Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2019-21, dated May 15, 2019 (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2019-0987.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. The NPRM published in the Federal Register on December 27, 2019 (84 FR 71335). The NPRM was prompted by reports that during airplane wing fatigue testing, fatigue cracks were found on the lower right-hand-side wing plank at the end of the integrally machined stringers, which led to a determination that new or more restrictive airworthiness limitations are necessary. The NPRM proposed to require, for certain airplanes, revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA is issuing this AD to address undetected cracks on the lower wing plank at the stringer run-out, which could affect the structural integrity of the wing. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.

Air Wisconsin Airlines stated that paragraph (b) of the proposed AD specifies the affected ADs as “None,” and that although AD 2016-17-15, Amendment 39-18628 (81 FR 59839, August 31, 2016) (“AD 2016-17-15”), may not be affected by the NPRM, it is associated with it. The FAA infers that Air Wisconsin Airlines is requesting clarification of AD 2016-17-15 as an affected AD and if it should be cited in paragraph (b) of the proposed AD.

The FAA agrees to clarify. The FAA acknowledges this AD affects AD 2016-17-15. ADs that are superseded or are terminated (or partially terminated) by an AD are listed in paragraph (b) of that AD. The FAA has added paragraph (j) to the AD to specify that accomplishing the revision required by paragraph (g) of this AD terminates the requirement to incorporate airworthiness limitations (AWL) task 57-21-112 in Part 6—Eddy Current, of Canadair Regional Jet CRJ200 Nondestructive Testing Manual, CSP A-010, Revision 40, dated November 10, 2018 (“AWL task 57-21-112”), as specified in paragraph (g)(12) of AD 2016-17-15. The FAA has also added AD 2016-17-15 to paragraph (b) of this AD.

Bombardier requested that the FAA revise the service information citation in paragraph (g) of the proposed AD for the initial compliance time for AWL task 57-21-112. Bombardier stated that the maintenance review manual specifies the inspection intervals and not the nondestructive testing manual specified in paragraph (g) of the proposed AD.

The FAA agrees with the commenter for the reason provided by the commenter. The FAA has revised paragraph (g) of this AD to state that the initial compliance time for doing the task is at the at the next scheduled inspection as specified in AWL task 57-21-112, or within 30 days after the effective date of this AD, whichever occurs later.

Air Wisconsin Airlines stated that it infers that the intent of paragraph (g) of the proposed AD is to incorporate the nondestructive testing (NDT) inspection introduced in Bombardier Canadair Regional Jet CRJ200 Nondestructive Testing Manual, CSP A-010, Revision 40, dated November 10, 2018 (“NDT Manual, Revision 40”), as AD 2016-17-15 already requires incorporation of AWL task 57-21-112 into an operator's maintenance program. Air Wisconsin Airlines stated that if it is required to use only NDT Manual, Revision 40, then it would suggest that an alternative method of compliance (AMOC) would be required for every revision issued after that to the NDT manual, as required by AD 2009-06-12, Amendment 39-15848 (74 FR 10457, March 11, 2009), for the fault isolation manual (FIM). Air Wisconsin Airlines asked if that is the intent of the NPRM, or is the intent of the NPRM as specified in the MCAI to prohibit the use of earlier revisions of the NDT manual. The FAA infers that Air Wisconsin Airlines is requesting the FAA clarify the intent of paragraph (g) of the NPRM.

The FAA agrees to clarify the intent of paragraph (g) of this AD. The intent is to prohibit the use of revisions prior to NDT Manual, Revision 40. The FAA revised the language in paragraph (g) of this AD to specify operators to “revise the existing maintenance or inspection program, as applicable, to incorporate the information in AWL task 57-21-112, as specified in Part 6—Eddy Current, of Bombardier Canadair Regional Jet CRJ200 Nondestructive Testing Manual, CSP A-010, Revision 40, dated November 10, 2018.” The revised language in paragraph (g) of this AD is designed to allow incorporating the specific information, regardless of the revision level of the NDT manual, in use, so long as the language is identical to the information in NDT Manual, Revision 40. Bombardier Canadair Regional Jet CRJ200 Nondestructive Testing Manual, CSP A-010, Revision 41, dated October 10, 2019, includes the same information that is specified in NDT Manual, Revision 40. If a revision of the NDT manual does not contain the same information for AWL task 57-21-112, as specified in NDT Manual, Revision 40, operators may request an AMOC using the procedures specified in paragraph (k)(1) of this AD.

Bombardier requested that paragraph (h) of the proposed AD state that the incorporation of Bombardier CL-600-2B19 Temporary Revision 2B-2273, dated October 31, 2019, to Appendix B—Airworthiness Limitations, Part 2 of the Bombardier CL-600-2B19 Maintenance Requirements Manual (“Temporary Revision 2B-2273”), into the next full manual revision also meets the requirements of paragraph (h) of the proposed AD.

The FAA agrees with the commenter that the next full manual revision that incorporates the information in Temporary Revision 2B-2273 will meet the requirements of paragraph (h) of this AD. The FAA has revised the language in paragraph (h) of this AD to specify that operators “revise the existing maintenance or inspection program, as applicable, to incorporate the information in AWL task 57-21-169, as specified in Bombardier CL-600-2B19 Temporary Revision 2B-2273, dated October 31, 2019, to Appendix B—Airworthiness Limitations, of Part 2 of the Bombardier CL-600-2B19 Maintenance Requirements Manual.”

This revised language requires including the information that is provided in the referenced temporary revision. The revised language in paragraph (h) of this AD is designed to allow incorporating the specific information, regardless of the revision level of the NDT manual in use, so long as the information is identical to that in Temporary Revision 2B-2273.

Air Wisconsin stated that paragraph (h) of the proposed AD specifies that the requirement is to incorporate AWL task 57-21-169, as specified in Temporary Revision 2B-2273 for which there is no existing inspection in the NDT manual. Air Wisconsin stated that Temporary Revision 2B-2273 does not indicate how to perform this inspection and that it only states to perform it, dependent upon maximum take-off weight (MTOW) if over the threshold from the last inspection per AWL task 57-21-112. Air Wisconsin commented that there needs to be a method of performing the inspection in the NDT manual, because AWL task 57-21-112 may have been incorporated into a maintenance program many years ago and inspections using the NDT Manual, Revision 40, may have been performed immediately after its publication. Air Wisconsin also commented that depending on utilization, there may be less than 100 cycles remaining before the inspection is required to be performed at the effective date of the AD, and therefore, there needs to be a better phase-in schedule than that shown in Temporary Revision 2B-2273, or an inspection method is required to be published sooner than later. The FAA infers that Air Wisconsin is requesting clarification for the inspection method.

The FAA agrees to clarify the inspection method. Temporary Revision 2B-2273 does provide an inspection method because it identifies the inspection type as a special detailed inspection and includes a reference to AWL task 57-21-169. The inspection method is available in the NDT manual.

Regarding the phase-in schedule, the FAA notes that paragraph (h) of this AD provides a 30-day grace period for the initial compliance time. Operators may also request an AMOC to extend the compliance time using the procedures specified in paragraph (k)(1) of this AD. The FAA has not changed this AD in this regard.

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

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

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

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

Bombardier has issued Airworthiness Limitations task 57-21-112 to Part 6—Eddy Current, of Canadair Regional Jet CRJ200 Nondestructive Testing Manual, CSP A-010, Revision 40, dated November 10, 2018. This service information describes airworthiness limitations for doing a special detailed inspection of the lower wing skin splice joints at buttock line (BL) 45.00, wing station (WS) 65.75, and WS148.00.

Bombardier has also issued CL-600-2B19 Temporary Revision 2B-2273, dated October 31, 2019, to Appendix B—Airworthiness Limitations, of Part 2 of the Bombardier CL-600-2B19 Maintenance Requirements Manual. This service information describes airworthiness limitations for doing an inspection for cracking on the lower wing plank at the stringer run-out.

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

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the FAA recognizes that this number may vary from operator to operator. In the past, the FAA has estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the FAA estimates the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

According to the manufacturer, some or all 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 known costs in the 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 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 remove AD 2009-25-09, Amendment 39-16128 (74 FR 66045, December 14, 2009) (“AD 2009-25-09”) and add a new AD. AD 2009-25-09 applied to Eurocopter France (now Airbus Helicopters) Model SA330F, G, and J helicopters. The NPRM published in the Federal Register on December 20, 2019 (84 FR 70076). AD 2009-25-09 was prompted by EASA AD No. 2008-0049-E, dated March 3, 2008 and corrected March 7, 2008 (EASA AD 2008-0049-E), to correct an unsafe condition on Model SA 330 F, G, and J helicopters. The NPRM proposed to retain the attachment hardware torque verification and re-adjustment requirements of AD 2009-25-09, and would revise the applicability paragraph by excluding Model SA330F and G helicopters and by excluding input flexible coupling flange assemblies that have been installed in an MGB that has been overhauled after April 1, 2015.

The NPRM was prompted by EASA AD No. 2008-0049R1, dated December 18, 2015 (EASA AD 2008-0049R1), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Model SA 330 J helicopters. EASA advises that since EASA AD 2008-0049-E was issued, Airbus Helicopters has improved its procedures for assembling the flexible coupling-to-flanges during MGB overhaul and maintenance of individual flexible couplings. EASA further states that the improved maintenance procedures ensure the correct torqueing of the attachment bolts of the flexible couplings. Because of these improved procedures, EASA AD 2008-0049R1 states that installing a coupling-to-flange assembly that has been subject to improved maintenance procedures after April 1, 2015, is an acceptable method to comply with the requirements of that AD. The FAA agrees with EASA's determination and therefore proposed to change AD 2009-25-09 accordingly.

The FAA gave the public the opportunity to participate in developing this AD, but did not receive any comments on the NPRM.

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 these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

The FAA reviewed Eurocopter Emergency Alert Service Bulletin No. 05.95, dated March 3, 2008, and Airbus Helicopters Emergency Alert Service Bulletin No. 05.95, Revision 1, dated October 22, 2015, which specify procedures for readjusting or checking the tightening torque load of the hardware attaching the flexible coupling to the sliding coupling flange and the bolts attaching the flexible coupling to the fixed coupling flange. Revision 1 of this service information excludes from its applicability certain flexible coupling assemblies that have undergone the improved procedures.

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 service information requires contacting the manufacturer depending on the results of an inspection, but this AD does not.

The FAA estimates that this AD affects 16 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Re-adjusting the tightening torque on the flexible coupling-to-flange attachment bolts takes about 8 work-hours for an estimated cost of $680 per helicopter and $10,880 for the U.S. fleet.

For MGB input flexible coupling flange assemblies with more than 75 hours time-in-service, inspecting the tightening torque load on the flexible coupling-to-flange attachment bolts takes about 10 work-hours for an estimated cost of $850 per helicopter.

If required, replacing a damaged flexible coupling takes about 1 work-hour in addition to those required for disassembling and inspecting the flexible coupling flange assembly and parts cost about $2,046 for an estimated cost of $2,131 per helicopter.

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:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal.

For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs.

The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal.

For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest. Immediate action is required by the Coast Guard due to the potential safety hazards vessels in these waterways present to life, property and the environment during a tropical storm. We must establish this safety zone by August 4, 2020, to ensure that the rule is in place in advance of Tropical Storm Isaias.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and contrary to the public interest because immediate action is needed to restrict vessel traffic to protect life, property and the environment and respond to the potential safety hazards associated with the nature and path of Tropical Storm Isaias.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). Tropical Storm Isaias continues to track toward the mid-Atlantic region, with a most probable path inclusive of the Chesapeake Bay, Maryland. The COTP Maryland-National Capital Region has determined that potential hazards associated with the destructive force associated with a tropical storm necessitates establishment of a temporary safety zone to protect the safety of life and property on navigable waters starting August 4, 2020, will be a safety concern for anyone within the COTP Maryland-National Capital Region Zone. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the weather event.

This rule establishes a safety zone from 12:01 a.m. on August 4, 2020, until 11:59 p.m. on August 9, 2020, unless sooner terminated by the Captain of the Port Maryland-National Capital Region. The safety zone will cover all navigable waters within the COTP Maryland-National Capital Region Zone, as described in 33 CFR 3.25-15. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters due to the expected impact of Tropical Storm Isaias. Except for vessels already at berth, mooring, or anchor, all vessels underway within this safety zone at the time it is implemented are to depart the zone. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. To seek permission to enter, vessels and persons may contact the COTP or the COTP's representative by telephone number 410-576-2693 or on Marine Band Radio VHF-FM channel 16 (156.8 MHz). Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.

We 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 protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. 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, this rule 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 duration of the safety zone. The effect of this regulation will not be significant due to the limited time that will be regulated (less than a week) and that vessel traffic will be allowed to transit through the zone once the tropical storm has passed, when it has been determined safe to do so, and with the permission of the COTP Maryland-National Capital Region. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this 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 safety zone 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 (Public Law 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 call or email 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 will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this 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 Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have 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 involves a safety zone that will prohibit entry within the COTP Maryland-National Capital Region Zone for six days, as described in 33 CFR 3.25-15, due to the expected impact of Tropical Storm Isaias. It is categorically excluded from further review under paragraph L60(c) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the final details of the specific marine event and safety zone distance were not finalized within a sufficient time to allow for notice and a subsequent comment period before the commencement of the planned marine event. Delaying this rule to allow for a notice and comment period would be impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect the swimmers participating in this swim event. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to public interest because prompt action is needed to protect the swimmers participating in this event on August 23, 2020.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sault Sainte Marie (COTP) has determined that potential hazards associated with swimmers swimming between the Les Cheneaux Islands in a swim event will be a safety concern for anyone within 50 yards of certain swim routes through highly trafficked areas around the Les Cheneaux Islands. This rule is needed to protect event participants and support vessels during the event.

This rule establishes safety zones from 7 a.m. through 3 p.m. on August 23, 2020. The duration of the zone is intended to protect event participants, support vessels, and the general boating public in these navigable waters during the marine event. No vessel or person will be permitted to enter the safety zones without obtaining permission from the COTP or a designated representative.

We 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 protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. 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, this rule 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 size, duration, and location of the safety zones. Vessel traffic may request permission to transit the zone from the designated representative of the Captain of the Port, who may allow the vessel cross the Safety Zone when there is no risk to the event participants. The field of swimmers will not spread across the entirety of the waterway; thus, there will be opportunity for a designated representative of the Captain of the Port to allow vessels to transit the zones. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners (BNM) via VHF-FM marine channel 16 about the zone, and the rule allows vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this 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 safety zone 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 call or email 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 will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this 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. If you believe this rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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 Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have 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 involves safety zones that will prohibit entry within 50 yards of certain swim courses between the Les Cheneaux Islands. It is categorically excluded from further review under paragraph L [60(a)] in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Purpose of Program: The purpose of this program is to provide training and technical assistance to designated State agencies (DSAs)—the State agencies that provide vocational rehabilitation services to individuals who are blind—that receive grant funding under the OIB program and to other service providers that receive OIB program funding from DSAs to provide services to consumers. The training and technical assistance are designed to improve the operation and performance of programs and services for older individuals who are blind resulting in their enhanced independence and self-sufficiency.

Program Authority: 29 U.S.C. 796j-1.

Applicable Program Regulations: 34 CFR part 367.

We published a notice of proposed priorities and definitions (NPP) for this competition in the Federal Register on March 25, 2020 (85 FR 16920). The NPP contained background information and our reasons for proposing the particular priorities and definitions.

We made changes to the definition of “intensive training and technical assistance” and to Proposed Priority 1 to recognize that in-person services and conferences may need to be supplemented or replaced by virtual offerings during the COVID-19 pandemic. There are otherwise no substantive differences between the NPP and these final priorities and definitions.

Public Comment: In response to our invitation in the NPP, eight parties submitted comments on the proposed priorities and definitions.

Generally, we do not address technical and other minor changes, or suggested changes the law does not authorize us to make. In addition, we do not address general comments that raise concerns not directly related to the proposed priorities and definitions.

