On August 26, 2019, the Department published an IFR amending the regulations related to the internal organization of EOIR. See Organization of the Executive Office for Immigration Review, 84 FR 44537 (Aug. 26, 2019).

The IFR revised §§ 1001.1, 1003.0, 1003.1, 1003.108, 1292.6, 1292.11, 1292.12, 1292.13, 1292.14, 1292.15, 1292.16, 1292.17, 1292.18, 1292.19, and 1292.20 in title 8 of the Code of Federal Regulations (“CFR”), and §§ 0.115, 0.116, 0.117, and 0.118 in title 28 of the CFR.

First, the IFR amended titles 8 and 28 of the CFR to reflect the establishment of EOIR's OP, which was created in 2017 to issue operational instructions and policy, administratively coordinate with other agencies, and provide for training to promote quality and consistency in adjudications. 84 FR at 44538. Prior to the IFR, EOIR's regulations outlined the functions of the majority of other EOIR components but did not include OP. The IFR added a new paragraph (e) to 8 CFR 1003.0 that provides the authority and responsibilities of OP. 84 FR at 44538, 44541; see 8 CFR 1003.0(e).

As part of the codification of OP in EOIR's regulations, the IFR also delineated OGC's authority regarding numerous EOIR programs and transferred some of OGC's programs to OP to ensure sufficient resources and to more appropriately align certain programs with their policymaking character. 84 FR at 44538-39; see 8 CFR 1003.0(e), (f).

To ensure proper functioning and support of EOIR's programs, the IFR transferred OLAP's responsibilities from the Office of the Director (“OOD”) to a division in OP. 84 FR at 44539. The Department determined that OLAP more appropriately belongs in OP, which has improved abilities to facilitate and coordinate OLAP's work across adjudicatory components in EOIR. Id. Accordingly, the IFR removed and reserved paragraphs (x) and (y) in 8 CFR 1001.1, which provided definitions for OLAP and the OLAP Director. 84 FR at 44541. The IFR also revised 8 CFR 1003.108 and 8 CFR part 1292 by replacing the phrases “OLAP” and “OLAP Director” with “Office of Policy” and “Assistant Director for Policy (or the Assistant Director for Policy's delegate),” respectively. 84 FR at 44542.

The IFR sought to resolve inconsistencies between title 8 and title 28, CFR, regarding EOIR's organizational structure. 84 FR at 44537-38, 44539. The Department's general organizational regulations are located in 28 CFR part 0, subpart U. EOIR's current organizational structure is outlined in 8 CFR part 1003. Over time, these two titles were not updated consistently, such that 28 CFR part 0 was generally outdated. The IFR aligned these two titles, updated regulatory citations, and provided for the possibility for updates to title 8, thereby reducing the likelihood for future inconsistencies. 84 FR at 44539; see generally 8 CFR pt. 1003; 28 CFR pt. 0, subpt. U.

The IFR offered an alternate title for members of the BIA—in addition to being referred to as “Board members,” persons occupying those positions may also be referred to as “Appellate Immigration Judges” to better reflect the nature of their responsibilities. 84 FR at 44539; see 8 CFR 1003.1(a)(1). The Department believes the alternate title reflects the adjudicatory responsibilities those positions have for cases that the Attorney General designates to come before them. See 84 FR at 44539; see also Authorities Delegated to the Director of the Executive Office for Immigration Review, the Chairman of the Board of Immigration Appeals, and the Chief Immigration Judge, 65 FR 81434, 81434 (Dec. 26, 2000) (acknowledging that the substantive and practical functions exercised by Board members are aptly described by the title “Appellate Immigration Judge”). Relatedly, the IFR clarified in 8 CFR 1003.1(a)(2) and (4) that the Chairman of the BIA should also be known as the Chief Appellate Immigration Judge, a Vice Chairman of the BIA should also be known as a Deputy Chief Appellate Immigration Judge, and temporary Board members should also be known as temporary Appellate Immigration Judges. 84 FR at 44542; see 8 CFR 1003.1(a)(2), (4).

To provide more practical flexibility and efficiency in deciding appeals, the IFR delegated authority from the Attorney General to the Director to review certain cases from the BIA that have not been timely resolved. 84 FR at 44539-40; see 8 CFR 1003.1(e)(8)(ii). Specifically, the IFR amended 8 CFR 1003.1(e)(8)(ii) to provide that the Chairman shall either assign to himself or a Vice Chairman for final decision within 14 days any appeals that are not completed within the designated timelines, or he may refer such appeals to the Director (previously, the Attorney General) for decisions. 84 FR 44539-40. The Attorney General is delegating this authority to the Director because the Director is better situated, as the immediate supervisor of the BIA Chairman and the person in more direct, regular contact with the Chairman regarding pending cases, to ensure timely adjudication of these cases. Id. The Attorney General's delegation is necessary given the other obligations on the Attorney General's schedule and because the Director is better situated to ensure that procedures or changes are implemented so that untimely adjudications are rare. See id.

The IFR sought to resolve tension between 8 CFR 1003.0(c), limiting the Director's authority to adjudicate or direct the adjudication of cases, and 8 CFR 1292.18, regarding the Director's authority to adjudicate requests for review of R&A Program determinations. 84 FR at 44540. When the Director was given authority under 8 CFR 1292.18, the limiting regulations at 8 CFR 1003.0(c) were not updated to reflect the change. See 84 FR at 44540; see generally Recognition of Organizations and Accreditation of Non-Attorney Representatives, 81 FR 92346 (Dec. 19, 2016). The IFR resolved this tension by updating 8 CFR 1003.0(c) to clarify that the limitation on adjudicatory authority is “[e]xcept as provided by statute, regulation, or delegation of authority from the Attorney General, or when acting as a designee of the Attorney General.” 8 CFR 1003.0(c).

The Department issued the IFR pursuant to its authority under several statutory provisions. Generally, 5 U.S.C. 301 provides authority to department heads to issue regulations regarding, among other things, the governance of the department, employee conduct, and the distribution and performance of its business. More specifically, section 103(g) of the Immigration and Nationality Act (“INA” or “the Act”) (8 U.S.C. 1103(g)), provides authority to the Attorney General to establish regulations and to “issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out [INA 103 (8 U.S.C. 1103)],” which includes the immigration functions of EOIR.

The Homeland Security Act of 2002 (“HSA”), which added section 103(g) to the INA, further affirms the authority of the Attorney General over EOIR. See HSA, Public Law 107-296, tit. XI, secs. 1101, 1102, 116 Stat. 2135, 2273-74. Section 1101(a) of the HSA (6 U.S.C. 521(a)) states that “the Executive Office for Immigration Review . . . shall be subject to the direction and regulation of the Attorney General under [INA 103(g)].”

Pursuant to this overarching regulatory authority, the Attorney General may amend the Department's regulations as necessary. In accordance with these authorities, the Attorney General promulgated the changes in the IFR.

The comment period associated with the IFR closed on October 25, 2019, with 193 comments received on the IFR. 1 Individual or anonymous commenters submitted 118 comments, and organizations, including non-government organizations, legal advocacy groups, non-profit organizations, and religious organizations, submitted 75 comments. A majority of individual commenters opposed the rule, while two supported the rule. All organizations expressed opposition to the rule.

Many, if not most, comments opposing the IFR either misstate its contents, proceed from an erroneous legal or factual premise, or contain internal logical inconsistencies. As the vast majority of comments in opposition fall within one of these three categories, the Department offers the following general responses to them, supplemented by more detailed, comment-specific responses in Part II.C of this preamble.

Several comments misstate the contents of the IFR. For example, many comments oppose the IFR because it allegedly eliminates OLAP, the Legal Orientation Program (“LOP”), and the Legal Orientation Program for Custodians of Unaccompanied Alien Children (“LOPC”), or changes the R&A Program. 2 However, the IFR makes clear that it does neither. See 84 FR at 44539 (“This rule is not intended to change—and does not have the effect of changing—any of OLAP's current functions.”); 8 CFR 1003.0(e)(3) (maintaining the R&A Program).

Several comments object to the idea that the IFR allows the Director to refer himself any case for review from the BIA at any time and under any circumstance. However, the IFR makes clear that cases would only be referred to the Director after the existing and longstanding regulatory deadline for adjudication by the Board has passed, which necessarily occurs only after briefing has been completed, the record is complete, and the case is ripe for decision. 84 FR at 44539-40 (“Accordingly, this rule delegates authority from the Attorney General to the Director to adjudicate BIA cases that have otherwise not been adjudicated in a timely manner under the regulations, based on a referral from the Chairman.” (emphasis added)); 8 CFR 1003.1(e)(8) (setting timeliness benchmarks for Board adjudications which, if exceeded, may warrant referral of cases to the Director for a timely adjudication).

Many comments are based on erroneous premises. For instance, many comments object to the IFR because the Director or the Assistant Director for Policy are allegedly political appointees. A political appointee is a full-time, non-career Presidential or Vice-Presidential appointee, a non-career Senior Executive Service (“SES”) (or other similar system) appointee, or an appointee to a position that has been excepted from the competitive service by reason of being of a confidential or policy-making character (Schedule C and other positions excepted under comparable criteria) in an executive agency. See, e.g., Exec. Order 13770, sec. 2(b) (Jan. 28, 2017) (“Ethics Commitments by Executive Branch Appointees”); see also Edward “Ted” Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015, Public Law 114-136, sec. 4(a)(4), (5) (2016). No employee currently at EOIR, including the Director or the Assistant Director for Policy, falls within these categories.

EOIR has no Schedule C positions or positions requiring appointment by the President or Vice President. Both the Director and the Assistant Director for Policy are career appointees within the SES. Although the Director is a general SES position, it has traditionally been filled only by a career appointee, and the incumbent Director serves through a career appointment. The Assistant Director for Policy is a career-reserved position in the SES and may be filled only by a career appointee. See SES Positions That Were Career Reserved During CY 2018, 85 FR 9524, 9581 (Feb. 19, 2020) (listing the Assistant Director for Policy at EOIR as a career reserved position). In short, all of EOIR's federal employees, including the Director and the Assistant Director for Policy, are career employees chosen through merit-based processes, and none of EOIR's employees are political appointees. 3

Many comments object to the IFR by asserting that the Director is merely an administrator with no adjudicatory role and no subject matter expertise regarding immigration law. Longstanding regulations make clear, however, that the Director must have significant subject matter expertise in order to issue instructions and policy, including regarding the implementation of new legal authorities. See 8 CFR 1003.0(b)(1)(i). The Director must also administer an examination on immigration law to new immigration judges and Board members and must provide for “comprehensive, continuing training” in order to promote adjudicative quality. 8 CFR 1003.0(b)(1)(vi), (vii). Moreover, the Director was given explicit adjudicatory review authority involving R&A cases in January 2017, well before the IFR was promulgated. See 81 FR at 92357 (“Additionally, the final rule provides that organizations whose requests for reconsideration are denied may seek administrative review by the Director of EOIR. See final rule at 8 CFR 1292.18. This provision responds to concerns that OLAP would be the sole decision-maker regarding recognition and accreditation and that another entity should be able to review OLAP's decisions.”). In short, existing regulations already require some level of subject-matter knowledge by the Director and provide for the Director to have an adjudicatory role in addition to administrative duties. Thus, the IFR does not alter the nature of the Director position.

In addition, and consistent with the clarification in this final rule of the Director's adjudicatory role, the final rule edits potentially confusing regulatory language in 8 CFR 1292.6 to make clear that the Director, when conducting an administrative review of R&A cases under 8 CFR 1292.18, does interpret the regulatory provisions governing the R&A Program, 8 CFR 1292.11 through 1292.20. See infra Part III.

Some comments object to the IFR because it contains an alleged delegation of the Board's authority to the Director. However, the Director directs and supervises the Board, 8 CFR 1003.0(b)(1), and the Board cannot delegate authority upward to a manager. Moreover, the Board's authority comes from the Attorney General, and it is his authority to delegate, not the Board's. INA 103(g) (8 U.S.C. 1103(g)); 28 U.S.C. 509, 510. Accordingly, the IFR does not reflect a delegation of authority from the Board to the Director; it reflects a delegation of authority from the Attorney General to the Director.

In the aggregate, many of the comments are internally inconsistent or illogical. For example, some comments object to the placement of OLAP under the Office of Policy, alleging that OLAP should not be under a political appointee; yet, many of those comments also allege that the Director, who supervised OLAP for several years prior to its transfer to the Office of Policy and under whom OLAP would have remained if it had not been transferred, is a political appointee. Similarly, other comments that allege the Director is a political appointee also object to delegating authority from the Attorney General to the Director, paradoxically preferring to retain authority in the Attorney General, who is a political appointee, rather than in the Director, who is not, in fact, a political appointee.

Overall, and as discussed in more detail below, the Department generally declines to adopt the recommendations of comments that misstate the IFR, that are based on incorrect legal or factual premises, or that are internally or logically inconsistent.

Comment: Two commenters expressed support for the IFR for reasons unrelated to its substance. One commenter indicated support for building a border wall between the United States and Mexico and urged that other individuals go to Central America to improve living conditions there. Another commenter expressed general opposition to immigration.

Response: Such comments are beyond the scope of this rulemaking.

Comment: The Department received several comments expressing general opposition to the IFR, with little to no further explanation. One commenter stated that such a “pivotal” topic requires deep discussion.

Response: The Department is unable to provide a more detailed response because these comments failed to articulate specific reasoning underlying expressions of general opposition.

Comment: The Department received numerous comments opposing the transfer of OLAP and its responsibilities to OP. Commenters stated that transferring OLAP's current functions to OP and removing references to OLAP and OLAP's Director from the regulations effectively eliminates OLAP. One commenter expressed concern that the IFR transferred OLAP's functions to OP without ensuring that the Department will continue to prioritize the programs OLAP administers. Several commenters stated that because the IFR eliminated OLAP and because OP assumed OLAP's responsibilities, many of the programs administered by OLAP that ensure access to counsel are at risk of being eliminated.

Regarding specific programming, one commenter expressed concern that moving the R&A Program into OP would grant authority to the Assistant Director for Policy to make R&A Program determinations. This commenter stated that because the Assistant Director for Policy could be a political appointee, the objectivity of R&A Program determinations could be affected. Several organizations stated that they were concerned the IFR will weaken or lead to the dismantling of the LOP and the LOPC. One commenter asserted that if the LOPC is dissolved or mismanaged, children in immigration proceedings would be adversely affected because their understanding of the legal process would decrease. The commenter further asserted that affected children would lose access to justice and representation, which would increase failures to appear at initial court hearings.

A few commenters expressed concern that, based on “the Office of Policy's recent history and relationship with migrants,” moving OLAP under OP is “a first step towards reducing access to counsel rather than expanding it.” One commenter argued that placing OLAP in OP “creates an incentive for OLAP to disseminate information that discourages certain individuals, deemed undesirable by the Executive Branch, from pursuing their legal rights.”

Response: The Department notes that any implication that the IFR eliminated OLAP or its functions is inaccurate, to include comments that a change in functions included a substantive change in the management of the R&A Program or the LOP. As the Department wrote in the IFR, this rule “is not intended to change—and does not have the effect of changing—any of OLAP's current functions.” 84 FR at 44539. The Department notes that OLAP's current functions continue as part of OP under the supervision of a member of the SES. See Office of Legal Access Programs, EOIR, U.S. Dep't of Justice, https://www.justice.gov/eoir/office-of-legal-access-programs (last updated Feb. 19, 2020).

OLAP (formerly known as the Legal Orientation and Pro Bono Program) has never been a separate component formally appearing on EOIR's official organizational chart. Rather, since its establishment in 2000, OLAP has existed under multiple different components within EOIR. See 84 FR at 44537. In 2000, OLAP existed as part of OOD; in 2002, it moved from OOD to OGC; in 2009, it moved from OGC to the BIA; and in 2011, it moved from the BIA back to OOD. See id. The IFR again moved OLAP within EOIR's organizational structure—this time to OP pursuant to the Department's reasoned analysis, as stated in the IFR, that OP is better suited to support OLAP. See 84 FR at 44539 (finding “no organizational justification” for OLAP to be part of OOD and determining that OP would be better suited to support OLAP's role and most effectively “help coordinate OLAP's work across adjudicatory components”). The Department rejects the suggestion that OLAP's placement under OP would “incentivize” OLAP to engage in any action other than continuing its current missions, and the IFR—by its own terms—does nothing to change OLAP's functions.

Since the establishment of the R&A Program in 1984, multiple components have been responsible for maintaining it. From 1984 until 2017, the BIA ran the R&A Program. 4 See Requests for Recognition; Accreditation of Representatives, 49 FR 44084 (Nov. 2, 1984). In 2017, the Department transferred the R&A Program to OLAP, which at the time was a part of OOD. See 81 FR at 92347. In contrast to commenters' concerns that the R&A Program will be removed or limited, the IFR plainly requires OP to “maintain a division within the Office of Policy to develop and administer a program to recognize organizations and accredit representatives to provide representation before [EOIR or DHS].” 8 CFR 1003.0(e)(3).

In response to commenters' concerns that placing OLAP under the supervision of OP would undermine the objectivity of decisions regarding R&A Program determinations, the Department emphasizes that EOIR staff, including the Assistant Director for Policy, are career employees. OP is charged with making policy determinations as authorized by Congress and the Attorney General in furtherance of EOIR's mission. The Department has provided a more detailed discussion of OP as a neutral component within EOIR below. See infra Part II.C.3.c.

In response to commenters' concerns that the rule might undermine EOIR's LOP programs, the Department notes that the IFR did not alter any aspect of any LOP program and is not addressed to any particular aspect of LOP programs. It did not alter the mission, funding, or day-to-day operations of LOP programs, other than to reassign supervisory responsibilities over OLAP from the Director to the Assistant Director for Policy.

Comment: Several commenters indicated that moving OLAP to OP will have an adverse effect on their organizations' ability to provide competent, low-cost legal representation, which would in turn adversely affect individuals in immigration proceedings. Specifically, commenters alleged that the IFR either threatens to restrict or completely eliminates the R&A Program, without which organizations would have to reduce the services that are currently provided. Several commenters asserted that because the IFR dissolves OLAP, the IFR will harm children because they will have less meaningful access to effective legal representation during immigration proceedings. Commenters stated that without the R&A Program, thousands of low-income immigrants, including abused women and children, will lose access to legal advocates. One commenter stated that because of the possible loss in services, the rule undermines the key goals of non-profit immigration legal service organizations and the services they provide to low-income clients.

Response: As noted above, the IFR does not alter either OLAP's functions or the R&A Program. Further, the Department sees no connection between the move of OLAP to OP and any organization's abilities to provide competent, low-cost legal representation. It is not OLAP's mission to provide legal representation. Rather, one of its duties is to oversee the R&A Program, and supervision of OLAP's management of that program is now a duty of the Assistant Director of the Office of Policy rather than of the Director. In short, the IFR merely moved oversight of the R&A Program from one non-adjudicatory component of EOIR (OOD) to another (OP). Far from eliminating the R&A Program, the IFR clearly specified that OP will continue to maintain the program, including a mechanism for determining “whether an organization and its representatives meet the eligibility requirements for recognition and accreditation in accordance with this chapter.” 8 CFR 1003.0(e)(3). 5

Also of note, the move of OLAP into OP, including the R&A Program, did not affect the regulatory criteria for recognizing an organization, 8 CFR 1292.11(a)(1)-(5), or accrediting a representative, 8 CFR 1292.12(a)(1)-(6). The only change was to authorize the Assistant Director for Policy to make such determinations based on the regulatory criteria. While the IFR provided the Assistant Director for Policy with the R&A Program authority by replacing “OLAP Director” with “Assistant Director for Policy,” the IFR further allowed the Assistant Director for Policy to delegate the authority to recognize an organization or accredit a representative. See, e.g., 8 CFR 1292.11(a) (“or the Assistant Director for Policy's delegate”). At this time, such authority has been delegated to the OLAP Director. In sum, the IFR did not effectuate any substantive change to the R&A Program and certainly no change that would impact the ability of organizations to provide competent, low-cost legal representation.

