The FRTIB administers the Thrift Savings Plan (TSP), which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 and 8401-79. The TSP is a tax-deferred retirement savings plan for Federal civilian employees and members of the uniformed services. The TSP is similar to cash or deferred arrangements established for private-sector employees under section 401(k) of the Internal Revenue Code (26 U.S.C. 401(k)).

Federal agencies often receive formal demands (such as subpoenas) or informal requests to produce records, information, or testimony in judicial, legislative, or administrative proceedings in which those agencies are not a named party. Responding to these demands or requests may disrupt agency employees' work schedules significantly, may involve the agency in issues unrelated to its statutory mission, and may divert agency resources from accomplishing its mission-critical functions. Consequently, many Federal agencies have issued regulations to efficiently address the submission, evaluation, and processing of these demands or requests.

The United States Supreme Court upheld these types of regulations in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (holding that provisions in the federal “housekeeping” statute, 5 U.S.C. 301, authorize agencies to promulgate rules governing record production and employee testimony). These types of regulations, which are often referred to as Touhy regulations, help ensure efficient use of Federal agency resources, minimize the possibility of involving an agency in issues unrelated to its mission, promote uniformity in responding to demands or requests, and maintain the impartiality of Federal agencies in matters that are in dispute between private parties.

The FRTIB's Touhy regulation, currently codified at 5 CFR part 1631, subpart B, was originally published in 52 FR 92 (May 13, 1987). The FRTIB has amended subpart B only once since 1987. Specifically, in 2007, the FRTIB added a section that describes the method by which the FRTIB authenticates copies of its records for use as evidence in legal proceedings. See 72 FR 181 (September 19, 2007).

This final rule amends the FRTIB'S existing Touhy regulation to clarify that it applies only when the FRTIB (or the FRTIB employee to whom a demand or request is directed) is not a party to the legal proceeding. This final rule also (1) delegates authority from the Executive Director to the General Counsel to allow testimony or production of records, (2) adds a list of factors that the General Counsel will consider when deciding whether to allow testimony or production of records, (3) adds filing requirements for demands or requests for testimony, and (4) adds a provision for charging fees and expenses that the FRTIB incurs by responding to demands or requests for production or testimony.

The FRTIB is publishing this regulation as a direct final rule. In a direct final rulemaking, an agency publishes its rule in the Federal Register along with a statement that the rule will become effective unless the agency receives significant adverse comment within a specified period.

The content of this direct final rule pertains to internal agency procedures rather than substantive rights or obligations. It does not create a right to obtain official records or the official testimony of an FRTIB employee, nor does it create any additional right or privilege not already available to FRTIB to deny any demand or request for testimony or documents. Therefore, pursuant to 5 U.S.C. 553, notice and comment are not required, and this rule may become effective after publication in the Federal Register without public comment.

Nevertheless, the FRTIB appreciates that members of the public may have perspectives or information that could impact the FRTIB's views with respect to its internal procedures. The FRTIB, therefore, is providing a 30-day public comment period, and intends to consider all comments submitted during that period. The FRTIB will withdraw the rule if it receives significant adverse comment. Comments that are not adverse may be considered for modifications to part 1631 at a future date. If no significant adverse comment is received, the rule will become effective 40 days after publication, without additional notice.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation will affect Federal employees and members of the uniformed services who participate in the Thrift Savings Plan, which is a Federal defined contribution retirement savings plan created under the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514, and which is administered by the FRTIB.

I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act.

Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, 1501-1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under section 1532 is not required.

Pursuant to 5 U.S.C. 810(a)(1)(A), the FRTIB submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States before publication of this rule in the Federal Register . This rule is not a major rule as defined at 5 U.S.C. 804(2).

For the reasons stated in the preamble, the FRTIB revises 5 CFR part 1631, subpart B, to read as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it makes the necessary updates for airspace areas within the National Airspace System.

Federal Aviation Administration Airspace Order 7400.11, Airspace Designations and Reporting Points, incorporated by reference in 14 CFR 71.1, is published yearly. Amendments referred to as “effective date straddling amendments” were published under Order 7400.11D (dated August 8, 2019, and effective September 15, 2019), but became effective under Order 7400.11E (dated July 21, 2020, and effective September 15, 2020). This action incorporates these rules into the current FAA Order 7400.11E.

Accordingly, as this is an administrative correction to update final rule amendments into FAA Order 7400.11E, notice and public procedure under 5 U.S.C. 553(b) are unnecessary. Also, to bring these rules and legal descriptions current, I find that good cause exists, under 5 U.S.C. 553(d), for making this amendment effective in less than 30 days.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by incorporating certain final rules into the current FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, which are depicted on aeronautical charts.

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

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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

1. For Docket No. FAA-2020-0298; Airspace Docket No. 19-ANM-97 (85 FR 40588; July 7, 2020)

a. On page 40588, column 2, line 63, and column 3, line 11, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 40589, column 1, line 7, and line 10, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 40588, column 3, line 59, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 40589, column 1, line 4, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

2. For Docket No. FAA-2019-0359; Airspace Docket No. 15-AAL-5 (85 FR 43684, July 20, 2020).

a. On page 43684, column 3, line 56, and on page 43685, column 2, line 7, under ADDRESSES , “. . . FAA Order 7400.11D. . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 43685, column 2, line 1, and line 4, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 43684, column 1, line 53, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 43684, column 1, line 64, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

3. For Docket No. FAA-2020-0377; Airspace Docket No. 20-AGL-20 (85 FR 43431, July 17, 2020).

a. On page 43431, column 3, line 9, and line 22, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 43432, column 1, line 19, and line 22, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 43432, column 1, line 5, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 43432, column 1, line 15, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

4. For Docket No. FAA-2020-0398; Airspace Docket No. 20-ACE-8 (85 FR 43427, July 17, 2020).

a. On page 43427, column 1, line 45, and line 58, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 43427, column 2, line 58, and line 61, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 43427, column 2, line 45, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 43427, column 2, line 55, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

5. For Docket No. FAA-2020-0376; Airspace Docket No. 20-ACE-7 (85 FR 43428, July 17, 2020).

a. On page 43428, column 2, line 7, and line 20, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 43428, column 3, line 17, and line 20, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 43428, column 3, line 4, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 43428, column 3, line 14, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

6. For Docket No. FAA-2020-0362; Airspace Docket No. 20-AGL-19 (85 FR 43432, July 17, 2020).

a. On page 43432, column 3, line 33, and line 46, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 43433, column 1, line 46, and line 49, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 43433, column 1, line 33, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 43433, column 1, line 43, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

7. For Docket No. FAA-2020-0321; Airspace Docket No. 20-AGL-17 (85 FR 43425, July 17, 2020).

a. On page 43425, column 3, line 51, and column 3, line 3, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 43426, column 1, line 7, and line 10, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 43425, column 3, line 59, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 43426, column 1, line 4, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

8. For Docket No. FAA-2020-0319; Airspace Docket No. 20-ACE-5 (85 FR 43429, July 17, 2020).

a. On page 43429, column 2, line 52, and column 3, line 4, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 43430, column 1, line 30, and line 33, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 43430, column 1, line 17, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 43430, column 1, line 27, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

9. For Docket No. FAA-2020-0350; Airspace Docket No. 18-AAL-2 (85 FR 44467, July 23, 2020).

a. On page 44467, column 3, line 41, and line 54, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 44468, column 1, line 64, and column 21, line 1, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 44468, column 1, line 51, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 44468, column 1, line 61, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

10. For Docket No. FAA-2020-0351; Airspace Docket No. 18-AAL-3 (85 FR 44469, July 23, 2020).

a. On page 44469, column 2, line 9, and line 22, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 44469, column 3, line 34, and line 37, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 44469, column 3, line 21, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 44469, column 3, line 31, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

11. For Docket No. FAA-2020-0282; Airspace Docket No. 19-ANM-31 (85 FR 44688, July 24, 2020).

a. On page 44688, column 2, line 9, and line 22, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 44688, column 3, line 19, and line 22, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 44688, column 3, line 6, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 44688, column 3, line 16, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

12. For Docket No. FAA-2020-0396; Airspace Docket No. 20-AGL-21 (85 FR 44689, July 24, 2020).

a. On page 44689, column 3, line 56, and on page 44690, column 1, line 8, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 44690, column 2, line 40, and line 43, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 44688, column 3, line 6, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 44688, column 3, line 16, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

13. For Docket No. FAA-2020-0192; Airspace Docket No. 20-AEA-3 (85 FR 45995, July 31, 2020).

a. On page 45995, column 3, line 35, and line 48, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 45996, column 1, line 62, and line 65, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 45996, column 1, line 49, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 45996, column 1, line 59, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

14. For Docket No. FAA-2020-0352; Airspace Docket No. 18-AAL-4 (85 FR 45997, July 31, 2020).

a. On page 45997, column 1, line 35, and line 48, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 45997, column 2, line 47, and line 50, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 45997, column 2, line 34, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 45997, column 2, line 44, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

15. For Docket No. FAA-2019-0932; Airspace Docket No. 19-ASO-24 (85 FR 45993, July 31, 2020).

a. On page 45994, column 1, line 7, and line 20, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 45994, column 2, line 50, and line 53, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 45994, column 2, line 36, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 45994, column 2, line 47, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

16. For Docket No. FAA-2020-0353; Airspace Docket No. 19-AWP-19 (85 FR 47017, August 4, 2020).

a. On page 47017, column 2, line 12, and line 25, under ADDRESSES , “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

b. On page 47017, column 3, line 22, and line 25, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D . . .” is corrected to read “. . . FAA Order 7400.11E . . .”.

c. On page 47017, column 3, line 9, under History, “. . . FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, . . .” is corrected to read “. . . FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020 . . .”.

d. On page 47017, column 3, line 19, under Availability and Summary of Documents for Incorporation by Reference, “. . . FAA Order 7400.11D Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2020, . . .” is corrected to read “. . . FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020, . . .”.

On March 24, 2020, DHS published notice of the Secretary's decision to temporarily limit the travel of individuals from Mexico into the United States at land ports of entry along the United States-Mexico border to “essential travel,” as further defined in that document. 1 The document described the developing circumstances regarding the COVID-19 pandemic and stated that, given the outbreak and continued transmission and spread of the virus associated with COVID-19 within the United States and globally, the Secretary had determined that the risk of continued transmission and spread of the virus associated with COVID-19 between the United States and Mexico posed a “specific threat to human life or national interests.” The Secretary later published a series of notifications continuing such limitations on travel until 11:59 p.m. EDT on October 21, 2020. 2

The Secretary has continued to monitor and respond to the COVID-19 pandemic. As of the week of October 12, there are over 37 million confirmed cases globally, with over one million confirmed deaths. 3 There are over 7.8 million confirmed and probable cases within the United States, 4 over 178,000 confirmed cases in Canada, 5 and over 809,000 confirmed cases in Mexico. 6

Given the outbreak and continued transmission and spread of COVID-19 within the United States and globally, the Secretary has determined that the risk of continued transmission and spread of the virus associated with COVID-19 between the United States and Mexico poses an ongoing “specific threat to human life or national interests.”

U.S. and Mexican officials have mutually determined that non-essential travel between the United States and Mexico poses additional risk of transmission and spread of the virus associated with COVID-19 and places the populace of both nations at increased risk of contracting the virus associated with COVID-19. Moreover, given the sustained human-to-human transmission of the virus, returning to previous levels of travel between the two nations places the personnel staffing land ports of entry between the United States and Mexico, as well as the individuals traveling through these ports of entry, at increased risk of exposure to the virus associated with COVID-19. Accordingly, and consistent with the authority granted in 19 U.S.C. 1318(b)(1)(C) and (b)(2), 7 I have determined that land ports of entry along the U.S.-Mexico border will continue to suspend normal operations and will only allow processing for entry into the United States of those travelers engaged in “essential travel,” as defined below. Given the definition of “essential travel” below, this temporary alteration in land ports of entry operations should not interrupt legitimate trade between the two nations or disrupt critical supply chains that ensure food, fuel, medicine, and other critical materials reach individuals on both sides of the border.

For purposes of the temporary alteration in certain designated ports of entry operations authorized under 19 U.S.C. 1318(b)(1)(C) and (b)(2), travel through the land ports of entry and ferry terminals along the United States-Mexico border shall be limited to “essential travel,” which includes, but is not limited to—

• U.S. citizens and lawful permanent residents returning to the United States;

• Individuals traveling for medical purposes ( e.g., to receive medical treatment in the United States);

• Individuals traveling to attend educational institutions;

• Individuals traveling to work in the United States ( e.g., individuals working in the farming or agriculture industry who must travel between the United States and Mexico in furtherance of such work);

• Individuals traveling for emergency response and public health purposes ( e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);

• Individuals engaged in lawful cross-border trade ( e.g., truck drivers supporting the movement of cargo between the United States and Mexico);

• Individuals engaged in official government travel or diplomatic travel;

• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and

• Individuals engaged in military-related travel or operations.

The following travel does not fall within the definition of “essential travel” for purposes of this Notification—

• Individuals traveling for tourism purposes ( e.g., sightseeing, recreation, gambling, or attending cultural events).

At this time, this Notification does not apply to air, freight rail, or sea travel between the United States and Mexico, but does apply to passenger rail, passenger ferry travel, and pleasure boat travel between the United States and Mexico. These restrictions are temporary in nature and shall remain in effect until 11:59 p.m. EST on November 21, 2020. This Notification may be amended or rescinded prior to that time, based on circumstances associated with the specific threat.

The Commissioner of U.S. Customs and Border Protection (CBP) is hereby directed to prepare and distribute appropriate guidance to CBP personnel on the continued implementation of the temporary measures set forth in this Notification. The CBP Commissioner may determine that other forms of travel, such as travel in furtherance of economic stability or social order, constitute “essential travel” under this Notification. Further, the CBP Commissioner may, on an individualized basis and for humanitarian reasons or for other purposes in the national interest, permit the processing of travelers to the United States not engaged in “essential travel.”

The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, has delegated the authority to electronically sign this document to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the Federal Register .

