs of submission of SNUNs will not be incurred by any company unless a company decides to pursue a significant new use as defined in this final SNUR. EPA's complete economic analysis is available in the public docket for this rule (Ref. 4).

Under TSCA section 12(b) and the implementing regulations at 40 CFR part 707, subpart D, exporters must notify EPA if they export or intend to export a chemical substance or mixture for which, among other things, a rule has been proposed or promulgated under TSCA section 5. For persons exporting a substance that is the subject of a SNUR, a one-time notice to EPA must be provided each calendar year for the first export or intended export to a particular country. The total costs of export notification will vary by chemical, depending on the number of required notifications ( i.e., the number of countries to which the chemical is exported).

In making inapplicable the exemption relating to persons who import certain LCPFAC chemical substances as part of the surface coating of an article, this action may affect firms that plan to import types of articles that may contain the subject chemical substances in a surface coating. This is because while some firms have an understanding of the contents of the articles they import other firms do not. EPA acknowledges that importers of articles may have varying levels of knowledge about the chemical content of the articles that they import. These parties may need to become familiar with the requirements of the rule. And while not required by the SNUR, these parties may take additional steps to determine whether the subject chemical substances are part of the articles that they are considering for import. This determination may involve activities such as gathering information from suppliers along the supply chain, and/or testing samples of the article itself. Costs vary across the activities chosen and the extent of familiarity a firm has regarding the articles it imports. Cost ranges are presented in Understanding the Costs Associated with Eliminating Exemptions for Articles in SNURs (Ref. 31). Based on available information, EPA believes that article importers that choose to investigate their products will incur costs at the lower end of the ranges presented in the Economic Analysis. For those companies choosing to undertake actions to assess the composition of the articles they import, EPA expects that importers will take actions that are commensurate with the company's perceived likelihood that a chemical substance might be a part of an article for the significant new uses identified in Units II. and III., and the resources it has available. Example activities and their costs are provided in the accompanying Economic Analysis of this final rule (Ref. 4).

Before proposing this SNUR, EPA considered the following alternative regulatory action: Promulgate a TSCA section 8(a) Reporting Rule.

Under a TSCA section 8(a) rule, EPA could, among other things, generally require persons to report information to the Agency when they manufacture (including import) or process a chemical substance for a specific use or any use. However, for LCPFAC and perfluoroalkyl sulfonate chemical substances, the use of TSCA section 8(a) rather than SNUR authority would have several limitations. First, if EPA were to require reporting under TSCA section 8(a) instead of TSCA section 5(a), that action would not ensure that EPA receives timely advance notice of future manufacturing (including importing) or processing of LCPFAC chemical substances (including as part of an article and components thereof) for new uses that may produce changes in human and environmental exposures. Nor would action under 8(a) ensure that an appropriate determination (relevant to the risks of such manufacturing (including importing) or processing) has been issued prior to the commencement of such manufacturing (including importing) or processing. Furthermore, a TSCA section 8(a) rule would not ensure that manufacturing (including importing) or processing for the significant new use cannot proceed until EPA has taken the required actions under TSCA sections 5(e) or 5(f) in the event that EPA determines any of the following: (1) That the significant new use presents an unreasonable risk under the conditions of use (without consideration of costs or other non-risk factors, and including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by EPA); (2) that the information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the significant new use; (3) that in the absence of sufficient information, the manufacture (including import), processing, distribution in commerce, use, or disposal of the substance, or any combination of such activities, may present an unreasonable risk (without consideration of costs or other non-risk factors, and including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by EPA); or (4) that there is substantial production and sufficient potential for environmental release or human exposure (as defined in TSCA section 5(a)(3)(B)(ii)(II)).

In view of the health concerns about LCPFAC and perfluoroalkyl sulfonate chemical substances if used for a significant new use, EPA believes that a TSCA section 8(a) rule for this substance would not meet EPA's regulatory objectives at this time.

EPA has used scientific information, technical procedures, measures, methods, protocols, methodologies, and models consistent with the best available science, as applicable. These information sources supply information relevant to whether a particular use would be a significant new use, based on relevant factors including those listed under TSCA section 5(a)(2). Consistent with EPA's past practice for issuing SNURs under TSCA section 5(a)(2), EPA's decision to promulgate a SNUR for a particular chemical use need not be based on an extensive evaluation of the hazard, exposure, or potential risk associated with that use; as such, the January 2015 proposed rule (Ref. 1), the 2020 supplemental proposal (Ref. 2), and this final rule are not based on an evaluation of expected risks.

The clarity and completeness of the data, assumptions, methods, quality assurance, and analyses employed in EPA's decision are documented, as applicable and to the extent necessary for purposes of the January 2015 proposed rule, the 2020 supplemental proposal, and this final rule, in Unit III. and in the references cited throughout the three preambles. Considering the extent to which the various information, procedures, measures, methods, protocols, methodologies or models used in EPA's decision have been subject to independent verification or peer review, EPA believes that their use is appropriate in this rule. EPA recognizes, based on the available information, that there is variability and uncertainty in whether any particular significant new use would actually present an unreasonable risk. For precisely this reason, EPA is proposing to require notice and review for these uses at such time as they are known more definitively.

The Agency reviewed and considered all comments received related to the 2015 proposed rule (Ref. 1) and the 2020 supplement to the proposed rule (Ref. 2). Copies of all comments are available in the docket for this action (EPA-HQ-OPPT-2013-0225). Responses to all comments received are in the document titled: “Response to Comments on the Proposed Long-Chain Perfluoroalkyl Carboxylate and Perfluoroalkyl Sulfonate Chemical Substances Significant New Use Rule (SNUR)” (Ref. 3), which is also available in the docket. Six primary comments, covering the majority of the issues raised by the comments received, are included below.

1. Comment: Several commenters claimed ongoing uses of LCPFAC, PFOA, or perfluoroalkyl sulfonate chemical substances and requested that EPA modify the proposed SNUR to specifically recognize and exclude from the definition of 'significant new uses' certain ongoing activities that do not appear to have been previously identified by the Agency to be ongoing. Some commenters reiterated ongoing uses that EPA had already identified as ongoing. One commenter suggested that EPA should define ongoing uses “in a manner that is not company specific.” Several commenters requested that EPA designate “use in semiconductor processing, manufacturing or semiconductor component assembly” as not a significant new use for LCPFAC chemical substances and maintain the exemption under 40 CFR 721.45(f) for all on-going uses in the semiconductor industry. Two commenters asked EPA to exempt medical supplies or other equipment that may be used during the COVID-19 public health emergency. See the Response to Comment document (Ref. 3) for the specific Docket IDs for these comments.

Response: EPA reviewed all ongoing use claims, requested additional information from commenters to clarify the claims, and has recognized and excluded from the definition of 'significant new uses' certain ongoing activities for certain chemicals. Exclusions from the definition of 'significant new uses' are included with the regulation amendment at 40 CFR 721.10536(b)(5).

While reviewing ongoing use claims, EPA found chemical substances that did not fall within the scope of the SNUR. Additionally, during communication with commenters that supplied ongoing use claims, EPA discovered that in some instances commenters had ceased the use of their reported chemical substance. Accordingly, EPA has not recognized and excluded from the definition of 'significant new uses' ongoing use claims that fall outside the scope of the SNUR, have ceased by the date of issuance of the final rule, or were unable to be substantiated.

During the comment response process, EPA reached out to one commenter who was unable to supply substantiation of their claim, yet stated that their ongoing use claim was captured in communication from the supplier directly with EPA. As such, their ongoing use claim was reviewed and has been addressed in the comment submitted by commenter's supplier.

With regards to the use of LCPFAC chemical substances by the semiconductor industry, it has not been EPA's practice to identify an industry as a whole when recognizing ongoing uses. Commenters stated that LCPFAC chemical substances used in the semiconductor industry may be present in surfactants, coatings, seals, gaskets, hoses, motors, electrical wiring, tools, robots, parts, ancillary equipment, and other components but were unable to provide specific information such as a Safety Data Sheet or other documentation to support their claim. EPA was only able to verify ongoing uses within the semiconductor industry in a subset of the claims made, which have been recognized in 40 CFR 721.10536.

During public comment for the supplemental rule (Ref. 2), EPA received two comments stating ongoing uses of LCPFAC chemical substances used in medical supplies, medical equipment, and for pharmaceutical or biopharmaceutical research applications that may be important to the COVID-19 pandemic response. EPA agrees that ongoing uses, especially ones critical to COVID-19 pandemic response, should not be restricted by this SNUR. TSCA section 3(2)(B) excludes devices regulated under the Federal Food, Drug, and Cosmetic Act from the definition of a chemical substance under TSCA. Gloves (21 CFR 880.6250), gowns (21 CFR 880.6265), and masks are all listed separately as devices in FDA's regulations and such devices would not be covered by this SNUR. However, it is important to note that other face masks, gloves, and personal protective equipment that are marketed to the general public for general, non-medical purposes, would be covered by the SNUR if the use is not ongoing. As with other verified ongoing uses, EPA has also exempted the ongoing uses of certain LCPFAC chemical substances used in pharmaceutical and biopharmaceutical research from this rule. EPA, however, has not broadly exempted all uses of LCPFAC chemical substances used in pharmaceutical and biopharmaceutical research because only a select number of applications are ongoing.

