On December 21, 2000, the Secretary established the National List within part 205 of the USDA organic regulations (7 CFR 205.600 through 205.607). The National List identifies the synthetic substances allowed in organic farming and the nonsynthetic substances prohibited in organic farming. The National List also identifies nonagricultural and nonorganic agricultural substances (ingredients) that may be used in organic handling.

The Organic Foods Production Act of 1990 (OFPA), as amended (7 U.S.C. 6501-6524), and the USDA organic regulations (7 CFR part 205) specifically prohibit the use of any synthetic substance in organic production and handling unless the synthetic substance is on the National List (7 CFR 205.601-205.606). Section 205.105 also requires that any nonorganic agricultural substance and any nonsynthetic nonagricultural substance used in organic handling be on the National List. Under the authority of OFPA, the National List can be amended by the Secretary based on recommendations presented by the NOSB. Since the final rule establishing the National Organic Program (NOP) became effective on October 21, 2002, USDA's Agricultural Marketing Service (AMS) has published multiple rules amending the National List.

This final rule addresses one NOSB recommendation to amend the National List that was submitted to the Secretary on October 26, 2018. The amendment in this final rule is discussed in the section on Overview of Amendments below.

The following provides an overview of the amendment to a designated section of the National List regulations. This rule adds tamarind seed gum to the National List. This rule does not add blood meal made with sodium citrate or natamycin to the National List, as proposed by AMS (84 FR 55866, October 18, 2019).

The background information on each substance and the basis for each NOSB recommendation was addressed in the proposed rule. The NOSB evaluated each substance by applying the OFPA substance evaluation criteria to determine if the substance was compatible with organic production and handling. For each substance, AMS reviewed the recommendation submitted by the NOSB to the Secretary to determine if the OFPA evaluation criteria had been appropriately applied and whether the addition to or amendment of the National List would not supersede other federal regulations.

AMS received 45 comments on the proposed rule. After considering the comments, AMS determined that the addition of nonorganic tamarind seed gum to the National List for use in organic handling will be finalized as proposed. The proposed amendments to add blood meal made with sodium citrate and to prohibit the use of natamycin in organic production have not been finalized for the reasons discussed below. Section F of this final rule provides an overview of the comments received and AMS's response to these comments.

This rule amends the National List to allow nonorganic tamarind seed gum (by addition to § 205.606) in organic products when organic tamarind seed gum is not commercially available. Tamarind seed gum is used as a thickener, stabilizer, emulsifier or gelling agent in processed foods. The U.S. Food and Drug Administration (FDA) has been informed that tamarind seed is Generally Recognized as Safe (GRAS) for the above uses. 1 During its October 24-26, 2018, public meeting, the NOSB recommended adding tamarind seed gum as an allowed nonorganic agricultural ingredient to § 205.606 of the National List. As required by the USDA organic regulations (§ 205.606), the nonorganic form of the ingredient will only be permitted when organic tamarind seed gum is not commercially available. 2 To use nonorganic forms of ingredients listed at § 205.606, organic handling operations must demonstrate and document that organic forms of the ingredient(s) are not commercially available. Certifying agents (“certifiers”) review the operation's use of nonorganic ingredients for compliance with the regulations in the course of reviewing an organic operation's organic system plan.

Based upon public comments received on the proposed rule, AMS is not finalizing the proposed amendments to (1) list blood meal made with sodium citrate as an allowed synthetic substance for organic crop production or (2) prohibit natamycin use in crop production. A summary of the comments received on the proposed rule and AMS's responses to these comments are included in Section F of this final rule.

On October 18, 2019, AMS published in the Federal Register (84 FR 55866) a proposed rule to amend the National List to include blood meal made with sodium citrate; natamycin; and nonorganic tamarind seed gum. On August 9, 2018, AMS published a Notice in the Federal Register (83 FR 39376) announcing the fall 2018 NOSB meeting. One purpose of that meeting was to deliberate recommendations for the substances addressed in this rule.

The OFPA authorizes the Secretary to make amendments to the National List based on recommendations developed by the NOSB (7 U.S.C. 6517(d)). Sections 6518(k) and 6518(n) of the OFPA authorize the NOSB to develop recommendations for submission to the Secretary to amend the National List and establish a process by which persons may petition the NOSB for the purpose of having substances evaluated for inclusion on or deletion from the National List. Section 205.607 of the USDA organic regulations permits any person to petition to add or remove a substance from the National List and directs petitioners to obtain the petition procedures from USDA. The current petition procedures published in the Federal Register (81 FR 12680, March 10, 2016) for amending the National List can be accessed through the NOP Program Handbook on the NOP website at https://www.ams.usda.gov/rules-regulations/organic/handbook.

This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) has exempted from Executive Order 12866. Additionally, because this rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to the action. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

The Small Business Administration (SBA) sets size criteria for each industry described in the North American Industry Classification System (NAICS)  3 to delineate which operations qualify as small businesses. The SBA has classified small agricultural producers that engage in crop and animal production as those with average annual receipts of less than $1,00,000. Handlers are involved in a broad spectrum of food production activities and fall into various categories in the NAICS Food Manufacturing sector. The small business thresholds for food manufacturing operations are based on the number of employees and range from 500 to 1,250 employees, depending on the specific type of manufacturing. Certifying agents fall under the NAICS subsector, “All other professional, scientific and technical services.” For this category, the small business threshold is average annual receipts of less than $16.5 million.

AMS has considered the economic impact of this proposed rulemaking on small agricultural entities. Data collected by the USDA National Agricultural Statistics Service and the NOP indicate most of the certified organic production operations in the United States would be considered small entities. According to the 2017 Census of Agriculture, 18,166 organic farms in the United States reported sales of organic products and total farmgate sales in excess of $7.2 billion. 4 Based on that data, organic sales average $400,000 per farm. Assuming a normal distribution of producers, we expect that most of these producers would fall under the $1,000,000 sales threshold to qualify as a small business.

According to the NOP's Organic Integrity Database, there are 19,764 organic handlers that are certified under the USDA organic regulations (10,492 of these handlers are based in the U.S.). 5 The Organic Trade Association's 2018 Organic Industry Survey has information about employment trends among organic manufacturers. The reported data are stratified into three groups by the number of employees per company: Less than 5; 5 to 49; and 50 plus. These data are representative of the organic manufacturing sector and the lower bound (50) of the range for the larger manufacturers is significantly smaller than the SBA's small business thresholds (500 to 1,250). Therefore, AMS expects that most organic handlers would qualify as small businesses.

The USDA has 78 accredited certifying agents who provide organic certification services to producers and handlers. The certifying agent that reports the most certified operations, nearly 3,500, would need to charge approximately $4,200 in certification fees in order to exceed the SBA's small business threshold of $16.5 million. The costs for certification generally range from $500 to $3,500, depending on the complexity of the operation. Therefore, AMS expects that most of the accredited certifying agents would qualify as small entities under the SBA criteria.

The economic impact on entities affected by this rule would not be significant. The effect of this rule, if implemented as final, would be to allow the use of one substance in organic handling. Adding this substance to the National List would increase regulatory flexibility and would give small entities more tools to use in day-to-day operations. Accordingly, USDA certifies that this rule would not have a significant economic impact on a substantial number of small entities.

Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This rule is not intended to have a retroactive effect. Accordingly, to prevent duplicative regulation, states and local jurisdictions are preempted under the OFPA from creating programs of accreditation for private persons or state officials who want to become certifying agents of organic farms or handling operations. A governing state official would have to apply to USDA to be accredited as a certifying agent, as described in section 6514(b) of the OFPA. States are also preempted under sections 6503 through 6507 of the OFPA from creating certification programs to certify organic farms or handling operations unless the state programs have been submitted to, and approved by, the Secretary as meeting the requirements of the OFPA.

Pursuant to section 6507(b)(2) of the OFPA, a state organic certification program that has been approved by the Secretary may, under certain circumstances, contain additional requirements for the production and handling of agricultural products organically produced in the state and for the certification of organic farm and handling operations located within the state. Such additional requirements must (a) further the purposes of the OFPA, (b) not be inconsistent with the OFPA, (c) not be discriminatory toward agricultural commodities organically produced in other States, and (d) not be effective until approved by the Secretary.

In addition, pursuant to section 6519(c)(6) of the OFPA, this rule would not supersede or alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601-624), the Poultry Products Inspection Act (21 U.S.C. 451-471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056), concerning meat, poultry, and egg products, respectively, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301 et seq. ), nor the authority of the Administrator of the Environmental Protection Agency (U.S. EPA) under the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 et seq. ).

No additional collection or recordkeeping requirements are imposed on the public by this rule. Accordingly, OMB clearance is not required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, Chapter 35.

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

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

During a 60-day comment period that closed on December 17, 2019, AMS received 45 comments on the proposed rule (84 FR 55866). These comments were submitted by organic farmers and handlers, certifying agents, researchers, trade associations, nonprofit organizations, and consumers. The comments can be viewed at https://www.regulations.gov by searching for docket ID “AMS-NOP-19-0023.”

AMS received several comments on the proposed amendment to add blood meal made with sodium citrate to the National List for use in organic crop production. Most of these comments opposed the proposed listing. These comments argued that classifying blood meal made with sodium citrate as a synthetic substance contradicts guidance in NOP 5033 Classification of Materials and NOP 5034-1 Materials for Organic Crop Production, which lists blood meal as a nonsynthetic substance. 6 Some comments noted that the use of anticoagulants, such as sodium citrate, is part of the “standard of identity” of blood meal, and, therefore, blood meal made with anticoagulants should be considered a nonsynthetic substance. Some comments stated that the use of sodium citrate in the making of blood meal has no technical effect, does not transform the blood into a different substance through a chemical change, and is not present in the final product. A few comments stated that sodium citrate binds with calcium in blood, making blood meal processed with sodium citrate the same as blood meal derived from processed animal blood where no anticoagulant was used. These comments suggested that the blood meal processed with sodium citrate is not altered into a form that does not occur in nature and should be classified as nonsynthetic.

A few comments expressed concern about the potential impact of adding processing aids used to manufacture crop inputs to the National List. These comments postulate that adding blood meal made with sodium citrate to the National List sets a precedent for reviewing and approving processing aids that may be used in other currently approved inputs that are considered to be nonsynthetic, such as bone meal or feather meal, but which in turn, could become prohibited.

Several comments opposed or questioned the allowance of blood meal in organic production generally. A comment indicated that blood meal can be made without the use of sodium citrate and several comments were concerned that there are no restrictions on or required information about the source of the blood meal used in organic production, for example, to prohibit blood meal from nonorganic animals. One comment was concerned about disease transmission resulting from the use of blood meal and proposed that blood meal should be added to § 205.602 as a prohibited nonsynthetic substance.

AMS also received comments supporting the addition of blood meal made with sodium citrate to the National List. However, supporting comments noted concerns with potential impacts of the proposed action beyond blood meal and one suggested revising guidance as an alternative to rulemaking. One comment supported the listing with the caveat that there was public support for such action and acknowledged the potential broader implications of that action and regulatory uncertainty about reviewing substances used in the processing of inputs.

Many of the public comments addressed the proposal to list natamycin as a prohibited substance in organic crop production. Many comments opposed natamycin's listing in § 205.602 as a prohibited nonsynthetic substance. These comments argued that the NOSB's determination that natamycin use could increase fungal resistance is flawed and is not supported by research. Several comments also included citations to specific research findings which conclude that natamycin use does not contribute to fungal resistance. Comments also stated that natamycin has been used for many years with no documented evidence of increased fungal resistance.

In addition to disputing fungal resistance, comments cited other concerns with prohibiting the use of natamycin, including reduced product shelf-life, economic loss, and fewer options for controlling diseases where options are already very limited. The comments also stated that natamycin is generally not used for treatment of human fungal infections.

AMS received several comments claiming that the proposed listing to prohibit natamycin, and the deliberations on the natamycin petition, did not meet requirements for prohibiting nonsynthetic substances stipulated in OFPA (7 U.S.C. 6517). To prohibit a nonsynthetic substance in organic crop or livestock production, OFPA requires that the USDA, in consultation with the U.S. Department of Health and Human Services and the U.S. Environmental Protection Agency, determine that the substance is harmful to human health or the environment, or is inconsistent with organic farming. Comments stated that natamycin is not harmful to and has negligible impact on human health. In addition, comments argued that the NOSB did not conclude that the use of natamycin was inconsistent with organic farming. Some comments stated that the NOSB's recommendation to prohibit natamycin because it is “non-essential for organic production” is not valid because essentiality is not an evaluation criterion included in 7 U.S.C. 6517(c)(2) for prohibiting nonsynthetic substances.

AMS did receive some comments in support of adding natamycin to § 205.602 as a prohibited nonsynthetic substance. These comments agreed with the NOSB's recommendation to list natamycin as a prohibited nonsynthetic because of hazards to human health and the environment, and issues with essentiality for and compatibility with organic agriculture. Some comments argued that natamycin should be categorized as a synthetic substance because of the potential for synthetic substrates to be used in the fermentation process to produce natamycin. One comment requested guidance on determining whether the use of synthetic fermentation substrates in natamycin production would result in a nonsynthetic product. Another comment supporting the listing speculated on the possible impact natamycin use could have on soil fungi.

AMS received five comments opposed to the addition of nonorganic tamarind seed gum to § 205.606 for use in organic handling. Comments argued that nonorganic ingredients should never be allowed in the processing and handling of organic products. Other comments indicated that tamarind seed gum is not essential for organic handling. Some comments argued for a focus on improved traceability of tamarind seed supply chains (as cited by the tamarind seed gum petitioner), noting that organic tamarind seed is available, but poor traceability makes confirmation of the organic status of tamarind seed gum difficult. Other comments argued that the tamarind seed gum petition review process did not adequately determine whether tamarind seed gum is commercially available in organic form. One comment more broadly noted that the petition process for listing materials on § 205.606 should include a review of all barriers to the organic production and commercial availability of a substance, and that a substance should be listed only if those barriers are clearly shown to be insurmountable. This comment also challenged the NOSB review of tamarind seed gum, stating that the petition review was not robust enough.

Sodium citrate was the petitioned substance for use as a processing aid (anticoagulant) in spray-dried blood products, such as blood meal. The NOSB recommended adding sodium citrate to the National List as an allowed synthetic substance for that use and requested that AMS review sodium citrate to determine whether sodium citrate used to process blood meal must be on the National List in order for the resulting blood meal to be allowed in organic crop production. As such, AMS proposed adding blood meal made with sodium citrate as a synthetic substance to the National List for use in organic crop production.

Natamycin was petitioned to be classified as an allowed nonsynthetic substance for use as a post-harvest treatment to control fungal diseases on certain commodities. The NOSB determined that natamycin is nonsynthetic and that it should be prohibited in organic crop production because it is not essential, is inconsistent with sustainable agriculture, and has the potential to contribute to fungal resistance and the associated negative effects on human health. Therefore, AMS proposed listing natamycin as a nonsynthetic substance that is prohibited in organic crop production.

AMS is not adopting two amendments in the proposed rule. These amendments would have listed (1) blood meal made with sodium citrate as an allowed synthetic substance in organic crop production and (2) natamycin as a prohibited nonsynthetic in organic crop production. Commenters raised significant concerns about each of these proposals.

Specifically, many comments opposed AMS's classification of blood meal made with sodium citrate as a synthetic substance and explained that there may be potential impacts of that action which had not been considered in the proposed rule. AMS does not agree that information presented in these comments conclusively shows that blood meal made with sodium citrate is a nonsynthetic substance. However, AMS does agree that classifying blood meal made with sodium citrate as synthetic may have negative implications for some other materials used in organic production and that such impacts were not anticipated or considered in the proposed rule.

Further, AMS is not finalizing the proposed amendment based in part on the fact that the NOSB did not specifically recommend adding blood meal made with sodium citrate as a synthetic to the National List. The NOSB recommended adding sodium citrate for use as an anticoagulant in the processing of blood meal, but did not determine that blood meal made with sodium citrate is a synthetic substance. Based on new information received in public comments about sodium citrate's action in blood meal, AMS determined that further discussion and deliberation by the NOSB are needed to determine whether or not the use of sodium citrate makes blood meal a synthetic substance. Therefore, in the absence of an NOSB recommendation that blood meal made with sodium citrate should be added to the National List as a synthetic substance and because information submitted in public comment raised new questions about the proposed classification of blood meal made with sodium citrate as a synthetic substance, AMS is not adopting the proposed listing.

In regards to natamycin, several public comments also presented research findings to challenge the conclusions that natamycin use in organic crop production would increase fungal resistance to antimicrobials, have negative environmental or human health impacts, and that a prohibition meets the OFPA criteria for prohibiting natural substances. AMS agrees that these research findings should be considered as part of the totality of the information considered on natamycin, and that the merits of those findings should be discussed as part of any regulatory action. AMS has not assessed the validity of the research findings presented in public comment, and AMS believes that the availability of this information warrants consideration before finalizing a prohibition on natamycin in organic production. As a result, AMS is not finalizing the proposed amendment to add natamycin as a nonsynthetic substance prohibited for use in organic crop production.

AMS is not finalizing the proposed amendments for blood meal with sodium citrate and natamycin for reasons discussed above. The information presented in public comments opposing the proposed actions should be assessed before any new proposal for regulatory action. AMS may invite additional input from the NOSB on these topics; the NOSB's work may include conducting further study of the information and potential impacts and risks presented in public comments. AMS will not continue rulemaking on these two substances unless the NOSB forwards a new recommendation(s) on these topics to AMS.

This rule will add tamarind seed gum to the National List. AMS received few comments on tamarind seed gum. These comments expressed concern about the traceability of organic tamarind seed gum, and one comment argued that the NOSB did not conduct a robust review of the tamarind seed gum petition when determining organic tamarind seed gum availability. AMS disagrees with these comments. The NOSB comprehensively reviewed information on the potential sources of tamarind seed gum to determine if there were adequate sources of organic tamarind seed gum available to organic handlers in form, quantity, and quality. Based on the Organic INTEGRITY Database, which identifies no organic producers or handlers of tamarind seed gum, the NOSB determined there were insufficient sources of organic tamarind seed gum and recommended that tamarind seed gum be added to the National List in § 205.606. AMS agrees that the absence of organic tamarind seed gum handlers in the Organic INTEGRITY Database demonstrates that this ingredient is not currently commercially available in organic form. The USDA organic regulations require organic handlers to use organic agricultural ingredients when available before using any nonorganic agricultural ingredients that are included under § 205.606. Tamarind seed gum that is sold, labeled or represented as organic must be verified as organically produced and handled.

This final rule reflects recommendations submitted by the NOSB to the Secretary to add one substance to the National List.

For the reasons set forth in the preamble, 7 CFR part 205 is amended as follows:

Please refer to Docket ID NRC-2020-0033 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0033.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's PDR reference staff at 1-800-397-4209, at 301-415-4737, or by email to pdr.resource@nrc.gov. The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in this document.

• Attention: The Public Document Room (PDR), where you may examine and order copies of public documents, is currently closed. You may submit your request to the PDR via email at PDR.Resource@nrc.gov or call 1-800-397-4209 between 8:00 a.m. and 4:00 p.m. (EST), Monday through Friday, except Federal holidays.

The NRC encourages electronic comment submission through the Federal Rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2020-0033 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

Because the NRC considers this action to be non-controversial, the NRC is using the “direct final rule procedure” for this rule. This amendment to the rule will become effective on January 19, 2021. However, if the NRC receives significant adverse comments on this direct final rule by December 7, 2020, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rules section of this issue of the Federal Register . Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule.

For detailed instructions on filing comments, please see the ADDRESSES section of this document.

The NRC's regulations governing the conduct of adjudicatory proceedings before the agency are contained in part 2 of title 10 of the Code of Federal Regulations (10 CFR), “Agency Rules of Practice and Procedure.” Periodically, the NRC has amended these rules, including adopting changes in 2004 to enhance efficiency; in 2012 to promote fairness, efficiency, and openness; and in 2016 to reflect technological advances and current agency practice. Since the last update to the agency's rules of practice and procedure, the NRC has identified additional provisions that should be updated to reflect technological advances and current agency practice. This direct final rule makes those updates and clarifies that any administrative law judge designated to preside over an NRC adjudication must be appointed by the Commission consistent with the Supreme Court decision in Lucia v. Securities and Exchange Commission (138 S. Ct. 2044 (2018)).

This direct final rule revises § 2.313(a) to clarify that any Administrative Law Judge (ALJ) designated to preside in a 10 CFR part 2 proceeding must be appointed by the Commission, consistent with the Supreme Court's decision in Lucia v. Securities and Exchange Commission. Part 2 permits the use of an ALJ as presiding officer in an NRC adjudication, although the agency does not currently employ any ALJs (members of the Atomic Safety and Licensing Board Panel are not ALJs but are administrative judges whose appointments are already approved by the Commission). In addition, this direct final rule updates the definition of “administrative law judge” in § 2.4, which cites an outdated section of the Administrative Procedure Act, by citing to the correct statutory authority for the appointment of ALJs.

This direct final rule revises § 2.109 by adding new paragraph (e), which provides that if an Independent Spent Fuel Storage Installation licensee submits a renewal application at least 2 years before the license expires, the existing license will continue in effect until a final decision is reached on the application. New paragraph (e) provides consistency between §§ 2.109 and 72.42(c) of the NRC's regulations. Conforming changes are made to § 2.109(a) to reflect the addition of new paragraph (e).

This direct final rule revises § 2.202 by redesignating paragraph (a)(3) as paragraph (a)(3)(i) and adding a new paragraph (a)(3)(ii), which clarifies that a person other than the recipient of an order under that section who may be adversely affected by the order must meet the requirements of § 2.309 when requesting a hearing. Section 2.202(a)(3)(i) is revised to clarify that the recipient of an order has the right to demand a hearing on all or part of the order within 20 days of the date of the order.