Comment: Numerous commenters stated, without more, that OP lacks legal legitimacy because it was created without regulatory or statutory authority. One commenter noted that OP was not created via notice and comment  6 and that there was not a press release or other information about its creation on the Department's website.

Response: Following a proposal by the Director, the Attorney General created OP in 2017 in accordance with all relevant statutory and regulatory authority. The Director has the authority to “propose the establishment, transfer, reorganization or termination of major functions within his organizational unit as he may deem necessary or appropriate.” 28 CFR 0.190(a). The Director proposed the creation of OP “to, inter alia, issue operational instructions and policy, administratively coordinate with other agencies, and provide for training to promote quality and consistency in adjudications.” 84 FR at 44538. The proposed EOIR reorganization received all necessary intermediate Department approvals. See 28 CFR 0.190(a). As the head of the Department, 28 U.S.C. 503, the Attorney General supervises and directs the administration and operation of the Department, and the Attorney General issued a new organizational chart for EOIR on July 26, 2017, approving EOIR's new organizational structure, which included OP. See EOIR, U.S. Dep't of Justice, Executive Office for Immigration Review Organization Chart (July 26, 2017), https://www.justice.gov/eoir/eoir-organization-chart/chart. When OP was created, the Department was required to reprogram appropriated funds. In accordance with the Consolidated Appropriations Act, 2017, and the Continuing Appropriations Act, 2018, the Department notified the House and Senate Committees on Appropriations of the change. See Consolidated Appropriations Act, 2017, Public Law 115-31, div. B, tit. V, sec. 505, 131 Stat. 135, 220 (2017) (“None of the funds provided under this Act . . . shall be available for obligation or expenditure through a reprogramming of funds that . . . (5) reorganizes or renames offices, programs or activities . . . unless the House and Senate Committees on Appropriations are notified 15 days in advance of such reprogramming of funds.”); Continuing Appropriations Act, 2018, Public Law 115-56, div. D, secs. 101(a)(2), 103, 131 Stat. 1139, 1139, 1141 (2017) (continuing appropriations for the Department under the same terms as the Consolidated Appropriation Act, 2017). Both committees indicated a lack of objection to the proposed reorganization in October 2017, and EOIR began to implement the reorganization in November 2017. The updated EOIR organizational chart was placed on the EOIR homepage on December 11, 2017.

The Department was not obligated to engage in rulemaking or a notice-and-comment period to create OP as a new component within EOIR. See 5 U.S.C. 553(b)(A) (providing that changes in internal agency organization are excepted from notice-and-comment requirements). In accordance with section 103(g) of the Act (8 U.S.C. 1103(g)), the Attorney General has delegated authority to the Director to manage the operations of EOIR. 8 CFR 1003.0(a), (b). Transferring authority from one office to another constitutes an internal operational change in line with the Director's operational management responsibilities under 8 CFR 1003.0(a) and (b). Moreover, the regulations are not meant to provide a complete, detailed description of the entirety of EOIR's organization, and the decision to memorialize some organizational changes by regulation does not mean that all internal organizational changes are required to be done through a regulation. 7

Comment: The Department received several comments stating that appointing the Assistant Director for Policy as head of OLAP and moving OLAP into OP directly contradicts the 2016 rule regarding authorization of representatives. See 81 FR at 92346. These commenters also averred that the move violated the intent and particular requirements of the 2016 rule, without providing specific concerns.

Response: Without further information regarding the specific conflicting provisions or specific concerns, the Department is unable to provide a more detailed response. The Department promulgated the 2016 rule to (1) provide requirements and procedures for authorized representatives to represent individuals before EOIR and DHS, and (2) revise EOIR's disciplinary procedures. Id. The Department clearly stated that the purpose of the 2016 rule was “to promote the effective and efficient administration of justice before DHS and EOIR by increasing the availability of competent non-lawyer representation for underserved immigrant populations.” Recognition of Organizations and Accreditation of Non-Attorney Representatives, 80 FR 59514, 59514 (Oct. 1, 2015) (notice of proposed rulemaking). The IFR did not conflict with that purpose; rather, the IFR furthered that purpose by making organizational changes within the agency that better facilitate efficiency and effectiveness across OLAP programs, including administration of the R&A Program. See 84 FR at 44537, 44539. Just as the Department moved the R&A Program from the BIA to OLAP in 2017, the Department's choice to now place authority over the R&A Program with the Assistant Director for Policy was a decision of agency management or personnel and an organizational choice based on EOIR's needs.

Comment: Some commenters opposed the rule's “formalization” of OP because they generally opposed the existence of a policy office in EOIR. Commenters stated that OP “conflicts with the fundamental mission of EOIR” because its objectives and focus “are controlled directly by the Attorney General and EOIR Director.” Commenters believed that the creation of OP would change EOIR from an entity focused on impartial adjudications for individual immigration cases to, as one commenter explained, an “extension of the Attorney General's and EOIR Director's immigration policy.” Overall, commenters expressed concern that having OP within EOIR improperly politicizes the agency, whose mission is to adjudicate individual cases rather than make policy.

Response: The Department disagrees with commenters' statements that it is inappropriate for EOIR to have a policy office. EOIR's primary mission is the adjudication of immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation's immigration laws, primarily pursuant to the Act. This mission remains unchanged by the IFR, and EOIR continues to work towards fulfilling this mission by increasing efficiencies wherever possible. Creating OP improved efficiency by reducing redundant activities performed by multiple components while also ensuring consistent coordination of regulatory and policy activities across all components.

OP was established to assist in effectuating the regulatory authorities granted to the Director such as issuing operational instructions and policy, administratively coordinating with other agencies, and providing for training to promote quality and consistency in adjudications. See 84 FR at 44538; 8 CFR 1003.0(b)(1). Some of these functions were previously performed by OGC, but were transferred to OP because of their policymaking nature and to ensure sufficient resources for those programs. 84 FR at 44538.

The non-adjudicatory policymaking functions now performed by OP are not new functions to the Department or to EOIR. The Department first explicitly codified the Attorney General's delegation of non-adjudicatory policymaking authority with respect to EOIR in the CFR in 2007, but such authority has existed throughout EOIR's history. See Authorities Delegated to the Director of the Executive Office for Immigration Review, and the Chief Immigration Judge, 72 FR 53673, 53676-77 (Sept. 20, 2007) (revising 8 CFR 1003.0 and 8 CFR 1003.9 to include policymaking authority). Since its inception in 1983, EOIR has implemented regulations, issued policy memoranda, and more generally engaged in policymaking in order to achieve its mission. See, e.g., Office of the Chief Immigration Judge, EOIR, U.S. Dep't of Justice, Operating Policies and Procedures 84-1: Case Priorities and Processing (Feb. 6, 1984), https:/www.justice.gov/sites/default/files/eoir/legacy/2001/09/26/84-1.pdf. EOIR is subject to the direction and regulation of the Attorney General, who may establish regulations or “issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary” for the Attorney General's supervision of EOIR. 8 U.S.C. 1103(g).

Moreover, as discussed in Part II.A of this preamble, neither the Assistant Director for Policy nor the Director are political appointees. Instead, both positions, as well as all other EOIR senior leadership positions, are held by members of the SES serving on career appointments. The SES is composed of members who serve in key positions, operating and overseeing nearly every government function. See generally Senior Executive Service, Office of Personnel Management, https://www.opm.gov/policy-data-oversight/senior-executive-service/ (last visited June 12, 2020). That the Attorney General continues to oversee the functions of EOIR is also proper: A long-held principle of administrative law is that an agency, within its congressionally delegated policymaking responsibilities, may “properly rely upon the incumbent administration's view of wise policy to inform its judgments.” Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865 (1984).

The Department also notes that many other agencies include policy offices within their organizational structure—even when those agencies also perform adjudicatory functions. For example, the Social Security Administration, which conducts administrative hearings regarding appeals of benefits or program eligibility, has an Office of Financial Policy and Operations, an Office of Disability Policy, and an Office of Data Exchange, Policy Publications and International Negotiations. See U.S. Soc. Sec. Admin., Social Security Administration Organizational Chart (June 21, 2020), https://www.ssa.gov/org/ssachart.pdf. Similarly, the Department of Veterans Affairs includes adjudicatory components and an Office of Regulatory Policy and Management. See U.S. Dep't Vet. Aff., 2019 Functional Organizational Manual Version 14-15 (Dec. 21, 2018), https://www.va.gov/FOM-5-Final-July-2019.pdf. In short, there is nothing anomalous or improper about EOIR maintaining an Office of Policy to address policy matters outside of the adjudicatory context.

Comment: Commenters specifically expressed opposition to the IFR's conferment of authority to the Assistant Director for Policy to oversee OLAP because commenters stated that the Assistant Director for Policy, and by extension OP, lacks the qualifications and expertise necessary to run OLAP and carry out its mission. Some commenters were concerned that, at the least, OLAP's commitment to “improve the efficiency of immigration court hearings by increasing access to information and raising the level of representation for individuals appearing before the immigration courts and BIA” would not remain a priority under OP's purview. Accordingly, commenters stated that moving OLAP and its legal access programs to OP was structurally “irrational.” Commenters stated that OLAP contains programmatic functions, not policy-related functions, and is thus outside the scope of the “politicized” Office of Policy, which is responsible for policy and regulations. Some commenters suggested that the Department should transfer OLAP back to the Office of the Director, where it more appropriately belongs.

Commenters specifically referenced OLAP's R&A Program, the National Qualified Representative Program (“NQRP”), and the LOP, all of which, they write, involve administering and managing congressionally appropriated funds and federal grants. Commenters stated that the Assistant Director for Policy, and a policy office generally, has no expertise in administering or managing such funds and grants. Commenters also specifically stated that OP lacks expertise and interest in fostering legal access and representation, which detrimentally impacts OLAP's programming (especially the R&A Program), the organizations involved, and the individuals served. Relatedly, commenters stated that the Assistant Director for Policy lacks expertise in adjudicating R&A Program applications.

Response: As stated in the IFR, “the rule is not intended to change—and does not have the effect of changing—any of OLAP's current functions.” 84 FR at 44539. Moving OLAP to OP will ensure better programmatic management, provide for better coordination among EOIR's adjudicatory operations, and provide increased flexibility to fulfill OLAP's mission. See id. The Department is confident that OP is equipped to provide OLAP with the necessary resources and expertise to accomplish those initiatives.

Additionally, as stated above, the Assistant Director for Policy, who oversees OP, is a career-reserved SES position. See 85 FR at 9524. To be hired into these positions, members of the SES must possess the skills necessary to oversee and manage programmatic functions, such as those inherent to OLAP and identified by commenters. Moreover, when OLAP was housed in the Office of the Director, it was also supervised by a member of the SES serving on a career appointment—the Director. Thus, moving OLAP to OP neither places it under a political appointee nor diminishes its access to programmatic expertise or resources, and the Assistant Director for Policy is fully qualified to oversee such functions. At the same time, the Director continues to supervise every EOIR component, see 8 CFR 1003.0(b)(1), including OP. As such, OLAP ultimately remains subject to the direction of the Director even following its placement within OP. And, regardless of OLAP's ultimate placement, it remains free from any alleged direct political interference because all EOIR components are headed by career SES members, not political appointees.

Comment: One commenter explained that moving broad, policy-oriented tasks from OGC to OP prevents the Department from “capitalizing on [OGC's] expertise[ ] and on OGC's extensive institutional knowledge.” Similarly, another commenter stated that shifting responsibility for regulatory matters to OP ignores OGC's years of substantive expertise. That commenter also stated that the rule narrows OGC's role to focus almost exclusively on its role as legal counsel to the Director to the exclusion of its role in providing legal interpretation on substantive immigration policy matters.

Response: The EOIR General Counsel, under the supervision of the Director, serves as the chief legal counsel of EOIR for matters of immigration law. 8 CFR 1003.0(f). Following the IFR, OGC continues to oversee and perform many functions within EOIR, including employee discipline, ethics, anti-fraud efforts, practitioner discipline, privacy, Freedom of Information Act requests, and litigation support. See id.; see also Office of the General Counsel, EOIR, U.S. Dep't of Justice, https://www.justice.gov/eoir/office-of-the-general-counsel (last updated Aug. 13, 2018).

In recent years, OGC's work in performing these functions has grown increasingly more complicated. For example, in Fiscal Year 2018, EOIR received 52,432 FOIA requests, a nearly 100 percent increase from the total received in Fiscal Year 2014, when 26,614 were received. See U.S. Dep't of Justice, United States Department of Justice Annual Freedom of Information Act Report: Fiscal Year 2018, pt. V.A, https://www.justice.gov/oip/page/file/1135751/download; Dep't of Justice, United States Department of Justice Annual Freedom of Information Act Report: Fiscal Year 2014, pt. V.A, https://www.justice.gov/sites/default/files/oip/pages/attachments/2014/12/24/oip-foia-fy14.pdf.

Because of this increased scope of authority and responsibility, the Department moved the regulatory development and review authority from OGC into OP to ensure that sufficient resources are available across the offices for all of the agency's needs and to increase efficiency and streamline the policymaking process within EOIR. Additionally, the programs that were previously under OGC, such as regulatory development and review, involve a substantial policy role. To have functions of this nature in OGC is incongruous with OGC's goals of providing legal counsel to all of EOIR, including the three adjudicatory components. Transferring programs that have a heavy emphasis on policymaking from OGC into OP better permits OGC to focus on its role as general counsel to EOIR and better separates the division between legal counsel and policy choices while also increasing overall efficiency within EOIR's non-adjudicatory components.

Additionally, contrary to the commenter's suggestion, OGC's role has never been to provide legal interpretations on substantive matters of immigration law that would otherwise bind EOIR. To the contrary, under both the prior and the current regulation, OGC was excluded from supervisory activities related to the adjudication of cases and prohibited from influencing the adjudication of specific cases. The IFR simply clarified OGC's role on this point.

The Department further notes that although OP is a newly formed office within EOIR, the institutional knowledge and records from OGC remain within EOIR. OGC and OP have worked closely and continue to work closely to ensure that institutional knowledge is properly shared and resources remain available for all of EOIR's work.

Comment: Commenters expressed concern that the IFR undermined due process or contributed to an appearance of undermined due process. Commenters expressed general sentiment that the IFR was contrary to the Nation's tradition of due process, and commenters noted specific provisions that undermined due process or contributed to such appearance—namely, provisions that delegated authority to the Director to issue precedential decisions because such delegation is not an appropriate authority for the Director. See 8 CFR 1003.1(e)(8)(ii).

Response: Contrary to the commenters' concerns, the IFR's changes do not undermine due process. The essence of due process in an immigration proceeding is notice and an opportunity to be heard. LaChance v. Erickson, 522 U.S. 262, 266 (1998) (“The core of due process is the right to notice and a meaningful opportunity to be heard.”). Nothing in the rule eliminates notice of charges of removability against an alien, 8 U.S.C. 1229(a)(1), or the opportunity for the alien to make his or her case to an immigration judge, 8 U.S.C. 1229a(a), or on appeal, 8 CFR 1003.38.

Further, although due process requires a fair tribunal, In re Murchison, 349 U.S. 133, 136 (1955), generalized, ad hominem allegations of bias or impropriety are insufficient to “overcome a presumption of honesty and integrity in those serving as adjudicators,” Withrow v. Larkin, 421 U.S. 35, 47 (1975). Commenters identified no reason why it would be inappropriate for a career SES official with no pecuniary or personal interest in the outcome of immigration proceedings, such as the Director, to adjudicate appeals in specific circumstances, particularly since the Director had already been delegated adjudicatory authority through a prior rulemaking with no noted concerns regarding due process. See 8 CFR 1292.18; cf. Matter of L-E-A-, 27 I&N Dec. at 581, 585 (A.G. 2019) (rejecting arguments that the Attorney General is a biased adjudicator of immigration cases in the absence of any personal interest in the case or public statements about the case).

Additionally, the Department notes that the Attorney General oversees EOIR and has statutory authority to, among other responsibilities, review administrative determinations in immigration proceedings; delegate authority; and perform other actions necessary to carry out the Attorney General's authority over EOIR. INA 103(g) (8 U.S.C. 1103(g)). Over time, the Attorney General has promulgated regulations pursuant to this statutory authority that reflect the full range of his authority and oversight in section 103(g) of the Act (8 U.S.C. 1103(g)). Among many examples, in 8 CFR 1003.1(h), the Attorney General codified the authority to review BIA decisions, and in 8 CFR 1003.0(a), the Attorney General delegated authority to the Director to head EOIR. Despite this delegated authority, EOIR remains subject to the Attorney General's oversight, and it is reasonable and proper that the Attorney General continue to exercise that oversight by way of administrative review. 8

In accordance with 8 CFR 1003.0(a), the Director, who is appointed by the Attorney General, exercises delegated authority from the Attorney General related to oversight and supervision of EOIR. See also INA 103(g)(1) (8 U.S.C. 1103(g)(1)); 28 CFR 0.115(a). The Director may only act in accordance with the statutes and regulations and within the authority delegated to him by the Attorney General; put differently, the statute and regulations provide the Attorney General with the authority to act, and the Attorney General, in turn, determines the extent of the Director's authority. The Attorney General, by regulation, provides a list of the Director's authority and responsibilities at 8 CFR 1003.0(b), which includes the authority to “[e]xercise such other authorities as the Attorney General may provide.” 8 CFR 1003.0(b)(1)(ix). Such delegation supersedes the restrictions related to adjudication outlined in 8 CFR 1003.0(c) due to that paragraph's deference to 8 CFR 1003.0(b).

The Director's authority provided in the IFR to adjudicate BIA cases that have otherwise not been timely adjudicated constitutes “such other authorities” provided to the Director by the Attorney General, based on the powers to delegate and conduct administrative review under INA 103(g) (8 U.S.C. 1103(g)). See 8 CFR 1003.0(c); 8 CFR 1003.1(e)(8)(ii). To reiterate, the Attorney General's authority to review administrative determinations does not violate due process; thus, the proper delegation of that authority to the Director pursuant to statute and pre-existing regulations does not violate due process—specifically in light of the fact that those decisions ultimately remain subject to the Attorney General's review under 8 CFR 1003.1(e)(8)(ii). To the extent that commenters are concerned about such an appearance, the Department emphasizes the clear, direct intent of Congress in statutorily authorizing such delegations, and the Attorney General acted within the bounds of his statutory authority when he issued the IFR. INA 103(g)(2) (8 U.S.C. 1103(g)(2)); see also Chevron, 467 U.S. at 842. 9 In issuing the IFR, the Attorney General properly delegated adjudicatory authority to the Director to review certain administrative decisions that are otherwise untimely. 8 CFR 1003.1(e)(8)(ii). This delegation aligns with the Attorney General's longstanding authority to issue regulations and delegate that authority, in line with principles of due process. 10

Comment: Commenters stated that the IFR is contrary to the immigration court system's traditions of the rule of law and due process. Commenters stated that the rule undermines the entire immigration system by threatening access to fair process and thus justice. Some commenters alleged this was in fact the purpose in issuing the IFR.