Analysis of Comments and Changes: An analysis of the comments related to the proposed priorities and definitions follows.

Comment: One commenter stated that the proposed priority does not go far enough to enhance the capacity of OIB and similar programs to access additional funding to address the unmet need for OIB services. The commenter further stated that, if the OIB Training and Technical Assistance Center (Center) merely suggests funding streams and methods of collaboration and does not actually undertake educational and other initiatives that enhance the capacity of OIB and similar programs to access additional funds, this technical assistance will be a largely cosmetic undertaking.

Discussion: We do not fully agree with the commenter's characterization of the activities contemplated for the Center. Through implementation of Priority 1, the Center can train OIB grantees on how to identify State and local resources and implement strategies to acquire and effectively leverage the use of those resources, where appropriate, to meet the unmet service needs of OIB consumers. To that end, the Center will be responsible for identifying State and local resources available to the OIB program as well as promising practices that facilitate the acquisition, sharing, and leveraging of those resources within a State. This will require communication and coordination, on an ongoing basis, with other federally funded training and technical assistance projects and State OIB programs.

Changes: None.

Comment: One commenter suggested a more targeted assessment of the four core areas reflected in this proposed priority and suggested utilizing a survey of the DSAs to identify training content that would best benefit their staff.

Discussion: RSA has conducted surveys of DSAs since FY 2015 to identify their training and technical assistance needs, pursuant to the requirements of section 751A(b) of the Rehabilitation Act of 1973, as amended by the Workforce Innovation and Opportunity Act (WIOA) (29 U.S.C. 796j-1). Survey information is captured through the OIB annual performance reports. The four core areas reflected in Priority 1 are based on survey information gathered through the OIB annual performance reports since FY 2015.

Changes: None.

Comment: One commenter recommended changes to the proposed priority in four areas: (1) Virtual and remote services and assistance; (2) Best practices; (3) Evaluating program performance; and (4) Modifying information technology (IT) platforms.

Regarding virtual and remote services and assistance, the commenter suggested offering flexibility to provide training on remote or virtual service delivery practices to help maintain and expand service provision, particularly in large or rural service areas. Further, the commenter suggested the Department provide flexibility to the Center with respect to the form of service delivery in unusual circumstances that represent higher risks to the older people who are served by the OIB programs.

Regarding best practices, the commenter noted that the term “best practices” used in Priority 1, general topic area (b), in the OIB program FY 2015 grant competition was changed to “promising practices” in Proposed Priority 1. The commenter suggested, to the extent that best practices exist, technical assistance and training should be based on best practices, and the final priority should make this clarification.

Regarding evaluating program performance, the commenter suggested that training and technical assistance should be provided on the evaluation of programs, client progress, and outcomes, and recommended changing general topic area (b), to read “Promising practices, including the development, dissemination, and evaluation of relevant materials to facilitate delivery of effective services” and changing general topic area (c) to include evaluation and to read “Program performance, including data reporting, evaluation, and analysis.”

Regarding modifying IT platforms, the commenter indicated that ample platforms exist to support dissemination of information on training and technical assistance and suggested focusing on the channels that already exist, to the greatest extent possible, in order to maximize limited resources available for the Center and the OIB programs.

Discussion: In the area of virtual and remote services and assistance, we believe that development of training on remote or virtual service delivery practices can be accomplished under Final Priority 1, activity (b)(2). We used the term “promising practices” rather than “best practices” because “best practices” would rely on a higher level of evidence than is currently available in the area of serving older individuals who are blind. The term “promising practices” aligns with the definition of “promising evidence” in 34 CFR 77.1(c). However, where there are relevant evidence-based practices, we encourage the Center to provide training and technical assistance based on such practices.

Regarding the suggestions to change the language in general topic area (c), as noted earlier, the four general topic areas under Final Priority 1 are based on the results of surveys of the DSAs to determine their training and technical assistance needs. Furthermore, we believe that general topic area (c) is sufficiently flexible to allow for the provision of technical assistance on the areas of evaluation of programs, client progress, and outcomes if it is determined that these issues need to be addressed.

Regarding IT platforms, this priority allows for the development of new IT platforms or systems if existing platforms and systems cannot be effectively modified to support webinars, podcasts, video conferences, teleconferences, and other virtual methods of dissemination of information and training and technical assistance.

Changes: None.

Comment: One commenter stated that the definition of “intensive training and technical assistance” lacks detail. The commenter stated that the definition could be improved and clarified by presenting methods and examples that represent the level of training received in order to differentiate between the types of training and technical assistance provided.

Discussion: We recognize that the definition of “intensive training and technical assistance” is broad; however, this is intentional given the range of issues that OIB agencies may encounter in their implementation of the OIB program. OIB grantees, in collaboration with this Center, will determine the type and level of intensive training and technical assistance needed. We believe that the definition offers applicants the flexibility they need to demonstrate how they would apply the definition of “intensive training and technical assistance” to meet the varying needs of the OIB grantees. The definition of “intensive training and technical assistance” used in this priority is the standard definition used for the Rehabilitation Services Administration's (RSA's) training and technical assistance centers to provide this flexibility.

Changes: None.

Comment: None.

Discussion: As a result of disruptions to in-person services arising from the COVID-19 pandemic, the Department believes it is advisable to provide for the possibility that intensive training and technical assistance might sometimes be provided through remote delivery, as needed and appropriate.

Changes: We have revised the definition of “intensive training and technical assistance” to allow the Center to provide intensive training and technical assistance through remote delivery as appropriate.

Comment: A few commenters stated that the proposed priorities could benefit from clearer descriptive labeling and language, use of shorter sentences and smaller sections to facilitate ease of reading and clarity, and hyperlinks to improve understanding, but the commenters did not offer specific suggestions or examples to improve the clarity of the proposed priorities.

Discussion: We appreciate the value of using plain language in the priorities and believe the current language is clear.

Changes: None.

This priority supports a cooperative agreement to establish an OIB Training and Technical Assistance Center (Center) to provide universal, targeted, and intensive training and technical assistance to designated State agencies (DSAs) funded under the OIB program and to any service providers that DSAs fund to provide services directly to consumers. The Center will develop and provide training and technical assistance in the following general topic areas:

(a) Community outreach methods and strategies to identify potential recipients of services.

(b) Promising practices, based on “promising evidence” as defined in 34 CFR 77.1(c), including the development and dissemination of relevant materials to facilitate the delivery of high-quality services.

(c) Program performance, including data reporting and analysis.

(d) Financial and management practices, including practices to ensure compliance with grant administration requirements.

To meet the requirements of this priority, the Center must, at a minimum, conduct the following activities:

(a) Annually provide intensive training and technical assistance to a minimum of three DSAs or other service providers on the four general topic areas in this priority. Intensive training and technical assistance may be provided through remote delivery as appropriate. The technical assistance must be—

(1) Consistent with the project activities and tailored to the specific needs and challenges of the DSA or other service provider receiving intensive training and technical assistance;

(2) Provided under an agreement with each DSA or other service provider that, at a minimum, details the purpose, intended outcomes, and requirements for subsequent evaluation of the training and technical assistance; and

(3) Assessed 90 days after completion to ensure that the DSAs and other service providers receiving intensive training and technical assistance are applying it effectively, and to address any issues or challenges in its implementation.

(b) Provide a range of targeted training and technical assistance and universal training and technical assistance products and services on the four general topic areas in this priority. The training and technical assistance must include, at a minimum, the following activities:

(1) In each year of the project, provide a minimum of 10 webinars, podcasts, video conferences, teleconferences, or other virtual methods of dissemination of information and training and technical assistance on the four general topic areas in this priority to describe and disseminate information about emerging promising practices.

(2) Develop new information technology (IT) platforms or systems, or modify existing platforms and systems, as follows:

(i) Develop or modify, and maintain, a state-of-the-art IT platform sufficient to support webinars, podcasts, video conferences, teleconferences, and other virtual methods of dissemination of information and training and technical assistance; and

(ii) Develop or modify, and maintain, a state-of-the-art archiving and dissemination system that is open and available to the public, at no cost, and that provides a central location for later use of training and technical assistance products, including course curricula, audiovisual materials, webinars, examples of emerging and promising practices related to the four general topic areas in this priority, and any other training and technical assistance products developed by the grantee and others.

(c) Conduct outreach to DSAs so that they are aware of, and can participate in, training and technical assistance activities.

(d) Establish a community of practice  1 that will act as a vehicle for communication, an exchange of information among DSAs and other service providers, and a forum for sharing the results of training and technical assistance activities that are in progress or that have been completed.

(e) Facilitate annually a minimum of one in-person conference, or, if health and safety reasons make an in-person conference infeasible, a virtual conference, for the purpose of dissemination of information related to emerging promising practices and ongoing technical assistance needs and activities.

(f) Communicate and coordinate, on an ongoing basis, with other federally funded training and technical assistance projects, particularly Department-funded projects, to ensure that training and technical assistance activities are complementary and non-duplicative.

(g) Conduct an evaluation to determine the impact of the Center's training and technical assistance on the DSAs and other service providers that received the Center's services.

To meet the requirements of this priority, the Center must, at a minimum, develop technical assistance focused on partnerships to facilitate the sharing of information and leveraging of resources from other systems that work with aging individuals and individuals with disabilities.

These technical assistance strategies must be designed to improve the capacity of OIB grantee staff, and staff from other service providers that receive OIB program funding from DSAs to provide services to the OIB population, to acquire and develop the skills and tools they need to help the OIB population sustain and increase their ability to live independently in their homes and communities.

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

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

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

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

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

Intensive training and technical assistance means training and technical assistance provided to a DSA, or other service provider that receives OIB program funding from a DSA to provide services, primarily on-site or through remote delivery, as needed and appropriate, over an extended period. Intensive training and technical assistance is based on an ongoing relationship between the training and technical assistance center staff and a DSA, or other service provider that receives OIB program funding from a DSA to provide services, under the terms of a signed intensive training and technical assistance agreement.

Targeted training and technical assistance means training and technical assistance based on needs common to one or more DSAs, or other service providers that receive OIB program funding from DSAs to provide services, on a time-limited basis and with a limited commitment of training and technical assistance center resources. Targeted training and technical assistance are delivered through virtual or in-person methods tailored to the identified needs of the participating DSAs, or other service providers that receive OIB program funding from DSAs to provide services.

Universal training and technical assistance means training and technical assistance broadly available to DSAs, or other service providers that receive OIB program funding from DSAs to provide services, and other interested parties resulting in minimal interaction with training and technical assistance center staff. Universal training and technical assistance includes generalized presentations, products, and related activities available through a website or through brief contact with the training and technical assistance center staff.

This document does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

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

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

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

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

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

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

Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866, and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2020, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. Because the regulatory action is not significant, the requirements of Executive Order 13771 do not apply.

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

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

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

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

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

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

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

We are issuing the final priorities and definitions only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

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

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

In addition, we have considered the potential benefits of this regulatory action and noted these benefits in the NPP.

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

The small entities that this regulatory action would affect are State and public or non-profit agencies and organizations and institutions of higher education (IHEs) that have the capacity to provide training and technical assistance in the provision of independent living services for older individuals who are blind and have demonstrated through their application a capacity to provide the level of training and technical assistance necessary to meet the priorities and definitions. We believe that the costs imposed on an applicant by the priorities and definitions would be limited to paperwork burden related to preparing an application and that the benefits of these priorities and definitions would outweigh any costs incurred by the applicant. There are very few entities that could provide the type of technical assistance the Center aims to provide. For these reasons these priorities and definitions would not impose a burden on a significant number of small entities.

Paperwork Reduction Act of 1995: The priorities and definitions contain information collection requirements that are approved by OMB under OMB control number 1820-0018.

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

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

In the NPP we requested comments on whether the proposed priorities and definitions would require transmission of information that any other agency or authority of the United States gathers or makes available.

Based on the response to the NPP and on our review, we have determined that these final priorities and definitions do not require transmission of information that any other agency or authority of the United States gathers or makes available.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format ( e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT .

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

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

Purpose of Program: The purpose of the Technical Assistance and Dissemination to Improve Services and Results for Children with Disabilities Program is to promote academic achievement and to improve results for children with disabilities by providing technical assistance (TA), supporting model demonstration projects, disseminating useful information, and implementing activities that are supported by scientifically-based research.

Program Authority: 20 U.S.C. 1408 and 1463.

We published a notice of proposed priorities, requirements, and selection criteria (NPP) for this program in the Federal Register on May 29, 2020 (85 FR 32317). The NPP contained background information and our reasons for proposing these particular priorities, requirements, and selection criteria.

There are minor substantive differences between the NPP and this notice. As discussed in the Analysis of Comments and Changes section of this document, these changes relate to instances where we believed further clarification regarding stakeholder participation was appropriate.

Public Comment: In response to our invitation to comment in the NPP, six parties submitted comments on the proposed priorities, requirements, and selection criteria.

Generally, we do not address technical and other minor changes. In addition, we do not address comments that raised concerns not directly related to the proposed priorities, requirements, and selection criteria.

Analysis of Comments and Changes: An analysis of the comments and of any changes in the priorities, requirements, and selection criteria since publication of the NPP follows.

The Department received comments on several specific topics, including whether the Department had established—(1) an identified national need to reduce the paperwork burden associated with the requirements of IDEA Part B while preserving the rights of children with disabilities and promoting academic achievement; (2) the appropriateness of using funds for the stated purposes; and (3) recommendations to address perceived limitations in proposed requirements regarding stakeholder engagement, data collection, and other matters. Each topic is addressed below.

Whether there is an identified national need to reduce the paperwork burden associated with the requirements of IDEA Part B.

Comment: Several commenters raised questions regarding the needs for the IDEA Paperwork Reduction Planning and Implementation Program, noting that no States had received awards as a result of two similar prior competitions in 2007 and 2019, which they argued signified that special education paperwork reduction was no longer a significant issue in the field. The same commenters also cited recent survey results indicating that special education teachers and administrators no longer identified special education paperwork burden as a major concern as it was perceived prior to the 2004 amendments to the Individuals with Disabilities Education Act (IDEA). They also noted that, since 2004, advancements in various technologies, such as computer-based individualized education programs (IEPs), have significantly reduced the amount of time that educators spend on completing special education paperwork.

Two commenters expressed general support for seeking ways to reduce special education paperwork but cautioned that certain administrative requirements that may seem unnecessary for educators or administrators may be vital to protecting the interests of children with disabilities.

Another commenter noted that IDEA paperwork and other administrative burdens interfered with the ability of related services providers, including members of their professional association, to provide high-quality services to children with disabilities.

Discussion: We appreciate commenters' concerns about the extent to which they anticipate the proposed priorities would generate value for States. We acknowledge that, across States, the degree of administrative burdens may vary. As such, we do not anticipate every State will apply for funding under these priorities. However, we believe it would be shortsighted to deprive every State of the opportunity to seek out ways to meaningfully, and responsibly, reduce administrative burdens so that special education teachers and related services providers can devote more time and resources to supporting the needs of children with disabilities.

We also acknowledge that the Department received no applications under other paperwork reduction initiatives in 2007, and only one application in 2019 that was not of sufficient quality to be funded. However, as noted in a 2016 GAO report, many States chose not to apply under the 2007 competition because they saw the application requirements as too burdensome and the funding level as too low to support the necessary additional staff to implement the projects. 1 We had similar concerns regarding the 2019 competition and, as a result, solicited public comment on these requirements, and the most appropriate funding level for these projects, to ensure that we strike an appropriate balance that provides States with the opportunity to address this ongoing issue while ensuring appropriate supports and safeguards.

Regarding the advent and effectiveness of technology in reducing administrative burdens, we acknowledge that such tools hold great promise for streamlining the paperwork process. However, as noted in the same GAO study, technology tools have helped ease burdens, but they have limitations. Our goal in these efforts is to help special education teachers, related services providers, and administrators complete the same forms more quickly, and to support States in strategically and purposefully considering whether the specific forms or all of the information they ask for are necessary in the first place.