When possible, EPA has made explicit chemical and use specific exclusions from the definition of ‘significant new uses' rather than broad industry or categorical exclusions. As reflected by the exclusions in the final rule, ongoing activities include manufacturing (including import) or processing of these chemical substances. EPA will continue to work with industry to phase out LCPFAC, PFOA and its salts, and perfluoroalkyl sulfonate chemical substances and will review the need to promulgate future rules as necessary. As a result of public comments received, EPA recognizes manufacture, import, or processing of certain LCPFAC chemical substances for the following uses as ongoing:

• Use of LCPFAC chemical substances for use in an antireflective coating, photoresists, or surfactant for use in photomicrolithography and other process to produce semiconductors or similar components of electronic or other miniaturized devices.

• Use of 2-Propenoic acid, 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,10-heptadecafluorodecyl ester (CASRN 27905-45-9) as a coating or component of a hydrophobic and/or oleophobic coating or barrier applied to manufactured articles or component of articles using an energy source or plasma deposition methods, which include a pulse deposition mode. Examples of such articles include: electronic devices and components thereof, medical consumables and bio-consumables, filtration devices and filtration materials, clothing, footwear and fabrics.

• Use of Silane, trichloro(3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,10-heptadecafluorodecyl)-(CASRN 78560-44-8) as a surface treatment to make low refractive index resin for optical applications; surface treatment for minerals, particles and inorganic surfaces for hydrophobicity; and monomer to make specialty resins hydrophobic.

• Use of Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro- (CASRN 335-67-1) as a surfactant and coating as part of the following articles: Stickers, labels, and parts to which those stickers and labels are attached.

• Use of 1-Propanesulfonic acid, 2-methyl-, 2-[[1-oxo-3-[(.gamma.-.omega.-perfluoro-C4-16-alkyl)thio]propyl]amino] derivs., sodium salts (CASRN 68187-47-3); Thiols, C8-20, .gamma.-.omega.-perfluoro, telomers with acrylamide (CASRN 70969-47-0);or Perfluorinated polyamine (generic) (ACC274147) as a component in fire extinguishing agent.

• Use of Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro- (CASRN 335-67-1); Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro-, sodium salt (1:1) (CAS No. 335-95-5); or Octanoic acid, 2,2,3,3,4,4,5,5,6,6,7,7,8,8,8-pentadecafluoro-, ammonium salt (1:1) (CASRN 3825-26-1) in automotive articles, both in factory assembly and replacement parts.

• Use of Poly(difluoromethylene), .alpha.,.alpha.′-[phosphinicobis(oxy-2,1-ethanediyl)]bis[.omega.-fluoro-, ammonium salt (1:1) (CASRN 65530-70-3); Poly(difluoromethylene), .alpha.-fluoro-.omega.-[2-(phosphonooxy)ethyl]-, ammonium salt (1:1) (CASRN 65530-71-4); or Poly(difluoromethylene), .alpha.-fluoro-.omega.-[2-(phosphonooxy)ethyl]-, ammonium salt (1:2) (CAS No. 65530-72-5) in the manufacturing of architectural coatings or wood coatings, at a maximum concentration of 0.1% by weight.

• Use of Poly(difluoromethylene), .alpha.,.alpha.′-[phosphinicobis(oxy-2,1-ethanediyl)]bis[.omega.-fluoro-, ammonium salt (1:1) (CASRN 65530-70-3); Poly(difluoromethylene), .alpha.-fluoro-.omega.-[2-(phosphonooxy)ethyl]-, ammonium salt (1:1) (CASRN 65530-71-4); or Poly(difluoromethylene), .alpha.-fluoro-.omega.-[2-(phosphonooxy)ethyl]-, ammonium salt (1:2) (CAS No. 65530-72-5) in the manufacturing of industrial primer coatings for non-spray applications to metal by coil coating application, at a maximum concentration of 0.01% by weight.

• Use of Alcohols, C8-14, .gamma.-.omega.-perfluoro (CASRN 68391-08-2) in the manufacture of coatings and finishes for a variety of textile, leather, and hard surface treatments, and in the manufacture of wetting agents.

• Use of Poly(oxy-1,2-ethanediyl), .alpha.-hydro-.omega.-hydroxy-, ether with .alpha.-fluoro-.omega.-(2-hydroxyethyl)poly(difluoromethylene) (1:1) (CASRN 65545-80-4) in water-based inks.

• Use of Poly(difluoromethylene), .alpha.-[2-[(2-carboxyethyl)thio]ethyl]-.omega.-fluoro-, lithium salt (1:1) (CASRN 65530-69-0) in photo media coatings.

• Use of Ethanol, 2,2′-iminobis-, compd. with .alpha.-fluoro-.omega.-[2-(phosphonooxy)ethyl] poly(difluoromethylene) (2:1) (CASRN 65530-63-4); Ethanol, 2,2′-iminobis-, compd. with .alpha.,.alpha.'-[phosphinicobis(oxy-2,1-ethanediyl)]bis[.omega.-fluoropoly(difluoromethylene)] (1:1) (CASRN 65530-64-5); or Ethanol, 2,2′-iminobis-, compd. with .alpha.-fluoro-.omega.-[2-(phosphonooxy)ethyl]poly(difluoromethylene) (1:1) (CASRN 65530-74-7) in paints and coatings, grouts, and sealers.

• Use of Poly(oxy-1,2-ethanediyl), .alpha.-hydro-.omega.-hydroxy-, ether with .alpha.-fluoro-.omega.-(2-hydroxyethyl)poly(difluoromethylene) (1:1) (CASRN 65545-80-4) in paints, coatings, ink jet inks, and ink masterbatch.

• Use of 1-Propanesulfonic acid, 2-methyl-, 2-[[1-oxo-3-[(.gamma.-.omega.-perfluoro-C4-16-alkyl)thio]propyl]amino] derivs., sodium salts (CASRN 68187-47-3) in adhesives.

2. Comment: Several commenters believe that the lack of LCPFAC CAS numbers and the generic identification of PFOA and its salts provide insufficient information for entities to understand what chemicals the rule encompasses. They believe that EPA must define the universe of covered chemicals that would be subject to the regulation. See the Response to Comment document (Ref. 3) for the specific Docket IDs for these comments.

• Response: TSCA section 26(c) expressly recognizes that an action may be taken with respect to a category of chemical substances or mixtures based on chemical structure, and EPA believes the most precise way to identify the chemicals subject to this SNUR is through the chemical structure definition. Downstream customers should have sufficient information from suppliers ( i.e., CAS registry number and unique chemical identity) to generate the specific structure for any potentially reportable substance and compare to the LCPFAC category definition.

As a convenience to the regulated community, EPA has made available in the public docket an illustrative list of chemical substances subject to the rule (Ref. 32). As part of that list, EPA has provided specific examples of chemicals that meet the various components of the LCPFAC category definition. The list is not exhaustive, but rather provides a guide to help readers determine whether this rule applies to them.

Additionally, Congress added certain active LCPFAC chemical substances to the Toxics Release Inventory (TRI) list. These chemicals were added to the TRI list under section 7321(b)(1) of the National Defense Authorization Act of fiscal year 2020. TRI added both LCPFAC and perfluoroalkyl sulfonate chemical substances that were identified as active in commerce on the TSCA inventory that was published in February 2019. While this list includes only LCPFAC chemicals on the active inventory, it may assist the regulated community in determining whether or not a given chemical substance is subject to this rule. The list can be found on EPA's website and a citation is included in Unit XIII. (Ref. 33).

3. Comment: Several commenters provided comment on whether EPA could adopt a de minimis threshold for determining “reasonable potential for exposure” and if so, how that de minimis threshold could be established. Some comments supported the establishment of a threshold while others opposed the idea of a de minimis threshold. One commenter recommended a standard default de minimis threshold of 0.1% for articles for all SNURs. One commenter did not have an opinion on the establishment of a threshold or as a de minimis exemption but did state that they were “interested in EPA establishing a characterization of the `reasonable potential for exposure' what might be `reasonably ascertainable' with specific criteria for determining this.” See the Response to Comment document (Ref. 3) for the specific Docket IDs for these comments.