One commenter stated that the rule fails to provide constitutional protections that ensure due process, specifically that individuals lack “standard procedural protections, such as notice and an opportunity to be heard” if the Director selects an individual's case for adjudication. The commenter stated that, “[i]n other words, an individual may have their case adjudicated by the Director (or his designee) at any stage in his or her immigration proceeding, without any prior notice that the Director (or his designee) is reviewing the case and without any opportunity to directly address the decisionmaker (either in a hearing or via briefing) regarding the adjudication.”

Another commenter specifically opposed the rule's delegation of certification power to the Director, explaining that such power exercised by the Attorney General was already problematic because it was “generally driven by political decision making and a prosecutorial agenda.” The commenter stated that extending that power to the Director only furthered the problems the commenter sees in the Attorney General's certification power. Another commenter stated that such power was unaccountable to the legislative and judicial branches of government, which also undermines democratic principles.

Response: The Department disagrees that the IFR undermined the rule of law and due process within the immigration court system. It does not restrict notice and an opportunity to be heard, and it does not threaten access to justice or fair process.

The agency continues to fairly, expeditiously, and uniformly interpret and administer the Nation's immigration laws. See About the Office, EOIR, U.S. Dep't of Justice, https://www.justice.gov/eoir/about-office (last updated Aug. 14, 2018). Immigration judges, Board members, the Director, and the Attorney General continue to exercise independent judgment and discretion in accordance with the case law, statutes, and regulations to decide each case before them. See 8 CFR 1003.10(b) (immigration judges), 1003.1(d)(1) (BIA members), 1003.1(e)(8)(ii) (Director and Attorney General), 1003.1(h) (Attorney General); see also INA 103(g)(1) (8 U.S.C. 1103(g)(1)). Further, the IFR did not affect the mechanisms previously provided for review—a respondent may still appeal a decision, in accordance with the statutes and regulations, from an immigration judge to the BIA. 8 CFR 1003.38. Cases may still be referred to the Attorney General. 8 CFR 1003.1(e)(8)(ii), (h). The IFR delegated authority to the Director to decide certain cases, but those decisions are subject to review by the Attorney General, either at the Director's or Attorney General's request. 8 CFR 1003.1(e)(8)(ii). Further, decisions of the BIA, the Director, and the Attorney General are each subject to review by federal courts of appeals. INA 242 (8 U.S.C. 1252).

As discussed in Part II.A of this preamble, the Director will only adjudicate cases on appeal that have exceeded regulatory deadlines, which would only occur after the record is complete, including the submission of briefs. Consequently, contrary to the comments, the Director cannot merely pick any case at all at any time for adjudication, and the alien whose case is referred to the Director will have already had the opportunity to brief any issues. The specified time period in 8 CFR 1003.1(e)(8)(ii), after which the Director may review a case, accounts for the timeframes in 8 CFR 1003.3(c)(1) and 1003.38 to file the Notice of Appeal (Form EOIR-26), briefs, and other documents. Accordingly, the Director would decide the case based on the same record that would have been before the BIA. Overall, respondents with cases before the Director, as provided in the IFR, retain the same rights and remain in the same situation as if their cases were before the BIA.

As stated in the preamble, given the heightened number of appeals filed and pending with the BIA and the decreased number of completions, the IFR sought to facilitate efficient dispositions of cases on appeal. 84 FR at 44538; see also EOIR, U.S. Dep't of Justice, Adjudication Statistics: All Appeals Filed, Completed, and Pending (Oct. 23, 2019), https://www.justice.gov/eoir/page/file/1199201/download. In addition to the IFR, recent agency initiatives demonstrate the agency's genuine commitment to efficiently addressing the BIA's pending caseload. See EOIR, U.S. Dep't of Justice, Policy Memorandum 20-01: Case Processing at the Board of Immigration Appeals (Oct. 1, 2019), https://www.justice.gov/eoir/page/file/1206316/download (explaining various agency initiatives, including an improved BIA case management system, issuance of performance reports, and a reiteration of EOIR's responsibility to timely and efficiently decide cases in serving the national interest).

The Department declines to adopt the specific request for “notice that the Director (or his designee) is reviewing the case” and “opportunity to directly address the decision maker (either in a hearing or via briefing) regarding the adjudication.” EOIR does not currently provide the identity of the specific Board member adjudicating a case prior to the issuance of a decision, and the identity of the adjudicator should be irrelevant to the outcome of the adjudication. Thus, providing notice that the Director will be the adjudicator serves no legitimate adjudicatory need to preserve due process and would constitute a significant departure from current practice. Further, as noted, the record will necessarily already be complete by the time the case is referred to the Director, and there is no operational or legal reason why a respondent would need to brief the same case twice before a decision is issued. In all cases, including those referred to the Director, EOIR will continue to uphold due process.

The Department also disagrees with the commenters' statements that the Attorney General's certification powers are politically motivated or unaccountable to other branches of government. First, the Attorney General's certification powers are statutorily authorized. See INA 103(g)(2) (8 U.S.C. 1103(g)(2)). Second, as the head of the Department with responsibilities that include oversight of EOIR, see INA 103(g)(1) (8 U.S.C. 1103(g)(1)); 8 CFR 1003.0(a); 28 CFR 0.115, it is reasonable for the Attorney General to be authorized to conduct administrative review. Further, the statute clearly provides for judicial review in section 242 of the Act (8 U.S.C. 1252), which includes the review of decisions by the Attorney General, thus providing accountability. Section 242 of the Act reiterates the non-political nature of the Attorney General's certification power: By providing for judicial review, Congress holds the agency accountable for fairly and uniformly interpreting and administering immigration law, in line with EOIR's mission. Accordingly, the Department disagrees that the IFR's delegation of authority to the Director to review certain cases further exacerbates the alleged problem of the Attorney General's certification power.

Comment: Commenters expressed concern over the IFR's adverse effects on judicial independence. Commenters stated that the following provisions in the IFR undermine or eliminate judicial independence: Delegating authority from the BIA  11 to the Director to review cases, imposing allegedly arbitrary deadlines on immigration judges to decide cases, and creating OP to develop agency rules and policies, which commenters allege will effectively decide cases. Commenters stated that these provisions threaten the issuance of fair, impartial adjudications. 12

Commenters were concerned that transferring delegated adjudicatory power from the BIA to the Director to review cases threatens independent interpretation of immigration law. One commenter explained that the IFR effectively made the Director the chief judge and principal counsel for the Department. Another commenter expressed concern that the BIA Chairman will face pressure to refer cases to the Director, regardless of the reasons for delay, because the Director maintains a supervisory role over the Chairman and directs the Chairman's work. Further, commenters alleged that the rule eliminates deliberative review of appeals, curtailing review to a minimum and undermining the authority of BIA members. One of the commenters, objecting to the IFR's provisions relating to the Director's ability to intervene when BIA decisions exceed the permissible timeline, argued that “decisions on complex appeals cases should not be rushed.”

Several commenters also stated that the judicial independence of immigration judges was undermined by the Department's imposition of “arbitrary” deadlines for case processing. Those deadlines, commenters stated, prioritize speed over accuracy, justice, and careful consideration. One commenter stated that he was opposed overall to the Department's “attempts to weaken the independence of the immigration courts.” Another commenter referenced “the clear Congressional message” that immigration judges “should not and cannot be subservient to the interests of an agency whose primary task is to expeditiously remove as many aliens as possible.” Another commenter opposed the deadlines imposed on the BIA.

Commenters expressed concern over OP's influence on adjudicatory decisions. Specifically, commenters state that the office's development of rules, policies, guidance, and training would undermine immigration law and the abilities of immigration judges and BIA members to impartially adjudicate cases on a case-by-case basis. One commenter equated those rules, policies, guidance, and training to binding executive policy, and, relatedly, commenters stated that such provisions effectively allowed OP to decide cases. One commenter expressed concern that allowing OP to effectively decide cases erodes the separation between the executive and judicial branches of government.

Commenters expressed concern that the changes to 8 CFR 1003.0(c), which clarify that the INA, the regulations, or the Attorney General may delegate authority to the Director to adjudicate cases, in conjunction with the Director's authority at 8 CFR 1003.0(b)(2) to delegate authority to other EOIR employees, “dramatically expands the list of individuals who may adjudicate individual immigration cases.”

One commenter stated that the IFR will result in arbitrary and unlawful restrictions on the meritorious claims of children seeking protection from harm. One organization stated that such restrictions would put children “at risk of unsafe return to their home country in violation of the [Trafficking Victims Protection Reauthorization Act]'s provision requiring the safe repatriation of children.” Further, commenters stated that the IFR's delegation of authority to the Director to intervene in BIA matters where the timeline for adjudication has been exceeded may undermine the independence of career adjudicators, thereby doing harm to the claims of children who are seeking asylum or other humanitarian protection.

Response: The Department disagrees that the IFR's delegation of authority to the Director to adjudicate certain BIA cases that have exceeded the regulatory parameter for timeliness threatens judicial independence for several reasons.

First, the IFR did not affect the ultimate review scheme for EOIR proceedings. The BIA may review appeals of immigration judge decisions, such as a final decision in removal proceedings under section 240 of the Act (8 U.S.C. 1229a) if either party files an appeal that complies with the requisite procedures. 8 CFR 1003.1(b)(3); see also 8 CFR 1003.3, 1003.38. The Attorney General may review a case in accordance with 8 CFR 1003.1(h), and federal courts may review decisions in accordance with section 242 of the Act, 8 U.S.C. 1252. The IFR revised this process only by delegating the authority previously provided to the Attorney General to the Director to review certain cases before the BIA that have otherwise not been timely adjudicated, and to ensure that such cases the Director reviews are also subject to final review by the Attorney General in the same manner as all other BIA appeals. 8 CFR 1003.1(e)(8)(ii).

In addition, the new regulatory provision specifically provides that the Director exercises “authority . . . identical to that of the Board as described in this section,” such that the Director must exercise the same independent judgment required for BIA members under 8 CFR 1003.1(d)(1)(ii). Any decisions by the Director are also subject to statutes, regulations, and case law, and his decisions, like BIA decisions, are ultimately reviewable by the Attorney General and the federal courts. Accordingly, the IFR does not threaten the fairness and impartiality of adjudications. Nevertheless, to address these concerns, the final rule makes changes to 8 CFR 1003.0(c) to provide in the regulations that the Director must exercise independent judgment and discretion when deciding cases. See infra Part III.

Because the IFR did not impose deadlines on immigration judges, comments that discussed immigration judge deadlines are not relevant to the rulemaking. Further, the IFR did not affect the BIA's timeline for deciding cases, which remains unchanged from the regulations pre-IFR. 13 Compare 8 CFR 1003.0(e)(8)(ii) (2018), with 8 CFR 1003.0(e)(8)(ii) (Aug. 26, 2019). The BIA continues to exercise independent judgment within the articulated timelines to decide cases in accordance with the “authorities under the Act and the regulations as is appropriate and necessary for the disposition of the case.” 8 CFR 1003.1(d)(1)(ii). Thus, the IFR did not eliminate, curtail, or rush the BIA's review and consideration of cases, as commenters alleged.

The Department disagrees that the IFR will pressure the BIA Chairman or Vice Chairman to refer cases to the Director; instead, the IFR provided the specific circumstances in which decisions shall be referred. See 8 CFR 1003.1(e)(8)(ii).

While the IFR provided authority to OP regarding regulatory and policy development in 8 CFR 1003.0(e), regulations and agency policy do not effectively decide cases as commenters alleged. Immigration judges, the BIA, the Director, and the Attorney General continue to exercise independent judgment to interpret and apply the INA, regulations, and case law. Regulations simply “implement, interpret, or prescribe” the INA but do not change the text of it. See 5 U.S.C. 551(4). Accordingly, even while implementing regulations interpreting the INA, OP does not decide cases or undermine the INA through its rulemaking authority.

The Department also notes that the IFR did not erode the separation between the executive and judicial branches of government because the judicial branch is not at issue—immigration courts are part of the executive branch within the Department, specifically EOIR. See 8 CFR pt. 1003, subpts. B, C.

Regarding concerns that the amendment to 8 CFR 1003.0(c), when read in conjunction with the Director's delegation authority in 8 CFR 1003.0(b), expands the EOIR employees authorized to adjudicate cases, the Department intends for only the Director, not other EOIR employees, to have the authority to adjudicate BIA decisions that exceed the established timelines. Nevertheless, the Department recognizes the potential for confusion and unintended consequences. Accordingly, to address the concern, the Department is making a change in this final rule to clarify that the adjudicatory authority of the Director cannot be redelegated to another employee.

Comment: Commenters opposed the rule's delegation of authority to the Director to issue precedential decisions. Many commenters alleged that the Director lacks expertise to issue precedential decisions. One commenter explained that “adjudication authority should only ever be given to experienced immigration legal professionals who understand the weight of precedent-setting decisions, and these decisions' impacts on individual people's lives.” Commenters stated that the Director's role was meant to be one of office administration rather than one that exercised adjudicatory power. Further, commenters expressed specific opposition to transferring cases from immigration judges and the BIA, who both possess adjudicatory authority, to someone serving in an office administrator role.

Commenters alleged that such delegation vests broad, improper adjudicatory authority in a single individual, the Director, and described the rule as an “extraordinary consolidation of powers in one individual who is not a judge and who is supposed to serve as an office administrator.” Several commenters expressed that the “stakes were too high” to give final adjudicatory power to one person and that such authority undermines the fairness and impartiality that should characterize adjudications. Commenters expressed concern that the rule threatens the integrity of the system, thus creating uncertainty for respondents.

Response: As discussed earlier in this preamble, the Director is a career appointee within the SES, chosen through a merit-based process, and the position of Director requires a significant amount of subject-matter expertise regarding immigration laws. The Director is charged with, inter alia, directing and supervising each EOIR component in the execution of its duties under the Act, which include adjudicating cases; evaluating the performance of the adjudicatory components and taking corrective action as necessary; providing for performance appraisals for adjudicators, including a process for reporting adjudications that reflect poor decisional quality; “[a]dminister[ing] an examination for newly-appointed immigration judges and Board members with respect to their familiarity with key principles of immigration law before they begin to adjudicate matters, and evaluat[ing] the temperament and skills of each new immigration judge or Board member within 2 years of appointment”; and “[p]rovid[ing] for comprehensive, continuing training and support for Board members, immigration judges, and EOIR staff in order to promote the quality and consistency of adjudications.” 8 CFR 1003.0(b)(1). Each of these responsibilities necessarily requires some manner of subject-matter expertise to carry out effectively. Moreover, since January 2017, the Director has been responsible for administratively reviewing certain types of denials of reconsideration requests in R&A cases, with no noted complaints that such a delegation of authority is inconsistent with the role of the Director. As discussed in Part II.A of this preamble, the Director's role is not purely administrative and contains limited adjudicatory responsibilities consistent with the legal and subject-matter expertise required for the position.

The Department also disagrees that the IFR vested broad or improper adjudicatory authority in one person or that it can be characterized as an “extraordinary consolidation of power.”

First, the IFR delegated limited authority to the Director: “in exigent circumstances . . . in those cases where the panel is unable to issue a decision within the established time limits, as extended, the Chairman shall either assign the case to himself or a Vice Chairman for final decision within 14 days or shall refer the case to the Director for decision.” 8 CFR 1003.1(e)(8)(ii). The IFR replaced the Attorney General with the Director in 8 CFR 1003.1(e)(8)(ii) and merely delegated authority previously left with the Attorney General to the Director, subject to possible further review by the Attorney General. The Director may only adjudicate cases that have surpassed the articulated deadlines and that have not been assigned to the Chairman or a Vice Chairman for final adjudication. Clearly, the Director's scope of review is limited to only a narrow subset of EOIR cases.

Second, the INA authorizes such delegation. The propriety of the delegation is clear in section 103(g)(2) of the Act (8 U.S.C. 1103(g)(2)), which provides that “the Attorney General shall . . . delegate such authority[ ] and perform such other acts as the Attorney General determines to be necessary for carrying out [INA 103 (8 U.S.C. 1103)],” and is discussed further throughout Part II.C.4.a of this preamble.

Third, the Attorney General retains authority to review the Director's decisions, and judicial review continues to be available for administratively final decisions, in accordance with the statute. See 8 CFR 1003.1(e)(8)(ii); INA 242 (8 U.S.C. 1252). Thus, the IFR did not vest “final” authority in the Director, negating concerns that the IFR eliminated integrity and impartiality in the immigration system.

Comment: Commenters expressed concern that the Director's decisions may be heavily influenced by the political climate or the “President's anti-immigrant agenda.” Commenters expressed specific concern over the political nature of the Director's role and its effect on fair adjudications. Commenters stated that the Director is a “political appointee who is an administrator, not a judge.”  14 Other commenters opposed the rule's delegation because the Director would act alone in issuing decisions, which they stated was “problematic both for the visual it creates of an unjust system and for the very real possibility of a policy maker—the Director of EOIR—utilizing the power to adjudicate claims to effectuate policy.” Another commenter echoed this sentiment, stating that delegating authority to an individual reporting to a political appointee creates the appearance of impropriety that undermines the immigration court system.

Response: The Department rejects the notion, and subsequent implications, that the Director acts in a political capacity. As previously stated, the Director is a career appointee of the SES, not a political appointee. The Department also notes that SES positions are specifically designed to “provide for an executive system which is guided by the public interest and free from improper political interference.” 5 U.S.C. 3131(13).

Accordingly, the Director does not encumber a political position, nor does the Director act in a political capacity. The Director, like members of the BIA, exercises independent judgment and discretion in accordance with the statutes and regulations to decide any case before him for decision pursuant to 8 CFR 1003.1(e)(8)(ii) due to the BIA's failure in that case to meet the established timelines. See id. (“[T]he Director shall exercise delegated authority from the Attorney General identical to that of the Board[.]”); cf. 8 CFR 1003.1(d)(1)(ii) (“Board members shall exercise their independent judgment and discretion in considering and determining the cases coming before the Board[.]”). EOIR's mission remains the same—to adjudicate cases in a fair, expeditious, and uniform manner. See About the Office, supra. The Director does not act outside of that mission or the governing statutes and regulations of EOIR.

Further, the Director's decisions are subject to review by the Attorney General, either at the Director's or Attorney General's request. 8 CFR 1003.1(e)(8)(ii). The Department disagrees with the commenter's concern regarding a politically appointed Attorney General's delegation of power to the Director creating the appearance of impropriety. Congress has specifically provided the Attorney General, a presidential appointee, with broad powers regarding the immigration laws, and the statute explicitly allows for the Attorney General to delegate that power. INA 103(g)(2) (8 U.S.C. 1103(g)(2)). Concerns about this allocation of authority are best addressed to Congress.

Comment: The Department received several comments opposed to the rule's transfer of functions from OGC. Several commenters stated their opposition to the limitations placed on the functions and authority of OGC. 15

Response: The Department appreciates the commenters' concerns. However, the Department believes that the transfer of certain OGC functions to OP was reasoned and appropriate.

As discussed above, the Director has the authority to “propose the establishment, transfer, reorganization or termination of major functions within his organizational unit as he may deem necessary or appropriate.” 28 CFR 0.190(a). The Attorney General, as the head of the Department, supervises and directs the administration of EOIR. 28 U.S.C. 503, 509, 510.