On March 24, 2020, DHS published notice of the Secretary's decision to temporarily limit the travel of individuals from Canada into the United States at land ports of entry along the United States-Canada border to “essential travel,” as further defined in that document. 1 The document described the developing circumstances regarding the COVID-19 pandemic and stated that, given the outbreak and continued transmission and spread of the virus associated with COVID-19 within the United States and globally, the Secretary had determined that the risk of continued transmission and spread of the virus associated with COVID-19 between the United States and Canada posed a “specific threat to human life or national interests.” The Secretary later published a series of notifications continuing such limitations on travel until 11:59 p.m. EDT on October 21, 2020. 2

The Secretary has continued to monitor and respond to the COVID-19 pandemic. As of the week of October 12, there are over 37 million confirmed cases globally, with over one million confirmed deaths. 3 There are over 7.8 million confirmed and probable cases within the United States, 4 over 178,000 confirmed cases in Canada, 5 and over 809,000 confirmed cases in Mexico. 6

Given the outbreak and continued transmission and spread of COVID-19 within the United States and globally, the Secretary has determined that the risk of continued transmission and spread of the virus associated with COVID-19 between the United States and Canada poses an ongoing “specific threat to human life or national interests.”

U.S. and Canadian officials have mutually determined that non-essential travel between the United States and Canada poses additional risk of transmission and spread of the virus associated with COVID-19 and places the populace of both nations at increased risk of contracting the virus associated with COVID-19. Moreover, given the sustained human-to-human transmission of the virus, returning to previous levels of travel between the two nations places the personnel staffing land ports of entry between the United States and Canada, as well as the individuals traveling through these ports of entry, at increased risk of exposure to the virus associated with COVID-19. Accordingly, and consistent with the authority granted in 19 U.S.C. 1318(b)(1)(C) and (b)(2), 7 I have determined that land ports of entry along the U.S.-Canada border will continue to suspend normal operations and will only allow processing for entry into the United States of those travelers engaged in “essential travel,” as defined below. Given the definition of “essential travel” below, this temporary alteration in land ports of entry operations should not interrupt legitimate trade between the two nations or disrupt critical supply chains that ensure food, fuel, medicine, and other critical materials reach individuals on both sides of the border.

For purposes of the temporary alteration in certain designated ports of entry operations authorized under 19 U.S.C. 1318(b)(1)(C) and (b)(2), travel through the land ports of entry and ferry terminals along the United States-Canada border shall be limited to “essential travel,” which includes, but is not limited to—

• U.S. citizens and lawful permanent residents returning to the United States;

• Individuals traveling for medical purposes ( e.g., to receive medical treatment in the United States);

• Individuals traveling to attend educational institutions;

• Individuals traveling to work in the United States ( e.g., individuals working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work);

• Individuals traveling for emergency response and public health purposes ( e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);

• Individuals engaged in lawful cross-border trade ( e.g., truck drivers supporting the movement of cargo between the United States and Canada);

• Individuals engaged in official government travel or diplomatic travel;

• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and

• Individuals engaged in military-related travel or operations.

The following travel does not fall within the definition of “essential travel” for purposes of this Notification—

• Individuals traveling for tourism purposes ( e.g., sightseeing, recreation, gambling, or attending cultural events).

At this time, this Notification does not apply to air, freight rail, or sea travel between the United States and Canada, but does apply to passenger rail, passenger ferry travel, and pleasure boat travel between the United States and Canada. These restrictions are temporary in nature and shall remain in effect until 11:59 p.m. EST on November 21, 2020. This Notification may be amended or rescinded prior to that time, based on circumstances associated with the specific threat.

The Commissioner of U.S. Customs and Border Protection (CBP) is hereby directed to prepare and distribute appropriate guidance to CBP personnel on the continued implementation of the temporary measures set forth in this Notification. The CBP Commissioner may determine that other forms of travel, such as travel in furtherance of economic stability or social order, constitute “essential travel” under this Notification. Further, the CBP Commissioner may, on an individualized basis and for humanitarian reasons or for other purposes in the national interest, permit the processing of travelers to the United States not engaged in “essential travel.”

The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, has delegated the authority to electronically sign this document to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the Federal Register .

The Controlled Substances Act (CSA) grants the Attorney General authority to promulgate rules and regulations relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances; as well as the maintenance and submission of records and reports of registrants; and that are necessary and appropriate for the efficient execution of his statutory functions. 21 U.S.C. 821, 827, 871(b). The Attorney General is further authorized by the CSA to promulgate rules and regulations relating to the registration and control of importers and exporters of controlled substances. 21 U.S.C. 958(f). The Attorney General has delegated this authority to the Administrator of the DEA. 28 CFR 0.100(b).

In FR Rule Doc. 2020-21310, beginning on page 61594 in the Federal Register of Wednesday, September 30, 2020, the following correction is made:

The project to establish an offshore anchorage just outside of the St. Johns River and offshore of Jacksonville was initiated in 2013. From 2013 through 2017, certain port stakeholders (St. Johns Bar Pilots Association (SJBPA), Jacksonville Marine Transportation Exchange (JMTX), National Oceanic and Atmospheric Administration (NOAA), and United States Coast Guard (USCG)) worked to determine a suitable location for the anchorage, with consideration given to, among other things, environmental factors and Seasonal Management Areas. However, a location was not determined during this timeframe. The USCG conducted a Waterways Analysis and Management System (WAMS) survey for this proposed project and did not receive any comments of concern from the entities previously mentioned.

In 2016, the stakeholders re-engaged the USCG in an attempt to complete the offshore anchorage project. A notice of proposed rulemaking (NPRM) was published in the Federal Register on May 4, 2017 (82 FR 20859). Informal National Environmental Protection Act (NEPA) consultations were disseminated requesting feedback on the proposed anchorage location. National Marine Fisheries (NMFS) and NOAA responded with significant concerns regarding the location. The aforementioned agencies requested an environmental study be completed to analyze potential hard bottom locations within the selected anchorage ground and the effects of vessels anchoring in these environmentally sensitive areas. The stakeholders involved at this time were unable to financially support the requested study. Due to these concerns, no further action was taken after the NPRM was published in 2017.

In 2018, the USCG met with the stakeholders again to determine a way forward with the proposed anchorage. Stakeholders concluded that three circular anchorages would meet the needs of an offshore anchorage, while allowing flexibility to avoid hard bottom areas. In 2019, USCG Sector Jacksonville sent out an informal consultation via email to federal, state and local government and private stakeholders to solicit for feedback on the proposed, new anchorage construct. NMFS agreed with the construct, allowing USCG to move forward with formal NEPA consultation. Towards the end of 2019, USCG sent out formal consultation to approximately 20 different organizations and agencies regarding the anchorage. At this time, NMFS expressed some minor concerns. At the beginning of 2020, stakeholders and NMFS came to an agreement that addressed the minor concerns raised.

On July 6, 2020, a supplemental notice of proposed rulemaking (SNPRM) was published in the Federal Register (85 FR 40154). In the SNPRM, we proposed to establish a dedicated offshore anchorage approximately seven nautical miles northeast of the St. Johns River inlet, Florida.

During the comment period that ended September 4, 2020, we received one comment in support of the regulation.

The Coast Guard is issuing this rule under authority found in 33 U.S.C. 471. The purpose of this rulemaking is to improve the navigational safety, traffic management and port security for the Port of Jacksonville.

Currently, there is no dedicated deep draft offshore anchorage for commercial ocean-going vessels arriving at the Port of Jacksonville. Vessels have routinely been anchoring 1.5 nautical miles northeast of the “STJ” entrance buoy. Without a designated charted anchorage area, vessels end up drifting or anchoring in the common approaches to the St. Johns River, creating a potential hazardous condition for vessels transiting in and out of the Port of Jacksonville. These conditions have worsened in recent years with the introduction of Liquefied Natural Gas (LNG) vessels transiting the Port of Jacksonville. Additional growth is forecasted to occur because of an expected deepening of the channel, causing an increase in the number of large vessels calling on Jacksonville in the near future.

As noted above, we received one supportative comment on the SNPRM. There are no changes in the regulatory text of this rule from the proposed rule in the SNPRM.

This rule establishes an offshore anchorage area approximately seven nautical miles northeast of the St. Johns River inlet, Florida. There is not currently a dedicated deep draft offshore anchorage for commercial ocean-going vessels arriving at the Port of Jacksonville. This action is necessary to ensure the safety and efficiency of navigation for vessels transiting in and out of the Port of Jacksonville. The anchorage areas consist of three circles each with a radius of 1,400 feet.

The anchorage boundaries are described, using precise coordinates, in the regulatory text at the end of this document.

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.

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 fact that there will be minimal impact to routine navigation because the anchorage area would not restrict traffic. The anchorage is located well outside of the established navigation channel. Vessels would still be able to maneuver in, around, and through the anchorage.

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 received no comments from the Small Business Administration on this rulemaking. 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 anchorage may be small entities, for the reasons stated in section V.A above, this rule would 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.

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 establishing offshore anchorage grounds, which would be comprised of three circles, each with a 1,400-foot radius. The anchorage grounds are not designated a critical habitat or special management area. Normally such actions are categorically excluded from further review under paragraph L59(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 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. It is impracticable to publish an NPRM because we must establish this safety zone by October 2, 2020 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

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 immediate action is needed to respond to the potential safety hazards associated with the environmental response activity.

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 New Orleans (COTP) has determined that potential hazards associated with environmental response operations, consisting of securing and repairs to a damaged platform, will be of a safety concern for anyone within a 100-yard radius of the platform, located at approximately 29 27.000N, 089 17.682W. This rule is necessary to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while platform repairs are being carried out.

This rule establishes a safety zone on October 2, 2020 until approximately November 2, 2020 or until repairs are complete. The safety zone will encompass all navigable waters within 100-yards radius of the platform located at approximately 29 27.000N, 089 17.682W. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the platform is being repaired. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or 67 or by telephone at (504) 365-2200. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative. The COTP or a designated representative will inform the public of the enforcement times and date for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

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 and duration of the temporary safety zone. This safety zone will restrict vessel traffic from entering or remaining within a 100-yard radial section of Breton Sound for approximately one month while an environmental response activity, repairs to a damaged platform, occurs. Moreover, the Coast Guard will issue a BNMs 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.

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 lasting approximately one month in duration that will prohibit entry within 100-yard radius of the platform located at approximately 29 27.000N, 089 17.682W. It is categorically excluded from further review under paragraph L[60a] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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:

Tropospheric ozone, commonly known as smog, occurs when VOC and nitrogen oxides (NO X ) react in the atmosphere in the presence of sunlight. Because of the harmful health effects of ozone, EPA and state governments implement rules to limit the amount of certain VOC and NO X that can be released into the atmosphere. VOC have different levels of reactivity; they do not react at the same speed or do not form ozone to the same extent. Section 302(s) of the CAA specifies that EPA has the authority to define the meaning of “VOC,” and hence, what compounds shall be treated as VOC for regulatory purposes.

EPA determines whether a given carbon compound has “negligible” reactivity by comparing the compound's reactivity to the reactivity of ethane. It is EPA's policy that compounds of carbon with negligible reactivity be excluded from the regulatory definition of VOC. See 42 FR 35314 (July 8, 1977), 70 FR 54046 (September 13, 2005). EPA lists these compounds in its regulations at 40 CFR 51.100(s) and excludes them from the definition of VOC. The chemicals on this list are often called “negligibly reactive.” EPA may periodically revise the list of negligibly reactive compounds to add or delete compounds.

EPA is approving the Commonwealth's SIP revision which amends the definition of “Volatile Organic Compound (VOC)” at section 1.84 in LMAPCD Regulation 1.02, Definitions. 1 This SIP revision removes an enumerated list of negligibly reactive compounds and incorporates by reference the list of negligibly reactive compounds in the definition of VOC at 40 CFR 51.100(s)(1) as of July 1, 2018, into a new subsection 1.84.1 to ensure that the definition of VOC for the Jefferson County portion of the Commonwealth's SIP is consistent with the most recent version of the federal definition. 2 As a result of this incorporation by reference, the SIP revision adds exclusions to the definition of VOC that were not previously in the Jefferson County portion of the Commonwealth's SIP.

This incorporation by reference has the effect of adding the following compounds to the list of negligibly reactive compounds: Trans-1,3,3,3-tetrafluoropropene; HCF 2 OCF 2 H (HFE-134); HCF 2 OCF 2 OCF 2 H (HFE-236cal2); HCF 2 OCF 2 CF 2 H (HFE-338pcc13); HCF 2 OCF 2 OCF 2 CF 2 OCF 2 H (H-Galden 1040x or H-Galden ZT 130 (or 150 or 180)); trans 1-chloro-3,3,3-trifluoroprop-1-ene; 2,3,3,3-tetrafluoropropene; 2-amino-2-methyl-1-propanol; 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane; cis-1,1,1,4,4,4-hexafluorobut-2-ene (HFO-1336mzz-Z). These compounds are excluded from the VOC definition on the basis that each of these compounds make a negligible contribution to tropospheric ozone formation. EPA approves the changes to the SIP will not interfere with attainment or maintenance of any national ambient air quality standard, reasonable further progress, or any other applicable requirement of the CAA, consistent with CAA section 110(l), because EPA has found the chemicals listed in 40 CFR 51.100(s)(1) to be negligibly reactive. This SIP revision also adds a new subsection 1.84.2 that includes instructions on how to access copies of the Code of Federal Regulations (CFR).