We agree with the commenters that noted that unnecessary paperwork continues to interfere with the ability of educators to provide high-quality services to children with disabilities and that the Department should continue to offer opportunities for States to address the stated purposes of the program.

We agree with the commenters that certain administrative requirements that may seem unnecessary for educators or administrators may be vital to protecting the interests of children with disabilities. Within the notice, we clearly state that any waiver under section 609 of IDEA may not affect the right of a child with a disability to receive a free appropriate public education (FAPE) or waive procedural safeguards under section 615 of IDEA or applicable civil rights requirements, and we require State applicants to describe how they will continue to guarantee these protections.

Changes: None.

Alignment between the proposed activities and requirements and the intended purposes.

Comment: In response to our directed question about the extent to which the proposed activities and requirements were appropriate for States and whether alternatives existed that would accomplish the same purposes with less burden for States, the majority of commenters provided feedback about the proposed activities and proposed alternatives. Some commenters expressed concern that the proposed activities and requirements would undermine the rights and needs of children with disabilities and their families. One commenter noted that the proposed activities and requirements would help alleviate unmanageable caseloads and excessive paperwork among related services providers represented by the commenter's professional association.

Discussion: In 2004, Congress amended IDEA to provide an opportunity for States to identify ways to reduce paperwork burdens and other administrative duties that are directly associated with the requirements of IDEA Part B, in order to increase the time and resources available for instruction and other activities aimed at improving educational and functional results for children with disabilities. We agree with the commenter that reducing unnecessary paperwork burden will increase the time and resources available for instruction and other activities aimed at improving educational and functional results for children with disabilities.

We agree with the commenters that we must ensure that the rights and needs of children with disabilities and their families are not undermined. We clearly state that the Secretary will not waive any statutory or regulatory provisions relating to procedural safeguards under section 615 of IDEA or applicable civil rights requirements and that waivers may not affect the right of a child with a disability to receive FAPE, consistent with section 609. We further propose, in the notice of proposed requirements and definition (NPR) for this program published in the Federal Register on June 5, 2020 (85 FR 34554), that the term “applicable civil rights requirements” includes, but is not limited to, the civil rights protections in the United States Constitution and the requirements of Section 504 of the Rehabilitation Act of 1973, as amended; Title VI of the Civil Rights Act of 1964; Title IX of the Education Amendments of 1972; Title II of the Americans with Disabilities Act of 1990; and Age Discrimination Act of 1975. We also propose within the NPR that parents have the right to understand and consent to changes that affect their children's education and that they may withdraw their consent at any time and for any reason. In short, we believe we have proposed sufficient protections to ensure States' waiver proposals preserve the fundamental rights of children with disabilities and their families under IDEA.

Changes: None.

Comments regarding award sizes.

Comment: None.

Discussion: The Department did not receive any comments responding to our directed question regarding the appropriate size of awards for the proposed priorities. We intend to propose different ranges of award sizes under Priority 1 and Priority 2, and we do not intend to establish a maximum award size for the 2020 competition to ensure appropriate flexibility for States to develop meaningful and effective proposals.

Changes: None.

Comment: Most commenters expressed concern that the programmatic requirements did not include a specific requirement for applicants to provide quantitative data on the anticipated benefits of any potential reforms. The commenters recommended requiring that applicants submit data documenting anticipated benefits drawing from the performance of children with disabilities on the annual State assessments required by the Every Student Succeeds Act (ESSA) or the performance of children with disabilities on the National Assessment of Educational Progress (NAEP), or both. The commenters also noted that improvement in performance on State assessments should be linked to the goals for children with disabilities articulated on the State's approved ESSA State plan.

Two commenters recommended that the final priority specify that States must continue to meet the data collection requirements of Part B of IDEA. In addition, one commenter recommended revising the final notice to specify that school districts or States shall not reduce important required data collection activities related to racial inequities in identification, eligibility, behavioral interventions, and school suspensions or expulsions.

Further, most commenters recommended that the group of stakeholders involved in identifying target areas to reduce administrative burden should be expanded to include the State's Parent Training and Information Center (PTI) and Community Parent Resource Centers (CPRC) funded under IDEA Part D, the State's Protection and Advocacy agency, and disability advocacy organizations within each State. Similarly, two commenters recommended that the impact of administrative burdens should be identified through a consultative process with all affected stakeholder groups.

Finally, one commenter recommended that the Department take steps to encourage States to apply for the planning grants under Priority 1 but cautioned that while the grant application process should be comprehensive, it should not be burdensome.

Discussion: In Priority 1, we seek to provide the opportunity for States to identify ways to reduce paperwork burdens and other administrative duties that are directly associated with the requirements of IDEA Part B, in order to increase the time and resources available for instruction and other activities aimed at improving educational and functional results for children with disabilities. Regarding applicants providing quantitative data on the anticipated benefits of any potential reforms, under paragraph (c)(3) of the application requirements for Priority 2, we require applicants to describe strategies they will use for analyzing data and how data collected as part of this plan will be used to inform and improve service delivery over the course of the project and to refine the implementation project and evaluation plan, including subsequent data collection. Rather than being prescriptive regarding data sources, we believe it is preferable for applicants to propose a comprehensive evaluation plan under Priority 2, which would include a description of the data to be collected. The applicant's proposed evaluation plans under Priority 2, including data sources, will be evaluated by a panel of subject-matter experts as part of the discretionary grant peer review process. We believe that peer reviewers, who will have expertise in program evaluation, are in the best position to evaluate the extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.

We agree with the commenter who recommended that the Department take steps to encourage States to apply for the planning grants under Priority 1, as well as the commenter's caution that while the grant application process should be comprehensive, it should not be burdensome. The Department seeks to minimize burden in its grant competitions to the extent possible, and we will take appropriate measures to ensure that States are aware of the funding opportunity.

We appreciate commenters' concerns about whether States that receive grants under the proposed priorities will be required to continue to meet the data collection and reporting requirements under sections 616 and 618 of the IDEA. We intend to address this comment in the analysis of comments for the Final Requirements-Individuals With Disabilities Education Act (IDEA) Paperwork Reduction Waivers. To ensure that this issue is considered in planning grants under Priority 1, we are adding language to Priority 1 to ensure that the plan for a waiver proposal be consistent with the Final Requirements.

Last, we agree with the commenters who recommended that the group of stakeholders involved in identifying target areas to reduce administrative burden should be expanded to include the State's PTIs and CPRCs funded under IDEA Part D. However, while we acknowledge that a State may seek to involve the State's Protection and Advocacy agency and disability advocacy organizations within the State, we believe it is more appropriate to leave their participation up to the State applicant. We believe that it is appropriate to add PTIs and CPRCs to the list of required stakeholders to involve, as PTIs and CPRCs are critical entities supported by IDEA Part D discretionary grant resources.

Changes: Under the Programmatic Requirements for Priority 1, we have amended paragraph (b)(v) to reference the Final Requirements—The IDEA Paperwork Reduction Waiver and (a)(iv) by adding PTI and CPRC, if appropriate, representation to the list of parent stakeholders.

Comment: Most commenters stated that the evaluation plan for States receiving a waiver was insufficient to ensure that approved waivers would improve positive outcomes including educational and functional results for children with disabilities. Similar to comments they provided in response to Priority 1, the commenters recommended that applicants be required to provide quantitative data drawn from the performance of children with disabilities to demonstrate whether student achievement improved as a result of receiving a waiver. They also recommended that such data be based on data gathered through annual State assessments required by ESSA, the performance of children with disabilities on the NAEP, or both, and that improvement in performance on State assessments should be linked to the goals for children with disabilities articulated on the State's approved ESSA State plan, if applicable.

In addition, most commenters recommended limiting eligible applicants for paperwork reduction waivers to States that have received a “Meets Requirements” rating in their latest annual determination regarding their implementation of IDEA.

Discussion: We seek, consistent with section 609 of IDEA, to provide an opportunity for States to identify ways to reduce paperwork burdens and other administrative duties that are directly associated with the requirements of IDEA Part B in order to increase the time and resources available for instruction and other activities aimed at improving educational and functional results for children with disabilities. Regarding applicants providing quantitative data relying on the data sources identified by the commenters, under paragraph (c)(3) of the application requirements for Priority 2, we require applicants to describe strategies they will use for analyzing data and how data collected as part of the evaluation plan will be used to inform and improve service delivery over the course of the project and to refine the implementation project and evaluation plan, including subsequent data collection. Rather than being prescriptive regarding data sources, we believe it is preferable for applicants to propose a comprehensive evaluation plan. An applicant's proposed evaluation plan under Priority 2, including data sources, will be evaluated by a panel of subject-matter experts with experience in program evaluation as part of the discretionary grant peer review process for Priority 2. We believe that peer reviewers with expertise in program evaluation are in the best position to evaluate the extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.

Because section 609 of IDEA does not address eligibility for planning grants and because a State's annual determination under section 616(d)(2)(A) of IDEA that it “meets requirements” could change from the period of application for a planning grant to the period when a waiver is sought, we do not believe that eligibility for planning grants should be limited to those States that are in “meets requirements.” Regarding eligibility standards for seeking waivers, these will be established in Final Requirements—The Individuals With Disabilities Education Act (IDEA) Paperwork Reduction Waivers. We encourage States applying under Priority 1 that believe they may ultimately seek a waiver under section 609 to review and be mindful of those requirements.

Changes: None.

Comment: One commenter recommended revising Priority 2 to align with the requirement in Priority 1 that the implementation plan identify State and local statutory and regulatory requirements or policies, procedures, and practices that exceed IDEA Part B statutory and regulatory requirements and were considered for revision.

Discussion: We agree with the commenter regarding the importance of identifying State and local requirements, policies, procedures, and practices that exceed IDEA statutory and regulatory requirements. However, this matter is already addressed in Priority 1 and in the NPR, which remains open for public comment. Those proposed requirements provide detailed information regarding what States are required to submit as part of their waiver request, including any State and local requirements they plan to waive that exceed IDEA requirements.

Changes: None.

Comment: One commenter recommended amending Priority 2 paragraph (c)(1)(v) to add language that includes the parent of the child to emphasize the importance of family engagement in the IEP Team process.

Discussion: We agree with the commenter regarding the importance of parent and family engagement. The final notice has been revised to include the recommended language.

Changes: We have revised paragraph (c)(1)(v) of the Programmatic Requirements for Priority 2 to include language that specifies the parent of the child.

Comment: One commenter recommended that the final priority should specifically exclude any changes to a child's IEP, triennial evaluations and reporting, and written communication to parents on student progress.

Discussion: We understand the commenter's concern. However, this comment is more germane to the NPR, which remains open for public comment. We will consider this recommendation as part of that rulemaking. In addition, we note that section 609 clearly states that waivers may not affect the right of a child with a disability to receive FAPE and that procedural safeguards under section 615 of IDEA and applicable civil rights requirements cannot be waived. The NPP also states that States are required to describe how they will continue to guarantee these protections. Further, the NPP requires applicants to describe how their application promotes collaboration between IEP Team members, which includes communicating with parents on their child's progress.

Changes: None.

Comment: One commenter recommended that the Department widely disseminate information on the benefits and outcomes of all State waivers that are granted.

Discussion: We agree with the commenter and will make this information available. Section 609 of IDEA requires that the Secretary include in the annual report to Congress information related to the effectiveness of waivers granted, including any specific recommendations for broader implementation of such waivers in reducing the paperwork burden on teachers, principals, administrators, and related service providers and noninstructional time spent by teachers in complying with IDEA Part B requirements; enhancing longer-term educational planning; improving positive outcomes for children with disabilities; promoting collaboration between IEP Team members; and ensuring satisfaction of family members.

Changes: None.

Comment: One commenter recommended that the Department coordinate with the Centers for Medicaid & Medicaid Services and the Children's Health Insurance Program within the U.S. Department of Health and Human Services (HHS) to reduce administrative burden of duplicative paperwork for school-based providers who utilize IDEA funds and bill Medicaid. In addition, the commenter recommended that the Department and HHS co-develop trainings and provide technical assistance for billing and payment administration of Medicaid services in schools to reduce paperwork burden with utilizing IDEA funds and billing Medicaid.

Discussion: We understand the commenter's concern, but this recommendation is beyond the scope of this notice. Further, the waiver program is intended to be specific to paperwork and administrative burdens resulting from IDEA requirements, not for those resulting from other Federal programs.

Changes: None.

Comments: None.

Discussion: Upon further review, the Department recognized that the specific language included in the “Funding Eligibility Requirements” section of the NPP may unnecessarily limit the Department's flexibility in using the priorities. Specifically, the proposed language did not contemplate a scenario in which the Department would, to reduce burdens for applicants and the Department, encourage applicants to propose projects that would address both Priority 1 and Priority 2. We have therefore revised the language in that section to: (1) Clarify that the requirement to obtain a waiver under section 609 applies to the receipt of funding, not eligibility; (2) add a new subparagraph (b)(2)(ii)(A) to clarify that grantees who have received funding under both priorities would, in the event they proposed a project to address both priorities, immediately be able to begin activities under Priority 2 upon receipt of a waiver from the Secretary; and (3) redesignate a portion of proposed paragraph (b)(2)(ii) as new subparagraph (b)(2)(ii)(B) and clarify that it applies to grantees who only received awards to address Priority 1.

Changes: We have revised paragraph (1) under Funding Eligibility Requirement to clarify the requirement pertains to the receipt of funding, not eligibility. We have also revised paragraph (b)(2)(ii) to more specifically address applicants that received funding under only Priority 1 and those who received funding under Priorities 1 and 2.

Comment: One commenter recommended multiple edits to the proposed selection criteria, deleting certain terms or phrases and inserting others. For example, the commenter recommended deleting references to “consumers” and referring instead to “educators, related service providers, teachers, principals and administrators.”

Discussion: We agree with the commenter that we should replace the term “consumer” with the recommended text to clarify the relevant stakeholders.

Changes: We have revised paragraph (b)(2)(ii) of the selection criteria to consider the extent to which the proposed project encourages and is responsive to the involvement of parents, educators, related service providers, teachers, principals and administrators.

The Department seeks to make awards to State educational agencies (SEAs) to assist them in identifying excessive paperwork and noninstructional time burdens on special education teachers, related services providers, and State and local administrators that do not assist in improving educational and functional results for children with disabilities (hereafter in the priority, “administrative burdens”) and developing comprehensive plans to reduce them. These activities include conducting a comprehensive review of local, State, and Federal IDEA Part B requirements that lead to administrative burdens, as well as, at the discretion of the State, preparing IDEA Paperwork Reduction Waivers for submission to the Department.

Planning projects funded by the Department must achieve, at a minimum, the following expected outcomes—

• Identification of the particular sources and effects of administrative burdens on special education and other teachers, related services providers, and State and local administrators under IDEA Part B; and

• A plan to reduce these administrative burdens.

Under this priority, applicants must propose projects that meet the following programmatic requirements:

(a) The project must meaningfully consult a diverse group of stakeholders on an ongoing basis to support the goals and objectives of the project. Such a group must include, at a minimum, representatives of the following groups:

(i) Special education teachers and related services providers.

(ii) Local special education administrators.

(iii) Individuals with disabilities.

(iv) Parents of children with disabilities, as defined in IDEA section 602(23), including representation of Parent Training and Information Centers (PTIs) and (if applicable) Community Parent Resource Centers (CPRCs).

(v) The State Advisory Panel.