As reflected in the IFR, the Attorney General created OP to “improve[ ] efficiency by reducing redundant activities performed by multiple components and ensure[ ] consistency and coordination of legal and policy activities across multiple components within EOIR.” 84 FR at 44538. As a result, the rule transferred OGC functions that were policymaking in nature, namely regulatory development and review, from OGC into OP. Id.; see 8 CFR 1003.0(e)(1). It is the Department's judgment that including these policymaking functions in OP, and not in OGC or elsewhere in EOIR, is necessary for OP to be able to meet its mission and increase EOIR's efficiencies. Further, having policymaking functions within OGC is not fully congruent with OGC's role of providing legal counsel to all of EOIR, including the three adjudicatory components.

The IFR, however, did not otherwise limit the function or authority of OGC, which continues to perform a wide range of important roles for EOIR, including those related to employee discipline, ethics, anti-fraud efforts, practitioner discipline, privacy, Freedom of Information Act requests, records management, and litigation support. See 8 CFR 1003.0(f); see also Office of the General Counsel, supra. The IFR will ensure that OGC is able to devote sufficient resources to all of the programs for which it is responsible, particularly given the increased complexity and volume of its work in recent years. See 84 FR at 44538.

Comment: Many commenters alleged that the rule is specifically purposed to advance a political agenda and politicize immigration adjudications. Commenters oppose the rule's transfer of cases to an alleged political appointee and the rule's empowerment of an allegedly politically controlled Office of Policy because those provisions allow political forces to influence and govern adjudications.

Some commenters alleged that OP was specifically created to advance an anti-immigrant political agenda through regulations and guidance. Accordingly, some commenters oppose the rule's moving of OLAP to OP as counterintuitive because OLAP works to expand legal access through the R&A Program, NQRP, and LOP, among others.

One commenter alleged that through the rule, the Director is attempting to rewrite immigration law to conform to particular political motives. Another commenter remarked that the “delegation of judicial power to the unqualified Executive Director further stands at odds with the nomenclature change that outwardly enhances the esteem of the BIA. . . . These inconsistencies illustrate the arbitrary nature of the interim changes as a whole, and suggest ulterior motives.”

Response: As discussed above, all EOIR officials are career federal employees, not political appointees appointed for a particular presidential administration. Both the Director and the Assistant Director for Policy, as well as many other EOIR leadership positions, are members of the SES who occupy career appointments. Career SES officials serve as high-level managers in the federal government and work to further the public interest without political motivations. See 5 U.S.C. 3131(13).

As employees of the Department, however, all EOIR officials are subject to the supervision of the Attorney General, who is a political appointee of the President. See INA 103(g) (8 U.S.C. 1103(g)); 28 U.S.C. 503; see also 8 CFR 1003.0(a) (providing that EOIR is within the Department); 28 CFR 0.1 (same), 0.5(a) (providing that the Attorney General shall “[s]upervise and direct the administration and operation of the Department of Justice”). The promulgation of this rule did not have any impact on the Attorney General's role as the ultimate supervisor of EOIR. Cf. Matter of Castro-Tum, 27 I&N Dec. 271, 281 (A.G. 2018) (discussing the Attorney General's “well-established” authority regarding the immigration laws).

As stated in the IFR, OP was established “to assist in effectuating authorities given to the Director in 8 CFR 1003.0(b)(1), including the authority to, inter alia, issue operational instructions and policy, administratively coordinate with other agencies, and provide for training to promote quality and consistency in adjudications.” 84 FR at 44538.

Further, the Department chose to locate OLAP within OP due to “OLAP's role in effectuating EOIR's Nationwide Policy regarding procedural protections for detained aliens who may be deemed incompetent” and to “ensure[ ] an appropriate chain of command and better management of OLAP's programs, provide[ ] for better coordination of OLAP's functions within the broader scope of EOIR's adjudicatory operations, and allow[ ] for greater flexibility in the future regarding OLAP's mission.” 84 FR at 44539. The Department continues to believe that OLAP is well-suited for placement in OP for these same reasons.

Comment: Several commenters stated that the IFR “lacks reasonable justification.”  16 Commenters compared the IFR to EOIR's alleged “similar plan to eliminate OLAP's legal orientation programs in spring of 2018” and averred that both the rule and the previous plan lacked reasonable justification. Commenters did not provide further discussion regarding their claim that the rule lacks reasonable justification.

Response: The Department continues to rely on the reasons articulated in the IFR. See 84 FR at 44538-40. All changes in the IFR were designed to further EOIR's mission.

Comment: Commenters expressed opposition to the IFR, alleging that it undermines the immigration system, which, in turn, contradicts the Nation's core democratic principles of fair process, justice, access to legal representation, and rule of law. Commenters emphasized human dignity and expressed concern that the IFR adversely affects the Nation's system of laws and human lives. Commenters also stated that the IFR contradicts the nation's Christian and immigrant history.

Response: The Department recognizes that the United States government upholds certain core principles that are fundamentally and distinctly American, and the Department asserts that the IFR strengthens, not weakens, the Nation's immigration court system, and is thus aligned with America's core values. The IFR was designed to promote EOIR's primary mission of fairly, expeditiously, and uniformly interpreting and administering the Nation's immigration laws. For example, the IFR was designed to promote a more efficient disposition of cases at the administrative appeals level. 84 FR at 44539-40. Additionally, the IFR formalized the establishment of an Office of Policy, which is designed to improve efficiency by reducing redundancy within the agency and promoting consistent policy positions throughout EOIR. Id. at 44538. The rule also restructures EOIR by placing OLAP's duties under OP to ensure better management and facilitation of OLAP's programs within the bounds of relevant statues and regulations. Id. at 44539.

Comment: Numerous commenters stated that permitting the Director to adjudicate cases will not meaningfully address concerns about timely case adjudication. Commenters indicated that in allowing the Director to adjudicate pending cases before the BIA, the IFR did not address the root cause of the pending caseload before the BIA or attempt to increase the BIA's efficiency. One commenter stated that the Director would not have the time to adjudicate all BIA cases pending beyond the 90-day or 180-day adjudication deadlines and would therefore have to select which cases to adjudicate, thereby allowing the Director to interfere with the impartial BIA adjudication process. One commenter was concerned that delegating authority to adjudicate immigration cases would decrease the efficiency of the immigration system and degrade the public trust in the process.

Response: The Department has already undertaken several efficiency-focused initiatives for the BIA. See, e.g., Policy Memorandum 20-01: Case Processing at the Board of Immigration Appeals, supra (explaining various agency initiatives, including an improved BIA case management system, issuance of performance reports, and a reiteration of EOIR's responsibility to timely and efficiently decide cases in serving the national interest).

Addressing the root causes of the pending caseload is beyond the scope of this rulemaking; the IFR did not purport to solve every inefficiency or issue affecting timely case adjudications within the agency. Instead, the IFR is a tool that addresses one inefficiency that relates to particular case adjudications, as outlined in 8 CFR 1003.1(e)(8)(ii), by delegating authority to the Director to decide such cases.

The Department notes that attorneys and other staff at the BIA routinely assist Board members with research and analysis of cases pending before the BIA. The Director's handling of the subset of cases defined in this rule does not change the role of those staff to assist in such a manner. The Director, as the supervisor of all of EOIR, may seek assistance from such staff as well. Further, the Director has counsel from whom he may seek assistance within OOD. The Department is confident in the abilities of the Director and the BIA to timely adjudicate such cases in accordance with the regulations and statutes and, thus, disagrees with commenters' assertions that the Director lacks the time or capacity to fulfill this responsibility. This rule does not impose a requirement that the Director handle the cases, but provides for that possibility when needed and when it is reasonable and practicable for him to do so. Further, the Department has determined that, given other responsibilities and obligations, “the Attorney General is not in a position to adjudicate any BIA appeal simply because it has exceeded its time limit for adjudication.” 84 FR at 44539. Accordingly, the Department believes that the delegation of the Attorney General's authority over these cases to the Director increases efficiency within the agency and serves the national interest. Cf. Jefferson B. Sessions III, Attorney General, U.S. Dep't of Justice, Memorandum for the Executive Office for Immigration Review: Renewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases to Serve the National Interest (Dec. 5, 2017), https://www.justice.gov/opa/press-release/file/1015996/download.

Comment: Commenters stated that the IFR does not adequately address workload concerns at the BIA or the immigration courts. Several commenters stated that permitting the Director to adjudicate cases that have been pending before the BIA for more than 90 days is an inappropriate response to the workload issues currently affecting the BIA. Several commenters indicated that immigration law requires the expertise of an immigration judge; thus, commenters stated that hiring more immigration judges could address concerns regarding case processing times. One commenter also stated that the Department should hire more immigration judges rather than undermine the authority of the current immigration judges. Commenters proposed alternative solutions to address case processing times such as initiatives to improve staff retention, recalling senior judges or retired BIA members for temporary assignment to the BIA, and generally equipping the BIA with the resources necessary to adjudicate decisions in a timely manner.

Response: The Department appreciates the commenters' suggestions, though many of them— e.g., hiring more immigration judges, recalling retired immigration judges or Board members—are beyond the scope of the IFR. The Department believes that the IFR will contribute to a better functioning immigration court system.

Further, the Department notes that the IFR was just one of many affirmative efforts to improve EOIR's efficiencies, including the immigration courts and the BIA, and it was not intended to foreclose alternative methods. For example, the Department has prioritized immigration judge hiring in recent years, increasing the number of immigration judges from 245 in 2010 to 466 through the first quarter of 2020. See EOIR, U.S. Dep't of Justice, EOIR Adjudication Statistics: Immigration Judge (IJ) Hiring (Jan. 2020), https://www.justice.gov/eoir/page/file/1104846/download. In 2018, the Department also increased the number of appellate immigration judges authorized to serve on the BIA from 17 to 21, see Expanding the Size of the Board of Immigration Appeals, 83 FR 8321 (Feb. 27, 2018), and recently increased it again to 23, see Expanding the Size of the Board of Immigration Appeals, 85 FR 18105 (Apr. 1, 2020). In addition, EOIR is working towards a pilot electronic system for filing and case management. See EOIR Electronic Filing Pilot Program, 83 FR 29575 (June 25, 2018). EOIR has taken steps to ensure that courtrooms are not being underutilized around the country during business hours. EOIR, U.S. Dep't of Justice, Policy Memorandum 19-11: No Dark Courtrooms (Mar. 29, 2019), https://www.justice.gov/eoir/file/1149286/download (intended to memorialize policies to reduce and minimize the impact of unused courtrooms and docket time). As previously explained by the Director, “[e]ach of these accomplishments is critical to EOIR's continued success as it addresses the pending caseload, and EOIR has solved some of its most intractable problems of the past decade regarding hiring, productivity, and technology.” Unprecedented Migration at the U.S. Southern Border: The Year in Review: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affs., 116th Cong. (2019) (statement of James McHenry, Director, EOIR, U.S. Dep't of Justice).

Comment: One commenter recommended that immigration courts be made into Article I courts. 17 The commenter did not provide further reasoning for the recommendation.

Response: The recommendation is both beyond the scope of this rulemaking and the authority of the Department of Justice.

Congress has the sole authority to create an Article I court. Cf., e.g., 26 U.S.C. 7441 (“There is hereby established, under Article I of the Constitution of the United States, a court of record to be known as the United States Tax Court.”). Despite this authority, Congress has provided for a system of administrative hearings for immigration cases, which the Department believes should be maintained. See INA 240 (8 U.S.C. 1229a) (laying out administrative procedures for removal proceedings); see also Strengthening and Reforming America's Immigration Court System: Hearing Before the Subcomm. on Border Sec. & Immigration of the S. Comm. on the Judiciary, 115th Cong. (2018) (written response to Questions for the Record of James McHenry, Director, EOIR, U.S. Dep't of Justice) (“The financial costs and logistical hurdles to implementing an Article I immigration court system would be monumental and would likely delay pending cases even further.”).

Comment: Many commenters raised concerns that the IFR violated the Administrative Procedure Act (“APA”) by failing to provide a prior notice-and-comment period. See 5 U.S.C. 553. Several commenters stated that the rule should not have been exempt from the traditional notice-and-comment requirement and the rule included considerable substantive changes that will have a fundamental impact on EOIR's legal access programs. In making this argument, several commenters argued that the placement of OLAP's functions under OP constituted or took a step toward the elimination of those program functions. 18 One commenter indicated that the IFR's placement of OLAP under OP was particularly significant because OP “is responsible for attacks on due process for immigrants” and, with such a design, the rule constituted much more than an agency reorganization, rather than a mere “rule of management and personnel” or agency procedure and practice. Commenters alleged that because OLAP's programs impact thousands of accredited representatives and hundreds of non-profits who employ them, the IFR constituted an adverse impact on the public that required a period of notice-and-comment.

Some commenters argued that, because OLAP was created in direct response to a 2016 rule to administer the R&A Program, the changes to OLAP in the IFR should have been subject to the APA's notice-and-comment requirements. 19 Some commenters argued that the IFR improperly overturned the 2016 rule, which was properly implemented through notice and comment.

Commenters stated that there was not an “urgent” need to publish the IFR quickly and that the IFR enacted major changes to EOIR's adjudicatory system, thereby requiring EOIR to follow the notice-and-comment process.

Many of these commenters argued that the IFR's provisions regarding the delegation of authority from the Attorney General to the Director and from the Director to the Assistant Director for Policy demonstrated that the IFR made substantive changes that went beyond just reorganization and, thereby, required a period of notice and comment. Several commenters stated that the role of the Director is purely administrative, limited by the provisions of 8 CFR 1003.0, and that the IFR's provisions for the Director's intervention on BIA rulings when adjudication exceeds certain timelines amounted to significant substantive, not merely procedural, changes mandating a notice-and-comment period.

One commenter stated that implementation of the IFR without the provision of a notice-and-comment period undermined the APA's values, such as accuracy, efficiency, and acceptability.

One commenter said that the Department's characterization of the IFR's substance, which the commenter alleged was described as “minor administrative housekeeping,” was disingenuous and a deliberate effort to evade the APA's notice-and-comment requirements. Relatedly, another commenter asserted that the Department's imposition of the rule, without permitting a period for notice and comment, was “both illegal and ill-conceived.”

Response: The Department disagrees with commenters that the IFR involved changes that required a notice-and-comment period or a 30-day delay in the effective date. As the Department explained in the IFR, it was not subject to the notice-and-comment process or a delay in effective date because it was “a rule of management or personnel as well as a rule of agency organization, procedure, or practice.” 84 FR at 44540; see 5 U.S.C. 553(a)(2), (b)(A).

Contrary to commenters' assertions that the substantive nature of the IFR triggered a required notice-and-comment period (as opposed to the procedural nature), the APA does not condition notice-and-comment requirements purely on whether a rulemaking is substantive in nature. Instead, the APA's notice-and-comment procedures are subject to various enumerated exceptions. Such exceptions include rulemaking related to “agency management or personnel” and “rules of agency organization, procedure, or practice.” See 5 U.S.C. 553(a)(2), (b)(A).

First, transferring OLAP and its programs to OP is a matter of agency management or personnel, as well as a rule of agency organization, procedure, or practice, such that notice-and-comment is unnecessary. See 5 U.S.C. 553(a)(2), (b)(A). In fact, OLAP has been moved multiple times within EOIR throughout its history, see 84 FR at 44537, and none of those moves were effected through notice-and-comment rulemaking. The IFR did not eliminate OLAP or otherwise change its programs except the immediate supervisor who oversees the office. See supra Part II.C.2.a. Further, the IFR did not change OLAP's significant role and operations within the agency or the necessary oversight of its projects and programs; it only transferred OLAP to a new component, OP, from OOD.

In addition, the Department disagrees that OP's actions undermine due process or that its creation was a product of anything further than agency management, personnel, and organization. See supra Part II.C.3.c, d. Accordingly, the public was not and will not be adversely affected by the IFR's internal reorganization and transfer of OLAP into OP and need not be given notice and an opportunity to comment. See 5 U.S.C. 553(a)(2), (b)(A).

The Department disagrees with commenters' assertions that the provisions in the IFR that delegated authority to the Director to review otherwise untimely BIA decisions were substantive changes that should have undergone notice-and-comment procedures. Instead, the Attorney General's delegation of authority to the Director to review cases under 8 CFR 1003.1(e)(8)(ii) furthers the Director's ability to exercise oversight and effective management of EOIR, and it improves agency organization, procedure, and practice in order to uphold EOIR's mission to interpret and administer the Nation's immigration laws. As explained by the IFR, an internal delegation of administrative authority does not adversely affect members of the public and involves an agency management decision that is exempt from the notice-and-comment rulemaking procedures of the APA. 84 FR at 44540. As such, the IFR is exempt from the APA's notice-and-comment requirements, and the Department appropriately published it as an IFR.

The general regulations that outline the Director's authority are contained in 8 CFR 1003.0(b) and were not substantively affected by the IFR. 20 Specifically, the regulations provide that the “Director shall manage EOIR and its employees.” 8 CFR 1003.0(b)(1). The enumerated list that follows in paragraphs (b)(1)(i)-(ix) explains how the Director may accomplish the directive provided in paragraph (b)(1). For example, the Director may “[i]ssue operational instructions and policy, including procedural instructions,” “[d]irect the conduct of all EOIR employees to ensure the efficient disposition of all pending cases,” and “manage the docket of matters to be decided by the Board, the immigration judges, the Chief Administrative Hearing Officer, or the administrative law judges.” Id. 1003.1(b)(1)(i), (ii). Given the breadth of the Director's responsibilities, the Attorney General also authorized the Director to “exercise other such authorities as the Attorney General may provide.” Id. 1003.0(b)(1)(ix).

Before the IFR's publication, § 1003.0(c) in turn provided that the Director had no authority to adjudicate cases arising under the Act or regulations and could not direct the result of an adjudication assigned to the Board, an immigration judge, the Chief Administrative Hearing Officer, or an Administrative Law Judge, although this prohibition was not to be construed to limit the authority of the Director under 8 CFR 1003.0(b). 8 CFR 1003.0(c) (2018). Accordingly, the authority conferred by paragraph (b)(1)(ix) on the Director to exercise other authority provided by the Attorney General was not affected by paragraph (c)'s limitation on the Director's adjudicatory authority. 21

At the same time, the INA confers power on the Attorney General to review administrative determinations. INA 103(g)(2) (8 U.S.C. 1103(g)(2)). Prior to the IFR, when a case appeal surpassed the regulatory timeline, the Chairman assigned the case to himself, a Vice Chairman, or the Attorney General. 8 CFR 1003.1(e)(8)(ii) (2018). This procedure continues to be in place following the IFR. However, as a matter of agency management, as well as organization, procedure, or practice, the Attorney General delegated that authority to review administrative determinations to the Director. In his discretion, the Attorney General determined that the Director's oversight and management responsibilities, particularly in regards to case processing at the BIA, were best effectuated by authorizing the Director to adjudicate appeals when a “panel is unable to issue a decision within the established time limits, as extended.” Id. 1003.1(e)(8)(ii). Authorizing the Director to decide otherwise untimely cases allows him to best fulfill his oversight and management responsibilities of the agency, which includes the BIA. See id. 1003.0(b).

Regarding commenters who alleged there was not an “urgent” need to publish the IFR without notice-and-comment, the Department notes that it did not issue the rule as an IFR based on urgency; rather, the Department issued the rule as an IFR because it involved agency management or personnel, as well as agency organization, procedure, or practice. See 84 FR at 44540. As explained above, such rulemakings do not require a notice-and-comment period. 5 U.S.C. 553(a)(2), (b)(A).

Finally, the Department disagrees that publication of the rule as an IFR undermined values of the APA process. Congress specifically provided exceptions to the general notice-and-comment procedures for matters involving agency personnel or management because such procedures are unnecessary to further the APA's purpose. See S. Rep. No. 79-752, at 13 (1945) (explaining that the exception for proprietary matters was “included because the principal considerations in most such cases relate to mechanics and interpretations or policy, and it is deemed wise to encourage and facilitate the issuance of rules by dispensing with all mandatory procedural requirements”).