This direct final rule revises § 2.323 to clarify that the deadlines for general motions do not apply to motions for summary disposition.

This direct final rule updates the evidentiary exhibit submission requirements to reflect the current practices of using the E-Filing system to submit exhibits unless the Commission or presiding officer grants an exemption permitting an alternative filing method or unless the filing falls within the scope of § 2.302(g)(1). This direct final rule revises §§ 2.337(d) and 2.711(h) to require that information referenced through hyperlinks must be submitted in its entirety, either in the exhibit or in a separate exhibit, if a party wants that information included in the evidentiary record.

This direct final rule revises the separation of functions provision to include employees in the Office of Commission Appellate Adjudication in § 2.348(b)(2). The rule generally prohibits communications between NRC officers or employees engaged in investigative or litigating functions in the proceeding or in a factually related proceeding with respect to a disputed issue in that proceeding. The rule also sets forth various types of communications that are permissible. The direct final rule adds employees in the Office of Commission Appellate Adjudication to the list of Commission adjudicatory employees covered by the exception in paragraph (b)(2) to the general prohibition set forth in paragraph (a).

This direct final rule revises § 2.706(a)(5) for forwarding deposition transcripts to the Commission consistent with the agency's E-filing rules. This revision requires the party that took the deposition to promptly transmit an electronic copy of the deposition to the Secretary of the Commission for entry into the electronic docket.

This direct final rule makes a conforming change to the Subpart L Model Milestones in appendix B to 10 CFR part 2 to replace “late-filed contentions” with “new or amended contentions filed after the deadline.” The NRC issued a final rule in 2012, titled “Amendments to Adjudicatory Process Rules and Related Requirements” (77 FR 46562), to discontinue using the terms “late-filed” or “nontimely” with regard to such contentions and instead use “new or amended contentions filed after the deadline.” The current Subpart L Model Milestones refer to “late-filed contentions” in three places. This direct final rule updates this language to “new or amended contentions filed after the deadline” consistent with the 2012 final rule.

This direct final rule also revises the Subpart L Model Milestones in appendix B to 10 CFR part 2 to separate the model milestone for filing proposed new or amended contentions filed after the deadline and the model milestone for filing motions for summary disposition on previously admitted contentions. This change is made for clarity. New or amended contentions filed after the deadline would continue to be due within 30 days after issuance. Motions for summary disposition on previously admitted contentions would continue to be due within 30 days of the issuance of the SER and any necessary NEPA document.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

The NRC has determined that this final rule is the type of action described in 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor environmental assessment has been prepared for this final rule.

This final rule does not contain a collection of information as defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995.

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

This direct final rule is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 2:

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0067, dated March 23, 2020 (“EASA AD 2020-0067”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, -133, -151N, and -153N airplanes; Model A320-211, -212, -214, -215, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N, and -273N airplanes; Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -252N, -253N, -271N, -272N, -251NX, -252NX, -253NX, -271NX, and -272NX airplanes. Model A320-215 airplanes 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 airplanes in the applicability.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2017-25-04, Amendment 39-19118 (82 FR 58098, December 11, 2017) (“AD 2017-25-04”). AD 2017-25-04 applied to certain Airbus SAS Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes.

The NPRM also proposed to supersede AD 2019-03-17, Amendment 39-19569 (84 FR 6315, February 27, 2019) (“AD 2019-03-17”). AD 2019-03-17 applied to certain Airbus SAS Model A318 series airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -216, -231, -232, -233, -251N, and -271N airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -251NX, -252N, -252NX, -253N, -253NX, -271N, -271NX, -272N, and -272NX airplanes.

The NPRM published in the Federal Register on June 17, 2020 (85 FR 36519). The NPRM was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The NPRM proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in a European Union Aviation Safety Agency (EASA) AD.

The FAA is issuing this AD to address a safety-significant latent failure (that is not annunciated), which, in combination with one or more other specific failures or events, could result in a hazardous or catastrophic failure condition. See the MCAI for additional background information.

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

Delta Air Lines (DAL) requested confirmation that the FAA intended to allow the use of later ALS revisions to comply with the proposed AD. The commenter noted that previous ADs required an alternative method of compliance (AMOC) to use a later ALS revision.

The FAA confirms that it intends to allow the use of applicable later ALS revisions to comply with the requirements of this AD. This AD refers to EASA AD 2020-0067 as the appropriate source of service information for accomplishing the required actions. EASA AD 2020-0067 includes the Ref. Publications section, which accepts the use of later approved variations or revisions of the referenced ALS document for compliance. Therefore, later approved ALS revisions are acceptable as specified in paragraph (k) of this final rule. The FAA has also updated the language in paragraph (k) to be consistent with other rules using this format but the substance of this requirement has not changed.

Delta Air Lines requested revising paragraph (k) of the proposed AD to allow for alternative actions and intervals that are approved in accordance with the procedures specified in paragraph (l)(1) of the proposed AD. The FAA infers a desire to maintain consistency with other ADs.

The FAA acknowledges the commenter's request and provides clarification that, if applicable, requesting an AMOC is always an option; therefore, it is not necessary to revise paragraph (k) of this AD. This AD has not been changed regarding this request.

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 with 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.

EASA AD 2020-0067 describes airworthiness limitations for certification maintenance requirements.

This AD also requires Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 3, Certification Maintenance Requirements (CMR), Revision 06, dated June 13, 2018, which the Director of the Federal Register approved for incorporation by reference as of April 3, 2019 (84 FR 6315, February 27, 2019).

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.

The FAA estimates that this AD affects 1,553 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2019-03-17 to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate.

The FAA estimates the total cost per operator for the new actions to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-07-16, Amendment 39-19247 (83 FR 15733, April 12, 2018), (“AD 2018-07-16”). AD 2018-07-16 applied to all Austro Engine GmbH model E4 and E4P diesel piston engines. The NPRM published in the Federal Register on October 23, 2019 (84 FR 56707). The NPRM was prompted by the development of a modification of the waste gate control-rod by adding a fail-safe bridge and spring-loaded circlip. The NPRM proposed to retain all of the requirements of AD-2018-07-16. The NPRM also proposed engine modification by installing the waste gate control rod fail-safe bridge and new spring-loaded circlip as terminating action for the initial and repetitive replacement of the waste gate controller and the control rod circlip. The FAA is issuing this AD to address the unsafe condition on these products.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2018-0125, dated June 6, 2018 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2019-0664.

The FAA determined the need to incorporate the latest service information in this AD. The FAA revised the references to Austro Engine Mandatory Service Bulletin (MSB) No. MSB-E4-022 (the MSB), in paragraphs (g) and (h) of this AD from Rev. No. 3, dated April 16, 2018, to Rev. No. 5, dated December 12, 2018. Rev. No. 5 of the MSB retains the same instructions for initial and repetitive replacement of the waste gate controller and the control rod circlip as Rev. No. 3. Rev No. 5 of the MSB also includes the same instructions as Rev. No. 3 for modification of an engine by installing a waste gate control rod fail-safe bridge and a new spring-loaded circlip. The FAA is, therefore, revising the references in paragraph (g) and (h) of this AD from Rev. No. 3 to Rev. No. 5 of the MSB so that operators may avoid unnecessary submission of alternative methods of compliance requests.

The FAA revised paragraph (j)(2) of this AD to allow credit for the performance of the terminating action in paragraph (h) of this AD, if that terminating action was completed before the effective date of this AD using Rev. No. 4, dated September 12, 2018, or Rev. No. 3, dated April 16, 2018, of the MSB to perform the terminating action.

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

The FAA reviewed the relevant data and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. The FAA has determined that these minor changes:

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

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

The FAA reviewed Austro Engine MSB No. MSB-E4-022/5, Rev. No. 5, dated December 12, 2018. The MSB describes procedures for initial and repetitive replacement of the waste gate controller and the control rod circlip. The MSB also describes procedures for the installation of the waste gate control-rod fail-safe bridge and new spring-loaded circlip as terminating action for the initial and repetitive replacement procedures of the MSB. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

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

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

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

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

For the reasons discussed above, I certify 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 Department has determined that this rulemaking is necessary to ensure that employers can access legal agricultural labor, without undue cost or administrative burden, while maintaining the program's strong protections for the U.S. workforce. This rulemaking also promotes and advances the goals of Executive Order (E.O.) 13788, Buy American and Hire American. 1 The “Hire American” directive of the E.O. articulates that it is a policy of the Executive Branch to rigorously enforce and administer the laws governing entry of nonimmigrant workers into the United States in order to create higher wages and employment rates for U.S. workers and to protect their economic interests. 2 It directs Federal agencies, including the Department, to propose new rules and issue new guidance to prevent fraud and abuse in nonimmigrant visa programs, thereby protecting U.S. workers. 3

Consistent with the E.O.'s principles and the goal of modernizing the H-2A program, this final rule amends the methodology by which the Department determines the hourly AEWRs for non-range agricultural occupations using wage data reported by the USDA FLS and the BLS OES survey. It also makes minor revisions related to the regulatory definition of the AEWR to conform to the methodology changes adopted in this final rule and to more clearly distinguish the hourly AEWRs applicable to non-range occupations from the monthly AEWR applicable to range occupations under 20 CFR 655.200 through 655.235.

As discussed in more detail below, the FLS has been the only comprehensive survey of wages paid by farmers and ranchers and has enabled the Department to establish minimum hourly rates of pay for H-2A job opportunities. However, the Department acknowledges the concerns expressed by many commenters about the unpredictability and volatility of the FLS wage data from year-to-year, which the Department believes is a sufficient reason to reconsider its sole reliance on annually produced wage data from the FLS as a means to establish the AEWRs, even were FLS wage data currently available or made available in the future. On the other hand, given the comprehensiveness and relevance of the FLS data, the Department has determined it is appropriate to use the 2020 AEWRs, 4 which were based on the results of the FLS published in November 2019, as the starting point to establish AEWRs for most H-2A job opportunities during calendar years 2021 and 2022 and, subject to annual adjustments, in subsequent years. Accordingly, the Department will use this FLS data as baseline wage rates for field and livestock worker occupations and adjust the wages annually beginning in 2023 based on the change in the Employment Cost Index (ECI) for wages and salaries computed by the BLS. This two-year transition period during which the current wage rates will remain in effect provides employers with greater certainty and a reasonable amount of time to plan their labor needs and agricultural operations under the new wage baseline before new adjustments to the existing wage rates take effect. For all other occupations, the Department, as explained in Section II.B.5.b., will annually adjust and set the hourly AEWRs based on the statewide annual average hourly wage for the occupational classification, as reported by the OES survey. If the OES survey does not report a statewide annual average hourly wage for the occupation, the AEWR shall be the national annual average hourly wage reported by the OES survey. 5

In light of USDA's recent announcement regarding the FLS, the continued lack of any statutory or regulatory requirement that USDA conduct the FLS, and ongoing litigation over the announcement, the Department has also determined that the new hourly AEWR methodology is also appropriate in order to promote greater certainty in the setting of AEWRs in future years. On September 30, 2020, USDA publicly announced its intent to cancel the planned October data collection for the Agricultural Labor Survey and resulting Farm Labor reports (better known as the FLS). 6 Consequently, NASS may not release its November 2020 report containing the annual gross hourly wage rates for field and livestock workers (combined) for each state or region based on quarterly wage data collected from employers during calendar year 2020. Under the Department's current AEWR methodology, this annual report is used to establish and publish the hourly AEWRs for the next calendar year period on or before December 31, 2020. USDA is not legally required to produce the annual Farm Labor reports. The Department has previously recognized that “USDA could terminate the survey at any time”  7 and it has suspended collection on at least two prior occasions. 8 USDA's decision to cancel the October data collection and the release of the report planned for November 2020 cycle is the subject of ongoing litigation. 9 That litigation challenges whether USDA provided adequate reasons for its decision to suspend data collection and whether it considered important aspects of its decision, and the district court recently ordered USDA to proceed with the collection of FLS data for 2020. The litigation does not challenge, however, USDA's discretion—if adequately explained—to terminate the FLS at any time. Therefore, regardless of whether USDA ultimately is successful in the ongoing litigation, it will remain the case that no statute or regulation requires that USDA perform the FLS. The Department has determined that this uncertainty regarding the near-term and long-term future of the FLS also weighs in favor of the Department establishing now a revised methodology for determining the AEWR, given its importance to the Department's administration of the temporary agricultural labor certification requirement.

The Department intends to address all of the remaining proposals from the July 26, 2019 proposed rule in a subsequent, second final rule governing other aspects of the certification of agricultural labor or services to be performed by H-2A workers and enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. 10 The Department has focused in this final rule on the immediate need for regulatory action to revise the methodology by which it determines the hourly AEWRs for non-range agricultural occupations before the end of the calendar year, so as to ensure AEWRs for each state are published this calendar year as required by 20 CFR 655.120.

This final rule is a deregulatory action under E.O. 13771 because the Department expects the unquantified cost savings of this final rule will outweigh the total annualized costs associated with rule familiarization. The costs of the final rule are attributed to the need for employers to familiarize themselves with the new regulations; consequently, this will impose a one-time cost in the first year. The Department estimates that the final rule will have an annualized cost of $0.07 million and a total 10-year quantifiable cost of $0.46 million at a discount rate of 7 percent. In addition, the final rule is expected to have annualized transfer payments of $170.68 million and total 10-year transfer payments of $1.68 billion at a discount rate of 7 percent. The Department also identified possible unquantifiable transfers associated with the final rule. The Department expects the final rule will provide qualitative benefits including better protection against adverse wage effects on an occupation basis. The Department believes that the final rule will have a significant economic impact on a substantial number of small entities. The Department used a total cost estimate of 3 percent of revenue as the threshold for significant impact to individual firms and a total of 15 percent of small entities incurring a significant impact as the threshold for a substantial impact on small entities. The Department estimates that small entities (not classified as H-2A labor contractors) will incur a one-time cost of $53.57 to familiarize themselves with the rule.

The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), establishes an “H-2A” nonimmigrant visa classification for a worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services . . . of a temporary or seasonal nature.” 8 U.S.C. 1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1), 1188. 11 Among other things, a prospective H-2A employer must first apply to the Secretary for a certification that:

• There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed to perform the labor or services involved in the petition; and

• the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

8 U.S.C. 1188(a)(1). The INA prohibits the Secretary from issuing this certification—known as a “temporary labor certification”—unless both of the above-referenced conditions are met and none of the conditions in 8 U.S.C. 1188(b) apply concerning strikes or lock-outs, labor certification program debarments, workers' compensation assurances, and positive recruitment.

The Secretary has delegated the authority to issue temporary agricultural labor certifications to the Assistant Secretary, Employment and Training Administration (ETA), who in turn has delegated that authority to ETA's Office of Foreign Labor Certification (OFLC). 12 In addition, the Secretary has delegated to the Wage and Hour Division (WHD) the responsibility under section 218(g)(2) of the INA, 8 U.S.C. 1188(g)(2), to assure employer compliance with the terms and conditions of employment under the H-2A program. 13

Since 1987, the Department has operated the H-2A temporary labor certification program under regulations promulgated pursuant to the INA. The Department's current regulations governing the H-2A program were published in 2010. 14 The standards and procedures applicable to the certification and employment of workers under the H-2A program are found in 20 CFR part 655, subpart B, and 29 CFR part 501.

An employer seeking H-2A workers generally initiates the temporary labor certification process by filing an H-2A Agricultural Clearance Order, Form ETA-790/790A (job order), with the State Workforce Agency (SWA) in the area where it seeks to employ H-2A workers. 15 In preparing the job order and to comply with its wage obligations under 20 CFR 655.122(l), the employer is required to offer, advertise in its recruitment, and pay a wage that is the highest of the AEWR, the prevailing wage, the agreed-upon collective bargaining wage, the Federal minimum wage, or the state minimum wage. 16 Currently, the AEWR is set by the Department and published annually as a single gross hourly rate for field and livestock workers (combined) from the FLS conducted by the USDA's NASS for each state or region and all occupational classifications. At the time of submitting the job order, the employer must agree to pay at least the AEWR, the prevailing hourly wage rate, the prevailing piece rate, the agreed-upon collective bargaining rate, or the Federal or state minimum wage rate, in effect at the time work is performed, whichever is highest and pay that rate to workers for every hour or portion thereof worked during a pay period. 17

On July 26, 2019, the Department published an NPRM requesting public comments on proposals to modernize and streamline the process by which OFLC reviews employers' job orders and the applications for temporary agricultural labor certifications. 18 The Department currently sets the AEWR for all agricultural workers in non-range occupations at the gross hourly rate for field and livestock workers (combined) from the FLS for each state or region. As part of this regulatory action, the Department proposed to establish hourly AEWRs for non-range occupations  19 at the annual hourly gross rate for each agricultural occupation in the State or region, as reported by the FLS and the OES survey, so that each AEWR would be based on data more specific to the agricultural services or labor being performed under the Standard Occupational Classification (SOC) system and, as a result, would better protect against adverse effect on the wages of workers in the United States similarly employed. 20

The NPRM invited written comments from the public on all aspects of the proposed amendments to the AEWR methodology regulations, including on the use of the FLS and OES survey to establish the AEWR, and any alternate methods or sources the Department might use to establish the AEWRs in the H-2A program. 21 With respect to the use of the FLS to set AEWRs, the Department specifically sought comment on circumstances where the FLS did not produce wages for all occupations or geographic areas, including, but not limited to (1) whether the Department should use the separate field worker and livestock worker classifications from the FLS to set AEWRs for workers in occupations included in those classifications if a wage based on the SOC from the FLS is not available; (2) whether the Department should index past wage rates for a given SOC using the Consumer Price Index (CPI) or ECI if a wage cannot be reported for an SOC in a state or region in a given year based on the FLS but a wage was available in a previous year; (3) whether the Department should use the FLS national wage rate to set the AEWR for an SOC if the FLS cannot produce a wage at the state or regional level; and (4) whether the Department should consider any other methodology that would promote consistency and reliability in wage rates from year to year. 22

The NPRM also explained the Department does not have direct control over the FLS and further recognized that USDA could elect to discontinue the survey at some point, and, in fact, USDA had done so in the past due to budget constraints. 23 Accordingly, the Department proposed and sought comment on the use of the OES survey in limited circumstances where the FLS does not produce data for a specific occupation or geographic area. Such proposals reflected the Department's concern that the current AEWR methodology may have an adverse effect on the wages of workers in higher-paid non-range agricultural occupations, such as supervisors of farmworkers and construction laborers on farms, whose wages may be inappropriately lowered by an AEWR based on the wages of field and livestock workers (combined). 24 A 60-day comment period allowed for the public to review the proposed rule and provide comments through September 24, 2019.

The Department also received requests for an extension of the comment period for the NPRM. While the Department appreciates the issues raised concerning the public's opportunity to review the rule and comment, the Department decided not to extend the comment period because it determined that a 60-day comment period was sufficient to allow the public to review the proposed rule and provide comments. This conclusion is supported by both the volume of comments received, and the wide variety of stakeholders that submitted comments within the 60-day comment period.

The Department received a total of 83,532 public comments in docket number ETA-2019-007 in response to the NPRM. 25 Thousands of these comments specifically related to the proposed changes to the methodology for setting the AEWRs. The commenters represented a wide range of stakeholders interested in the H-2A program, including farmworkers, farm owners, agricultural and trade associations, Federal elected officials, state officials, SWAs, recruiting companies, law firms, immigration and worker advocacy groups, labor unions, academic institutions, public policy organizations, and other industry associations interested in immigration related issues. The Department received comments both in support of and in opposition to the proposed amendments to the AEWR methodology, which are discussed in greater detail below. These comments raised a variety of concerns, some general and some pertaining to specific provisions identified in the NPRM.

The Department recognizes and appreciates the value of the comments, ideas, and suggestions from all commenters, and this final rule was developed only after review and careful consideration of all public comments timely received in response to the NPRM. The public may review all comments the Department received in the Federal Docket Management System (FDMS) at http://www.regulations.gov, docket number ETA-2019-007.

The methodology implemented under this final rule will apply only to the review of job orders filed with the SWA serving the area of intended employment, as set forth in 20 CFR 655.121, on or after the effective date of the regulation, including job orders filed concurrently with an Application for Temporary Employment Certification to the OFLC National Processing Center (NPC) for emergency situations under 20 CFR 655.134. In order for employers to understand their wage obligations upon the effective date of this final rule, the Department has posted the AEWRs applicable to each occupational classification and geographic area contemporaneously with the publication of this final rule on the OFLC website at https://www.dol.gov/agencies/eta/foreign-labor/.

When the OFLC Administrator publishes updates to the AEWRs in future calendar years, as required by 20 CFR 655.120(b)(2), and the AEWR is adjusted during a work contract period and is higher than the highest of the previous AEWR, the prevailing hourly wage rate, the prevailing piece rate, the agreed-upon collective bargaining wage, the Federal minimum wage rate, or the state minimum wage rate, the employer must pay that adjusted AEWR upon the effective date of the new rate, as provided in the future Federal Register Notice. See 20 CFR 655.122(l).

The current regulation provides that the hourly AEWR is set at the annual weighted average hourly wage for field and livestock workers (combined) based on the annual USDA's FLS. To be consistent with the Department's decision to adjust the current hourly AEWR methodology discussed in detail below, the Department is making non-substantive conforming changes to the definition of AEWR in 20 CFR 655.103(b). In addition, the Department is making a minor technical revision to the definition of AEWR to clarify that the term AEWR applies to both the hourly rate for non-range occupations, as set forth in § 655.120(b), and the monthly rate for range occupations, as set forth in § 655.211(c).