Response: EPA appreciates the comments received. EPA is not establishing a de minimis threshold for determining “reasonable potential for exposure” in this final rule. EPA will, however, continue to engage with interested stakeholders on this issue and continue to consider whether guidance for applying this standard may be appropriate in the future, whether as a general matter or, for instance, as applied to specific categories of substances or potential exposures.

As a general proposition, EPA believes that TSCA section 5(a)(5) actions should be considered on a case-by-case basis. Each time EPA considers requiring notification under TSCA section 5(a)(5), EPA will have to consider whether the “reasonable potential for exposure” to the chemical substance through the article or category of articles justifies notification. Since the use designated as a significant new use does not currently exist, EPA is deferring a detailed consideration of potential exposures related to that use until there is a specific condition of use and data to review. If EPA receives a SNUN, EPA would evaluate the potential releases from the article and with information specific to that article.

TSCA section 5(a)(5) does not establish an explicit threshold that an exposure must meet in order to be considered a “reasonable potential for exposure” or to “justify notification.” Rather, TSCA section 5(a)(5) states: “The Administrator may require notification under this section for the import or processing of a chemical substance as part of an article or category of articles under paragraph (1)(A)(ii) if the Administrator makes an affirmative finding in a rule under paragraph (2) that the reasonable potential for exposure to the chemical substance through the article or category of articles subject to the rule justifies notification.” If there is evidence that a chemical substance is or may be released from an article such that there is a reasonable potential of exposure to the chemical substance, EPA thinks the Agency can reasonably find the statutory criterion to be met in most or all cases.

For this final rule, EPA believes that the reasonable potential for exposure was adequately demonstrated by the studies cited in both the 2015 proposed rule (Ref. 1) and the 2020 supplement to the proposed rule (Ref. 2). The studies cited during the rulemaking process represent the exposures that could result from the significant new uses subject to the SNUR. In showing that releases have been documented from articles using LCFAC chemical substances as a surface coating (Refs. 21, 22, 23, 24, and 25), EPA asserts that the statutory standard has been met to show that there is reasonable potential for exposure from these significant new uses. EPA also concludes, on the record before it, that this reasonable potential for exposure justifies notification.

4. Comment: Several commenters provided comment on whether or not the Agency should include a safe harbor provision for importers of articles that can demonstrate their use was ongoing prior to the effective date of this rule. Some comments supported the establishment of a safe harbor provision while others opposed the idea of a safe harbor provision. One commenter recommended that EPA “establish a rebuttable presumption that a SNUN is not required for an imported article if the foreign supplier of that article certifies in writing that the article (including all components of the article) was not manufactured using any of the substances identified in the Supplemental Proposal.” Another commenter asked that EPA allow importers to rely on supplier/manufacture certifications for purposes of compliance. Related to the idea of a safe harbor provision, several commenters emphasized complex supply chains that comprise many industries and the difficulties this would pose when determining if an article contains a subject chemical substance. See the Response to Comment document (Ref. 3) for the specific Docket IDs for these comments.

Response: EPA appreciates the comments received. EPA is not establishing a safe harbor provision in this final rule. EPA makes every effort to notify manufacturers and processors of chemical substances that may be subject to a given rule, so that they may participate in the regulatory process. EPA provided notice to importers in the 2015 proposed rule and again provided notice of the proposed requirements in the 2020 supplemental proposal. A safe harbor approach undermines the regulatory process for what uses are allowed by permitting a manufacturer to claim a use was ongoing at the time the SNUR was issued. For this final rule, EPA does not believe there should be a safe-harbor provision for uses not identified as ongoing uses in the SNUR, particularly since notice of the requirements of this action were provided five years ago. As part of the public comment period for the proposed rule and supplemental to the proposed rule, EPA received comments of ongoing uses of LCPFAC chemical substances as part of a surface coating on articles and has recognized those uses as ongoing because ongoing uses are not subject to SNURs. Similarly, a general safe-harbor provision may provide incentives for importers to not submit comments to EPA during the public comment period regarding ongoing uses not recognized in a proposed rule, because an importer who fails to submit such comments, and thus to acknowledge such uses, would be more easily able to claim that it did not realize the subject chemical substance was in its product. An importer could potentially use a safe harbor provision to justify a lack of involvement in a rule making because the importer would have the opportunity to identify chemicals later. The importer could avoid participation early on because he could wait to see if anyone else submitted comments and even if there are no comments on his chemical use, he has the alternative to use the safe harbor to challenge the rule.

While EPA acknowledges that imported articles may have a complex supply chain, the most effective method to ensure that certain LCPFAC chemical substances in this SNUR are not present in the surface coating of imported articles is to encourage importers to know with specificity the contents of what they are importing and to work with their foreign manufacturers to ensure that an article does not contain certain LCPFAC chemical substances in surface coatings.

Even though 19 CFR 12.119 allows EPA to establish TSCA section 13 import certification requirements for chemicals in articles, EPA did not propose to require TSCA section 13 import certification for the subject chemical substances when part of articles. Considering the use of these chemicals in articles covered by this SNUR are no longer ongoing, requiring TSCA section 13 import certification seems an unnecessary requirement to include in the SNUR. This is consistent with EPA's past practice of making the exemption at 40 CFR 721.45(f) inapplicable without also requiring import certification or export notification for these chemical substances as part of articles (40 CFR 721.2800; 40 CFR 721.10068). With or without an import certification requirement, it is the importer that is “responsible for [e]nsuring that chemical importation complies with TSCA just as domestic manufacturers are responsible for [e]nsuring that chemical manufacture complies with TSCA.” 40 CFR 707.20(b)(1).

EPA is not establishing a rebuttable presumption for this rule as one commenter suggested. EPA, however, may consider the factors discussed in EPA's import policy that may obviate or mitigate penalties for violations with the import of articles, as described at 40 CFR 707.20(c)(1)(iii). The language at 40 CR 707.20(c)(1)(iii) states that “[ . . . ] EPA realizes that sometimes importers may not have actual knowledge of the chemical composition of imported mixtures. In these cases, the importer should attempt to discover the chemical constituents of the shipment by contacting another party to the transaction ( e.g., his principal or the foreign manufacturer). This person may be able to identify the components of the mixture, or at least state that the substances comply with TSCA. The greater the effort an importer makes to learn the identities of the imported substances and their compliance with TSCA, the smaller his chance of committing a violation by importing a noncomplying shipment. If a shipment is ultimately determined to have violated TSCA, the good faith efforts of the importer to verify compliance, as evidenced by documents contained in his files, may obviate or mitigate the assessment of a civil penalty under section 16 of TSCA.”

EPA recognizes the complexities of imports. EPA will take into consideration compliance certification and other documents demonstrating that the importer relied on the supplier. EPA will also continue to engage with interested stakeholders on how to ensure compliance with this and future rules. Additionally, EPA maintains the TSCA Hotline and responds to questions from industry. responds to industry questions.

5. Comment: Several commenters raised concern over the issue of impurities, stating that the impurity levels of PFOA and its salts cannot be completely eliminated. Additionally, commenters reported that fluorinated substances that do not fall into the scope of the SNUR may degrade into in-scope LCPFAC substances. One commenter stated that their imported article contained residual LCPFAC from the use of polytetrafluoroethylene (PTFE) production, outside the US; the commenter further indicated that their PTFE supplier is currently working to develop an LCPFAC-free product, but at this time the use is ongoing. Also, a comment stated that it is not possible for end users to determine the presence of a given chemical substance, making it difficult for determining “intended use” vs. “impurity”.

As a result of the impurity concerns, multiple commenters requested that EPA require suppliers to provide Certificate of Compliance to importers. One comment suggested that the SNUR include all fluoropolymer resins “made with” LCPFACs and exempt such products “made without” LCPFACs, even if such products may nevertheless bear trace amounts of LCPFACs due to cross-contamination, to encourage importers to demonstrate compliance by obtaining Certificates of Compliance from their overseas suppliers. See the Response to Comment document (Ref. 3) for the specific Docket IDs for these comments.

Response: To the extent the chemical substance subject to the SNUR is only “unintentionally present” at the point of foreign manufacture, it is already exempt from reporting by the importer as an imported impurity. See 40 CFR 721.45(d). As such, importers are not required to submit a SNUN for or report on a substance based simply on that substance's presence as an impurity ( i.e., a chemical substance is unintentionally present with another chemical substance, 40 CFR 720.3(m)). Additionally, the impurity exemption at 40 CFR 721.45(d) includes domestic manufacture and processing.

EPA is aware of the issues related to perfluorinated chemical impurities and polymer degradation. Given that the Agency did not propose to require a certification procedure, it does not agree that a certification procedure should be specified and incorporated into the final rule. However, the Agency continues to study this issue and has not ruled out a later proposal to require import certification for these chemical substances as part of articles.