The Department's publication of the rule as an IFR aligns with the Senate Committee's explanation of the exception at issue—while the Department was not required to use notice-and-comment rulemaking procedures, it chose, in an exercise of discretion, to issue the rule as an IFR to provide the public with information. For example, the IFR provided the public with information about OLAP's transfer because OLAP maintains many public-facing programs and contracts. Because the organizational change could impact letterhead or signage, with which the public interacts, the agency sought to reduce possible confusion.

Finally, the Department notes that although the IFR was published as an IFR and not a proposed rule, the IFR contained a 60-day comment period that was not required. The Department has carefully reviewed all comments received and appreciates the public's responses.

Comment: Several commenters stated that the rule's publication constituted an arbitrary and capricious attempt by the Department to impose substantive policy changes impacting the immigration adjudicatory process.

Other commenters stated that the rule's provision allowing for the Director's involvement when BIA adjudication exceeds the permissible timeline constitutes an impermissible, arbitrary reassignment of the BIA's authority to an administrator, not a judge. One commenter argued that the rule's timeline permitting intervention by the Director in BIA decisions amounted to creation of an “arbitrary deadline,” which would force judges to place speed over justice and violate due process requirements.

Several commenters argued that the IFR is arbitrary and capricious because the transfer of R&A Program oversight from OLAP to OP amounted to “dismantling programs” that are required by regulation, statute, and court order. Some commenters observed that the IFR's notice did not include sufficient information to anticipate the practical effects of changes created by the IFR, including possible changes to immigrants' access to counsel.

Response: The Department disagrees with commenters that the IFR's changes to title 8 and title 28, CFR, are arbitrary and capricious. See 5 U.S.C. 706(2)(A). An agency's decision is arbitrary and capricious if the agency did not conduct a consideration of the relevant factors and made a clear error of judgment. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). As evidenced in the IFR, the Department considered the relevant factors and concluded that the changes to EOIR's organization and adjudication process were necessary to increase efficiency and properly allocate resources. See, e.g., 84 FR at 44538-40. As explained in Part II.D.1 of this preamble, the IFR set forth non-substantive changes regarding agency management or personnel, as well as agency organization, procedure, or practice, and it was not subject to notice-and-comment requirements. See Id. at 44540; see also 5 U.S.C. 553(a)(2), (b)(A).

Specifically, the Department does not believe that it was arbitrary and capricious for the Attorney General to delegate his authority to the Director to adjudicate appeals that have exceeded the BIA's adjudication times. This delegation of authority is one of many actions that the Department is taking to address the pending caseload of appeals at the Board. The Attorney General has already codified regulations recognizing that the Attorney General may delegate duties to the Director in addition to those outlined in existing regulations. See 8 CFR 1003.0(b)(1)(ix) (providing that the Director may exercise “other authorities as the Attorney General may provide”). Here, the Attorney General has reasonably concluded that it is necessary and appropriate to assign certain pending case appeals to the Director for adjudication for the purpose of improving efficiency in adjudications. See 84 FR at 44539-40.

The Department disagrees that this delegation of authority sets arbitrary deadlines. In fact, the IFR did not affect any BIA case-processing timelines. Instead, the timelines provided in EOIR's regulations for BIA case appeal adjudications were first established in 2002. See Board of Immigration Appeals: Procedural Reforms To Improve Case Management, 67 FR 54878, 54896 (Aug. 26, 2002) (codified at 8 CFR 3.1(e)(8) (2002)). 22 As part of this rulemaking, the Department revised 8 CFR 1003.1(e)(8)(ii), which generally required the Chairman to re-assign pending BIA cases that have surpassed the imposed deadlines to himself, a Vice-Chairman, or the Attorney General. See 8 CFR 1003.1(e)(8)(ii) (2018). The Department is unaware of any existing case law finding the deadlines imposed were arbitrary and capricious. Cf., e.g., Purveegiin v. Gonzales, 448 F.3d 684, 691 (3d Cir. 2006) (citing 8 CFR 1003.1(e)(8) as an example of a regulation that was “merely an `internal management directive' ”).

Finally, the Department disagrees that the IFR was arbitrary and capricious because it “dismantled” the R&A Program. The IFR was “not intended to change—and [did] not have the effect of changing—any of OLAP's current functions.” 84 FR at 44539. Moreover, the rule plainly required OP to “maintain a division within the Office of Policy to develop and administer a program to recognize organizations and accredit representatives to provide representation before [EOIR and/or DHS].” 8 CFR 1003.0(e)(3). As explained above, the IFR merely moved oversight of the R&A Program from one non-adjudicatory component of EOIR, OOD, to another, OP. The R&A Program and OLAP's other programs continue to operate under OLAP's new leadership structure, demonstrating the Department's consideration of the practical effects of the rule, including aliens' access to counsel, as it relates to this point. Further, because the rule merely restructures EOIR, the practical effects to individual aliens is minimal at best.

The Department has considered and responded to the comments received in response to the IFR. In accordance with the authorities discussed in Part I.B of this preamble, the Department is now issuing a final rule that adopts the provisions of the IFR as final with some amendments to 8 CFR 1003.0(b)(2) and (c), regarding the Director's adjudicatory authority and ability to delegate that authority, 8 CFR 1292.6, regarding the Director's interpretive authority in R&A cases, and 8 CFR 1292.18(a), also regarding the Director's ability to delegate his authority. Taken together, these changes address commenters' concerns that the IFR's changes allowed the Director to delegate authority to adjudicate cases arising under the Act or the regulations to the Assistant Director of Policy or to any other EOIR employee, and that the Director's decisions when adjudicating untimely BIA appeals could be subject to improper influence. The Department did not intend for the IFR to have either of those effects; therefore, it amends the regulatory text in the following ways.

First, in 8 CFR 1003.0(b)(2), the final rule designates the current text in the paragraph, which sets out the Director's general delegation authority, as paragraph 8 CFR 1003.0(b)(2)(i). It then adds new paragraph 8 CFR 1003.0(b)(2)(ii), which provides an exception to the Director's delegation authority. These changes instruct that the Director may generally delegate authority given to him by 8 CFR part 1003 or directly by the Attorney General to “the Deputy Director, the Chairman of the Board of Immigration Appeals, the Chief Immigration Judge, the Chief Administrative Hearing Officer, the Assistant Director for Policy, the General Counsel, or any other EOIR employee,” but that the Director may not further delegate the case adjudication authority provided by 8 CFR 1003.1(e)(8)(ii) (regarding the adjudication of BIA cases that exceed the established adjudication timelines), 8 CFR 1292.18 (regarding the Director's discretionary authority to review requests for reconsideration of denials of applications for recognition or accreditation), or any other provision or direction unless expressly authorized to do so.

The final rule adds language to 8 CFR 1003.0(c) providing guidelines that would apply whenever the Director is authorized by statute, regulation, or delegation of authority from the Attorney General or when acting as the Attorney General's designee. During such adjudications, the final rule specifically instructs the Director to “exercise independent judgment and discretion.” As discussed above, the Director is a member of the career SES, not a political appointee, who has a demonstrated a knowledge of immigration law and procedure. The final rule enhances the assurance of independent judgment, and not political motivation, regarding the decisions the agency's adjudicators make, such as those authorized by regulation at 8 CFR 1003.1(e)(8)(ii) and 1292.18.

In addition, the final rule authorizes the Director to “take any action consistent with the Director's authority as is appropriate and necessary for the disposition of the case.” For example, under 8 CFR 1003.0(b)(1)(ii), the Director has authority to “[d]irect the conduct of all EOIR employees to ensure the efficient disposition of all pending cases.” The final rule makes explicit that this and other powers of the Director also apply whenever the Director is authorized to adjudicate a case.

The final rule also clarifies 8 CFR 1292.6 to state that both the Assistant Director for Policy (or the Assistant Director for Policy's delegate) and the Director are responsible for interpreting 8 CFR 1292.11 through 1292.20 when adjudicating R&A cases. This clarification eliminates any suggestion that only the Assistant Director for Policy (or the Assistant Director for Policy's delegate) can interpret 8 CFR 1292.11 through 1292.20, which would be in tension with the Director's administrative review authority in 8 CFR 1292.18.

Finally, consistent with the limitation, in response to a commenter's concern, on the Director's ability to re-delegate the Director's adjudicatory authority, the final rule makes a conforming change to 8 CFR 1292.18 by removing the Director's authority to delegate the discretionary authority to review requests for reconsideration of denials of applications for recognition or accreditation to “any officer within EOIR, except the Assistant Director for Policy (or the Assistant Director for Policy's delegate).” This provision was initially included in the regulations in 2016 without discussion as to the need of the Director to be able to delegate these cases. See 81 FR at 92356-57, 92372. The final rule, thus, ensures that the limit on the Director's authority to re-delegate that position's adjudicatory authorities is consistent across the regulations.

As previously explained by the Department and discussed further in Part II.D.1 of this preamble, the IFR was a rule of agency management or personnel, as well as a rule of agency organization, procedure, or practice, and was exempt from the requirements for notice-and-comment rulemaking and a 30-day delay in effective date. See 5 U.S.C. 553(a)(2), (b)(A); see also 84 FR at 44540. This rule adopts the provisions of the IFR with changes to provide restrictions on the authority of the Director regarding further delegations of certain regulatory authorities, to clarify that the Director shall exercise independent judgment when considering cases subject to his adjudication and may take any action within his authority that is appropriate and necessary to decide those cases, and to clarify the authority to interpret certain regulations. These changes are additional matters of agency management or personnel. Accordingly, this final rule, too, is exempt from the requirements of a 30-day delay in effective date.

Under the Regulatory Flexibility Act (“RFA”), “[w]henever an agency is required by section 553 of [title 5, U.S. Code], or any other law, to publish general notice of proposed rulemaking for any proposed rule, . . . the agency shall prepare and make available for public comment an initial regulatory flexibility analysis.” 5 U.S.C. 603(a); see also id. 604(a). Such analysis is not required when a rule is exempt from notice-and-comment rulemaking under 5 U.S.C. 553. Because this rule is exempt from notice-and-comment rulemaking under 5 U.S.C. 553, no RFA analysis under 5 U.S.C. 603 or 604 is required.

This final rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.

This rule is limited to agency organization, management, or personnel matters and is therefore not subject to review by the Office of Management and Budget pursuant to section 3(d)(3) of Executive Order 12866. Further, because this rule is one of internal organization, management, or personnel, it is not subject to the requirements of Executive Orders 13563 or 13771.

This 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

The provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., and its implementing regulations in 5 CFR part 1320, do not apply to this rule because there are no new or revised recordkeeping or reporting requirements.

This is not a major rule as defined by 5 U.S.C. 804(2). This action pertains to agency management or personnel and is a rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties. Accordingly, it is not a “rule” as that term is used in 5 U.S.C. 804(3). Therefore, the reports to Congress and the Government Accountability Office specified by 5 U.S.C. 801 are not required.

Accordingly, for the reasons set forth in the preamble, the interim final rule amending parts 1001, 1003, and 1292 of title 8 of the Code of Federal Regulations and part 0 of title 28 of the Code of Federal Regulations, published August 26, 2019, at 84 FR 44537, is adopted as final with the following changes:

Where the Bureau has found that an entity has violated Federal consumer financial law, the Dodd-Frank Act provides that the Bureau may settle its claims against that entity by entering into an administrative Consent Order. 1 Consent Orders describe the Bureau's findings and conclusions concerning the identified violations and generally impose injunctive relief, monetary relief such as redress and civil money penalties, and reporting, recordkeeping, and cooperation requirements. 2 Consent Orders are negotiated by the Bureau and the entity (or entities) subject to them and generally have a five-year term, although in some instances the Bureau may impose a longer term when, in its view, the circumstances warrant it. Bureau staff monitor whether entities subject to Consent Orders are complying with the terms of those orders, and when appropriate the Bureau takes action against those who fail to comply with a Consent Order. 3

Consent Orders play an essential role in the Bureau's enforcement work by providing a public, enforceable mechanism to provide relief for consumers and to deter future violations, and the Bureau believes that in most instances Consent Orders should run for their full negotiated terms. At the same time, the Bureau recognizes that Consent Orders can impose burdens on the entities subject to them. For example, the reporting and record-keeping requirements imposed by Consent Orders can be costly and resource-intensive. In addition, in some circumstances, the existence of an open Bureau Consent Order can impact whether a depository institution supervised by a prudential regulator is permitted to open new branches or to merge with or acquire other financial institutions—which can burden the institution and potentially limit the choices available to consumers. Monitoring Consent Orders can also pose a burden for the Bureau itself.

The Bureau believes there may be exceptional circumstances when early termination of a Consent Order against an entity is appropriate and can be accomplished in a manner that minimizes the risk of new violations of law or harm to consumers. To facilitate such early terminations, this policy statement sets forth a process by which an entity subject to a Consent Order may apply for early termination and articulates the standards that the Bureau intends to use when evaluating early termination applications. Under this policy, which is not binding on the Bureau, the Bureau's Director intends to retain complete discretion and sole authority to terminate Consent Orders.

In addition to reducing the burdens associated with Consent Orders when they are no longer necessary, this policy provides entities with an incentive to fully and promptly comply with Bureau Consent Orders and to improve their compliance management systems to avoid additional violations. This policy also provides guidance to those subject to Bureau Consent Orders regarding the circumstances in which the Bureau may grant applications for early termination of a Consent Order.

The Bureau intends to grant applications for early termination of Consent Orders if it determines, in its sole discretion, that:

• The entity meets all of the eligibility criteria set forth below;

• The entity has complied with the terms and conditions of the Consent Order; and

• The entity's compliance position is “satisfactory” in the institutional product line (IPL) or compliance area ( e.g., fair lending) for which the Order was issued.

When an entity applies for termination, its application should demonstrate that these conditions are satisfied.

In order to protect consumers from unwarranted early terminations and preserve the resources of potential applicants and the Bureau, the Bureau only intends to consider applications for early termination under this policy from entities that meet certain threshold eligibility criteria.

First, the entity must be subject to a Consent Order the Bureau issued using its authority to conduct administrative adjudication proceedings. 4 This policy does not apply to settlements approved and ordered by a court, which can only be terminated early by court order. In general, the Bureau does not believe it is an appropriate use of its resources to seek to alter the status of settlements entered by courts. This policy also does not apply to court orders entered as a result of litigation ( e.g., after trial or summary judgment), which similarly can only be lifted by a court.

Second, only entities are eligible to apply for early termination under this policy. 5 Individuals ( i.e., natural persons) are not eligible. As described further below, the Bureau only intends to grant early termination where, among other things, an entity demonstrates that its compliance management system is “satisfactory” in the institutional product line in which the Consent Order was issued. The Bureau believes it would be impractical to undertake a comparable review of whether individuals are likely to comply with the law in the future.

Third, entities may not apply for early termination under this policy within the first year after the entry of the Consent Order, or until at least six months after all compliance and redress plans required under the Consent Order have been fully implemented, whichever is later. This eligibility requirement is intended to discourage premature applications for termination of Consent Orders and to preserve Bureau resources.

Fourth, entities are not eligible for early termination under this policy when the Consent Order imposes a ban on participating in a certain industry ( e.g., the mortgage industry or debt-relief industry), when the Consent Order at issue involves violations of an earlier Bureau Order, or when there has been any criminal action related to the violations found in the Consent Order. 6 In each of these situations, the Bureau believes that the risk of future violations and harm to consumers is heightened and that considering applications for early termination of a Consent Order would not be a productive use of Bureau resources.

Finally, absent extraordinary circumstances, the Bureau does not intend to consider more than one request from an entity for termination of the same Consent Order. This eligibility requirement is intended to incentivize entities to submit complete applications at an appropriate time following the issuance of a Consent Order, and to discourage serial requests that could pose a resource challenge for the Bureau.

When an entity applies for early termination, its application should demonstrate its full compliance with the Consent Order, including whether the entity has, when required, corrected violations of Federal consumer financial law; paid redress, civil money penalties, or other monetary relief; adopted appropriate policies and procedures to ensure future compliance; submitted adequate reports; and maintained required records. The entity's application may reference or attach prior submissions to the Bureau relevant to demonstrating its compliance with the Consent Order as appropriate. Additionally, if applicable, the entity's application should reference the results of any supervisory work conducted by the Bureau to assess the entity's Consent Order compliance and provide any additional information relevant to assessing its compliance with the Consent Order.

Where appropriate, the Bureau will work with the entity to ensure that the entity has provided adequate documentation to demonstrate compliance. If it has not already done so, the Bureau intends to expeditiously review the entity's compliance with the Consent Order and conduct follow-up work as needed to determine the entity's compliance. The Bureau generally intends to complete this compliance review within six months of receiving an application that the Bureau determines is complete, although the Bureau retains discretion over when to conduct the review to determine compliance with Consent Order provisions given the Bureau's other supervisory and enforcement priorities.

In the application for early termination of the Consent Order, the entity shall also demonstrate that its compliance management system for the IPL or compliance area at issue under the Order is “satisfactory,” or the equivalent of a “2” rating under the Uniform Interagency Consumer Compliance Rating System. Under that rating system, a 2 rating signifies that the entity “maintains a [compliance management system] that is satisfactory at managing consumer compliance risk in the institution's products and services and at substantially limiting violations of law and consumer harm.” As part of its application to the Bureau for early termination, an entity should submit evidence that it has satisfied these elements. If applicable, the entity should reference prior supervisory conclusions from a Bureau examination regarding the entity's compliance management system for the IPL or compliance area at issue. 7 In addition, if applicable, the entity should identify any supervisory rating or conclusion regarding its compliance management system in the relevant IPL or compliance area that it has received from other State or Federal regulators during the pendency of the Consent Order. The entity should also provide the Bureau with any additional documentation or information that the Bureau considers necessary to determine whether the entity maintains a satisfactory compliance management system in the subject IPL. 8

The Bureau believes that requiring an entity to satisfy this condition should help ensure that the entity's compliance position is sustainable after the Consent Order is terminated.

Unless otherwise directed in writing by the Bureau, an entity's termination application should be submitted to the Bureau point of contact identified in the “Notices” section of the Consent Order. Prior to submitting an application for order termination, an entity should contact the Bureau point of contact established in the Consent Order for additional guidance on the form of such a request. 9 In general, the entity's application should demonstrate that the entity has satisfied all of the conditions set forth above. The application may include exhibits and may reference prior written submissions to the Bureau as appropriate. Any factual assertions an entity makes in its application should be made under oath (such as in a sworn affidavit) by someone with personal knowledge of such facts.

Bureau staff intend to review the application and any supporting documentation when considering whether to recommend that the Director grant an application to terminate a Consent Order. As noted above, the Bureau may request additional information from the entity when evaluating the application. The Bureau may also consider any other information available to it regarding the entity, including information obtained from other government agencies or through other supervisory and enforcement activities involving the entity.

Under this policy, Bureau staff intend to make recommendations to the Bureau's Director regarding whether to grant applications for early termination. The Bureau's Director intends to retain complete discretion and sole authority to terminate Consent Orders. The Director's orders granting or denying termination applications will be posted on the Bureau's online administrative docket  10 and distributed to the entity. Prior to the Director's decision, an entity may withdraw its application at any time. 11

This Policy Statement constitutes a general statement of policy that is exempt from the notice and comment rulemaking requirements of the Administrative Procedure Act. 12 It is intended to provide information regarding the Bureau's general plans to exercise its discretion and does not impose any legal requirements on external parties, nor does it create or confer any substantive rights on external parties that could be enforceable in any administrative or civil proceeding. Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. The Bureau has also determined that this Policy Statement does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring approval by the Office of Management and Budget under the Paperwork Reduction Act.

Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq., the Bureau will submit a report containing this policy statement and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to its applicability date. The Office of Information and Regulatory Affairs has designated this Policy Statement as not a “major rule” as defined by 5 U.S.C. 804(2).

The Director of the Bureau, having reviewed and approved this document, is delegating the authority to electronically sign this document to Laura Galban, a Bureau Federal Register Liaison, for purposes of publication in the Federal Register .

The FAA is adopting a new AD for Bell Textron Inc. Model 412, 412CF, and 412EP helicopters. This AD was prompted by an accident on a Model 412EP helicopter and multiple reports of a cracked MGB support case. Initial investigations showed that excessive pylon pitch vibrations likely caused overload that resulted in these failures, and investigations are ongoing to determine the root cause of these vibrations. However, field experience and flight test data indicate that excessive degradation of the transmission mounts and friction dampers could cause the sudden increase in one-per-rev vertical vibration, and minimum collective and cyclic controls friction not meeting the maintenance manual specifications may also be a contributing factor.

This condition, if not addressed, could result in structural failure of the MGB support case and subsequent reduced control of the helicopter. To address this unsafe condition, this AD requires revising Section 2, Normal Procedures, under both “BEFORE TAKEOFF” and “IN-FLIGHT OPERATION(S)” of the existing RFM for your helicopter.

The FAA reviewed Section 2—Normal Procedures, of Bell 412 BHT-412-FM-1 RFM, Revision 26; Bell 412 BHT-412-FM-2 RFM, Revision 13; Bell 412 BHT-412-FM-3 RFM, Revision 20; Bell 412EP BHT-412-FM-4 RFM, Revision 37; Bell 412EPI BHT-412-FM-5 RFM, Revision 9; and Subaru Bell 412EPX BHT-412-FM-6 RFM, Revision 5, each dated August 19, 2020. These RFM revisions add a caution under “BEFORE TAKEOFF” and “IN-FLIGHT OPERATION(S)” to the existing RFM for your helicopter.

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

The FAA also reviewed Bell Operation Safety Notice 412-18-43, dated December 19, 2018 (OSN), which notified Model 412 and 412EP helicopter owners and operators of reports regarding rapid buildup of one-per-rev vertical vibration associated with a large steady state forward cyclic displacement in combination with collective input while at 100/103 percent revolutions per minute (RPM) with any part of the skid gear in contact with the ground. The OSN also noted that this vibration mode can be encountered on all Bell Model 412 helicopters equipped with any type of landing gear. Finally, the OSN reminded operators that, should this vibration mode be experienced, the amount of forward cyclic input shall immediately be reduced and, if necessary, the collective and rotor RPM shall also be reduced to exit the vibration mode described.

The FAA is issuing this AD after evaluating all of the relevant information and determining the unsafe condition described previously is likely to exist or develop in other helicopters of these same type designs.

This AD requires, before further flight, revising Section 2, Normal Procedures, under both “BEFORE TAKEOFF” and “IN-FLIGHT OPERATION(S)” of the existing RFM for your helicopter to add a caution about what to do if a sudden increase in one-per-rev vertical vibrations occurs with large steady state forward cycle displacements in combination with collective input while at a certain RPM % is encountered while any part of the skids is touching the ground. The caution varies depending on your helicopter model and serial number.

Revising the existing RFM for your helicopter may be performed by the owner/operator (pilot) holding at least a private pilot certificate. This authorization is an exception to the FAA's standard maintenance regulations. The pilot must record compliance with this AD in the aircraft maintenance records in accordance with 14 CFR 43.9(a)(1) through (4) and 14 CFR 91.417(a)(2)(v). The record must be maintained as required by 14 CFR 91.417, 121.380, or 135.439.

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

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the required corrective action must be completed before further flight. Therefore, notice and opportunity for prior public comment are impracticable and contrary to public interest pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the reasons stated above, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than one month.

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

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will file in the docket all comments received, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. The FAA will consider all the comments received and may conduct additional rulemaking based on those comments.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this 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 final rule, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this final rule. Submissions containing CBI should be sent to Kuethe Harmon, Safety Management Program Manager, DSCO Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222- 5198; email kuethe.harmon@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

The FAA estimates that this AD affects 96 helicopters of U.S. registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates that operators may incur the following costs in order to comply with this AD.

For Model 412 and 412EP helicopters, revising the existing RFM for your helicopter takes about 0.5 work-hour for an estimated cost of $43 per helicopter and $4,128 for the U.S. fleet.

For Model 412CF helicopters, there are no costs of compliance associated with this AD because there are no helicopters with this type certificate on the U.S. Registry.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Helicopters Model AS332C1 and AS332L1 helicopters. The NPRM published in the Federal Register on June 4, 2020 (85 FR 34375). The NPRM was prompted by a report that the affected helicopters use the same “flight/ground” logic signal instead of independent redundant signals. The NPRM proposed to require amending the emergency procedures of the existing RFM for your helicopter, a wiring modification of the “flight/ground” logic signal source of the AHRS 1, and then removal of the amendment to the existing RFM for your helicopter. The FAA is issuing this AD to address certain helicopters that use the same “flight/ground” logic signal, instead of independent redundant signals. If both AHRS incorrectly receive “ground” status in flight, as a result for instance of a single failure, this will generate consistent erroneous computation of the attitudes and vertical speed during helicopter maneuvers with consequent incorrect flight data indications to the flight crew on both primary displays. Erroneous flight information could lead to increased workload for the flight crew when the upper modes of the automatic flight control system are not engaged, possibly resulting in reduced control of the helicopter during high speed maneuvers in instrumental meteorological conditions (IMC).

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0021, dated February 1, 2019; corrected February 4, 2019 (EASA AD 2019-0021) (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Helicopters Model AS332C1 and AS332L1 helicopters. EASA advises that the AHRS 1 and AHRS 2 installed on AS332C1e and AS332L1e helicopters use the same “flight/ground” logic signal, instead of independent redundant signals, as required by the original design specification. If both AHRS incorrectly receive “ground” status in flight, as a result for instance of a single failure, this will generate consistent erroneous computation of the attitudes and vertical speed during helicopter maneuvers with consequent incorrect flight data indications to the flight crew on both primary displays. EASA AD 2019-0021 states that this condition, if not corrected, could lead to increased workload for the flight crew when the upper modes of the automatic flight control system are not engaged, possibly resulting in reduced control of the helicopter during high speed maneuvers in IMC.

EASA further advises that Airbus Helicopters has issued rush revisions to the RFM, and developed a modification of the wiring harness, ensuring independent sources of the “flight/ground” logic signal for both AHRS. EASA AD 2019-0021 requires amending the emergency procedures of the applicable RFM, doing the modification of the wiring harness, and then removing the amendment to the RFM.

You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0462.

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

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

The FAA has determined that these minor changes:

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

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

Airbus Helicopters has issued Alert Service Bulletin No. AS332-34.00.60, Revision 1, dated March 29, 2019. This service information describes procedures for a wiring modification of the “flight/ground” logic signal source of the AHRS 1, which changes the “flight/ground” logic signal source to independent redundant signals.

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

Airbus Helicopters has issued Alert Service Bulletin No. AS332-34.00.60, Revision 0, dated December 6, 2018. The service information describes procedures for a wiring modification of the “flight/ground” logic signal source of the AHRS 1, which changes the “flight/ground” logic signal source to independent redundant signals. Airbus Service Bulletin No. AS332-34.00.60, Revision 1, dated March 29, 2019, clarifies the procedures for the post-installation test in Alert Service Bulletin No. AS332-34.00.60, Revision 0, dated December 6, 2018.

EASA AD 2019-0021 specifies to do the modification within 6 months. This AD requires the modification be done within 100 hours time-in-service or before intentional flight into IMC, whichever occurs first. The FAA has determined this compliance time represents the maximum interval of time allowable for the affected helicopters to continue to safely operate before the modification is done.

The FAA estimates that this AD affects 8 helicopters of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Pilatus Aircraft Ltd Model PC-24 airplanes with an emergency exit grommet part number (P/N) 944.87.32.001 installed. The NPRM published in the Federal Register on August 7, 2020 (85 FR 47919). The NPRM proposed to correct an unsafe condition of the specified products and was based on MCAI originated by the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union. EASA issued AD No. 2019-0293, dated December 4, 2019 (referred to after this as “the MCAI”), which states:

You may obtain further information by examining the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0744.

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

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

The FAA reviewed Pilatus PC-24 Service Bulletin No. 25-005, dated August 12, 2019. The service information contains procedures for replacing the grommets that are used to hold the upper panel assembly in position on the LH and RH emergency exits with different part-numbered grommets. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 39 products of U.S. registry. The FAA also estimates that it will take 1.0 work-hour per product to comply with the requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $30 per product.

Based on these figures, the FAA estimates the cost of the AD on U.S. operators to be $4,485, or $115 per product.

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

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0099, dated May 5, 2020 (EASA AD 2020-0099) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Helicopters Deutschland GmbH Model EC135P1, EC135P2, EC135P2+, EC135P3, EC135T1, EC135T2, EC135T2+, EC135T3, EC635P2+, EC635P3, EC635T1, EC635T2+, and EC635T3 helicopters. Model EC635P3, EC635P2+, EC635T1, and EC635T3 helicopters are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those helicopters in the applicability.

This AD was prompted by reports of improper heat treatment of Ti-bolts on the forward and aft tail rotor drive shafts, resulting in a broken Ti-bolt. The FAA is issuing this AD to address improper heat treatment of Ti-bolts on the forward and aft tail rotor drive shafts, which could result in rupture of a Ti-bolt installed in a critical location, possibly resulting in reduced control of the helicopter. See the MCAI for additional background information.

EASA AD 2020-0099 describes procedures for an inspection to determine if Ti-bolts installed on the forward and aft tail rotor drive shafts are affected parts, and replacement of affected parts. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This AD requires accomplishing the actions specified in EASA AD 2020-0099 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2020-0099 is incorporated by reference in this final rule. This AD, therefore, requires compliance with EASA AD 2020-0099 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2020-0099 that is required for compliance with EASA AD 2020-0099 is available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0919.

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because improper heat treatment of Ti-bolts installed on the forward and aft tail rotor drive shafts could lead to rupture of a Ti-bolt installed in a critical location, possibly resulting in reduced control of the helicopter. In addition, the compliance time for the required action is shorter than the time necessary for the public to comment and for publication of the final rule. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, the FAA invites you to send any written comments, data, or views about this AD. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one copy of the comments. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA2020-0919; Project Identifier MCAI-2020-00637-R at the beginning of your comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, as well as a report summarizing each substantive public contact with FAA personnel concerning this AD. The FAA will consider all comments received by the closing date for comments. The FAA may amend this AD because of those comments.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD 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 AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Kathleen Arrigotti, Aviation Safety Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3218; email: kathleen.arrigotti@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

The FAA estimates that this AD affects 330 helicopters of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain serial-numbered Polskie Zaklady Lotnicze Sp. z o.o. Model PZL M28 05 airplanes. The NPRM published in the Federal Register on May 14, 2020 (85 FR 28893). The NPRM proposed to correct an unsafe condition for the specified products and was based on MCAI originated by the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union. EASA issued AD No. 2018-0242, dated October 8, 2018 (referred to after this as “the MCAI”), which states:

Polskie Zaklady Lotnicze Sp. z o.o. informed the FAA the potential for damage to the thermo-shrinkable tubes does not progress with time. Therefore, the FAA determined repetitive inspections are not required. You may examine the MCAI on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0473.

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

An individual commenter supported the NPRM.

Another individual commenter requested the FAA increase the estimated number of labor hours in the cost of compliance. The commenter stated the number of hours should be increased from 3 to at least 44 to 48, based on the time and personnel needed to open the center wing panels, properly shore the engines, open the tank covers, perform the inspection, and complete the close up. The commenter further stated that this would not include costs for any de-fueling, de-puddling, re-fueling, or leak checks that may need to be done.

The FAA disagrees. The cost analysis in AD rulemaking actions typically includes only the costs associated with complying with the AD. In the NPRM, the FAA estimated 3 work hours to perform the inspection and 60 work hours, if necessary, to replace the harness, based on information from the design approval holder. The compliance time for this AD allows the operator do this inspection at the same time as other maintenance when the airplane has been prepared for other tasks. No changes were made to the proposed AD based on this comment.

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

The FAA reviewed Polskie Zaklady Lotnicze Sp. z o.o. Service Bulletin No. E/12.141/2018, dated May 15, 2018. The service information contains procedures for inspecting the thermo-shrinkable tubes on the electrical harnesses in the center and outer wing fuel tanks for damage and replacing any electrical harness with damaged thermo-shrinkable tubes. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD will affect 15 products of U.S. registry. The FAA also estimates that it will take about 3 work-hours per product to comply with the inspection requirement of this AD. The average labor rate is $85 per work-hour.

Based on these figures, the FAA estimates the cost of the AD on U.S. operators to be $3,825, or $255 per product.

In addition, the FAA estimates that any necessary follow-on replacement action will take about 60 work-hours and require parts costing $5,000, for a cost of $10,100 per electrical harness. The FAA has no way of determining the number of airplanes that may need these actions.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

In FR Doc. 2020-16489 appearing on page 56924 in the Federal Register of Monday, September 14, 2020, the following correction is made:

We are adopting an updated EDGAR Filer Manual Volume II: “EDGAR Filing” (Version 54) (September 2020). The updated Filer Manual is incorporated by reference into the Code of Federal Regulations.

The Filer Manual contains all the technical specifications needed for filers to make submissions through the EDGAR system. 1 Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format. 2

The EDGAR System was updated in Release 20.3 and corresponding amendments to the Filer Manual are being made to reflect the changes described below.

On September 25, 2019, the Commission adopted 17 CFR 6c-11 (“rule 6c-11”) under the Investment Company Act of 1940 to permit ETFs that satisfy certain conditions to operate without the expense and delay of obtaining an exemptive order. The Commission also adopted certain related amendments to Form N-CEN. 3 EDGAR Release 20.3 updates Forms N-CEN and N-CEN/A submission types to collect specific information on which ETFs are relying on rule 6c-11 and the instruction that contains the definition of “authorized participant” to conform the definition with rule 6c-11. The EDGAR Filer Manual has been revised to provide relevant instructions related to this modification for filers to complete Forms N-CEN and N-CEN/A submission types. See Chapter 8 (Preparing and Transmitting Online Submissions) of the EDGAR Filer Manual, Volume II: “EDGAR Filing.”

On March 11, 2020, the Commission adopted rule and form amendments intended to help investors make informed investment decisions regarding variable annuity and variable life insurance contracts. 4 EDGAR Release 20.3 adds the following new submission form types accessible through EDGARLink Online: 497VPI, 497VPU, N-VP, N-VP/A, N-VPFS, and N-VPFS/A. See Chapter 3 (Index to Forms) and Appendix C (EDGAR Submission Types) of the EDGAR Filer Manual, Volume II: “EDGAR Filing.”

The EDGAR system will no longer accept the following submission form types after September 21, 2020, due to the Commission's rescission of these form types: N-1, N-1/A, N-27E-1, N-27E-1/A, N-27F-1, and N-27F-1/A. New exhibits for Forms N-3, N-4 and N-6 also are available on EDGARLink Online and filers have the option to attach these new exhibits in official HTML or ASCII format (and unofficially in PDF format). The EDGAR Filer Manual includes information related to this modification for filers to complete the relevant submission types and to include references to the new exhibit types. See Appendix E (Automated Conformance Rules for EDGAR Data Fields) of the EDGAR Filer Manual, Volume II: “EDGAR Filing.”

EDGAR Release 20.3 allows filers to mark changed material by redlining changed content in Inline XBRL submissions. Accordingly, the following submission form types permit redlining in Inline XBRL format: N-1A, N-1A/A, 485APOS, 497, 485BPOS, 10-Q, 10-Q/A, 10-QT, 10-QT/A, S-1, S-1/A, S-3, S-3/A, S-4, S-4/A, S-11, S-11/A, S-11MEF, S-1MEF, S-3D, S-3DPOS, S-3MEF, S-4 POS, S-4EF, S-4MEF, 10-K, 10-K/A, 10-KT, 10-KT/A, 10-12B, 10-12B/A, 10-12G, 10-12G/A, POS AM, POS EX, S-3ASR, 20-F, 20-F/A, 40-F, 40-F/A, 8-K, 8-K/A, F-1, F-1/A, F-3, F-3/A, F-3ASR, F-3D, F-3DPOS, F-3MEF, F-4, F-4/A, F-4EF, F-4POS, F-10EF, F-10POS, 6-K, 6-K/A, 8-K12B, 8-K12B/A, 8-K12G3, 8-K12G3/A, 8-K15D5, 8-K15D5/A, SP 15D2, and SP 15D2/A. See Chapter 5 (Constructing Attached Documents and Document Types) of the EDGAR Filer Manual, Volume II: “EDGAR Filing.”

In EDGAR Release 20.3, the EDGAR system disallows the IFRS-2018 taxonomy and DEI-2018 taxonomy versions and linkbases of RR-2018 taxonomy since two versions of both IFRS and DEI taxonomies are usually maintained, which are currently the 2020 and 2019 versions. The linkbases of the RR-2018 taxonomy depend on the DEI-2018 taxonomy, which is being removed. Please see https://www.sec.gov/info/edgar/edgartaxonomies.shtml for the complete list of supported standard taxonomies.

Along with the adoption of the Filer Manual, we are amending 17 CFR 232.301 to provide for the incorporation by reference into the Code of Federal Regulations of the current revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

The updated EDGAR Filer Manual is available for website viewing and printing; the address for the Filer Manual is https://www.sec.gov/info/edgar/edmanuals.htm. You may also obtain paper copies of the EDGAR Filer Manual from the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m.

Because the Filer Manual and the corresponding rule and form amendments relate solely to agency procedures or practice, publication for notice and comment is not required under the Administrative Procedure Act (“APA”). 5 It follows that the requirements of the Regulatory Flexibility Act  6 do not apply.

The effective date for the updated Filer Manual and the related rule and form amendments is November 3, 2020. In accord with the APA, 7 we find that there is good cause to establish an effective date less than 30 days after publication of these rules. The Commission believes that establishing an effective date less than 30 days after publication of these rules is necessary to coordinate the effectiveness of the updated Filer Manual with the related system upgrades.

We are adopting the amendments to Regulation S-T under the authority in Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933, 8 Sections 3, 12, 13, 14, 15, 15B, 23, and 35A of the Securities Exchange Act of 1934, 9 Section 319 of the Trust Indenture Act of 1939, 10 and Sections 8, 30, 31, and 38 of the Investment Company Act of 1940. 11

In accordance with the foregoing, title 17, chapter II of the Code of Federal Regulations is amended as follows:

Background

The final regulations (TD 9901) that are the subject of this correction are under sections 250 and 861 of the Internal Revenue Code.

As published on July 15, 2020 (85 FR 43042) the final regulations (TD 9901) contain errors that need to be corrected.

Accordingly, the final regulations (TD 9901) that were the subject of FR Doc. 2020-14649, published at 85 FR 43042 (July 15, 2020), are corrected as follows:

1. On page 43044, third column, the third through the fifth, and the ninth line from the top of the last partial paragraph, and page 43045, first column, the first line from the top of the first partial paragraph, the language “taken into account in determining the taxable income limitation in section 250(a)(2),” is corrected to read “taken into account for coordinating taxable income limitations (including the taxable income limitation in section 250(a)(2)),” and the language “if the method is applied consistently for all taxable” is corrected to read ” if the same method is applied consistently for all relevant Code sections and for all taxable”.