In a notice of proposed rulemaking (NPRM) published on July 6, 2020 (85 FR 40158), EPA proposed to approve the Commonwealth's September 5, 2019, SIP submission. The July 6, 2020, NPRM provides additional detail regarding the background and rationale for EPA's action. Comments on the July 6, 2020, NPRM were due on or before August 5, 2020. EPA received two non-adverse comments on July 22, 2020, and August 5, 2020. EPA has determined that these comments were irrelevant to the subject of the July 6, 2020, NPRM. These comments are publicly available at the EPA docket for this action under Docket Identification No. EPA-R04-OAR-2020-0095.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference LMAPCD Regulation 1.02, Definitions, version 15, state-effective June 19, 2019, which makes changes to the definition of Volatile Organic Compound by referencing the Federal list of negligibly reactive compounds and including instructions on how to access the CFR. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 3

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0281 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before December 21, 2020. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2019-0281, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of August 2, 2019 (84 FR 37818) (FRL-9996-78), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 9E8752) by IR-4, Rutgers, the State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540. The petition requested that 40 CFR 180.446 be amended by establishing a tolerance for residues of the insecticide clofentezine, 3,6-bis(2-chlorophenyl)-1,2,4,5-tetrazine, in or on hop, dried cones at 6 parts per million (ppm). That document referenced a summary of the petition prepared by Makhteshim Agan of North America (d/b/a ADAMA), the registrant, which is available in docket number EPA-HQ-OPP-2019-0281 at http://www.regulations.gov. One comment was received on the notice of filing. EPA's response to the comment is discussed in Unit IV.C.

In accordance with section 408(d)(4)(a)(i), which permits the Agency to finalize a tolerance that varies from that sought by the petition, and based upon review of the data supporting the petition, EPA has established a tolerance for residues of clofentezine on hop, dried cones at 7 ppm, rather than 6 ppm as requested. The reason for this change is explained in Unit IV.D.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for clofentezine including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with clofentezine follows.

On May 29, 2019, EPA published in the Federal Register a final rule establishing tolerances for residues of clofentezine in or on guava based on the Agency's conclusion that aggregate exposure to clofentezine is safe for the general population, including infants and children. See 84 FR 24722 (FRL-9993-48) (EPA-HQ-OPP-2018-0275). EPA is incorporating the following portions of that document by reference here, as they have not changed in the Agency's current assessment: The cancer classification and conclusion that it is appropriate to assess cancer risk estimates using a linear low-dose extrapolation approach, and the conclusions about cumulative risk. Additionally, EPA is incorporating the assumptions for exposure assessment from the May 29, 2019, final rule, which have not changed except as explained in the following paragraphs.

EPA is incorporating most of the toxicological profile from the May 29, 2019, rule with the following amendments. Since that rule was issued, EPA has determined that a comparative thyroid assay (CTA) is needed. In the absence of the CTA, EPA has determined that the FQPA safety factor is retained (as a database uncertainty factor of 10X is applied for all exposure scenarios). Additionally, EPA has revised the dermal absorption factor for clofentezine from 10% to 2% based on additional data that have been submitted, reviewed and incorporated into the assessment. EPA is incorporating the points of departure from the June 14, 2016, Federal Register (81 FR 38604, FRL-9942-23) (EPA-HQ-OPP-2014-0749) which have not changed. However, the chronic reference dose and the chronic population adjusted dose have changed due to the inclusion of the database uncertainty factor. It should be noted that an acute dietary exposure and risk analysis was not performed since no toxicological effect was observed from acute (single) dose exposure via the dietary route that demonstrated evidence of toxicity attributable to a single dose for either the general population or for females 13-49 years of age.

EPA's dietary (food and drinking water) exposure assessments have been updated to include the additional exposure from the new use of clofentezine on hops. EPA conducted a partially refined chronic dietary (food and drinking water) exposure and risk assessment that incorporates average field trial residues, percent crop treated information that has been updated since the last assessment, and modelled drinking water estimated residues. The drinking water exposure is not impacted by the new use and thus has not changed since the last assessment from May 29, 2019.

An acute dietary endpoint ( i.e., single dose endpoint) for risk assessment was not identified in the toxicity database for the general U.S. population or any other subpopulation for clofentezine; therefore, an acute dietary exposure assessment was not conducted. Chronic dietary risks are below the Agency's level of concern (LOC) of 100% of the chronic population adjusted dose (cPAD); they are estimated to be 6% of the cPAD for all infants less than 1 year old, the group with the highest exposure.

There are no registered residential uses of clofentezine; therefore, the chronic aggregate risk assessment only includes dietary risk, which is not of concern. Because there is no short- or intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the point of departure used to assess short- or intermediate-term risk), no further assessment of short- or intermediate-term risk is necessary. Thus, EPA relies on the chronic dietary risk assessment for the aggregate risk assessment.

Applying the Q 1 * of 3.76 × 10 −2 (mg/kg/day) −1 to the exposure value results in a cancer risk estimate of 1.7 × 10 −6 for adults 20-49 years old, the most highly exposed adult population subgroup. EPA generally considers cancer risks (expressed as the probability of an increased cancer case) in the range of 1 in 1 million (or 1 × 10 −6 ) or less to be negligible. The precision which can be assumed for cancer risk estimates is best described by rounding to the nearest integral order of magnitude on the logarithmic scale; for example, risks falling between 3 × 10 −7 and 3 × 10 −6 are expressed as risks in the range of 10 −6 . Considering the precision with which cancer hazard can be estimated, the conservativeness of low-dose linear extrapolation, and the rounding procedure described above, cancer risk should generally not be assumed to exceed the benchmark level of concern of the range of 10 −6 until the calculated risk exceeds approximately 3 × 10 −6 . This is particularly the case where some conservatism is maintained in the exposure assessment. Although the clofentezine exposure assessment is partially refined, it retains significant conservatism in that field trial data and not market basket data is used in estimating exposure to existing uses as well as this new use. In addition, EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to clofentezine in drinking water. These assessments will not underestimate the exposure posed by clofentezine. Accordingly, EPA has concluded the aggregate cancer risk for all existing clofentezine uses and the new hops use in this action fall within the range of 1 × 10 −6 and are thus negligible.

Therefore, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to clofentezine residues. More detailed information can be found in the documents entitled, “Clofentezine. Human Health Risk Assessment to Support a Section 3 New Use on Hops,” in docket ID, EPA-HQ-OPP-2019-0281 and “Clofentezine. Human-Health Risk Assessment to Support a Section 3 New Uses on Guava,” dated May 13, 2019, in docket ID, EPA-HQ-OPP-2018-0275.

An adequate analytical method (high-performance liquid chromatography (HPLC)) is available to enforce the tolerances for clofentezine in plant commodities. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex has not established MRLs for clofentezine on hop, dried cones.

EPA received one comment requesting the EPA to establish specific pesticide tolerances for Cypermethrin, Pendimethalin and Chlorpyrifos for Crop Subgroup 4B (Leaf petioles subgroup) and Crop Subgroup 22B (Leaf petiole vegetable subgroup), as well as to name Celery and Celery Leaves (Fresh and dried) specifically as a represented commodity. This comment is unrelated to this docket and final rule and the comment does not meet the requirements for a pesticide tolerance petition that are set out in 40 CFR 180.7.

The Agency is establishing a tolerance for residues of clofentezine on hop, dried cones at 7 ppm, rather than 6 ppm as requested. The 2016 storage stability data showed a decline in storage stability, but the 2018 data did not. Therefore, only the five field trials from the 2018 data were used to establish the tolerance.

Therefore, tolerances are established for residues of clofentezine, 3,6-bis(2-chlorophenyl)-1,2,4,5-tetrazine, in or on Hop, dried cones at 7 parts per million (ppm).

This action establishes tolerances under FFDCA section 408(d) in response to petitions submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0291 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before December 21, 2020. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0291, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of September 15, 2017 (82 FR 43354) (FRL-9965-43), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 7E8571) by Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the herbicide diquat in or on pea and bean, dry and shelled, except soybean, subgroup 6C at 0.08 parts per million (ppm). In the Federal Register of May 7, 2018 (83 FR 20008) (FRL-9976-34), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing a correction to the pesticide petition (PP 7E8571) by Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419. The corrected petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the herbicide diquat in or on pea and bean, dry and shelled, except soybean, subgroup 6C at 0.9 parts per million (ppm). Both documents referenced a summary of the petition prepared by Syngenta, the registrant, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for diquat including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with diquat follows.

EPA conducted a human health risk assessment to evaluate the safety of the requested tolerances. See “Diquat. Human Health Risk Assessment for the Establishment of a Tolerance without U.S. Registration for Residues in/on Crop Subgroup 6C Dried Shelled Pea and Bean (Except Soybean)” (July 21, 2020), which is available in the docket established by this action, which is described under ADDRESSES . Locate and click on the hyperlink for docket ID number EPA-HQ-OPP-2017-0291. In that document, EPA evaluated the available hazard and exposure data to conduct dietary, residential, and aggregate assessment to determine risk to human health and refers back to the discussions of the hazard profile, residue chemistry database, and residential exposures contained in the previous human health risk assessment conducted for registration review, “Diquat Dibromide: Draft Human Health Risk Assessment for Registration Review” (Sept. 17, 2015) (“Registration Review RA”), which can be found in the docket EPA-HQ-OPP-2009-0846 and is included in this docket. Based on the discussion in the Registration Review RA, the Agency has determined that there is reliable data to support the use of a 1X margin of safety for the protection of infants and children.

While the acute dietary assessment was unrefined, using tolerance-level residues and 100% crop treated (PCT), the chronic dietary assessment was more refined and used anticipated-residue levels from magnitude of residue studies for crops irrigated with water treated with diquat in conjunction with estimates of percentage of crops irrigated. Default processing factors were also used in both the acute and chronic dietary analyses and both analyses incorporated the Office of Water's Maximum Contaminant Level (0.02 ppm) as a worst-case drinking water estimate due to domestic uses of diquat. EPA's aggregate exposure assessment incorporated the total dietary exposure, as well as exposure from residential sources, which is not impacted by the tolerance without U.S. registrations on pea and bean, dry and shelled, except soybean, subgroup 6C and thus has not changed since the Registration Review RA.

Acute aggregate dietary risks (food and water) are below the Agency's level of concern of 100% of the acute population adjusted dose: 1.4% of the aPAD for children 1 to 2 years old, the population group receiving the greatest exposure. Chronic dietary risks are below the Agency's level of concern of 100% of the chronic population adjusted dose (cPAD): 41% of the cPAD for children 1 to 2 years old the population group receiving the greatest exposure. For the short-/intermediate-term aggregate risk assessment, potential residential exposures were combined with dietary exposures. For both adults and children 1 to <2, exposures from high-contact activities on outdoor treated turf resulted in the highest residential exposures for aggregate consideration. Short-/intermediate-term aggregate margins of exposure (MOEs) are greater than the LOC of 100 (2,010 for adults and 280 for children 1 to 2 years old) and are therefore not of concern. Due to the lack of carcinogenicity, the Agency concludes that exposure is not expected to pose a cancer risk to the U.S. population.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to diquat residues.

Adequate enforcement methodology (analytical method number RAM 272/02 “The Determination of Residues of Paraquat and Diquat in crops and Soil—A High Performance Liquid Chromatographic Method”) is available to enforce the tolerance expression.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has established an MRL for diquat in or on dry pea (subgroup) at 0.9 ppm. This MRL is the same as the tolerance established for diquat in this decision. However, Codex has established MRLs for diquat in or on dry bean (subgroup) at 0.4 ppm. Canada has established MRLs for both dry pea and dry bean at 0.9 ppm.

Two general comments were received on the notices of filing expressing general concern about the potential of pesticide residues in food, although none provided any substantive information to take into consideration in EPA's safety assessment. The FFDCA authorizes EPA to establish tolerances that permit certain levels of pesticide residues in or on food when the Agency can determine that such residues are safe. EPA has made that determination for the tolerances subject to this action; commenters provided no information relevant to that conclusion.

Therefore, tolerances are established for residues of diquat in or on pea and bean, dry and shelled, except soybean, subgroup 6C at 0.9 ppm and the tolerance expression is being updated.

Also, in accordance with EPA's policy to update its tolerance expressions where applicable, EPA is revising the tolerance expression to clarify that (1) as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of diquat not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring only the specific compounds mentioned in the tolerance expression. EPA has determined that it is reasonable to make this change final without prior proposal and opportunity for comment because public comment is not necessary since the change is merely intended to clarify the existing tolerance expression and has no substantive effect on the tolerance.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0169 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before December 21, 2020. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2019-0169, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of May 8, 2020 (85 FR 27346) (FRL-1008-38), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 9F8742) by J.R. Simplot Company, P.O. Box 27, Boise, ID 83707. The petition requested that 40 CFR 180.1019 be amended by establishing an exemption from the requirement of a tolerance for residues of sulfuric acid in or on hop vines. That document referenced a summary of the petition prepared by the petitioner J.R. Simplot Company, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Available data indicate that sulfuric acid rapidly dissociates to non-toxic hydrogen ions and sulfate ions in the human body and the environment. For further information on sulfuric acid, see Mineral Acids Interim Decision and supporting risk assessment in docket ID number EPA-HQ-OPP-2008-0766.

Due to the lack of toxicity associated with any residues remaining in or on food, toxicological endpoints were not identified for dietary assessment, and a quantitative risk assessment using safety factors was not conducted. Based on reliable data that supports the lack of threshold effects, EPA has not retained the additional tenfold children's safety factor.

In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

Based on the rapid dissociation of sulfuric acid in the environment to sulfate ion, which is not of toxicological concern, the Agency has determined that a quantitative aggregate exposure and risk assessment is not required for sulfuric acid. Sulfuric acid produces sulfate salts in the environment, many of which are designated by FDA as GRAS. So, there is no dietary, dermal or inhalation exposures of concern when used per label directions. Also, there are no conventional residential uses for sulfuric acid as a desiccant/herbicide reducing the potential for non-occupational exposure.

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found sulfuric acid to share a common mechanism of toxicity with any other substances, and sulfuric acid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that sulfuric acid does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

Based on its assessment of sulfuric acid, EPA concludes that there is a reasonable certainty of no harm from aggregate exposure to residues of sulfuric acid. Accordingly, EPA finds that an exemption from the requirement of a tolerance for sulfuric acid when used as a desiccant in the production of hops will be safe.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

Therefore, an exemption is established for residues of sulfuric acid, when used as a desiccant in the production of hop vines.