One commenter opposed “the change in the definition to include the term `gross' after the term hourly,” stating that the change was designed to ensure the Department did not utilize new data being collected by the USDA through revisions to the FLS. While the Department did not specifically propose to add the term “gross” to the definition of AEWR, it proposed to add the term “gross” after the term “hourly” in describing the wage rate from the FLS in 20 CFR 655.120(b), specifically because USDA was considering making changes to the FLS to report a “base” wage that would exclude certain types of incentive pay. As discussed in the NPRM, the Department stated that if it elected to use the new base wage as a source for the AEWR, it would first engage in new notice-and-comment rulemaking to adopt such a change. However, the USDA has announced it is canceling the planned October 2020 collection of wage data and will not publish the annual Farm Labor report in November 2020. Accordingly, any new data the USDA had planned to collect for that period is not available and the Department will not rely on this “base” wage data for purposes of the new AEWR methodology. Additionally, both the OES and the ECI collect and report data using straight-time, gross pay that include, for example, commission payments, production bonuses, cost-of-living adjustments, piece rates, and other incentive-based pay.

Section 218(a)(1) of the INA, 8 U.S.C. 1188(a)(1), provides that an H-2A worker is admissible only if the Secretary determines that “there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.” In the 2010 Final Rule, the Department explained that it met this statutory requirement, in part, by requiring an employer to offer, advertise in its recruitment, and pay a wage that is the highest of the AEWR, the prevailing wage, the agreed-upon collective bargaining wage, the Federal minimum wage, or the state minimum wage. In the NPRM, the Department proposed to modify the methodology by which the Department establishes the hourly AEWRs.

Specifically, the Department proposed to establish hourly AEWRs for each agricultural occupation not subject to the monthly AEWR applicable to range occupations set forth pursuant to 20 CFR 655.211(c), as identified by the FLS and the OES survey, so that each AEWR was based on data more specific to the agricultural occupation of workers in the United States similarly employed and, as a result, would better protect against adverse effect on the wages of workers in the United States similarly employed. Accordingly, the Department proposed to revise its methodology so that the AEWR for a particular agricultural occupation would be based on the annual average hourly gross wage for that agricultural occupation in the state or region reported by the FLS when the FLS is able to report such a wage. If the FLS did not report a wage for an agricultural occupation in a state or region, the Department proposed to set the AEWR at the statewide annual average hourly wage for the SOC code from the OES survey conducted by BLS. If both the FLS could not produce an annual average hourly gross wage for that agricultural occupation in the state or region and the OES could not produce a statewide annual average hourly wage for the SOC, then the Department proposed to set the AEWR based on the national wage for the occupational classification from these sources.

As part of its proposal to change to an occupation-specific hourly AEWR, the Department proposed that if the job duties on the H-2A application (including job order) did not fall within a single occupational classification, the Certifying Officer (CO) would determine the applicable AEWR at the highest AEWR for the applicable occupational classifications. The intent of this proposal was to reduce the potential for employers to misclassify workers and impose a lower recordkeeping burden than if the Department permitted employers to pay different AEWRs for job duties falling within different occupational classifications on a single H-2A application. This approach is also consistent with how the Department assigns prevailing wage rates for jobs that cover multiple occupational classifications in the H-2B program.

The Department also proposed to continue to require the OFLC Administrator to publish, at least once in each calendar year, on a date to be determined by the OFLC Administrator, an update to each AEWR as a notice in the Federal Register . The Department proposed to make the updated AEWRs effective through two announcements in the Federal Register , one for the AEWRs based on the FLS ( i.e., effective on or about January 1), and a second for the AEWRs based on the OES survey ( i.e., effective on or about July 1), due to the different time periods for release of these two wage surveys.

The Department received comments on all aspects of the proposed revisions to the AEWR methodology. After consideration of all comments concerning the proposed revisions to the AEWR methodology, and in light of continuing uncertainty regarding the ongoing immediate availability of FLS data, the Department retains the AEWR concept in this final rule with additional changes to the methodology, as discussed below.

As explained above, and in prior rulemaking, requiring employers to pay the AEWR when it is the highest applicable wage is the primary way the Department meets its statutory obligation under section 218(a)(1) of the INA, 8 U.S.C. 1188(a)(1), to certify no adverse effect on workers in the United States similarly employed.

Many commenters representing employers and trade associations expressed the view that the Department has failed to explain why an AEWR is required to avoid wage depression, and supported removing the concept of the AEWR from the H-2A regulations entirely. For example, four farm bureau organizations asserted that because “American unemployment [is] below 4%, and the agriculture industry [is] continuing to experience extreme labor shortages . . . the concept of an adverse effect wage rate is not applicable to the H-2A program, and other wage setting methods should be implemented.” Another commenter asserted that the “AEWR is an artificial machination of the current H-2A regulations . . . and a mandate without any tether to reality.”

The Department understands the comments but declines to eliminate the AEWR. The Department is required by statute to ensure that the employment of H-2A foreign workers does not adversely affect the wages and working conditions of workers in the United States similarly employed. The AEWR is intended to guard against the potential for the entry of H-2A foreign workers to adversely affect the wages and working conditions of workers in the United States similarly employed. As the Department noted shortly after the creation of the modern H-2A program, a “basic Congressional premise for temporary foreign worker programs . . . is that the unregulated use of [nonimmigrant foreign workers] in agriculture would have an adverse impact on the wages of U.S. workers, absent protection.”  26 The potential for the employment of foreign workers to adversely affect the wages of U.S. workers is heightened in the H-2A program because the H-2A program is not subject to a statutory cap on the number of foreign workers who may be admitted to work in agricultural jobs. Consequently, concerns about wage depression from the importation of foreign workers are particularly acute because access to an unlimited number of foreign workers in a particular labor market and crop activity or agricultural activity could cause the prevailing wage of workers in the United States similarly employed to stagnate or decrease. The Department continues to believe that the use of an AEWR is necessary in order to effectuate its statutory mandate of protecting workers in the United States similarly employed from the possibility of adverse effects on their wages and working conditions. The AEWR is the rate that the Department has determined is necessary to ensure the employment of H-2A foreign workers will not have an adverse effect on the wages of workers in the United States similarly employed.

Addressing the potential adverse effect that employment of temporary foreign workers may have on the wages of workers in the United States similarly employed is particularly important because U.S. agricultural workers are, in many cases, especially susceptible to adverse effects caused by the employment of temporary foreign workers. The Department still holds the view that “U.S. agricultural workers need protection from the potential adverse effects of the use of foreign temporary workers, because they generally comprise an especially vulnerable population whose low educational attainment, low skills, low rates of unionization and high rates of unemployment leave them with few alternatives in the non-farm labor market.”  27 As a result, “their ability to negotiate wages and working conditions with farm operators or agriculture service employers is quite limited.”  28 The AEWR provides a floor below which wages of U.S. and foreign workers cannot be negotiated, thereby strengthening the ability of this particularly vulnerable labor force to negotiate over wages with growers, who are in a stronger economic and financial position in contractual negotiations for employment.”  29

The use of an AEWR, separate from a prevailing wage for a particular crop activity or agricultural activity, “is most relevant in cases in which the local prevailing wage is lower than the wage considered over a larger geographic area (within which the movement of domestic labor is feasible) or over a broader occupation/crop/activity definition (within which reasonably ready transfer of skills is feasible).”  30 The AEWR acts as “a prevailing wage concept defined over a broader geographic or occupational field.”  31 Because the AEWR is generally based on data collected in a multi-state agricultural region and an occupation broader than a particular crop activity or agricultural activity, while the prevailing wage is commonly determined based on a particular crop activity or agricultural activity at the state or sub-state level, the AEWR protects against localized wage depression that might occur in prevailing wage rates. The AEWR is complemented by the prevailing wage determination process, which serves a related, but distinct purpose. The prevailing wage, as determined under current Departmental guidance, provides an additional safeguard against wage depression in local areas and agricultural activities.

However, Congress did not “define adverse effect and left it in the Department's discretion how to ensure that the importation of farmworkers met the statutory requirements,”  32 and the Department has discretion to determine the methodological approach that it believes best allows it to meet its statutory mandate. 33 The INA “requires that the Department serve the interests of both farmworkers and growers—which are often in tension. That is why Congress left it to DOL's judgment and expertise to strike the balance.”  34 There is no statutory requirement that the Department set the AEWR at the highest conceivable point, nor at the lowest, so long as it serves its purpose. The Department may also consider issues of uniformity, predictability, and other factors relating to the sound administration of the H-2A program in deciding how to set the AEWR. For the reasons discussed below, the Department has adopted an approach that it believes is reasonable and strikes an appropriate balance under the INA.

Several comments submitted by employers and associations asserted that the Department should not or is not authorized by statute to require payment of an AEWR if it has not first determined that the employment of H-2A workers has adversely effected the wages of workers in the United States similarly employed in the area of employment. Some commenters believed that the shortage of U.S. workers is adequate evidence that no adverse effect exists. One commenter asserted that “if there is a lack of a sufficient domestic workforce to complete the farm work required, the presence of foreign guest labor cannot, by definition, `adversely affect' the inadequate supply of domestic labor.” Some of these commenters urged the Department to include language in this final rule that would commit the Department to conducting adverse effect determinations annually.

In response to these comments and irrespective of evidence regarding the existence of adverse effect, the Department believes that the statutory responsibility to workers in the United States “will be discharged best by the adoption of an AEWR in order to protect against the possibility that the anticipated expansion of the H-2A program will itself create wage depression or stagnation.”  35 In addressing similar comments in prior rulemaking, the Department explained that the AEWR is not predicated on the existence of wage depression in the agricultural sector and has noted that it is not statutorily required to identify existing wage suppression prior to establishing and requiring employers to pay an AEWR. 36 In 1989, the Department retained the AEWR despite finding that evidence regarding generalized wage depression in agricultural was inconclusive. 37 In reaffirming its commitment to the AEWR in the 2010 rule, the Department explained that “regardless of any past adverse effect that the use of low-skilled foreign labor may or may not have had on the wages” of workers in the United States similarly employed, “the Department considers the forward-looking need to protect U.S. workers whose low skills make them particularly vulnerable to even relatively mild—and thus very difficult to capture empirically—wage stagnation or deflation.”  38 In addition, a lack of empirical evidence concerning adverse effect would not itself support the conclusion that an AEWR is unnecessary, but instead “may be evidence that the imposition of the AEWR heretofore has been successful in shielding domestic farm workers from the potentially wage depressing effects of overly large numbers of temporary foreign workers.”  39

Moreover, the Department could not commit to annual adverse effect determinations because the Department is not aware of any reliable method available to make such a determination and no commenter suggested a method the Department could use to determine the existence of adverse effect. Such a method would need to demonstrate not only that the employment of foreign workers adversely affected the wages of workers in the United States in each particular locality and each particular occupation or agricultural activity, but also that the employment of H-2A workers was the cause of this adverse effect, as opposed to the employment of unauthorized workers, for example.

The FLS, conducted by USDA's NASS, has aggregated and reported data in the major FLS occupational categories of field workers, livestock workers, field and livestock workers (combined), and all hired workers. The Department currently sets the AEWR at the gross hourly rate for field and livestock workers (combined) from the FLS for each state or region. This has produced a single AEWR for all agricultural workers in a given state or region, such that supervisors, agricultural inspectors, graders and sorters of animal products, agricultural equipment operators, construction laborers, and crop laborers were assigned the same AEWR. In the NPRM, the Department proposed a revised hourly AEWR methodology that would produce more tailored, occupation-based AEWRs designed to better protect against adverse effect on workers in the United States similarly employed. Under the proposed methodology, the AEWR for a particular agricultural occupation would have been based on the annual average hourly gross wage for that agricultural occupation in the state or region reported by the FLS; the statewide annual average hourly wage for the SOC from the OES survey conducted by BLS, if the FLS did not report a statewide or regional average wage for the occupation; or the FLS or OES national annual average wage for the occupation, if both the FLS and OES did not produce an average wage for the occupation in the state or region.

As expressed in the NPRM, the primary impetus for the proposed change was the Department's concern that the current AEWR methodology may have an adverse effect on the wages of workers in higher-paid agricultural occupations, such as construction laborers and supervisors of farmworkers on farms or ranches. Although the FLS collected data on the wages of supervisors, the wages of supervisors have been reported only in the all hired workers category and have not been included in the field and livestock workers (combined) category that the Department currently uses to establish the AEWR. Similarly, wages for “other workers” are reported only in the all hired workers category and are not included in the wages reported in the field and livestock workers (combined) category. Thus, the wages for these workers may be inappropriately lowered by an AEWR established from the wages of field and livestock workers (combined). In short, the Department expressed concern that using FLS wage data for field and livestock workers (combined) to establish the AEWR for all agricultural occupations could produce a wage rate that is not sufficiently tailored to the wage necessary to protect against adverse effect on workers in the United States similarly employed.

The Department invited comments on all aspects of the proposed AEWR methodology. In particular, the Department solicited comments on the use of the FLS and OES survey; the conditions under which each survey should be used to establish the AEWR, including the proposal to calculate the AEWRs without FLS data in circumstances where such data was unavailable; and the proposal to depart from relying on the field and livestock workers (combined) wage from the FLS to instead establish AEWRs based on occupational classifications. The Department also invited comments on any alternative methodologies or wage sources the Department might use to establish the AEWRs in the H-2A program. More specifically, the Department requested comments on whether there are alternate methods or sources that it should use to set the AEWR, such as indexing past wage rates using the CPI or ECI and any other methodology that would promote consistency and reliability in wage rates from year to year.

The Department received many comments from employers, agents, agricultural associations, farm bureaus, worker advocacy organizations, labor unions, individuals, state agencies, state and Federal elected officials, business advocacy organizations, and academic and public policy institutions. Many employers, associations, farm bureaus, and agents opposed the AEWR methodology in the 2010 Final Rule and agreed that a new AEWR methodology is necessary, most often due to concerns that the 2010 Final Rule methodology produced unsustainable wage increases for various reasons discussed below. An association stated that the current methodology makes planning and budgeting difficult because employers do not know what the AEWRs will be until they are published in the Federal Register late in the year. Another association expressed concern that regional AEWRs under the 2010 Final Rule “fluctuate wildly,” and stated that “[t]he total wage expenditure” for a “farm in the Cornbelt I region increased 8% from 2016 to 2017 and then decreased by 1% from 2017 to 2018.” Many of these commenters also asserted that the current AEWR methodology has resulted in significant wage inflation and unsustainable annual increases in the AEWR.

Some commenters, including an association and an SWA, unequivocally supported the Department's proposed AEWR methodology as a way to retain the FLS, while ensuring accurate wages for all occupations through the use of the occupation-specific FLS data and supplementation of the FLS with the OES. Broadly, however, the overwhelming majority of commenters opposed the proposed methodology for a variety of reasons, including that it would be complex and difficult to administer, impose significant employee monitoring and recordkeeping burdens, produce unsustainably high AEWRs for some occupations and reduce AEWRs for others, and result in unpredictable AEWRs that vary from year to year and state to state, increased misclassification of job opportunities, and payment of inaccurate wages.

Many employers, associations, and farm bureaus expressed concerns that the proposed AEWR methodology would result in wage increases that would be unsustainable for employers in industries where labor costs constitute the most significant outlay—industries in which one association asserted employers increasingly “revert to hiring undocumented workers” because they are unable to afford H-2A wages under the 2010 Final Rule. Citing an analysis published in the UC Davis Rural Migration Blog, a business advocacy organization expressed concern that the proposed occupation-specific methodology would cause the AEWR to increase by greater than 50 percent in some cases, including an increase of up to 68 percent for Front-Line Supervisors in California, based on a comparison of the 2018 AEWR determined by the FLS field and livestock worker data and the proposed AEWR based on OES data for First-Line Supervisors. 40

In contrast, most worker advocacy organizations, as well as several labor unions, SWAs, elected officials, and an international recruiting company, expressed concern the proposal would lower wages for many or most workers, while increasing uncertainty regarding farmworker wages. Many commenters, including immigration and worker advocacy organizations, expressed concern that the proposal would “perpetuate a basic problem in the H-2A program where guestworkers, who generally lack bargaining power to negotiate for higher wages due to their temporary status, become concentrated in a sector because the system allows employers to reject as `unavailable' for work those U.S. workers who seek jobs but are unwilling to accept the H-2A wage rate.” The commenters asserted that the Department's proposal would cause wages to stagnate and become depressed in real economic terms.

Some SWAs acknowledged that disaggregation of wages would result in a higher wage for less common occupations like supervisors and agricultural equipment operators, but also expressed concern that disaggregation would reduce the wages of both H-2A workers and workers in the United States similarly employed in lower skilled farm laborer jobs that constitute the majority of H-2A job opportunities. One worker advocacy organization that opposed the Department's proposal generally supported a narrow use of the proposed occupation-specific AEWRs for particular occupations, noting that H-2A employers have increasingly utilized the program for occupations that should be paid a higher wage. This commenter also noted that job orders increasingly include several different types of jobs for which U.S. workers are paid different wage rates and thought that SOC-based AEWRs and use of the highest rate among applicable SOCs were necessary to ensure accurate wages.

Several worker advocacy organizations noted that occupation-specific AEWRs would be lower than the current FLS-based AEWR established using the combined field and livestock worker wage data and many asserted this would be inconsistent with the Department's statutory obligation to ensure employment of H-2A workers will not adversely affect the wages of workers in the United States similarly employed. For example, a worker advocacy organization comment included a chart that indicated the proposed occupation-specific FLS and OES AEWRs would result in wage reductions in many states for workers in SOCs 45-2041 and 45-2092 ranging from $.03 to $2.50 per hour. A forestry worker advocacy organization expressed concern that a “change from using the mean of wages of workers `similarly employed' to hourly wages of SOCs will result in more volatility in wages from year to year as well as reductions in AEWRs” and would result in “downward pressure on wages of U.S. workers and foreign temporary workers in the reforestation and pine straw industries.”

After careful consideration of the comments received, and the Department's own judgment as to what will best contribute to the sound administration of the H-2A program, the Department has decided to revise the hourly AEWR determination methodology in a way that will be more predictable, less volatile, and easier to understand, while also ensuring protection of U.S. workers' wages and accurate AEWRs for job opportunities in higher-skilled occupations. This approach is also appropriate in light of uncertainty about the immediate availability of FLS wage data.

First, the Department will use the 2020 AEWRs, which were based on results from the FLS wage survey conducted by USDA's NASS and published in November 2019, as the baseline AEWR for the overwhelming majority of H-2A job opportunities going forward. As explained further below, adjustments to AEWRs for these workers will be made annually, starting at the beginning of calendar year 2023, based on the BLS ECI, Wages and Salaries—the same index the Department currently uses to adjust the monthly AEWRs for job opportunities in herding or the production of livestock on the range. Second, for all other occupations, the Department will determine the AEWRs as the annual statewide average hourly gross wage for the occupation in the state or region based on the OES survey or, where a statewide average hourly gross wage is not reported, the national average hourly gross wage for the occupation based on the OES survey. As discussed below, use of the OES survey will allow the Department to consistently establish occupation-specific AEWRs for these higher-skilled job opportunities to better protect against adverse effect on workers in the United States similarly employed.

The Department has determined that this revised methodology best addresses commenters' concerns regarding the unpredictability and volatility of the AEWRs in recent years. The AEWRs have increased significantly compared to the rate of inflation or the rate at which compensation has increased for workers more generally in the U.S. economy. Large and unpredictable wage fluctuations can cause financial hardship to more labor-intensive agricultural operations, make it more difficult for them to plan, and ultimately discourage domestic agricultural production, which may result in fewer U.S. farmworker jobs. Furthermore, unlike other employment-based immigration programs, changes to the AEWRs—no matter how large—have a far greater impact on H-2A employers who have a regulatory obligation to pay the updated AEWR, if it remains the highest applicable wage, to all H-2A workers and workers in the United States similarly employed during any current work contract as well as future work contracts.

For related reasons, the Department has decided to begin ECI-based adjustments to the AEWR in 2023. This provides for a period during which employers can rely on the current, 2020 AEWRs as they familiarize themselves with the new wage methodology, understand its likely impact on wages in future years, and plan accordingly. Providing for more immediate adjustments to current wages based on a wholly new methodology would, in the Department's judgment, potentially exacerbate the very concerns it seeks to address about wage predictability and long term business planning that it seeks to address through the adoption of ECI-based wage adjustments. Similarly, even if more recent, 2020 FLS wage data were available, relying on it to set 2021 AEWRS would only serve to perpetuate the very wage volatility that the Department seeks to ameliorate through this rule. The 2020 AEWRs therefore provide appropriate wage rates for the immediate future, and a reasonable starting point from which future, ECI-based adjustments will be made.

The Department also believes this methodology addresses other commenter concerns about unnecessary complexity and potential for significant wage reductions under the proposed occupation-specific OES-based AEWRs, and strikes a reasonable balance between the statute's competing goals of providing employers with an adequate legal supply of agricultural labor while protecting the wages and working conditions of workers in the United States similarly employed. The Department understands that unpredictable changes in the AEWR can result in harm to U.S. workers by encouraging some employers to reduce employment opportunities and work hours and still others to hire undocumented foreign workers willing to accept employment at much lower wages and without the additional legal protections and benefits, including transportation, meals, and housing, that employers must provided to H-2A workers.