(b) The project must prepare a plan that—

(i) Identifies the State and local statutory and regulatory requirements or policies, procedures, and practices that exceed IDEA Part B statutory and regulatory requirements and were considered for revision;

(ii) Describes the range of options available to the State in reducing administrative burdens, including any limitations on those options ( e.g., statutory or regulatory requirements, judicial precedent);

(iii) Establishes clear and achievable timelines for reducing administrative burdens;

(iv) Identifies the anticipated benefits of any potential reforms, including likely beneficiaries, and the magnitude and scope of anticipated benefits, such as reductions in administrative burden hours and potential increases in the time and resources available for instruction and other activities intended to improve educational and functional results for children with disabilities;

(v) Identifies any Federal IDEA Part B statutory or regulatory requirements for which a waiver may be sought under section 609 of IDEA, consistent with the requirements established in the Final Requirements—The IDEA Paperwork Reduction Waivers; and

(vi) Describes the procedures the State will use to ensure that any waiver that may be sought in accordance with section 609 of IDEA will not—

(A) Waive any statutory requirements of, or regulatory requirements relating to, applicable civil rights requirements or procedural safeguards under section 615 of IDEA; or

(B) Affect the right of a child with a disability to receive FAPE under IDEA Part B.

To be considered for funding under this priority, applicants must also meet the following application requirements. Each applicant must—

(a) Demonstrate, in the narrative portion of the application under “Need for the project,” how the proposed project will identify administrative burdens. To meet this requirement, the applicant must describe what it believes to be—

(1) The approximate current magnitude and scope of the administrative burdens to be addressed;

(2) The approximate current number of special education teachers, related services providers, and State and local administrators affected by those burdens and the number of children with disabilities that they serve; and

(3) The approximate current costs and benefits of those burdens on special education teachers, related services providers, State and local administrators, and children with disabilities ( e.g., teacher retention, planning time, transparency for families);

(b) Demonstrate, in the narrative portion of the application under “Significance” how the proposed planning project will—

(1) Develop a plan to reduce administrative burdens and produce meaningful and sustained change at the State or local level; and

(2) Develop proposals for changes to, or waivers of, specific requirements, policies, procedures, or practices that will reduce administrative burdens in order to increase the time and resources available for instruction and other activities aimed at improving educational and functional results for children with disabilities;

(c) Demonstrate, in the narrative section of the application under “Quality of the project design,” how the proposed project will—

(1) Meet the consultation requirements in paragraph (a) of the programmatic requirements of this priority, including, but not limited to, a proposed timeline for the consultation process, including a description of the methods of consultation ( e.g., in-person meetings, conference calls, emails);

(2) Identify local, State, or Federal IDEA Part B requirements, policies, procedures, or practices that may generate administrative burdens and may be reviewed by the project, including any proposed criteria for that review ( e.g., frequency, complexity, number of staff affected, number of families affected);

(3) Assess the extent to which specific sources of administrative burdens may affect educational and functional results for children with disabilities; and

(4) Produce and make publicly available a plan that meets the requirements in paragraph (b) under the programmatic requirements of this priority and providing an opportunity for stakeholders enumerated in paragraph (a) of the programmatic requirements of this priority to comment on the plan; and

(d) Demonstrate, in the narrative section of the application under “Quality of the management plan,” how—

(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—

(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as applicable; and

(ii) Timelines and milestones for accomplishing the project tasks, including the publication of the final plan on the State's website within three months of the close of the project period;

(2) Key project personnel and any consultants and subcontractors will be allocated and how these allocations are appropriate and adequate to achieve the project's intended outcomes; and

(3) The proposed project will benefit from a diversity of perspectives, including those of families, educators, TA providers, researchers, and policymakers, among others, in its development and operation.

Implementation grants provide funds for States to implement comprehensive plans to reduce administrative burdens submitted by the State and approved by the Secretary under section 609 of IDEA. This includes costs associated with developing products or materials that are part of comprehensive plans, such as creating information technology systems to automate paperwork, or creating new, streamlined paperwork to replace more time-consuming paperwork.

To be considered for funding under this priority, an applicant must meet the following application requirements. 2 Each applicant must—

(a) Demonstrate, in the narrative section of the application under “Quality of the project design,” how the proposed project will—

(1) Disseminate information about changes in processes, practices, and procedures necessary to reduce administrative burdens to all special education teachers, related services providers, and State and local administrators affected by the State's waiver under section 609 of IDEA (hereafter “affected staff”), including—

(i) The modes of communication the project will use;

(ii) The frequency of communication; and

(iii) The content of such communications;

(2) Support the training of all affected staff regarding changes in processes, practices, and procedures necessary to reduce administrative burdens, including a description of the project's intended means of providing this training;

(b) Demonstrate, in the narrative section of the application under “Quality of the management plan,” how—

(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—

(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as applicable; and

(ii) Timelines and milestones for accomplishing the project tasks;

(2) Key project personnel and any consultants and subcontractors will be allocated and how these allocations are appropriate and adequate to achieve the project's intended outcomes; and

(3) The proposed project will benefit from a diversity of perspectives, including those of families, educators, TA providers, researchers, and policymakers, among others, in its development and operation; and

(c) Include, in the narrative section of the application under “Quality of the project evaluation,” an evaluation plan for the implementation project. The evaluation plan must—

(1) Articulate formative and summative evaluation questions for evaluating important processes and outcomes, including whether, and how effectively, the waiver—

(i) Reduces paperwork burden on teachers, principals, administrators, and related services providers;

(ii) Reduces non-instructional time spent by teachers in complying with IDEA Part B;

(iii) Enhances longer-term educational planning;

(iv) Improves positive outcomes, including educational and functional results, for children with disabilities;

(v) Promotes collaboration between individualized education program (IEP) Team members, including the parents of the child; and

(vi) Ensures satisfaction of family members of children with disabilities and teachers, principals, administrators, and related service providers;

(2) Describe how progress in, and fidelity of, implementation, as well as project outcomes, will be measured to answer the evaluation questions; specify the measures and associated instruments or sources for data appropriate to the evaluation questions; and include information regarding reliability and validity of measures where appropriate;

(3) Describe strategies for analyzing data and how data collected as part of this plan will be used to inform and improve service delivery over the course of the project and to refine the proposed implementation project and evaluation plan, including subsequent data collection;

(4) Provide a timeline for conducting the evaluation and include staff assignments for completing the evaluation; and

(5) Dedicate sufficient funds in each budget year to cover the costs of developing, refining, and implementing the evaluation plan.

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

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

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

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

Final Requirements: The Department establishes the following requirements for these priorities. We may apply one or more of these requirements in any year in which the program is in effect.

Funding Eligibility Requirements:

(a) In order to receive funding for an implementation grant an applicant must already have a waiver under section 609 of IDEA approved by the Secretary.

(b) For an applicant that receives a grant under Priority 1—

(1) That does not submit a waiver proposal to the Secretary under section 609 of IDEA within 12 months of the start of the project period, the grant will end after 12 months without opportunity for extension;

(2) That submits a waiver proposal to the Secretary under section 609 of IDEA within 12 months of the start of the project period, the project period will, if applicable, be automatically extended for a period, not to exceed six months, during which the Secretary will consider the proposal.

(i) While a State's waiver proposal is under review, grantees may continue to access available remaining funds to conduct one or more of the following planning grant activities:

(A) Responding to possible questions from the Department regarding the State's proposal to obtain a waiver under section 609 of IDEA and the IDEA Paperwork Reduction Waivers.

(B) Continuing to develop, or implement, planned activities to reduce administrative burdens.

(ii) If the Secretary approves the State's IDEA paperwork reduction waiver under section 609 of IDEA and

(A) and The grantee received a grant under Priorities 1 2, the grantee may use remaining funds and additional funding obligated by the Department under this program to carry out activities under Priority 2.

(B) The grantee only received a grant under Priority 1, the grantee may continue to access available remaining funds to ensure continuity of the project while applying for an implementation award under Priority 2. The project period for the grant under Priority 2 must end no later than 45 days after an award is made under Priority 2 without opportunity for extension.

(iii) If the Secretary denies the State an IDEA paperwork reduction waiver under section 609 of IDEA, the project period will end no more than 30 days after the State's receipt of the Secretary's decision, without opportunity for extension.

Final Selection Criteria:

The Department establishes the following selection criteria for evaluating applications under this program. We may apply one or more of these criteria in any year in which this program is in effect.

(a) Significance.

(1) The Secretary considers the significance of the proposed project.

(2) In determining the significance of the proposed project, the Secretary considers the likelihood that the proposed project will reduce administrative burdens and increase the time and resources available for instruction and other activities aimed at improving educational and functional results for children with disabilities.

(b) Quality of the project design.

(1) The Secretary considers the quality of the design of the proposed project.

(2) In determining the quality of the design of the proposed project, the Secretary considers the following factors:

(i) The extent to which the design of the proposed project will successfully reduce administrative burdens and increase the time and resources available for instruction and other activities aimed at improving educational and functional results for children with disabilities.

(ii) The extent to which the proposed project encourages and is responsive to the involvement of parents, educators, related service providers, teachers, principals and administrators.

(iii) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.

(iv) The extent to which the design for implementing and evaluating the proposed project will result in information to guide possible replication of project activities or strategies, including information about the effectiveness of the approach or strategies employed by the project.

(c) Quality of the management plan.

(1) The Secretary considers the quality of the management plan for the proposed project.

(2) In determining the quality of the management plan for the proposed project, the Secretary considers how the applicant will ensure that a diversity of perspectives is brought to bear in the operation of the proposed project, including those of parents, teachers, related services providers, school administrators, and others, as appropriate.

This document does not preclude us from proposing additional priorities, requirements, definitions or selection criteria, subject to meeting applicable rulemaking requirements.

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

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

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

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

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

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

Under Executive Order 13771, for each new rule that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866, and that imposes total costs greater than zero, it must identify two deregulatory actions. For Fiscal Year 2020, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. Because the final regulatory action is not significant, the requirements of Executive Order 13771 do not apply.

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

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

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

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

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

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

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

We are issuing these final priorities, requirements and selection criteria only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

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

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

The Department believes that the costs associated with this final priority and requirements will be minimal, while the benefits are significant. The Department believes that this regulatory action does not impose significant costs on eligible entities. Participation in this program is voluntary, federal funds to support project activities are provided to successful applicants, and the costs imposed on applicants by this regulatory action will be limited to paperwork burden related to preparing an application. The benefits of implementing the program will outweigh the costs incurred by applicants, and the costs of carrying out activities associated with the application will be paid for with program funds. For these reasons, we have determined that the costs of implementation will not be excessively burdensome for eligible applicants.

The Department believes that these final priorities, requirements and selection criteria are needed to administer the program effectively.

These final priorities, requirements and selection criteria contain collection requirements that are approved by OMB under OMB control number 1820-0028; the final priorities, requirements and selection criteria do not affect the currently approved data collection.

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

The small entities that this final regulatory action will affect are SEAs. We believe that the costs imposed on an applicant by these final priorities, requirements and selection criteria will be limited to paperwork burden related to preparing an application and that the benefits of these final priorities, requirements and selection criteria will outweigh any costs incurred by the applicant.

Participation in the IDEA Paperwork Reduction Planning and Implementation Program is voluntary. For this reason, these final priorities, requirements and selection criteria will impose no burden on small entities unless they applied for funding under the program. We expect that in determining whether to apply for Technical Assistance and Dissemination to Improve Services and Results for Children with Disabilities program funds, an eligible entity will evaluate the requirements of preparing an application and any associated costs, and weigh them against the benefits likely to be achieved by receiving an IDEA Paperwork Reduction Planning and Implementation Program grant. An eligible entity will most likely apply only if it determines that the likely benefits exceed the costs of preparing an application.

We believe that these final priorities, requirements and selection criteria will not impose any additional burden on a small entity applying for a grant than the entity would face in the absence of the final action. That is, the length of the applications those entities would submit in the absence of the final regulatory action and the time needed to prepare an application will likely be the same.

This final regulatory action will not have a significant economic impact on a small entity once it receives a grant because it would be able to meet the costs of compliance using the funds provided under this program.

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

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

Accessible Format: Individuals with disabilities can obtain this document in an accessible format ( e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT .

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

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

Purpose of Program: The Innovative Rehabilitation Training program is designed to develop (a) new types of training programs for rehabilitation personnel and to demonstrate the effectiveness of these new types of training programs for rehabilitation personnel in providing rehabilitation services to individuals with disabilities; (b) new and improved methods of training rehabilitation personnel so that there may be a more effective delivery of rehabilitation services to individuals with disabilities by designated State rehabilitation agencies and designated State rehabilitation units or other public or non-profit rehabilitation service agencies or organizations; and (c) new innovative training programs for VR professionals and paraprofessionals to have a 21st-century understanding of the evolving labor force and the needs of individuals with disabilities so they can more effectively provide VR services to individuals with disabilities.

Program Authority: 29 U.S.C. 709(c) and 772.

Applicable Program Regulations: 34 CFR parts 385 and 387.

We published a notice of proposed priorities (NPP) for this competition in the Federal Register on April 27, 2020 (85 FR 23266). The NPP contained background information and our reasons for proposing the particular priorities.

There are some differences between Priority 1 in the NPP and the final Priority 1 adopted here, as discussed in the Analysis of Comments and Changes section of this document. The differences between the proposed and final Priority 2 and Priority 3 are minor editorial and technical corrections. We are not establishing Proposed Priority 4 as a final priority through this regulatory action. Proposed Priority 4 was also proposed for Department-wide use in the Secretary's Administrative Priorities for Discretionary Grant Programs published in the Federal Register on November 29, 2019 (84 FR 65734). In order to ensure that the priority would be available for this competition, RSA proposed it in the NPP for this competition as well. The Secretary's Final Administrative Priorities for Discretionary Grant Programs were published in the Federal Register on March 9, 2020 (85 FR 13640). Therefore, there is no need to adopt the priority again in this document.

Public Comment: In response to our invitation in the NPP, 79 parties submitted comments on the proposed priorities.

We group major issues according to subject. We discuss substantive issues under each of the priorities to which they pertain. Generally, we do not address technical and other minor changes, or suggested changes the law does not authorize us to make. In addition, we do not address general comments that raise concerns not directly related to the proposed priorities.

Analysis of Comments and Changes: An analysis of the comments and of any changes in the priorities from the NPP follows.

Comment: Some commenters expressed concern that the proposed priority would merge CAP training with academic programs for VR counselors and, thus, fail to meet the training needs of CAP professionals, whose knowledge, competencies, and goals are substantially different from those of VR counselors. These commenters' concern is based on a statement in the NPP that indicated that the project must develop a new or substantially improved training program, including stand-alone modules to be incorporated into an existing academic degree program for educating VR counselors or other VR professionals and paraprofessionals.

Discussion: The Department agrees that the CAP professionals' competencies and goals are substantially different from those of VR counselors and that a combined academic program for both VR and CAP professionals would not meet the training needs of CAP professionals. This priority was not intended to create a merged academic program for both CAP and VR personnel. The CAP training program will continue to be a program geared to the professional needs and the required knowledge, skills, and competencies of CAP professionals. The established, stand-alone modules referenced in this document do not represent the entire CAP training program. The training program includes ad hoc training activities and ongoing technical assistance, in addition to the established, stand-alone modules. Some, but not all, of these stand-alone modules may be incorporated into existing VR academic degree programs, for example, to improve VR professionals' and paraprofessionals' understanding about the CAP program and the individuals the program serves. The majority of training activities are focused on the professional needs and required knowledge, skills, and competencies of CAP professionals. We are revising the priority to make this distinction clear.

Changes: The Department added examples of innovative CAP training delivery methods and knowledge translation techniques in Priority 1. We added language to Priority 1 to: (1) Incorporate multiple references to the program's focus on the training needs of CAP professionals as distinct from those of VR professionals; (2) specify that the training plan must be based on the identified training needs of CAP professionals to effectively carry out the Client Assistance Program responsibilities under section 112 of the Rehabilitation Act of 1973, as amended by the Workforce Innovation and Opportunity Act (WIOA) (Rehabilitation Act); and (3) provide context that the purpose of any stand-alone modules incorporated into VR academic degree or short-term training programs is to promote greater understanding among VR professionals and paraprofessionals and individuals studying to become VR professionals and paraprofessionals about the CAP program and the individuals that it serves.