With or without an import certification requirement, it is the importer that is “responsible for [e]nsuring that chemical importation complies with TSCA just as domestic manufacturers are responsible for [e]nsuring that chemical manufacture complies with TSCA.” 40 CFR 707.20(b)(1).

With regards to providing an additional exemption to importers on the basis of being unable to determine the presence of a given chemical substance, or an inability to determine whether a use is “intended ” vs. an “impurity”, any exemption would create a safe-harbor for importers based on lack of knowledge, thus creating incentives for foreign suppliers to deliberately withhold information from importers. This could greatly reduce the efficacy of this SNUR.

6. Comment: Several commenters requested that EPA consider promulgating TSCA section 6(a) rules to directly restrict perfluoroalkyl and polyfluoroalkyl substances (PFAS) and complete planned development of a detailed assessment to determine if PFAS chemical substances presents an unreasonable risk. See the Response to Comment document (Ref. 3) for the specific Docket IDs for these comments.

Response: TSCA section 6(a) states that “[i]f the Administrator determines in accordance with subsection (b)(4)(A) that the manufacture, processing, distribution in commerce, use, or disposal of a chemical or mixture, or that any combination of such activities, presents an unreasonable risk of injury to health or the environment” the Administrator shall take action under TSCA section 6(a). While EPA appreciates the commenters request to promulgate a rule in accordance with this provision, EPA is not doing so at this time. Rather, at this time EPA believes that a rule under TSCA section 5(a)(2), in conjunction with the 2010/2015 PFOA Stewardship Program, is an effective method to protect human health and the environment from any risks posed by LCPFAC and perfluoroalkyl sulfonate chemical substances.

Through the 2010/2015 PFOA Stewardship Program, a voluntary risk reduction program, eight major fluoropolymer and telomer manufacturers and processors committed to voluntarily work toward a phase-out of LCPFAC chemical substances (Ref. 34). As such, the reduced supply of long-chain perfluorinated chemicals has led industries to more quickly transition to alternative chemical substances, as noted in both public comments and industry communication. For persons subject to this SNUR, they are required to notify EPA at least 90 days prior to commencing manufacture or processing of these chemical substances. This required notification provides EPA with the opportunity to evaluate any significant new use of the regulated perfluorinated chemical substances and, if necessary, protect against potential unreasonable risks. EPA continues to review the manufacturing, import, and processing of the ongoing uses of these substances of concern. If EPA has reason to believe that either a use of these chemical substances is no longer ongoing or that a TSCA section 6(a) rule would better regulate LCPFAC and perfluoroalkyl sulfonate chemical substances, EPA will consider taking further regulatory action.

The following is a list of the documents that are specifically referenced in this document. The docket includes these documents, as well as other information considered by EPA that are not listed below, including documents that are referenced within the documents that are included in the docket. For assistance in locating docket items, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

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

This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). Any changes made in response to OMB recommendations have been documented in the docket for this action as required by section 6(a)(3)(E) of Executive Order 12866.

EPA prepared an economic analysis of the potential costs and benefits associated with this action. A copy of the economic analysis, entitled “Economic Analysis of the Significant New Use Rule for Perfluoroalkyl Sulfonates and Long-Chain Perfluoroalkyl Carboxylate Chemical Substances” (Ref. 4), is available in the docket and is briefly summarized in Unit XI.

This is a regulatory action subject to Executive Order 13771 (82 FR 9339, February 3, 2017). Details on the estimated costs and benefits of this final rule can be found in EPA's analysis (Ref. 4), which is available in the docket and is summarized in Unit I.E.

This action does not impose any new information collection burden under the PRA, 44 U.S.C. 3501 et seq. Burden is defined in 5 CFR 1320.3(b). The information collection activities associated with existing chemical SNURs are already approved under OMB control number 2070-0038 (EPA ICR No. 1188); and the information collection activities associated with export notifications are already approved under OMB control number 2070-0030 (EPA ICR No. 0795). If an entity were to submit a SNUN to the Agency, the annual burden is estimated to be less than 100 hours per response, and the estimated burden for export notifications is less than 1.5 hours per notification. In both cases, burden is estimated to be lower for submitters who have already registered to use the electronic submission system.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in Title 40 of the CFR, after appearing in the Federal Register , are listed in 40 CFR, part 9, and included on the related collection instrument, or form, as applicable.

Pursuant to section 605(b) of the RFA, 5 U.S.C. 601 et seq., I certify that promulgation of this SNUR would not have a significant economic impact on a substantial number of small entities. The rationale supporting this conclusion is as follows.

A SNUR applies to any person (including small or large entities) who intends to engage in any activity described in the rule as a “significant new use.” By definition of the word “new” and based on all information currently available to EPA, it appears that no small or large entities presently engage in such activities. Since this SNUR will require a person who intends to engage in such activity in the future to first notify EPA by submitting a SNUN, no economic impact will occur unless someone files a SNUN to pursue a significant new use in the future or forgoes profits by avoiding or delaying the significant new use. Although some small entities may decide to conduct such activities in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemical substances, the Agency receives only a handful of notices per year. During the six-year period from 2005-2010, only three submitters self-identified as small in their SNUN submission (Ref. 4). Based on this, EPA believes that few SNUN submissions will occur as a result of the rule. EPA believes the total cost of submitting a SNUN, $10,000 for small business submitters, is relatively small compared to annual revenues of the companies and does not have a significant economic impact as compared to the cost of developing and marketing a chemical new to a firm or marketing a new use of the chemical. This estimate does not include any costs associated with importer's identification of chemicals associated with the SNUR. While EPA does not have estimates on the cost of developing and marketing a new chemical, it has identified a mean reformulation cost of $31,700 and a maximum of $114,000, which is well above the $10,000 SNUN costs.

Therefore, EPA believes that the potential economic impact of complying with this final SNUR is not expected to be significant or adversely impact a substantial number of small entities.

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reason to believe that any State, local, or Tribal government would be impacted by this rulemaking. As such, the requirements of sections 202, 203, 204, or 205 of UMRA, 2 U.S.C. 1531-1538, do not apply to this action.

This action will not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it will not have substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because it will not have any effect on tribal governments, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

This final rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use.

Since this action does not involve any technical standards, section 12(d) of NTTAA, 15 U.S.C. 272 note, does not apply to this action.

This final rule does not invoke special consideration of environmental justice related issues as delineated by Executive Order 12898 (59 FR 7629, February 16, 1994), because EPA has determined that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations.

This action is subject to the CRA, 5 U.S.C. 801-808, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA amends 40 CFR chapter I as follows:

This is a summary of the FCC's Declaratory Ruling in WT Docket No. 19-250 and RM-11849, FCC 20-75, adopted on June 9, 2020, and released on June 10, 2020. The document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

1. In this Declaratory Ruling, the Commission clarifies several key elements that determine whether a modification request qualifies as an eligible facilities request that a State or local government must approve within 60 days, and it clarifies when the 60-day shot clock for review of an eligible facilities request commences. These interpretations provide greater certainty to applicants for State and local government approval of wireless facility modifications, as well as to the reviewing government agencies, and these interpretations should accelerate the deployment of advanced wireless networks.

2. Specifically, the Commission clarifies that:

• The 60-day shot clock in § 1.6100(c)(2) begins to run when an applicant takes the first procedural step in a locality's application process and submits written documentation showing that a proposed modification is an eligible facilities request;

• The phrase “with separation from the nearest existing antenna not to exceed twenty feet” in § 1.6100(b)(7)(i) allows an increase in the height of the tower of up to twenty (20) feet between antennas, as measured from the top of an existing antenna to the bottom of a proposed new antenna on the top of a tower;

• The term “equipment cabinets” in § 1.6100(b)(7)(iii) does not include relatively small electronic components, such as remote radio units, radio transceivers, amplifiers, or other devices mounted on the structure, and up to four such cabinets may be added to an existing facility per separate eligible facilities request;

• The term “concealment element” in § 1.6100(b)(7)(v) means an element that is part of a stealth-designed facility intended to make a structure look like something other than a wireless facility, and that was part of a prior approval;

• To “defeat” a concealment element under § 1.6100(b)(7)(v), a proposed modification must cause a reasonable person to view a structure's intended stealth design as no longer effective; and

• The phrase “conditions associated with the siting approval” may include aesthetic conditions to minimize the visual impact of a wireless facility as long as the condition does not prevent modifications explicitly allowed under § 1.6100(b)(7)(i) through (iv) (antenna height, antenna width, equipment cabinets, and excavations or deployments outside the current site) and so long as there is express evidence that at the time of approval the locality required the feature and conditioned approval upon its continuing existence.