This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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

On, January 23, 2020, Indiana submitted a complete program revision application seeking authorization of changes to its hazardous waste program in accordance with 40 CFR 271.21. EPA now makes a final decision that Indiana's hazardous waste program revisions that are being authorized are equivalent to, consistent with, and no less stringent than the Federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. For a list of State rules being authorized with this final authorization, please see the proposed rule published in the May 6, 2020, Federal Register at 85 FR 26911.

Codification is the process of placing citations and references to the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by adding those citations and references to the authorized State rules in 40 CFR part 272. EPA is not codifying the authorization of Indiana's revisions at this time. However, EPA reserves the ability to amend 40 CFR part 272, subpart P, for the authorization of Indiana's program changes at a later date.

This final authorization revises Indiana's authorized hazardous waste management program pursuant to Section 3006 of RCRA and imposes no requirements other than those currently imposed by State law. For further information on how this authorization complies with applicable Executive orders and statutory provisions, please see the proposed rule published in the May 6, 2020, Federal Register at 85 FR 26911. 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 document 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 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). This final action will be effective October 22, 2020.

On August 29, 2019, the Secretary of the Interior signed Secretarial Order 3376, Increasing Recreation Opportunities Through the Use of Electric Bikes, that directed Reclamation and other Department of the Interior (DOI) bureaus (Bureau of Land Management, National Park Service, and the U.S. Fish and Wildlife Service) to increase recreation opportunities and expand access on public lands. The Secretarial Order addressed regulatory uncertainty on how bureaus within DOI manage recreational opportunities for E-bikes on trails and paths where traditional bikes are allowed.

Uncertainty about the regulatory status of E-bikes had led some of DOI's land management bureaus to impose restrictive access policies treating E-bikes as motor vehicles, often inconsistent with State and local regulations for adjacent areas. The possibility that in some cases E-bikes can be propelled solely through power provided by the electric motor, a function often used in short duration as an assist, has contributed to confusion about E-bike classification. Further, Federal regulation has not been consistent across DOI and has created ambiguity among recreation area rules regarding trail and road access to E-bikes resulting in limited access to Federally owned lands by E-bike riders.

To provide consistency in Federal policy among DOI's bureaus, the Secretarial Order set forth the policy of DOI that E-bikes should be allowed where other, non-motorized types of bicycles are allowed, and not allowed where other, non-motorized types of bicycles are prohibited.

Reclamation was directed by the Secretarial Order to revise 43 CFR part 420 to add a definition of E-bikes and to generally treat E-bikes similarly to traditional, non-motorized bicycles. Continuing, it is further specified that E-bikes should be defined as having two or three wheels and fully operable pedals. The electric motor for an E-bike may not exceed 750 watts (one horsepower) and E-bikes must fall into one of three classes:

(a) “Class 1 electric bicycle” means an electric bicycle equipped with a motor that provides assistance only when the rider is pedaling, and that ceases to provide assistance when the bicycle reaches the speed of 20 miles per hour;

(b) “Class 2 electric bicycle” means an electric bicycle equipped with a motor that may be used exclusively to propel the bicycle, and that is not capable of providing assistance when the bicycle reaches the speed of 20 miles per hour; and

(c) “Class 3 electric bicycle” means an electric bicycle equipped with a motor that provides assistance only when the rider is pedaling, and that ceases to provide assistance when the bicycle reaches the speed of 28 miles per hour.

The rule therefore amends title 43 of the Code of Federal Regulations (CFR) by revising part 420 as follows:

(a) Section 420.5(a) is amended to include E-bikes that satisfy certain criteria in the specified exclusions to the definition of off-road vehicles.

(b) Section 420.5(h) is added to define electric bicycles to include the three classes of electric bicycles.

Reclamation expects these changes to the rule could facilitate increased E-bike ridership on Reclamation lands in the future. However, the rule would not be self-executing. The rule, in and of itself, does not change existing allowances for E-bike usage on Reclamation-administered public lands. It would neither allow E-bikes on roads and trails that are currently closed to off-road vehicles but open to mechanized, non-motorized bicycle use, nor affect the use of E-bikes and other motorized vehicles on roads and trails where off-road vehicle use is currently allowed. Furthermore, 43 CFR 420.5(a)(7) would allow Reclamation's Regional Directors to expressly determine, as part of a land-use planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles. While Reclamation intends for this rule to increase accessibility to public lands, E-bikes would not be given special access beyond what traditional, non-motorized bicycles are allowed. To address site-specific issues, Reclamation would consider the environmental impacts from the use of E-bikes through subsequent analysis in accordance with applicable legal requirements, including the National Environmental Policy Act of 1969 (NEPA).

Reclamation published a proposed rule in the Federal Register on April 13, 2020 (85 FR 20463) soliciting public comments for a 60-day period. The public comment period ended on June 12, 2020. During the public comment period, Reclamation received 705 comment submissions from members of the public including senior citizens, avid cyclists, hikers, equestrians and equestrian associations, industrial cycling organizations and manufacturers, as well as state and local governments. Each public comment received consideration in the development of the final rule.

Comments received that are similar in nature have been categorized by subject, and in some instances have been combined with related comments. The following discussion addresses substantive information provided during the comment period, by topic, and includes comments and responses that were made in the final rule based on comment analysis and other considerations.

Comment: Before any existing, non-motorized trails could be opened to E-bikes, logic suggests a NEPA study should have to be completed.

Response: Lands managed by Reclamation vary significantly from region to region ( e.g., the environmental variability, potential user conflicts, amounts of visitation) making an overarching NEPA analysis infeasible. Addressing potential environmental and social issues are most meaningful at the site-specific level. Reclamation will consider the suitability of E-bike use on specific trails through subsequent analysis consistent with the requirements of NEPA and other applicable laws. The NEPA process and implementation will be conducted in accordance with 43 CFR 420.5(a)(7) whereby Reclamation's Regional Directors may expressly determine, as part of a land-use planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles. Implementation may also include the development of site-specific design features and mitigation strategies to reduce or negate potential adverse impacts.

Comment: A public review and comment period of at least 60 days should be provided for each proposed trail or trail system, and that comment period should be in a season when the area is accessible to people who want to examine the routes for themselves before submitting comments.

Response: Reclamation began its 60-day public comment period on April 13, 2020 and concluded on June 12, 2020. This period gave the public the opportunity to participate in the rulemaking process. Given the quantity of existing trails upon Reclamation lands, creating additional 60-day public comment periods for each proposed trail would be extremely costly and create a large administrative burden. Additionally, as local field and area offices will work with recreation area managing partners to make such determinations, the decision to add additional comment periods, if necessary, will remain at that level and at the discretion of the Regional Director.

Comment: Reclamation seeks to define relevant classifications of electric bicycles (“E-bikes”) and exclude E-bikes from DOI's regulatory definition of “off-road vehicles,” which are forbidden to be used in certain areas that are open to traditional bicyclists. Permitting the use of certain E-bikes in appropriate areas could indeed benefit many Americans who otherwise could not access certain lands. However, instead of clearly describing a widening of the permitted category of “bicycles,” the amendment offers clumsy, incohesive groupings of E-bikes. The proposed amendments may create arbitrary and capricious results.

Response: The definition of E-bikes included in this rule establishes a consistent definition for use across all DOI bureaus. The definition and associated classification system are based on industry standards and is the same system that many states are using to regulate E-bikes. DOI chose this system to be as consistent as possible with how E-bikes are being regulated.

Comment: The regulation fails to offer any policy rationale, and thus is both arbitrary and capricious and fails to allow commenters to properly respond to the agency's decision-making. The regulation simply states that “E-bikes should be allowed where other, non-motorized types of bicycles are allowed.”

Response: Federal regulation of E-bikes has not been consistent across DOI. The purpose of this rulemaking is to unify regulation of E-bikes on Federal lands managed by DOI. Secretarial Order 3376 directs the Bureau of Land Management, U. S. Fish and Wildlife Service, National Park Service, and Reclamation to define E-bikes, and directs Reclamation to expressly exclude E-bikes from the definition of Off-Road Vehicles (ORV) in accordance with 43 CFR 420.5(a)(7) whereby Reclamation's Regional Directors may expressly determine, as part of a land-use planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles.

Comment: We support allowing only Class 1 E-bikes on narrow trails to better ensure trail integrity and appropriate speeds for safe interaction with other trail users. Class 2 and Class 3 E-bikes are not appropriate for these narrow non-motorized trails.

Response: Reclamation acknowledges comments that request the exclusion of Class 2 and Class 3 E-bikes from non-motorized trails. The rule provides Regional Directors or their delegates authority to determine whether E-bike use generally, or the use of certain classes of E-bikes, would be appropriate on certain roads or trails.

Comment: Omit three-wheeled E-bikes or provide a detailed description of the three-wheeled bikes and specific trail parameters on which they should be allowed. Three-wheeled bikes are closer to all-terrain vehicles and will have specific requirements for the trails unlike a two-wheeled E-bike.

Response: Reclamation acknowledges comments pertaining to omitting the use of three-wheeled E-bikes on non-motorized trails. The rule provides Regional Directors or their delegates the authority to determine whether E-bike use generally, or the use of certain classes of E-bikes, would be appropriate on certain roads or trails. Regional Directors may also determine whether the use of three-wheeled E-bikes are appropriate on certain roads or trails. In addition, keeping in line with industry standards, the term “low-speed” electric bicycles means two- or three-wheeled vehicle.

Comment: Reclamation should amend text within the proposed rule to allow all bicycle trails and routes to be open to E-bikes as well as motorized paths with improved surfaces.

Response: Reclamation believes that E-bikes would generally be appropriate on roads and trails upon which mechanized, non-motorized use is permitted, however there are certain instances where that may not be possible. Therefore, it is most appropriate to follow 43 CFR 420.5(a)(7) whereby Reclamation's Regional Director may expressly determine, as part of a land-use planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles. Additionally, E-bikes are currently allowed on many surfaced roads and motorized paths per state and local level discretion.

Comment: As Reclamation will be allowing E-bikes on non-motorized trails and trail systems, the addition of other ORVs should also be permitted.

Response: This final rule addresses only Class 1, 2, and 3 E-bikes. Reclamation will continue to manage all types of ORVs in accordance with 43 CFR 420.21, Procedure for Designating Areas for Off-Road Vehicle Use. No other types of ORVs will be eligible for exclusion under this rule.

Comment: Reclamation may wish to exclude hoverboards and other standing, electrical motorbikes, because these devices can also have “pedals” that do not engage the motor unless activated. Explicit exclusion of hoverboards and other motorized instruments may be required to avoid an issue.

Response: The intent of the rule is to generally allow E-bikes where a traditional bicycle is allowed. E-bikes may have two or three wheels and must have fully operable pedals. The electric motor for an E-bike may not exceed 750 watts (one horsepower). E-bikes must fall into one of three classes, as described in the rule. The definition provided in the rule, including the requirement for fully operational pedals, is sufficient to allow use of E-bikes and does not apply to other electric vehicles such as scooters, skateboards, or hoverboards if they do not fit into the definition established by this rule.

Comment: Definitions of Class 1, 2, and 3 E-bikes will need to be reassessed and updated to reflect improvement in technologies as it becomes available.

Response: Reclamation acknowledges that future changes in technology may result in some E-bikes not being eligible for exclusion from the definition of ORV as defined in 43 CFR part 420 if they do not fit into the definition established by this rule. Regional Directors may allow the use of certain ORVs on designated routes and trails without any necessary revisions to the regulations as part of 43 CFR 420.21, Procedure for Designation Areas for Off-road Vehicle Use.

Comment: Previous grants that put monies into non-motorized trails, will now have spent their money on trails that are no longer non-motorized. E-bikes would also create issues with further Federal trail funding.

Response: Reclamation recognizes that funding commitments for trail planning, construction, and maintenance must be considered. The use of funds from grants and other funding sources for past, present, and future trail projects will be a contributing factor in making management determinations. Title 43 CFR part 420 gives Regional Directors authority in making management determinations.

Comment: The implementation of the proposed rule will negatively impact natural resources and wildlife.

Response: Future implementation of the rule will be subject to the NEPA process on a case-by-case basis depending on the approach at Reclamation's Regional and Area Office levels. Applying the NEPA process at a site-specific level will allow Reclamation to evaluate detailed information on the potential effects of E-bike use for a particular area and develop site-specific design features and mitigation strategies, if needed. In addition, the rule continues to allow the flexibility in accordance with 43 CFR 420.5(a)(7) whereby Reclamation's Regional Directors may expressly determine, as part of a land-use planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles and to review designated areas and trails periodically for unmitigated resource damage.

Comment: The use of E-bikes on non-motorized trails will create user conflicts and safety concerns for hikers, traditional bikers, and equestrians.

Response: Reclamation acknowledges concerns regarding potential user conflicts and safety concerns on trails that have previously been designated for non-motorized use such as hiking and equestrian trails. As such, the rule allows the flexibility in accordance with 43 CFR 420.5(a)(7) whereby Reclamation's Regional Directors may expressly determine, as part of a land-use planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles and will not create unmitigated user conflicts.

Comment: Based on the three categories of E-bikes as defined in the rule, it will be impossible to enforce that E-bikes are not modified beyond these specifications.

Response: Illegal modification of E-bikes is beyond the scope of this rulemaking process. Reclamation acknowledges that enforcement of modified vehicles is difficult. However, modifications that result in such vehicles no longer qualifying as a Class 1, 2, or 3 E-bike as defined in the rule, result in that vehicle being subject to the same enforcement as designated in 43 CFR 420.4.

Comment: E-bikes have a motor and therefore should not be allowed on non-motorized trails and roads.

Response: Reclamation recognizes the nuance within the comments related to E-bikes having a motor, and therefore should not be allowed on non-motorized trails and roads. In making its decision Reclamation took into consideration the 1972 Executive Order 11644 and the amended 1977 Executive Order 11989, “Use of Off-Road Vehicles on the Public Lands” which established policies and procedures for managing the use of “off-road vehicles” to protect the resources of the public lands, promote safety of all users of the lands, and minimize conflicts among users. The Executive order, which does not reference E-bikes, defines “off road vehicles” as any motorized vehicle designed for or capable of cross-country travel on or immediately over land, water, sand, snow, ice, marsh, swampland, or other natural terrain. Certain vehicles are expressly exempt from this definition and additional exemptions may be made by the respective agency head or as is 43 CFR part 420 by Regional Directors.