The methodology focuses on determining AEWRs using 2019 FLS data for job opportunities predominantly used by employers in the H-2A program—occupational classifications for field workers and livestock workers—while shifting AEWR determinations to the OES survey for all other occupations for which the FLS did not report wage data at a state or regional level ( e.g., truck drivers, farm supervisors and managers, construction workers, and many occupations in contract employment). Moreover, use of occupation-specific OES wages for job opportunities not covered by the FLS addresses the Department's concern that the current AEWR methodology may have an adverse effect on the wages of workers in higher-paid agricultural occupations, such as construction laborers and supervisors of farmworkers on farms or ranches. The wages for these workers may be inappropriately lowered by an AEWR established using FLS wage data derived from the wages of field and livestock workers (combined) because data from this FLS category does not include wages paid to construction laborers or supervisors of farmworkers, among other occupations.

The Department recognizes that the revised methodology may result in some AEWR increases in those occupations for which the Department will use the OES survey, depending upon geographic location and agricultural occupation. While wages may change, the Department believes these changes are the result of the Department's use of more accurate occupational data that better reflect the actual wage paid, and thus the wage needed to protect against adverse effect.

In addition, to further address concerns about predictability and clarity, the Department revised paragraph (b)(1) of § 655.120 to add a transition provision. Although the new AEWR methodology in this final rule will be implemented on the effective date of this rule, the SWA and CO will review job orders and Applications for Temporary Employment Certification under 20 CFR 655.121 and 655.140 using the AEWR methodology in effect at the time the job order or Application for Temporary Employment Certification was filed. As a result, employers who have already received a temporary agricultural labor certification, or who have submitted a job order or Application for Temporary Employment Certification before the effective date of this final rule, will not be subject to wage obligations under the new AEWR methodology until the OFLC Administrator publishes the next AEWR adjustment applicable to the employer's job opportunity. In contrast, employers who submit a job order on or after the effective date of this final rule are subject to the new AEWR methodology for the job order and the related Application for Temporary Employment Certification. The Department has posted the AEWRs applicable to each occupational classification and geographic area contemporaneously with the publication of this final rule on the OFLC website at https://www.dol.gov/agencies/eta/foreign-labor/.

As provided in paragraph (b)(2) of § 655.120, the Department will publish notice of AEWR adjustments in the Federal Register . As the majority of H-2A applications under the revised methodology will involve AEWRs subject only to the FLS-based AEWR, commenters' concerns about the publication schedule for AEWR notices have been resolved as these job opportunities will be subject only to one annual ECI-based adjustment and the ECI generally increases at a stable and predictable rate. The Department will publish the ECI adjustments for field and livestock worker AEWRs annually with an effective date on or about January 1, based on the ECI publication cycle. Similarly, occupations other than those included in the FLS field workers and livestock workers (combined) category and all occupations in Alaska  41 will be subject only to the OES-based AEWR and only that AEWR's adjustment cycle. The Department will publish OES-based AEWR adjustments annually with an effective date on or about July 1, based on the OES publication cycle. As explained below, only in the rare circumstance in which a job opportunity constitutes a combination of an FLS-based AEWR occupation and an OES-based AEWR occupation and the employer's certification period includes an FLS-based AEWR adjustment or an OES-based AEWR adjustment, and that adjustment changes which of the applicable AEWRs is higher, would an employer see a change in the AEWR applicable to a particular certification.

The Department acknowledges the concerns of some commenters that fluctuating wages can be harmful to workers, and their concerns that changes to the methodology could result in stagnating or decreasing wages for farmworkers. The Department also recognizes the possibility that the revised methodology in this final rule may result in the AEWRs for field workers and livestock workers being set at slightly lower levels in future years than would be the case under the current methodology. However, as noted, the benefits of relying on the ECI to provide more stable and predictable wage increases are substantial, and, in the Department's judgment, ultimately benefit both employers and workers. Further, by setting the 2020 AEWR as the starting point from which future ECI adjustments will occur, the Department is ensuring that workers' wages will not be lower than their 2020 wages and will then adjust according to the ECI. The Department believes that this approach effectively balances concerns about wage volatility and adverse effects on workers. It also has the related virtue of ease of use.

Further, the data for the current methodology may no longer be available to the Department.. Even if the data were available, or were to become available in subsequent years, the Department sees tremendous benefit in moving to a new source of data that is unlikely to be discontinued and therefore does not suffer from the attendant uncertainty. The Department also believes that its new methodology meets the statutory requirement to protect workers in the United States similarly employed to H-2A workers from adverse wage effects. After a two-year transition period where the AEWRs are held constant, the methodology is likely to result in steady, predictable wage increases for farmworkers. While other methods could result in higher or lower AEWRs in any given year, the Department believes the methodology in this final rule will ensure the employment of H-2A workers does not adversely affect the wages of workers in the United States similarly employed by providing annual changes in wages consistent with the changes in wages and salaries in the broader economy, as explained further below.. This is especially so given that the Department is using a different methodology to more accurately calculate than before the wages of certain more highly skilled farmworkers, for which the Department has reason to believe the AEWRs have artificially depressed wages.

The most common concern the Department received from employers, agents, associations, and business advocacy organizations was that the proposed methodology would be too complex and that the number of wage sources and potential wage rates would significantly increase wage volatility and uncertainty for employers. For example, one association stated it could not evaluate the potential impact of the proposal because, according to its estimates, the proposed methodology would result in at least 400,000 potential wage rates, based on a combination of 13 occupational categories and five potential wage sources (state/national FLS or OES and the prevailing wage).

Citing the Rural Migration Blog noted earlier, some associations and a business advocacy organization stated that under the proposed rule, wages may fluctuate significantly between years for some states and occupations, such as a 15 percent change in the AEWR for Graders and Sorters in Florida between 2017 and 2018. Similarly, a dairy association expressed concern regarding the year-to-year wage fluctuation for farmworkers tending to animals, asserting that in New York there would have been a 26 percent decrease from the 2016 AEWR based on the OES state data for SOC 45-2093 to the 2017 AEWR based on the regional FLS data. A farm bureau expressed concern that AEWRs would change at different times of the year based on the data source used and asserted this would further increase unpredictability and the potential for wage fluctuations in the same year, considering the employer will remain obligated to pay a higher wage if one is published during the contract period.

A commenter from academia supported the Department's decision to rely primarily on the FLS and further recommended that, instead of using the OES survey when FLS data was unavailable, the Department should use the more general FLS field and livestock worker (combined) data because the FLS-based AEWR would be based on “more accurate data inputs” and would “maintain a consistent data source from year to year, potentially alleviating some of the wage volatility the Department cites as a concern.” The commenter also recommended the Department “use the Employment Cost Index to calculate the appropriate AEWR based on prior years” if the FLS is suspended and FLS data is unavailable, in order to “promote accuracy and consistency between seasons.” Finally, as discussed further in section II.B.6 below, several commenters suggested alternative methods to determine the AEWR, most of which did not involve reliance on OES or FLS data.

Many commenters, including employers, associations, state farm bureaus, and a business advocacy organization, also asserted that the proposed occupational disaggregation would be unworkable because agricultural job opportunities often or by their nature require the performance of a variety of tasks that can fit into a number of occupational classifications. Many of these commenters expressed concern that occupational classifications would be unpredictable due to the number of potential wage sources and this would be unsustainable because employers would be unable to plan for labor input costs, which constitutes the highest expense for many employers. Some commenters asserted that the variety of tasks associated with agricultural jobs, combined with the variety of occupations and wage rates that could be assigned under the proposed rule, would result in unpredictable wage rates from year to year and ensure acceleration of wage rates.

Several commenters asserted the proposal would require employers to “become human resources experts.” Two Federal elected officials, as well as some employers and associations, believed the proposal would impose significant monitoring and recordkeeping burdens on employers, requiring them to monitor and maintain records of all duties performed at all times to ensure compliance with wage obligations. The elected officials asserted the proposal would “make classification of work into a highly contentious issue,” leading to litigation and disputes over occupation and wage assignments, and would require employers to develop familiarity with all potentially applicable occupational classifications.

After consideration of comments, the Department has determined that use of the 2019 FLS wage data for field and livestock workers, adjusted annually by the percent change in the ECI, most reasonably addresses commenters' concerns regarding the complexity in the Department's proposal, as well as the volatility and unpredictability in the AEWRs, both recently and over the past several years, for the majority of H-2A occupations. The methodology is also consistent with the Department's broad statutory mandate to balance the competing goals of the statute to provide an adequate labor supply and to protect the wages and working conditions of workers in the United States similarly employed. 42

The FLS field workers and livestock workers (combined) category includes workers who “plant, tend, pack, and harvest field crops, fruits, vegetables, nursery and greenhouse crops, or other crops” or “tend livestock, milk cows, or care for poultry,” including those who “operate farm machinery while engaged in these activities.”  43 The current SOC codes and titles associated with these workers, and which will be subject to this wage setting approach, are: 45-2041—Graders and Sorters, Agricultural Products; 45-2091—Agricultural Equipment Operators; 45-2092—Farmworkers and Laborers, Crop, Nursery, and Greenhouse; 45-2093—Farmworkers, Farm, Ranch, and Aquacultural Animals; 53-7064—Packers and Packagers, Hand; and 45- 2099—Agricultural Workers, All Other. Accordingly, through calendar year 2022, H-2A Applications for Temporary Employment Certification seeking workers to perform duties encompassed by one or more of these SOCs will continue to be subject to the 2020 AEWRs, which were based on the average annual gross hourly wage rate for field and livestock workers (combined) as reported for the state or region by the USDA FLS in November 2019, provided that the FLS reported a wage rate for the geographic area where the work will be performed. In areas where the November 2019 USDA FLS data did not report a wage rate, the AEWR will be the statewide annual average hourly gross wage for the occupation, if one is reported by the OES survey; or, the OES national annual average hourly gross wage, if the OES survey does not report a statewide wage. 44 Beginning calendar year 2023, and annually thereafter, these FLS-based AEWRs will be adjusted by the percentage change in the BLS ECI, Wages and Salaries for private sector workers, for the preceding 12 month period.

In light of the substantial number of commenters concerned about the complexity of the proposed methodology, the unpredictable and often significant annual increases of FLS-based AEWRs, and the need to protect workers against adverse wage effects while also taking into account the need for a stable supply of legal labor, the Department has determined that the most reasonable AEWR determination methodology for field and livestock workers, particularly given uncertainty about the future of the FLS, is to use the recent combined FLS wage data as a starting point and use of the ECI to index for future years. This approach is consistent with an alternative suggested in the NPRM and recommended by a commenter from academia (as well as the current means by which the monthly AEWR is adjusted for range occupations).

The ECI is a “measure of the change in the price of labor, defined as compensation per employee hour worked” based on data collected on “hourly straight-time wage rate[s]” defined as “total earnings before payroll deductions,”  45 that provides an accurate measure of annual increases in wages across the private sector and “is particularly well suited as a vehicle to adjust wage rates to keep pace with what is paid by other employers.”  46 ECI-based adjustments to the AEWRs for these occupations will ensure field and livestock worker wages continue to rise apace with wages in the broader U.S. economy in a consistent and predicable manner. 47 While the Department also suggested the CPI as an alternative data source, the Department has chosen the ECI rather than the CPI to adjust the FLS-based AEWRs because the Department views the CPI as less relevant to wage adjustments than the ECI, which measures changes in wages, rather than consumer prices. The Department believes indexing the AEWRs to the ECI will produce steadily increasing AEWRs for field and livestock workers that fulfill the statutory requirement to prevent adverse effect on the wages of workers in the United States similarly employed, while providing consistency and predictability to the agricultural economy.

The Department understands the common concern of a large number of employers, associations, and agents that OES-based AEWRs would, in some cases, result in dramatic wage increases, wage variability from year to year, or both, and further acknowledges the concerns of many commenters that the current FLS-based AEWRs have fluctuated widely from year to year and that employers have been subject to annual increases as high as 22 percent in some states. 48 In setting the AEWR, the Department must balance the interests of workers and employers. Setting AEWRs that are “too high in any given area . . . will harm U.S. workers indirectly by providing an incentive for employers to hire undocumented workers.”  49 The Department remains cognizant of the fact that the “clear congressional intent was to make the H-2A program usable, not to make U.S. producers non-competitive” and that “[u]nreasonably high AEWRs could endanger the total U.S. domestic agribusiness, because the international competitive position of U.S. agriculture is quite fragile.”  50

The methodology in this final rule addresses these concerns by tethering the AEWRs to broad economic data on labor costs using the ECI, which the Department currently uses to make AEWR determinations for H-2A herding and livestock jobs on the range, and adjusting the AEWRs annually beginning in calendar year 2023. 51 Based on private sector ECI data, the average annual adjustment over the last decade would have been 2.78 percent, in contrast to the much higher annual AEWR adjustments cited by many association commenters. 52 Recent AEWR data shows significant fluctuation in the AEWR in many states, both upward and downward. Data shows that annual AEWR adjustments of 3 percent, 4 percent, and 5 percent have not been uncommon, nor is it uncommon to see the AEWR increase one year, decrease the following, and then increase again in the third year. 53 For example, in Arizona, wages increased in 2016 by 6.3 percent, decreased in 2017 by 2.2 percent, decreased again in 2018 by 4.5 percent, and then increased a jarring 14.7 percent in 2019. 54 Further, the average difference between the highest and lowest change across all AEWRs in the state and regions was 11 percent from 2014 to 2018. In 2019 and 2020, it was 23.4 percent and 8.5 percent, respectively, further evidence of the year-to-year unpredictability in wage obligations employers face under current regulations. 55

The Department also understands the concerns raised by commenters regarding planning and budgeting difficulties when wage rates fluctuate widely, particularly in the context of the considerations a law firm noted about agricultural sector employers' obligations to fulfill multi-year contractual obligations, as well as a trade association's concerns surrounding longer-term workforce planning. 56 The FLS-based, ECI-adjusted AEWR methodology in this final rule is, in the Department's judgment, the most effective available methodology that addresses the oft-cited concern among many commenters that under the proposed approach, AEWRs would be too unpredictable and based on a methodology that would be too complex. ECI-based adjustments are straightforward to calculate and, based on the substantial historical data available, predictable. Because the AEWR for these core occupations will be tied to the ECI and adjusted annually, the Department believes that the new methodology will reduce the significant fluctuations in AEWRs and address the concerns raised by commenters about the need for certainty. During the past decade, the fluctuation in the ECI from one year to the next has not exceeded more than half of one percent and the total range of increases over that period was 2.1 to 3.9 percent, 57 in contrast to AEWRs that have fluctuated up or down within a much larger and less consistent or predictable range, as noted above.

The Department believes it is reasonable to make annual adjustments based on the ECI to reduce wage volatility from year to year, provide employers with greater stability and certainty regarding their wage obligations to workers, and address the concerns expressed by many commenters about the unpredictable increases in wages reported by the FLS in recent years. As noted above, the Department has determined it is best to utilize the current AEWRs for the next two years and adjust annually thereafter based on changes in the ECI for the most recent preceding 12 months to provide stability and predictability for future wages, and as an acknowledgement that immediate implementation may cause additional disruption of the kind this approach seeks to avoid. The Department believes this approach will serve the AEWR's intended purpose to guard against the potential for the entry of H-2A foreign workers to adversely affect the wages and working conditions of workers in the United States similarly employed while addressing concerns raised by the commenters.

Beginning the ECI adjustments for the FLS-based AEWRs in 2023 addresses commenters' concerns that recent accelerations in the wage rates are, in their view, attributable to flawed survey results and have caused artificially surging wage increases, as well as the need to have time to engage in long range planning. For example, commenters note AEWR increases have averaged as much as 9.5 percent annually in recent years. While the Department disagrees with the commenters' suggestions that the FLS survey results were flawed, this transition period, during which employers may prepare for the new indexed wage rates that will apply to the majority of H-2A job opportunities, adequately balances commenters' concerns related to significant wage fluctuations with the Department's obligation to protect against adverse effects. Giving employers advance notice of the new approach before it begins to result in more predictable wage adjustments ensures that the new rule does not cause, through more immediate implementation of the new adjustment methodology, precisely the kind of unexpected wage changes that commenters expressed concerns about.

This approach also addresses concerns from farmworker advocates about wage cuts, by using the ECI to ensure steady wage growth over time to guard against the potential for the entry of H-2A foreign workers to adversely affect the wages and working conditions of workers in the United States similarly employed. It also guards against the kind of immediate wage cuts that may have occurred in some cases under alternative methodologies by using the current, 2020 AEWR as the starting point from which future adjustments will be made.

In addition, this approach addresses the concerns of many worker advocates, SWAs, and some Federal elected officials that the use of occupation-specific OES data proposed in the NPRM would have immediately, and in some cases significantly, reduced wages for many workers in the most common H-2A occupations ( i.e., SOCs 45-2092, 45-2093, and 45-2041). Although AEWRs for field and livestock workers will not increase or decrease annually under this final rule in the same manner as they had under AEWRs determined using previously available FLS data—in fact, the Department projects a slight reduction in wage growth relative to the previous methodology—the approach in this final rule will ensure consistent wage increases for field and livestock workers and ensure these workers' wages keep pace with wage changes among U.S. workers more broadly. And this approach may result in higher AEWRs than would be the case using OES data. The Department has considered that the use of occupation-specific OES AEWRs could potentially reduce the wages of significant numbers of agricultural workers in states with high H-2A usage, such as California and Washington, including single year reductions of 10.3 and 6.4 percent, respectively, for crop workers, and 12.6 and 15.4 percent, respectively, for graders and sorters. 58 In contrast, AEWRs determined using the FLS wage data as a baseline and adjusted annually using the BLS ECI compensation data for all private sector workers, which has increased annually from 2.1 to 3.9 percent over the past 10 years, will serve to protect against the wage depression suggested by these commenters, thus protecting against the possibility of the presence of H-2A workers adversely affecting the wages and working conditions of workers in the United States similarly employed. 59 It also may protect against absolute decreases in AEWRs, which have been seen in some years in some states under the FLS methodology, even during a robust economic expansion, in contrast to the ECI which is a less volatile data source that has registered increases during economic contractions and expansions. 60 Additionally, in cases where the prevailing wage is higher than the AEWR adjusted based on the ECI, the employer will be required to pay the prevailing wage rate, and the Department proposed a revised prevailing wage determination methodology in the July 2019 NPRM, which, if adopted in the subsequent, second final rule, would likely affect the wages required to be paid to H-2A workers and may provide additional wage protection.

The Department has chosen to use as a baseline the 2020 AEWRs determined using the combined field and livestock worker FLS wage data after consideration of comments on potential data sources, and for reasons explained below and in prior rulemaking. The Department received many comments on the efficacy of the FLS and OES survey as data sources for AEWR determinations. Some commenters—primarily employers and associations—opposed the use of the FLS to determine the AEWR. Some associations and an agent supported a move away from the FLS because the survey was not limited to U.S. workers and aggregated the wages of workers in many different occupations. Similarly, a business advocacy organization opposed use of the combined FLS wage under the 2010 Final Rule because it averaged the wages of lower-skilled farm workers with higher-skilled workers in, for example, supervisory and heavy machinery operator occupations, which the commenter asserted inflated wages and made it difficult to challenge AEWR determinations. Two associations and an employer opposed use of occupation-specific FLS data due to small sample sizes and opposed use of the FLS generally because it collected data on gross wages.

In contrast, many commenters expressed general or conditional support for the use of the FLS as a primary or sole data source, including many worker advocacy organizations, as well as some associations and academic commenters. Several associations supported use of a modified and expanded FLS, while some employers and associations expressed a preference for retaining the 2010 Final Rule's methodology based on the combined FLS data, but only if the sole alternative was the proposed methodology. One association urged the Department to rely on the FLS as the primary source where a wage is available at any geographic level and to use the OES only in cases where no state or national FLS wage is available. Another commenter believed the Department should rely solely on USDA or states' departments of agriculture to determine the AEWR because these agencies have the best understanding of agricultural employment and the wage setting process for agricultural job opportunities. A Federal elected official urged the Department to rely on the FLS, rather than the OES survey, because the OES survey “reflects earnings from farm labor contractor employees, who are among the nation's lowest paid farmworkers.” Similarly, two Federal elected officials opposed use of the OES system because it “less accurately capture[s] actual wages paid to farm employees, who comprise the bulk of the H-2A guest worker workforce, because the OES data do not actually capture farm employer data and instead only reflect information concerning `establishments that support farm production.' ”

As noted in the NPRM and prior rulemaking, and as discussed below, the Department continues to believe the FLS is a useful source of wage data for establishing the AEWRs for the vast majority of H-2A job opportunities, and that alternative wage sources are, for most occupations, generally not superior to the FLS for the Department's purposes in administering the H-2A program. With the exception of a brief period under the 2008 Final Rule, the Department has established an AEWR using FLS data for each state in the multi-state or single-state crop region to which the State belongs since 1987. One advantage of using a wage derived from the FLS as the baseline for these occupations is that the FLS surveyed farm and ranch employers and collected data on wages paid for field and livestock worker job opportunities common in the H-2A program.

Another advantage of the FLS has been its broad geographic scope, which “provide[s] protection against wage depression that is most likely to occur in particular local areas where there is a significant influx of foreign workers,”  61 and “reflects the view that farm labor is mobile across relatively wide areas.”  62

Finally, using the combined FLS data as the baseline to set the AEWR for field and livestock workers is consistent with the Department's conclusion in the 2010 Final Rule that the skills of many farm laborers are “adaptable across a relatively wide range of crop or livestock activities and occupations” because these activities and occupations “involve skills that are readily learned in a very short time on the job, skills peak quickly, rather than increasing with long-term experience, and skills related to one crop or activity are readily transferred to other crops or activities.”  63

However, as noted above, recent FLS data has introduced a substantial amount of variability in wages in the H-2A program, which has led the Department to consider alternatives that still meet its statutory obligations and the need for sound program administration. The reasons why this variability is problematic are discussed throughout this preamble, and include economic hardship to farmers, which may induce them to reduce production and thus the hiring of U.S. farmworkers—or to resort to using illegal aliens; the difficulties of long-term planning, with attendant costs that may be felt by both employers and farmworker employees; and the current methodology's artificial depression of wages for certain higher-skilled U.S. agricultural workers. The Department is also concerned about using a data source beyond its control and which is subject to an uncertain future, demonstrated by the recent suspension of data collection. The Department thus has decided to use ECI adjustments to these AEWRs moving forward.