3. Certain parties contend that the Commission lacks legal authority to adopt the rulings requested in the petitions, which they contend do not just clarify or interpret the rules established in 2014 but also change them, requiring that the Commission issue a Notice of Proposed Rulemaking followed by a Report and Order. As an initial matter, the Commission notes that it is not adopting all of the rulings requested in WIA's and CTIA's petitions for declaratory ruling because it finds incremental action to be an appropriate step at this juncture, particularly given, as mentioned above, that the Commission has continued to take steps to ease barriers to deployment of wireless infrastructure since adopting rules to implement Section 6409(a). The determinations in this Declaratory Ruling are intended solely to interpret and clarify the meaning and scope of the existing rules set forth in the 2014 Infrastructure Order, in order to remove uncertainty and in light of the differing positions of the parties on these questions. In addition, the Commission finds it appropriate to initiate a Notice of Proposed Rulemaking regarding tower site boundaries and excavation or deployment outside the boundaries of an existing tower site, in order to consider whether modifications of its rules are needed to resolve current disputes. The Commission intends, with these steps, to continue to advance the same goals that led it to adopt regulations implementing Section 6409(a) in the first instance—to avoid ambiguities leading to disputes that could undermine the goals of the Spectrum Act, i.e., to advance wireless broadband service.

4. Section 1.6100(c)(2) provides that the 60-day review period for eligible facilities requests begins “on the date on which an applicant submits a request seeking approval.” If the local jurisdiction “fails to approve or deny a request seeking approval under this section within the timeframe for review (accounting for any tolling), the request shall be deemed granted.” The 2014 Infrastructure Order discusses the procedures that local governments need to implement in order to carry out their obligations to approve eligible facilities requests within 60 days; it does not, however, define the date on which an applicant is deemed to have submitted an eligible facilities request for purposes of triggering the 60-day shot clock.

5. There is evidence in the record that some local jurisdictions effectively postpone the date on which they consider eligible facilities requests to be duly filed (thereby delaying the commencement of the shot clock) by treating applications as incomplete unless applicants have complied with time-consuming requirements. Such requirements include meeting with city or county staff, consulting with neighborhood councils, obtaining various certifications, or making presentations at public hearings. While some stakeholders may have assumed that, after the 2014 Infrastructure Order, local governments would develop procedures designed to review and approve covered requests within a 60-day shot clock period, many have not done so and instead continue to require applicants to apply for forms of authorizations that entail more “lengthy and onerous processes” of review. In such jurisdictions, applicants may need to obtain clearance from numerous, separate municipal departments, which could make it difficult to ascertain whether or when the shot clock has started to run.

6. To address uncertainty regarding the commencement of the shot clock, the Commission clarifies that, for purposes of its shot clock and deemed granted rules, an applicant has effectively submitted a request for approval that triggers the running of the shot clock when it satisfies both of the following criteria: (1) The applicant takes the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process under Section 6409(a), and, to the extent it has not done so as part of the first required procedural step, (2) the applicant submits written documentation showing that a proposed modification is an eligible facilities request.

7. By requiring that an applicant take the first procedural step required by the locality, the goal is to give localities “considerable flexibility” to structure their procedures for review of eligible facilities requests, but prevent localities from “impos[ing] lengthy and onerous processes not justified by the limited scope of review contemplated” by section 6409(a). In taking the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process, applicants demonstrate that they are complying with a local government's procedures. The second criterion—requiring applicants to submit written documentation showing that the proposed modification is an eligible facilities request—is necessary because localities must have the opportunity to review this documentation to determine whether the proposed modification is an eligible facilities request that must be approved within 60 days. The Commission anticipates that the documentation sufficient to start the shot clock under the stated criteria might include elements like a description of the proposed modification and an explanation of how the proposed modification is an eligible facilities request. The Commission finds that these criteria strike a reasonable balance between local government flexibility and the streamlined review envisioned by Section 6409(a).

8. In addition, the Commission finds that further clarifications are needed to achieve its goal of balancing local government flexibility with the streamlined review envisioned by Section 6409(a). First, the Commission clarifies that a local government may not delay the triggering of the shot clock by establishing a “first step” that is outside of the applicant's control or is not objectively verifiable. For example, if the first step required by a local government is that applicants meet with municipal staff before making any filing, the applicant should be able to satisfy that first step by making a written request to schedule the meeting—a step within the applicant's control. In this example, the 60-day shot clock would start once the applicant has made a written request for the meeting and the applicant also has satisfied the second of the criteria (documentation). The Commission does not wish to discourage meetings between applicants and the local governments, and it recognizes that such consultations may help avoid errors that localities have identified as leading to delays, but such meetings themselves should not be allowed to cause delays or prevent these requests from being timely approved. As an additional example, a local government could not establish as its first step a requirement that an applicant demonstrate that it has addressed all concerns raised by the public, as such a step would not be objectively verifiable.

9. Second, the Commission clarifies that a local government may not delay the triggering of the shot clock by defining the “first step” as a combination or sequencing of steps, rather than a single step. For example, if a local government defines the first step of its process as separate consultations with a citizens' association, a historic preservation review board, and the local government staff, an applicant will trigger the shot clock by taking any one of those actions, along with satisfying the second of the criteria (documentation). Once the shot clock has begun, it would not be tolled if the local government were to deny, delay review of, or require refiling of the application on the grounds that the local government's separate consultation requirements were not completed. The Commission expects applicants to act in good faith to fulfill reasonable steps set forth by a local government that can be completed within the 60 day period, but the local government would bear responsibility for ensuring that any steps in its process, as well as the substantive review of the proposed facility modification, are all completed within 60 days. If not, the eligible facilities request would be deemed granted under the Commission's rules.

10. Third, the Commission clarifies that a local government may not delay the start of the shot clock by declining to accept an applicant's submission of documentation intended to satisfy the second of the criteria for starting the shot clock. In addition, a local government may not delay the start of the shot clock by requiring an applicant to submit documentation that is not reasonably related to determining whether the proposed modification is an eligible facilities request. The Commission clarifies how its documentation rules apply in the context of the shot clock to provide certainty that unnecessary documentation requests do not effectively delay the shot clock as part of the local government's “first step,” even if providing that documentation would be within the applicant's control and could be objectively verified. For example, if a locality requires as the first step in its section 6409(a) process that an applicant meet with a local zoning board, that applicant would not need to submit local zoning documentation as well in order to trigger the shot clock.

11. Fourth, the Commission notes that a local government may use conditional use permits, variances, or other similar types of authorizations under the local government's standard zoning or siting rules, in connection with the consideration of an eligible facilities request. The Commission clarifies, however, that requirements to obtain such authorizations may not be used by the local government to delay the start of or to toll the shot clock under the section 6409(a) process. The shot clock would begin once the applicant takes the first step in whatever process the local government uses in connection with reviewing applications subject to section 6409(a) and satisfies the second of the criteria (documentation). The Commission rejects localities' suggestions that the shot clock should not commence until an applicant submits documentation required for all necessary permits, as such an approach is inconsistent with federal law. Subsequently, if the locality rejects the applicant's request to modify wireless facilities as incomplete based on requirements relating to such permits, variances, or similar authorizations, the shot clock would not be tolled and the application would be deemed granted after 60 days if the application constitutes an eligible facilities request under the Commission's rules. Localities may only toll the shot clock “by mutual agreement” or if the locality “determines that the application is incomplete.”

12. Fifth, the Commission notes that some jurisdictions have not established specific procedures for the review and approval of eligible facilities requests under Section 6409(a). In those cases, the Commission clarifies that, for purposes of triggering the shot clock under Section 6409(a), the applicant can consider the first procedural step to be submission of the type of filing that is typically required to initiate a standard zoning or siting review of a proposed deployment that is not subject to section 6409(a). Comparable modification requests might include applications to install, modify, repair, or replace wireless transmission equipment on a structure that is outside the scope of Section 6409(a), or to mount cable television, wireline telephone, or electric distribution cables or equipment on outdoor towers or poles. Where the first step in the process is submission of the type of filing that is typically required for comparable modification requests, the Commission notes that applicants are not required to file any documentation that is inconsistent with the Commission's rules for eligible facilities requests under Section 6409(a).

13. The Commission finds that these clarifications serve to remove uncertainty about the scope and meaning of various provisions of Section 1.6100 consistent with the text, history, and purpose of the 2014 Infrastructure Order. The Commission also notes that the commencement of the shot clock does not excuse the applicant from continuing to follow the locality's procedural and substantive requirements (to the extent those requirements are consistent with the Commission's rules), including obligations “to comply with generally applicable building, structural, electrical, and safety codes or with other laws codifying objective standards reasonably related to health and safety.”

14. Adding new collocated equipment near or at the top of an existing tower can be an efficient means of expanding the capacity or coverage of a wireless network without the disturbances associated with building an entirely new structure. Adding this equipment to an existing tower would change the tower's physical dimensions, but if such a change is not “substantial,” then a request to implement it would qualify as an eligible facilities request, and a locality would be required to approve it. Section 1.6100(b)(7)(i) provides that a modification on a tower outside of the public rights-of-way would cause a substantial change if it “increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater.”