2. On page 43071, first column, the third and eighth and ninth line from the top of the last partial paragraph from the bottom, the text “years beginning before January 1, 2021,” is corrected to read “years beginning on or after January 1, 2018, and before January 1, 2021,” and the text “provisions in § 1.250(b)-4(d)(3) or § 1.250(b)-5(e)(4))” is corrected to read “provisions in § 1.250(b)-4(d)(3) or § 1.250(b)-5(e)(4)), but once applied, taxpayers must apply the final regulations for all subsequent taxable years beginning before January 1, 2021”.

3. On page 43071, second column, amend the first partial paragraph by adding at the end of the paragraph the text: “The final regulations also make conforming amendments to § 1.861-8 in relation to the finalization of the regulations under section 250. Consistent with the general applicability date for §§ 1.250(a)-1 through 1.250(b)-6, these amendments apply to taxable years beginning on or after January 1, 2021. For taxable years beginning before January 1, 2021, taxpayers may allocate and apportion deductions for purposes of determining deduction eligible income and foreign-derived deduction eligible income by allocating and apportioning deductions in accordance with the principles of §§ 1.861-8 through 1.861-17. No inference is intended as to whether other approaches for allocating and apportioning deductions for purposes of section 250(b) may be considered to result in properly allocable deductions.”

Purpose: As noted above, this final rule incorporates classification changes adopted by the Nice Agreement that will become effective on January 1, 2021. Specifically, this rule adds new services to or deletes existing services from two class headings to further define the types of services appropriate to the class.

Summary of Major Provisions: The USPTO is revising § 6.1 of 37 CFR part 6 to incorporate classification changes and modifications, as listed in the Nice Classification (11th ed., ver. 2021), published by WIPO, which will become effective on January 1, 2021.

The Nice Agreement is a multilateral treaty, administered by WIPO, that establishes the international classification of goods and services for the purposes of registering trademarks and service marks. As of September 1, 1973, this international classification system is the controlling system used by the United States, and it applies, for all statutory purposes, to all applications filed on or after September 1, 1973, and their resulting registrations. See 37 CFR 2.85(a). Every signatory to the Nice Agreement must utilize the international classification system.

Each state party to the Nice Agreement is represented in the Committee of Experts of the Nice Union (Committee of Experts), which meets annually to vote on proposed changes to the Nice Classification. Any state that is a party to the Nice Agreement may submit proposals for consideration by the other members of the Committee of Experts in accordance with agreed-upon rules of procedure. Proposals are currently submitted on an annual basis to an electronic forum on the WIPO website, commented upon, modified, and compiled by WIPO for further discussion and voting at the annual Committee of Experts meeting.

In 2013, the Committee of Experts began annual revisions to the Nice Classification. The annual revisions, which are published electronically and enter into force on January 1 each year, are referred to as versions and identified by edition number and the year of the effective date ( e.g., “Nice Classification, 10th edition, version 2013” or “NCL 10-2013”). Each annual version includes all changes adopted by the Committee of Experts since the adoption of the previous version. The changes consist of: (1) The addition of new goods and services to, and deletion of goods and services from, the Alphabetical List, and (2) any modifications to the wording in the Alphabetical List, the class headings, and the explanatory notes that do not involve the transfer of goods or services from one class to another. New editions of the Nice Classification continue to be published electronically every five years and include all changes adopted since the previous annual version, as well as goods or services transferred from one class to another or new classes that have been created since the previous edition.

Due to the worldwide impact of COVID-19, the International Bureau (IB) at WIPO announced on March 12, 2020, that the 30th session of the Committee of Experts, originally scheduled to be held in Geneva, Switzerland, from April 27, 2020, to May 1, 2020, would not be convened in person as planned. In order to maintain the revision cycle of the Nice Classification as much as possible, the IB issued circular NCL 164 to Member States of the Nice Union to collect their opinion about the possibility of voting through the Nice Electronic Forum on proposals that had been submitted for the 30th session (e-voting). All proposals that received unanimous support through e-voting would be regarded as adopted for inclusion into the next version of the Nice Classification (NCL 11-2021), which will enter into force on January 1, 2021. All non-adopted proposals would be carried forward to the next session for further discussion. The IB's suggestion was supported by 29 of the 32 Member States of the Nice Union who submitted comments to the proposal.

The annual revisions contained in this final rule consist of modifications to the class headings that were incorporated into the Nice Agreement through e-voting during the 30th Session of the Committee of Experts, from April 1, 2020, through May 1, 2020. Under the Nice Classification, there are 34 classes of goods and 11 classes of services, each with a class heading. Class headings generally indicate the fields to which goods and services belong. Specifically, this rule adds new services to or deletes existing services from two class headings, as set forth in the discussion of regulatory changes below. The changes to the class headings further define the types of services appropriate to the class. As a signatory to the Nice Agreement, the United States adopts these revisions pursuant to Article 1.

The USPTO is revising § 6.1 as follows:

In Class 35, a comma is added after “management” and the wording “organization and administration” is added immediately thereafter. The wording “business administration” and the semicolon thereafter are deleted.

In Class 36, the wording “Financial, monetary, and banking services;” is added, and immediately thereafter, “Insurance” is amended to “insurance services.” The wording “financial affairs” and “monetary affairs” and the semicolons thereafter are deleted.

A. Administrative Procedure Act: The changes in this rulemaking involve rules of agency practice and procedure, and/or interpretive rules. See Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 97 (2015) (Interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers.” (citation and internal quotation marks omitted)); Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (Rule that clarifies interpretation of a statute is interpretive.); Bachow Commc'ns Inc. v. FCC, 237 F.3d 683, 690 (D.C. Cir. 2001) (Rules governing an application process are procedural under the Administrative Procedure Act.); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (Rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims.).

Accordingly, prior notice and opportunity for public comment for the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law. See Perez, 575 U.S. at 101 (Notice and comment procedures are required neither when an agency “issue[s] an initial interpretive rule” nor “when it amends or repeals that interpretive rule.”); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), does not require notice and comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” (quoting 5 U.S.C. 553(b)(A))).

B. Regulatory Flexibility Act: As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 or any other law, neither a Regulatory Flexibility Act analysis nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is required. See 5 U.S.C. 603.

C. Executive Order 12866 (Regulatory Planning and Review): This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

D. Executive Order 13563 (Improving Regulation and Regulatory Review): The USPTO has complied with Executive Order 13563 (Jan. 18, 2011). Specifically, the USPTO has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole, and provided online access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

E. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs): This rule is not an Executive Order 13771 (Jan. 30, 2017) regulatory action because this rule is not significant under Executive Order 12866 (Sept. 30, 1993).

F. Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

G. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

H. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

I. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

J. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

K. Executive Order 12630 (Taking of Private Property): This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

L. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ), prior to issuing any final rule, the USPTO will submit a report containing the final rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this rulemaking are not expected to result in an annual effect on the economy of 100 million dollars or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this rulemaking is not expected to result in a “major rule” as defined in 5 U.S.C. 804(2).

M. Unfunded Mandates Reform Act of 1995: The changes set forth in this rulemaking do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

N. National Environmental Policy Act of 1969: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

O. National Technology Transfer and Advancement Act of 1995: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions that involve the use of technical standards.

P. Paperwork Reduction Act of 1995: This final rule does not involve information collection requirements that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information has a currently valid OMB control number.

For the reasons given in the preamble and under the authority contained in 15 U.S.C. 1112, 1123 and 35 U.S.C. 2, as amended, the USPTO is amending part 6 of title 37 as follows:

Section 553 of the APA, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for making this final agency action without prior proposal and opportunity for comment because no significant EPA judgment is involved in making findings of failure to submit SIPs, or elements of SIPs, required by the CAA, where states and territories have made no submissions, or incomplete submissions, to meet the requirement. Thus, notice and public procedures are unnecessary. The EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2020-0377. All documents in the docket are listed on http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or information whose disclosure is restricted by statue. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form through http://www.regulations.gov. Out of an abundance of caution for members of the public and our staff, EPA Docket Center and Reading Room are closed to the public, with limited exceptions, to reduce the risk of transmitting COVID-19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. The telephone number for the Public Reading Room is (202) 566-1744 and the telephone number for the Office of Air and Radiation Docket and Information Center is (202) 566-1742. For further information on EPA Docket Center services and the current status, please visit us online at https://www.epa.gov/dockets.

For questions related to specific states or territories mentioned in this notice, please contact the appropriate EPA Regional Office:

In June 2010, the EPA promulgated a new 1-hour primary SO 2 NAAQS of 75 parts per billion (ppb), which is met when the 3-year average of the annual 99th percentile of daily maximum 1-hour average concentrations does not exceed 75 ppb, as determined in accordance with Appendix T of 40 CFR part 50. See 40 CFR 50.17(a and (b). On January 9, 2018, the EPA, as part of the third round of area designations for the 2010 SO 2 NAAQS, designated five areas of the country as nonattainment for the 1-hour primary 2010 SO 2 NAAQS. 1 See 83 FR 1098, codified at 40 CFR part 81, subpart C. These area designations had an effective date of April 9, 2018.

Areas designated nonattainment for the SO 2 NAAQS are subject to the general nonattainment area planning requirements of CAA section 172 and to the SO 2 -specific planning requirements of subpart 5 of part D of Title I of the CAA (sections 191 and 192). All components of the SO 2 part D nonattainment area SIP, including the emissions inventory, attainment demonstration, reasonably available control measures (RACM) and reasonably available control technology (RACT), enforceable emissions limitations and control measures, Reasonable Further Progress (RFP) plan, nonattainment New Source Review (NNSR) program, and contingency measures, are due to the EPA within 18 months of the effective date of designation of an area under CAA section 191. Thus, the nonattainment area SIPs for areas designated effective April 9, 2018, were due on October 9, 2019. These SIPs are required to demonstrate that their respective areas will attain the NAAQS as expeditiously as practicable, but no later than 5 years from the effective date of designation, or April 9, 2023.

If the EPA finds that a state or territory has failed to make the required SIP submittal or that a submitted SIP is incomplete, then CAA section 179(a) establishes specific consequences, after a period of time, including the imposition of mandatory sanctions for the affected area. Additionally, such a finding triggers an obligation under CAA section 110(c) for the EPA to promulgate a FIP no later than 2 years after the finding of failure to submit if the affected state or territory has not submitted, and the EPA has not approved, the required SIP submittal.

If the EPA has not affirmatively determined that a state or territory has made the required complete SIP submittal for an area within 18 months of the effective date of this rulemaking, then, pursuant to CAA section 179(a) and (b) and 40 CFR 52.31, the offset sanction identified in CAA section 179(b)(2) will apply in the affected nonattainment area. If the EPA has not affirmatively determined that the state or territory has made a complete submission within 6 months after the offset sanction is imposed, then the highway funding sanction will apply in the affected nonattainment area, in accordance with CAA section 179(b)(1) and 40 CFR 52.31. The sanctions will not take effect, if, within 18 months after the effective date of these findings, the EPA affirmatively determines that the affected state or territory has made a complete SIP submittal addressing the deficiency for which the finding was made. Additionally, if the state or territory makes the required SIP submittal and the EPA takes final action to approve the submittal within 2 years of the effective date of these findings, the EPA is not required to promulgate a FIP for the affected nonattainment area.

As of the date of signature of this action, the four states and territories listed in Table 1 failed to make complete SIP submittals required under part D of Title I of the CAA by October 9, 2019, for the five areas designated nonattainment effective April 9, 2018. The specific components of the SO 2 part D nonattainment area SIP that the four states and territories failed to submit include: An accurate inventory of current emissions for all sources of SO 2 in the nonattainment area, an attainment demonstration, reasonably available control measures (RACM) and reasonably available control technology (RACT), enforceable emissions limitations and control measures, reasonable further progress (RFP) plan, nonattainment new source review (NNSR) program, and contingency measures. Therefore, the EPA is issuing findings of failure to submit SO 2 nonattainment area SIPs for four states and territories responsible for these areas.

The EPA believes that the human health or environmental risks addressed by this action will not have disproportionately high or adverse human health or environmental effects on minority, low-income, or indigenous populations because it does not directly affect the level of protection provided to human health or the environment under the SO 2 NAAQS. The purpose of this rule is to make findings that the affected states and territories named failed to submit the required SIPs to provide for timely attainment of the 1-hour primary SO 2 NAAQS. In finding that certain states and territories failed to submit a complete SIP that satisfies the nonattainment area planning requirements under section 172 and subpart 5 of part D of Title I of the CAA (sections 191 and 192) for the 1-hour primary SO 2 NAAQS, this action does not directly affect the level of protection provided for human health or the environment. Moreover, it is intended that the actions and deadlines resulting from this notice will in fact lead to greater protection for U.S. citizens, including minority, low-income, or indigenous populations, by ensuring that states and territories meet their obligation to develop and submit SIPs to ensure that areas make progress toward attaining the 1-hour primary SO 2 NAAQS.

This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

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

This action does not impose an information collection burden under the provisions of the PRA. This final rule does not establish any new information collection requirement apart from what is already required by law. This rule relates to the requirement in the CAA for states and territories to submit SIPs under section 172 and subpart 5 of part D of Title I of the CAA (sections 191 and 192) which address the statutory requirements that apply to areas designated as nonattainment for the SO 2 NAAQS.

I certify that this rule will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The rule is a finding that the named states and territories have not made the necessary SIP submission for nonattainment areas to meet the requirements of part D, title I of the CAA.

This action does not contain any unfunded mandate as described in UMRA 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, territorial, local or tribal governments or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the named states or territories, on the relationship between the national government and named the states or territories, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175. This rule finds that the named states and territories failed to submit a complete SIP that satisfies the nonattainment area plan requirements under section 172 and subpart 5 of part D of Title I of the CAA (sections 191 and 192) for the 1-hour primary SO 2 NAAQS. No tribe is subject to the requirement to submit an implementation plan under section 172 or under subpart 5 of part D of Title I of the CAA. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it is a finding that the named states and territories failed to submit a complete SIP that satisfies the nonattainment area plan requirements under section 172 and subpart 5 of part D of Title I of the CAA for the 1-hour primary SO 2 NAAQS and does not directly or disproportionately affect children.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. In finding that the named states and territories have failed to submit a complete SIP that satisfies the nonattainment area plan requirements under section 172 and subpart 5 of part D of Title I of the CAA for the 1-hour primary SO 2 NAAQS, this action does not directly affect the level of protection provided to human health or the environment.

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

Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by the EPA under the CAA. This section provides, in part, that petitions for review must be filed in the United States Court of Appeals for the District of Columbia Circuit if (i) the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) such action is locally or regionally applicable, but “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

This final action is nationally applicable. To the extent a court finds this final action to be locally or regionally applicable, the EPA finds that this action is based on a determination of “nationwide scope or effect” within the meaning of CAA section 307(b)(1). This final action consists of findings of failure to submit required SIPs from four states and territories for five named nonattainment areas for the 2010 primary 1-hour SO 2 NAAQS, located in four of the 10 EPA Regions, and in four different federal judicial circuits. This final action is also based on a common core of factual findings concerning the receipt and completeness of the relevant SIP submittals. For these reasons, this final action is nationally applicable or, alternatively, to the extent a court finds this action to be locally or regionally applicable, the Administrator has determined that this final action is based on a determination of nationwide scope or effect for purposes of CAA section 307(b)(1).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit within 60 days from the date this final action is published in the Federal Register .

Filing a petition for reconsideration by the Administrator of this final action does not affect the finality of the action for the purposes of judicial review, nor does it extend the time within which a petition for judicial review must be filed and shall not postpone the effectiveness of such rule or action.

Preamble acronyms and abbreviations. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

Background information. On April 7, 2020, the EPA proposed revisions to the Phosphoric Acid Manufacturing NESHAP (85 FR 19412). In this action, we are finalizing decisions and revisions for the rule. We summarize some of the more significant comments we timely received regarding the proposed rule and provide our responses in this preamble. A summary of all other public comments on the proposal and the EPA's responses to those comments is available in the Summary of Public Comments and Responses for the Phosphoric Acid Manufacturing NESHAP, Docket ID No. EPA-HQ-OAR-2020-0016.

Organization of this document. The information in this preamble is organized as follows:

Regulated entities. Categories and entities potentially regulated by this action are shown in Table 1 of this preamble.

Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source category listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

In addition to being available in the docket, an electronic copy of this final action will also be available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this final action at: https://www.epa.gov/stationary-sources-air-pollution/phosphate-fertilizer-production-plants-and-phosphoric-acid. Following publication in the Federal Register , the EPA will post the Federal Register version and key technical documents at this same website.

Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit (the court) by January 4, 2021. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.

Section 307(d)(7)(B) of the CAA further provides that only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. This section also provides a mechanism for the EPA to reconsider the rule if the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within the period for public comment or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule. Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. Environmental Protection Agency, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

In the 2015 Rule, the EPA published final amendments to the Phosphoric Acid Manufacturing and Phosphate Fertilizer Production NESHAP (80 FR 50386). As part of that action, we established MACT-based mercury emission limits for new and existing calciners within the Phosphoric Acid Manufacturing source category. These limits were based on emission data from the six identical calciners at the PCS Aurora facility. Because these six sources are of identical design and use the same fuel and feed, we determined that they should be treated as a single source for purposes of MACT floor development. As a result, we combined the emission test results for the different calciners into a single database that we used as the basis to set MACT floor emission limits for both new and existing sources. We also evaluated a beyond-the-floor (BTF) option for MACT for existing calciners but did not select the BTF option as MACT because we determined that the economic impacts to the facility would not be reasonable. We did set a BTF limit for new calciners.

Following promulgation of the 2015 Rule, PCS Phosphate petitioned for reconsideration, pursuant to section 307(d)(7)(B) of the CAA, on October 16, 2015. The EPA granted the petition for reconsideration of the issues presented at the time relating to the compliance schedules, monitoring, and compliance options for air oxidation reactors and scrubbers. This reconsideration was finalized on September 28, 2017 (82 FR 45193). However, subsequent to this petition for reconsideration, compliance testing of the calciners for mercury emissions in 2016 showed that three calciners at the Aurora facility exceeded the MACT limit, with the three other calciners near the limit. For reference, the mean calciner compliance emissions concentration in 2016 was 0.143 milligrams per dry standard cubic meter (mg/dscm) at 3-percent oxygen, higher than the MACT limit of 0.14 mg/dscm at 3-percent oxygen. The mean of the 2016 compliance emissions concentrations was 44 percent higher than the mean of the data from the 2010 and 2014 Information Collection Requests (ICRs) that were used to develop the 2015 Rule's emission limit. On May 10, 2016, PCS Phosphate submitted a letter to the EPA requesting a revision to the calciner mercury MACT floor standard. On September 6, 2016, PCS Phosphate added the calciner mercury limit to its earlier petition for reconsideration. This additional request was not raised with reasonable specificity or within 60 days of the publication of the 2015 Rule, so the mercury MACT floor issue was not included in the EPA's 2017 reconsideration of the 2015 Rule. However, on the basis of the test data presented, the EPA was convinced there was justification to review the mercury calciner limit and include new emissions data in analysis of that limit.