This does not mean that the Department has concluded that the wages established by the FLS data, including the 2020 AEWRs, were flawed. Rather, the Department has simply determined that greater certainty going forward is necessary, and the ECI provides a reasonable data source for measuring wage growth consistent with the Department's statutory mandate. Specifically, the Department has concluded, consistent with a commenter from academia, that use of an FLS-based AEWR as the starting point rate to adjust annually based on the percentage change in the ECI is a reasonable approach for AEWR determinations. Using the 2019 data from the FLS as the starting point and adjusting the wages using the ECI will provide greater wage continuity and avoid the further volatility that might occur if future FLS data were relied on to make year-to-year wage adjustments, which is beneficial for both farmworkers and employers, making it the preferred approach, even if FLS publication were resumed.

The Department has chosen not to use the OES survey to determine AEWRs for field and livestock worker job opportunities for several reasons. Most importantly, the OES survey does not include farm establishments that are directly engaged in the business of crop production and employ the majority of field and livestock workers. While establishments that support farm production participate in the H-2A program and are included in the OES survey, they constitute a minority of establishments in the country employing workers engaged in agricultural labor or services, and so data reported by these establishments is generally not as useful for purposes of calculating the AEWR for field and livestock workers. In addition, the OES currently cannot produce a statewide or regional wage for both the field worker and livestock worker categories in every year, so a methodology using the OES for these job opportunities would require use of different wage sources from year to year. Thus, use of the OES would be contrary to the Department's goal of establishing greater consistency, reliability, and predictability in wages year to year.

The decision to use the 2019 FLS wage data for field and livestock workers (combined) as the baseline to index future AEWRs for these occupations also addresses commenters' concerns regarding the complexity of the proposals related to disaggregated, occupation-specific AEWRs. It addresses the common concern among employers that the disaggregation of the field and livestock workers classification into various occupations would impose significant recordkeeping burdens and create artificial boundaries for the labor force beyond what is functionally appropriate to support farming operations, especially smaller operations. Use of the combined FLS wage for field and livestock workers will reduce recordkeeping burdens, especially in cases where workers are needed to perform a variety of field and livestock duties, as employers will be required to pay such workers the same wage rate for all of those duties. Similarly, because the overwhelming majority of job opportunities will not be subject to a SOC-based OES AEWR, the new methodology also largely addresses SWA concerns that the Department's proposal would have required SWAs and OFLC to conduct more in-depth review of applications, focusing on the identified occupation and wage assigned, to ensure the employer is using the correct wage. For the same reason, it also serves to alleviate some of the concerns of worker advocates regarding CO and SWA authority to determine appropriate SOCs and issue notices of deficiency to ensure correct classification of job opportunities.

In the NPRM, the Department proposed to use the FLS to set the hourly AEWR except in limited circumstances where the FLS did not report a wage for an occupation or state or region. Under those circumstances, the Department proposed to use the statewide average hourly wage for the occupation using data from the OES survey, and noted that under the proposal, the OES statewide average hourly wage would be used to establish the AEWR if USDA ceased to conduct the FLS for budgetary or other reasons. After careful consideration of all comments received, and for the reasons explained below, the final rule requires that for all occupations other than field and livestock workers (combined), the hourly AEWRs will be annually adjusted and set by the statewide annual average hourly wage for the occupational classification, as reported by the OES survey. If the OES survey does not report a statewide annual average hourly wage for the SOC, the AEWR shall be the national annual average hourly wage reported by the OES survey.

While some commenters supported the use of occupation-specific FLS and OES data to set AEWRs and believed the proposed methodology would produce more accurate wages, many commenters worried that the proposal was too complex and difficult to administer and that the number of wage sources and potential wage rates would result in unpredictable and volatile wages. The Department acknowledges that to the extent the FLS did not consistently report data in each SOC for a state or region, under the proposal, the wage source used to establish the AEWR would have varied from year to year, which could have resulted in a much higher degree of year-to-year variability in the AEWR than exists under the current methodology. As discussed above, the Department does not control the production of new wage data from the FLS in future years, and the Department will now use only one wage source—the OES survey—to determine the AEWRs for occupations other than field and livestock workers (combined) and for geographic areas for which FLS did not report a state or regional wage for field and livestock workers (combined) in its November 2019 report. By using this wage source to set the AEWR for these occupations and geographic areas, employers will have certainty regarding the wage source that will be used to set the AEWRs and the Department will meet its statutory mandate to protect against adverse effect.

Several commenters, including employers, associations, and worker advocacy organizations, were concerned about the Department's proposal to rely on OES data where the FLS did not report a statewide or regional average wage for the occupation. Some commenters expressed concern that the OES surveys nonfarm establishments that support farm production, and urged the Department to rely on the FLS. The Department acknowledges commenters' concerns; however, the Department does not control the production of new wage data from the FLS and recognizes the continued uncertainty about ongoing availability of FLS data. Furthermore, the Department declines to use the FLS as a baseline with annual ECI adjustments to set the AEWR for occupations other than field and livestock workers (combined). While the FLS-based approach is more accurate than the OES for field and livestock workers (combined), as noted above, the OES is more accurate than the FLS for other agricultural occupations, such as supervisors, that the FLS did not adequately survey, and occupations that are more often for contracted-for services than farmer-employed ( e.g., construction, equipment operators supporting farm production), therefore its use will better protect against adverse effect for those occupations for which the FLS did not provide valid wage data at a state or regional level. An AEWR based solely on the field and livestock worker (combined) wage may have the effect of depressing wages in higher-paid occupations. This aspect of the methodology under the 2010 Final Rule appears to cause an adverse effect on the wages of workers in the United States similarly employed, contrary to the Department's statutory mandate. 64 And, as explained above, the Department recognizes the continued uncertainty about ongoing availability of FLS data, including to set the 2021 AEWRs.

Furthermore, the OES is a reliable wage survey that consistently produces annual average wages for nearly all SOCs and is widely used in the Department's other foreign labor certification programs. Additionally, because “each set of OES estimates is calculated from six panels of survey data collected over three years,” the commenters' concerns regarding the volatility of the AEWRs and significant spikes in the FLS wages in recent years, leading the Department to implement annual ECI adjustments for those wages, are also greatly diminished for the SOCs that will shift to the OES-based methodology.

Accordingly, the Department will use the statewide OES average hourly wage for occupations other than field and livestock workers (combined) or, if one is not available, the national OES average hourly wage reported for the SOC. One commenter was concerned that by factoring in wages in both non-metropolitan areas and metropolitan areas (where wages are higher because of a higher cost of living), the use of a statewide OES wage would mean that employers in non-metropolitan areas would be required to pay inflated wages. Another commenter expressed a similar concern with respect to statewide or national AEWRs generally. In the H-2B program, the Department generally establishes prevailing wages based on the OES survey for the SOC in a metropolitan or non-metropolitan area. However, as explained in prior rulemakings, the concern about localized wage depression is more pronounced in the H-2A program than in the H-2B program due to both the economic position of agricultural workers and the fact that the H-2A program is not subject to a statutory cap, which allows an unlimited number of nonimmigrant workers to enter a given local area. 65 Thus, a statewide wage is more likely to protect against wage depression from a large influx of nonimmigrant workers that is most likely to occur at the local level. 66 The use of a statewide wage also more closely aligns with the geographic areas from the FLS. For these reasons, the Department believes it is important to use the statewide OES wage where one exists for the particular occupation. In the limited circumstances in which there is no statewide wage, use of the national annual average hourly wage reported for the particular SOC will ensure an AEWR determination can be made each year without the need for any adjustment method.

The Department also received many comments that expressed concerns about the proposal to require employers to pay the highest applicable wage if the job opportunity can be classified within more than one occupation. Several farm bureaus, associations, and agents asserted the policy would disproportionately impact small employers that may have no human resources personnel and must employ agricultural workers to perform a variety of similar, but distinct tasks on the farm to remain competitive. One small employer stated that use of separate occupational classifications would require the employer to hire more workers to perform distinct job duties and offer fewer hours to all workers. Another small employer noted that its U.S. workers perform duties ranging from driving tractors and operating forklifts to cleaning bathrooms. Some commenters asserted more generally that agricultural workers cannot be placed in “silos” because they are required to perform job duties outside of their job descriptions on occasion, not on a full-time basis, due to the nature of agricultural work or the need to respond to emergency situations and unforeseen circumstances. Some of these commenters expressed concern that the Department would classify jobs into the highest paid occupation in the particular state, leading to different occupational determinations in different states. An association commented that the states currently provide inconsistent occupation and wage determinations for similar job opportunities and expressed concern that occupation-based AEWRs would lead to inconsistent AEWRs from state-to-state for similar job opportunities.

Two Federal elected officials stated that assignment of the highest wage among multiple applicable occupations would contradict the purpose of the proposal to provide more accurate wages. A worker advocacy organization expressed concern that the proposal to assign the wage of the highest paid occupation would result in employers misclassifying job opportunities into lower-paid occupations to avoid wage obligations. A second worker advocacy organization asserted the proposal would not prevent misclassification of workers because the rule does not require submission of a separate application for work performed in multiple distinct occupations or provide any limitation on the kinds of duties workers may be expected to perform. The commenter suggested the Department should require employers to post at the worksite the AEWR for each occupational classification so that workers will know when they are misclassified. An SWA expressed similar concern that occupation-based AEWRs may encourage employers to misclassify workers into lower-paid job opportunities. Another commenter believed the difficulty of classifying job opportunities into occupational classifications would result in confusion among workers regarding the wage they would be paid at additional worksites.

Several commenters, including employers, associations, SWAs, and a worker advocacy organization, expressed concern or confusion regarding the method the Department would use to classify job opportunities into occupations within the SOC system. Noting that filing multiple applications under the current regulations has been burdensome and costly, three associations asked the Department to clarify whether employers will be required to file multiple applications for different job codes and urged the Department to permit an employer to list several SOC codes in one job order if they are all related to the same job opportunity. Many association commenters also sought clarification of the number of occupational categories the Department would use, including an association that noted the NPRM cited a different number of occupational categories for different states and did not mention some potential occupations, such as Pesticide Handlers and Sprayers (SOC 37-3012). Several commenters urged the Department to reduce the number of occupational categories it would consider, suggesting numbers ranging from four to six. Some associations and a State farm bureau specified five specific occupations: (1) Farmworkers and Laborers, Crop, Nursery, and Greenhouse; (2) Farm Workers and Laborers, Farm, Ranch and Aquacultural Animals; (3) Agricultural Equipment Operators; (4) Graders and Sorters; and (5) Supervisors. Two associations specified the first four of the above categories and suggested supervisors could be a “higher tier” category derived from the others, such as “packing-supervisor” or “livestock-manager.”

Most of these commenters urged the Department to ignore “de minimis” performance of duties or otherwise adopt some form of a primary or majority duties test, with some commenters suggesting the occupational classification should be based on work performed 51 or 75 percent of the time or should apply only if workers perform “substantially the same” duties as in the occupational description. An SWA asked if the proposal would separate workers into distinct agricultural occupations, such as agricultural carpentry as an occupation distinct from the general carpentry occupation and was concerned such a proposal would lower wages and disincentivize U.S. workers from applying for H-2A job opportunities. The SWA also expressed concern that OES wages for specific localities within a state would produce lower wages, disincentivize U.S. job seekers, and disadvantage workers who will have to commute longer distances for higher paid job opportunities in other parts of the state. A second SWA expressed concern that the occupation-specific wage proposal would require more in-depth review of H-2A applications by the SWAs and CO to determine that the appropriate occupation and wage are assigned.

A worker advocacy organization expressed concern that the proposed rule would shift occupational classification responsibilities from the SWAs to the Certifying Officers (COs) and, functionally, primarily to employers themselves, with only minimal review by COs. The commenter believed this would result in manipulation of duties and misclassification by employers and urged the Department to rely on SWAs to determine the proper occupational classification and issue Notices of Deficiency (NODs) for misclassification because SWAs are most knowledgeable about agricultural job opportunities and industries in local areas. The commenter urged the Department to provide SWAs authority to issue NODs for misclassification under 20 CFR 655.120(b)(5) and (d)(1) as proposed. The commenter also suggested revisions to the regulatory language proposed at 20 CFR 655.120(d)(1).

A law firm and a public policy organization objected specifically to application of the construction laborer SOC and corresponding OES wage to H-2A job opportunities because the nature of the work is very different. The law firm acknowledged that agricultural construction workers may perform some of the same tasks as non-agricultural workers, but asserted agricultural construction work generally requires less-skilled workers than non-agricultural construction work and the OES wage would not be representative of wages paid to agricultural construction workers. This commenter also asserted that immediate implementation of the OES wage rate would have “catastrophic consequences” for construction contractors because these employers typically operate under multiple year contracts. In contrast, a worker advocacy organization noted that contractors often employ nonagricultural workers in the H-2A program to construct, for example, livestock buildings for farmers at or near the AEWR. The commenter supported the proposal to provide an occupation-specific wage for agricultural construction job opportunities. 67

The Department has considered all of these comments and has decided to adopt the language of the NPRM as proposed. Under this final rule, if the job duties on the Application for Temporary Employment Certification do not fall within a single occupational classification, the CO will determine the applicable AEWR based on the highest AEWR for all applicable occupational classifications. In the event an employer's job opportunity requires the performance of duties encompassed by two or more distinct occupational classifications ( e.g., an SOC occupation subject to the FLS-based AEWR and an SOC occupation subject to the OES AEWR, or two SOC occupations subject to different OES AEWRs), the Department will assign the highest AEWR among all applicable occupational classifications.

For example, a job opportunity involving driving duties may be properly classified under SOC 45-2091 (Agricultural Equipment Operators), SOC 53-3032 (Heavy and Tractor-Trailer Truck Drivers), or a combination of the two, depending on the duties described in the employer's job order. A job opportunity for workers to drive tractors and other mechanized, electrically-powered or motor-driven equipment on farms to plant, cultivate, and harvest a crop (including driving tractors in and out of fields carrying bins and driving forklifts to transfer and stack bins of full product onto trailers), which requires 12 months of experience operating such equipment, would be properly classified under SOC 45-2091 and subject to the FLS-based AEWR. In contrast, a job opportunity for workers to drive semi tractor-trailer trucks to and from specified destinations within area of intended employment (including maneuvering trucks into and out of loading and unloading positions as well as driving in both on-road (paved) and off-road conditions), which requires 12 months of experience operating such equipment and a valid Class A CDL or equivalent, would be properly classified under SOC 53-3032 and subject to the OES-based AEWR. In the event an employer seeks workers to both drive tractors and other mechanized, electrically-powered or motor-driven equipment on farms and semi tractor-trailer units, as described above, the employer's job opportunity constitutes a combination of SOC 45-2091 and SOC 53-3032, subject to either the FLS-based AEWR for SOC 45-2091 or the OES-based AEWR for SOC 53-3032, whichever is a higher rate per hour.

As explained in the NPRM, determining the appropriate occupational classification is an important component of the Department's decision to move to occupation-specific wages. Use of the highest applicable wage in these cases reduces the potential for employers to misclassify workers and imposes a lower recordkeeping burden than if the Department permitted employers to pay different AEWRs for job duties falling within different occupational classifications on a single Application for Temporary Employment Certification. This policy is consistent with the way the Department determines prevailing wage rates for jobs that cover multiple SOCs in the H-2B program. Under the final rule, employers who currently file a single Application for Temporary Employment Certification covering multiple workers and a wide variety of duties might choose to file separate Applications for Temporary Employment Certification and limit the duties of the job opportunities in each Application for Temporary Employment Certification to a single occupational classification. The employer would then pay a separate wage rate based on the duties of each job opportunity included in the separate Applications for Temporary Employment Certification.

Many of the commenters' concerns regarding administrative burdens, impracticality, and complexity of the wage proposal have been addressed as a result of the changes to the proposed AEWR methodology discussed above, including assigning one AEWR for all of the SOC codes covered by the field and livestock workers (combined) category. The overwhelming majority of H-2A job opportunities will fall within the FLS field and livestock workers (combined) category, as reported in the USDA FLS data published in November 2019. Use of the combined FLS with ECI adjustments for field and livestock workers (combined) largely addresses commenters' concerns regarding the number of SOC occupations. However, the Department is not limiting the SOC codes applicable to job opportunities that fall outside of the field and livestock worker (combined) category to those suggested by commenters because the H-2A program is not limited to job opportunities classifiable within those occupations. Based on the statutory and regulatory framework governing the definition of what constitutes agricultural labor or services, the Department's experience is that a wide range of jobs within the U.S. agricultural economy, depending on the nature and location of work performed, could be eligible under the H-2A visa classification. Though the majority of job opportunities will be classifiable within a relatively small number of SOC codes, the Department has issued H-2A certifications to employers covering jobs classified in dozens of SOC codes, including more than three dozen in fiscal year 2019 alone.

The Department declines to permit employers to pay an AEWR based on the SOC in which work is “primarily” performed ( i.e., more than 50 percent), where multiple SOCs are covered by the job opportunity. Doing so could encourage employers to intersperse higher-skilled, higher-paying work among many workers so that the higher-paying work is never a duty “primarily” performed by any one employee. This would permit the employer to gain the benefit of that work without having to hire a U.S. worker at a higher wage to provide that work. The Department is also concerned with how this would work in practice. Such an approach would undermine the Department's goal of preventing the misclassification of workers and encourage employers to combine work from various SOCs. Ultimately, this approach runs an intolerable risk of adversely affecting the wages of workers in the United States similarly employed. Further, the Department believes commenters' concerns are overstated, because each SOC code encompasses a broad spectrum of job titles and covers a broad range of job duties.

With respect to the worker advocates' concerns about the SWA's role in review of SOC assignment, this final rule does not alter the authority or role of the SWA. SWAs will continue to review job orders—and SOCs therein—in the first instance following the “SWA Review” procedures in 20 CFR 655.121. Those procedures include an SWA-level NOD process, which the SWA may use to address wage offer, occupational classification, and other deficiencies the SWA identifies. The Department has not adopted the commenter's suggested regulatory revision, as the Department is not incorporating the language of proposed paragraph (d) into § 655.120 in this final rule.

The Department received many comments suggesting alternative methods of setting the AEWR that it chose not to adopt for the reasons explained below.

Comments from employers, associations, agents, state farm bureaus, and business advocacy organizations urged the Department to adopt a simplified AEWR methodology, including suggestions to use the state or Federal minimum wage, the minimum wage plus a fixed percentage, an AEWR based on changes in indices like the CPI, or an AEWR calculated based on the price of the agricultural commodity involved. Several commenters urged the Department to eliminate the AEWR and instead require employers to pay the State or Federal minimum wage or some form of enhanced minimum wage, which the commenters believed would provide employers a simpler and more uniform, consistent, and predictable wage determination. Other commenters suggested setting the AEWR at some fixed percentage or dollar amount above the applicable minimum wage, with suggestions ranging from 3 to 15 percent or one to two dollars above the minimum wage. One of those commenters suggested the enhancement should be lower if the applicable rate is the state minimum wage because these wages often exceed the Federal minimum wage. A few commenters suggested using a minimum wage as a baseline and updating the wage annually based on changes in the CPI, which they believed would provide certainty about wages and eliminate administrative costs related to conducting multiple surveys to determine AEWRs. Many of these commenters also suggested a cap on annual wage increases to avoid the annually compounded wage inflation they believed resulted from use of the FLS.

The Department declines to adopt these proposals. The Department establishes wages based on data related to actual wages paid to workers. For purposes of the AEWR, the Federal minimum wage does not sufficiently relate to the actual wages paid to similarly employed workers. The AEWR is meant to approximate the wage paid to workers in the United States similarly employed. Establishing a single national AEWR, either based on Federal minimum wage or applicable state minimum wage, that covers all occupations would not meet that purpose, as further demonstrated by how it would immediately and dramatically reduce the wages of both H-2A and similarly employed workers, particularly those performing work in dozens of states currently being paid a wage above the FY 2020 national AEWR based on the FLS. For similar reasons, the Department will not base the AEWR on a standard ( e.g., Federal or state minimum wage) below which many U.S. farmworkers would be expected to accept employment, and, in many instances, possibly disconnected from wages actually paid in the area of employment. As the Department noted in prior rulemaking, “a single national AEWR applicable to all agricultural jobs in all geographic locations would prove to be below market rates in some areas and above market rates in other areas, resulting in all of the associated adverse effects that have been previously discussed.”  68

Further, a primary reason the Department has decided to use occupation-specific wage data for occupations like construction and farm labor supervisor is due to concern that the FLS combined field and livestock worker wage does not accurately reflect wages paid to higher-paid occupations in agriculture. An AEWR methodology based on the Federal or state minimum wage, even one incorporating annual increases based on a broad index, is likely to create or perpetuate the potential wage disparities this final rule aims to avoid when applied to more highly paid occupations.

For similar reasons, the Department declines to impose a cap on wage increases unrelated to actual wage data. Wage increases under both the ECI and OES survey are based on data of actual wages paid or wages projected to be paid to workers and therefore protect against adverse effect on the wages of workers in the United States similarly employed by tracking the increase or decrease in wages. Commenters did not provide a sufficient economic rationale to impose a cap that is unrelated to employer costs. Such a cap would also produce wage stagnation, most significantly in years when the wages of U.S. workers are rising faster due to strong economic and labor market circumstances.