15. Commenters assert that they have two different interpretations of the meaning of this language in Section 1.6100(b)(7)(i). Industry commenters read Section 1.6100(b)(7)(i) as allowing a new antenna to be added without being a substantial change if there is no more than twenty feet in “separation” between the existing and new antennas, and that the size/height of the new antenna itself is irrelevant to the concept of “separation.” Localities appear to be of the view, however, that such an interpretation strains what the statute and regulations would permit—creating different standards for antenna height depending on where it is located and leading to indefinite increases in antenna height under a streamlined process not designed for that purpose. Adding an antenna array to a tower out of the public right-of-way that increases the height of the tower would not be considered a substantial change, by itself, if there is no more than twenty feet of separation between the nearest existing antenna. The phrase “separation from the nearest existing antenna” means the distance from the top of the highest existing antenna on the tower to the bottom of the proposed new antenna to be deployed above it. Thus, when determining whether an application satisfies the criteria for an eligible facilities request, localities should not measure this separation from the top of the existing antenna to the top of the new antenna, because the height of the new antenna itself should not be included when calculating the allowable height increase. Rather, under the Commission's interpretation, the word “separation” refers to the distance from the top of the existing antenna to the bottom of the proposed antenna. Interpreting “separation” otherwise to include the height of the new antenna could limit the number of proposed height increases that would qualify for Section 6409(a) treatment, given typical antenna sizes and separation distances between antennas, which would undermine the statute's objective to facilitate streamlined review of modifications of existing wireless structures.

16. Specifically, and in response to commenters' arguments regarding the language in Section 1.6100(b)(7)(i), the Commission find that its resolution is consistent with the long-established interpretation of the comparable standard set forth in the 2001 Collocation Agreement for determining the maximum size of a proposed collocation that is categorically excluded from historic preservation review. Commission staff explained, in a fact sheet released in 2002, that under this provision of the Collocation Agreement, if a “150-foot tower . . . already [has] an antenna at the top of the tower, the tower height could increase by up to 20 feet [ i.e., the “separation” distance] plus the height of a new antenna to be located at the top of the tower” without constituting a substantial increase in size. That standard was the source of the standard for the allowable height increases for towers outside the rights-of-way that the Commission adopted in the 2014 Infrastructure Order.

17. The Commission's interpretation also aligns with the clarification sought by WIA and other industry parties. The Commission rejects the argument that this interpretation creates irrational inconsistences among height increase standards depending on the type of structure and whether a tower is inside or outside the rights-of-way. As the Commission discussed in the 2014 Infrastructure Order, limits on height and width increases should depend on the type and location of the underlying structure. The Commission therefore adopted the Collocation Agreement's “substantial increase in size” test for towers outside the rights-of-way, and it adopted a different standard for non-tower structures. Localities are rearguing an issue already settled in the 2014 Infrastructure Order when they urge that the same height increase standard should apply to different types of structures. The Commission also rejects the argument that this interpretation would lead to virtually unconstrained increases in the height of such towers. These concerns are unwarranted because the 2014 Infrastructure Order already limits the cumulative increases in height from eligible modifications and nothing in this Declaratory Ruling changes those limits.

18. The clarification is limited to Section 1.6100(b)(7)(i) and the maximum increase in the height of a tower outside the rights-of-way allowed pursuant to an eligible facilities request under Section 6409(a). The Commission reminds applicants that “eligible facility requests covered by Section 6409(a) must comply with any relevant Federal requirement, including any applicable Commission, FAA, NEPA, or Section 106 [historic review] requirements.”

19. To upgrade to 5G and for other technological and capacity improvements, providers often add equipment cabinets to existing wireless sites. Section 1.6100(b)(7)(iii) provides that a proposed modification to a support structure constitutes a substantial change if “it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets.” Some localities suggest that telecommunications transmission equipment manufactured with outer protective covers can be “equipment cabinets” under Section 1.6100(b)(7)(iii) of the rules. The Commission concludes that localities are interpreting “equipment cabinet” under Section 1.6100(b)(7)(iii) too broadly to the extent they are treating equipment itself as a cabinet simply because transmission equipment may have protective housing. Nor does a small piece of transmission equipment mounted on a structure become an “equipment cabinet” simply because it is more visible when mounted above ground. Consistent with common usage of the term “equipment cabinet” in the telecommunications industry, small pieces of equipment such as remote radio heads/remote radio units, amplifiers, transceivers mounted behind antennas, and similar devices are not “equipment cabinets” under Section 1.6100(b)(7)(iii) if they are not used as physical containers for smaller, distinct devices. Moreover, the Commission notes that Section 1.6100(b)(3) defines an “eligible facilities request” ( i.e., a request entitled to streamlined treatment under Section 6409(a)) as any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station and that involves the collocation, removal or replacement of “transmission equipment.” Interpreting “transmission equipment,” an element required in order for a modification to qualify for streamlined treatment, to be “equipment cabinets,” an element that is subject to numerical limits that can cause the modification not to qualify for streamlined treatment, would strain the intended purposes of Sections 1.6100(b)(3) and 1.6100(b)(7)(iii). The Commission does not address here other aspects of the definition of equipment cabinets on which industry commenters seek clarification.

20. In addition, the Commission clarifies that the maximum number of additional equipment cabinets that can be added under the rule is measured for each separate eligible facilities request. According to WIA, one unidentified city in Tennessee interprets the term “not to exceed four cabinets” in Section 1.6100(b)(7)(iii) as “setting a cumulative limit, rather than a limit on the number of cabinets associated with a particular eligible facilities request.” The Commission finds that such an interpretation runs counter to the text of Section 1.6100(b)(7)(iii), which restricts the number of “new” cabinets per eligible facilities request. The city's interpretation ignores the fact that the word “it” in the rule refers to a “modification” and supports the conclusion that the limit on equipment cabinet installations applies separately to each eligible facilities request. This conclusion is also supported by the context of the rule as a whole. The number and size of preexisting cabinets are irrelevant to the limitation on equipment cabinets on eligible support structures, in contrast to the rest of the rule, which takes into account whether there are preexisting ground cabinets at the site and whether proposed new cabinets' volume exceeds the volume of preexisting cabinets by more than 10%.

21. Several localities argue that this clarification would permit an applicant to add an unlimited number of new equipment cabinets to a structure so long as the applicant proposes adding them in increments of four or less. The Commission disagrees that this clarification permits an unlimited number of cabinets on a structure. The text of Section 1.6100(b)(7)(iii) limits the number of equipment cabinets per modification to no more than “the standard number of new equipment cabinets for the technology involved.”

22. Section 1.6100(b)(7)(v) states that a modification “substantially changes” the physical dimensions of an existing structure if “[i]t would defeat the concealment elements of the eligible support structure.” The 2014 Infrastructure Order provides that, “in the context of a modification request related to concealed or `stealth'-designed facilities — i.e., facilities designed to look like some feature other than a wireless tower or base station—any change that defeats the concealment elements of such facilities would be considered a `substantial change' under Section 6409(a).” The 2014 Infrastructure Order notes that both locality and industry commenters generally agreed that “a modification that undermines the concealment elements of a stealth wireless facility, such as painting to match the supporting façade or artificial tree branches, should be considered substantial under Section 6409(a).”

23. Stakeholders subsequently have interpreted the definition of “concealment element” and the types of modifications that would “defeat” concealment in different ways. Petitioners and industry commenters urge the Commission to clarify that the term “concealment element” only refers to “a stealth facility or those aspects of a design that were specifically intended to disguise the appearance of a facility, such as faux tree branches or paint color.” T-Mobile states that some localities are “proffering `creative or inappropriate' regulatory interpretations of what a concealment element is.” Locality commenters counter that there is more to concealment than “fully stealthed facilities and semi-stealthed monopines.” They argue that the proposed changes would undermine the ability of local jurisdictions to enforce regulations designed to conceal equipment. NLC asserts that many attributes of a site contribute to concealment, such as the “specific location of a rooftop site, or the inclusion of equipment in a particular architectural feature.” Locality commenters contend that limiting concealment elements to features identified in the original approval would negate land use requirements that were a factor in the original deployment but not specified as such.

24. Clarification of “Concealment Element.” The Commission clarifies that concealment elements are elements of a stealth-designed facility intended to make the facility look like something other than a wireless tower or base station. The 2014 Infrastructure Order defines “concealed or `stealth' ”-designed facilities as “facilities designed to look like some feature other than a wireless tower or base station,” and further provides that any change that defeats the concealment elements of such facilities would be considered a substantial change under Section 6409(a). Significantly, the 2014 Infrastructure Order identified parts of a stealth wireless facility such as “painting to match the supporting façade or artificial tree branches” as examples of concealment elements. The Commission agrees with industry commenters that concealment elements are those elements of a wireless facility installed for the purpose of rendering the “appearance of the wireless facility as something fundamentally different than a wireless facility,” and that concealment elements are “confined to those used in stealth facilities.”