Comment: Some commenters expressed concern that the proposed priority would fail to meet CAP professionals' training needs, because of its apparent focus on a fixed, academic curriculum rather than on a flexible training program that adapts to changing circumstances and emerging challenges in the field, as reported by the CAP professionals themselves. These commenters' concern is based on the statement in the NPP that the training program or modules must be developed by the end of the first year of the project period and piloted, refined, implemented, evaluated, and disseminated in years two, three, four, and five of the performance period. Implicit in the commenters' comments about a combined program for VR and CAP professionals is the concern that the Department has not clearly enough delineated the CAP priority.

Discussion: The Department agrees that the CAP training activities and materials must be responsive to changing circumstances and emerging challenges in the field. Conversely, CAP training also encompasses subjects ranging from fiscal management to compliance with the Rehabilitation Act, which are relatively stable and lend themselves to established training modules. In addition, the Department acknowledges that Proposed Priority 1 did not clearly describe what would constitute innovative training delivery and knowledge translation methods and techniques. Accordingly, the Department has determined that adding examples could support entities preparing applications and, in turn, strengthen the CAP Innovative Training program.

Changes: We added language to topic area one of Priority 1 to indicate that the CAP training program will consist of established training modules, ad hoc training activities developed in response to emerging circumstances or trends, and stand-alone training modules that can be incorporated into existing academic degree or short-term VR training programs. All training options will be subject to periodic review and updates. In addition, the Department added examples of innovative CAP training delivery methods and knowledge translation techniques in Priority 1.

Comment: Some commenters expressed concern that the proposed priority did not adequately reflect the CAP program requirements under section 112 of the Rehabilitation Act, including those related to individual and systems advocacy; the Americans with Disabilities Act of 1990; and coordination of CAP training and technical assistance activities with those for the Protection and Advocacy of Individual Rights (PAIR) program.

Discussion: The Department agrees that CAP responsibilities under the Rehabilitation Act are at the heart of the CAP training program. The need for continued training based on the CAP responsibilities under the Rehabilitation Act was implicit in the proposed priority. It is appropriate to emphasize this basis for the CAP training in the final priority.

Changes: We added language to topic area one of Priority 1 to establish as key focal points of CAP training the following items: (1) CAP professionals' knowledge, skills, and competencies regarding CAP program responsibilities under section 112 of the Rehabilitation Act and the VR service provision requirements in the Rehabilitation Act, particularly in support of the implementation of key provisions of WIOA; and (2) training and technical assistance activities, which must be coordinated with the entity providing training and technical assistance to the PAIR program, consistent with section 509 of the Rehabilitation Act.

Comment: Some commenters expressed concern that the proposed priorities did not address CAP professionals' need for ongoing technical assistance regarding legal or policy issues related to the Rehabilitation Act.

Discussion: The Department agrees that ongoing technical assistance on legal or policy issues related to the Rehabilitation Act is necessary for CAP professionals to apply knowledge gained through CAP training situations and circumstances that arise in their States.

Changes: We have added language to topic area one of Priority 1 to require the CAP training program to incorporate ongoing technical assistance related to topics addressed in the training modules and ad hoc training activities, including consultation and technical assistance on the options for applying existing law, regulations, and RSA-issued guidance to specific factual circumstances that arise in the course of CAP professionals' individual or systems advocacy efforts.

Comment: Some commenters expressed concern that the proposed priorities did not address CAP professionals' need for training on essential supporting skills, including advocacy and fiscal management.

Discussion: The Department agrees that strong advocacy and fiscal management skills are essential for CAP professionals to effectively fulfill their responsibilities under the Rehabilitation Act.

Changes: We have added language to topic area one of final Priority 1 to incorporate the following topics among the five required training subject areas: (1) Program and fiscal management training to promote the cost-effective use of Federal and non-Federal resources and (2) leadership, relationship-building, outreach, and individual and systems advocacy skills to promote effective interaction by CAP professionals with VR clients and applicants, State VR agencies, State Rehabilitation Councils, and other stakeholders.

Comment: None.

Discussion: In the background section of Priority 1, the NPP included examples of the expanded opportunities for employment and career advancement under WIOA that are to be addressed in the CAP Innovative Rehabilitation Training program. The Department considers it helpful to include these examples in the text of the final priority itself, so that they will be easily referenced by applicants.

Changes: The Department added to Priority 1 the following examples of the expanded opportunities for employment and career advancement to be addressed through the CAP Innovative Rehabilitation Training program: Pre-employment transition services, work-based learning, apprenticeships, customized employment, career pathways, and postsecondary credentials, including advanced degrees.

Comment: None.

Discussion: Priority 1 requires a process of continuous feedback and improvement under the CAP training program. The Department is adding that a process of continuous evaluation is also required and is providing examples in this requirement to clarify the priority's intent, increase the quality of applications, and, thereby, strengthen the CAP Innovative Rehabilitation Training program.

Changes: The Department clarified that continuous evaluation is also required and provided examples pertinent to the process of feedback, evaluation, and improvement in Priority 1.

Comment: One commenter supported the priority topic area.

Discussion: The Department appreciates the comment and the support for the priority topic area.

Changes: None.

Comment: Many commenters stated the importance of and need for vocational evaluation training programs in the VR field.

Discussion: The Department agrees with the commenters that vocational evaluation training is important. In FY 2019, the Department held a competition and funded a five-year award under the Innovative Rehabilitation Training program with a topic area called “career assessments for VR service recipients” to address the importance of vocational evaluation in identifying and providing VR services. The Department does not believe that it is necessary to hold a second competition in this topic area in such a short time. However, applicants under this field-initiated priority may propose a topic in vocational evaluation.

Changes: None.

Comment: One commenter recommended that the Department not eliminate applications from institutions of higher education that received grants under this program in the past and have the individuals with expertise and experience in delivering training programs.

Discussion: Priority 4 is designed to attract new applications, but does not preclude applications from eligible entities, including institutions of higher education that received a grant under this program. Eligible applicants who have received a grant in the past, have an active grant in another program, or have an active discretionary grant under this program, including through membership in a group application, may still submit an application and be considered for funding under other priorities.

It should be noted that Priority 4 was also proposed on November 29, 2019, in the Secretary's Administrative Priorities for Discretionary Grant Programs (84 FR 65734). In order to ensure that Priority 4 would be available for this competition, RSA proposed it in the NPP for this competition as well. The Secretary's Final Administrative Priorities for Discretionary Grant Programs were published in the Federal Register on March 9, 2020 (85 FR 13640). Therefore, there is no need to adopt the priority again in this document.

Changes: As a Department-wide priority for applications from new potential grantees has already been established, Proposed Priority 4 is not established through this regulatory action.

A project under this priority must increase the CAP professionals' knowledge about all requirements governing the CAP program and VR services under the Rehabilitation Act, while also increasing the capacity of CAP professionals to inform VR clients and applicants about the expanded opportunities available under the Workforce Innovation and Opportunity Act (WIOA) and provide the assistance and advocacy that the clients and applicants need. The project must enhance CAP professionals' knowledge, skills, and competencies in each of the following required subject areas: (a) CAP responsibilities in section 112 of the Rehabilitation Act and the VR service provision requirements in the Rehabilitation Act, particularly in support of the implementation of key provisions of WIOA; (b) expanded opportunities for quality employment under WIOA and the pertinent provisions regarding unified and combined State plans, common performance measures, and the workforce development system, including pre-employment transition services, work-based learning, apprenticeships, customized employment, career pathways, and postsecondary credentials, including advanced degrees; (c) opportunities and challenges for individuals with the most significant disabilities, students and youth with disabilities, and traditionally underserved populations, including those at the intersection of poverty and disability; (d) program and fiscal management training to promote the effective use of Federal and non-Federal resources under the Rehabilitation Act; and (e) leadership, relationship-building, outreach, and individual and systems advocacy skills to promote effective interaction by CAP professionals with VR clients and applicants, State VR agencies, State Rehabilitation Councils, and other stakeholders.

The project must develop a new or substantially improved training program meeting the professional needs and the required knowledge, skills, and competencies of CAP professionals. The CAP Training program will consist of established, stand-alone training modules as well as ad hoc training activities developed in response to emerging circumstances or trends. Stand-alone training modules may include selected topics that can be incorporated into existing academic degree or short-term VR training programs, for example, to promote greater understanding among VR professionals and paraprofessionals about the CAP program and the individuals that the program serves.

The CAP training program will also encompass ongoing technical assistance related to topics addressed in the training modules and ad hoc training activities, including consultation and technical assistance on options for applying existing law, regulations, and RSA-issued guidance to specific factual circumstances that arise in the course of CAP professionals' individual or systems advocacy efforts.

Training delivery methods must encompass: (a) State-of-the-art communication tools and platforms, including an interactive project website, distance learning and convening technologies, social media, and searchable databases; and (b) the latest knowledge translation methods and techniques, including engaging training recipients with different learning styles.

The project must develop an overall training plan specifying the major components ( e.g., training modules, ad hoc training activities, and ongoing technical assistance), informational resources ( e.g., curricula, materials, searchable databases, communities of practice), and modes of delivery ( e.g., in-person, virtual). The training plan must be based on the identified training needs of CAP professionals to effectively carry out the CAP responsibilities under title IV, section 112 of the Rehabilitation Act.

The training modules must be developed by the end of the first year of the project period and piloted, refined, implemented, evaluated, and disseminated in years two, three, four, and five of the project period. The ad hoc training activities and technical assistance will be developed on an ongoing basis in response to circumstances and emerging needs.

A process for continuous feedback, evaluation, and improvement to ensure that the training modules, the ad hoc training activities, and technical assistance are responsive to the needs of CAP professionals throughout years two, three, four, and five must be included. This process may include surveys, success stories, and analyses of data elements specified in the Annual CAP Performance Report (RSA-227).

The training and technical assistance must be of sufficient scope, intensity, and duration for CAP professionals to achieve increased skill, knowledge, and competence in the topic areas.

The applicant must review and incorporate the resources developed by the RSA VR Technical Assistance Centers and Demonstration and Training projects, available at the National Clearinghouse for Rehabilitation Training Materials, and other Federal and nongovernment sources, as appropriate, in developing its training and technical assistance curricula and delivery methods.

Training and technical assistance activities also must be coordinated with the entity providing training and technical assistance to the Protection and Advocacy of Individual Rights program, consistent with section 509 of the Rehabilitation Act.

A project in the area of assisting and supporting individuals with disabilities pursuing self-employment, business ownership, and telecommuting must develop a new or substantially improved and, to the extent possible, evidence-based  1 training program, including stand-alone modules and instructional materials to be incorporated into an existing academic degree program for educating VR counselors or other VR professionals and paraprofessionals or into short-term training for VR professionals, or both. The training program or modules must be developed by the end of the first year of the project period and piloted, refined, implemented, evaluated, and disseminated in years two, three, four, and five of the project period. A process for continuous feedback, evaluation, and improvement to ensure the training program or modules are responsive to the needs of the VR professionals and paraprofessionals throughout years two, three, four, and five must be included. This process may include evidence collected from surveys or success stories or other forms of evidence.

The training must be of sufficient scope, intensity, and duration for VR professionals, paraprofessionals, and individuals studying to become VR professionals and paraprofessionals to achieve increased skill, knowledge, and competence in the area of assisting and supporting individuals with disabilities pursuing self-employment, business ownership, and telecommuting.

A field-initiated project must clearly identify the topic to be addressed and provide sufficient evidence to demonstrate the need for the innovative rehabilitation training in a proposed new topic area or, in areas for which there is existing training, demonstrate that the existing training is not adequately meeting the needs of VR professionals, paraprofessionals, and individuals studying to become VR professionals and paraprofessionals.

The project must develop a new or substantially improved and, to the extent possible, evidence-based  2 training program, including stand-alone modules and instructional materials to be incorporated into an existing academic degree program for educating VR counselors or other VR professionals and paraprofessionals, or into short-term training for VR professionals, or both. The training program or modules must be developed by the end of the first year of the project period and piloted, refined, implemented, evaluated, and disseminated in years two, three, four, and five of the project period. A process for continuous feedback, evaluation, and improvement to ensure the training program or modules are responsive to the needs of the VR professionals and paraprofessionals throughout years two, three, four, and five must be included. This process may include evidence collected from surveys or success stories or other forms of evidence.

The training must be of sufficient scope, intensity, and duration for VR professionals, paraprofessionals, and individuals studying to become VR professionals and paraprofessionals to achieve increased skill, knowledge, and competence in the topic area.

Types of Priorities:

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

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

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

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

This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

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

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

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

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

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

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

Under Executive Order 13771, for each new rule that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866, and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2020, any new incremental costs associated with a new significant regulatory action must be fully offset by the elimination of existing costs through deregulatory actions. Because this regulatory action is not significant, the requirements of Executive Order 13771 do not apply.

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

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

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

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

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

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

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

We are issuing these final priorities only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

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

In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities. The costs would include the time and effort in responding to the priorities for entities that choose to respond.

In addition, we have considered the potential benefits of this regulatory action and have noted these benefits in the background section of the NPP. The benefits include supporting the work of the State VR agencies in the Client Assistance Program (84.263D); assisting and supporting individuals with disabilities pursuing self-employment, business ownership, and telecommuting (84.263E); promoting field-initiated projects related to VR (84.263F); and tailoring the activities conducted under the priorities to reflect the greatest needs in the field.

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

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

Accessible Format: Individuals with disabilities can obtain this document in an accessible format ( e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT .

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

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

On December 16, 2014, Congress passed the Further Consolidated Appropriations Act, 2015 (2015 Appropriations Act), Public Law 113-235. As noted in the explanatory statement (2015 Appropriations Act Explanatory Statement) submitted by the chairman of the Committee on Appropriations for the U.S. House of Representatives regarding the 2015 Appropriations Act, the appropriations for the Department included $2,500,000 for a National Center for Information and Technical Support for Postsecondary Students with Disabilities (the Center), as authorized by section 777(a) of the of the Higher Education Act of 1965, as amended (HEA). See 160 Cong. Rec. H9307-01, H9841 (Dec. 11, 2014). Section 4 of the 2015 Appropriations Act provides that the 2015 Appropriations Act Explanatory Statement shall have the same effect with respect to the allocation of funds as if it were a joint explanatory statement of a committee of conference.

On June 19, 2015, the Department of Education (Department) published in the Federal Register (80 FR 35323) a notice inviting applications (2015 NIA) for projects for fiscal year (FY) 2015 under the National Center for Information and Technical Support for Postsecondary Students with Disabilities (NCITSPSD) competitive grant program. The purpose of the Center is to provide technical assistance and information on best and promising practices for students with disabilities as they transition to or attend postsecondary education.

In September 2015, the Department made one 48-month award to the Association on Higher Education and Disability for their project entitled the “National Center for College Students with Disabilities.”

The Department granted the Center a no-cost extension in September 2019, extending the current project period for this grantee through September 25, 2020.

On December 20, 2019, Congress passed the Further Consolidated Appropriations Act, 2020 (2020 Appropriations Act), Public Law 116-94. As noted in the explanatory statement (2020 Appropriations Act Explanatory Statement) submitted by the chairwoman of the Committee on Appropriations for the U.S. House of Representatives regarding the 2020 Consolidated Appropriations Act, the appropriations for the Department included $500,000 for the operation of the Center authorized under section 777(a) of the HEA. See 165 Cong. Rec. H11061-01, H11083 (Dec. 17, 2019). Section 4 of the 2020 Appropriations Act provides that the 2020 Appropriations Act Explanatory Statement shall have the same effect with respect to the allocation of funds as if it were a joint explanatory statement of a committee of conference.

The Department is waiving the requirements in 34 CFR 75.250, which prohibit project periods exceeding five years, and the requirements in 34 CFR 75.261(c)(2), which limit the extension of a project period if the extension involves the obligation of additional Federal funds. The waivers and extension would enable the project under CFDA number 84.116D to receive funding for an additional one year period, not to exceed September 25, 2021.