In addition, although the E-bikes addressed in this rule have a small electric motor, there are multiple reasons why it is reasonable for Regional Directors to maintain the authority to manage Class 1, 2, and 3 E-bikes in the same manner as non-motorized bicycles.

Class 1, 2, and 3 E-bikes that are the subject of this rule differ significantly in their engineering from the types of motorized vehicles that are expressly referenced in Executive Order 11644 and that the executive branch was interested in regulating. These vehicles include the “motorcycles, minibikes, trail bikes, snowmobiles, dune-buggies, [and] all-terrain vehicles” expressly referenced in Executive Order 11644 and the “motorcycles of various sorts (minibikes, dirt bikes, enduros, motocross bikes, for example), four-wheel drive vehicles such as Jeeps, Land Rovers, or pickups, snowmobiles, dune buggies, and all-terrain vehicles” discussed in a 1979 report by the Council on Environmental Quality (CEQ) that discusses the requirements of the Executive Order in great detail and evaluates efforts undertaken by Federal land management agencies to comply with its requirements. Although these lists were not intended to include every type of vehicle that may fall within the Executive order's definition of off-road vehicle, it is telling that all of the vehicles identified in Executive Order 11644 and the CEQ report differ markedly from E-bikes that may be excluded from the definition of ORV under this rule. Whereas the vehicles referenced in the Executive order are powered by internal combustion engines that produce more than 1 horsepower, the E-bikes that may be allowed on non-motorized trails under this rule rely on human power and only derive some assistance from a small, electric motor. Whereas the E-bikes that are the subject of this rule have operable pedals, the ORVs expressly referenced in the Executive order do not.

As a result of those engineering differences, E-bikes tend to have impacts that are similar to traditional, non-motorized bicycles and unlike those that result from the larger, more powerful vehicles that Executive Order 11644 was intended to mitigate.

Lastly, 43 CFR part 420 has always allowed for the inclusion of ORVs where Regional Directors have authorized the use, this rule is not authorizing the opening of all trails and roads to E-bikes. The intended purpose is to meet public demand for E-bike use and creating opportunities for furthering recreation through the use of E-bikes where it is deemed appropriate.

Comment: Some commenters stated that E-bikes would be incompatible on non-motorized trail networks that were constructed with grant funding from the Recreational Trails Program and other Federal funding sources. Some commenters stated that E-bike use might impact future trail funding from Federal programs such as the Land and Water Conservation Fund.

Response: Class 1, 2, or 3 E-bike use may be inappropriate on certain roads and trails that were constructed or are maintained using funding sources which may prohibit or be inconsistent with motorized use, such as the Recreational Trails Program and other Federal funding sources authorized by Title 23, Chapter 2 of the United States Code. Reclamation has designed the rule to provide Regional Directors with the ability to consider whether E-bike use is consistent with potential funding sources when determining which roads and trails to allow E-bike use. Regional Directors will take these and other types of site-specific consideration into account when making future planning or implementation-level decisions concerning E-bike use.

Comment: The opening of trails to E-bikes on Government managed lands will make it easier for people with physical impairments to enjoy trails again.

Response: The intention of the Secretarial Order 3376, Increasing Recreational Opportunities through the Use of Electric Bikes, was written for this very reason. Reclamation understands that there are members of the public that may be unable to utilize public trails and roads by means of biking due to physical limitations and impairments. It is important to note that while the purpose is to expand recreational opportunities by allowing E-bikes on trails, 43 CFR part 420 will continue to authorize Regional Directors and their delegates authority to open or close the use of E-bikes on certain trails. This decision will remain at the local level and follow the framework of 43 CFR part 420.

Comment: The new rule provides much needed category guidelines for public safety officers as well as a new degree of local level decision making for E-bikes.

Response: The current category classes of E-bikes is a widely used model across the United States. While Reclamation did not create the classes, we do recognize the importance of maintaining a clear and consistent message to aid not only public safety officers, but also the general public. Additionally, due to the unique characteristics of each recreation area, Reclamation also agrees that maintaining local level decision making is vital in successfully implementing the Secretarial Order. In accordance with 43 CFR 420.5(a)(7), Reclamation's Regional Directors may expressly determine, as part of a land-use planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles.

Comment: Federal Laws concerning E-bike use on public lands are currently outdated and are confusing for consumers, small businesses and local governments. This proposed rule fixes that.

Response: Reclamation's final rule is not changing any existing Federal Laws but rather aligning with other land management bureaus within DOI and other Federal Agencies. The Secretarial Order has intended to increase recreational opportunities through the use of E-bikes by establishing uniform rules across DOI. Reclamation's authority to use discretion when opening and closing areas to the use of E-bikes will not be affected by the rule. In accordance with 43 CFR 420.5(a)(7), Reclamation's Regional Directors may expressly determine, as part of a land-use planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles.

After taking the public comments into consideration and after additional review, Reclamation has made the decision to not revise 43 CFR 420.21, but rather add language to 43 CFR 420.5(a)(7) to allow Reclamation's Regional Directors to expressly determine, as part of a land-use planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles. Additionally, Reclamation made small, non-substantive stylistic, formatting, and structural changes to better serve the reader.

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

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

This rule is not an Executive Order 13771 regulatory action because it is not significant under Executive Order 12866.

DOI certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

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

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. This rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing information required by the UMRA (2 U.S.C. 1531 et seq. ) is not required.

This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. This rule is not a Government action capable of interfering with constitutionally protected property rights. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. It does not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the levels of government. A federalism summary impact statement is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

Under the criteria in Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on federally recognized Indian tribes. This rule does not have tribal implications that impose substantial direct compliance costs on Indian Tribal governments.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required.

This rule is categorically excluded from the National Environmental Policy Act of 1969 analysis under DOI categorical exclusion, 43 CFR 46.210(i), which covers policies, directives, regulations, and guidelines: That are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively, or case-by-case. This rule would not change the existing allowances for E-bike usage on Reclamation lands. Rather, it adds a new definition for E-bikes and directs Reclamation to specifically address E-bike usage in future recreation and land-use decisions. The categorical exclusion is appropriate and applicable because the rule is for an administrative change and the environmental effects of the rule in future land use and implementation-level decisions to open or close lands are too speculative to lend themselves to meaningful analysis in this rulemaking. The environmental consequences of these decisions will be subject to the NEPA process before a land use decision is made to ensure the appropriate management of resources on a case-by-case basis.

Pursuant to 43 CFR 46.205(c), Reclamation has reviewed its reliance upon this categorical exclusion against the list of extraordinary circumstances, at 43 CFR 46.215, and has found that none are applicable for this rule. Therefore, neither an environmental assessment nor an environmental impact statement is required for this rulemaking.

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required. This rule will not have a significant effect on the Nation's energy supply, distribution, or use.

This final rule reflects the collective efforts of Reclamation staff in the Asset Management Division under the Dam Safety and Infrastructure Directorate, and in coordination with staff of the Bureau of Land Management, National Park Service, U. S. Fish and Wildlife Service, as well as with assistance from DOI's Office of the Solicitor.

A complete list of all resources reviewed and considered during the development of this rulemaking is available at http://www.regulations.gov at Docket No. BOR-2020-0001.

For the reasons stated in the preamble, Reclamation is amending part 420 of title 43 of the Code of Federal Regulations as follows:

Institutions of higher education across the Nation have been severely impacted by the coronavirus disease 2019 (COVID-19) public health emergency, which has not only required them to adapt teaching methods and practices, but also admissions processes and criteria. USMMA is only one institution among the many faced with the dilemma of how to ensure the selection of qualified candidates given the current situation. The USMMA admissions policy is currently governed by 46 CFR 310.55— Scholastic requirements, which provides in subsection (b)(1) that “[a]pplicants shall qualify in either the College Board's Scholastic Aptitude Tests (SAT) or the American College Testing Program (ACT) examinations, administered nationally on scheduled dates at convenient testing centers.” Subsection (d) further provides that “[n]o waivers of scholastic requirements will be granted.”

Due to the COVID-19 public health emergency, student access to test centers and the opportunity to take the SAT and ACT have been greatly reduced in the United States. Requiring SAT or ACT test scores from students in this admissions cycle by strictly adhering to the regulation as currently written will significantly affect the application process, selection, and appointment of prospective candidates, and may negatively impact enrollment numbers for the Class of 2025 at USMMA.

This interim final rule responds to an emergency waiver request submitted by USMMA seeking a revision to its governing regulations that would provide for a waiver of the scholastic requirements in an emergency situation. After considering the issues raised in the USMMA request, the Agency agrees that the unprecedented disruptions caused by the public health emergency make compliance by prospective candidates with the regulations as presently styled impracticable and warrant appropriate regulatory relief. Accordingly, MARAD is revising the regulations to give the MARAD Administrator the ability to issue a waiver of the scholastic requirements in the event of a State or national emergency that significantly limits the ability of applicants to take either the SAT or ACT. To ensure the proper implementation of this revision, MARAD is seeking comments on the USMMA request and the Agency's Interim Final Rule.

USMMA operates on a rolling admissions cycle. The cycle for the future Class of 2025 began on May 1, 2020 when applications were first accepted. Each candidate must first obtain a Congressional nomination to receive an appointment to the Academy. The nomination process is independent from the application process; each member of Congress decides what requirements they deem appropriate. However, many members of Congress take into consideration a candidate's standardized test scores. Therefore, the lack of ACT/SAT standardized testing availability could prevent candidates from even receiving a nomination.

An application is considered complete when all required documents are submitted, the required standardized test scores are received, and the Candidate Fitness Assessment has been passed. USMMA's current deadline for applications is February 1, 2021. After February 1, USMMA will review applications for completeness, evaluate candidates, and make selections. Only then will candidates be offered an appointment. The process will end when the candidate submits acceptance of the offer in late Spring.

As of September 1, 2020, USMMA had received over 700 applications, with a majority not including ACT or SAT scores. According to the ACT website, there will be continued limitations in test center capacity and inevitable cancellations throughout the remainder of the 2020-2021 test dates. 1 The College Board, which administers the SAT, also reports that a substantial number students who register have been unable to take the test as a result of testing center closure or reduction in capacity due to COVID-19 mitigation measures. 2 This is on top of the College Board cancelling SAT administrations from March through May. 3 As the USMMA admissions process advances into Fall, it is unclear whether applicants will be afforded the opportunity to take the SAT or ACT exam. The deadline for completed applications for USMMA Class of 2025 candidates is February 1, 2021 and therefore, students who are unable to take the SAT or ACT until 2021 may not be able to complete their applications in time for this deadline. Even if the February 1, 2021 deadline were to be postponed and if the public health emergency were to wane sufficiently in the Spring of 2021 to allow the re-opening of test centers, there may still be problems with requiring SAT and ACT test scores for all applicants in this admissions cycle. Test sites may be faced with issues of capacity in Spring of 2021, as they would need to test all students whose testing was postponed due to COVID-19 plus all future high school graduates who will require scores for college entrance in 2022.

After considering the information provided in the request, evaluating the risks posed to maintaining a vibrant and qualified merchant marine, and assessing the ongoing hardships stemming from the public health emergency, the Agency has decided that there exists a need to add flexibility to MARAD's regulations governing USMMA admissions by giving the MARAD Administrator the ability to waive SAT and ACT testing requirements in emergency situations.

The College Board states that this year, many schools and test centers will have reduced capacity because of social distancing guidelines and may encounter unexpected closures. 4 ACT rescheduled its April national and international tests in response to concerns about the spread of the coronavirus. 5 All students registered for April 2020 test dates were notified of the postponement with instructions for rescheduling to future test dates. 6 Both the ACT and SAT websites currently show many postponed/cancelled exams across the 50 States. These exams are conducted in high schools and other public buildings, some of which are not yet re-opened and many of which when re-opened have reduced capacity.

The SAT and ACT are typically taken in the Spring, but due to the COVID-19 public health emergency, Spring test dates in 2020 were canceled and rescheduled for the Summer or Fall. As of September 2020, there are continued limitations in test center capacity, and there are likely to be additional cancellations throughout the remainder of the 2020-2021 test dates. The decision on whether a test center closes rests largely within a State's own discretion, based on guidelines set forth by the Centers for Disease Control and Prevention. Simply stated, the availability of testing this year is highly unpredictable.

In response, many colleges and universities have now resorted to making the SAT/ACT test optional for admissions. More than 60% of 4-year colleges and universities in the U.S. will not require applicants to submit ACT or SAT scores for Fall 2021 admission. 7 All of the Federal service academies are confronted with this situation brought on by the COVID-19 public health emergency, and none have reached a conclusive answer on how to address admissions standards and criteria effectively. United States Air Force Academy (USAFA), United States Military Academy (USMA) and United States Naval Academy (USNA) are considering the waiver of their own requirements for standardized tests from applicants.

Based on the foregoing, MARAD concludes that there is a need to revise its regulations governing USMMA scholastic requirements by giving the MARAD Administrator the ability to waive SAT and ACT testing requirements for USMMA applicants in emergency situations. Due to forces beyond the control of prospective students, the uniform availability of standardized testing is not possible, and therefore, the strict requirement to include such test scores is detrimental to USMMA's ability to offer admission to worthy student candidates.

Because the student application dates are fast approaching, MARAD finds good cause to issue this interim final rule providing an exemption to the scholastic requirements. There is good cause to make this rule effective immediately so as to provide needed relief to prospective students due to the effects of the COVID-19 public health emergency. Pursuant to DOT's regulation on rulemaking procedures, 49 CFR 5.13(j)(2), MARAD seeks to replace this interim final rule with a final rule, which may differ from today's rule in response to comments received. Accordingly, MARAD is accepting comments on this interim final rule. The Agency is seeking comments on whether the emergency waiver for scholastic requirements is appropriate under the circumstances. In particular, MARAD is interested in information concerning whether any other steps could be taken to ensure that all qualified candidates for admission may overcome any regulatory obstacles to admission. Given the narrow focus of this rule and its near-term effects, the Agency has provided an expedited comment period, which the Agency believes will allow commenters sufficient time to address the issues in this rule. See “Public Participation” section below.