25. The Commission disagrees with localities who argue that any attribute that minimizes the visual impact of a facility, such as a specific location on a rooftop site or placement behind a tree line or fence, can be a concealment element. As localities acknowledged in comments they submitted in response to the 2013 Infrastructure NPRM, “local governments often address visual effects and concerns in historic districts not through specific stealth conditions, but through careful placement” conditions. The Commission's rules separately address conditions to minimize the visual impact of non-stealth facilities under Section 1.6100(b)(7)(vi) governing “conditions associated with the siting approval.” The Commission narrowly defined concealment elements to mean the elements of a stealth facility, and no other conditions fall within the scope of Section 1.6100(b)(7)(v).

26. The Commission also clarifies that, in order to be a concealment element under Section 1.6100(b)(7)(v), the element must have been part of the facility that the locality approved in its prior review. The Commission's clarification that concealment elements must be related to the locality's prior approval is informed by the 2014 Infrastructure Order and its underlying record, which assumed that “stealth” designed facilities in most cases would be installed at the request of an approving local government. Further, in the 2014 Infrastructure Order, the Commission stated that a modification would be considered a substantial increase if “it would defeat the existing concealment elements of the tower or base station.” The Commission clarifies that the term “existing” means that the concealment element existed on the facility that was subject to a prior approval by the locality. In addition, the record in the 2014 Infrastructure Order, as relied upon by the Commission, characterized stealth requirements as identifiable, pre-existing elements in place before an eligible facilities request is submitted.

27. Regarding the meaning of a prior approval in the context of an “existing” concealment element, the Commission notes that Section 1.6100(b)(7)(i) provides that permissible increases in the height of a tower (other than a tower in the public rights-of-way) should be measured relative to a locality's original approval of the tower or the locality's approval of any modifications that were approved prior to the passage of the Spectrum Act. The Commission finds it reasonable to interpret an “existing” concealment element relative to the same temporal reference points, which are intended to allow localities to adopt legitimate requirements for approval of an original tower at any time but not to allow localities to adopt these same requirements for a modification to the original tower (except for a modification prior to the Spectrum Act when localities would not have been on notice of the limitations in Section 6409(a)). In other words, the purpose of Section 1.6100(b)(7)(v) is to identify and preserve prior local recognition of the need for such concealment, but not to invite new restrictions that the locality did not previously identify as necessary. Accordingly, the Commission clarifies that under Section 1.6100(b)(7)(v), a concealment element must have been part of the facility that was considered by the locality at the original approval of the tower or at the modification to the original tower, if the approval of the modification occurred prior to the Spectrum Act or lawfully outside of the Section 6409(a) process (for instance, an approval for a modification that did not qualify for streamlined Section 6409(a) treatment).

28. The Commission is not persuaded by localities' arguments that this clarification would negate land use requirements that were a factor in the approval of the original deployment even if those requirements were not specified as a condition. The clarification does not mean that a concealment element must have been explicitly articulated by the locality as a condition or requirement of a prior approval. While specific words or formulations are not needed, there must be express evidence in the record to demonstrate that a locality considered in its approval that a stealth design for a telecommunications facility would look like something else, such as a pine tree, flag pole, or chimney. However, it would be inconsistent with the purpose of Section 6409(a)—facilitating wireless infrastructure deployment—to give local governments discretion to require new concealment elements that were not part of the facility that was subject to the locality's prior approval. The Commission expects that this clarification will also promote the purpose of the rules to provide greater certainty to localities and applicants as to whether a concealment element exists.

29. Clarification of “Defeat Concealment.” Next, the Commission clarifies that, to “defeat concealment,” the proposed modification must cause a reasonable person to view the structure's intended stealth design as no longer effective after the modification. In other words, if the stealth design features would continue effectively to make the structure appear not to be a wireless facility, then the modification would not defeat concealment. The Commission's definition is consistent with dictionary definitions and common usage of the term “defeat” and is supported by the record. The clarification is necessary because, as industry commenters point out, some localities construe even small changes to “defeat” concealment, which delays deployment, extends the review processes for modifications to existing facilities, and frustrates the intent behind Section 6409(a).

30. Examples of Whether Modifications Defeat Concealment Elements. The Commission offers the following examples to provide guidance on concealment elements and whether or not they have been defeated to help inform resolution of disputes should they arise:

• In some cases, localities take the position that the placement of coaxial cable on the outside of a stealth facility constitutes a substantial change based on the visual impact of the cable. Coaxial cables typically range from 0.2 inches to slightly over a half-inch in diameter, and it is unlikely that such cabling would render the intended stealth design ineffective at the distances where individuals would view a facility.

• In other cases, localities have interpreted any change to the color of a stealth tower or structure as defeating concealment. Such interpretations are overly broad and can frustrate Congress's intent to expedite the Section 6409(a) process. A change in color must make a reasonable person believe that the intended stealth is no longer effective. Changes to the color of a stealth structure can occur for many reasons, including for example, the discontinuance of the previous color. An otherwise compliant eligible facilities request will not defeat concealment in this case merely because the modification uses a slightly different paint color. Further, if the new equipment is shielded by an existing shroud that is not being modified, then the color of the equipment is irrelevant because it is not visible to the public and would not render an intended concealment ineffective. Therefore, such a change would not defeat concealment.

• WIA reports that a locality in Colorado claims that a small increase in height on a stealth monopine, which is less than the size thresholds of Section 1.6100(b)(7)(i) through (iv), defeats concealment and therefore constitutes a substantial change. The Commission clarifies that such a change would not defeat concealment if the change in size does not cause a reasonable person to view the structure's intended stealth design ( i.e., the design of the wireless facility to resemble a pine tree) as no longer effective after the modification.

• If a prior approval included a stealth-designed monopine that must remain hidden behind a tree line, a proposed modification within the thresholds of Section 1.6100(b)(7)(i) through (iv) that makes the monopine visible above the tree line would be permitted under Section 1.6100(b)(7)(v). First, the concealment element would not be defeated if the monopine retains its stealth design in a manner that a reasonable person would continue to view the intended stealth design as effective. Second, a requirement that the facility remain hidden behind a tree line is not a feature of a stealth-designed facility; rather it is an aesthetic condition that falls under Section 1.6100(b)(7)(vi). Under that analysis, as explained in greater detail below, a proposed modification within the thresholds of Section 1.6100(b)(7)(i) through (iv) that makes the monopine visible above the tree line likely would be permitted under Section 1.6100(b)(7)(vi).

31. Section 1.6100(b)(7)(vi) states that a modification is a substantial increase if “[i]t does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in § 1.61001(b)(7)(i) through (iv).” Industry commenters argue that changes specifically allowed under Section 1.6100(b)(7)(i) through (iv) should not constitute a substantial change under Section 1.6100(b)(7)(vi). For example, the record shows that some localities claim that small increases in the size of a structure, such as increasing its height or increasing the width of its cannister, are a substantial change because they wrongly characterize any increase to a structure's visual profile or negative aesthetic impact as defeating a concealment element—even if the size changes would be within the allowances under the Commission's rules.

32. Conditions associated with the siting approval under Section 1.6100(b)(7)(vi) may relate to improving the aesthetics, or minimizing the visual impact, of non-stealth facilities (facilities not addressed under Section 1.6100(b)(7)(v)). However, localities cannot merely assert that a detail or feature of the facility was a condition of the siting approval; there must be express evidence that at the time of approval the locality required the feature and conditioned approval upon its continuing existence in order for non-compliance with the condition to disqualify a modification from being an eligible facilities request. Even so, like any other condition under Section 1.6100(b)(7)(vi), such an aesthetics-related condition still cannot be used to prevent modifications specifically allowed under Section 1.6100(b)(7)(i) through (iv) of the Commission's rules. Consistent with “commonplace [ ] statutory construction that the specific governs the general,” the Commission clarifies that where there is a conflict between a locality's general ability to impose conditions under (vi) and modifications specifically deemed not substantial under (i)-(iv), the conditions under (vi) should be enforced only to the extent that they do not prevent the modification in (i)-(iv). In other words, when a proposed modification otherwise permissible under Section 1.6100(b)(7)(i) through (iv) cannot reasonably comply with conditions under Section 1.6100(b)(7)(vi), the conflict should be resolved in favor of permitting the modifications. For example, a local government's condition of approval that requires a specifically sized shroud around an antenna could limit an increase in antenna size that is otherwise permissible under Section 1.6100(b)(7)(i). Under Section 1.6100(b)(7)(vi), however, the size limit of the shroud would not be enforceable if it purported to prevent a modification to add a larger antenna, but a local government could enforce its shrouding condition if the provider reasonably could install a larger shroud to cover the larger antenna and thus meet the purpose of the condition.