We are waiving these requirements to provide the necessary time and funding for the current grantee to complete outstanding project activities, as outlined in its 2015 grant. Completion of these activities, including a required biannual report to Congress, is necessary to fulfill the purpose of the program as outlined in the HEA. With the awarding of a supplement, the Center will be able to continue to provide technical assistance and information on best and promising practices for students with disabilities as they transition to or attend postsecondary education.

Additionally, the $500,000 amount that was appropriated under the 2020 Appropriations Act is only 20 percent of the amount provided by Congress for the program in FY 2015 and is insufficient to support a new, multiyear grant project period. We do not believe that it is the intent of Congress that the Department run a new grant program competition for the one year of funding appropriated by the 2020 Appropriations Act, as opposed to providing a supplement to the current grantee, because doing so would increase the burden on the potential applicants. Additionally, the comparatively nominal amount of funding that was appropriated for FY 2020 would create a great hardship for any newly funded applicant needing to bear responsibility for both start-up and operational costs, as well as other statutory requirements.

Under these waivers and extension of the project period—

(1) The current grantee is authorized to receive one continuation award.

(2) The Department will not announce a new competition or make new awards under the NCITSPSD competitive grant program in FY 2020.

(3) During the extension period, any activities carried out must be consistent with, or be a logical extension of, the scope, goals, and objectives of the grantee's approved application from the 2015 NCITSPSD competition.

(4) The grantee must also continue to comply with the requirements established in the program regulations and the 2015 NIA.

The waivers of 34 CFR 75.250(a) and 75.261(c)(2) do not affect the applicability of the requirements in 34 CFR 75.253 (continuation of a multiyear project after the first budget period) to the current grantee receiving a continuation award as a result of the waivers.

In addition, these waivers do not exempt the current grantee from the account-closing provisions in 31 U.S.C. 1552(a), nor do they extend the availability of funds previously awarded to the current grantee.

Under the Administrative Procedure Act (APA) (5 U.S.C. 553 et seq. ) the Department generally offers interested parties the opportunity to comment on proposed regulations. However, the APA provides that an agency is not required to conduct notice and comment rulemaking when the agency for good cause finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(B).

As the Court found in Metzenbaum v. Federal Energy Regulatory Commission, 675 F.2d 1282, 1291 (D.C. Cir. 1982), the opportunity for notice and comment where there is no discretion is “unnecessary.” Id. (quoting 5 U.S.C. 553(b)(B)). The Court further stated that notice and comment for such a nondiscretionary action “might even have been `contrary to the public interest,' given the expense that would have been involved in a futile gesture.” Id. See also Lake Carriers' Ass'n v. E.P.A., 652 F.3d 1, 10 (D.C. Cir. 2011) (notice and comment rulemaking “would have served no purpose” where agency lacked the authority to amend or reject the conditions at issue). As this waiver and extension fulfills our understanding of congressional intent for the $500,000 appropriated in FY 2020 for the NCITSPSD grant program to go to the current grantee to fulfill the program's objectives during this fiscal year, the Department finds that there is similarly good cause to waive notice and comment rulemaking. The goals of the NCITSPSD grant program cannot be met by other potential applicants with the small amount of funding available for the NCITSPSD program in FY 2020.

The APA also requires that a substantive rule must be published at least 30 days before its effective date, except as otherwise provided for good cause (5 U.S.C. 553(d)(3)). In addition to the reasons stated above, a delayed effective date would be contrary to the public interest because it might prevent the waivers and extension from taking effect prior to the expiration of the current project period. Therefore, the Secretary waives the delayed effective date provision for good cause.

The Regulatory Flexibility Act does not apply to this rulemaking because there is good cause to waive notice and comment under 5 U.S.C. 553.

This notice of waivers and extension of project period does not contain any information collection requirements.

This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. This document provides early notification of our specific plans and actions for this program.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format ( e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT .

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On June 2, 2010, EPA revised the primary SO 2 NAAQS, establishing a new 1-hour SO 2 standard of 75 parts per billion (ppb). See 75 FR 35520 (June 22, 2010). 1 Under EPA's regulations at 40 CFR part 50, the 2010 1-hour SO 2 NAAQS is met at a monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour average concentrations is less than or equal to 75 ppb (based on the rounding convention in 40 CFR part 50, appendix T). See 40 CFR 50.17. Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement. A year meets data completeness requirements when all four quarters are complete, and a quarter is complete when at least 75 percent of the sampling days for each quarter have complete data. A sampling day has complete data if 75 percent of the hourly concentration values, including state-flagged data affected by exceptional events which have been approved for exclusion by the Administrator, are reported. 2

Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the NAAQS. EPA designated the Jefferson County Area as nonattainment for the 2010 1-hour SO 2 NAAQS, effective on October 4, 2013, based on 2009-2011 complete, quality assured, and certified ambient air quality data. See 78 FR 47191 (August 5, 2013). Under the CAA, nonattainment areas must attain the NAAQS as expeditiously as practicable but not later than five years after the October 4, 2013, effective date of the designation. See CAA section 192(a). Therefore, the Jefferson County Area's applicable attainment date was no later than October 4, 2018.

EPA's 2010 SO 2 nonattainment designation for the Area triggered an obligation for Kentucky to develop a nonattainment SIP revision addressing certain requirements under title I, part D, subpart 1 (hereinafter “Subpart 1”), and to submit that SIP revision to EPA in accordance with the deadlines in title I, part D, subpart 5 (hereinafter “Subpart 5”). Subpart 1 contains the general requirements for nonattainment areas for criteria pollutants, including requirements to develop a SIP that provides for the implementation of reasonably available control measures, requires reasonable further progress, includes base-year and attainment-year emissions inventories, includes a SIP-approved nonattainment new source review (NNSR) permitting program, requires enforceable emission limitations and other such control measures, and provides for the implementation of contingency measures. This SIP revision was due within 18 months following the October 4, 2013, effective date of designation ( i.e., April 4, 2015). See CAA section 191(a). Kentucky submitted a nonattainment SIP revision to EPA on June 23, 2017. 3

On June 28, 2019 (84 FR 30920), EPA approved Kentucky's June 23, 2017, SO 2 nonattainment SIP revision. EPA determined that the nonattainment SIP revision met the applicable requirements of sections 110, 172, 191, and 192 of the CAA and nonattainment regulatory requirements at 40 CFR part 51 (including Kentucky's attainment modeling demonstration for the Jefferson County Area). The attainment modeling demonstration inputs included SO 2 emission limits and compliance parameters (monitoring, recordkeeping, and reporting) at Mill Creek established in the facility's title V permit 145-97-TV(R3) at Plant-wide Specific conditions S1-Standards, S2-Monitoring and Record Keeping, and S3-Reporting. EPA incorporated these limits and parameters into the SIP as part of its final action on Kentucky's nonattainment SIP revision, thus making them permanent and enforceable controls.

On December 9, 2019, Kentucky submitted a request to EPA for redesignation of the Jefferson County Area to attainment for the 2010 1-hour SO 2 NAAQS and a related SIP revision containing a maintenance plan for the Area. In a notice of proposed rulemaking (NPRM) published on May 15, 2020 (85 FR 29381), EPA proposed to determine that the Area attained the 2010 1-hour SO 2 NAAQS; to approve the maintenance plan for the Area as meeting the maintenance plan requirements of CAA section 175A and to incorporate it into the SIP; and to approve Kentucky's request for redesignation of the Area from nonattainment to attainment for the 2010 1-hour SO 2 NAAQS as meeting the redesignation requirements of CAA section 107(d)(3)(E). Comments on the May 15, 2020, NPRM were due on or before June 15, 2020. No comments were received. The details of Kentucky's submittal and the rationale for EPA's actions are further explained in the May 15, 2020, NPRM, including the modeled attainment demonstration and quality-assured, complete, and certified 2016-2018 ambient air monitoring data used to determine attainment with the 2010 1-hour SO 2 NAAQS. Recent quality-assured, complete, and certified 2017-2019 ambient air monitoring data at 15 ppb confirm that this area is still demonstrating attainment of the 2010 1-hour SO 2 NAAQS.

Approval of the redesignation request changes the legal designation of the Jefferson County Area, found at 40 CFR 81.318, from nonattainment to attainment for the 2010 1-hour SO 2 NAAQS. Approval of Kentucky's associated SIP revision also incorporates a maintenance plan into the SIP for maintaining the 2010 1-hour SO 2 NAAQS in the Jefferson County Area as described in the May 15, 2020, NPRM. The maintenance plan also establishes contingency measures to remedy any future violations of the 2010 1-hour SO 2 NAAQS and procedures for evaluation of potential violations.

EPA is finalizing the redesignation of the Jefferson County Area to attainment for the 2010 1-hour SO 2 NAAQS and finalizing the approval of the CAA section 175A maintenance plan for the 2010 1-hour SO 2 NAAQS. The Area is required to implement the CAA section 175A maintenance plan for the 2010 1-hour SO 2 NAAQS that is being approved in this action and the prevention of significant deterioration program for the 2010 1-hour SO 2 NAAQS. The approved maintenance plan can only be revised if the revision meets the requirements of CAA section 110(l) and, if applicable, CAA section 193.

EPA is taking final actions regarding Kentucky's request to redesignate the Jefferson County Area to attainment for the 2010 1-hour SO 2 NAAQS and associated SIP revision. EPA is determining that the Jefferson County Area has attained the 2010 1-hour SO 2 NAAQS. EPA is also approving the SIP revision containing the Commonwealth's plan for maintaining attainment of the 2010 1-hour SO 2 standard and incorporating the maintenance plan into the SIP. Finally, EPA is approving Kentucky's redesignation request and redesignating the Jefferson County Area to attainment for the 2010 1-hour SO 2 NAAQS. As mentioned above, approval of the redesignation request changes the official designation of the Jefferson County Area from nonattainment to attainment, as found in 40 CFR part 81.

Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, these actions merely approve state law as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law. For these reasons, these actions:

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

• Are not Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory actions because these actions are not significant regulatory actions under Executive Order 12866;

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

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

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

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

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

• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

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

• Will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).

These actions are not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 5, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

Therefore, for the reasons stated in the preamble, EPA amends 40 CFR parts 52 and 81 as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register .

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. FEMA has determined that the community suspension(s) included in this rule is a non-discretionary action and therefore the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) does not apply.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

Rail shippers may challenge the reasonableness of a rail carrier's common carrier rate by filing a formal complaint with the Board. See 49 U.S.C. 10701(d); 49 U.S.C. 10702; 49 U.S.C. 10704(b); 49 CFR pt. 1111. However, before the Board is permitted to determine if the rate is reasonable, it must first find that the rail carrier has market dominance over the transportation to which the rate applies. 49 U.S.C. 10707(b), (c). Market dominance is defined as “an absence of effective competition from other rail carriers or modes of transportation for the transportation to which a rate applies.” 49 U.S.C. 10707(a). It is established Board precedent that the burden is on the complainant to demonstrate market dominance. See, e.g., Total Petrochems. & Ref. USA, Inc. v. CSX Transp., Inc., NOR 42121, slip op. at 28 (STB served May 31, 2013) (with Board Member Begeman dissenting on other matters) updated (STB served Aug. 19, 2013.)

The agency has previously recognized the Congressional intent expressed in the market dominance statute and its legislative history, which “envision[s] the market dominance determination simply as a practical threshold jurisdictional determination to be made without lengthy litigation or administrative delay.” Westmoreland Coal Sales Co. v. Denver & Rio Grande W. R.R., 5 I.C.C.2d 751, 754 (1989) (discussing 49 U.S.C. 10709, the predecessor of the current section 10707). In practice, however, the market dominance inquiry has often become a costly and time-consuming undertaking, resulting in a significant burden on rate case litigants. In smaller rate cases, in particular, the expense associated with the market dominance inquiry may be disproportionate to the remedy sought.

Accordingly, in a notice of proposed rulemaking issued on September 12, 2019, the Board proposed a streamlined market dominance inquiry. Market Dominance Streamlined Approach ( NPRM ), EP 756 (STB served Sept. 12, 2019). 1 Specifically, the Board proposed a set of factors that, if they could be demonstrated by the complainant, would establish a prima facie showing of market dominance.

The Board received numerous comments on the NPRM . 2 After considering the comments, the Board will adopt its proposal with the modifications discussed below.

In January 2018, the Board established its Rate Reform Task Force (RRTF), with the objectives of developing recommendations to reform and streamline the Board's rate review processes for large cases and determining how to best provide a rate review process for smaller cases. After holding informal meetings throughout 2018, the RRTF issued a report on April 25, 2019 (RRTF Report), which recommended, among other things, that the Board develop “a standard for pleading market dominance that will reduce the cost and time of bringing a rate case.” RRTF Report 53. The RRTF concluded that an effort to streamline the market dominance inquiry was a necessary part of making rate relief available for smaller rate disputes. Id. at 52. After considering the RRTF Report and broader market dominance issues, see NPRM, EP 756, slip op. at 3-6, the Board issued the NPRM proposing a streamlined approach for pleading market dominance in rate reasonableness proceedings.

The Board's market dominance inquiry comprises two components: A quantitative threshold and a qualitative analysis. The statute establishes a conclusive presumption that a railroad does not have market dominance if the rate charged produces revenues that are less than 180% of its variable costs  3 of providing the service. See 49 U.S.C. 10707(d)(1)(A). However, a finding by the Board that a movement's R/VC ratio is 180% or greater does not establish a presumption that the rail carrier providing the transportation has market dominance over the movement. See 49 U.S.C. 10707(d)(2)(A). Accordingly, if the quantitative 180% R/VC threshold is met, the Board moves to the second component, a qualitative analysis of market dominance. In this analysis, the Board determines whether there are any feasible transportation alternatives sufficient to constrain the railroad's rates for the traffic to which the challenged rates apply (the issue traffic). See, e.g., M&G Polymers 2012, NOR 42123, slip op. at 2, 11-18; Consumers Energy Co. v. CSX Transp., Inc., NOR 42142, slip op. at 287-98 (STB served Jan. 11, 2018).

As explained in the NPRM, EP 756, slip op. at 5-6, it is well established that the Board has the authority to review and modify its rate reasonableness methodologies and processes—including its market dominance inquiry—to ensure that they remain accessible to the complainants that are entitled to use them. 4 The NPRM described the Board's underlying reasons for its proposal: The time and cost associated with an evidentiary process that “requires the complainant to prove a negative proposition on opening—that intermodal and intramodal competition are not effective constraints on rail rates”; the fact that such expense may be particularly out of balance with the remedy being sought in smaller rate cases; and that the time and cost of the market dominance inquiry could itself be a barrier to rate relief. NPRM, EP 756, slip op. at 3-4. The NPRM also described how its proposed streamlined market dominance approach would further the rail transportation policy (RTP) at 49 U.S.C. 10101 and would be consistent with clear Congressional directives in both that statutory provision and also the Surface Transportation Board Reauthorization Act of 2015, Public Law 114-110, 129 Stat. 2228. NPRM, EP 756, slip op. at 4-5.

With respect to the proposed streamlined market dominance approach, the NPRM proposed factors that, if demonstrated by the complainant, would constitute a prima facie showing of market dominance. The Board reasoned that the presence of these factors would constitute “significant evidence about the status of effective competition,” both intramodal and intermodal. NPRM, EP 756, slip op. at 7. However, the Board also explained that, under the proposed streamlined approach, rail carriers would still be “permitted to refute any of the prima facie factors of the complainant's case, or otherwise show that effective competition exists for the traffic at issue.” Id. at 12. The Board concluded that the proposed approach would “have the benefit of reducing the complexity of market dominance presentations for many complainants without limiting railroads' ability to mount a thorough defense.” Id.