The Agency is issuing this interim final rule without prior notice and the opportunity for public comment and the 30-day delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA). Pursuant to section 553(b)(B) of the APA, general notice and the opportunity for public comment are not required with respect to a rulemaking when an “agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” As discussed above in this document, the intent of this action is to provide relief to prospective student candidates for admission to USMMA who, due to the COVID-19 public health emergency, are finding it either impossible or impractical to sit for the SAT or ACT standardized tests. Since dates for submitting admission applications are imminent, the Agency finds it impracticable to seek public comment prior to the effective date of the rule. MARAD seeks to issue this rule to provide relief before it is too late for applicants to be apprised of an emergency waiver to the scholastic requirements and to take action accordingly.

Though this interim final rule is effective immediately, comments are solicited from interested members of the public on all aspects of the interim final rule. These comments must be submitted on or before the date indicated in the DATES section at the beginning of this document. MARAD will consider these comments in deciding any next steps following this interim final rule.

Executive Order (E.O.) 12866, E.O. 13563, and the Department of Transportation's administrative rulemaking procedures set forth in 49 CFR part 5, subpart B, provide for determining whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of E.O. 12866.

Today's interim final rule is not significant and has not been reviewed by OMB under E.O. 12866. This rule is limited to giving the MARAD Administrator the ability to waive the regulatory requirement to include SAT or ACT scores for admission to USMMA in emergency situations. This rule does not actually waive any regulatory requirements. 8 Therefore, this rule does not result in any costs or benefits.

Executive Order 13771, titled “Reducing Regulation and Controlling Regulatory Costs,” directs that, unless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed. In addition, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs. Only those rules deemed significant under section 3(f) of Executive Order 12866, “Regulatory Planning and Review,” are subject to these requirements. Per OMB Memo M-17-21, E.O. 13771 applies to a rulemaking action that is “a significant regulatory action as defined in Section 3(f) of E.O. 12866 that has been finalized and that imposes total costs greater than zero.” As discussed above, this rule adds flexibility to MARAD's regulations by giving the MARAD Administrator the ability to waive SAT/ACT testing requirements in emergency situations. Accordingly, this action is a deregulatory rule under Executive Order 13771. However, this action does not result in any quantified cost savings because it does not actually waive any regulatory requirements.

On May 19, 2020, the President issued E.O. 13924, “Regulatory Relief to Support Economic Recovery,” as part of the country's ongoing recovery effort to the national COVID-19 public health emergency. The Order directs agencies to address the current economic emergency by using to the fullest extent possible any available emergency authorities to support the economic response to the COVID-19 public health emergency. It also directs agencies to provide relief through rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery or by issuing new proposed rules as necessary. This interim final rule is consistent with E.O. 13924 by providing prospective candidates for admission to USMMA adversely affected by the inability to take the SAT or ACT caused by the national health emergency the opportunity to apply for and to be considered for admission.

Pursuant to the Regulatory Flexibility Act (RFA), MARAD has considered the impacts of this rulemaking action on small entities (5 U.S.C. 601 et seq. ). Rules that are exempt from notice and comment are also exempt from the RFA requirements, including conducting a regulatory flexibility analysis, when among other things the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 603(a). Because, as discussed above, this rule is exempt from the APA notice and comment requirements, MARAD is not required to conduct a regulatory flexibility analysis.

MARAD has examined today's interim final rule pursuant to E.O. 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments, or their representatives is mandated beyond the rulemaking process. The Agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The interim final rule will not have “substantial direct effects 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.”

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. This action will not result in additional expenditures by State, local, or tribal governments or by any members of the private sector. Therefore, the Agency has not prepared an economic assessment pursuant to the Unfunded Mandates Reform Act.

Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This final rule includes no new collection of information and will not change any existing collections of information as it does not actually waive any regulatory requirements.

Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov.

MARAD is providing a 30-day comment period.

Your comments must be written in English.

To ensure that your comments are correctly filed in the Docket, please include the Docket Number shown at the beginning of this document in your comments.

If you are submitting comments electronically as a PDF (Adobe) File, MARAD asks that the documents be submitted using the Optical Character Recognition (OCR) process, thus allowing MARAD to search and copy certain portions of your submissions. Comments may be submitted to the docket electronically by logging onto the Docket Management System website at http://www.regulations.gov. Search using the MARAD docket number and follow the online instructions for submitting comments.

You may also submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES .

Please note that pursuant to the Data Quality Act, for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html. DOT's guidelines may be accessed at http://www.bts.gov/programs/statistical_policy_and_research/data_quality_guidelines.

If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.

Confidential business information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to the interim final rule contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this interim final rule, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission that constitutes CBI as “PROPIN” to indicate it contains proprietary information. MARAD will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this interim final rule. Submissions containing CBI should be sent to the email address provided in the FOR FURTHER INFORMATION CONTACT section. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES . Any comments MARAD receives which are not specifically designated as CBI will be placed in the public docket for this rulemaking.

We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES . To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider in developing any follow-on action, we will consider that comment as an informal suggestion for future rulemaking action.

You may read the comments received by Docket Management at the address given above under ADDRESSES . The hours of the Docket are indicated above in the same location. You may also see the comments on the internet. To read the comments on the internet, go to http://www.regulations.gov. Follow the online instructions for accessing the dockets.

Please note that, even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.

In consideration of the foregoing, MARAD amends 46 CFR part 310 as follows:

This is a summary of the Commission's Report and Order in MB Docket Nos. 19-310 and 17-105, FCC 20-109, that was adopted August 6, 2020 and released August 7, 2020. The full text of this document is available for public inspection online at https://docs.fcc.gov/public/attachments/FCC-20-109A1.pdf. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format, etc.) and reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) may be requested by sending an email to fcc504@fcc.gov or calling the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. In this Report and Order (Order), we eliminate section 73.3556 of the Commission's rules (the radio duplication rule) to reflect technological and marketplace changes over the past three decades. As noted in the underlying Notice of Proposed Rulemaking (NPRM), there have been significant changes in the broadcast radio industry since the current version of this rule, which restricts the duplication of programming on commonly owned stations operating in the same geographic area, was adopted in 1992. By today's Order, we eliminate the radio duplication rule for both AM and FM stations. This approach will strike an appropriate balance between fostering our public interest goals of promoting competition and diversity and affording broadcast radio licensees greater flexibility to address issues of local concern in a timely fashion, facilitate digital broadcasting by AM stations, and ultimately allow stations to improve service to their communities. Through this Order, we continue our efforts to modernize our rules and modify or eliminate outdated and unnecessary media regulations.

1. The Commission's broadcast radio programming duplication rules have evolved over time consistent with changes in the broadcast radio market. The Commission first limited radio programming duplication by commonly owned stations serving the same local area in 1964 by prohibiting FM stations in cities with populations over 100,000 from duplicating the programming of a co-owned AM station in the same local area for more than 50% of the FM station's broadcast day. The Commission observed that it had never regarded program duplication as an efficient use of FM frequencies; instead, it had allowed program duplication as, “at best, . . . a temporary expedient to help establish the FM service.” Accordingly, the Commission envisioned “a `gradual' process to end programming duplication once the number of applicants seeking licenses exceeded the number of vacant FM channels available in large cities.” At that time, the Commission sought to minimize the economic impact to radio broadcasters from limiting programming duplication. In particular, the rule allowed for waivers upon a showing that programming duplication would be in the public interest. It further provided that compliance would be monitored through the license renewal process.

2. In 1976, the Commission tightened the radio duplication restriction to limit FM stations to duplicating only 25% of the average program week of a co-owned AM station in the same local area if either the AM or FM station operated in a community with a population of over 25,000. Based on its 12 years of experience observing the effects of the radio duplication rule, the Commission delayed implementation of the tightened 25% limit on smaller cities for approximately four years, establishing interim limits that prohibited FM stations from duplicating more than 25% of average broadcast week programming of a commonly owned AM station in communities over 100,000 and 50% of programming of a commonly owned AM station in communities over 25,000 but under 100,000. At that time, the Commission observed that “the public does not have to depend on non-duplication to add diversity” when new broadcasting frequencies remained available. But given “the virtually complete absence of available [FM] channels as well as the strengthened economic position of FM” stations, the Commission adopted a tighter limit, finding that “the greatly diminished availability of FM channels in communities of any substantial size” could inhibit programming diversity. It also noted again “the inherent wastefulness of duplication,” i.e., that duplication of programming was an inefficient use of spectrum. This change also made the city size criterion apply both to the size of the city of the AM station as well as the size of the city of the FM station, rather than considering the size of the city of the FM station alone, as the previous rule had.

3. In 1986, in response to a petition for rulemaking seeking to exempt late-night hours when determining compliance with the radio duplication rule, the Commission eliminated the cross-service radio duplication rule entirely. It found that FM service had developed sufficiently to eliminate the rule and that FM stations were fully competitive, obviating the need to foster the development of an independent FM service through a requirement for separate programming. The Commission further found that the rule was no longer necessary to promote spectrum efficiency because market forces would lead stations to provide separate programming where economically feasible and, where separate programming was not economically feasible, duplication was preferable to a station's reducing programming or going off the air entirely in order to comply with the rule. In reaching this conclusion, the Commission noted that duplication could save costs for many AM stations experiencing economic difficulties due to listeners switching to FM.

4. In 1992, as part of a broad proceeding reviewing its national and local radio ownership rules, the Commission adopted a new radio duplication rule limiting the duplication of programming by commonly owned stations or stations commonly operated through a time brokerage agreement in the same service (AM or FM) with substantially overlapping signals to 25% of the average broadcast week. Principal community contours are defined as “predicted or measured 5 mV/m groundwave for AM stations and predicted 3.16 mV/m for FM stations.” A time brokerage agreement generally involves the sale by one radio licensee of blocks of time to a broker who then supplies programming to fill that time and sells the commercial spot advertising to support it. In setting the limit on programming duplication at 25% of the total hours of a station's average weekly programming, the Commission sought to strike an appropriate balance between affording stations the ability to repurpose costly programming and continuing to foster competition, diversity, and spectrum efficiency in the local market. The Commission saw no public benefit from allowing commonly owned same-service stations in the same local market to duplicate programming more than 25%, observing that, “when a channel is licensed to a particular community, others are prevented from using that channel and six adjacent channels at varying distances of up to hundreds of kilometers. The limited amount of available spectrum could be used more efficiently by other parties to serve competition and diversity goals.” The Commission also incorporated time brokerage agreements in the rule because it was concerned about the possibility that “widespread and substantial time brokerage arrangements among stations serving the same market, in concert with increased common ownership permitted by our revised local rules, could undermine our continuing interest in broadcast competition and diversity.” The Commission concluded, however, that some programming duplication had benefits, stating “we are persuaded that limited simulcasting, particularly where expensive, locally produced programming such as on-the-spot news coverage is involved, could economically benefit stations and does not so erode diversity or undercut efficient spectrum use as to warrant preclusion.”

5. As part of its continuing commitment to modernizing its media regulations, the Commission issued the NPRM initiating this proceeding in November 2019, seeking comment on the radio duplication rule and whether it should be retained, modified, or eliminated. As we noted in the NPRM, the broadcast industry has changed significantly since the Commission adopted the current radio programming duplication rule in 1992. In particular, significant growth in the number of radio broadcasting outlets, the advent of digital HD Radio, and the evolution of new and varied formats in which to disseminate programming ( i.e., digital satellite radio, streaming via station websites, and mobile applications) have led to greater competition and programming diversity in radio broadcasting. Accordingly, we asked commenters to address several issues, including the impact of market forces on programming consolidation and the impact of the radio duplication rule on the Commission's public interest goals of localism and diversity, as well as on spectrum efficiency. We also sought comment on whether the Commission's prior rationale for eliminating the cross-service duplication programming rule—that duplication is preferable to curtailing programming or going off the air entirely where separate programming is not economically feasible—applies equally to the same-service duplication rule. We sought input on the benefits of allowing some level of programming duplication, as well as potential modifications to the rule. In addition, we asked whether the rule should treat stations in the AM service and the FM service differently in light of the particular economic and technical challenges facing AM stations. Finally, we asked commenters to discuss potential costs and benefits of modifying or eliminating the rule.

6. Four parties filed comments in response to the NPRM and two parties filed reply comments. Though the number of commenters in the proceeding was small, commenters represent a cross-section of the broadcast industry and proffer a variety of arguments both supporting and opposing changing the rule. Bryan Broadcasting Corporation supports, at a minimum, elimination of the rule as pertains to AM stations when one station transitions to all-digital transmission and one remains operating in analog and takes no position on the rule as pertains to the FM service. Common Frequency, Inc. opposes elimination of the rule as to both AM and FM stations, National Association of Broadcasters supports elimination of the rule as pertains to both AM and FM stations, and REC Networks supports partial elimination of the rule as pertains to AM stations and opposes elimination of the rule as pertains to FM stations. Kern Community Radio opposes elimination of the radio duplication rules as to both AM and FM stations and offers several proposals for strengthening the rule. The NPRM also sought comment on whether the radio duplication rule could implicate the First Amendment to the U.S. Constitution. However, no commenters addressed this issue.