An association suggested the Department should adopt a two-tiered wage system in which the Department would require employers to pay U.S. workers at least the AEWR, but would permit employers to pay H-2A workers a rate 25 percent below the AEWR. Similarly, a public policy organization suggested the Department should allow employers to pay foreign workers less than the currently required AEWR or prevailing wage if the employer agrees to pay U.S. workers 5 percent more than the required rate. The commenter believed that this would benefit U.S. workers because some employers would be willing to pay a higher wage to U.S. workers if the Department permitted them to pay less to H-2A foreign workers. A law firm suggested the Department should permit employers to pay the OES-determined rate to U.S. workers and pay the current FLS-based AEWR to foreign workers and increase penalties for failure to hire U.S. workers to ensure employers are not incentivized to prefer hiring H-2A workers.

The Department declines to adopt a two-tiered system by which U.S. workers must be offered a higher wage rate than that offered to foreign workers. To do so would provide a disincentive to the hiring of U.S. workers by allowing employers to hire foreign workers at lower wages.

The public policy organization cited above also asserted that the statute, at 8 U.S.C. 1182(p)(4), “foresees the possibility” of a four-tiered wage structure and “instructs” the Department to establish wages at four wage levels based on experience, education, and the level of supervision. The commenter believed the Department should adopt this tiered wage structure even if not required by statute because this would more accurately reflect real-world wages, which are strongly correlated with a worker's level of skill.

The commenter refers to the H-1B Visa Reform Act of 2004, 69 which amended section 212(p) of the INA to provide that where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. 70 That provision further notes that where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3 the difference between the two levels offered, adding the quotient thus obtained to the first level, and subtracting that quotient from the second level. 71

The Department explained its reasons for not extending the tiered wage structure to the H-2A program in the 2010 Final Rule and has provided similar explanations in the H-2B rulemaking, most recently in the 2015 H-2B Wage Final Rule. 72 In the 2010 H-2A rule, the Department determined that “the notion of meaningful skill differences among agricultural workers is unfounded” and that the most common H-2A agricultural occupations “involve skills that are readily learned in a very short time on the job, skills peak quickly, rather than increasing with long-term experience, and skills related to one crop or activity are readily transferred to other crops or activities.”  73 The Department eliminated the tiered wage structure in the H-2B program for the same reasons and noted that wage differentials among workers in an occupation can be the result of many factors other than skill differentials. 74

Importantly, the Department's practical experience has demonstrated that use of a four-tiered wage structure in the H-2A program leads to the overwhelming majority of H-2A job opportunities being classified at a level I wage, well below the median wage for the occupation. 75 The Department's experience using a tiered wage structure in the H-2B program led to a similar result and the Department ultimately determined that use of the tiered wage structure produced “artificially lower [wages] to a point that [they] no longer represent[ed] a market-based wage.”  76 The commenter above provided no evidence demonstrating the existence of meaningful skill differentials among workers within any particular H-2A occupation, much less a nexus between those differentials and wages paid to workers in the occupation that would necessitate the same four-tiered, skill-based wage structure in the H-2A program that the Department eliminated in prior rulemaking. Therefore, the Department declines to implement a tiered wage structure in this final rule.

Many commenters, including trade associations, an employer, a law firm, and agents, recommended that the Department take into account additional costs that employers cover for H-2A workers, such as housing, meals, transportation, and other benefits, when determining the AEWR. Commenters noted that U.S. workers cover these expenses out of their net pay, making the H-2A rate artificially inflated. Several commenters reasoned that if the purpose of the AEWR is to set a wage rate that measures and protects against adverse effect ( e.g., by ensuring that employing H-2A workers is not less expensive than employing U.S. workers), considering the full cost of employing H-2A workers provides a more accurate picture of the expenses paid for H-2A workers than wages alone. One commenter objected, in particular, to the Department comparing H-2A AEWRs to H-2B prevailing wage rates for agricultural construction occupations, noting that the H-2B rates anticipate workers providing their own housing and transportation, while the H-2A program does not.

Some commenters suggested how the Department could account for these additional costs in relation to the AEWR. A trade association recommended the Department consider a “wage credit” to address the employer's housing costs, such as 10 percent of the worker's weekly earnings capped at not more than $75.00 per week with an annual adjustment using the same index as the Department uses to adjust the subsistence reimbursement minimum. An individual commenter suggested that housing provided to workers is worth about $2 per hour, without providing a basis for that figure, while an employer calculated its additional costs to employ H-2A workers at $5.61 per hour. An agent asked the Department to consider allowing the “fair-market value of rent” to count towards the required minimum wage in the H-2A program. An agent suggested the Department should allow a wage credit for the provision of food. An employer stated that the H-2A program needs an update because the wage rate they are assigned is 25 percent above the state minimum, and their expenses also include housing and transportation.

Some commenters more generally expressed concern that use of data sources that include incentive pay, such as piece rates or bonuses, and overtime in AEWR determinations created unfairly inflated AEWRs. Some of these commenters expressed that including incentive pay and overtime in AEWR determinations resulted in “double counting,” and, because such payments are a reflection of individual worker productivity and performance, inclusion of these forms of compensation results in inaccurate AEWR determinations. A public policy organization urged the Department to require payment of the AEWR to workers in corresponding employment only if the worker was hired after the H-2A worker because payment of the AEWR to existing workers is not necessary to protect those workers' wages.

The Department declines to adopt these suggestions because of its longstanding determination that such approaches would lead to an adverse effect on the wages of workers in the United States similarly employed in violation of the Department's statutory mandate. Requiring employers to guarantee an hourly AEWR based on a wage survey without adjustments for housing and other benefits costs has been the Department's interpretation of H-2A statutory requirements since the 1980s. In addition, the statute contemplates a wage rate that accounts for the lower wages that the introduction of foreign workers causes, as well as no-cost housing and transportation for workers outside the local commuting area, which is intended to make agricultural jobs more attractive to U.S. workers. 77 This suggestion by commenters fails to account for the fact that H-2A workers, and those U.S. workers who live outside of the normal commuting distance, do not permanently live in the area and presumably also have housing costs in their home community. Additionally, the presence of significant differences in the price/cost of housing, meals, transportation, and other benefits across the country would make establishing any “wage credit” impracticable. Finally, reducing the guaranteed hourly AEWR for all workers to account for the costs of housing and other benefits would unfairly penalize the wages of similarly employed workers in the United States who do not receive housing benefits.

The Department also declines to remove piece rates, bonuses, and other incentive-based pay from wage data used to determine the AEWR. As some agricultural jobs guarantee only the state or Federal minimum wage and otherwise pay based on a piece rate, advertising an hourly wage that does not include “incentive pay” is not a reasonable “base rate” for H-2A employers to advertise to U.S. workers. In addition, the approaches suggested would be inconsistent with the wage sources and approach the Department has adopted in the final rule. The OES survey collects wage data for straight-time, gross pay, exclusive of premium pay. Both the OES and the ECI measure of wages and salaries include, for example, commissions, production bonuses, piece rates, and other incentive-based pay. 78

An association recommended the Department permit employers to use a wage established in a bona fide collective bargaining agreement (CBA), even where the AEWR or prevailing wage rate is higher. The Department declines to permit employers to pay a wage below the AEWR based on a CBA. As explained above, the AEWR is the minimum rate the Department has determined is necessary to ensure the employment of H-2A workers does not adversely affect the wages of agricultural workers in the United States. As the Department noted in the 2010 Final Rule, due to relatively “[l]ow educational attainment, low skills, . . . and high rates of unemployment, agricultural workers have limited ability to negotiate wages and working conditions with farm operators or agricultural services employers.”  79 While collective bargaining may improve these workers' positions, it may not do so enough to prevent downward pressure on workers in the United States similarly employed. The Department continues to share the concern of worker advocacy organization commenters recognizing the limited bargaining power of agricultural workers even when unionized. The AEWR provides a floor below which wages cannot be negotiated, providing necessary protections for this particularly vulnerable labor force. 80

A few commenters objected to the Department's use of the mean wage rate to calculate the AEWR. A trade association and an employer suggested that the Department calculate the AEWR using the median wage rate, instead of the mean wage rate, which they explained would prevent “outliers” on both the low and high end from unduly influencing the AEWR, and therefore produce a more representative wage rate. As noted in prior rulemaking, the Department believes use of the OES mean best meets the Department's obligation to protect against adverse effect and is the most appropriate wage to avoid immigration-induced labor market distortions. 81 The Department has a long-standing practice of using the average or mean wage, within the FLS and OES wage distributions, to determine the AEWR in the H-2A program and prevailing wages for other employment-based visa programs.

The Department declines to use the median because it does not represent the most predominant wage across a distribution, but instead represents only a midpoint. The mean is the best measure of central tendency for a normally distributed sample and provides equal weight to the wage rate received by each worker in the occupation across the wage spectrum. In low-skilled occupations, the mean represents the average wage paid to unskilled workers to perform jobs in the occupation. Setting the AEWR below the mean in the relatively low-skill agricultural occupations that predominate in the H-2A program would have a depressive effect on wages of workers in the United States similarly employed.

One worker advocacy organization urged the Department to require the highest of the FLS, OES, or other “valid source” wage rate for the area of intended employment, asserting that use of the FLS wage where a higher wage from the OES or another valid source is available would be indefensible. Similarly, a second worker advocacy organization suggested the Department require employers to pay the highest wage rate from among all available sources of wage data at all levels of geographic detail ( e.g., SWA prevailing wage survey data; state, regional, and national FLS data; and local, state, and national OES data). The commenter noted that the local wage is what U.S. workers expect to earn in a “healthy market” and asserted that sole reliance on state or regional FLS data would not take into consideration local wage differences that result from “market or crop specialty factors.” The commenter asserted that use of a lower wage rate based on broader surveys when a higher local OES rate is available would permit H-2A employers to undercut wages and would force other employers to lower wages to compete. The commenter suggested the Department revise § 655.120(b) to require the AEWR to be set at the annual average hourly gross wage for the occupational classification in the state or region as reported by the USDA's FLS, “unless the statewide annual average hourly wage, or applicable regional annual mean hourly wage for the [SOC] reported in the OES survey is a higher average hourly rate, in which case the OES State or OES Metropolitan and Nonmetropolitan Area data rate, whichever is higher, will be the AEWR.”

This commenter also suggested the Department ensure that AEWRs will not be reduced in the future based on the proposed methodology and recommended revising § 655.120(b)(1)(ii) to provide that if an annual average hourly gross wage for the occupational classification in the state or region is not reported by the FLS, the AEWR for the occupational classification and state shall be the statewide annual average hourly wage for the SOC if one is reported by the OES survey with respect to any H-2A applications filed within following the effective date of this regulation, the AEWR shall be no lower than the applicable AEWR established for that region or state in 2019.

The Department declines to implement the commenter's proposal to retain the current AEWR methodology, while simultaneously instituting a new AEWR methodology and requiring employers to pay the highest of all wage sources across the current and proposed methodologies, as this would result in an exceedingly complex and confusing set of minimum wage guarantees. The Department must set the AEWR in a way that reasonably balances the needs and interests of workers in the United States similarly employed and employers and results in a wage that is a reasonable approximation of wages paid to workers in the United States similarly employed. Requiring payment of the highest wage rate among all available sources at all levels of geographic specificity, regardless of the occupation and area of intended employment, would in many cases require an employer to pay an enhanced wage untethered to actual wages paid to similarly employed workers in the area. This would not only unreasonably increase the labor costs of H-2A employers in those cases, but could reduce agricultural job opportunities and place upward pressure on wages in order for employers to attract a sufficient number of available workers. This result would be inconsistent with the twin purposes of the H-2A program to “assure [employers] an adequate labor force on the one hand and to protect the jobs of citizens on the other.”  82

The Department also declines to require employers to pay the local OES wage rate for the occupation if this rate is higher than rate determined by the applicable source under this final rule. For the reasons stated in the NPRM and above, the FLS should be used as the baseline to set the AEWR for field and livestock worker (combined) job opportunities—such as those requiring crop, nursery, and greenhouse workers (SOC 45-2092) and workers attending to farm or ranch animals (SOC 45-2093)—which constitute the overwhelming majority of employer requests for H-2A workers. The FLS is the preferred wage source for establishing the AEWR in these occupational classifications for the reasons discussed above. All other AEWRs will be established by using the OES survey, including in the unique circumstance that a wage rate for these occupations is not available from the FLS.

Regarding the use of local OES data, the Department is retaining use of geographically broader data sets for reasons explain above. The Department is using a statewide, or in some cases national, OES-based AEWR both to more closely align with the geographic areas from the FLS and to protect against the potential for wage depression from a large influx of nonimmigrant workers that is most likely to occur at the local level. The Department “consistently has set statewide AEWRs rather than substate [ ] AEWRs because of the absence of data from which to measure wage depression at the local level” and use of surveys reporting data at a broader geographic level “immunizes the survey from the effects of any localized wage depression that might exist.”  83 As explained above and in prior rulemaking, use of a broader geographic scope to determine the AEWR is consistent with the statute and addresses the unique nature of the agricultural labor force and the migratory pattern of employment and AEWRs. Data from a broader geographic span “may serve to mobilize domestic farm labor in neighboring counties and States to enter the subject labor market over the longer term and obviate the need to rely on importation of foreign labor on an ongoing basis.”  84

Further, the use of local OES wages would introduce significant complexities in establishing the offered wage. For example, agricultural associations filing master applications that cover members and worksites across two states or other occupations engaged in itinerant work across multiple states would have to keep pace with literally dozens of different minimum wage rates and the potential adjustments to each of those during the course of a work contract period. The wage payment, recordkeeping, and compliance burden associated with that kind of AEWR methodology would be substantial and unjustifiable. Finally, as noted above, the Department also proposed a revised prevailing wage determination methodology in the NPRM, which, if adopted in a separate final rule, would likely impact the number of prevailing wages that are established for H-2A job opportunities. Employers are currently required to pay the prevailing wage if higher than the AEWR and this wage rate is specifically tailored to crop or agricultural activities and geographic areas, as it may be based on a sub-state area when appropriate.

The Department also received several comments that were beyond the scope of this rulemaking. Some comments were specifically related to reforestation employers, and were not addressed because the definition of agricultural labor or services at 20 CFR 655.103(c), and the Department's proposal to incorporate reforestation and pinestraw activities into the H-2A program, is not included in this final rule. Some commenters expressed concerns about housing obligations. Several comments related to AEWRs for job opportunities in the herding and production of livestock and suggested the Department revisit the wage rate methodology at 20 CFR 655.211(c). For example, one commenter suggested that the monthly AEWR should account for commodity pricing. Another commenter objected to the Department's annual adjustment of the monthly AEWR for range occupations governed by the procedures in §§ 655.200 through 655.235 using the ECI, noting that employers of such workers are required to provide all food, housing, tools and equipment without cost to the worker. The commenter requested the Department permit a “wage credit” for the provision of food both to mitigate the combined impact of the ECI and the “consumer price index” on such employers' costs and for consistency with the requirements placed on H-2A employers outside of range herding occupations. However, these comments are outside the scope of this rulemaking.

A state agency expressed concern that the use of the AEWR for a particular occupation at an annual average hourly gross wage was not inclusive of service agricultural positions, and suggested that BLS work closely with the sheep-shearing industry before completing the OES, with careful consideration of how an hourly gross wage would negatively impact industries paying workers piece rates. Two commenters recommended the Department expand the wage data used to calculate AEWRs to include H-2A workers' wages in areas where more than 10 percent of the agricultural workforce is composed of H-2A workers and workers in corresponding employment. These commenters stated that H-2A wage requirements, whether due to the AEWR or prevailing wage rate, drive up non-H-2A wages and skew survey results in areas where H-2A workers represent a substantial percentage of the agricultural workforce. Further, these commenters requested the FLS continue to include the wages of U.S. workers in corresponding employment in states that meet the 10 percent threshold they recommended the Department employ for the AEWR.

These comments are beyond the scope of this rulemaking and the Department's authority, as they recommend changes to the methodology of the surveys the Department proposed to use to determine hourly AEWRs. As the Department noted in the NPRM with respect to potential changes to the FLS, the Department would engage in notice-and-comment rulemaking before implementing significant changes to AEWR data collection and reporting methods. 85

Under E.O. 12866, the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB. 86 Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that (1) has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O. 87 This final rule is an economically significant regulatory action under this section and was reviewed by OIRA. This final rule is a deregulatory action under E.O. 13771 because the Department expects the unquantified cost savings of this final rule will outweigh the total annualized costs associated with rule familiarization.

Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq. ), OIRA has designated this rule as a “major rule,” as defined by 5 U.S.C. 804(2). Under the Congressional Review Act (CRA), a major rule ordinarily takes effect 60 days after the date it is published. 88 An exception to the delay in a rule's effective date exists, however, in cases where “an agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”  89 Because the full 60-day waiting period from the date this rule is published to the date it becomes effective is unnecessary and would result in the very kind of disruption to the conduct of regulated entities that the rule is meant, in some degree, to ameliorate, the Department has determined that there exists good cause under the CRA to have this rule take effect less than 60 days from the date of publication. In the Department's judgment 45 days is sufficient time, given the nature of this rule, to allow Congress and the regulated community an opportunity to review and assess the rule before it becomes operative, and is the appropriate delayed effective period in light of the significant potential for confusion and disruption among affected parties if the rule were to have a later effective date.

The Department has determined that a 60-day waiting period between publication and the effective date of this rule would result in serious disruption and uncertainty for regulated parties. The Department's regulations require that it “publish, at least once in each calendar year, on a date to be determined by the OFLC Administrator, the AEWRs for each State as a notice in the Federal Register .” 20 CFR 655.120. The Department has not yet published notice of new AEWRs for calendar year 2021, and therefore must do so before January 1st to avoid violating its own regulations. If this rule were not in effect in time to allow the Department to publish AEWRs calculated under the new methodology, the Department would have to publish AEWRs determined according to the methodology in the 2010 Final Rule.

Even assuming data from the FLS were available to calculate AEWRs under the prior methodology, doing so would likely lead to significant confusion for affected parties given that, shortly after this calendar year's notice is published, a new methodology resulting from this rule would be in effect, and the Department would again adjust the AEWRs to ensure they align with what the Department has determined is the appropriate wage rate for the H-2A program. These kinds of disruptive and nearly contemporaneous changes in the obligations the Department imposes on regulated entities engenders the precise kind of instability and unpredictability in the wages employers must pay to workers that the Department seeks to reduce through this rulemaking. Avoiding such disruption is sufficient grounds for shortening the delay between publication and when the rule becomes effective. 90

Moreover, the purpose of delaying the effective date of a regulation is, generally speaking, “to give affected parties a reasonable time to adjust their behavior before the final rule takes effect.”  91 Relatedly, the CRA “provides for a 60-day waiting period before the agency may enforce the major rule so that Congress has the opportunity to review the regulation.”  92 By delaying the effective date for a specified period after the contents of the rule have been made public, the CRA gives both Congress and the public an opportunity to assess and understand the rule before its operation requires changes in the behavior of regulated entities.

Here, the effective date of the rule will not precipitate an immediate impact on the interests or obligations of affected parties. A 60-day delay in the rule's effectiveness is therefore unnecessary. As explained above, for the overwhelming majority of job opportunities covered by the new AEWR methodology, the rule maintains, for the next two years, the existing wage rates currently in effect. This preserves the status quo for an extended period to give regulated entities sufficient opportunity to prepare for the new manner in which wage rates will be adjusted.

Similarly, if new wage rates were calculated and published under the prior methodology before the end of this calendar year, they would not become applicable until after a 14-day delay under the Department's customary practices. 93 That means that, even if the effective date of this rule were delayed by the full 60 days, wage rates calculated under the prior methodology likely would not alter the wages to which U.S. and foreign workers are entitled before the new methodology would become effective early next year, at which point the Department could adjust the wage rates accordingly. There would be no practical effect on the wages paid, even while, as noted above, the issuance of two separate sets of AEWRs, published only weeks apart, would sow the type of confusion and uncertainty that this rule is meant to prevent.

Thus, the rule taking effect does not meaningfully alter, in the short term, the status quo, meaning the full 60-day delay between publication and when the rule becomes operative is not necessary to satisfy the purposes of the CRA. 94 Because the rule gives parties time to assess and understand the rule even after it takes effect, shortening the period between the rule's publication and its effective date is consistent with the delayed effectiveness required by the CRA. 95

For these reasons, the Department has determined it has good cause to shorten the lapse under the CRA by 15 days between when the rule is published and when it takes effect. The Department has typically published AEWR notices in mid-to-late December, and, in the Department's experience, there can be as much as a week's delay between when the Department finalizes such notices and when they are actually published. In light of these considerations, and given that the new methodology must be effective this calendar year to avoid the disruption described above, the Department has determined that shortening the CRA waiting period by 15 days is necessary to the effective administration of the H-2A program. Because this rule is being published in early November, a waiting period of 45 days is, in the Department's judgment, appropriate as it leaves adequate time for the Department to establish AEWRs under the new methodology before the end of the calendar year, while not shortening the CRA waiting period beyond what is necessary to avoid the kinds of disruption that the full 60-day waiting period would entail.

E.O. 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; the regulation is tailored to impose the least burden on society, consistent with achieving the regulatory objectives; and in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. 96 E.O. 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts. 97

Section III.A.1 describes the need for the final rule, and section III.A.2 describes the process used to estimate the costs of the rule and the general inputs used, such as wages and number of affected entities. Section III.A.3 explains how the provisions of the final rule will result in quantifiable costs and transfer payments and presents the calculations the Department used to estimate them. In addition, section III.A.3 describes the unquantified transfer payments of the final rule. Section III.A.4 summarizes the estimated first-year and 10-year total and annualized costs and transfer payments of the final rule. Finally, section III.A.5 describes the regulatory alternatives that were considered during the development of the final rule.