Because of our evaluation of the emission data, as explained in more detail in the proposal and supporting documents (Docket ID No. EPA-HQ-OAR-2020-0016), the EPA proposed to revise the mercury emission standard for existing calciners. We received public comments on the proposed rule amendment from six parties. Copies of all comments submitted are available electronically through the docket. In this document, the EPA is taking final action on this revision as proposed.

The EPA is amending 40 CFR part 63, subpart AA. This amendment is in response to a petition for a rulemaking to amend the 2015 Rule's calciner mercury MACT floor emission limit, submitted by PCS Phosphate to the Agency on September 6, 2016. The petition is available in the docket for this action (Docket Item No. EPA-HQ-OAR-2020-0016-0007). The EPA is increasing the MACT floor-based mercury emission limit for existing calciners from 0.14 mg/dscm at 3-percent oxygen to 0.23 mg/dscm at 3-percent oxygen. Table 1 to Subpart AA of Part 63—Existing Source Emission Limits, is reproduced in its entirety at the end of this preamble for the sake of clarity. The EPA is amending only the existing source mercury limit for phosphate rock calciners, along with references to its accompanying compliance date. This amendment does not impact any other aspect of the table or regulatory text. The EPA is not amending the mercury emission limit for new sources.

The following is a summary of the significant comments received on the proposed amendments to mercury emission standards for existing phosphate rock calciners and our responses to these comments.

Comment: Several commenters expressed concern that the EPA did not sufficiently consider the risk effects, particularly related to inhalation, of mercury emissions associated with a less stringent standard, and whether stricter limits may be required.

Response: In its recent decision in Citizens for Pennsylvania's Future, et al., v. Wheeler, 19-cv-02004-VC (N.D. Cal. 2020), the United States District Court for the Northern District of California affirmed that 42 U.S.C. 7412(f)(2)(A) does not impose a mandatory duty for the EPA to revisit risk assessments when we revise technology-based standards. Moreover, in this case a reassessment of the risks was unnecessary given the conservativism in our risk analysis completed in 2015. The risk assessment supporting the 2015 Rule (“Residual Risk Assessment for the Phosphate Fertilizer and Phosphoric Acid Source Categories in Support of the July 2015 Risk and Technology Review Final Rule,” Docket Item No. EPA-HQ-OAR-2012-0522-0081) evaluated risks due to emissions of hazardous air pollutants (HAP) from calciners, including human health effects from chronic and acute inhalation exposure to mercury emissions. The 2015 Rule's risk assessment conservatively modeled phosphoric acid calciner mercury emissions of 352 pounds per year (lb/yr), which is considerably greater than the 264 lb/yr that we estimate will be emitted in compliance with the revised mercury emission limit. The calciner mercury emission values used to model risk were overestimates because they were based on inaccurate production values and because of the different test method used to derive the emissions estimates used in the risk assessment. As described in the 2015 Rule's emission data memorandum (“Emissions Data Used in Residual Risk Modeling: Phosphoric Acid and Phosphate Fertilizer Production Source Categories,” Docket Item No. EPA-HQ-OAR-2012-0522-0011), an inaccurate projection was made of calciner emissions based on the annual production value and emissions of the one calciner tested in the 2010 ICR. This overestimate applied to all calciner HAP emissions used for modeling purposes, including mercury values. The BTF memorandum (“Beyond-the-Floor Analysis for Phosphate Rock Calciners at Phosphoric Acid Manufacturing Plants—Final Rule,” Docket Item No. EPA-HQ-OAR-2012-0522-0082) further explained that the risk assessment used speciated mercury data obtained from the Ontario-Hydro test method. These data provided information on the relative prevalence of divalent mercury compared to elemental mercury, but also showed higher emissions than those obtained using EPA Method 30B. EPA Method 30B is the method used to determine facility compliance and is the basis of the calciner mercury estimates in this action and the 2015 Rule. We originally calculated allowable emissions by scaling measured emissions to the permitted design capacity, so increased operational throughputs would not change that evaluation. Using the conservative mercury emission estimates from our 2015 Rule's risk assessment, we still determined that the risk posed by emissions from the category, including mercury calciner emissions, was acceptable, that the standards provided an ample margin of safety to protect public health, and that no additional standards were necessary to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. These conclusions have not changed.

Comment: One commenter stated that the EPA did not evaluate increased emissions of HAP other than mercury, such as lead, and whether calcination of higher mercury materials may affect lead emissions. The commenter feels these data should be included in the risk evaluation.

Response: The EPA is unaware of any evidence of a correlation between mercury and lead emissions from sources in this source category. This revision of the mercury emission limit for existing calciners is based on additional data that became available for analysis. Emissions of other HAP, such as lead, will not be changed by this action. No operational changes are expected as a result of this action. As discussed in the previous response, any changes in calciner operations since relevant data were originally gathered do not change the determinations made based on the 2015 Rule's risk assessment. This action does not affect emission limits for non-mercury HAP surrogates, which remain subject to current compliance requirements and are out of the scope of this action.

Comment: One commenter claimed that test reports for EPA Method 30B data were not available and that this precluded quality assurance or proper evaluation of analyses by the facility or the EPA.

Response: Compliance test reports are publicly available through WebFire ( https://cfpub.epa.gov/webfire/ ). In addition, the mercury compliance test reports, along with the mercury study carried out as part of the consent order, have been added to the docket. We verified that the reported information was the same as that used to calculate the revised MACT floor. These methods and reports have been validated and have undergone quality assurance. Extensive data summaries used by the EPA to analyze the MACT floor were posted in the docket for the proposed rule and were sufficient to allow proper evaluation of relevant analyses.

Comment: One commenter supported the proposed decisions to revise the 2015 calciner mercury MACT floor standard and not pursue a BTF standard. The commenter agreed that the risk assessment shows add-on controls are not required to protect human health or the environment.

Response: We acknowledge the commenter's support of the EPA's proposed decisions.

Comment: One commenter asserted that the EPA did not consider mercury control by raw material selection and that the feasibility of determining the spatial variability of mercury concentration in phosphate rock resources has been demonstrated. Another commenter provided information which demonstrates that ore-switching is both technically infeasible and inconsistent with current permit requirements.

Response: The MACT floor for calciners was established pursuant to CAA section 112(d)(3) as the average emission limitation achieved by a single facility that uses a single source of raw material, which is mined on-site. Once the MACT floor has been established, raw material selection would be a BTF control option, discussed in CAA section 112(d)(2). In this case, raw material selection is not a feasible option to implement, as is supported by statements from another commenter. The EPA's site visit report for PCS Aurora (Docket Item No. EPA-HQ-OAR-2020-0016-0008) describes that this facility operates by processing phosphate rock that was mined on-site. The facility is constrained by their mining permit to mine certain areas of the phosphate rock in a certain order. In addition, the mining process itself inherently results in the ore being thoroughly mixed. Low-mercury phosphate rock could not be selectively targeted for mining and calciner processing. Material substitution would not be a feasible means to reduce HAP emissions.

Only the PCS Aurora facility and its six calciners are expected to be affected by the change to the existing calciner MACT floor emission limit for mercury finalized in this action. We are revising the MACT floor based on new data from PCS Phosphate for the existing calciners. Since neither this amendment nor the 2015 Rule anticipated a need to install controls, we do not anticipate a change in actual mercury emissions as a result of this action. Currently, we estimate total actual emissions of mercury from all six calciners to be 264 lb/yr, less than the 352 lb/yr conservatively estimated for modeling purposes in the 2015 Rule, so our conclusions related to human health risk are unchanged and we continue to anticipate no adverse environmental impact. The 2015 Rule set a mercury limit of 0.14 mg/dscm at 3-percent oxygen that the existing calciners could not achieve under normal operations. Without this amendment, additional controls such as an activated carbon injection system would be necessary to comply with the 2015 Rule's standard. The revised standard that does not require installation of those controls represents a cost-savings for the facility, since those expenditures are no longer expected to be necessary. We estimate that installing new activated carbon injection control equipment to meet the 2015 Rule's calciner mercury standard would have resulted in a present value cost of approximately $26 million (2017 dollars) discounted at 7 percent to 2019 over a 5-year analytical period. Therefore, this action will result in a total cost savings of $26 million over the analytical period. For more detail, see the economic impact analysis memorandum in the docket, unchanged since the proposal (Docket Item No. EPA-HQ-OAR-2020-0016-0013).

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

This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

This action is considered an Executive Order 13771 deregulatory action. Details on the estimated cost savings of this final rule can be found in the EPA's analysis of the potential costs and benefits associated with this action.

This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0361. With this action, the EPA is finalizing amendments to the 40 CFR part 63, subpart AA, rule language narrowly concerning the existing calciner mercury MACT floor. Therefore, the EPA believes that there are no changes to the information collection requirements of the 2015 Rule. The information collection estimate of projected cost and hour burden has not been revised due to any impacts from this action.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The single facility subject to the existing calciner mercury MACT floor requirements of 40 CFR part 63, subpart AA, is not a small entity.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

This action does not have federalism implications. It 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.

This action does not have tribal implications as specified in Executive Order 13175. This action will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

This action does not involve technical standards.

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The environmental justice finding in the 2015 Rule remains relevant in this action, which is finalizing amendments to the 40 CFR part 63, subpart AA, existing rule language narrowly concerning the calciner mercury MACT floor.

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

For the reasons set forth in the preamble, the EPA is amending 40 CFR part 63 as follows:

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are a 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), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.

• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.

You may access a frequently updated electronic version of 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 numbers EPA-HQ-OPP-2013-0218 and EPA-HQ-OPP-2013-0219 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 January 4, 2021. 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 numbers EPA-HQ-OPP-2013-0218 and EPA-HQ-OPP-2013-0219, 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 22, 2020 (85 FR 31130) (FRL-10008-87), EPA proposed to exempt residues of the antimicrobial pesticide ingredients dipropylene glycol and triethylene glycol from the requirement of a tolerance when used on or applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils. These exemptions were proposed on the Agency's own initiative under section 408(e) of the FFDCA. 21 U.S.C. 346a(e). No comments were submitted on the Agency's proposal. Therefore, the Agency is finalizing the exemption from the requirement of a tolerance for residues of the antimicrobial pesticide ingredients dipropylene glycol and triethylene glycol when used on or applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils as proposed.

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 . . . .”

Consistent with FFDCA section 408(c)(2)(A) and the factors specified in FFDCA section 408(c)(2)(B), 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 dipropylene glycol and triethylene glycol including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with dipropylene glycol and triethylene glycol are discussed in the preamble to the proposed rule.

Based on the toxicological and exposure data discussed in the proposal and the supporting registration review documents, EPA concludes that the exemption from the requirement of a tolerance for residues of dipropylene glycol and triethylene glycol when used in antimicrobial formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils will be safe. EPA has determined that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to dipropylene glycol and triethylene glycol residues.

An analytical method for residue is not needed. Due to the lack of risk, EPA is establishing exemptions without limits for dipropylene glycol and triethylene glycol; therefore, measuring residues of dipropylene glycol and triethylene glycol is not necessary.

Therefore, EPA is establishing in 40 CFR 180.940(a) exemptions from the requirement of a tolerance for residues of dipropylene glycol and triethylene glycol when used in antimicrobial formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils.

This action establishes exemptions from the requirement of a tolerance under FFDCA section 408(e). 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).

Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency previously assessed whether establishment of exemptions from the requirement of a tolerance might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. This analysis for tolerance establishments and modifications was published in the Federal Register of May 4, 1981 (46 FR 24950) and was provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this rule, the Agency hereby certifies that this proposed rule will not have a significant negative economic impact on a substantial number of small entities. Furthermore, for the pesticides named in this rule, the Agency knows of no extraordinary circumstances that exist as to the present rule that would change EPA's previous analysis. No comments were submitted concerning EPA's similar determination in the proposed rule.

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:

In FR Doc 2020-22528 appearing on page 64068 in the Federal Register of October 9, 2020, the following corrections are made:

In August 2016, NMFS published a final rule (81 FR 54390; August 15, 2016) implementing the fish and fish product import provisions (section 101(a)(2)) of the MMPA (hereafter referred to as the MMPA Import Provisions), which prohibit the import of fish or fish products from commercial fishing operations that result in the incidental mortality or serious injury of marine mammals in excess of United States standards. Specifically, this rule established conditions for evaluating a harvesting nation's regulatory programs to address incidental and intentional mortality and serious injury of marine mammals in its fisheries producing fish and fish products exported to the United States. Fish and fish products from export and exempt fisheries identified by the Assistant Administrator for Fisheries in the List of Foreign (LOFF) can only be imported into the United States if the harvesting nation has applied for and received a Comparability Finding from NMFS. The 2016 final rule established procedures that a harvesting nation must follow and conditions it must meet to receive a Comparability Finding for a fishery. The rule also established provisions for intermediary nations to ensure that such nations do not import and re-export to the United States fish or fish products that are subject to an import prohibition.

Under the MMPA Import Provisions, NMFS established an initial five-year exemption period similar to the Interim Exemption for domestic fisheries that occurred in 1988 prior to implementation of the framework for addressing marine mammal bycatch in U.S. commercial fisheries. Currently, the exemption period expires December 31, 2021. This interim final rule would extend the exemption period one year to end December 31, 2022. During the exemption period, the prohibitions of the MMPA Import Provisions do not apply to imports from the harvesting nation. NMFS established the five-year exemption period to provide nations with adequate time to assess marine mammal stocks, estimate bycatch, and develop regulatory programs to mitigate that bycatch.

NMFS is extending the exemption period by one year. This change is warranted because foreign nations have experienced delays or interruptions in the implementation of programs to comply with the MMPA Import Provisions because of the coronavirus pandemic. Necessary diversion of resources in response to the pandemic has resulted in significant disruptions to foreign government operations for nearly every nation exporting seafood products to the United States. These disruptions included inability to access government buildings, lack of telework capabilities, and inability to access data requested to meet the MMPA Import Provisions benchmarks. Additionally, legislative processes were suspended or postponed in some nations, preventing the adoption of laws aimed at implementing regulatory provisions necessary for nations to develop regulatory programs comparable in effectiveness to the U.S. regulatory program. There were also disruptions to scientific research cruises, fishery observer or bycatch monitoring programs, and experimental trials to develop marine mammal bycatch mitigation devices.

The rate of response by nations also declined during 2020. In 2019, 96 out of approximately 130 trading partners submitted progress reports in compliance with the MMPA Import Provisions. In 2020, only 85 nations submitted updates to their LOFF. Approximately 55 nations (or economies) did not update the information in their LOFF. 1 More than 17 nations requested that the deadline for the submission of updates to their LOFF be extended or expressed concern about being able to meet the deadline due to operational disruptions attributable to the pandemic. For the 55 nations that did not respond, we cannot determine if extenuating circumstances affected their ability to update their LOFF. Given these impacts, providing nations with additional time to implement the MMPA Import Provisions will result in fewer disruptions to international seafood trade and a more predictable impact to U.S. seafood wholesalers and retailers when the regulation enters into full effect.

The MMPA Import Provisions establish March 1st of the year when the “exemption period or comparability finding is to expire” as the deadline by which a harvesting nation must submit to the Assistant Administrator an application for each of its export and exempt fisheries. This application requires the nation to submit documentary evidence demonstrating that the harvesting nation has met the conditions specified in the MMPA Import Provisions to receive a comparability finding, including reasonable proof as to the effects on marine mammals of the commercial fishing technology in use in the fishery for fish or fish products exported from such nation to the United States.

According to the MMPA Import Provisions, NMFS must conduct comparability findings for all 953 exempt and 1,852 export fisheries on the LOFF. For exempt fisheries, the nation need only demonstrate that they prohibit the intentional mortality or serious injury of marine mammals in the course of commercial fishing operations or have procedures to reliably certify that exports of fish and fish products to the United States are not the product of an intentional killing or serious injury of a marine mammal. For export fisheries, NMFS must undertake a detailed evaluation of the regulatory program governing that fishery and determine whether that program is comparable in effectiveness to the U.S. regulatory program. Currently, the MMPA Import Provisions provide NMFS only eight months from the submission of the comparability finding application to the publication of the Federal Register notice to identify which nations and fisheries have either received or been denied a Comparability Finding and, if denied, the import restrictions associated with those fisheries. Based on NMFS' recent experience reviewing, issuing, and revoking Comparability Findings for certain fisheries of Mexico, this amount of time is insufficient given the number of export fisheries that must be evaluated. By this interim final rule, NMFS would change the deadline for submission of comparability finding applications from March 1 of the year when the exemption period or comparability finding is to expire to November 30 of the preceding year. As a result, the original comparability finding application deadline of March 1, 2021, would move to November 30, 2021, with this interim final rule's extension of the exemption period to December 31, 2022.

This rule is published under the authority of the Marine Mammal Protection Act, 16 U.S.C. 1371. The NMFS Assistant Administrator has determined that this interim final rule is consistent with the Marine Mammal Protection Act and other applicable laws. Under NOAA Administrative Order (NAO 216-6), the promulgation of regulations that are procedural and administrative in nature are categorically excluded from the requirement to prepare an Environmental Assessment.

NOAA finds good cause to issue this interim final rule to extend the exemption period and revise the deadline for applications without advance notice in a proposed rule or the prior opportunity for public comment, and to make the rule effective immediately without providing a 30-day delay, because of the need to provide exporting nations with sufficient advance notice of the additional time to submit their comparability finding applications. Currently nations must submit their comparability finding applications in a few months by March 1, 2021. Advance notice and prior opportunity for comment, or delayed effectiveness, would not serve the purposes of the extension and would be contrary to the public interest, requiring exporting nations submit incomplete comparability finding applications without sufficient time. This interim final rule extends the comparability finding application deadline until November 30, 2021, and the exemption period until December 31, 2022. These extensions give exporting nations time to gather the needed information and data during the pandemic crisis. Furthermore, any delay in notifying exporting nations may adversely affect U.S. trade. However, NMFS is requesting public comments on this interim final rule and will consider whether any changes are warranted when issuing a final rule.

This interim final rule has been determined to be not significant for purposes of Executive Order 12866.

This interim final rule contains no new or revised collection-of-information requirements subject to the Paperwork Reduction Act.

For the reasons set out in the preamble, 50 CFR part 216 is amended as follows:

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2020 flathead sole, rock sole, and yellowfin sole Amendment 80 allocations of the TAC specified in the BSAI are 12,884 metric tons (mt), 36,090 mt, and 114,903 mt, respectively, as established by the final 2020 and 2021 harvest specifications for groundfish in the BSAI (85 FR 13553, March 9, 2020) and as revised (85 FR 64413, October 13, 2020). The 2020 flathead sole, rock sole, and yellowfin sole Amendment 80 ABC reserves are 44,960 mt, 94,807 mt, and 96,895 mt, respectively, as established by the final 2020 and 2021 harvest specifications for groundfish in the BSAI (85 FR 13553, March 9, 2020) and as revised (85 FR 64413, October 13, 2020).

The Alaska Seafood Cooperative has requested that NMFS exchange 1,191 mt of flathead sole and 4,527 mt of rock sole Amendment 80 allocation of the TAC for 5,718 mt of yellowfin sole Amendment 80 ABC reserves under § 679.91(i). Therefore, in accordance with § 679.91(i), NMFS exchanges 1,191 mt of flathead sole and 4,527 mt of rock sole Amendment 80 allocation of the TAC for 5,718 mt of yellowfin sole Amendment 80 ABC reserves in the BSAI. This action also decreases and increases the TACs and Amendment 80 ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2020 and 2021 harvest specifications for groundfish in the BSAI (85 FR 13553, March 9, 2020) and as revised (85 FR 64413, October 13, 2020) are further revised as follows:

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Alaska Seafood Cooperative in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 21, 2020.