The prima facie factors proposed in the NPRM are as follows:

• The movement has an R/VC ratio of 180% or greater;

• The movement would exceed 500 highway miles between origin and destination;

• There is no intramodal competition from other railroads;

• There is no barge competition;

• The complainant has used truck for 10% or fewer of its movements subject to the rate at issue over a five-year period; and

• The complainant has no practical build-out alternative due to physical, regulatory, financial, or other issues (or combination of issues).

Id. at 6-7. For the factors pertaining to intramodal competition, barge competition, and build-out alternatives, the NPRM proposed that complainants could submit a verified statement from an appropriate official attesting that the complainant does not have such competitive options, or could otherwise demonstrate that those factors are met. Id. at 8, 10-11.

To further streamline the market dominance inquiry, the NPRM proposed that complainants would be allowed to request an on-the-record, telephonic hearing with an Administrative Law Judge (ALJ) at the rebuttal phase of the rate proceeding. Id. at 12. The purpose of the hearing would be to allow the parties to clarify their market dominance positions under oath, and to build upon issues presented by the parties through critical and exacting questioning. Id. The NPRM also proposed a 50-page limit (inclusive of exhibits and verified statements) on the parties' replies and rebuttals. Id.

The Board did not propose to limit the types of rate proceedings in which complainants could utilize the streamlined market dominance approach. 5 Under the proposal, complainants would have the option to utilize the proposed streamlined market dominance approach or the non-streamlined market dominance approach. The Board stated that “[i]f a complainant determines that it is not able to demonstrate one of the required factors, it would not choose this streamlined approach at the beginning of the case, but would instead need to choose a non-streamlined market dominance presentation with additional detailed information about its transportation options.” NPRM, EP 756, slip op. at 11.

After considering the comments, the Board will adopt the rule proposed in the NPRM, with minor modifications. Below, the Board addresses the comments and discusses the modifications being adopted in the final rule. In Part I, the Board addresses general comments on the purpose of the rule. In Part II, the Board addresses comments regarding the prima facie factors proposed in the NPRM, proposals from commenters for other factors, and other suggested approaches to streamline the market dominance inquiry. In Part III, the Board addresses procedural issues. Lastly, in Part IV, the Board addresses other miscellaneous arguments. The text of the final rule is below.

None of the commenters challenge the Board's authority to adopt a streamlined market dominance approach based on a set of prima facie factors, though some question whether certain aspects of the proposal are consistent with particular statutory provisions and the RTP.

Some rail interests generally support streamlining the market dominance inquiry, but suggest revisions to the proposal. (AAR Comment 1; CSXT Comment 2; NSR Comment 1 (adopting AAR's comment); CN Comment 1 (stating support for AAR's comment).) Other rail commenters do not oppose a streamlined market dominance approach but argue that its use should be limited to only smaller cases and also suggest revisions. (UP Comment 1-2; BNSF Comment 2.)

In addition, UP and BNSF question whether such an approach is beneficial or necessary. UP expresses doubt that the streamlined approach would prove worthwhile or attractive to shippers, as the Board anticipated in the NPRM that only one additional complaint would be filed annually based on adoption of the streamlined approach. (UP Comment 3.) UP states that a streamlined approach would not be useful because, when market dominance is clear, railroads do not contest market dominance, and when market dominance is a close case, shippers would not be able to use the streamlined approach because there would be some evidence of effective competition. ( Id. at 3-4.) Nonetheless, UP recognizes that the Board's proposal could provide shippers in small cases with inexpensive guidance on the likely outcome of a market dominance inquiry. ( Id. at 4.)

BNSF comments that competition is already pervasive in rail markets and discusses how it competes with multi-modal movements. (BNSF Comment 2-8; BNSF Reply, V.S. Miller 2-12.) BNSF also argues that product and geographic competition, even if not considered by the Board, are pervasive in rail markets and that “[g]eographic competition is particularly strong in agricultural markets,” because farmers must truck their product to elevators, which gives farmers a range of transportation options, and because shippers can choose to ship product to different export markets. (BNSF Comment 6-7; BNSF Reply, V.S. Miller 6-9.) BNSF states that the Board should avoid interfering with these market-based rates, as it could distort the markets of BNSF's shippers and affect BNSF's capital investments which, it argues, would adversely impact “all shippers that rely on efficient rail transportation service.” (BNSF Reply, V.S. Miller 12-14.)

Shippers and shipper groups agree with the NPRM' s conclusion that the streamlined market dominance approach would reduce burdens on parties, expedite proceedings, and make the Board's rate relief procedures more accessible. ( See, e.g., AFPM Comment 1, 3; Coalition Associations Comment 4-5; SMA Comment 10; MillerCoors Comment 12; Indorama Comment 10; IMA-NA Comment 10; Olin Comment 4-5.) The Coalition Associations dispute UP's and BNSF's assertions that streamlining would be generally unnecessary. (Coalition Associations Reply 4.) They claim that, even in cases where market dominance is clear, railroads' concessions of market dominance are the exception, not the rule. ( Id. at 8.) They point to Sunbelt Chlor Alkali Partnership v. Norfolk Southern Railway, Docket No. NOR 42130, as an example, noting that there the railroad conceded market dominance only after the complainant filed extensive evidence, despite the shipper having submitted a request for admission on market dominance before evidentiary filings were due. (Coalition Associations Reply 8-9; see also Olin Comment 4-5 (explaining that the complainant in the Sunbelt proceeding included dozens of pages and statements from three witnesses addressing why theoretical alternatives would not work on opening, only for the railroad to concede market dominance in a single sentence on reply).) The Coalition Associations also assert that BNSF's argument that competition is pervasive in the transportation market, even if true, does not diminish the need for a streamlined approach in those instances where effective competition is absent. (Coalition Associations Reply 14.)

None of the criticisms described above warrant abandonment of the proposal. Although BNSF and UP contend that the streamlined market dominance approach will not have much benefit and is not necessary, they also state that they do not oppose a streamlined market dominance approach (at least in smaller cases). Further, as explained in the NPRM, EP 756, slip op. at 3-4, the market dominance inquiry for rate reasonableness cases is a costly and time-consuming undertaking and can limit access to the Board's processes, particularly affecting access in smaller cases. Numerous shippers agree that streamlining the market dominance inquiry would make the rate reasonableness review processes more accessible to shippers by reducing the litigation burden in some cases. ( See AFPM Comment 1-2; Coalition Associations Comment 2-3; IMA-NA Comment 1; Indorama Comment 1; NGFA Comment 2; MillerCoors Comment 1; Olin Comment 1-2; PCA Comment 1; SMA Comment 1.)

UP claims that railroads do not contest market dominance when market dominance is clear, but, as the Coalition Associations and Olin note, and as the experience in Sunbelt shows, a complainant may nevertheless bear significant cost and time burdens preparing and submitting extensive evidence before a railroad concedes market dominance. A streamlined market dominance approach would prove beneficial, including in cases where a railroad ultimately concedes market dominance, by easing the cost and time burdens complainants must bear for the preparation and submission of evidentiary pleadings. As for BNSF's assertion that competition is already pervasive in the marketplace due, in part, to product and geographic competition, 6 there is no dispute that some shippers lack effective competition. The streamlined approach adopted here should make the Board's rate reasonableness review processes more accessible to shippers when market dominance is more readily apparent. 7

The Board also finds unpersuasive BNSF's argument that the streamlined approach could interfere with market-based rates. The final rule does not create a new right or remedy that did not previously exist but simply offers a streamlined way to demonstrate market dominance. The final rule does not impose a new limit on the type of relevant evidence a rail carrier can submit on reply to attempt to rebut a complainant's market dominance case. Further, the rule does not modify the Board's rate reasonableness methodologies. Accordingly, the Board does not expect the final rule to change the outcome that would have been reached under the non-streamlined market dominance approach. Rather, it expects the rule to decrease the burden in potentially meritorious cases, including the burden concerning a demonstration of market dominance that may otherwise unnecessarily limit the accessibility of the Board's rate review processes and therefore dissuade shippers from filing cases. As such, there is no basis for the suggestion that the streamlined approach would result in shippers obtaining rate relief that would inappropriately interfere with market-based rates.

For these reasons, the Board finds that a streamlined approach would further the RTP goal of maintaining reasonable rates where there is an absence of effective competition, see section 10101(6), by reducing the burden on complainants in certain rate cases. This in turn will make the agency's rate reasonableness review processes more accessible, particularly in smaller cases. Moreover, the streamlined approach would continue to ensure that the Board determines the reasonableness of rates only where there is actual market dominance, consistent with section 10101(1) (allowing, to the maximum extent possible, competition and the demand for services to establish reasonable transportation rates) and section 10101(5) (fostering sound economic conditions in transportation and ensuring effective competition and coordination between rail carriers and other modes).

As discussed below, the Board will adopt the prima facie factors largely as proposed in the NPRM. The Board will add language to the regulations to clarify the term “appropriate official,” to clarify the method of measuring the level of truck movements over a five-year period, and to include a factor to account for intermodal competition from pipelines.

The Board proposed a prima facie factor that the movement has an R/VC ratio of 180% or greater. NPRM, EP 756, slip op. at 7. The Board proposed this factor because it is a statutory requirement, 49 U.S.C. 10707(d), and therefore must be established in any market dominance inquiry.

The Board received few comments pertaining to this proposed factor. The TRB Professors argue, as they did in the TRB Report, that the Board's Uniform Railroad Costing System (URCS)—which is used to calculate the variable costs for the R/VC ratio  8 —is flawed and, as a result, the R/VC ratios are unreliable. However, they acknowledge that, because the R/VC calculation is a statutory requirement that can only be eliminated through legislative change, the Board is required to use an R/VC ratio in the market dominance inquiry. (TRB Professors Comment 2-3.) NGFA states that it shares the criticisms of URCS and accordingly urges the Board to continue its efforts to improve URCS and/or develop a new and improved means to calculate the statutorily required R/VC ratio. (NGFA Comment 3.)

Use of the R/VC of 180% or greater is a statutory requirement, and the Board will adopt this aspect of the proposal. 9

The Board also proposed a prima facie factor that the movement exceed 500 highway miles between origin and destination. NPRM, EP 756, slip op. at 7. The Board reasoned that movements greater than 500 miles are not likely to have competitive trucking options, as this is approximately the length of haul that a trucking carrier could complete in one day. Id. (citing Review of Commodity, Boxcar, & TOFC/COFC Exemptions, EP 704 (Sub-No. 1), slip op. at 7 n.12 (STB served Mar. 23, 2016)). Therefore, the Board proposed the 500-mile threshold as indicative of a movement that is more likely to be served by a market dominant rail carrier. The Board also invited comment on whether the mileage threshold could be varied by commodity groups and asked parties to provide detailed quantitative and qualitative information in support of any alternative mileage threshold. Id. at 8. The Board received comments relating to the appropriate mileage threshold, varying the threshold by commodity, and application to multi-rail carrier and transload shipments, which are addressed in turn below.

Several shipper interests contend that the mileage threshold should be lowered to 250 miles, arguing that this is the maximum distance that a truck driver could travel in a single day, given the need for a return trip and hours-of-service regulations mandated by the Federal Motor Carrier Safety Administration (FMCSA). (Coalition Associations Comment 12; ISRI Comment 7-8; Indorama Comment 11-12; see also Olin Comment 7; NGFA Reply 6; AFPM Comment 5.) Indorama states that, based on its experience, truck is unable to compete with rail at distances over 250 miles, in part because a railcar can carry four times the amount that a truck can carry and because per-mile trucking costs are increasing. (Indorama Comment 11-12.) The Coalition Associations and ISRI both note that they tried to collect data on an appropriate mileage threshold but that it proved too difficult and time-consuming for most of their members. (Coalition Associations Comment 9 n.9; ISRI Comment 9-10.) The Coalition Associations argue that in past cases the Board has found that trucks are competitive with rail at a range of 150 to 500 miles. (Coalition Associations Comment 12-13 & n.15.)

Rail interests take varying positions regarding the 500-mile threshold. AAR asserts that the threshold is conservative and that AAR “generally supports the Board's determination that requiring a distance greater than 500 highway-miles strikes the right balance in today's competitive environment.” (AAR Comment 8-9.) AAR also notes that the distances traveled by trucks in a single day are increasing, due to companies experimenting with platooning, remote operation, and autonomous trucks, as well as the trucking industry's efforts to increase truck size and weight limits. Accordingly, AAR suggests that the mileage threshold may need to be increased in the future to accommodate the increased truck competition at greater distances. ( Id. at 9.)

BNSF argues that the Board should not consider any threshold less than 500 miles for any commodity, but also states that it sees “strong truck competition for movements that significantly exceed 500 miles, which is consistent with reported statistics.” (BNSF Comment 13.) Accordingly, BNSF suggests 750 miles as a more appropriate threshold, citing to United States Department of Transportation (USDOT) statistics that it states show that trucks carry the largest share of goods shipped in the U.S. and remain the primary mode for shipments moved less than 750 miles. ( Id. )

UP and CN also argue that the threshold should be higher, and that the Board's proposed 500-mile figure lacks data to support its use as a threshold for a prima facie determination. (UP Comment 12; CN Comment 2.) UP suggests that “the Board seek empirical evidence and set higher hurdles, so the presumptions better assist shippers in identifying situations in which market dominance is not likely to be contested.” (UP Comment 12 (also noting that the Board has found that trucks provide effective competition for movements longer than 500 miles.)) CN submitted a verified statement from Dr. Michael Tretheway, Chief Economist and Executive Vice President of InterVISTAS, relying on data from the U.S. Census Bureau's Commodity Flow Survey (CFS), which it states “shows that using 500 miles as a cutoff is too conservative” and that “rail and truck compete on equal terms” in the 500-749 mileage band. (CN Comment 4, V.S. Tretheway 1, 3.) In its reply comment, CN submitted an updated verified statement from Dr. Tretheway, analyzing the same data but organized by commodity groups and distance bands. Based on this data, CN proposes either switching to an across-the-board 750-mile threshold, or using commodity-group-specific thresholds, with the thresholds being set at the distance at which the tonnage shipped by truck exceeds or is comparable to the tonnage shipped by rail. (CN Reply 4.)  10

The Coalition Associations respond that “[s]etting the highway-distance threshold high enough to exclude nearly every conceivable movement where a railroad may not have market dominance is neither desirable nor necessary,” given that railroads would still have an opportunity to present evidence showing that there is effective competition. (Coalition Associations Reply 31.) In response to AAR's argument that daily truck distances are increasing due to technological advances, the Coalition Associations and ISRI state that these technologies do not impact driving speed or time, which are the two factors that affect driving distance, and commenters state, in any event, these changes are not expected to be implemented anytime soon. (Coalition Associations Reply 30-31; ISRI Reply 2-3.) In addition, the Coalition Associations and ISRI argue that both CN's analysis of the CFS data and BNSF's analysis of the USDOT data are flawed. The Coalition Associations and ISRI note that the CFS data is based on market share, but the Interstate Commerce Commission (ICC) long ago recognized that market share is a poor measure of market dominance because of the difficulty in calculating the appropriate market and because the competitive implications of market share vary from case to case. (Coalition Associations Reply 29 (citing Mkt. Dominance Determinations, 365 I.C.C. 118, 123 (1981)); ISRI Reply 2 (same).) The Coalition Associations and ISRI also argue that the USDOT data shows that the average distance for truck shipments is 227 miles, compared to 805 miles for rail shipments, thus undermining BNSF's assertion that 500 miles is too low a threshold. (Coalition Associations Reply 29; see also ISRI Reply 2.)

The comments have not presented sufficient evidence for either modifying or eliminating the 500-mile threshold at this time. Any threshold used for this purpose should strike a proper balance. On the one the hand, the threshold should not be too low, thereby allowing shippers that are not reasonably likely to lack effective competition to use the streamlined approach. On the other hand, the threshold should not be too high, thereby preventing shippers that are reasonably likely to lack effective competition from using the approach. Moreover, it bears noting that the mileage threshold is just one of two prima facie factors that would be used to evaluate trucking competition. The Board considered this factor in tandem with the trucking volume threshold factor (discussed in more detail in subpart E, “10% or Fewer of Recent Movements by Truck,” below) and intends that the mileage and volume thresholds together will identify shippers that are reasonably likely to lack trucking options that provide effective competition.