33. By providing guidance on the relationship between Section 1.6100(b)(7)(i) through (iv) and 1.6100(b)(7)(vi), including the limitations on conditions that a locality may impose, the Commission expects there to be fewer cases where conditions, especially aesthetic conditions, are improperly used to prevent modifications otherwise expressly allowed under Section 1.6100(b)(7)(i) through (iv). The Commission reaffirms that beyond the specific conditions that localities may impose through Section 1.6100(b)(7)(vi), localities can enforce “generally applicable building, structural, electrical, and safety codes” and “other laws codifying objective standards reasonably related to health and safety.”

34. Examples of Aesthetics Related Conditions. Petitioners and both industry and locality commenters have provided numerous examples of disputes involving modifications to wireless facilities. Using examples from the record, and assuming that the locality has previously imposed an aesthetic-related condition under Section 1.6100(b)(7)(vi), the Commission offers examples to provide guidance on the validity of the condition to decrease future disputes and to help inform resolution of disputes should they arise:

• If a city has an aesthetic-related condition that specified a three-foot shroud cover for a three-foot antenna, the city could not prevent the replacement of the original antenna with a four-foot antenna otherwise permissible under Section 1.6100(b)(7)(i) because the new antenna cannot fit in the shroud. As described above, if there was express evidence that the shroud was a condition of approval, the city could enforce its shrouding condition if the provider reasonably could install a four-foot shroud to cover the new four-foot antenna. The city also could enforce a shrouding requirement that is not size-specific and that does not limit modifications allowed under Section 1.6100(b)(7)(i) through (iv).

• T-Mobile claims that some localities consider existing walls and fences around non-camouflaged towers to be concealment elements that have been defeated if new equipment is visible over those walls or fences. First, such conditions are not concealment elements; rather, they are considered aesthetic conditions under Section 1.6100(b)(7)(vi). Such conditions may not prevent modifications specifically allowed by Section 1.6100(b)(7)(i) through (iv). However, if there were express evidence that the wall or fence were conditions of approval to fully obscure the original equipment from view, the locality may require a provider to make reasonable efforts to extend the wall or fence to maintain the covering of the equipment.

• If an original siting approval specified that a tower must remain hidden behind a tree line, a proposed modification within the thresholds of Section 1.6100(b)(7)(i) through (iv) that makes the tower visible above the tree line would be permitted under Section 1.6100(b)(7)(vi), because the provider cannot reasonably replace a grove of mature trees with a grove of taller mature trees to maintain the absolute hiding of the tower.

• In a similar vein, San Francisco has conditions to reduce the visual impact of a wireless facility, including that it must be set back from the roof at the front building wall. San Francisco states that it will not approve a modification if the new equipment to be installed does not meet the set back requirement. Even if a proposed modification within the thresholds of Section 1.6100(b)(7)(i) through (iv) exceeds the required set back, San Francisco could enforce its set back condition if the provider reasonably could take other steps to reduce the visual impact of the facility to meet the purpose of its condition.

35. The Commission's environmental rules implementing the National Environmental Policy Act categorically exclude all actions from environmental evaluations, including the preparation of an environmental assessment, except for defined actions associated with the construction of facilities that may significantly affect the environment. Pursuant to Section 1.1307(a) of the Commission's rules, applicants currently submit an environmental assessment for those facilities that fall within specific categories, including facilities that may affect historic properties protected under the National Historic Preservation Act. Under the Commission's current process, an applicant submits an environmental assessment for facilities that may affect historic properties, even if the applicant has executed a memorandum of agreement with affected parties to address those adverse effects.

36. The Commission clarifies on its own motion that an environmental assessment is not needed when the FCC and applicants have entered into a memorandum of agreement to mitigate effects of a proposed undertaking on historic properties, consistent with Section VII.D of the Wireless Facilities Nationwide Programmatic Agreement, if the only basis for the preparation of an environmental assessment was the potential for significant effects on such properties. The Commission expects this clarification should further streamline the environmental review process.

37. Section 1.1307(a)(4) of the Commission's rules requires an environmental assessment if a proposed communications facility may have a significant effect on a historic property. The Commission adopted a process to identify potential effects on historic properties by codifying the Wireless Facilities Nationwide Programmatic Agreement as the means to comply with Section 106 of the National Historic Preservation Act. If adverse effects on historic properties are identified during this process, the Wireless Facilities Nationwide Programmatic Agreement requires that the applicant consult with the State Historic Preservation Officer and/or Tribal Historic Preservation Officer, and other interested parties to avoid, minimize, or mitigate the adverse effects.

38. When such effects cannot be avoided, under the terms of the Wireless Facilities Nationwide Programmatic Agreement, the applicant, the State Historic Preservation Officer and/or Tribal Historic Preservation Officer, and other interested parties may proceed to negotiate a memorandum of agreement that the signatories agree fully mitigates all adverse effects. The agreement is then sent to Commission staff for review and signature. Under current practice, even after a memorandum of agreement is executed, an applicant is still required to prepare an environmental assessment and file it with the Commission. The Commission subsequently places the environmental assessment on public notice, and the public has 30 days to file comments/oppositions. If the environmental assessment is determined to be sufficient and no comments or oppositions are filed, the Commission issues a Finding of No Significant Impact and allows an applicant to proceed with the project.

39. In this Declaratory Ruling the Commission clarifies that an environmental assessment is unnecessary after an adverse effect on a historic property is mitigated by a memorandum of agreement. Applicants already are required to consider alternatives to avoid adverse effects prior to executing a memorandum of agreement. The executed agreement demonstrates that the applicant: Has notified the public of the proposed undertaking; has consulted with the State Historic Preservation Officer and/or Tribal Historic Preservation Officers, and other interested parties to identify potentially affected historic properties; and has worked with such parties to agree on a plan to mitigate adverse effects. This mitigation eliminates any significant adverse effects on a historic property, and each memorandum of agreement must include as a standard provision that the memorandum of agreement “shall constitute full, complete, and adequate mitigation under the NHPA . . . and the FCC's rules.”

40. The Commission notes that Section 1.1307(a) requires an applicant to submit an environmental assessment if a facility “may significantly affect the environment,” which includes facilities that may affect historic properties, endangered species, or critical habitats. As a result of the mitigation required by a memorandum of agreement, the Commission concludes that any effects on historic properties remaining after the agreement is executed would be below the threshold of “significance” to trigger an environmental assessment. After the memorandum of agreement is executed, a proposed facility should no longer “have adverse effects on identified historic properties” within the meaning of Section 1.1307(a)(4) and, therefore, should no longer be within the “types of facilities that may significantly affect the environment.” If none of the other criteria for requiring an environmental assessment in Section 1.1307(a) exist, then such facilities automatically fall into the broad category of actions that the Commission has already found to “have no significant effect on the quality of the human environment and are categorically excluded from environmental processing.” The Commission's rules should be read in light of the scope of the Commission's obligation under Section 106 and the ACHP's rules, which explicitly state that such a memorandum of agreement “evidences the agency official's compliance with section 106.” The Commission reminds applicants that an environmental assessment is still required if the proposed project may significantly affect the environment in ways unrelated to historic properties.

41. Paperwork Reduction Act. This Declaratory Ruling does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

42. Congressional Review Act. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs that this rule is “non-major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Declaratory Ruling to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

43. Accordingly, it is ordered, pursuant to Sections 1, 4(i)-(j), 7, 201, 253, 301, 303, 309, 319, and 332 of the Communications Act of 1934, as amended, and Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, as amended, 47 U.S.C. 151, 154(i) through (j), 157, 201, 253, 301, 303, 309, 319, 332, 1455 that this Declaratory Ruling in WT Docket No. 19-250 and RM-11849 Is hereby Adopted .

44. It is further ordered that this Declaratory Ruling shall be effective upon release. It is the Commission's intention in adopting the foregoing Declaratory Ruling that, if any provision of the Declaratory Ruling, or the application thereof to any person or circumstance, is held to be unlawful, the remaining portions of such Declaratory Ruling not deemed unlawful, and the application of such Declaratory Ruling to other person or circumstances, shall remain in effect to the fullest extent permitted by law.

45. It is further ordered that, pursuant to 47 CFR 1.4(b)(1), the period for filing petitions for reconsideration or petitions for judicial review of this Declaratory Ruling will commence on the date that this Declaratory Ruling is released.

46. It is further ordered that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, Shall Send a copy of this Declaratory Ruling to the Chief Counsel for Advocacy of the Small Business Administration.

47. It is further ordered that this Declaratory Ruling shall be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).