The Department estimates that the final rule will result in costs and transfer payments. As shown in Exhibit 1, the final rule is expected to have an annualized cost of $70 thousand and a total 10-year quantifiable cost of $460 thousand at a discount rate of 7 percent. 98 The final rule is estimated to result in annual transfer payments from H-2A employees to H-2A employers of $170.68 million and total 10-year transfer payments of $1.68 billion at a discount rate of 7 percent. 99

I. Introduction II. Commission Process III. Authorization IV. Modifications V. Ordering Paragraphs I. Introduction

Pursuant to 39 U.S.C. 3642(d)(2) and 39 CFR 3040.103, the Commission provides a Notice of Update to Product Lists by listing all modifications to both the market dominant and competitive product lists between July 1, 2020 and September 30, 2020.

Pursuant to 39 CFR part 3040, the Commission maintains a Mail Classification Schedule (MCS) that includes rates, fees, and product descriptions for each market dominant and competitive product, as well as product lists that categorize Postal Service products as either market dominant or competitive. See generally 39 CFR part 3040. The product lists are published in the Code of Federal Regulations as 39 CFR Appendix A to Subpart A of Part 3040—Market Dominant Product List and Appendix B to Subpart A of Part 3040—Competitive Product List pursuant to 39 U.S.C. 3642(d)(2). See 39 U.S.C. 3642(d)(2). Both the MCS and its product lists are updated by the Commission on its website on a quarterly basis. 1 In addition, these quarterly updates to the product lists are also published in the Federal Register pursuant to 39 CFR 3040.103. See 39 CFR 3040.103.

Pursuant to 39 CFR 3040.103(d)(1), this Notice of Update to Product Lists identifies any modifications made to the market dominant or competitive product list, including product additions, removals, and transfers. 2 Pursuant to 39 CFR 3040.103(d)(2), the modifications identified in this document result from the Commission's most recent MCS update posted on the Commission's website on September 30, 2020, and supersede all previous product lists. 3

The following list of products is being added to 39 CFR Appendix A to Subpart A of Part 3040—Market Dominant Product List:

The following list of products is being added to 39 CFR Appendix B to Subpart A of Part 3040—Competitive Product List:

The following list of products is being removed from 39 CFR Appendix B to Subpart A of Part 3040—Competitive Product List:

The above-referenced changes to the market dominant product list and the competitive product list are incorporated into 39 CFR Appendix A and B to Subpart A of Part 3040—Competitive Product List.

It is ordered:

1. Part 3040 of title 39, Code of Federal Regulations, is amended as set forth below the signature of this Notice, effective 45 days after the date of publication of the Notice in the Federal Register without further action, unless adverse comments are received.

2. The Secretary shall arrange for publication of the Notice in the Federal Register .

3. Interested persons may submit adverse comments no later than 30 days from the date of the publication of this Notice in the Federal Register .

4. If adverse comments are received, the Secretary will publish a timely withdrawal of the Notice in the Federal Register .

For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:

Throughout this document, “we,” “us” and “our” refer to the EPA.

On May 22, 2020 (85 FR 31113), the EPA proposed a limited approval and limited disapproval of the Arizona Administrative Code section described in Table 1 that was submitted by the ADEQ for incorporation into the Arizona SIP.

We proposed a limited approval because we determined that this rule improves the SIP and is largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with the requirements of section 110 and 172(c)(6) of the Act:

1. The rule does not contain any numeric emission limit(s) or ongoing monitoring requirements corresponding to the levels of fugitive emissions that were modeled in the attainment plan for the Hayden 2010 SO 2 nonattainment area (“Hayden SO 2 Plan”). Therefore, the rule does not fully satisfy CAA section 172(c)(6).

2. Rule subsection (E)(4) provides an option for alternative sampling points that could undermine the enforceability of the stack emission limit by providing undue flexibility to change sampling points without undergoing a SIP revision.

3. Rule subsection (E)(6) allows for just under 10% of total facility SO 2 emissions annually to be exempt from continuous emission monitoring system (CEMS) requirements, which could compromise the enforceability of the main stack emission limit.

4. The rule lacks a method for measuring or calculating emissions from the shutdown ventilation flue, which could compromise the enforceability of the main stack emission limit.

5. The rule lacks a method for calculating hourly SO 2 emissions, so it is unclear what constitutes a “valid hour” for purposes of allowing data substitution.

Our proposed action and the associated Technical Support Document (TSD)  1 contain more information on the basis for this rulemaking and on our evaluation of the submittal.

The EPA's proposed action provided a 30-day public comment period. During this period, we received comments from Freeport-McMoRan Incorporated (FMI), ASARCO LLC (“Asarco”), and ADEQ. 2 3 4 All comments received on the proposal, including the comments from ADEQ, are included in the docket for this action. The comments from FMI pertain to Rule B1302 and are addressed below. The comments from Asarco and ADEQ pertain primarily to our proposed partial approval and partial disapproval of the Hayden SO 2 Plan, 5 and we are addressing them in our final action on the Hayden SO 2 Plan. Copies of these responses are also included in the docket for this action. 6

Comment: FMI commented on transitional provisions in R18-2-715(I), R18-2-715.01(V), and R18-2-715.02(F). The commenter stated that these provisions are intended to clarify the applicability of current SIP-approved rules for the 1971 SO 2 NAAQS in both the Hayden and Miami SO 2 nonattainment areas, until the effective date of the rules for the 2010 SO 2 NAAQS.

The commenter also noted that, when the EPA approved Arizona's attainment plan and new rules for the Miami SO 2 nonattainment area, 7 it did not act on all of the transitional provisions. Accordingly, the commenter explained that there is an inconsistency between the EPA's SIP-approved rules and ADEQ's rules ( i.e., a “SIP gap”). Therefore, the Miami copper smelter must comply with both the old SIP rules for attaining the 1971 SO 2 NAAQS and the new SIP-approved rules for attaining the revised 2010 SO 2 NAAQS. The commenter asserted that “[t]his unintended consequence therefore subjects the copper smelter to an array of duplicative regulatory requirements that no longer serve any purpose.” The commenter also noted that ADEQ has sought to remedy the SIP gap issue by submitting a request to withdraw A.A.C. R18-2-715(F)(2) and R18-2-715(H), which apply only to the copper smelter in the Miami SO 2 nonattainment area, from the Arizona SIP.

FMI therefore requested that the EPA either amend its proposed action on Rule B1302 to include a proposed approval of Arizona's revisions to A.A.C. R18-2-715 and R18-2-715.01, or to propose such approval in a separate, but concurrent action. The commenter stated that, by doing so, the EPA could “avoid having any period with a SIP gap by taking simultaneous final action on A.A.C R18-2-B1302 and R18-2-715 and R18-2-715.01” and “allow the existing SIP rules for attaining the 1971 SO 2 NAAQS to be properly subsumed by the newly approved SIP rules for attaining the revised 2010 SO 2 NAAQS.” The commenter asserted that such an approach would be consistent with the EPA's efforts to implement Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.”

Response: The commenter is correct that the EPA has not yet proposed to act on the transitional provisions in A.A.C. R18-2-715(I) and R18-2-715.01(V). As we noted in the TSD for our proposed action on Rule B1302 for the Hayden area, in order to act on the revisions to 715 and 715.01, “we need to evaluate the effect of sunsetting the existing SIP-approved requirements of those rules in conjunction with the new requirements for the Hayden smelter established in Rule B1302.”  8 In conducting this evaluation, we explained that:

In other words, approval of R18-2-715(I) and R18-2-715.01(V) at this time would result in the removal of the existing SIP-approved fugitive emission limit and associated compliance requirements for the Hayden Smelter without a new fugitive emissions limit to replace it. For the reasons described in our proposed action on Rule B1302, as well as our proposed and final actions on the Hayden SO 2 Plan and the associated responses to comments, in the absence of a fugitive emissions limit, the Plan does not provide for the attainment of the 2010 SO 2 NAAQS. 10 Therefore, an action to approve R18-2-715(I) and R18-2-715.01(V)—and thereby remove the existing fugitive emissions limit from the SIP without replacement—would interfere with attainment of the 1971 and 2010 SO 2 NAAQS. 11 Such an action would be impermissible under CAA section 110(l), which prohibits the EPA from approving any SIP revision that would interfere with applicable requirements concerning attainment and reasonable further progress or any other applicable CAA requirement. Therefore, we have not proposed to approve the transitional provisions in R18-2-715(I) and R18-2-715.01(V). 12

We acknowledge that our inability to approve these provisions has resulted in a SIP gap and that that the requirements in Rule 715 that apply to the Miami smelter are now duplicative of the requirements in SIP-approved rule A.A.C. R18-2-C1302. However, because the transitional provisions that apply to Hayden and Miami are inseverable from one another ( i.e., both are contained within a single paragraph within R18-2-715(I) and R18-2-715.01(V)), we cannot separately approve the transitional provisions for Miami without also approving the provisions for Hayden, which is prohibited by CAA section 110(l).

On March 10, 2020, the EPA received a submittal from ADEQ seeking to withdraw A.A.C. R18-2-715(F)(2) and R18-2-715(H), which apply only to the Miami SO 2 nonattainment area, from the Arizona SIP. As noted by the commenter, approval of this SIP revision would remedy the SIP gap issue for the Miami area. We intend to act on this submittal in a separate rulemaking, as it is outside of the scope of this action, which concerns only Rule B1302.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, the EPA is finalizing a limited approval of the submitted rule. This action incorporates the submitted rule into the Arizona SIP, including those provisions identified as deficient. As authorized under section 110(k)(3) and 301(a), the EPA is simultaneously finalizing a limited disapproval of the rule.

As a result, the offset sanction in CAA section 179(b)(2) will be imposed 18 months after the effective date this action, and the highway funding sanction in CAA section 179(b)(1) six months after the offset sanction is imposed. A sanction will not be imposed if the EPA determines that a subsequent SIP submission corrects the identified deficiencies before the applicable deadline.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Arizona Administrative Code section described in the amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 13 The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Additional information about these statutes and Executive orders can be found at http://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 not an Executive Order 13771 regulatory action because SIP approvals, including limited approvals, are exempted under Executive Order 12866.

This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

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 beyond those imposed by state law.

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. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.

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, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. 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 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 impose additional requirements beyond those imposed by state law.

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

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

This rule is exempt from the CRA because it is a rule of particular applicability.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 4, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

For the reasons stated in the preamble the EPA amends part 52, chapter I, title 40 of the Code of Federal Regulations as follows:

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 October 31, 2019, the EPA proposed revisions to the NESHAP for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills (40 CFR part 63, subpart MM) and the NSPS for Kraft Pulp Mills Constructed, Reconstructed, or Modified After May 23, 2013 (40 CFR part 60, subpart BBa) clarifying how to set operating limits for SDT scrubbers used at these mills and correcting cross-reference errors in both rules. The rules have similar requirements for setting operating limits for SDT scrubbers, therefore, similar revisions were proposed for both rules. See 84 FR 58356. In this action, the EPA is finalizing the proposed revisions with minor edits. The preamble includes a summary of the comments the EPA received and our responses resulting in improvements to the proposed rule. A summary of all public comments on the proposal and the EPA's specific responses to those comments is provided in the memorandum, “ Response to Comments to Proposed Rule Amending 40 CFR part 63 Subpart MM and 40 CFR part 60 Subpart BBa, ” included in the docket for this action. Redline versions of the regulatory language for 40 CFR part 63, subpart MM, and 40 CFR part 60, subpart BBa showing the final amendments resulting from this action and are also available in the docket.

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

Table 1 of this preamble lists the NESHAP, NSPS, and associated regulated industrial source categories that are the subject of this final rule. Table 1 is not intended to be exhaustive, but rather provides a guide for readers regarding the entities that this final action is likely to affect. The final amendments, once promulgated, will be directly applicable to the affected sources. Federal, state, local, and tribal government entities will not be affected by this action. As defined in the Initial List of Categories of Sources Under Section 112(c)(1) of the Clean Air Act Amendments of 1990 (see 57 FR 31576, July 16, 1992) and Documentation for Developing the Initial Source Category List, Final Report (see EPA-450/3-91-030, July 1992), the Pulp and Paper Production source category is any facility engaged in the production of pulp and/or paper. This category includes, but is not limited to, integrated mills (where pulp alone or pulp and paper or paperboard are manufactured on-site), non-integrated mills (where paper or paperboard are manufactured, but no pulp is manufactured on-site), and secondary fiber mills (where waste paper is used as the primary raw material). Examples of pulping methods include kraft, soda, sulfite, semi-chemical, and mechanical. The pulp and paper production process units include operations such as pulping, bleaching, and chemical recovery. A kraft pulp mill is defined as a facility engaged in kraft pulping and includes digester systems, brown stock washer systems, multiple-effect evaporator systems, condensate stripper systems, recovery furnaces, SDTs, and lime kilns.

In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of the action at https://www.epa.gov/stationary-sources-air-pollution/kraft-soda-sulfite-and-stand-alone-semichemical-pulp-mills-mact-ii and https://www.epa.gov/stationary-sources-air-pollution/kraft-pulp-mills-new-source-performance-standards-nsps-40-cfr-60. Following publication in the Federal Register , the EPA will post the Federal Register version of the final rule at this same website.

Under Clean Air Act (CAA) section 307(b)(1), judicial review of this 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(s) 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.

With this action, the EPA is finalizing amendments to the NESHAP for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills (referred to hereafter as “the NESHAP”) and the NSPS for Kraft Pulp Mills constructed, reconstructed, or modified after May 23, 2013 (referred to hereafter as “the NSPS”). The amendments (referred to hereafter as the “2019 proposed amendments”) were proposed on October 31, 2019 (84 FR 58356) to clarify how to set operating limits for SDT scrubbers used at these mills and correct cross-reference errors in both rules. As explained in this section, clarification was needed to address parameter monitoring issues that arose during implementation of the 2017 amendments to the NESHAP (referred to hereafter as the “2017 NESHAP amendments”) as a result of the Agency's residual risk and technology review. See 82 FR 47328, October 11, 2017.

The 2017 NESHAP amendments added fan amperage  1 to 40 CFR 63.864(e)(10)(iii) as an alternative to monitoring pressure drop for SDT dynamic scrubbers that operate at ambient pressure and low-energy entrainment scrubbers where the fan speed does not vary. Fan amperage was added as an alternative monitoring parameter based on the EPA's review of alternative monitoring requests for these types of SDT scrubbers available in the EPA's Applicability Determination Index (ADI) (81 FR 97074, December 30, 2016). In these previously approved alternative monitoring requests, the EPA acknowledged that pressure drop is not the best indicator of particulate matter (PM)/hazardous air pollutant (HAP) control device performance when the SDT scrubber is a low-energy entrainment scrubber or a dynamic scrubber that operates near atmospheric pressure. Low-energy entrainment scrubbers use the rotation of the fan blade to shatter the scrubbing liquid into fine droplets, while at the same time accelerating the particles into the airstream. The PM removal efficiency of these scrubbers is a function of the number of liquid droplets produced (to create a large contacting surface area) and the velocity of the PM imparted by the fan blade, which in turn, are functions of the amount of scrubbing liquid introduced and the tip speed of the fan blade. Therefore, the most important parameters to continuously monitor are the scrubbing liquid flow rate and the fan rotational speed (as indicated by the amperage of the fan motor or revolutions per minute (RPM)).

In addition to adding fan amperage as a monitoring parameter, the 2017 NESHAP amendments also specified a method in 40 CFR 63.864(j)(5)(i)(A) for setting the fan motor amperage operating limit, requiring that the minimum fan amperage operating limit be set as the lowest of the 1-hour average fan amperage values associated with each run demonstrating compliance with the applicable emission limit. The intent of establishing the operating limit as the lowest 1-hour average fan amperage was to demonstrate that the scrubber was operating as intended and removing HAP accordingly, because fan amperage values can be correlated with fan speed. This seemed reasonable during the development of the 2017 NESHAP amendments because the fans on these units are constant speed fans and changes in the load to the fan motor ( e.g., changes in gas density/pressure or fan belt issues) result in changes in the amperage needed to maintain the constant speed. For example, a scrubber operating without any scrubbing liquid or exhaust gas would pull a certain amount of amperage on the fan motor to maintain a constant speed. When the exhaust gas and scrubbing liquid are added, the fan motor amperage will increase to maintain that speed. Based on this concept, the basis for the fan motor amperage operating limit in the 2017 NESHAP amendments was that a drop in fan motor amperage below a certain point showed that the motor would no longer turn the fan properly (because, for example, the belt that connects the motor to the fan was slipping or broken), which in turn would mean the scrubber was not operating as well as it was during the emissions performance test.

As facilities began to plan their repeat performance test required by the 2017 NESHAP amendments and determine the appropriate operating parameters, they discovered that the method dictated to set the fan motor amperage did not accurately represent proper scrubber performance and submitted alternative monitoring requests. The alternative monitoring requests that EPA received explained that setting the fan amperage operating limit as outlined in the 2017 NESHAP amendments at 40 CFR 63.864(j)(5)(i)(A) could result in a minimum limit that does not correlate with scrubber emissions-reduction performance and cannot be achieved at all times, leading to deviations of the amperage operating parameter even when the fan is turning as designed and the scrubber is operating properly to achieve the required HAP reduction. More details on these alternative monitoring requests were provided in the memorandum titled, Smelt Dissolving Tank Scrubber Operating Parameter Review, in the docket for the 2019 proposed amendments (EPA Docket Item No. EPA-HQ-OAR-2014-0741-0277).

As explained in the preamble to the 2019 proposed amendments, after reviewing how the SDT scrubbers in question operate, the EPA agrees that use of the average fan motor amperage measured during the performance test to establish the fan amperage limit as dictated in 40 CFR 63.864(j)(5)(i)(A) of the 2017 NESHAP amendments can be problematic because it does not necessarily correlate with proper operation of the scrubber. The EPA's intent with adding the fan motor amperage alternative as part of the 2017 NESHAP amendments was to add regulatory flexibility while ensuring proper scrubber operation, not to arbitrarily set an operating limit that may not be met, even while the SDT scrubber is operating properly. The requirement for determining the fan motor amperage during the performance test to set the minimum limit was included in the 2017 NESHAP amendments (40 CFR part 63, subpart MM) which apply to new and existing sources ( see 82 FR 47328, October 11, 2017) and in the NSPS promulgated in 2014 (40 CFR part 60, subpart BBa) which applies to new sources only ( see 79 FR 18952, April 4, 2014). The issue was not identified in public comments on either rule but was discovered as existing sources began to implement the 2017 NESHAP amendments.

Upon further review of the EPA's responses to historical alternative monitoring requests included in the ADI, recent requests for alternative monitoring, and other available information, we recognize that the requirement to monitor fan amperage directly and establish a minimum fan amperage limit based on the average amperage measured during the performance test may result in deviations even when the scrubber is properly operating. Some facilities were approved by the EPA to use indicators of fan operation closely related to fan amperage ( e.g., RPM) and engineering design considerations when setting the site-specific fan amperage limit indicative of proper scrubber operation. For more details, see the memorandum titled Smelt Dissolving Tank Scrubber Operating Parameter Review, in the docket for the 2019 proposed amendments (EPA Docket Item No. EPA-HQ-OAR-2014-0741-0277).

To continue with our original intent to measure scrubber performance with an alternative method in these rules, the EPA proposed this rule to modify the language at 40 CFR 63.864(e)(10)(iii) and (j)(5)(i) to clarify how wet scrubber parameter limits are to be established and that fan amperage or RPM can be used to demonstrate compliance for the SDT scrubbers in question. Specifically, the EPA proposed to replace 40 CFR 63.864(j)(5)(i)(A) with a requirement to set the minimum scrubbing liquid flow rate operating limit as the lowest of the 1-hour average scrubbing liquid flow rate values associated with each test run demonstrating compliance with the applicable emission limit. This requirement was inadvertently left out of the 2017 NESHAP amendments but was required by other sections of the rule. Additionally, we proposed to add a new subsection, 40 CFR 63.864(j)(5)(i)(B), to clarify how wet scrubber fan amperage operating limits should be established.

The proposed text in 40 CFR 63.864(j)(5)(i)(B) included the same requirement that was previously in the 40 CFR 63.864(j)(5)(i) introductory paragraph, which stated that the scrubber pressure drop operating limit must be set as the lowest of the 1-hour average pressure drop values associated with each test run demonstrating compliance with the applicable emission limit, but also added that for dynamic or low-energy entrainment scrubbers, operating limits could be set using one of three methods specified in paragraphs 40 CFR 63.864(j)(5)(i)(B)( 1 ) through ( 3 ).

• In 40 CFR 63.864(j)(5)(i)(B)( 1 ), the EPA proposed to clarify that, for SDT dynamic wet scrubbers operating at ambient pressure or for low-energy entrainment scrubbers where fan speed does not vary, the minimum fan amperage operating limit must be set as the midpoint between the lowest of the 1-hour average fan amperage values associated with each test run demonstrating compliance with the applicable emission limit and the no-load amperage value. Additionally, the proposed regulatory text specified that the no-load amperage value must be determined using manufacturers specifications or by performing a no-load test of the fan motor, and that it must be verified that the scrubber fan is operating within 5 percent of the design RPM during the emissions performance test. A definition of “no-load fan amperage” was proposed in 40 CFR 63.861.

• In 40 CFR 63.864(j)(5)(i)(B)( 2 ), the EPA proposed to allow use of percent full load amperage (PFLA) to demonstrate compliance and require that the minimum PFLA to the fan motor be set as the percent of full load amperage under no-load, plus 10 percent. Because the no-load value represents the amperage pulled by the motor without a fan belt ( i.e., the fan is not engaged), the additional 10 percent was proposed to ensure that the belt has not broken, and the fan is engaged during operation. This new subsection also proposed requiring verification that the scrubber fan is operating within 5 percent of the design RPM during the emissions performance test.