The Board concludes that using an estimate of the maximum distance that a truck can typically travel in a single day is a reasonable measure for a single mileage threshold, applicable to a wide range of shippers, and that 500 miles continues to be a reasonable calculation of this distance. Several shippers and shipper groups argue that the distance should be cut in half to 250 miles to account for FMCSA regulations and a return trip. However, in basing the threshold on trucking distance per day, it is more appropriate to use the maximum distance that a truck could travel. While 250 miles may be the practical limit for some shippers because of the need for return trips, not all shippers move traffic back-and-forth between a single origin and destination and would not be so constrained. Because the streamlined approach is intended to be used in situations in which the lack of alternative transportation options is clear on its face, the Board finds it is better to set the threshold around the outermost point of a one-day trucking shipment to ensure that only those shippers that are more likely to be found to lack effective competition can utilize it. In addition, although AAR has noted that the distance a truck can travel in a single day may increase due to certain technological advancements, these advancements have not been widely implemented. The Board acknowledges that such technological advancements may well have competitive implications, and the Board can revisit the mileage threshold once those advancements have been more widely implemented.

The Board also finds unconvincing the Coalition Association's argument that a lower threshold that errs on the side of being too low should not lead to inappropriate market dominance findings, as railroads would still have an opportunity to refute the prima facie showing on reply. (Coalition Associations Reply 31.) The streamlined market dominance approach is intended to reduce the litigation burdens on all parties in a rate case, and the Coalition Association's approach could result in railroad defendants needing to make reply arguments in cases where market dominance is not reasonably likely.

In addition, no party provided the Board with sufficient data to demonstrate that a higher mileage threshold would be more appropriate. The CFS data that CN relies on shows the share of U.S. freight traffic by transportation mode (by tonnage), broken out into distance bands. The data shows that for the 500-749 mileage band, rail has a 43% share of the traffic, while truck has a 39% share. CN argues that this indicates that rail and truck compete for traffic at these distances. According to CN, the Board should set the threshold based on the 750-999 mileage band, where rail's share increases to 57% and truck's share decreases to 28%. As a general matter, the Board has some concerns with relying on the CFS data for purposes of calculating the mileage threshold.

One concern is that the CFS data appears to combine full truckload and less-than-truckload (LTL) shipments into the same trucking category. 11 Unlike rail shipments, LTL involves transportation of small products that do not fill an entire trailer and that are often combined with other such products (or shipments) during transport. Rail shipments and LTL shipments, which typically have different service and product characteristics, are generally not comparable. In addition, the Board has identified some significant differences in the mileage trends between the CFS data and the Carload Waybill Sample, which the Board relies on for many regulatory purposes. In particular, the 2012 CFS data shows that 24% of rail tons moved under 100 miles, but the 2012 Waybill data shows that only 11.1% of rail tons move under 100 miles. In another example, the 2012 CFS data shows that 53% of rail tons moved under 500 miles, but the 2012 Waybill data shows 36% of rail tons moved under 500 miles. While these differences do not necessarily indicate that the CFS data is inaccurate, and may be due to the different survey populations and programs used to calculate rail mileages, they raise questions about relying on the CFS data here, at least for rail volumes and distances. 12

In any event, the CFS data itself does not conclusively show that the 500-mile threshold is too low. Based on 2012 CFS data, in the 250-499 mileage band, truck has a traffic share (by tonnage) of 55%, compared to 29% for rail. In the 500-749 mileage band, the traffic share for rail rises to 43% and surpasses the traffic share for truck, which falls to 39%. While the 2012 CFS data shows that rail does not comprise a majority share of tonnage until the 750-999 mileage band, the data also shows that at 500 miles, rail holds certain efficiencies and advantages over truck, when considering commodities in aggregate. For example, notwithstanding the CFS data issues noted above, the data shows that rail transports more tonnage than truck in the 500-749 mileage band, and rail's share of tonnage substantially increases from the 250-499 mileage band to the 500-749 mileage band. As such, the CFS data does not undermine the Board's conclusion that 500 miles is a reasonable threshold for purposes of determining competitiveness of rail transportation versus truck.

The Board seeks to strike an appropriate balance. Given its determination that rail likely has efficiencies and advantages over truck in certain circumstances once a shipment exceeds the distance a truck can reasonably travel in a single day ( i.e., 500 miles), the Board concludes that a 750-mile threshold would exclude shippers that are reasonably likely to lack competition. 13 In addition, the mileage band is just one of two prima facie factors that would be used to evaluate trucking competition; the 10% or less trucking volume threshold serves as another constraint that effectively limits use of the streamlined approach to cases where shippers that are reasonably likely to lack effective truck competition. Thus, the 500-mile threshold, combined with the 10% or less trucking volume threshold, 14 will serve as a sufficient screen to identify movements that likely lack effective trucking competition. 15

As noted above, the NPRM invited comment on whether the mileage threshold could be varied by commodity groups, and also asked commenters to provide detailed quantitative and qualitative information in support of any alternative mileage threshold. BNSF generally opposes commodity-specific thresholds, arguing that it would run counter to the goal of simplification. (BNSF Reply, V.S. Miller 15.) Several commenters argued for commodity-specific thresholds.

The Board appreciates the comments submitted. Based on the input received, the Board agrees that the concept of creating commodity-specific thresholds has merit and is preferable to a blanket threshold. Several commenters presented credible arguments that, for some commodities, including, but not limited to, chlorine and agricultural commodities, trucking becomes less competitive at a distance shorter than 500 miles. Therefore, even though, as discussed in more detail below, the information submitted in this docket did not contain sufficient quantitative data to support the adoption of commodity-specific mileage thresholds at this time, the Board finds that this issue warrants additional consideration. Accordingly, while the final rule adopted here establishes a single mileage threshold of 500 miles, the Board plans to soon initiate a proceeding to further explore the adoption of various commodity-specific mileage thresholds.

ISRI argues for lowering the threshold to 200 miles for scrap metal shipments. (ISRI Comment 5.) Although ISRI cites a survey it conducted of its members in support, ISRI did not include the survey or accompanying data but rather summarizes its results. ISRI also provides some information regarding truck shipments, but only from four of its members. ( Id. at 5-7; ISRI Reply 2 n.5.) ISRI also states that there are factors unique to the scrap metal industry that compel ISRI members to rely on rail for movements significantly less than 500 miles, such as the need for specialized trucking equipment. (ISRI Comment 7-8; ISRI Reply 2.) However, the Board would need more comprehensive and fully supported data before lowering the threshold for scrap metal shipments.

AFPM opposes the 500-mile threshold for fuel and petrochemicals, arguing that those materials are frequently shipped via unit train and that trucking substitutions for an entire train are likely to become non-competitive at a lower threshold. (AFPM Comment 5.) AFPM proposes a 250-mile threshold but provides no data to support that figure. ( See id. ) Accordingly, the Board will not adopt a lower threshold for fuel and petrochemicals at this time.

PCA states none of its members would ever be able to satisfy a 500-mile threshold for cement because shipping cement by truck becomes impracticable at distances far below 500 miles. PCA, however, does not propose an alternate threshold nor does it provide data to support its arguments. Rather, PCA claims that the Board itself acknowledged that cement cannot satisfy a 500-mile threshold in Review of Commodity, Boxcar, and TOFC/COFC Exemptions, EP 704 (Sub-No. 1) (STB served Mar. 23, 2016) (with Board Member Begeman dissenting). (PCA Comment 2-3.) PCA overstates that decision. There, the Board merely cited PCA's own assertion that shipments of cement move at a range of 250 to 300 miles while seeking comment on the possible revocation of the exempt commodity status of hydraulic cement. In citing this assertion from PCA, however, the Board did not make any definitive findings regarding the distances of such shipments.

Olin argues that the 500-mile threshold is unreasonable for its chlor alkali products and that this factor should be removed entirely for chlorine and other hazardous materials that cannot readily or feasibly move by truck. (Olin Comment 6-7.) Although chlorine, in particular, may rarely move by truck, Olin provides no data to support an alternative chlorine-specific threshold. 16 However, for chlorine, in particular, there is a sufficiently strong basis to consider modifying the threshold or eliminating it. The record here though does not contain enough information to determine if the mileage threshold should be lowered (and, if so, to what mileage) or eliminated. As discussed above, the Board will institute a proceeding in the near future to gather more information on commodity-specific thresholds for various commodities, including chlorine.

NGFA proposes that the mileage threshold be set at 200 miles for agricultural commodities, asserting that trucking generally is effectively competitive with rail for agricultural movements of only 200 miles or less. (NGFA Comment 3.) In its reply comment, NGFA cites to a chart from the 2010 National Rail Plan produced by the Federal Railroad Administration (FRA), which NGFA claims shows that rail's share for all freight starts to increase above 200 miles. The 2010 chart is for all commodities and is not specific to agricultural shipments. Moreover, it shows that for the 250-499-mileage band, truck has a majority share of traffic (based on tonnage). NGFA also cites to an academic study from 2010 conducted in coordination with AAR that found that “rail clearly has the advantage for the bulk movements, even for the 50- and 200-mile moves.” (NGFA Reply 4-5 (quoting from the study's report  17 ).) However, the report's findings were more nuanced than the selected quote suggests. In the same paragraph, the report concludes that “[t]he detailed results indicate that the rail market share increased for lower value and longer distance movements. ” Estimating the Competitive Effects of Larger Trucks on Rail Freight Traffic, at 12 (emphasis added). Again, despite not adopting a lower mileage threshold for agricultural commodities or any other commodities at this time, the Board intends to further explore in a separate proceeding whether various commodity-specific thresholds should be created, including for agricultural commodities, given the Board's long-standing concern that the Board's rate reasonableness review process is not readily accessible to many agricultural shippers.

As noted above, CN suggests, as an alternative to its proposed 750-mile threshold, using commodity-group-specific thresholds based on CFS data, with the thresholds being set at the distance at which the tonnage shipped by truck exceeds or is comparable to the tonnage shipped by rail. (CN Reply 4.) However, the CFS data relied on by CN for its commodity-group threshold is based on data at the two-digit Standard Transportation Commodity Code (STCC) level and is not granular enough to create commodity-specific thresholds (CN itself refers to its categories as commodity- group -specific thresholds). 18 (CN Reply 4.) In addition, as explained above, the Board has identified issues with relying on the CFS data for purposes of calculating mileage thresholds.

Finally, several commenters oppose the 500-mile threshold for coal. NCTA proposes that the Board use a lower mileage, such as 200 miles, for “high volume, heavy commodities” such as coal. (NCTA Comment 3.) WCTL proposes that the Board eliminate any mileage threshold for unit train transportation of coal entirely, arguing that it is not subject to competition from truck. (WCTL Comment 9-10.) It states that it is not aware of any case where the Board or ICC found that unit trains of coal were subject to competition from truck, even in cases where the origin-destination was far less than 500 miles. ( Id. )  19 FRCA states that coal is seldom, if ever, trucked more than 100 miles and cites to a 2007 research paper from the National Research Council of the National Academies, which states that coal is hauled by truck on average only 32 miles. FRCA argues that 50 miles would be a generous threshold. (FRCA Comment 2.) It is generally well-understood that when coal is shipped in significant quantities it is unlikely to be shipped by truck. However, even if the Board determined that a coal-specific threshold was warranted, there is not enough information in the record to determine what threshold should be set. Again, this is an issue that the Board may examine further in the proceeding that it plans to initiate soon.

As described above, much of the evidence submitted was either anecdotal or limited to only a few shippers and did not include sufficient data for the Board to draw a conclusion with regard to any particular commodity as whole. In its future consideration of the issue of commodity-specific thresholds, the Board will expect proponents to support their arguments with more extensive data, beyond just a few examples, on shipping distances for rail versus truck for that commodity. As for the CFS data relied on by CN, while it was not granular enough to draw conclusions about the appropriate mileage threshold for specific commodities, parties that seek to rely on it in the future proceeding should address that granularity issue and whether adjustments could make its use more suitable for this purpose.

AFPM argues that the mileage threshold should be from origin to destination for multi-rail carrier moves. AFPM argues that a single carrier's portion of the move ( i.e., from origin/destination to interchange) should not be viewed in isolation, because when a rail carrier only has a short portion of the overall move, its “behavior related to rate establishment becomes more aggressive and pushes the line of what would be considered reasonable.” (AFPM Comment 5-6.) AFPM also indicates that if only an individual carrier's portion of the move is examined, it often would not meet the 500-mile threshold. ( Id. at 6.) Similarly, FRCA argues that for short-haul rate cases involving transload shipments ( i.e., shipments that move on rail for only a portion of a move and are transferred to another mode of transportation for the remaining portion of the move), the distance threshold should apply from origin to destination, rather than from origin to interchange. (FRCA Comment 2.)

For purposes of the 500-mile threshold, the Board will treat multi-carrier movements the same as it does for rate reasonableness challenges. See Cent. Power & Light Co. v. S. Pac. Transp. Co., 1 S.T.B. 1059 (1996), clarified, 2 S.T.B. 235 (1997), aff'd sub nom. MidAm. Energy Co. v. STB, 169 F.3d 1099 (8th Cir. 1999) (addressing when multi-carrier rates are subject to challenge). In particular, whether a rate (or rates) on a multi-carrier move are subject to challenge would depend on the type of rate being offered (joint through rate or proportional rate) and whether the rate (or rates) are subject to tariff or contract. 20 In addition, with regard to FRCA's comment, the Board will not make an exception to the way it assesses the 500-mile threshold for short-haul cases involving transload shipments where the rail portion of the move is 500 miles or less. As discussed further below, looking at market dominance from origin-to-destination on transload moves ( i.e., both the rail and non-rail portions together) would be contrary to statute and established Board precedent. See infra Part IV (subpart B, “ DMIR Precedent”). Moreover, if the rail shipment is less than 500 miles and can be transloaded, that may cast doubt on whether the shipper lacks transportation options. In such instances, based on the record here, the question of market dominance would be better determined through the non-streamlined approach.

The Board proposed a prima facie factor that complainants demonstrate that there is no effective intramodal competition ( i.e., whether the complainant can use another railroad or other railroads to transport the same commodity between the same points). NPRM, EP 756, slip op. at 8. The Board explained that the complainant could satisfy this factor by submitting a verified statement from an appropriate official of the complainant attesting that it does not have practical physical access to another railroad. The Board defined “practical physical access” as encompassing feasible shipping alternatives on another railroad, including switching arrangements, where “an alternative is possible from a practical standpoint given real-world constraints.” Id. (citing Total Petrochems., NOR 42121, slip op. at 4 n.9.)

Only a few commenters addressed this factor. The Coalition Associations argue that the Board should abandon the “practical physical access” standard and simply require complainants to demonstrate that they do not have “direct” physical access. (Coalition Associations Comment 19-20.) In other words, the Coalition Associations argue that the factor should not encompass reciprocal switching because, as demonstrated by testimony provided in Reciprocal Switching, Docket No. EP 711 (Sub-No. 1), the effectiveness of reciprocal switching depends on multiple factors under the railroad's control, as well as the alternative carrier's willingness to compete. (Coalition Associations Comment 19-20.) Along these lines, AFPM argues that even in some situations where a shipper has access to two carriers, some carriers choose not to provide competitive offers. (AFPM Comment 6.) Therefore, AFPM seeks clarification of the phrases “complete absence of railroad competition” and “feasible shipping alternatives.” ( Id. ) AFPM also seeks clarity and more detail on what is meant by “an alternative is possible from a practical standpoint given real-world constraints,” as shippers and railroads view the terms “possible” and “practical” differently. ( Id. ) AFPM also asks the Board to clarify what type of documentation in support of this factor would be acceptable and define or list who it deems to be “appropriate officials” that can submit the supporting verified statement. ( Id. )  21