7. As discussed below, we eliminate section 73.3556 of our rules in order to provide radio broadcasters with increased flexibility in programming decisions. We conclude that the costs of continued regulation of radio programming duplication exceed the benefits of regulation, which we believe is no longer necessary. We find that the unique technical and economic challenges that AM broadcasters currently confront, coupled with the desire to facilitate an AM digital broadcasting transition, warrant eliminating the rule for AM licensees in order to provide them with greater flexibility, as advocated by several commenters. In so doing, we note that currently, AM stations may operate in a “hybrid” mode, transmitting both an analog and a digital signal using In-Band On-Channel (IBOC) technology. IBOC refers to the method of transmitting a digital radio broadcast signal centered on the same frequency as the AM or FM station's present frequency. Like FM band transmissions using IBOC technology, AM band transmissions place the digital signal in sidebands above and below the existing AM carrier frequency. By this means, the digital signal is transmitted in addition to the existing analog signal. In both instances, the digital emissions fall within the spectral emission mask of the station's channel. The present IBOC system is referred to as a “hybrid” because it is neither fully analog nor fully digital. During hybrid operation, existing receivers continue to receive the analog (non-digital) signal, while newer receivers incorporate both modes of reception, automatically switching to receive either the analog or the digital signal. Recently, the Commission has proposed to permit AM stations to operate in all-digital mode, rather than requiring that they maintain an analog signal alongside the digital signal in hybrid operations.

8. Similarly, we find that the benefits of eliminating the rule for FM licensees outweigh any potential negative impacts on public interest objectives of competition, program diversity, and spectrum efficiency for which the radio duplication rule was originally adopted. For these reasons, we find that the current rule no longer strikes the right balance between affording stations the ability to repurpose programming and continuing to foster competition, diversity, and spectrum efficiency in the local market.

9. Because we eliminate the rule, we decline to adopt CFI's proposals to (1) extend the programming duplication signal coverage area for AM stations and (2) assess duplication in the AM service on a case-by-case basis. We also decline to adopt (1) Kern's proposal that we extend the overlap areas of full-service stations; (2) REC's proposal that the Commission impose upon AM stations entering such duplication arrangements a requirement to surrender any cross-service FM translators after a certain time period; and (3) CFI's similar proposal to limit the number of FM translators licensed to a duplicated AM station or disallow use of FM translators by a duplicated AM station. The record does not support these proposals. In particular, commenters fail to explain why their proposals would be sufficient to alleviate industrywide pressures that make continued application of the rule overly burdensome. Additionally, having concluded that industrywide relief from non-duplication restrictions is warranted, we decline to require potentially struggling licensees to endure the administrative costs and burdens of seeking individual waivers that otherwise might be required were we to retain at least some radio duplication restrictions. Further, because we eliminate the rule for the FM service, we decline to adopt proposals to tighten or expand the radio duplication rule for the FM service, as requested by some commenters, specifically CFI's proposal that we extend the programming duplication signal coverage area for FM stations and Kern's proposal that we expand the radio duplication rule to include extending the overlap areas of full-service stations. As the commenters have provided only bare assertions as to these proposals, offering no specific evidence or analysis, we reject these suggestions that we expand the existing rule instead of eliminating it. We also decline to adopt proposals to expand the radio duplication rule to cover translators and NCE stations, as we find these proposals to be outside the scope of this proceeding. We similarly decline to address various other proposals, including NAB's request to modernize the translator duplication rule, CFI's recommendation to change the translator rule and have broadcasters specify the origin of programming received by satellite, and various suggested changes from Kern because they are likewise outside the scope of this proceeding.

10. AM Service. We conclude that the radio duplication rule no longer serves the public interest as applied to commonly owned AM stations in light of current marketplace conditions. As we have noted in several recent proceedings, the AM broadcasting service faces persistent interference issues that have hampered the service and frustrated both consumers and licensees. In particular, the service has faced an increase in the level of environmental and man-made noise over time, which has increased the amount of interference in the band. In addition, AM stations continue to be more difficult to operate and more expensive to maintain than FM stations, requiring larger and more complex physical plants, which are increasingly under pressure in urban areas.

11. Moreover, the AM service continues to contend with lower quality non-stereo audio and declining listenership. The technical challenges that the AM service has long faced have been compounded in recent decades by the continued predominance of FM radio in the broadcast industry and the introduction of alternative sources of higher-quality audio signals. These technical challenges lead to economic challenges, as the interference issues and lower-quality audio endemic to analog AM radio may drive down listenership, further reducing stations' ability to invest in order to meet these technical challenges. Additionally, the impact of the COVID-19 pandemic is exacerbating the economic challenges that many AM stations are already confronting. We find that permitting the additional flexibility of simulcasting may be useful to AM stations that are financially struggling. As the Commission observed in addressing this issue in the past, “where separate programming is not economically feasible, duplication of AM service is preferable to a struggling station reducing programming or going off the air entirely to comply with the rule.” Given these ongoing challenges, we conclude that the AM service would benefit from greater flexibility in making programming decisions and, in particular, from having the option to potentially repurpose costly programming on commonly owned stations.

12. Additionally, although the foregoing reasons alone provide a sufficient basis to eliminate the radio duplication rule for AM stations, we also agree with the majority of commenters in this proceeding that eliminating the radio duplication rule could help to ease the AM service transition from analog to digital broadcasting, both for stations and their audiences. As BBC observes, allowing AM broadcasters to operate in, and experiment with, all-digital transmissions, while retaining the ability to serve both analog and digital listeners would foster the conversion of the AM service to digital “without disenfranchising the listeners of a station who do not yet own a digital AM receiver.” Similarly, NAB and REC assert that eliminating the radio duplication rule would increase public awareness of the all-digital mode. That is, while our decision to eliminate the radio duplication rule for AM stations is not dependent on a Commission decision to permit AM stations to operate in all-digital mode rather than hybrid mode, we note that, in the event that the Commission permits all-digital AM operations, eliminating the duplication rule would permit a broadcaster with two commonly owned AM stations to simulcast the same programming on both stations, one in analog and one in digital. We also note that, should stations be permitted to make the digital transition, the technical capacity exists for them to transition from analog to hybrid to all-digital, rather than transitioning directly from analog to all-digital or simulcasting in hybrid and all-digital. Digital radio holds significant promise for AM stations, enabling them to provide sound quality that is equivalent, or superior, to standard analog FM sound quality. Digital AM radio also provides a clear, interference-free signal in contrast to AM analog radio, which is more susceptible to interference. Furthermore, experimentation in all-digital signals has shown potential promise in signal coverage robustness. In addition, technological innovations in all-digital radio allow for “advanced consumer-friendly features, such as real-time data and information displays, that are not available via analog AM radio.” Thus, allowing simulcasting could attract new listeners with the higher audio quality made possible by digital operations without eliminating the ability of analog listeners to continue to access the station's programming should all-digital signals ultimately be permitted. Furthermore, as NAB asserts, permitting such simulcasting would serve the public interest by enabling “broadcasters to build and maintain a robust audience across the market while evaluating how best to not only survive, but thrive, in the future.”

13. By eliminating the rule as applied to AM service, we would therefore eliminate a potential obstacle to a new technology that may serve to revitalize the AM industry. Proponents of all-digital AM broadcasting have asserted that “ `the benefits of authorizing all-digital AM will be widespread for broadcasters and listeners alike' ” and “ `a voluntary transition to all-digital AM service could help to reverse [waning AM audience share and advertising revenues] by enabling broadcasters to provide a pristine signal.' ” Although IBOC hybrid operations offer some ability for AM stations to provide digital service, the IBOC technology has not been widely used by AM stations. As stations are now increasingly exploring the potential for switching from all-analog to all-digital operations, it is logical for the Commission to remove legacy rules that may serve as impediments to a possible all-digital transition. Accordingly, eliminating the radio duplication rule as to the AM service has the potential to drive adoption of this new technology, if eventually authorized by the Commission, by enabling co-owned stations to offer digital programming to the community while maintaining the programming in analog.

14. FM Service. We conclude that the record demonstrates that eliminating the radio duplication rule as applied to the FM service would serve the public interest. Although the FM service does not face precisely the same persistent technical and economic challenges as the AM service, we find that the record supports eliminating the rule for FM stations in order to provide greater flexibility to address issues of local concern in a timely fashion, particularly in times of crisis. Moreover, we find that the existing waiver process is not an efficient means of granting regulatory relief in this context.

15. The current COVID-19 national emergency highlights the need to provide broadcasters increased flexibility to react nimbly to local needs, as circumstances have changed rapidly in different jurisdictions across the country since the beginning of the outbreak. Efforts to slow the spread of COVID-19 “have resulted in the dramatic disruption of many aspects of Americans' lives, including social distancing measures to prevent person-to-person transmission that have required the closure of businesses across the country for indefinite periods of time.” In the past several months, the Commission has taken a number of steps to accommodate FCC licensees and regulatees in light of these disruptions. With respect to the radio duplication rule, NAB states that “allowing FM broadcasters to duplicate programming on a commonly owned station could be particularly helpful in times of crisis, including the one our nation is currently undergoing.” NAB notes further that “small broadcasters with fewer resources are especially vulnerable if one of their studio employees contracts the virus,” as “the rest of their staff may be forced to quarantine, making it difficult to produce original programming.” We agree and find that in such circumstances, the ability to quickly repurpose programming on commonly owned stations will allow such stations to use their limited resources efficiently, as well as to widely share critical news and health information with the local community. Of course, this same rationale applies to weather and other emergencies, “when it is in the public interest to allow stations to pool resources and simulcast emergency news and information without having to incur the expense and delay of obtaining a waiver.” In such emergencies, eliminating the radio duplication rule would provide FM stations with critical flexibility to duplicate programming from a sister station. Although stations can always seek a waiver of the Commission's rules, the waiver process may unnecessarily inhibit the ability of stations to react quickly and effectively to local emergencies and changes in circumstances. In addition, although current economic conditions are expected to be temporary, they have dampened advertising revenues across the industry and we see no reason to require broadcasters to bear the costs of seeking waivers where, as here, industry-wide relief is appropriate and, as discussed below, substantial program duplication on stations serving the same market is unlikely to be profitable.

16. Furthermore, we find that eliminating the radio duplication rule for the FM service has additional benefits, including helping stations inform listeners of a format change by permitting the simulcast of the new format on multiple stations. Accordingly, just as with AM, we believe there are potential benefits to permitting FM stations to duplicate programming as circumstances warrant, and we therefore eliminate the rule as to both radio services.

17. Despite our action today, we continue to believe that broadcasters have no incentive to limit their appeal and thus their revenues by simulcasting the same programming on multiple stations for long periods of time. Accordingly, bare assertions as to the continued usefulness of the radio duplication rule for the FM service—for instance, that the rule ensures “some basic level of diversity and . . . prevent[s] spectrum warehousing—are not persuasive. Kern, a self-described “prospective non-commercial community broadcaster,” states that there is a need for spectrum for new, diverse, and hyperlocal programming in the FM service and claims that programming duplication “stifle[s] local programming, diversity of programming, and new broadcast entrants.” However, to the extent that Kern believes regulation of radio station duplication will affect the availability of LPFM channels, we note that eliminating the radio duplication rule in order to provide commercial broadcast radio licensees with increased flexibility would have no impact on Kern's aspiration to become a noncommercial licensee. Nor does the record provide any evidence that the current limit restricting the duplication of programming to 25% of the station's average broadcast week has provided public interest benefits. Rather, we agree with NAB's assertion that “airing diverse content on commonly owned stations is the best way to reach the widest audience possible and maximize revenues.” Therefore, although in today's Order we provide additional flexibility to broadcast radio stations, we believe that licensees will prefer to maximize the potential for their stations to reach the greatest number of listeners with the greatest amount of programming. That is, we do not believe that duplication will be a common practice by station owners as a substantially increased amount of it is unlikely to be well-received by the marketplace. Rather, we anticipate that stations will likely use the ability to duplicate programming either in an effort to preserve broadcasting in both the AM and FM services, address issues of local concern in a timely fashion, respond to a crisis, or aid in a potential digital transition in the AM service. As a result, we believe that the costs of continued regulation outweigh the benefits of regulation; any potential negative impacts on public interest objectives that may result from our action will be minimal and will be outweighed by the public interest benefits identified above.

18. We note that some commenters' observations about some non-commercial educational licensees substantially duplicate programming on commonly owned NCE stations across separate markets across the country are inapposite to our consideration of the radio duplication rule, which addresses commonly owned commercial stations in the same market, because such programming duplication involves separate markets. We also find CFI's claim that elimination of the rule will harm minority broadcasters to be speculative and unsupported by the record. CFI supposes that, absent the non-duplication rule, a station that otherwise would have been “LMA'd to a minority broadcaster could simply just rebroadcast programming to another station.” CFI provides no evidentiary support, analysis, or explanation as to why this outcome is likely. To the extent its position is that a change in the radio duplication rule will lead to more consolidation, we do not believe that this rule change will give rise to new acquisitions of stations solely for the purpose of replicating the programming of an incumbent station already serving the same local area, as such a strategy appears unlikely to be profitable. Thus, we dismiss any assertion that our rule change will result in an increase in consolidation of radio station ownership. Furthermore, as noted above, we believe that existing station owners may use programming duplication in an effort to preserve programming in both services, to respond to a crisis, or to aid in a potential digital transition in the AM service, benefits that would accrue to minority as well as non-minority broadcasters.

19. Final Regulatory Flexibility Act Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to this Order. The FRFA is set forth in Appendix B.

20. Paperwork Reduction Analysis. This document does not contain new or revised information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13, (44 U.S.C. 3501 through 3520). In addition, therefore, it does not contain any new or modified “information burden for small business concerns with fewer than 25 employees” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4).

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

22. Additional Information. For additional information on this proceeding, contact Jamile Kadre, Jamile.Kadre@fcc.gov, of the Industry Analysis Division, Media Bureau, (202) 418-2245.

1. The current radio duplication rule prohibits any commercial AM or FM radio station from devoting “more than 25 percent of the total hours in its average broadcast week to programs that duplicate those of any other station in the same service (AM or FM) which is commonly owned or with which it has a time brokerage agreement if the principal community contours . . . of the stations overlap and the overlap constitutes more than 50 percent of the total principal community contour service area of either station.” In this Report and Order ( Order ), we eliminate section 73.3556 of the Commission's rules (the radio duplication rule) to reflect technological and marketplace changes over the past three decades, including the digital transition. As noted in the underlying Notice of Proposed Rulemaking ( NPRM ), there have been significant changes in the broadcast radio industry since the current version of this rule was adopted in 1992. Eliminating the radio duplication rule for both AM and FM licensees will afford broadcast radio licensees greater flexibility to address issues of local concern in a timely fashion, facilitate digital broadcasting by AM stations, and ultimately allow stations to improve service to their communities.

2. For AM licensees, we find that the unique technical and economic challenges that AM broadcasters currently confront, coupled with the desire to facilitate an AM digital broadcasting transition, warrant eliminating the rule for AM licensees in order to provide them with greater flexibility. The AM broadcasting service faces persistent interference issues that have hampered the service and frustrated both consumers and licensees. In particular, the service has faced an increase in the level of environmental and man-made noise over time, which has increased the amount of interference in the band. In addition, AM stations continue to be more difficult to operate and more expensive to maintain than FM stations, requiring larger and more complex physical plants, which are increasingly under pressure in urban areas. Thus, we find that permitting a broadcaster who owns two AM stations in the same local area to duplicate programming without regard to the degree of contour overlap between the two stations will serve the public interest by affording AM broadcast licensees greater flexibility to respond to marketplace conditions and ultimately will allow stations to improve service to their communities.

3. We also find that the record demonstrates that eliminating the radio duplication rule as applied to the FM service would serve the public interest. Although the FM service does not face precisely the same persistent technical and economic challenges as the AM service, we find that the record supports eliminating the rule for FM stations in order to provide greater flexibility to address issues of local concern in a timely fashion. Moreover, we find that the existing waiver process is not an efficient means of granting regulatory relief in this context. In emergencies, the ability to quickly repurpose programming on commonly owned stations will allow stations to use their limited resources efficiently, as well as to widely share critical news and health information with the local community. Although stations can always seek a waiver of the Commission's rules, the waiver process may unnecessarily inhibit the ability of stations to react quickly and effectively to local emergencies and changes in circumstances. Furthermore, we find that eliminating the radio duplication rule for the FM service has additional benefits, including helping stations inform listeners of a format change by permitting the simulcast of the new format on multiple stations. Accordingly, just as with AM, we believe there are potential benefits to permitting FM stations to duplicate programming as circumstances warrant, and we therefore eliminate the rule as to both radio services.

4. There were no comments to the IRFA filed.

5. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

6. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

7. The rule changes adopted herein will directly affect certain small radio broadcast stations, specifically commercial AM and FM radio stations. Below, we provide a description of these small entities, as well as an estimate of the number of such small entities, where feasible.

8. Radio Broadcasting. This U.S. Economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public.” Programming may originate in the establishment's own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: Those having $38.5 million or less in annual receipts. Economic Census data for 2012 show that 2,849 firms in this category operated in that year. Of that number, 2,806 operated with annual receipts of less than $25 million per year, 17 with annual receipts between $25 million and $49,999,999 million and 26 with annual receipts of $50 million or more. Based on this data, we estimate that the majority of commercial radio broadcast stations were small under the applicable SBA size standard.

9. The Commission has estimated the number of licensed commercial FM radio stations to be 6,726, the number of commercial FM translator stations to be 8,188 and the number of commercial AM radio stations to be 4,580, for a total of 19,494 commercial radio stations. Of this total, nine commercial radio stations had revenues of $38.5 million or greater in 2018, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Database (BIA) on June 15, 2020. All other commercial radio stations qualify as small entities under the SBA definition. Of this total, nine commercial radio stations had revenues of $38.5 million or greater in 2018, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Database (BIA) on June 15, 2020. All other stations qualify as small entities under the SBA definition.

10. In assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the estimate of small businesses to which the proposed rules may apply does not exclude any radio station from the definition of small business on this basis and is therefore possibly over-inclusive.

11. The Order eliminates the radio duplication rule as applied to AM stations and FM stations. Accordingly, the Order does not impose any new reporting, recordkeeping, or compliance requirements for small entities. The Order thus will not impose additional obligations or expenditure of resources on small businesses.

12. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

13. In this proceeding, the Commission has three chief alternatives available for the radio duplication rule—eliminating the rule in its entirety, retaining the rule in its entirety, or modifying the rule in some other form. The Commission finds that the public interest and marketplace realities support eliminating the rule in its entirety, i.e., eliminating the restriction on radio duplication for both AM and FM stations. Further, should the Commission permit AM stations to operate in all-digital format, elimination of this rule will facilitate the transition to all-digital broadcasting by allowing an AM station to simulcast its programming on two stations in analog and digital format. Given that most commercial broadcast stations qualify as small entities, eliminating the rule will help small entities by providing greater flexibility for those stations that require it in order to continue providing programming. Specifically, eliminating the radio duplication rule for both AM and FM stations would allow broadcasters to repurpose programming on commonly owned stations.

14. The Commission will send a copy of this Second R&O, including this FRFA, in a report to Congress and the Government Accountability Office pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the Commission will send a copy of the Second R&O, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the Second R&O and FRFA (or summaries thereof) will also be published in the Federal Register .

15. None.

16. Accordingly, it is ordered that, pursuant to the authority found in sections 1, 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 303(r), this Order is adopted.

17. It is further ordered that, pursuant to the authority found in sections 1, 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 303(r), the Commission's rules are amended as set forth in Appendix A, effective as of the date of publication of a summary in the Federal Register .

18. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

19. It is further ordered that, pursuant to Section 801(a)(1)(A) of the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission shall send a copy of the Order to Congress and to the Government Accountability Office.

20. It is further ordered that, should no petitions for reconsideration or petitions for judicial review be timely filed, MB Docket No. 19-310 shall be terminated and its docket closed.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

The penaeid shrimp fishery of the South Atlantic is managed under the FMP. The FMP was prepared by the Council and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On July 10, 2020, NMFS published a notice of availability for Amendment 11 and requested public comment (85 FR 41513). On August 13, 2020, NMFS published a proposed rule for Amendment 11 and requested public comment (85 FR 49355). NMFS approved Amendment 11 on September 28, 2020. The proposed rule and Amendment 11 outline the rationale for the actions contained in this final rule. A summary of the management measures described in Amendment 11 and implemented by this final rule is described below.

Amendment 9 to the Shrimp FMP revised the criteria and procedures by which a South Atlantic state may request that NMFS implement a concurrent closure to the harvest of penaeid shrimp (brown, pink, and white shrimp) in the exclusive economic zone (EEZ) when state waters close as a result of severe winter weather (78 FR 35571; June 13, 2013). The Shrimp FMP provides that if a state has determined there is at least an 80-percent reduction in the population of overwintering white shrimp, or that state water temperatures were 9 °C (48 °F) or less for at least 7 consecutive days, the state can request NMFS to close the EEZ adjacent to that state's closed waters to the harvest of penaeid shrimp to protect the white shrimp spawning stock that has been severely depleted by cold weather.

The Shrimp FMP procedures allow a state, after determining that the concurrent closure criteria have been met, to submit a letter directly to the NMFS Regional Administrator (RA) with the request and supporting data for a concurrent closure of penaeid shrimp harvest in the EEZ adjacent to the closed state waters. After a review of the request and supporting information, if the RA determines the recommended closure is in accordance with the procedures and criteria specified in the FMP and the Magnuson-Stevens Act, NMFS would implement the closure through a notification in the Federal Register . The closure will usually remain effective until the ending date of the state's closure, but may be ended earlier based upon a request from the state.

Currently, shrimp trawl vessels transiting these EEZ cold weather closed areas with penaeid shrimp on board are required to stow a trawl net with a mesh size of less than 4 inches (10.2 cm) below deck. Since the most recent cold weather EEZ closures off South Carolina (83 FR 2931; January 22, 2018) and Georgia (83 FR 3404; January 25, 2018), fishermen requested that the Council update these transit provisions. Fishermen requested this change to increase their ability to transit the closed areas, since more recent vessel design changes have limited access to below deck storage. Also, requirements for a larger turtle excluder device (TED) in the trawl net to protect leatherback sea turtles have increased the size of a net that would need to be folded and stored below deck. Fishermen also stated that having to disassemble trawl gear for below deck stowage in rough sea conditions is a safety concern. Additionally, some fishermen stated that they avoid the closed areas entirely as they were not able to meet the transit requirements.

NMFS expects that Amendment 11 and this final rule will update the regulations to better match the current design of the vessels in the fishery, reduce the socio-economic impact for fishermen who had difficulty transiting the cold weather closed areas under the regulations, and improve safety at sea for fishermen through reduced travel time around the closed areas and by not having to disassemble fishing gear in rough weather for stowage below deck, while maintaining protection for overwintering white shrimp and enforceability of the regulations for the cold weather closed areas.

This final rule revises the transit provisions for shrimp trawl vessels with penaeid shrimp on board transiting through cold weather closed areas in Federal waters of the South Atlantic. The final rule allows a vessel to possess penaeid shrimp (brown, pink, and white shrimp) in South Atlantic cold weather closed areas provided the vessel is in transit and fishing gear is appropriately stowed. Transit will be defined as non-stop progression through the area with fishing gear appropriately stowed. Fishing gear appropriately stowed will be defined as trawl doors are in the rack (cradle) on deck, nets would be in the rigging and tied down, and the try net would be on the deck. Doors in the rack means the trawl doors are stowed in their storage racks out of the water on the vessel's deck. Nets in the rigging means the trawl nets are out of the water and are tied to the trawl vessel's rigging.

The transit provision in this final rule was developed and recommended to the Council by the Council's Law Enforcement, Shrimp, and Deep-water Shrimp Advisory Panels. Doors in the rack (cradle), nets in the rigging and tied down, and try net on the deck will enable law enforcement on the water or in the air to see from a distance if fishermen are complying with the transit provisions without having to actually board the vessel, thereby saving time and reducing the safety risks associated with a vessel boarding.

This final rule will reduce the time needed to stow gear because fishermen will no longer need to disassemble the trawl gear (remove nets from the rigging and the doors) prior to stowing nets with mesh sizes less than 4 inches (10.2 cm) below deck. This final rule is expected to reduce adverse socio-economic and safety at sea impacts associated with the transit provisions through reduced travel time around the closed areas and reduced time on the water for fishermen by not requiring gear stowage below deck.

NMFS received two comments from individuals during the public comment periods on the notice of availability and proposed rule for Amendment 11. One comment was in support of the vessel transit action. NMFS acknowledges the comment and agrees with it. The other comment was outside the scope of the action and is not responded to in this final rule. No changes were made to this final rule in response to public comment.

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with Amendment 11, the Shrimp FMP, the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866. This final rule is considered an Executive Order 13771 deregulatory action.

The Magnuson-Stevens Act provides the statutory basis for this final rule. No duplicative, overlapping, or conflicting Federal rules have been identified. A description of this final rule, why it is being implemented, and the purposes of this final rule are contained in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this preamble. The objectives of this final rule are to ensure transit regulations are consistent with current fishing vessel designs, reduce the adverse social and economic effects on commercial shrimp fishing businesses that have not been able to transit closed areas due to an inability to comply with the current transit regulations, improve safety at sea and the enforceability of transit regulations, and maintain protection for over-wintering white shrimp.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) during the proposed rule stage that this final rule, if adopted, would not have a significant economic impact on a substantial number of small entities. NMFS did not receive any comments from SBA's Office of Advocacy or the public regarding the economic analysis of Amendment 11 or the certification in the proposed rule. No changes to this final rule were made in response to public comments. The factual basis for the certification was published in the proposed rule and is not repeated here. Because this final rule is not expected to have a significant economic impact on a substantial number of small entities, a final regulatory flexibility analysis is not required and none has been prepared.

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows:

NMFS published final 2020 specifications for the Atlantic Herring Fishery Management Plan on May 6, 2020 (85 FR 26874), establishing the 2020 annual catch limit (ACL) and area sub-ACLs. Table 1 shows the original herring specifications for 2020 and the specifications that are revised by this action for the remainder of the calendar year.

The NMFS Regional Administrator tracks herring landings in the New Brunswick weir fishery each year. The regulations at 50 CFR 648.201(h) require that if the New Brunswick weir fishery landings through October 1 are less than 2,942 mt, then NMFS subtracts 1,000 mt from the management uncertainty buffer and increases the ACL and Area 1A sub-ACL by 1,000 mt. When such a determination is made, NMFS is required to notify the New England Fishery Management Council and publish the ACL and Area 1A sub-ACL adjustment in the Federal Register .

Information from Canada's Department of Fisheries and Oceans indicates that the New Brunswick weir fishery landed 1,125 mt of herring through October 4, 2020. Therefore, the Regional Administrator determined, based on the best available information, that the New Brunswick weir fishery landed less than 2,942 mt through October 1, 2020. Effective October 22, 2020, 1,000 mt will be re-allocated from the management uncertainty buffer to the Area 1A sub-ACL and ACL. This increases the Area 1A sub-ACL from 3,344 mt to 4,344 and the ACL from 11,571 mt to 12,571 mt. The revised specifications will be used to project when catch will reach 92 percent of the Area 1A sub-ACL or 95 percent of the ACL for the purpose of implementing a 2,000-lb (907-kg) herring possession limit in Area 1A or in all management areas, respectively.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 648, which was issued pursuant to section 403(b), and is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA, finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment on this inseason adjustment because it would be contrary to the public interest. This action allocates a portion of the management uncertainty buffer to the ACL and Area 1A sub-ACL for the remainder of the year. If implementation of this inseason action is delayed to solicit prior public comment, the objective of the fishery management plan to achieve the optimum yield (OY) in the fishery could be compromised. Deteriorating weather conditions during the latter part of the fishing year may reduce fishing effort, and could also prevent the ACL from being fully harvested. This would result in a negative economic impact on vessels permitted to fish in this fishery. Moreover, the process being applied here was the subject of notice and comment rulemaking. The adjustment is routine and formulaic, required by regulation, and is expected by industry. The potential to re-allocate the management uncertainty buffer was also outlined in the final 2020 herring specifications that were published May 8, 2020, which were developed through public notice and comment. Based on these considerations, NMFS further finds, pursuant to 5 U.S.C 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.