• In 40 CFR 63.864(j)(5)(i)(B)( 3 ), the EPA proposed to allow use of RPM to demonstrate compliance and a requirement that the minimum RPM be set at 95 percent of the design RPM. The EPA also proposed a conforming amendment in 40 CFR 63.867(c)(3)(iii)(C)( 1 ) to incorporate this language.

Commenters on the 2019 proposed amendments supported the proposed methods for setting minimum operating limits in 40 CFR 63.864(j)(5)(i)(B)( 1 ) and ( 2 ), except for the requirement to verify that the scrubber fan is operating within 5 percent of the design RPM during the emissions performance test. Commenters strongly opposed the requirement to verify the design RPM for reasons detailed in the response-to-comments memorandum, Response to Comments to Proposed Rule Amending 40 CFR part 63 Subpart MM and 40 CFR part 60 Subpart BBa, in the docket for this action. In brief, the commenters explained that facilities monitoring fan amperage may not have instrumentation in place to monitor fan RPM and may not have the design RPM value available; that there are safety issues associated with attempting to obtain a one-time measurement of RPM; and that operating within 5 percent of the design RPM during the emissions performance test is irrelevant if the performance test shows compliance with the PM emission limit and fan amperage (which is proportional to RPM) is monitored. In response to these comments, the requirement to verify that the scrubber fan is operating within 5 percent of the design RPM during the emissions performance test was removed from the final rule. All other requirements in 40 CFR 63.864(j)(5)(i)(B)( 1 ) and ( 2 ) were finalized as proposed.

One commenter requested that the EPA modify the proposed definition of “no load fan amperage” by adding the following language to the end of the definition, “or the coupling to a direct drive fan was disconnected.” The phrase was added as requested for the final rule.

Regarding the proposed 40 CFR 63.864(j)(5)(i)(B)( 2 ), a commenter requested clarification on how the minimum PFLA operating limit should be calculated for an SDT scrubber fan and suggested that the EPA present an example PLFA calculation in the preamble to the final rule. In response to this request, we clarified in the final rule that the PFLA is calculated by dividing the no-load amperage value by the highest of the 1-hour average fan amperage values associated with each test run demonstrating compliance with the applicable emission limit in 40 CFR 63.862 multiplied by 100 and then adding 10 percent (emphasis added). We are including the following example of how to calculate the minimum PFLA. However, we are not including this equation in the final rule to avoid the need to renumber several subsequent rule equations.

• The no-load fan amperage represents the amperage pulled by the fan motor when the fan is operating under no-load determined using manufacturers specifications or by performing a no-load test of the fan motor.

• The highest 1-hour average of fan amperages is the highest of the 1-hour average fan amperage values associated with each test run demonstrating compliance with the applicable emission limit in 40 CFR 63.862.

For example, assume Facility “A” performs a no-load test of their SDT scrubber's fan motor by running the motor without the fan belt attached. The measured fan amperage during the no-load test is 70 amperage. During a performance test of the SDT scrubber, the highest 1-hour average of the fan amperage values associated with each of the three test runs demonstrating compliance with the applicable emission limit is 179 amperage. Using these two amperage values, Facility A would calculate the PFLA alternative operating parameter limit for their SDT scrubber fan as follows:

One commenter addressed the proposed 40 CFR 63.864(j)(5)(i)(B)( 3 ), which would require the minimum fan RPM limit to be set as 5 percent lower than the design RPM. The commenter stated that the EPA should revise this requirement to be 5 percent lower than the lowest 1-hour average RPM measured during each test run demonstrating compliance with the applicable emission limit. The commenter explained that a facility could have modified the fan motor such that it is no longer operating at the design RPM, or it could have no documentation of the design RPM, but it is the performance of the scrubber during the stack test that matters. In response to this comment, 40 CFR 63.864(j)(5)(i)(B)( 3 ) was finalized by revising it to require that the minimum RPM be set as 5 percent lower than the lowest 1-hour average RPM associated with each test run demonstrating compliance with the applicable emission limit, as requested. The EPA agrees that an operating limit based on the lowest 1-hour average RPM measured during each test run (for facilities that measure RPM) is adequate to demonstrate ongoing operation of the SDT scrubber. The 5-percent margin suggested by the commenter will allow for variability. The conforming revisions to 40 CFR 63.867(c)(3)(iii)(C)(1) that acknowledge RPM as an operating parameter for SDT dynamic or low-energy scrubbers were also finalized as proposed.

In addition to clarifying how to set SDT fan amperage operating limits, the EPA also proposed to correct the following cross-reference errors in the promulgated 40 CFR part 63, subpart MM NESHAP:

• An incorrect paragraph reference in the definition of “modification” in 40 CFR 63.861;

• An incorrect paragraph reference in 40 CFR 63.864(e)(10)(iii), referring to 40 CFR 63.864(e)(3)(i) instead of 40 CFR 63.864(e)(10)(i) as intended;

• Omission of reference to wet scrubber liquid flow rate in 40 CFR 63.864(j)(5) which specifies how to establish operating limits; and

• Incorrect paragraph references in 40 CFR 63.864(j)(1), (3), and (5) which cross-referenced requirements that were proposed (81 FR 97046, December 30, 2016) but not finalized for establishing site-specific electrostatic precipitator (ESP) operating limits for secondary voltage and secondary current (or total secondary power) for each ESP collection field. Instead of finalizing site-specific ESP operating limits, the EPA finalized a requirement to maintain proper operation of the ESP's automatic voltage control (82 FR 47328, October 11, 2017), but inadvertently kept the cross-references to the proposed ESP operating limits in the final rule.

The EPA did not receive any comments on the first three corrections noted above and is finalizing these amendments as proposed.

A comment was received regarding the EPA's proposal to eliminate the reference to 40 CFR 63.864(e)(1) in 40 CFR 63.864(j)(1), (3), and (5) which pertain to determination of operating limits. The commenter stated that the EPA should also eliminate reference to 40 CFR 63.864(e)(2) in these sections because 40 CFR 63.864(e)(2) references 40 CFR 63.864(e)(1). The EPA agrees with the commenter's suggestion and eliminated the cross-reference to 40 CFR 63.864(e)(2) in 40 CFR 63.864(j)(1), (3), and (5) for the final amendments. 40 CFR 63.864(e)(2) specifies parameter monitoring requirements for kraft or soda recovery furnaces or lime kilns using an ESP followed by a wet scrubber. 40 CFR 63.864(e)(2) refers to 40 CFR 63.864(e)(1) to require facilities to maintain proper ESP automatic voltage control and refers to 40 CFR 63.864(e)(10) to require facilities to monitor wet scrubber parameters. While 40 CFR 63.864(j)(1), (3), and (5) no longer reference 40 CFR 63.864(e)(1) and (2), these sections retain the reference to 40 CFR 63.864(e)(10) with respect to wet scrubber operating limits.

The EPA proposed similar amendments to the fan amperage requirements in the NSPS as discussed in section II.A of this preamble for consistency between the NESHAP and NSPS that apply to the same scrubbers. Specifically, NSPS amendments were proposed for 40 CFR 60.284a(b)(2)(iii), (c)(3)(i), (c)(4), and (d)(4)(ii) and 40 CFR 60.287a(b)(4)(i) to add RPM language. As proposed, 40 CFR 60.284a(c)(4) referred to the procedures for establishing the SDT fan amperage operating limit in the NESHAP (40 CFR 63.864(j)(5)(i)(B)). A commenter requested that 40 CFR 60.284a(c)(4) specify how scrubber fan amperage operating limits should be set rather than referencing 40 CFR 63.864(j)(5)(i)(B) of the NESHAP (as proposed). The commenter noted that incorporation of the NESHAP reference is inappropriate because it requires the operating parameter limit to be set based on a performance test that demonstrates compliance with the applicable emission limit in 40 CFR 63.862, not 40 CFR 60.282a. In response to this comment, the EPA removed the reference to 40 CFR 63.864(j)(5)(i)(B) in 40 CFR 60.284a(c)(4) and replaced it with specific language describing how to set scrubber fan amperage operating parameter limits. The procedures added to the NSPS in 40 CFR 60.284a(c)(4) are consistent with the procedures specified in the NESHAP. The EPA also added the definition of “no-load fan amperage” to 40 CFR 60.281a because the definition is referenced in the language added in 40 CFR 63.864(j)(5)(i)(B).

The EPA proposed to correct a cross-reference error in the promulgated Kraft Pulp Mills NSPS (40 CFR part 60, subpart BBa). Specifically, the EPA proposed to amend incorrect paragraph references in 40 CFR 60.285a(b)(1) and 60.285a(d)(1) intended to cross-reference the rule's oxygen correction equation. No comments were received on these changes so the EPA is finalizing these amendments as proposed.

The sources affected by this action are chemical pulp mills that use SDTs equipped with low-energy entrainment scrubbers or dynamic scrubbers that operate near atmospheric pressure. We estimate that there are 54 facilities that utilize these types of scrubbers.

There are no air quality impacts associated with the final amendments.

No cost impacts are estimated to be associated with this action because the action serves only to provide regulatory clarity. This action reduces the likelihood that facilities will choose to submit site-specific alternative monitoring requests but does not change the scope of any regulatory requirements.

There are no economic impacts associated with the final amendments.

Because these final amendments are not considered economically significant, as defined by Executive Order 12866, and because we did not estimate any emission reductions associated with the action, we did not estimate any benefits from reducing emissions.

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

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 regulation (40 CFR part 63, subpart MM) and has assigned OMB control number 2060-0377. This action does not change the information collection requirements.

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. This action does not create any new requirements or burdens, and no costs are associated with this final action.

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. The EPA does not know of any pulp mills owned or operated by Indian tribal governments or located within tribal lands. 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 rulemaking 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). This action does not affect the level of protection provided to human health or the environment.

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 U.S.C. 804(2).

For the reasons set forth in the preamble, the Environmental Protection Agency amends 40 CFR parts 60 and 63 as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr50/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2020-0112 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 number EPA-HQ-OPP-2020-0112, by one of the following methods:

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

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

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

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

In the Federal Register of May 8, 2020 (85 FR 27346) (FRL-10008-38), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (IN-11370) by SciReg, Inc (12733 Director's Loop, Woodbridge, VA 22192) on behalf of Valagro S.p.A. (Zona Industriale, Via Cagliari, 1, 66041 Atessa (CH), Italy). The petition requested that 40 CFR be amended by establishing an exemption from the requirement of a tolerance for residues of vitamin B1 (thiamine mononitrate, CAS Reg. No. 532-43-4) when used as an inert ingredient (enzyme cofactor) in pesticide products applied to/on all growing crops pre- harvest under 40 CFR 180.920, limited to 0.1% (by weight) in pesticide formulations. That document referenced a summary of the petition prepared by SciReg, Inc on behalf of Valagro, S.p.A, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

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. Under FFDCA section 408(c)(2)(B), EPA must take into account, among other considerations, the factors in subparagraphs (C) and (D) of subsection (b)(2). Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

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 thiamine mononitrate including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with thiamine mononitrate follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by thiamine mononitrate as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document Thiamine Mononitrate, Vitamin B1—Human Health Risk and Ecological Effects Assessment of Request to Amend an Existing Exemption from the Requirements of a Pesticide Tolerance Under 40 CFR 180.920 for Food Use Inert Ingredient in docket ID number EPA-HQ-OPP-2020-0112.

The acute oral toxicity is low in mice treated with thiamine mononitrate. It is mildly to irritating to the rabbit eye and not irritating to rabbit skin. Thiamine mononitrate is a sensitizer.

No toxicity is observed in repeated dose studies conducted with thiamine mononitrate administered via diet and gavage to rats and mice. Fetal susceptibility is not observed in the reproduction and developmental toxicity studies in rats. No adverse effects are observed in parents, offspring or reproduction in rats treated with thiamine mononitrate at doses up to 100 mg/kg/day. There is no concern for reproduction or developmental toxicity since metabolism studies indicate that thiamine mononitrate absorption declines for an intake higher than 5 mg/day and absorbed thiamine mononitrate is actively excreted in the urine.

Mutagenicity is not expected with thiamine mononitrate based on available mutagenicity studies. Thiamine mononitrate is not expected to be carcinogenic based on studies in mice.

Neurotoxicity and immunotoxicity studies are not available for review. However, no evidence of neurotoxicity or immunotoxicity is observed in any of the available studies on thiamine mononitrate.

The available toxicity studies indicate that thiamine mononitrate has very low oral toxicity. An acute oral toxicity study shows the lethal dose (LD) 50 above 5,000 mg/kg in mice. Repeated dose studies show no toxicity at doses up to 1,500 mg/kg/day. Since no toxicity is observed, an endpoint of concern for risk assessment purposes was not identified. EPA assessed dietary and other non-occupational exposures qualitatively.

1. Dietary exposure from drinking water, food and feed uses. In evaluating dietary exposure to thiamine mononitrate, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from thiamine mononitrate in food as follows:

Dietary exposure (food and drinking water) to thiamine mononitrate may occur following ingestion of foods with residues from their use in accordance with this exemption. Dietary exposure may also occur from its presence naturally in food, its use as a dietary supplement, and as a direct food additive. However, a quantitative dietary exposure assessment was not conducted since a toxicological endpoint for risk assessment was not identified.

2. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

Thiamine mononitrate may be used in pesticide products and non-pesticide products that may be used in and around the home. Thiamine mononitrate may also be found in cosmetics and personal care products. Based on the discussion above regarding the toxicity of the thiamine mononitrate, a quantitative residential exposure assessment for thiamine mononitrate was not conducted.

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

Based on the available data, thiamine mononitrate does not have a toxic mechanism; therefore, section 408(b)(2)(D)(v) does not apply.

Based on the lack of threshold effects, EPA has not identified any toxicological endpoints of concern and is conducting a qualitative assessment of thiamine mononitrate. The qualitative assessment does not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children. Based on an assessment of thiamine mononitrate, EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children.

Because no toxicological endpoints of concern were identified, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to thiamine mononitrate residues.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of thiamine mononitrate in or on any food commodities. EPA is establishing limitations on the amount of thiamine mononitrate that may be used in pesticide formulations applied pre-harvest. These limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for food use that exceeds 0.1% by weight of thiamine mononitrate in the final pesticide formulation.

Therefore, an exemption from the requirement of a tolerance is established for residues of thiamine mononitrate (CAS Reg. No. 532-43-4) when used as inert ingredients (enzyme cofactor) in pesticide products applied to/on all growing crops pre-harvest under 40 CFR 180.920, limited to 0.1% (by weight) in pesticide formulations.

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

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

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

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

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2020-0117 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 number EPA-HQ-OPP-2020-0117, by one of the following methods:

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

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

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

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

In the Federal Register of May 8, 2020 (85 FR 27346) (FRL-10008-38), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (IN-11371) by SciReg, Inc (12733 Director's Loop, Woodbridge, VA 22192) on behalf of Valagro S.p.A. (Zona Industriale, Via Cagliari, 1, 66041 Atessa (CH), Italy). The petition requested that 40 CFR be amended by establishing an exemption from the requirement of a tolerance for residues of vitamin B5 (CAS Reg. No. 137-08-6) when used as an inert ingredient (enzyme cofactor) in pesticide products applied to/on all growing crops pre-harvest under 40 CFR 180.920, limited to 0.1% (by weight) in pesticide formulations. That document referenced a summary of the petition prepared by SciReg, Inc on behalf of Valagro, S.p.A, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

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. Under FFDCA section 408(c)(2)(B), EPA must take into account, among other considerations, the factors in subparagraphs (C) and (D) of subsection (b)(2). Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

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 certain calcium pantothenate including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with calcium pantothenate follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by calcium pantothenate as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document, Calcium Pantothenate, Vitamin B5—Human Health Risk and Ecological Effects Assessment of Request to Amend an Existing Exemption from the Requirements of a Pesticide Tolerance Under 40 CFR 180.920 for Food Use Inert Ingredient, in docket ID number EPA-HQ-OPP-2020-0117.

Vitamin B5 is also known as calcium pantothenate. EPA is using the term “calcium pantothenate” in this document and the tolerance exemption to refer to vitamin B5 to be consistent with standard agency nomenclature for the identification of this substance.

The acute oral and inhalation toxicities are low in rats and mice treated with calcium pantothenate. It is not irritating to the rabbit eye or skin.

No toxicity is observed in repeated dose studies conducted with calcium pantothenate administered to rats. Fetal susceptibility is not observed in the reproduction and developmental toxicity studies in rats. No adverse effects are observed in parents, offspring or reproduction in rats treated with calcium pantothenate at doses up to 2,000 mg/kg/day.

Mutagenicity is not expected with calcium pantothenate based on available mutagenicity studies. Calcium pantothenate is not expected to be carcinogenic based the lack of toxicity.

Neurotoxicity and immunotoxicity studies are not available for review. However, no evidence of neurotoxicity or immunotoxicity is observed in any of the available studies on calcium pantothenate.

The available toxicity studies indicate that calcium pantothenate is not acutely toxic. The acute oral lethal dose (LD) 50 for mice and rats is > 10,000 milligrams/kilograms (mg/kg). No effects are observed in repeated dose studies at doses up to 2,000 mg/kg/day of calcium pantothenate in rats. Since no signs of toxicity are observed, an endpoint of concern for risk assessment purposes was not identified. EPA assessed dietary and other non-occupational exposures qualitatively.

1. Dietary exposure from drinking water, food and feed uses. In evaluating dietary exposure to calcium pantothenate, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from calcium pantothenate in food as follows:

Dietary exposure (food and drinking water) to calcium pantothenate may occur following ingestion of foods with residues from their use in accordance with this exemption. Dietary exposure may also occur from its use as a dietary supplement and as a direct food additive under the Food and Drug Administration Code of Federal Regulations Title 21. However, a quantitative dietary exposure assessment was not conducted since a toxicological endpoint for risk assessment was not identified.

2. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

Calcium pantothenate may be used in pesticide products and non-pesticide products that may be used in and around the home. Calcium pantothenate may also be found in cosmetics and personal care products. Based on the discussion above regarding the toxicity of the calcium pantothenate, a quantitative residential exposure assessment for calcium pantothenate was not conducted.

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

Based on the available data, calcium pantothenate does not have a toxic mechanism; therefore, section 408(b)(2)(D)(v) does not apply.

Based on the lack of threshold effects, EPA has not identified any toxicological endpoints of concern and is conducting a qualitative assessment of calcium pantothenate. The qualitative assessment does not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children. Based on an assessment of calcium pantothenate, EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children.

Because no toxicological endpoints of concern were identified, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to calcium pantothenate residues.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of calcium pantothenate in or on any food commodities. EPA is establishing limitations on the amount of calcium pantothenate that may be used in pesticide formulations applied pre-harvest. These limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for food use that exceeds 0.1% by weight of calcium pantothenate in the final pesticide formulation.

Therefore, an exemption from the requirement of a tolerance is established for residues of calcium pantothenate (CAS Reg. No. 137-08-6) when used as inert ingredients (enzyme cofactor) in pesticide products applied to/on all growing crops pre-harvest under 40 CFR 180.920, limited to 0.1% (by weight) in pesticide formulations.

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

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

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

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

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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

In FR Doc. 2020-18795 appearing on page 53234 in the Federal Register on Friday, August 28, 2020, the following corrections are made:

1. On page 53234, in the first column, the Compliance date is corrected to read:

Compliance date: Compliance will not be required for §  9.10(i)(2)(ii)(J)( 4 ), (i)(4)(iv) and (v), (j)(4), and (k) until the Commission publishes a document in the Federal Register announcing the compliance date.

2. On page 53245, in the first column, paragraph 74 is corrected to read:

74. Paperwork Reduction Act Analysis. The requirements in sections 9.10(i)(2)(ii)(J)( 4 ), 9.10(i)(4)(iv), 9.10(i)(4)(v), 9.10(j)(4) and 9.10(k), constitute modified information collections. They will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995 (PRA). OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding. This document will be submitted to OMB for review under section 3507(d) of the PRA. In addition, we note that, pursuant to the Small Business Paperwork Relief Act of 2002, we previously sought, but did not receive, specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. The Commission does not believe that the new or modified information collection requirements in sections 9.10(i)(2)(ii)(J)( 4 ), 9.10(i)(4)(iv), 9.10(i)(4)(v), 9.10(j)(4) and 9.10(k), will be unduly burdensome on small businesses. Applying these new or modified information collections will promote 911 service and emergency response to the benefit of all sizes of governmental jurisdictions, businesses, equipment manufacturers, and business associations by providing greater confidence in 911 location accuracy and greater consistency between the Commission's horizontal and vertical location rules. We describe impacts that might affect small businesses, a category that includes most businesses with fewer than 25 employees, in the FRFA in Appendix B of the Sixth Report and Order and Order on Reconsideration.

3. On page 53245, in the second column, paragraph 77 is corrected to read:

77. It is further ordered that the amendments of the Commission's rules as set forth in Appendix A are adopted, effective thirty days from the date of publication in the Federal Register . Sections 9.10(i)(2)(ii)(J)( 4 ), 9.10(i)(4)(iv), 9.10(i)(4)(v), 9.10(j)(4) and 9.10(k) contain new or modified information collection requirements that require OMB review under the PRA. The Commission directs the Public Safety and Homeland Security Bureau (Bureau) to announce the effective date of those information collections in a document published in the Federal Register after the Commission receives OMB approval, and directs the Bureau to cause section 9.10(s) to be revised accordingly.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 9 as follows: