In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) U.S. Coast Guard (USCG) proposes to modify and reissue a current DHS system of records titled, “DHS/USCG-061 Maritime Awareness Global Network (MAGNet) System of Records.” The modified system of records is to be reissued and renamed as “DHS/USCG Maritime Analytic Support System (MASS) System of Records.”

The Coast Guard's enterprise modernization to the MAGNet framework prompted the need to modify and reissue the SORN. The updated framework enables the U.S. Coast Guard to: (1) Improve the system's security protocols by enhancing system access authentication processes; (2) Enhance data management services by hosting MASS in a cloud environment, allowing USCG to apply new technologies to better tag data for retention, access, and use purposes; (3) Refresh user interfaces making MASS more user friendly and intuitive to access and use; (4) Ingest new data sources on an as-needed basis in the future more easily; (5) Update routine uses for MASS by either adding or removing previous routine uses, as explained in the revised system of records notice reissued concurrently with this proposed rule.

These updates better accommodate the accomplishment of the eleven U.S. Coast Guard statutory missions. Those missions require the collection of a wide range of information, including personally identifiable information (PII). The collection and use of PII is required to effectively conduct the responsibilities associated with these mission areas and promote Maritime Domain Awareness (MDA).

MASS collects information from numerous data sources in order for the Coast Guard to successfully execute its eleven statutory missions. MASS provides storage and access to maritime information and provides basic search capabilities either by a person or by vessel. Person searches may be retrieved by passport or merchant mariner license number. Vessel searches may be retrieved by vessel name, hull identification, or registration number. MASS enhances current capabilities by adding data sources, media storage, access capabilities, and infrastructure to provide rapid, near real-time data to the USCG and other authorized organizations. MASS users leverage the ability to share, correlate, and provide classified and unclassified data across agency lines to provide MDA critical to homeland and national security and safety.

MASS receives data from several systems both within and outside of DHS through electronic transfers of information. These electronic transfers include the use of Secure File Transfer Protocol (SFTP), system-to-system communications via specially written internet Protocol socket-based data streaming, database-to-database replication of data, electronic transfer of database transactional backup files, and delivery of formatted data via electronic mail.

Consistent with DHS's information sharing mission, information stored in MASS may be shared with other DHS Components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions. In addition, DHS/USCG may share information with appropriate federal, state, local, tribal, territorial, foreign, or international government agencies consistent with the routine uses set forth in this system of records notice.

DHS is issuing this Notice of Proposed Rulemaking to exempt this system of records from certain provisions of the Privacy Act.

The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which federal government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Similarly, the Judicial Redress Act (JRA) provides a statutory right to covered persons to make requests for access and amendment to covered records, as defined by the JRA, along with judicial review for denials of such requests. In addition, the JRA prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act.

The Privacy Act allows government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed.

DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/USCG-061 Maritime Analytic Support System (MASS) System of Records. Some information in DHS/USCG-061 Maritime Analytic Support System (MASS) System of Records relates to official DHS national security, law enforcement, and intelligence activities. These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes; to avoid disclosure of activity techniques; to protect the identities and physical safety of confidential informants and law enforcement personnel; to ensure DHS's ability to obtain information from third parties and other sources; to protect the privacy of third parties; and to safeguard classified information. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.

In appropriate circumstances, when compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived on a case-by-case basis.

A notice of system of records for DHS/USCG-061 Maritime Analytic Support System (MASS) System of Records is also publishing elsewhere in this issue of the Federal Register .

For the reasons stated in the preamble, DHS proposes to amend chapter I of title 6, Code of Federal Regulations, as follows:

Comments Invited

The FAA invites interested people to take part in the development of these airworthiness criteria by sending written comments, data, or views. The most helpful comments reference a specific portion of the airworthiness criteria, explain the reason for any recommended change, and include supporting data. Comments on operational, pilot certification, and maintenance requirements would address issues that are beyond the scope of this document.

Except for Confidential Business Information as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will file in the docket all comments received, as well as a report summarizing each substantive public contact with FAA personnel concerning these proposed airworthiness criteria. Before acting on this proposal, the FAA will consider all comments received on or before the closing date for comments. The FAA will consider comments filed late if it is possible to do so without incurring delay. The FAA may change these airworthiness criteria based on received comments.

Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this notice, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this notice. Submissions containing CBI should be sent to the individual listed under FOR FURTHER INFORMATION CONTACT . Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this notice.

Percepto Robotics, Ltd., (Percepto) applied to the FAA on August 1, 2019, for a special class type certificate under Title 14, Code of Federal Regulations (14 CFR) 21.17(b) for the Model Percepto System 2.4 UAS.

The Model Percepto System 2.4 consists of an unmanned aircraft (UA) and its associated elements that include communication links and the components that control the UA. The Model Percepto System 2.4 UA has a maximum gross takeoff weight of 25 pounds. It is approximately 49 inches in width, 49 inches in length, and 12 inches in height. The Model Percepto System 2.4 UA is battery powered using electric motors for vertical takeoff, landing, and forward flight. The UAS operations would rely on high levels of automation and may include multiple UA operated by a single pilot, up to a ratio of 20 UA to 1 pilot. Percepto anticipates operators will use the Model Percepto System 2.4 for inspection or surveying of critical infrastructure. The proposed concept of operations for the Model Percepto System 2.4 identifies a maximum operating altitude of 400 feet above ground level, a maximum cruise speed of 24 knots, operations beyond visual line of sight of the pilot, and operations over human beings. Percepto has not requested type certification for flight into known icing for the Model Percepto System 2.4.

The FAA establishes airworthiness criteria to ensure the safe operation of aircraft in accordance with 49 U.S.C. 44701(a) and 44704. UAS are type certificated by the FAA as special class aircraft for which airworthiness standards have not been established by regulation. Under the provisions of 14 CFR 21.17(b), the airworthiness standards for special class aircraft are those the FAA finds to be appropriate and applicable to the specific type design.

The applicant has proposed a design with constraints upon its operations and an unusual design characteristic: The pilot is remotely located. The FAA developed existing airworthiness standards to establish an appropriate level of safety for each product and its intended use. The FAA's existing airworthiness standards did not envision aircraft with no pilot in the cockpit and the technologies associated with that capability.

The FAA has reviewed the proposed design and assessed the potential risk to the National Airspace System. The FAA considered the size of the proposed aircraft, its maximum airspeed and altitude, and operational limitations to address the number of unmanned aircraft per operator and to address operations in which the aircraft would operate beyond the visual line of sight of the pilot. These factors allowed the FAA to assess the potential risk the aircraft could pose to other aircraft and to human beings on the ground. Using these parameters, the FAA developed airworthiness criteria to address those potential risks to ensure the aircraft remains reliable, controllable, safe, and airworthy.

The proposed criteria focus on mitigating hazards by establishing safety outcomes that must be achieved, rather than by establishing prescriptive requirements that must be met. This is in contrast to many current airworthiness standards, used to certificate traditional aircraft systems, which prescribe specific indicators and instruments for a pilot in a cockpit that would be inappropriate for UAS. The FAA finds that the proposed criteria are appropriate and applicable for the UAS design, based on the intended operational concepts for the UAS as identified by the applicant.

The FAA selected the particular airworthiness criteria proposed by this notice for the following reasons:

General: In order to determine appropriate and applicable airworthiness standards for UAS as a special class of aircraft, the FAA determined that the applicant must provide information describing the characteristics and capabilities of the UAS and how it will be used.

UAS.001 Concept of Operations: To assist the FAA in identifying and analyzing the risks and impacts associated with integrating the proposed UAS design into the National Airspace System, the applicant would be required to submit a Concept of Operations (CONOPS). The proposed criteria would require the applicant's CONOPS to identify the intended operational concepts for the UAS and describe the UAS and its operation. The information in the CONOPS would determine parameters and extent of testing, as well as operating limitations that will be placed in the UAS Flight Manual.

Design and Construction: The FAA selected the design and construction criteria in this section to address airworthiness requirements where the flight testing demonstration alone may not be sufficient to demonstrate an appropriate level of safety.

UAS.100 Control Station: The control station, which is located separately from the UA, is a unique feature to UAS. As a result, no regulatory airworthiness standards exist that directly apply to this part of the system. The FAA based some of the proposed criteria on existing regulations that address the information that must be provided to a pilot in the cockpit of a manned aircraft, and modified them as appropriate to this UAS. Thus, to address the risks associated with loss of control of the UAS, the applicant would be required to design the control station to provide the pilot with the information necessary for continued safe flight and operation. The proposed criteria contain the specific minimum types of information the FAA finds are necessary for this requirement; however, the applicant must determine whether additional parameters are necessary.

UAS.110 Software: Software for manned aircraft is certified under the regulations applicable to systems, equipment, and installations ( e.g., §§ 23.2510, 25.1309, 27.1309, or 29.1309). There are two regulations that specifically prescribe airworthiness standards for software: Engine airworthiness standards (§ 33.28) and propeller airworthiness standards (§ 35.23). The proposed UAS software criteria was based on these regulations and tailored for the risks posed by UAS software.

UAS.115 Cyber Security: The location of the pilot separate from the UA requires a continuous wireless connection (command and control link) with the UA for the pilot to monitor and control it. Because the purpose of this link is to control the aircraft, this makes the UAS susceptible to cyber security threats in a unique way.

The current regulations for the certification of systems, equipment, and installations ( e.g., §§ 23.2510, 25.1309, 27.1309, and 29.1309) do not adequately address potential security vulnerabilities that could be exploited by unauthorized access to aircraft systems, data buses, and services. For manned aircraft, the FAA therefore issues special conditions for particular designs with network security vulnerabilities.

To address the risks to the UAS associated with intentional unauthorized electronic interactions, the applicant would be required to design the UAS's systems and networks to protect against intentional unauthorized electronic interactions and mitigate potential adverse effects. The FAA based the language for the proposed criteria on recommendations in the final report dated August 22, 2016, from the Aircraft System Information Security/Protection (ASISP) working group, under the FAA's Aviation Rulemaking Advisory Committee. Although the recommendations pertained to manned aircraft, the FAA has reviewed the report and determined the recommendations are also appropriate for UAS. The wireless connections used by UAS make these aircraft susceptible to the same cyber security risks, and therefore require similar criteria, as manned aircraft.

UAS.120 Contingency Planning: The location of the pilot and the controls for the UAS, separate from the UA, is a unique feature to UAS. As a result, no regulatory airworthiness standards exist that directly apply to this feature of the system.

To address the risks associated with loss of communication between the pilot and the UA, and thus the pilot's inability to control the UA, the proposed criteria would require that the UAS be designed to automatically execute a predetermined action. Because the pilot needs to be aware of the particular predetermined action the UA will take when there is a loss of communication between the pilot and the UA, the proposed criteria would require that the applicant identify the predetermined action in the UAS Flight Manual. The proposed criteria would also include requirements for preventing takeoff when quality of service is inadequate.

UAS.125 Lightning: Because of the size and physical limitations of this UAS, it would be unlikely that this UAS would incorporate traditional lightning protection features. To address the risks that would result from a lightning strike, the proposed criteria would require an operating limitation in the UAS Flight Manual that prohibits flight into weather conditions conducive to lightning. The proposed criteria would also allow design characteristics to protect the UAS from lightning as an alternative to the prohibition.

UAS.130 Adverse Weather Conditions: Because of the size and physical limitations of this UAS, adverse weather such as rain, snow, and icing pose a greater hazard to the UAS than to manned aircraft. For the same reason, it would be unlikely that this UAS would incorporate traditional protection features from icing. The FAA based the proposed criteria on the icing requirements in 14 CFR 23.2165(b) and (c), and applied them to all of these adverse weather conditions. The proposed criteria would allow design characteristics to protect the UAS from adverse weather conditions. As an alternative, the proposed criteria would require an operating limitation in the UAS Flight Manual that prohibits flight into known adverse weather conditions, and either also prevent inadvertent flight into adverse weather or provide a means to detect and to avoid or exit adverse weather conditions.

UAS.135 Critical Parts: The proposed criteria for critical parts are substantively the same as that in § 27.602, with changes to reflect UAS terminology and failure condition.

Operating Limitations and Information: Similar to manned aircraft, the FAA determined that the UAS applicant must provide airworthiness instructions, operating limitations, and flight and performance information necessary for the safe operation and continued operational safety of the UAS.

UAS.200 Flight Manual: The proposed criteria for the UAS Flight Manual are substantively the same as that in § 23.2620, with minor changes to reflect UAS terminology.

UAS.205 Instructions for Continued Airworthiness: The proposed criteria for the Instructions for Continued Airworthiness (ICA) are substantively the same as that in § 23.1529, with minor changes to reflect UAS terminology.

Testing: Traditional certification methodologies for manned aircraft are based on design requirements verified at the component level by inspection, analysis, demonstration, or test. Due to the difference in size and complexity, the FAA determined testing methodologies that demonstrate reliability at the aircraft (UAS) level, in addition to the design and construction criteria identified in this proposal, will achieve the same safety objective. The proposed testing criteria in sections UAS.300 through UAS.320 utilize these methodologies.

UAS.300 Durability and Reliability: The FAA intends the proposed testing criteria in this section to cover key design aspects and prevent unsafe features at an appropriate level tailored for this UAS. The proposed durability and reliability testing would require the applicant to demonstrate safe flight of the UAS across the entire operational envelope and up to all operational limitations, for all phases of flight and all aircraft configurations. The UAS would only be certificated for operations within the limitations, and for flight over the maximum population density, as demonstrated by test. The proposed criteria would require that all flights during the testing be completed with no failures that result in a loss of flight, loss of control, loss of containment, or emergency landing outside of the operator's recovery zone.

For some aircraft design requirements imposed by existing airworthiness standards ( e.g., §§ 23.2135, 23.2600, 25.105, 25.125, 27.141, 27.173, 29.51, 29.177) the aircraft must not require exceptional piloting skill or alertness. These rules recognize that pilots have varying levels of ability and attention. In a similar manner, the proposed criteria would require that the durability and reliability flight testing be performed by a pilot with average skill and alertness.

Flight testing will be used to determine the aircraft's ability to withstand flight loads across the range of operating limits and the flight envelope. Because small UAS may be subjected to significant ground loads when handled, lifted, carried, loaded, maintained, and transported physically by hand, the proposed criteria would require that the aircraft used for testing endure the same worst-case ground loads as those the UAS will experience in operation after type certification.

UAS.305 Probable Failures: The FAA intends the proposed testing criteria to evaluate how the UAS functions after failures that are probable to occur. The applicant will test the UAS by inducing certain failures and demonstrating that the failure will not result in a loss of containment or control of the UA. The proposed criteria contain the minimum types of failures the FAA finds are probable; however, the applicant must determine the probable failures related to any other equipment that will be addressed for this requirement.

UAS.310 Capabilities and Functions: The proposed criteria for this section address the minimum capabilities and functions the FAA finds are necessary in the design of the UAS and would require the applicant to demonstrate these capabilities and functions by test. Due to the location of the pilot and the controls for UAS, separate from the UA, communication between the pilot and the UA is significant to the design. Thus, the proposed criteria would require the applicant to demonstrate the capability of the UAS to regain command and control after a loss. As with manned aircraft, the electrical system of the UAS must have a capacity sufficient for all anticipated loads; the proposed criteria would require the applicant to demonstrate this by test.

The proposed criteria contain functions that would allow the pilot to command the UA to deviate from its flight plan or from its pre-programmed flight path. For example, in the event the pilot needs to deconflict the airspace, the UA must be able to respond to pilot inputs that override any pre-programming.

In the event an applicant requests approval for certain features, such as geo-fencing or external cargo, the proposed criteria contain requirements to address the associated risks. The proposed criteria in this section would also require design of the UAS to safeguard against an unintended discontinuation of flight or release of cargo, whether by human action or malfunction.

UAS.315 Fatigue: The FAA intends the proposed criteria in this section to address the risks from reduced structural integrity and structural failure due to fatigue. The proposed criteria would require the applicant to establish an airframe life limit and demonstrate that loss of flight or loss of control due to structural failure will be avoided throughout the operational life of the UA. These proposed criteria would require the applicant to demonstrate this by test, while maintaining the UA in accordance with the ICA.

UAS.320 Verification of Limits: This section would evaluate structural safety and address the risks associated with inadequate structural design. While the proposed criteria in UAS.300 address testing to demonstrate that the UAS structure adequately supports expected loads throughout the flight and operational envelopes, the proposed criteria in this section would require an evaluation of the performance, maneuverability, stability, and control of the UA with a factor of safety.

The FAA proposes to establish the following airworthiness criteria for type certification of the Percepto Model Percepto System 2.4. The FAA proposes that compliance with the following would mitigate the risks associated with the proposed design and Concept of Operations appropriately and would provide an equivalent level of safety to existing rules:

The applicant must define and submit to the FAA a concept of operations (CONOPS) proposal describing the Unmanned Aircraft System (UAS) operation in the National Airspace System for which certification is requested. The CONOPS proposal must include, at a minimum, a description of the following information.

(a) The intended type of operations;

(b) Unmanned aircraft (UA) specifications;

(c) Meteorological conditions;

(d) Operators, pilots, and personnel responsibilities;

(e) Control station and support equipment;

(f) Command, control, and communication functions; and

(g) Operational parameters, such as population density, geographic operating boundaries, airspace classes, launch and recovery area, congestion of proposed operating area, communications with air traffic control, line of sight, and aircraft separation.

The control station must be designed to provide the pilot with all information required for continued safe flight and operation. This information includes, at a minimum, the following:

(a) Alerts, such as an alert following the loss of the command and control (C2) link and function.

(b) The status of all critical parameters for all energy storage systems.

(c) The status of all critical parameters for all propulsion systems.

(d) Flight and navigation information as appropriate, such as airspeed, heading, altitude, and location.

(e) C2 link signal strength, quality, or status.

To minimize the existence of errors, the applicant must:

(a) Verify by test all software that may impact the safe operation of the UAS;

(b) Utilize a configuration management system that tracks, controls, and preserves changes made to software throughout the entire life cycle; and

(c) Implement a problem reporting system that captures and records defects and modifications to the software.

(a) UAS equipment, systems, and networks, addressed separately and in relation to other systems, must be protected from intentional unauthorized electronic interactions that may result in an adverse effect on the security or airworthiness of the UAS. Protection must be ensured by showing that the security risks have been identified, assessed, and mitigated as necessary.

(b) When required by paragraph (a) of this section, procedures and instructions to ensure security protections are maintained must be included in the Instructions for Continued Airworthiness (ICA).

(a) The UAS must be designed so that, in the event of a loss of the C2 link, the UA will automatically and immediately execute a safe predetermined flight, loiter, landing, or termination.

(b) The applicant must establish the predetermined action in the event of a loss of the C2 link and include it in the UAS Flight Manual.

(c) The UAS Flight Manual must include the minimum performance requirements for the C2 data link defining when the C2 link is degraded to a level where remote active control of the UA is no longer ensured. Takeoff when the C2 link is degraded below the minimum link performance requirements must be prevented by design or prohibited by an operating limitation in the UAS Flight Manual.

(a) Except as provided in paragraph (b) of this section, the UAS must have design characteristics that will protect the UAS from loss of flight or loss of control due to lightning.

(b) If the UAS has not been shown to protect against lightning, the UAS Flight Manual must include an operating limitation to prohibit flight into weather conditions conducive to lightning activity.

(a) For purposes of this section, “adverse weather conditions” means rain, snow, and icing.

(b) Except as provided in paragraph (c) of this section, the UAS must have design characteristics that will allow the UAS to operate within the adverse weather conditions specified in the CONOPS without loss of flight or loss of control.

(c) For adverse weather conditions for which the UAS is not approved to operate, the applicant must develop operating limitations to prohibit flight into known adverse weather conditions and either:

(1) Develop operating limitations to prevent inadvertent flight into adverse weather conditions; or

(2) Provide a means to detect any adverse weather conditions for which the UAS is not certificated to operate and show the UAS's ability to avoid or exit those conditions.

(a) A critical part is a part, the failure of which could result in a loss of flight or unrecoverable loss of UAS control.

(b) If the type design includes critical parts, the applicant must establish a critical parts list. The applicant must develop and define mandatory maintenance instructions or life limits, or a combination of both, to prevent failures of critical parts. Each of these mandatory actions must be included in the Airworthiness Limitations Section of the ICA.

The applicant must provide a UAS Flight Manual with each UAS.

(a) The UAS Flight Manual must contain the following information:

(1) UAS operating limitations;

(2) UAS normal and emergency operating procedures;

(3) Performance information;

(4) Loading information; and

(5) Other information that is necessary for safe operation because of design, operating, or handling characteristics.

(b) Those portions of the UAS Flight Manual containing the information specified in paragraphs (a)(1) through (4) of this section must be approved by the FAA.

The applicant must prepare ICA for the UAS in accordance with Appendix A to Part 23, as appropriate, that are acceptable to the FAA. The ICA may be incomplete at type certification if a program exists to ensure their completion prior to delivery of the first UAS or issuance of a standard airworthiness certificate, whichever occurs later.

The UAS must be designed to be durable and reliable commensurate to the maximum population density specified in the operating limitations. The durability and reliability must be demonstrated by flight test in accordance with the requirements of this section and completed with no failures that result in a loss of flight, loss of control, loss of containment, or emergency landing outside the operator's recovery area.

(a) Once a UAS has begun testing to show compliance with this section, all flights for that UA must be included in the flight test report.

(b) Tests must include an evaluation of the entire flight envelope across all phases of operation and must address, at a minimum, the following:

(1) Flight distances;

(2) Flight durations;

(3) Route complexity;

(4) Weight;

(5) Center of gravity;

(6) Density altitude;

(7) Outside air temperature;

(8) Airspeed;

(9) Wind;

(10) Weather;

(11) Operation at night, if requested;

(12) Energy storage system capacity; and

(13) Aircraft to pilot ratio.

(c) Tests must include the most adverse combinations of the conditions and configurations in paragraph (b) of this section.

(d) Tests must show a distribution of the different flight profiles and routes representative of the type of operations identified in the CONOPS.

(e) Tests must be conducted in conditions consistent with the expected environmental conditions identified in the CONOPS, including electromagnetic interference (EMI) and High Intensity Radiated Fields (HIRF).

(f) Tests must not require exceptional piloting skill or alertness.

(g) Any UAS used for testing must be subject to the same worst-case ground handling, shipping, and transportation loads as those allowed in service.

(h) Any UAS used for testing must be maintained and operated in accordance with the ICA and UAS Flight Manual. No maintenance beyond the intervals established in the ICA will be allowed to show compliance with this section.

(i) If cargo operations or external-load operations are requested, tests must show, throughout the flight envelope and with the cargo or external-load at the most critical combinations of weight and center of gravity, that—

(1) the UA is safely controllable and maneuverable; and

(2) the cargo or external-load are retainable and transportable.

The UAS must be designed such that a probable failure will not result in a loss of containment or control of the UA. This must be demonstrated by test.

(a) Probable failures related to the following equipment, at a minimum, must be addressed.

(1) Propulsion systems;

(2) C2 link;

(3) Global Positioning System (GPS);

(4) Critical flight control components with a single point of failure;

(5) Control station; and

(6) Any other equipment identified by the applicant.

(b) Any UAS used for testing must be operated in accordance with the UAS Flight Manual.

(c) Each test must occur at the critical phase and mode of flight, and at the highest aircraft-to-pilot ratio.

(a) All of the following required UAS capabilities and functions must be demonstrated by test:

(1) Capability to regain command and control of the UA after the C2 link has been lost.

(2) Capability of the electrical system to power all UA systems and payloads.

(3) Ability for the pilot to safely discontinue the flight.

(4) Ability for the pilot to dynamically re-route the UA.

(5) Ability to safely abort a takeoff.

(6) Ability to safely abort a landing and initiate a go-around.

(b) The following UAS capabilities and functions, if requested for approval, must be demonstrated by test:

(1) Continued flight after degradation of the propulsion system.

(2) Geo-fencing that contains the UA within a designated area, in all operating conditions.

(3) Positive transfer of the UA between control stations that ensures only one control station can control the UA at a time.

(4) Capability to release an external cargo load to prevent loss of control of the UA.

(5) Capability to detect and avoid other aircraft and obstacles.

(c) The UAS must be designed to safeguard against inadvertent discontinuation of the flight and inadvertent release of cargo or external-load.

The structure of the UA must be shown to be able to withstand the repeated loads expected during its service life without failure. A life limit for the airframe must be established, demonstrated by test, and included in the ICA.

The performance, maneuverability, stability, and control of the UA within the flight envelope described in the UAS Flight Manual must be demonstrated at a minimum of 5% over maximum gross weight with no loss of control or loss of flight.

Comments Invited

The FAA invites interested people to take part in the development of these airworthiness criteria by sending written comments, data, or views. The most helpful comments reference a specific portion of the airworthiness criteria, explain the reason for any recommended change, and include supporting data. Comments on operational, pilot certification, and maintenance requirements would address issues that are beyond the scope of this document.

Except for Confidential Business Information as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will file in the docket all comments received, as well as a report summarizing each substantive public contact with FAA personnel concerning these proposed airworthiness criteria. Before acting on this proposal, the FAA will consider all comments received on or before the closing date for comments. The FAA will consider comments filed late if it is possible to do so without incurring delay. The FAA may change these airworthiness criteria based on received comments.

Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this notice, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this notice. Submissions containing CBI should be sent to the individual listed under FOR FURTHER INFORMATION CONTACT . Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this notice.

Flytrex, Inc., (Flytrex) applied to the FAA on March 18, 2019, for a special class type certificate under Title 14, Code of Federal Regulations (14 CFR) 21.17(b) for the Model FTX-M600P UAS.

The Model FTX-M600P consists of an unmanned aircraft (UA) and its associated elements that include communication links and the components that control the UA. The Model FTX-M600P UA has a maximum gross takeoff weight of 34 pounds. It is approximately 53 inches in width, 53 inches in length, and 31 inches in height. The Model FTX-M600P UA is battery powered using electric motors for vertical takeoff, landing, and forward flight. The UAS operations would rely on high levels of automation and may include multiple UA operated by a single pilot, up to a ratio of 20 UA to 1 pilot. Flytrex anticipates operators will use the Model FTX-M600P for delivering packages. The proposed concept of operations for the Model FTX-M600P identifies a maximum operating altitude of 230 feet above ground level, a maximum cruise speed of 30 knots (34 mph), operations beyond visual line of sight of the pilot, and operations over human beings. Flytrex has not requested type certification for flight into known icing for the Model FTX-M600P.

The FAA establishes airworthiness criteria to ensure the safe operation of aircraft in accordance with 49 U.S.C. 44701(a) and 44704. UAS are type certificated by the FAA as special class aircraft for which airworthiness standards have not been established by regulation. Under the provisions of 14 CFR 21.17(b), the airworthiness standards for special class aircraft are those the FAA finds to be appropriate and applicable to the specific type design.

The applicant has proposed a design with constraints upon its operations and an unusual design characteristic: The pilot is remotely located. The FAA developed existing airworthiness standards to establish an appropriate level of safety for each product and its intended use. The FAA's existing airworthiness standards did not envision aircraft with no pilot in the cockpit and the technologies associated with that capability.

The FAA has reviewed the proposed design and assessed the potential risk to the National Airspace System. The FAA considered the size of the proposed aircraft, its maximum airspeed and altitude, and operational limitations to address the number of unmanned aircraft per operator and to address operations in which the aircraft would operate beyond the visual line of sight of the pilot. These factors allowed the FAA to assess the potential risk the aircraft could pose to other aircraft and to human beings on the ground. Using these parameters, the FAA developed airworthiness criteria to address those potential risks to ensure the aircraft remains reliable, controllable, safe, and airworthy.

The proposed criteria focus on mitigating hazards by establishing safety outcomes that must be achieved, rather than by establishing prescriptive requirements that must be met. This is in contrast to many current airworthiness standards, used to certificate traditional aircraft systems, which prescribe specific indicators and instruments for a pilot in a cockpit that would be inappropriate for UAS. The FAA finds that the proposed criteria are appropriate and applicable for the UAS design, based on the intended operational concepts for the UAS as identified by the applicant.

The FAA selected the particular airworthiness criteria proposed by this notice for the following reasons:

General: In order to determine appropriate and applicable airworthiness standards for UAS as a special class of aircraft, the FAA determined that the applicant must provide information describing the characteristics and capabilities of the UAS and how it will be used.

UAS.001 Concept of Operations: To assist the FAA in identifying and analyzing the risks and impacts associated with integrating the proposed UAS design into the National Airspace System, the applicant would be required to submit a Concept of Operations (CONOPS). The proposed criteria would require the applicant's CONOPS to identify the intended operational concepts for the UAS and describe the UAS and its operation. The information in the CONOPS would determine parameters and extent of testing, as well as operating limitations that will be placed in the UAS Flight Manual.

Design and Construction: The FAA selected the design and construction criteria in this section to address airworthiness requirements where the flight testing demonstration alone may not be sufficient to demonstrate an appropriate level of safety.

UAS.100 Control Station: The control station, which is located separately from the UA, is a unique feature to UAS. As a result, no regulatory airworthiness standards exist that directly apply to this part of the system. The FAA based some of the proposed criteria on existing regulations that address the information that must be provided to a pilot in the cockpit of a manned aircraft, and modified them as appropriate to this UAS. Thus, to address the risks associated with loss of control of the UAS, the applicant would be required to design the control station to provide the pilot with the information necessary for continued safe flight and operation. The proposed criteria contain the specific minimum types of information the FAA finds are necessary for this requirement; however, the applicant must determine whether additional parameters are necessary.

UAS.110 Software: Software for manned aircraft is certified under the regulations applicable to systems, equipment, and installations ( e.g., §§ 23.2510, 25.1309, 27.1309, or 29.1309). There are two regulations that specifically prescribe airworthiness standards for software: Engine airworthiness standards (§ 33.28) and propeller airworthiness standards (§ 35.23). The proposed UAS software criteria was based on these regulations and tailored for the risks posed by UAS software.

UAS.115 Cyber Security: The location of the pilot separate from the UA requires a continuous wireless connection (command and control link) with the UA for the pilot to monitor and control it. Because the purpose of this link is to control the aircraft, this makes the UAS susceptible to cyber security threats in a unique way.

The current regulations for the certification of systems, equipment, and installations ( e.g., §§ 23.2510, 25.1309, 27.1309, and 29.1309) do not adequately address potential security vulnerabilities that could be exploited by unauthorized access to aircraft systems, data buses, and services. For manned aircraft, the FAA therefore issues special conditions for particular designs with network security vulnerabilities.

To address the risks to the UAS associated with intentional unauthorized electronic interactions, the applicant would be required to design the UAS's systems and networks to protect against intentional unauthorized electronic interactions and mitigate potential adverse effects. The FAA based the language for the proposed criteria on recommendations in the final report dated August 22, 2016, from the Aircraft System Information Security/Protection (ASISP) working group, under the FAA's Aviation Rulemaking Advisory Committee. Although the recommendations pertained to manned aircraft, the FAA has reviewed the report and determined the recommendations are also appropriate for UAS. The wireless connections used by UAS make these aircraft susceptible to the same cyber security risks, and therefore require similar criteria, as manned aircraft.

UAS.120 Contingency Planning: The location of the pilot and the controls for the UAS, separate from the UA, is a unique feature to UAS. As a result, no regulatory airworthiness standards exist that directly apply to this feature of the system.

To address the risks associated with loss of communication between the pilot and the UA, and thus the pilot's inability to control the UA, the proposed criteria would require that the UAS be designed to automatically execute a predetermined action. Because the pilot needs to be aware of the particular predetermined action the UA will take when there is a loss of communication between the pilot and the UA, the proposed criteria would require that the applicant identify the predetermined action in the UAS Flight Manual. The proposed criteria would also include requirements for preventing takeoff when quality of service is inadequate.

UAS.125 Lightning: Because of the size and physical limitations of this UAS, it would be unlikely that this UAS would incorporate traditional lightning protection features. To address the risks that would result from a lightning strike, the proposed criteria would require an operating limitation in the UAS Flight Manual that prohibits flight into weather conditions conducive to lightning. The proposed criteria would also allow design characteristics to protect the UAS from lightning as an alternative to the prohibition.

UAS.130 Adverse Weather Conditions: Because of the size and physical limitations of this UAS, adverse weather such as rain, snow, and icing pose a greater hazard to the UAS than to manned aircraft. For the same reason, it would be unlikely that this UAS would incorporate traditional protection features from icing. The FAA based the proposed criteria on the icing requirements in 14 CFR 23.2165(b) and (c), and applied them to all of these adverse weather conditions. The proposed criteria would allow design characteristics to protect the UAS from adverse weather conditions. As an alternative, the proposed criteria would require an operating limitation in the UAS Flight Manual that prohibits flight into known adverse weather conditions, and either also prevent inadvertent flight into adverse weather or provide a means to detect and to avoid or exit adverse weather conditions.

UAS.135 Critical Parts: The proposed criteria for critical parts are substantively the same as that in § 27.602, with changes to reflect UAS terminology and failure condition.

Operating Limitations and Information: Similar to manned aircraft, the FAA determined that the UAS applicant must provide airworthiness instructions, operating limitations, and flight and performance information necessary for the safe operation and continued operational safety of the UAS.

UAS.200 Flight Manual: The proposed criteria for the UAS Flight Manual are substantively the same as that in § 23.2620, with minor changes to reflect UAS terminology.

UAS.205 Instructions for Continued Airworthiness: The proposed criteria for the Instructions for Continued Airworthiness (ICA) are substantively the same as that in § 23.1529, with minor changes to reflect UAS terminology.

Testing: Traditional certification methodologies for manned aircraft are based on design requirements verified at the component level by inspection, analysis, demonstration, or test. Due to the difference in size and complexity, the FAA determined testing methodologies that demonstrate reliability at the aircraft (UAS) level, in addition to the design and construction criteria identified in this proposal, will achieve the same safety objective. The proposed testing criteria in sections UAS.300 through UAS.320 utilize these methodologies.

UAS.300 Durability and Reliability: The FAA intends the proposed testing criteria in this section to cover key design aspects and prevent unsafe features at an appropriate level tailored for this UAS. The proposed durability and reliability testing would require the applicant to demonstrate safe flight of the UAS across the entire operational envelope and up to all operational limitations, for all phases of flight and all aircraft configurations. The UAS would only be certificated for operations within the limitations, and for flight over the maximum population density, as demonstrated by test. The proposed criteria would require that all flights during the testing be completed with no failures that result in a loss of flight, loss of control, loss of containment, or emergency landing outside of the operator's recovery zone.

For some aircraft design requirements imposed by existing airworthiness standards ( e.g., §§ 23.2135, 23.2600, 25.105, 25.125, 27.141, 27.173, 29.51, 29.177) the aircraft must not require exceptional piloting skill or alertness. These rules recognize that pilots have varying levels of ability and attention. In a similar manner, the proposed criteria would require that the durability and reliability flight testing be performed by a pilot with average skill and alertness.

Flight testing will be used to determine the aircraft's ability to withstand flight loads across the range of operating limits and the flight envelope. Because small UAS may be subjected to significant ground loads when handled, lifted, carried, loaded, maintained, and transported physically by hand, the proposed criteria would require that the aircraft used for testing endure the same worst-case ground loads as those the UAS will experience in operation after type certification.

UAS.305 Probable Failures: The FAA intends the proposed testing criteria to evaluate how the UAS functions after failures that are probable to occur. The applicant will test the UAS by inducing certain failures and demonstrating that the failure will not result in a loss of containment or control of the UA. The proposed criteria contain the minimum types of failures the FAA finds are probable; however, the applicant must determine the probable failures related to any other equipment that will be addressed for this requirement.

UAS.310 Capabilities and Functions: The proposed criteria for this section address the minimum capabilities and functions the FAA finds are necessary in the design of the UAS and would require the applicant to demonstrate these capabilities and functions by test. Due to the location of the pilot and the controls for UAS, separate from the UA, communication between the pilot and the UA is significant to the design. Thus, the proposed criteria would require the applicant to demonstrate the capability of the UAS to regain command and control after a loss. As with manned aircraft, the electrical system of the UAS must have a capacity sufficient for all anticipated loads; the proposed criteria would require the applicant to demonstrate this by test.

The proposed criteria contain functions that would allow the pilot to command the UA to deviate from its flight plan or from its pre-programmed flight path. For example, in the event the pilot needs to deconflict the airspace, the UA must be able to respond to pilot inputs that override any pre-programming.

In the event an applicant requests approval for certain features, such as geo-fencing or external cargo, the proposed criteria contain requirements to address the associated risks. The proposed criteria in this section would also require design of the UAS to safeguard against an unintended discontinuation of flight or release of cargo, whether by human action or malfunction.

UAS.315 Fatigue: The FAA intends the proposed criteria in this section to address the risks from reduced structural integrity and structural failure due to fatigue. The proposed criteria would require the applicant to establish an airframe life limit and demonstrate that loss of flight or loss of control due to structural failure will be avoided throughout the operational life of the UA. These proposed criteria would require the applicant to demonstrate this by test, while maintaining the UA in accordance with the ICA.

UAS.320 Verification of Limits: This section would evaluate structural safety and address the risks associated with inadequate structural design. While the proposed criteria in UAS.300 address testing to demonstrate that the UAS structure adequately supports expected loads throughout the flight and operational envelopes, the proposed criteria in this section would require an evaluation of the performance, maneuverability, stability, and control of the UA with a factor of safety.

The FAA proposes to establish the following airworthiness criteria for type certification of the Flytrex Model FTX-M600P. The FAA proposes that compliance with the following would mitigate the risks associated with the proposed design and Concept of Operations appropriately and would provide an equivalent level of safety to existing rules:

The applicant must define and submit to the FAA a concept of operations (CONOPS) proposal describing the Unmanned Aircraft System (UAS) operation in the National Airspace System for which certification is requested. The CONOPS proposal must include, at a minimum, a description of the following information.

(a) The intended type of operations;

(b) Unmanned aircraft (UA) specifications;

(c) Meteorological conditions;

(d) Operators, pilots, and personnel responsibilities;

(e) Control station and support equipment;

(f) Command, control, and communication functions; and

(g) Operational parameters, such as population density, geographic operating boundaries, airspace classes, launch and recovery area, congestion of proposed operating area, communications with air traffic control, line of sight, and aircraft separation.

The control station must be designed to provide the pilot with all information required for continued safe flight and operation. This information includes, at a minimum, the following:

(a) Alerts, such as an alert following the loss of the command and control (C2) link and function.

(b) The status of all critical parameters for all energy storage systems.

(c) The status of all critical parameters for all propulsion systems.

(d) Flight and navigation information as appropriate, such as airspeed, heading, altitude, and location.

(e) C2 link signal strength, quality, or status.

To minimize the existence of errors, the applicant must:

(a) Verify by test all software that may impact the safe operation of the UAS;

(b) Utilize a configuration management system that tracks, controls, and preserves changes made to software throughout the entire life cycle; and

(c) Implement a problem reporting system that captures and records defects and modifications to the software.

(a) UAS equipment, systems, and networks, addressed separately and in relation to other systems, must be protected from intentional unauthorized electronic interactions that may result in an adverse effect on the security or airworthiness of the UAS. Protection must be ensured by showing that the security risks have been identified, assessed, and mitigated as necessary.

(b) When required by paragraph (a) of this section, procedures and instructions to ensure security protections are maintained must be included in the Instructions for Continued Airworthiness (ICA).

(a) The UAS must be designed so that, in the event of a loss of the C2 link, the UA will automatically and immediately execute a safe predetermined flight, loiter, landing, or termination.

(b) The applicant must establish the predetermined action in the event of a loss of the C2 link and include it in the UAS Flight Manual.

(c) The UAS Flight Manual must include the minimum performance requirements for the C2 data link defining when the C2 link is degraded to a level where remote active control of the UA is no longer ensured. Takeoff when the C2 link is degraded below the minimum link performance requirements must be prevented by design or prohibited by an operating limitation in the UAS Flight Manual.

(a) Except as provided in paragraph (b) of this section, the UAS must have design characteristics that will protect the UAS from loss of flight or loss of control due to lightning.

(b) If the UAS has not been shown to protect against lightning, the UAS Flight Manual must include an operating limitation to prohibit flight into weather conditions conducive to lightning activity.

(a) For purposes of this section, “adverse weather conditions” means rain, snow, and icing.

(b) Except as provided in paragraph (c) of this section, the UAS must have design characteristics that will allow the UAS to operate within the adverse weather conditions specified in the CONOPS without loss of flight or loss of control.

(c) For adverse weather conditions for which the UAS is not approved to operate, the applicant must develop operating limitations to prohibit flight into known adverse weather conditions and either:

(1) Develop operating limitations to prevent inadvertent flight into adverse weather conditions; or

(2) Provide a means to detect any adverse weather conditions for which the UAS is not certificated to operate and show the UAS's ability to avoid or exit those conditions.

(a) A critical part is a part, the failure of which could result in a loss of flight or unrecoverable loss of UAS control.

(b) If the type design includes critical parts, the applicant must establish a critical parts list. The applicant must develop and define mandatory maintenance instructions or life limits, or a combination of both, to prevent failures of critical parts. Each of these mandatory actions must be included in the Airworthiness Limitations Section of the ICA.

The applicant must provide a UAS Flight Manual with each UAS.

(a) The UAS Flight Manual must contain the following information:

(1) UAS operating limitations;

(2) UAS normal and emergency operating procedures;

(3) Performance information;

(4) Loading information; and

(5) Other information that is necessary for safe operation because of design, operating, or handling characteristics.

(b) Those portions of the UAS Flight Manual containing the information specified in paragraphs (a)(1) through (4) of this section must be approved by the FAA.

The applicant must prepare ICA for the UAS in accordance with Appendix A to Part 23, as appropriate, that are acceptable to the FAA. The ICA may be incomplete at type certification if a program exists to ensure their completion prior to delivery of the first UAS or issuance of a standard airworthiness certificate, whichever occurs later.

The UAS must be designed to be durable and reliable commensurate to the maximum population density specified in the operating limitations. The durability and reliability must be demonstrated by flight test in accordance with the requirements of this section and completed with no failures that result in a loss of flight, loss of control, loss of containment, or emergency landing outside the operator's recovery area.

(a) Once a UAS has begun testing to show compliance with this section, all flights for that UA must be included in the flight test report.

(b) Tests must include an evaluation of the entire flight envelope across all phases of operation and must address, at a minimum, the following:

(1) Flight distances;

(2) Flight durations;

(3) Route complexity;

(4) Weight;

(5) Center of gravity;

(6) Density altitude;

(7) Outside air temperature;

(8) Airspeed;

(9) Wind;

(10) Weather;

(11) Operation at night, if requested;

(12) Energy storage system capacity; and

(13) Aircraft to pilot ratio.

(c) Tests must include the most adverse combinations of the conditions and configurations in paragraph (b) of this section.

(d) Tests must show a distribution of the different flight profiles and routes representative of the type of operations identified in the CONOPS.

(e) Tests must be conducted in conditions consistent with the expected environmental conditions identified in the CONOPS, including electromagnetic interference (EMI) and High Intensity Radiated Fields (HIRF).

(f) Tests must not require exceptional piloting skill or alertness.

(g) Any UAS used for testing must be subject to the same worst-case ground handling, shipping, and transportation loads as those allowed in service.

(h) Any UAS used for testing must be maintained and operated in accordance with the ICA and UAS Flight Manual. No maintenance beyond the intervals established in the ICA will be allowed to show compliance with this section.

(i) If cargo operations or external-load operations are requested, tests must show, throughout the flight envelope and with the cargo or external-load at the most critical combinations of weight and center of gravity, that—

(1) the UA is safely controllable and maneuverable; and

(2) the cargo or external-load are retainable and transportable.

The UAS must be designed such that a probable failure will not result in a loss of containment or control of the UA. This must be demonstrated by test.

(a) Probable failures related to the following equipment, at a minimum, must be addressed.

(1) Propulsion systems;

(2) C2 link;

(3) Global Positioning System (GPS);

(4) Critical flight control components with a single point of failure;

(5) Control station; and

(6) Any other equipment identified by the applicant.

(b) Any UAS used for testing must be operated in accordance with the UAS Flight Manual.

(c) Each test must occur at the critical phase and mode of flight, and at the highest aircraft-to-pilot ratio.

(a) All of the following required UAS capabilities and functions must be demonstrated by test:

(1) Capability to regain command and control of the UA after the C2 link has been lost.

(2) Capability of the electrical system to power all UA systems and payloads.

(3) Ability for the pilot to safely discontinue the flight.

(4) Ability for the pilot to dynamically re-route the UA.

(5) Ability to safely abort a takeoff.

(6) Ability to safely abort a landing and initiate a go-around.

(b) The following UAS capabilities and functions, if requested for approval, must be demonstrated by test:

(1) Continued flight after degradation of the propulsion system.

(2) Geo-fencing that contains the UA within a designated area, in all operating conditions.

(3) Positive transfer of the UA between control stations that ensures only one control station can control the UA at a time.

(4) Capability to release an external cargo load to prevent loss of control of the UA.

(5) Capability to detect and avoid other aircraft and obstacles.

(c) The UAS must be designed to safeguard against inadvertent discontinuation of the flight and inadvertent release of cargo or external-load.

The structure of the UA must be shown to be able to withstand the repeated loads expected during its service life without failure. A life limit for the airframe must be established, demonstrated by test, and included in the ICA.

The performance, maneuverability, stability, and control of the UA within the flight envelope described in the UAS Flight Manual must be demonstrated at a minimum of 5% over maximum gross weight with no loss of control or loss of flight.

Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2020-0885; Project Identifier MCAI-2020-00997-A” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Doug Rudolph, Aerospace Engineer, FAA, General Aviation & Rotorcraft Section, International Validation Branch, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4059; fax: (816) 329-4090; email: doug.rudolph@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2020-0160, dated July 16, 2020 (referred to after this as “the MCAI”), to address the unsafe condition on Pilatus Model PC-24 airplanes. The MCAI states:

Due to a quality escape, the fire retardant used in the original filters installed in production is not sufficient for the conditions in this configuration, which is close to the heater and blowers.

You may obtain further information by examining the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0885.

The FAA reviewed Pilatus PC-24 Service Bulletin No. 21-006, dated April 3, 2020. The service information specifies procedures to replace the cockpit and cabin evaporator filters with new filters contained in a modification kit. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would apply to airplanes with a defective filter installed, whereas the EASA AD applies to airplanes that do not have the modification kit, which was installed in production. The proposed AD identifies the individual part numbers (P/Ns) of the defective filters to address any airplanes that may have had a modification kit filter replaced with a defective filter in the field before this proposed AD becomes effective. The proposed AD would also apply to airplanes with a filter where the P/N is unknown. Pilatus advises that the defective filters can only be identified by their packing documents, as they do not have a permanent P/N marked on the actual part. The new filters in the modification kit do have a permanent marking on the frame of the actual part.

The FAA estimates that this AD, if adopted as proposed, would affect 36 airplanes of U.S. registry. The FAA also estimates that it would take 2.5 work-hours per product to comply with the requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $575 per product, if all 4 filters would need to be replaced.

Based on these figures, the FAA estimates the cost of this proposed AD on U.S. operators to be $28,350, or $787.50 per product.

The FAA has included all costs in this cost estimate. According to the manufacturer, however, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

(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 proposes to amend 14 CFR part 39 as follows:

On May 1, 2020, NOAA published a notice of proposed rulemaking to expand Flower Garden Banks National Marine Sanctuary (85 FR 25359). The purpose of the proposed action is to expand the sanctuary to include portions of 14 additional reefs and banks in the northwestern Gulf of Mexico, representing a 104 square mile increase in area. The existing FGBNMS regulations would be applied to the expanded locations. The proposed rule allowed for a 60-day public comment period, which ended on July 3, 2020.

On November 13, 2020, NOAA discovered that, due to an oversight, the Regulatory Impact Review (RIR) for the proposed rule was not posted for public comment with the rule. The RIR was subsequently posted on regulations.gov on November 16, 2020. The RIR, which was prepared by BOEM in consultation with NOAA in accordance with Executive Order 13795—Implementing an America First Offshore Energy Strategy, analyzed the impact of the proposed sanctuary expansion on offshore energy resources in the northwestern Gulf of Mexico. The RIR clarifies the extent of oil and gas development potential within the proposed sanctuary boundaries and supports the assessment that NOAA's proposed action would not have a significant negative economic impact on Outer Continental Shelf oil and gas development in the Gulf of Mexico.

To allow the public the opportunity to meaningfully comment on the RIR, NOAA is reopening the comment period for 15 days. Any new comments should be limited to the RIR's content, and any new comments not related to the RIR will not be considered.

The National Flood Insurance Act of 1968 (the 1968 Act) and the FDPA, as amended, govern the National Flood Insurance Program (NFIP). 1 The 1968 Act makes federally backed flood insurance available to owners of improved real estate or manufactured homes located in special flood hazard areas (SFHAs) if their community participates in the NFIP. A SFHA is an area within a floodplain having a one percent or greater chance of flood occurrence in any given year. SFHAs are delineated on maps issued by the Federal Emergency Management Agency (FEMA) for individual communities. 2 A community establishes its eligibility to participate in the NFIP by adopting and enforcing floodplain management measures that regulate new construction and by making substantial improvements within its SFHAs to eliminate or minimize future flood damage. The NFIP thus combines the concepts of hazard mitigation and insurance protection. By conditioning access to insurance on communities' adoption of floodplain management ordinances to mitigate the effects of flooding on new and existing construction, the NFIP incentivizes adoption of floodplain management ordinances.

Until the adoption of the FDPA in 1973, the purchase of flood insurance was voluntary. Section 102 of the FDPA made the purchase of flood insurance mandatory, providing that no federal officer or agency may approve any financial assistance for acquisition or construction  3 in any area identified as having SFHAs and in which the sale of flood insurance has been made available under the 1968 Act, unless the building or mobile home and any personal property is covered by flood insurance. Under the FDPA, flood insurance must be in an amount at least equal to the outstanding principal balance of the loan or to the maximum limit of coverage made available under the 1968 Act, whichever is less, and the coverage need not extend beyond the term of the loan.

The National Flood Insurance Reform Act of 1994  4 (Reform Act) comprehensively amended the Federal flood insurance statutes. The purpose of the Reform Act was to increase compliance with flood insurance requirements and participation in the NFIP to provide additional income to the National Flood Insurance Fund and to decrease the financial burden of flooding on the Federal government, taxpayers, and flood victims. 5 Among other changes, the Reform Act requires that the federal entities for lending regulation  6 revise their flood insurance regulations and brings lenders regulated by the Farm Credit Administration under the 1968 Act. The Reform Act also applies the flood insurance requirements directly to loans purchased by the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) (or collectively, the government sponsored enterprises or GSEs) and to Federal agency lenders, 7 including FHA in limited circumstances, that make direct loans secured by real property or mobile homes in a SFHA. 8 Under the Reform Act, the owner of a property located in a community participating in the NFIP, and mapped in a SFHA, must purchase flood insurance as a condition of receiving a mortgage backed by the GSEs, VA, USDA, or FHA.

The Biggert-Waters Insurance Reform Act of 2012 (Biggert-Waters Act) further amended the Federal flood insurance statutes to encourage private-sector participation. The Biggert-Waters Act requires the Federal entities for lending regulation (the Federal Reserve Board (FRB), the Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), the National Credit Union Administration (NCUA), and the Farm Credit Administration (FCA))), collectively, Federal regulators) to direct lenders to accept private flood insurance to satisfy the mandatory purchase requirement, instead of NFIP insurance, if the private flood insurance meets the conditions defined further in the statute at 42 U.S.C. 4012a(b)(7). In addition, the Biggert-Waters Act also requires federal agency lenders and government-sponsored enterprises for housing to accept private flood insurance, as defined by the statute. The Biggert-Waters Act also mandates that federally regulated lenders, federal agency lenders, and lenders who sell to or service loans on behalf of the GSEs must provide borrowers a notice encouraging them to consider and compare private market flood insurance policies with NFIP policies and must accept such private flood insurance policies that meet the definition of “private flood insurance” in the Biggert Waters Act as satisfaction of mandatory purchase and flood insurance coverage requirements under the FDPA. 9 Additionally, under the Biggert-Waters Act, the Federal regulators, Federal Housing Finance Agency, Federal agency lenders, and GSEs may require lenders to verify that insurers meet specific independent rating agency criteria relating to the financial solvency, strength, or claims-paying ability that indicate the insurers can satisfy claims. 10 On February 20, 2019 (84 FR 4953), the Federal regulators jointly issued a Final Rule implementing the private flood insurance provisions of the Biggert-Waters Act.

FHA's currently codified rules regarding the requirement to maintain flood insurance coverage on property located in a SFHA do not permit private flood insurance as an option to satisfy the mandatory purchase requirement under the FDPA. Instead, the FHA requires owners to obtain and maintain NFIP flood insurance during such a time as the mortgage is insured, to the extent that NFIP insurance is available.

HUD is proposing to amend FHA regulations at 24 CFR parts 201, 203, and 206, to allow owners the option to purchase private flood insurance on FHA-insured mortgages for properties located in SFHAs, consistent with the FDPA and in harmony with private flood insurance requirements under the Biggert-Waters Act. In the event of a lapse in the NFIP, the option of private flood insurance may reduce the likelihood of delays in the processing of new originations. Acceptance of private flood insurance policies would additionally benefit borrowers who want FHA-insured mortgages, by providing them consumer choice, including the opportunity to obtain private flood insurance policies that may be more affordable than NFIP policies.

Overall, this proposed rule would promote consistency with industry standards and reduce the regulatory restrictions on flood insurance for FHA-insured loans. HUD believes that this proposed rule would harmonize FHA policies with the Congressional intent to encourage an expanded private flood insurance market, as expressed in the Biggert-Waters Act. Accordingly, HUD is proposing to revise FHA regulations to permit mortgagors and mortgagees of single-family properties and other insured property to obtain private flood insurance on properties that secure FHA mortgages and are required to have flood insurance under the FDPA, as a private-sector alternative to NFIP flood insurance.

Specifically, HUD is proposing to revise 24 CFR 203.16a to include the definition of “private flood insurance” specified in section 100239 of the Biggert-Waters Act, which added a new section 102(b)(7) to the FDPA. This proposed rule would define “private flood insurance” similar to the statutory definition, to mean an insurance policy that:

1. Is issued by an insurance company that is licensed, admitted, or otherwise approved to engage in the business of insurance in the State or jurisdiction in which the property to be insured is located, by the insurance regulator of the State or jurisdiction; or, in the case of a policy of difference in conditions, multiple peril, all risk, or other blanket coverage insuring nonresidential commercial property, is recognized, or not disapproved, as a surplus lines insurer by the insurance regulator of the State or jurisdiction where the property to be insured is located;

2. Provides flood insurance coverage that is at least as broad as the coverage provided under a standard flood insurance policy under the NFIP, including when considering deductibles, exclusions, and conditions offered by the insurer;

3. Includes a requirement for the insurer to give written notice 45 days before cancellation or non-renewal of flood insurance coverage to the insured and the mortgagee or FHA, in cases where the lender has assigned the loan to FHA in exchange for claim payment.

4. Includes information about the availability of flood insurance coverage under the NFIP;

5. Includes a mortgage interest clause similar to the clause contained in a standard flood insurance policy under the NFIP;

6. Includes a provision requiring an insured to file suit not later than one year after the date of a written denial for all or part of a claim under the policy; and

7. Contains cancellation provisions that are as restrictive as the provisions contained in a standard flood insurance policy under the NFIP.

This definition would ensure that private insurers can satisfy claims and that private flood insurance coverage is at least as broad as the coverage provided under the NFIP.

HUD welcomes feedback from the public regarding acceptance of private flood insurance policies. Specifically, HUD is seeking public comment regarding whether FHA regulations should state that a Mortgagee may accept a qualifying private flood insurance policy in lieu of an NFIP policy or that a Mortgagee must accept a qualifying private flood insurance policy in lieu of an NFIP policy. HUD recognizes the value of consistency across the housing market with respect to flood insurance and of allowing FHA borrowers to select their preferred flood insurance policy, where required. However, HUD also recognizes that mortgagees have industry experience with different insurance providers and a responsibility for ensuring adequate insurance coverage is maintained.

A mortgagee may maintain more flood insurance than required by § 203.16a to protect the security interest in the mortgaged property.

HUD is proposing to include a compliance aid provision in § 203.16a to help mortgagees evaluate whether a flood insurance policy meets the definition of “private flood insurance.” This compliance aid will allow a mortgagee to conclude that a policy meets the definition of “private flood insurance” without further review of the policy if the policy, or an endorsement to the policy, states: “This policy meets the definition of private flood insurance contained in 24 CFR 203.16a(e) for FHA-insured mortgages.” This compliance aid will address concerns that a mortgagee, especially small mortgagees with a lack of technical expertise regarding flood insurance policies, could have difficulty evaluating whether a flood insurance policy meets the definition of “private flood insurance.” If a policy includes this statement, the mortgagee may rely on the statement and would not need to review the policy to determine whether it meets the definition of “private flood insurance.” However, the mortgagee could choose not to rely on this statement and instead make its own determination. This provision does not relieve a mortgagee of the requirement to accept a policy that both meets the definition of “private flood insurance” and fulfills the flood insurance coverage requirement, even if the policy does not include the statement. In other words, this provision does not permit mortgagees to reject policies solely because they are not accompanied by the statement. Mortgagees that are regulated lending institutions may seek additional compliance aids on the policy.

HUD's proposed compliance aid differs from the compliance aid provided by the Federal regulators' Final Rule implementing the private flood insurance provisions of the Biggert-Waters Act published at 84 FR 4953 on February 20, 2019. Because the Federal regulators are bound by the Biggert-Waters Act, their compliance aid explicitly references 42 CFR 4012a(b)(7). Except in limited circumstances when acting as a Federal agency lender, FHA was not included in the Biggert-Waters legislation, and is not governed by the associated regulations; instead, the HUD compliance aid cites the authority under 24 CFR 203.16a(e) for flood insurance requirements for FHA-insured mortgages. In addition to the different governing authorities, HUD's Proposed Rule is not identical to the Federal regulators' Final Rule on private flood insurance acceptance.

Specifically, unlike the Federal regulators, HUD will not permit Mortgagees to exercise their discretion to accept flood insurance policies, provided by private insurers or mutual aid societies, that do not meet the definition and requirements for a private flood insurance policy as laid out in this rule. HUD's requirements for FHA-insured mortgages may differ or exceed requirements by the Federal regulators on a number of issues, where appropriate, to best serve FHA borrowers and protect FHA's Mutual Mortgage Insurance Fund. Due to the differences between HUD and the Federal regulators' rules, compliance with the Federal regulators' Final Rule should not be interpreted as compliance with HUD's requirements. A private flood insurance provider can include both the Federal regulators' compliance aid and the HUD/FHA compliance aid on a policy to assert that the policy meets the definition and fulfills the requirements of both the Federal regulators and HUD. This would facilitate Mortgagees' review of a private flood insurance policy, to ensure that it is in compliance with HUD's regulations. HUD welcomes feedback from the public on this proposed compliance aid. Specifically, HUD is seeking public comment on the language and option for the proposed HUD compliance aid for private flood insurance policies to demonstrate compliance with HUD's definition and requirements for private flood insurance.

Finally, HUD is proposing to amend 24 CFR 201.28(a) (Property Improvement and Manufactured Home Loans), 203.343(b) (Single Family Mortgage Insurance), 206.45(c) (Home Equity Conversion Mortgage Insurance), and 206.134(b) (Home Equity Conversion Mortgage Insurance) to permit borrowers to obtain private flood insurance on certain other types of mortgages that are required to have flood insurance under the FDPA. HUD is proposing to define private flood insurance in these sections by cross-reference to the definition in 203.16a.

Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public.

HUD has examined the economic, budgetary, legal and policy implication of this action and has determined that this proposed rule is a significant regulatory action under section 3(f) of Executive Order 12866 (but not an economically significant action).

Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017. Section 2(a) of Executive Order 13771 requires an Agency, unless prohibited by law, to identify at least two existing regulations to be repealed when the Agency publicly proposes for notice and comment or otherwise promulgates a new regulation. In furtherance of this requirement, section 2(c) of Executive Order 13771 requires that the new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. This proposed rule is expected to be an E.O. 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's economic analysis.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Initially, supervised mortgagees are among FHA-approved lenders. These mortgagees are supervised by the Federal regulators. Based on the analysis developed by the Federal regulators and published as part of their final rule ( see 84 FR 4953), the Federal regulators determined that allowing private flood insurance in mortgage transactions conducted by these mortgagees would not have a significant economic impact on a substantial number of small entities they supervised. This finding is also true for the share of regulated lending institutions supervised by the Federal regulators that are FHA-approved lenders.

Small entities also include small businesses, small not-for-profit organizations, and small governmental jurisdictions. This rule, however, offers a benefit to all FHA-approved mortgagees regardless of the size of the firm. Allowing private insurers to compete provides business opportunities to those private insurers. The rule would provide a compliance aid which will allow all mortgagees, including small mortgagees that may lack technical expertise regarding flood insurance policies, to conclude that a policy meets the definition of “private flood insurance” without further review of the policy if the policy, or an endorsement to the policy, states: “This policy meets the definition of private flood insurance contained in 24 CFR 203.16a(e) for FHA-insured mortgages.” This proposed rule would also reduce the burden to all mortgagees, including those small entities, by aligning FHA's regulations with those issued by the Federal regulators.

For flood insurance companies, there is less data. However, existing analysis by Kousky et al. (2018)  11 on private insurers that are currently providing flood insurance shows that these private insurance companies are mostly surplus line carriers that operate globally. This finding implies that such carriers cannot be considered as small entities. Taking advantage of the business opportunities is more difficult for small firms because large firms are inherently favored by their ability to spread flood risk. However, as the private flood insurance market expands, it is expected to become less concentrated, to the benefit of small entities. Overall, HUD believes that this rule will not have a significant impact on a substantial number of small entities, and the impact of the rule on those small entities impacted will be beneficial rather than adverse. Therefore, this proposed rule is not expected to have a significant economic impact on small entities.

Notwithstanding HUD's determination, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives as described in the preamble to this rule.

A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is available for public inspection on www.regulations.gov.

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either (i) imposes substantial direct compliance costs on state and local governments and is not required by statute, or (ii) preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This proposed rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive order.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This proposed rule would not impose any Federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of the UMRA.

For the reasons discussed in the preamble, HUD proposes to amend 24 CFR parts 201, 203, and 206 as follows:

DoD published a proposed rule in the Federal Register at 84 FR 65322 on November 27, 2019, under DFARS Case 2019-D029 to implement sections 877 and 878 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328) and further implement section 848 of the NDAA for FY 2018 (Pub. L. 115-91). DoD is publishing a second proposed rule under DFARS Case 2020-D033 to further implement section 848, because of substantial changes from the first proposed rule. Section 848 modifies 10 U.S.C. 2380(b) to provide that a contract for an item using FAR part 12 procedures shall serve as a prior commercial item determination, unless the appropriate official determines in writing that the use of such procedures was improper or that it is no longer appropriate to acquire the item using commercial item acquisition procedures. This rule also proposes to remove the procedures at DFARS subpart 212.70, established pursuant to section 856 of the NDAA for FY 2016 (Pub. L. 114-92), which apply to procurements of more than $1 million previously procured under a prime contract using FAR part 12 procedures. The authority for these procedures expires on November 25, 2020.

One respondent submitted public comments with regard to prior use of part 12 procedures and commercial item determinations in response to the first proposed rule. DoD reviewed the public comments in the development of this second proposed rule. A discussion of the comments and the changes made to the rule as a result of those comments is provided, as follows:

1. Moves to paragraph 212.102(a)(ii) the coverage on prior commercial item determinations proposed originally at paragraph 212.102(a)(iii), in order to precede the paragraph on commercial item determinations.

2. Rewrites the coverage at 212.102(a)(ii) to shift emphasis to prior use of commercial item determinations.

3. Changes the applicability of the proposed paragraph on commercial item determinations at 212.102(a)(iii) to apply to acquisitions at any dollar value, not just those that exceed $1 million.

Comment: One respondent recommended revision of the proposed rule to direct contracting officers to rely on prior use of FAR part 12 procedures or prior commercial item determinations and only request waivers on a case-by-case basis. The respondent believed that the proposed rule, as written, would undermine this policy objective, and recommended rewrite of proposed DFARS 212.102(a)(ii)(A) and (a)(iii)(B)( 2 ).

Response: DoD has increased the emphasis on the requirement to rely on prior use of FAR part 12 procedures. However, some recommendations were not accepted, such as removal of the limited applicability to acquisition of commercial items pursuant to 212.102(a)(i)(A), and the requirement of higher-level approvals for certain commercial item determinations. The following are responses to specific aspects of the respondent's comments on the first proposed rule:

1. Applicability to statutory exceptions (212.102(a)(i)(B)). 10 U.S.C. 2380(b)(1) requirement with regard to prior use of FAR part 12 procedures serving as prior commercial item determination does not apply to items purchased using FAR part 12 procedures that are not commercial items, but only treated as commercial items ( i.e., 41 U.S.C. 1903 and 10 U.S.C. 2380a). It does not make sense to infer a commercial item determination for acquisitions of items that may not be commercial items, and do not require a commercial item determination. Further, applicability of these statutory exceptions to treat certain items as commercial items is not dependent on the particular items being purchased, but on circumstances peculiar to a particular acquisition, that cannot be extrapolated to other acquisitions of the same item. DoD concluded that the 10 U.S.C. 2380(b)(1) statement “shall serve as a prior commercial item determinations for such item for purposes of this chapter” is applicable only if a commercial item determination is applicable to the item.

2. Applicability at all dollar values. According to 10 U.S.C. 2380, as amended by section 848 of the NDAA for FY 2018, unless certain determinations are made, a contract for an item acquired using commercial item acquisition procedures under part 12 of the Federal Acquisition Regulation shall serve as a prior commercial item determination with respect to such item for purposes of this chapter. This law does not distinguish between acquisitions above or below $1 million. DoD concluded that it, therefore, applies regardless of dollar value.

3. Prior use of FAR part 12 procedures (212.102(a)(ii)). Due to amendment of 10 U.S.C. 2380 by section 848 of the NDAA for FY 2019, the consideration of whether FAR part 12 procedures have been previously used should be the next step in the decision-making process (after determining that a statutory exception does not apply). Therefore, these paragraphs have been relocated from 212.102(a)(iii) to 212.102(a)(ii), because prior use of part 12 procedures needs to be considered prior to the need for a new commercial item determination. In order to determine whether part 12 procedures have been previously used, the contracting officer shall review the Commercial Item Determination Database, or may utilize other available evidence. The contracting officer shall document the file accordingly.

This proposed rule limits to DoD contracts the requirement that prior use of part 12 procedures shall serve as a commercial item determination, because this is a DoD statute, implemented in the DFARS, and DoD does not control how civilian agencies make commercial item determinations and use FAR part 12 procedures, nor does it have the data on civilian agency commercial item determinations in its commercial item determination database.

DoD has not accepted all of the recommended changes to the prior use of FAR part 12 procedures, because there are nuances relating to other statutes that need to be addressed; this rule also addresses 10 U.S.C. 2306a(b)(4) and 10 U.S.C. 2380b. This rule also retains the delegation to the head of the contracting activity of the function assigned in the statute to the senior procurement executive.

4. Million dollar threshold for commercial item determinations (when there is no evidence of prior use of FAR part 12 procedures for the acquisition of commercial items (212.102(a)(iii)). The million dollar threshold was based on policy, to avoid overly burdensome requirements on lower dollar value acquisitions. If contracting officers are accepting prior use of part 12 procedures, even below $1 million, as commercial item determinations for subsequent buys, then it is necessary to apply the same standards at any dollar value, since these determinations can form the basis for much larger acquisitions.

The rule proposes to delete, add, or amend some of the pointers to DFARS Procedures, Guidance, and Information (PGI) to conform to the current PGI.

This rule does not create any new solicitation provisions or contract clauses, or amend any existing provisions or clauses.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This rule is not expected to be subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866.

DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

This proposed rule is necessary in order to further implement section 848 of the National Defense Authorization Act (NDAA) for Fiscal Fear (FY) 2018 (10 U.S.C. 2380(b)).

The objective of this rule is to address the use of FAR part 12 procedures and commercial item determinations. If the Commercial Item Determination Database contains a prior commerciality determination, or the contracting officer has other evidence that an item has previously been acquired by DoD using commercial item acquisition procedures under FAR part 12, the prior contract shall serve as a prior determination that an item is a commercial item, as defined in FAR 2.101. The legal basis for the rule is the NDAA section cited as the reason for the action.

DoD awarded contracts to an average of 40,689 unique entities (including 30,806 small businesses) each year from FY 2016 through FY 2018. This rule impacts the procedures for commercial item determinations for products and services offered to the Government.

This rule does not impose any new reporting, recordkeeping, or other compliance requirements.

The rule does not duplicate, overlap, or conflict with any other Federal rules.

DoD did not identify any significant alternatives that would minimize or reduce the significant economic impact on small entities, because there is no significant impact on small entities. Any impact is expected to be beneficial.

DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2020-D033), in correspondence.

The rule does not contain any new information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR part 212 is proposed to be amended as follows:

I. Background

This rule proposes to amend the DFARS to remove references to Executive Order (E.O.) 13423, Strengthening Federal Environmental, Energy, and Transportation Management, and E.O. 13514, Federal Leadership in Environmental, Energy, and Economic Performance, as the authorities for the policy at DFARS subpart 223.73, Minimizing the Use of Materials Containing Hexavalent Chromium. Both E.O. 13423 and E.O. 13514 were revoked by E.O. 13693, Planning for Federal Sustainability in the Next Decade, which was later revoked by E.O. 13834, Efficient Federal Operations (83 FR 23771, May 22, 2018). However, the removal of these references will not impact DoD's policies and procedures for minimizing the use of hexavalent chromium, a known carcinogen, still used in some DoD weapon systems and platforms due to its corrosion protection properties.

On May 5, 2011, DoD issued a final rule, Minimizing the Use of Materials Containing Hexavalent Chromium (DFARS Case 2009-D004) (76 FR 25569), which amended the DFARS to implement requirements for minimizing the use of materials containing hexavalent chromium in items acquired by DoD pursuant to an Under Secretary of Defense (Acquisition, Technology, and Logistics) policy memorandum dated April 8, 2009. The final rule codified internal procedures for addressing the serious human health and environmental risks related to the use of hexavalent chromium and prohibited the delivery of items containing more than 0.1 percent by weight hexavalent chromium in any homogeneous material under DoD contracts unless there is no acceptable alternative to the use of hexavalent chromium. While this rule removes references to the revoked E.O.s, there is no change to the DoD policy implemented under the prior DFARS rule.

The policy related to minimizing the use of materials containing hexavalent chromium is implemented in DFARS subpart 223.73. This rule proposes to remove references to E.O. 13423 and E.O. 13514 in the authorities section at DFARS 223.7302. In addition, this rule proposes to amend the policy section at DFARS 223.7301 to cite the DoD policy memorandum, dated April 8, 2009, as the source for the policy implemented in the DFARS. There are no changes proposed to the requirements of DFARS subpart 223.73 or the associated contract clause at DFARS 252.223-7008, Prohibition of Hexavalent Chromium. Therefore, there will be no impact to contracting officers or contractors as a result of this rule.

This proposed rule does not create any new provisions or clauses, nor does it change the applicability of any existing provisions or clauses included in solicitations and contracts valued at or below the simplified acquisition threshold, or for commercial items, including commercially available off-the-shelf items.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

The rule is not anticipated to be subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866.

DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this rule maintains the current policies, procedures, and contract clause. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

This rule proposes to amend the DFARS to remove references to Executive Order (E.O.) 13423, Strengthening Federal Environmental, Energy, and Transportation Management; and E.O. 13514, Federal Leadership in Environmental, Energy, and Economic Performance, which were revoked by E.O. 13693, Planning for Federal Sustainability in the Next Decade. E.O. 13693, was later revoked by E.O. 13834, Efficient Federal Operations (83 FR 23771, May 22, 2018). The rule proposes to replace references to the revoked E.O.s with a reference to the DoD policy memorandum, dated April 8, 2009, Minimizing the use of Materials Containing Hexavalent Chromium.

The objective of the case is to remove two revoked E.O.s, while maintaining current DoD policies and procedures for minimizing the use of materials containing hexavalent chromium.

Data generated from the Electronic Data Access system for fiscal years 2017 through 2019, indicates that DoD has awarded an average of 99,832 contracts containing DFARS clause 252.223-7008, Prohibition of Hexavalent Chromium, to approximately 14,777 unique entities per year, of which 70,470 contracts were awarded to 10,868 unique small entities (74 percent).

The rule does not impose any new reporting, recordkeeping, or compliance requirements. The requirements of DFARS clause 252.223-7008 remain unchanged; therefore, this rule is not expected to affect significant numbers of small business concerns.

The rule does not duplicate, overlap, or conflict with any other Federal rules.

There are no significant alternatives that will accomplish the objective of this rule.

DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 610 (DFARS Case 2020-D031), in correspondence.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR 223 is proposed to be amended as follows:

The National Environmental Policy Act, as amended, 42 U.S.C. 4321-4347 (NEPA), requires all Federal agencies to assess the environmental impact of their actions. 42 U.S.C. 4332(2)(C). The Council on Environmental Quality (CEQ) has issued regulations at 40 CFR parts 1500-1508 (CEQ regulations) implementing NEPA that are binding on Federal agencies. On July 16, 2020, CEQ issued a final rule comprehensively updating those regulations. 85 FR 43304 (July 16, 2020). The CEQ regulations require Federal agencies to develop or revise their procedures for implementing NEPA, as necessary, for consistency with CEQ's regulations or for efficiency. 40 CFR 1507.3(b), (c). The CEQ regulations require agencies to consult with CEQ during the development of their implementing procedures and prior to their publication in the Federal Register . 40 CFR 1507.3. The U.S. Department of Transportation (Department or DOT) has accordingly reviewed its current implementing procedures and undertakes this revision pursuant to 40 CFR 1507.3. The Department developed the proposed rule in consultation with CEQ. In accordance with 40 CFR 1507.3(a), the Department is proposing this rule and providing an opportunity for public review and comment on the proposal.

NEPA establishes a national environmental policy of the Federal Government to use all practicable means and measures to foster and promote the general welfare, create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. 42 U.S.C. 4331(a). Section 102(2) of NEPA establishes the procedural requirements to carry out the policy stated in section 101 of NEPA. It requires Federal agencies to consider the environmental effects of proposed actions in their decisionmaking and prepare detailed environmental statements on recommendations or reports and other major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. 4332(2)(C). In 2005, Congress enacted 23 U.S.C. 139, “Efficient environmental reviews for project decisionmaking,” a streamlined environmental review process for highway, transit, and multimodal transportation projects through the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 109-59, sec. 6002 (2005). In 2012, Congress declared it in the national interest to accelerate transportation project delivery and reduce costs, and ensure that transportation planning, design, and construction are completed in an efficient and effective manner. Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 112-141, sec. 1301 (2012) (set out at 23 U.S.C. 101 note). In 2015, Congress also directed the Department to implement a variety of reforms to streamline and accelerate its environmental review process. See Fixing America's Surface Transportation Act (FAST) Act, Public Law 114-94 (2015).

The Department proposes to revise its current procedures, DOT Order 5610.1C, “Procedures for Considering Environmental Impacts,” originally published in 1979, 44 FR 56420 (Oct. 1, 1979), and codify them in the Code of Federal Regulations. DOT Order 5610.1C, which is now in effect, was updated in 1982 and 1985 (1985 procedures). 1 This proposed rule would update and modernize the 1985 procedures and reflect current departmental NEPA practice. As reflected in the proposed rule, the Department also considered comments it received in response to its publication of proposed Order 5610.1D in the Federal Register on December 20, 2016. 81 FR 92966.

The Department is issuing this proposed rule to enhance and modernize the Department's environmental review processes, bring consistency to the documentation of environmental analyses under these processes, and incorporate strategies to complete environmental review more efficiently in accordance with streamlining efforts developed by the Department at the direction of Congress. This proposed rule would update the procedures to be consistent with CEQ's updated regulations and promote agency efficiency. This proposed rule would also update the 1985 procedures to account for relevant project delivery provisions and other streamlining efforts included in SAFETEA-LU, MAP-21 and the FAST Act, that apply departmentwide. Accordingly, the proposed rule would reflect the Department's modern NEPA practices and unique project delivery statutory authorities by providing direction on analyzing multimodal projects in an expedited and streamlined manner, enhancing early coordination, and incorporating a multimodal categorical exclusion (CE) process that allows the Department's Operating Administrations (OAs) to utilize each other's CEs. The proposed rule would also incorporate agency practice, including environmental review tracking requirements, and would provide for accountability for agency NEPA compliance to senior agency officials, consistent with the updated CEQ regulations. See 40 CFR 1508.1(dd).

The proposed rule seeks to ensure a full and fair environmental review process that includes meaningful public involvement throughout, and balanced consideration of alternatives and potential impacts on the human environment. The proposed rule would modernize the 1985 procedures to improve efficiency and expedite project delivery; provide enhanced customer service to stakeholders through consistent implementation of NEPA across the Department, where possible; provide support for the Department's OAs to apply OAs specific NEPA implementing procedures to their specific programs; and balance the needs of all OAs. These reforms are intended to ensure that NEPA documents inform and involve the public, focus on the significant issues that require analysis, and foster informed decisionmaking based on an understanding of the potential action's environmental consequences.

This proposed rule would revise the internal procedures of the Department, promoting consistent implementation across the Department of its responsibilities under NEPA while still allowing flexibility for each OA to carry out its own mission. Facilitating the appropriate use of departmental CEs would reduce the expenditure of government resources on the preparation of environmental assessments (EAs) or environmental impact statements (EISs) and would shorten approval timelines for activities or projects that, based on the Department's experience, normally do not have the potential to have a significant effect on the human environment and therefore normally do not require the preparation of an EA or EIS. 40 CFR 1501.4. Promulgating CEs for the entire Department also promotes consistency, reduces inefficiency, and allows OA procedures to focus on the unique issues in their programs. Codifying all these policies and procedures would provide consistency, aid efficiency, reduce duplication, and refocus agency practice on fostering informed decisionmaking, rather than generating paperwork. The Department expects that this would reduce unnecessary delays. The Department also expects the proposed changes to increase the availability and use of CEs, early collaboration, and dispute resolution and coordination techniques, and to improve timely completion of the environmental review process.

The proposed rule would comprehensively update the 1985 procedures. This proposal would update the organization of the 1985 procedures to align with current Department organization, practice, and policies to more effectively and efficiently implement the DOT NEPA policies and the new revisions of the CEQ regulations published on July 16, 2020 (85 FR 43304). The proposal would update the existing Departmentwide CEs, including adding 11 new CEs and modifying the existing CEs. The proposal would also improve clarity and reduce ambiguity regarding the entities responsible for taking the actions specified in the rule. To improve readability, this proposal would designate “OA” as the entity responsible for conducting NEPA analyses, and would define “OA” to include a Secretarial Office that carries out its own NEPA responsibilities (as opposed to an office that relies on an OA's expertise to prepare the NEPA document). This proposal also would update the names of the relevant offices that have responsibilities, including the Office of Policy and Office of the General Counsel (and relevant subdivisions thereof). The proposal would apply to the Department's diverse programs and actions, and, to the extent possible, would avoid creating conflicts with existing OA programs and actions. To that end, the Department does not propose to include the more detailed policy concerning the format and content of EISs that was contained in Attachment 2 of the 1985 procedures. DOT also does not propose to include Attachment 1 of the 1985 procedures, which provided a list of the States and localities with EIS requirements. Finally, this proposal would update terminology for consistency with modern NEPA practice and the Department's current operations. The proposed revisions to the 1985 procedures are provided in Table 1.

This proposal would rearrange the 1985 procedures and would separate them into two subparts to divide the generally applicable provisions in subpart A from the provisions addressing the NEPA review process and compliance responsibilities in subpart B. In addition, subpart B would reorder sections from the 1985 procedures to align with the Department's environmental review process and the levels of NEPA documentation.

This proposal would remove the Introduction and Background sections of the 1985 procedures and would transfer content addressing the purpose of the Department's NEPA implementing procedures to proposed §§ 13.1 and 13.5. Proposed subpart A would significantly reorganize and update section 2 of the 1985 procedures, “Policy and Intent,” in proposed § 13.5 to reflect current policy and intent of the DOT NEPA procedures. As discussed more specifically in the section-by-section summaries of proposed §§ 13.1 through 13.5, this proposed subpart would emphasize the Department's goals to: (1) Achieve the Department's mission and ensure consistency with national transportation policy (§ 13.5(a)); (2) use the NEPA process as an umbrella to achieve a single, integrated environmental review process  2 (§ 13.5(b)); (3) use sound science and reliable data (§ 13.5(c)); (4) facilitate a collaborative process to achieve optimal outcomes while protecting and enhancing the environment (§ 13.5(d)); and (5) ensure meaningful public participation and collaboration (§ 13.5(e)).

This proposed subpart would set forth the Department's overarching environmental policy in the context of its agency mission, which is to ensure the safest, most efficient and modern transportation system in the world, which improves the quality of life for all American people and communities, from rural to urban, and increases the productivity and competitiveness of American workers and businesses. The proposed subpart would provide consistency between the Department's NEPA procedures and congressional declarations of policy, which provide that it is in the national interest to “accelerate project delivery and reduce costs” and to ensure that transportation project delivery is completed in “an efficient and effective manner, promoting accountability for public investments and encouraging greater private sector involvement . . . while enhancing safety and protecting the environment.” MAP-21 sec. 1301 (set out at 23 U.S.C. 101 note). Finally, this subpart would support the presumptive time limits established in the updated CEQ regulations to complete environmental documentation. See 40 CFR 1501.10.

The applicability section would focus on the implementation of NEPA pursuant to the CEQ regulations and include covered actions. Covered actions would identify categories of Department actions typically subject to NEPA. For consistency with the CEQ regulations at 40 CFR 1508.1(q), this section would clarify that loans and loan guarantees may be actions subject to NEPA when the OA exercises sufficient control and responsibility over the effects of such assistance. This list would also include “approvals of policies and plans (including those submitted to the Department by State, Tribal, or local agencies, or other public or private applicants, unless otherwise exempted).”

The CEQ regulations at 40 CFR 1501.1 and 1507.3(d) provide that agencies should identify activities or decisions that are not subject to NEPA. This section would exclude transportation improvement plans (TIPs) and statewide improvement plans (STIPs) conducted pursuant to 23 U.S.C. 134 and 135 because TIPs and STIPs are statutorily exempt from review under NEPA pursuant to 23 U.S.C. 134(q) and 23 U.S.C. 135(k), respectively. In addition, the section would clarify, consistent with 40 CFR 1501.1(a)(5) and 1507.3(d)(5), and with Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), that a proposal is not an action subject to NEPA if the proposal is ministerial in nature; if the Department lacks discretion to consider the environmental impacts in making the decision; or if the Department does not have responsibility for, or cannot control, the outcome. DOT recommends that OAs identify any specific additional activities or decisions to which NEPA does not apply, consistent with 40 CFR 1501.1 and 1507.3(d), as appropriate, in their own implementing procedures as stated in § 13.7(c)(1).

The Department proposed to use “rulemakings” rather than the phrase “rulemaking and regulatory actions” as used in DOT Order 5610.1C because the term rulemaking already encompasses regulatory actions by its definition. In addition, the Department does not include “research activities” because most of the Department's research activities would not have environmental impacts subject to NEPA. To the extent that a research activity is an action, it may be appropriate to categorically exclude an action under CE #9. References to other environmental requirements are updated and reorganized. The Department therefore proposes to list certain authorities previously listed in paragraph 3 of the Introduction section of the 1985 procedures in Appendix C of proposed part 13. In addition, the Department would not include statutory references that are not broadly applicable to the Department, are substantively addressed elsewhere in the proposed rule, or are implemented by OA procedures. As a result, this proposal would not include the following references: Section 2(b) of the Department of Transportation Act of 1966 (49 U.S.C. 1653); Section 309 of the Clean Air Act, as amended (42 U.S.C. 7401 et seq. ); Section 303 of the Coastal Zone Management Act of 1972 (43 U.S.C. 1241); and, where environmental statements are required, Sections 138 and 109 of Federal aid highway legislation (Title 23); Sections 16 and 18(a) of the Airport and Airway Development Act of 1970 (49 U.S.C. 1716, 1718); and Section 14 of the Urban Mass Transportation Act of 1964 (49 U.S.C. 1601 et seq. ).

While the 1985 procedures did not contain a definitions section, the Department determined that it would be helpful to define certain terms to reduce ambiguity as to certain terminology used in this proposed rule and by the Department's NEPA practitioners. This proposed section would incorporate by reference the definitions from the CEQ regulations set forth in 40 CFR 1508.1, and supplement those definitions where necessary. This section would define the following terms:

(a) Applicant. This definition would define “applicant” broadly to reflect the variety of applicants encountered across the Department. This definition also would recognize that some OA NEPA implementing procedures (OA Procedures) provide that the applicant will carry out some of the responsibilities of the OA on its behalf, and therefore could conduct activities under the Department's NEPA procedures on behalf of that OA. This definition is intended to provide flexibility to OAs that administer programs where applicants are responsible for preparing NEPA documents on behalf of OAs. This includes State DOTs, transit agencies, and other applicants that prepare NEPA documents or carry out other responsibilities for the NEPA process pursuant to OA NEPA procedures. For purposes of this part, the definition of “applicant” does not include States that are assigned environmental review responsibilities pursuant to a memorandum of understanding executed pursuant to statutory authority under 23 U.S.C. 326 and 327. States that carry out such assignments are deemed to be OAs for purposes of this part.

(b) Environmental review process. The Department would include this term to emphasize that the Department strives to comply not just with NEPA, but with all applicable environmental requirements in a single process, so as to ensure efficient project delivery and decisionmaking.

(c) Level of NEPA Review. The Department would include this term to mean the level of NEPA review required for a particular action ( i.e., a CE, an EA, or an EIS).

(d) NEPA Document. The proposal would use the term “NEPA document” in addition to “environmental document” as used in the CEQ regulations, and would define it more broadly to include an EIS, a record of decision (ROD), an EA, a finding of no significant impact (FONSI), or any documentation that may be prepared in the application of a CE to a proposed action.

(e) Operating Administration (OA): The Department would define “OA” to mean any agency established within the Department, and cross reference to the list of the current OAs in 49 CFR 1.3. As noted in Section II of this rulemaking, to improve readability of this proposal, “OA” would also include a Secretarial Office where that office is carrying out its own NEPA responsibilities.

This proposed section would set forth the Department's policies for evaluating environmental impacts caused by Department actions. This section would modify language previously contained in sections 1 and 2 of the 1985 procedures and would state in proposed paragraphs (a), (b), and (c) that the policy of the Department is to: Integrate Federal environmental objectives into Department programs while avoiding or minimizing adverse environmental effects wherever practicable; synchronize NEPA and other environmental requirements into a single, concurrent process; and apply sound science, reliable data, and a systematic interdisciplinary approach.

The Department's policies further statutory directives set forth in section 1313 of the FAST Act to: Develop a coordinated and concurrent environmental review and permitting process for transportation projects as well as align Federal reviews; reduce permitting and project delivery timelines; and facilitate interagency collaboration. Accordingly, proposed paragraphs (d) and (e) would include instructions to: Maximize the use of proven strategies to complete the environmental review process efficiently; and encourage meaningful, proactive, open, and transparent public participation and collaboration.

In addition, this proposed section would not include certain policy language from the 1985 procedures to update and align the Department's processes with the updated CEQ regulations and statutory provisions contained in section 1301 of MAP-21 (set out at 23 U.S.C. 101 note) directing the Department to accelerate transportation project delivery, reduce costs, and ensure that transportation projects are completed in a streamlined manner and that environmental reviews are efficient and effective. The Department will continue to conduct environmental reviews consistent with 40 CFR 1501.3 and other authorities, where applicable, including Section 4(f) (23 U.S.C. 138 and 49 U.S.C. 303). For purposes of streamlining the procedures, the Department would clarify in Appendix C its expectation that OAs would integrate into the NEPA process compliance with substantive environmental laws. As to this section, the Department is of the view that it is not necessary to include specific references regarding: Preservation of the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites; preservation, restoration, and improvement of wetlands; improvement of the urban physical, social, and economic environment; and provision of opportunities for disadvantaged persons. These matters are otherwise covered in substantive environmental laws.

The Department would not include language stating that the EIS, FONSI, and determination that a proposed action is categorically excluded serve as the record of compliance with the Department's environmental review policy, NEPA procedures, and other environmental statutes and Executive orders. The proposal recognizes that an EIS contains analyses, but is not a decision document like a FONSI or CE determination, and an EIS alone is not final agency action. See 40 CFR 1500.3(c) and 85 FR at 43318.

Proposed § 13.7 would be a new addition to the Department's implementing procedures. This section would list the roles and responsibilities within the Department for implementing NEPA, the CEQ regulations, this proposed rule, OA implementing procedures, and other applicable laws.

The CEQ regulations introduce the term “senior agency official” to differentiate between an agency decisionmaker for an individual action and the agency official who oversees the agency's overall compliance with NEPA. 40 CFR 1508.1(dd). CEQ acknowledged that multiple individuals may carry out these responsibilities in agencies that have subunits with their own agency procedures or NEPA compliance programs. 85 FR 43304, 43315 (July 16, 2020). Within DOT, OAs carry out their own NEPA compliance programs. Accordingly, proposed paragraph (a) would identify the Assistant Secretary for Transportation Policy (Assistant Secretary) as the senior agency official responsible for implementing NEPA, establishing NEPA policy, and identifying the OA that will serve as the lead agency for all actions taken by the Department pursuant to 49 CFR 1.25a(a)(2). For example, to create efficiencies, the senior agency official may designate one OA to act as the lead agency and to prepare the environmental documentation on behalf of all OAs for certain actions, such as when a multimodal project receives funding from or requires approval by one or more OAs. In addition, consistent with CEQ's direction and to maximize efficiency, these procedures would, in certain instances, permit an OA Administrator to carry out the responsibilities of a senior agency official at an OA level. For example, paragraph (c) of § 13.19 would permit either the Assistant Secretary or an OA Administrator to act as the senior agency official for purposes of allowing an OA to exceed the presumptive limit of 75 pages and to establish a new page limit for the EA. Similarly, for purposes of setting EA time limits for EAs, paragraph (c) of § 13.19 would authorize either official to set new time limits. Finally, consistent with the Department's Interim Guidance on Page Limits for National Environmental Policy Act Documents and Focused Analyses (84 FR 44351 (August 23, 2019)), the Department would reserve to the Assistant Secretary in § 13.23(f) through (g) similar decisionmaking authority for EISs.

Proposed paragraph (b) would identify the Office of the Secretary of Transportation, Office of Policy Development, Strategic Planning, and Performance (Office of Policy) as the responsible office for NEPA implementation and compliance with related environmental requirements, and as the source of additional environmental review process information. It would require OAs to consult with the Office of Policy, and in turn with the Office of the General Counsel (OGC), in certain situations.

Proposed paragraph (c) would identify OGC as legal counsel to the Office of Policy on topics related to the implementation and interpretation of NEPA, the CEQ regulations, this proposed rule, and other applicable laws; charge OGC with providing legal sufficiency determinations on Department NEPA documents; and charge OGC with coordinating with OAs and the Department of Justice on NEPA-related litigation.

Proposed paragraph (d) would identify this proposal as a supplement to CEQ regulations that sets forth procedures specific to Department actions, with which all OAs must comply. This provision originally appeared in the Introduction section of the 1985 procedures.

Proposed paragraphs (e)(1) through (5) would require each OA to issue or modify its NEPA implementing procedures through an Order or regulations consistent with this proposal, the CEQ regulations, and other applicable laws. This section would also outline the minimum requirements of each OA's procedures, and the process that OAs may use to revise existing or create new provisions. This direction was originally found at section 20 of the 1985 procedures and has been updated to reflect the updated CEQ regulations (85 FR 43304 (July 16, 2020)). Finally, this proposed section would authorize OAs, subject to 40 CFR 1507.3(a), to rely on their existing procedures until their new procedures are reviewed and revised, and to use, on a discretionary basis, portions of the Department's procedures to the extent such direction has not been incorporated into the OA's procedures.

Proposed § 13.9 would retain the direction provided in the 1985 procedures at section 3, “Planning and Early Coordination,” and would incorporate direction for the early portions of the NEPA process. Proposed paragraph (a) is intended to implement MAP-21 sec. 1320, which encourages agencies to coordinate with one another “at the earliest practicable time.” Consistent with 40 CFR 1501.2(a), proposed paragraph (a)(1) would encourage early and ongoing coordination, and would require early efforts to identify the purpose and need, environmental impacts, reasonable alternatives, and measures to avoid, minimize, or mitigate adverse environmental impacts, as appropriate. Consistent with requirements in 40 CFR 1506.1, the proposed paragraph (a)(2) would include a general prohibition against taking actions that will have an adverse environmental impact or limit the choice of reasonable alternatives until after a final NEPA determination is made; and it would set forth notification requirements should the OA become aware that such an action may have been taken. Proposed paragraphs (b) and (c) would build on section 3(b) of the 1985 procedures. Proposed paragraph (b) would require OAs to ensure that applicants are aware of environmental review and analysis requirements. Proposed paragraph (c) would require coordination with other OAs; Federal, State, Tribal, and local resource and regulatory agencies; stakeholders; and the public to comply with NEPA and other relevant statutes, regulations, and Executive Orders. Proposed paragraph (d) would encourage reliance on information developed during the planning process to avoid duplicating efforts in the NEPA process. This proposal would encourage consideration of environmental impacts during transportation planning; however, this process is explicitly exempted from NEPA pursuant to 23 U.S.C. 134(q) and 135(k). Nevertheless, in accordance with MAP-21 sec. 1310 and FAST Act sec. 1305, this proposal would recognize the statutory framework that permits the products of statewide and metropolitan planning processes to be adopted for use in the NEPA process. Proposed paragraph (e) would discuss the use of the scoping process in early coordination to identify significant issues and to ensure early public involvement in the NEPA process. It further would instruct OAs to use early coordination tools to accelerate the EIS process.

Proposed § 13.11 would include language, with minor revisions, generally consistent with section 6 of the 1985 procedures, “Lead Agencies and Cooperating Agencies.” This section would outline the responsibilities of lead, joint lead, cooperating, and participating agencies consistent with the CEQ regulations, the appropriate timing for coordination with cooperating agencies, and protocols for coordinating with agencies that decline a DOT-requested cooperating agency status. This section would align with the update to the CEQ regulations, 40 CFR 1501.7 and 1501.8, to highlight the responsibilities of the lead agency, including the responsibility to issue a single environmental document, single FONSI, or single ROD for the lead and cooperating agencies, the responsibility to determine the scope and significant issues to be analyzed in depth in the environmental impact statement, and the responsibility to determine the purpose and need and range of alternatives in consultation with the cooperating agency. In addition, the lead agency would be responsible for creating and updating the project schedule in coordination with the cooperating agencies. Finally, proposed paragraph (d) would recommend inviting agencies that may have an interest in the proposed action and are not cooperating or lead agencies to participate in the environmental review process. This approach is similar to the participating agency role set forth in 23 U.S.C. 139(d). Since applicants may carry out the responsibilities of the OA on its behalf, this proposal would not include the requirement from the 1985 procedures for applicants to serve as joint lead agencies.

This proposal would include a new proposed § 13.13. This proposed addition would build upon several provisions from the 1985 procedures, including section 2, “Policy and Intent;” section 7, “Preparation and Processing of Draft Environmental Statements;” section 10, “Predecision Referrals to the Council on Environmental Quality;” and section 14, “Citizen Involvement Procedures.”

Proposed paragraph (a) would address the integration, to the maximum extent possible and at the earliest possible time, of all environmental reviews into the NEPA process to create a single environmental document.

To expedite project delivery, proposed paragraph (b) would instruct OAs to incorporate by reference previously prepared and publicly available analyses, whenever possible, and to include a brief summary of the material in the NEPA document.

Proposed paragraph (c) would set forth general requirements for NEPA documents, in accordance with 40 CFR 1500.4(d), 1502.2(a) and (c), and 1502.8, including that they be written in plain language and that they address impacts in proportion to their significance.

Proposed paragraph (d) would require OAs to use an interdisciplinary approach, consistent with 40 CFR 1502.6, and provide that they may use professional services but must have staff with the capacity to evaluate these services and must take responsibility for the final content of their NEPA documents, consistent with 40 CFR 1506.5 and 1507.2.

Proposed paragraph (e) would promote the use of informal conflict resolution as well as environmental collaboration and conflict resolution (ECCR), consistent with the applicable requirements related to issue elevation and resolution outlined in section 6002 of SAFETEA-LU, 40 CFR 1504.2, and 1504.3(d) through (h), Executive Order (E.O.) 13807, and the September 7, 2012, CEQ/OMB joint “Memorandum on Environmental Collaboration and Conflict Resolution.” Proposed paragraph (e)(2) would include with revisions section 10 of the 1985 procedures, “Pre-decision Referrals to the Council on Environmental Quality”. This proposed paragraph would address the internal process for addressing or making referrals to CEQ. Overall, the process would remain the same, with revisions to reflect current practices for internal clearance and documentation requirements.

Proposed paragraph (f) would provide direction on the use of tiering to improve or simplify the environmental analysis of actions that are similar or broad in nature, or when future decisions or unknown future conditions preclude a complete NEPA analysis, consistent with 40 CFR 1501.11 and 1502.4(b)(2). It also would encourage the use of programmatic approaches with resource or regulatory agencies, where possible. This instruction is consistent with MAP-21 sec. 1305, which modified the environmental review process mandated in sec. 6002 of SAFETEA-LU by explicitly authorizing the Department to use programmatic approaches to conduct environmental reviews. 23 U.S.C. 139(b).

Proposed paragraph (g), which is consistent with 40 CFR 1501.6(c), 1505.2(a)(3) and 1505.3, would instruct OAs to identify in the FONSI or ROD those measures that the lead agency is adopting and committing to implement. Due to the importance of ensuring implementation of mitigation measures, OAs would be instructed to take appropriate steps to ensure that these mitigation measures are implemented, including, for third-party actions, by conditioning the agency decision upon the performance of the mitigation commitments. Where legal authority exists, OAs would be permitted to provide for mitigation monitoring.

Proposed paragraphs (h)(1) and (2) would identify public involvement as an important part of each stage of the development of a proposed action that should begin as early as reasonable and should be integrated into the NEPA process. The language would remain relatively unchanged from the original section 14 of the 1985 procedures, but has been updated to include modern technologies, such as using social media. Because the CEQ regulations provide flexibility with regard to public hearings, the Department does not include section 14(e) of the 1985 procedures. The revised provision provides flexibility in implementation and recognizes the importance of various engagement strategies. In addition, the proposed rule states that that methods to solicit the views of the public should be tailored to reach those persons who are interested or affected by the action, and NEPA documents should be made available online where appropriate and practicable. Finally, this provision would incorporate CEQ's requirements from 40 CFR 1500.3(b), 1500.4(n), and 1503.3, that public comments be solicited as early in the process as possible, that they be specific, and that OAs provide notice that comments not submitted shall be forfeited as unexhausted.

Proposed paragraph (i) would recognize that NEPA decisionmaking may not be delegated to third parties, but that many NEPA documents are prepared by third parties. Accordingly, this paragraph would address the use of contractors in preparing NEPA documents and set forth requirements consistent with 40 CFR 1506.5, which require OAs to provide guidance, participate in the preparation of, and independently review and assume responsibility for the content of all NEPA documents. OAs would retain responsibility for the documents' accuracy, scope, and contents. The section also would provide guidance for the selection of contractors. The Department notes that OA procedures may include different requirements regarding the OA's use of contractors. See, e.g., 23 U.S.C. 112.

Proposed paragraph (j) would incorporate existing NEPA tracking requirements at 40 CFR 1501.7(i), 1501.9(d)(5), and 1507.4 under which certain OAs must report applicable actions on the Permitting Dashboard, www.permits.performance.gov. The DOT Reporting Standards  3 clarify which OAs and which projects must be tracked. Currently the DOT Reporting Standards require the Federal Highway Administration, Federal Transit Administration, Federal Railroad Administration, and Federal Aviation Administration (including Stage agencies with NEPA assignment pursuant to 23 U.S.C. 327) to track all EAs and EISs for infrastructure projects. In addition, the DOT Reporting Standards reflect the E.O. 13807 requirement that all OAs must track major infrastructure projects, as that term is defined in E.O. 13807. These reporting standards have been subject to modification since first established in 2016 and may be subject to additional revisions in the future. Accordingly, the proposed rule would include only a high-level reference to the reporting requirements, while the specifics are addressed in the Reporting Standards to make it easier to revise as necessary.

Proposed § 13.15 would include with modifications the 1985 procedures at section 4, “Environmental Processing Choice.” The discussions of CEs and EAs in section 4 would be addressed in proposed §§ 13.17 and 13.19, respectively, and the list of references to OA CEs would be addressed in Appendix B. Proposed paragraph (a) would require OAs to establish the appropriate scope of the proposed action using, as applicable, the criteria in 40 CFR 1501.9(e) to determine the appropriate level of NEPA review. Proposed paragraph (b) would instruct OAs to ensure that the scope of a proposed action has independent utility or significance and does not unreasonably restrict the consideration of alternatives for other reasonably foreseeable actions to ensure meaningful and objective evaluation of alternatives. Proposed paragraph (c) would require analysis of the potentially affected environment and the degree of the effects in considering significance, consistent with 40 CFR 1501.3(b), which includes consideration of short- and long-term effects, beneficial and adverse effects, effects on public health and safety, and effects that would violate Federal, State, Tribal, or local laws protecting the environment where the effects are reasonably foreseeable and have a reasonably close causal relationship to the proposed action ( see 1508.1(g)). Proposed paragraph (d) would reflect the Office of Policy's role as the responsible office for NEPA implementation and compliance and provide guidance to OAs to notify the Office of Policy for situations involving unresolved disagreements between the OA and an applicant regarding the appropriate level of NEPA review.

Section 13.17 would provide an update to the 1985 procedures at section 4(c), “Categorical Exclusions.” Proposed paragraph (a) would provide the definition of CEs, consistent with 40 CFR 1508.1(d) and 1501.4, and the requirement to consider whether extraordinary circumstances are present such that the OA must prepare an EA or EIS. Proposed paragraph (b) would provide a list of extraordinary circumstances that an OA must consider before applying a CE listed in proposed Appendix A of part 13. These represent circumstances in which a normally excluded action may have significant environmental effects; this updated list would add substantial increases of noise in a noise-sensitive area; substantial adverse effects on a species listed or proposed to be listed on the List of Endangered or Threatened Species, or designated Critical Habitat for these species; a site that involves a unique characteristic of the geographic area, such as prime or unique agricultural land, a coastal zone, a historic or cultural resource, park land, wetland, wild and scenic river, designated wilderness or wilderness study area, sole source aquifer (potential sources of drinking water), or an ecologically critical area; as well as inconsistency with any applicable Federal, State, or local air quality standards, including those under the Clean Air Act, as amended; substantial short-or long-term increases in traffic congestion or traffic volumes on any mode of transportation; or substantial impacts on the environment resulting from the reasonably foreseeable, reportable release of hazardous or toxic substances. This list only would be applicable to the CEs listed in proposed Appendix A of part 13. However, when updating OA Procedures, OAs would be directed to consider whether any of the extraordinary circumstances provided in proposed paragraph (b) are appropriate to add to their list.

Under section 1314 of MAP-21, Congress first amended 49 U.S.C. 304 to establish a process by which OAs could apply CEs to multimodal projects, as that term is defined in 23 U.S.C. 139(a). Through section 1310 of the FAST Act, Congress later amended 49 U.S.C. 304 so that one OA could apply the CE established in the procedures of another OA for multimodal projects, as defined in 23 U.S.C. 139(a)(5). Proposed paragraph (c) would implement these authorities departmentwide.

The CEQ regulations allow agencies to establish a process to use other Federal agencies' CEs for their proposed actions after consultation with the other agencies to ensure that use of their CEs is appropriate. The regulations require documentation of the consultation and identification to the public of those CEs that the OA may use for its proposed actions. 40 CFR 1507.3(f)(5). DOT requests comments on whether the Department should create such a process and on the design of any such process, or whether it is more appropriate to direct each OA to develop a process in its own OA Procedures. If the departmental procedures were to include such a process, the provisions could describe the agency process under which an agency may borrow another agency's CE, including describing the proposed action, identifying potentially applicable CEs, documenting the applicability analysis, consulting with the originating agency, keeping records, and providing public notice. The Department will consider appropriate measures or provisions if it elects to establish such a process.

The CEQ regulations require agencies to review their existing NEPA procedures to ensure that they are consistent with CEQ's revised regulations and to adopt, as necessary, agency procedures that improve agency efficiency. 40 CFR 1507.3(b), 40 CFR 1501.4(a). The Department undertook such a review, and Appendix A would update and maintain a list of Departmental CEs. Based on its review, the Department would propose to add 11 new CEs, eliminate existing CE 3 and the subpart for existing 6b, and modify the remaining five existing CEs. Modifications to existing CEs would provide clarity and reflect the Department's experience with these activities. The Department provides additional information and justification for updating the existing CEs and supporting the new CEs in the docket for this rulemaking.

The proposed rule would re-order and re-number the Departmentwide CEs from the 1985 procedures. In the new proposed CEs, the Department has identified routine operational activities, including training and educational activities (proposed CE 3); leasing of space in existing buildings (proposed CE 6); remodeling existing facilities (proposed CE 7); landscaping and landscape maintenance that does not cause introduction or spread of invasive species (proposed CE 8); investigations, research activities, and studies (proposed CE 9); hearings and public meetings (proposed CE 12); administrative actions and proceedings (proposed CE 13); financial assistance to an applicant solely for the purpose of refinancing outstanding debt, where the debt funds an action that is already completed as a categorically excluded activity (proposed CE 14); and certain agreements concerning foreign governments, foreign civil aviation authorities, and international organizations and the implementation of such agreements (proposed CE 15).

This rule also would add two new CEs relating to rulemaking and policy activities. The first would cover the promulgation, modification, or revocation of rules and development of policies, notices, and other guidance documents that are strictly administrative, organizational, or procedural in nature; or are corrective, technical, or minor (proposed CE 10). The second CE would cover the promulgation, modification, revocation, or interpretation of safety standards, rules, and regulations that do not result in a substantial increase in emissions of air or water pollutants, noise, or traffic congestion, or increase the risk of reportable release of hazardous materials or toxic substances (proposed CE 11).

Finally, proposed CE 5 would modify existing CE 5 from the 1985 procedures, which incorporates by reference CEs identified in OA Procedures, and would expressly allow one OA to apply the CE of another OA. In order to apply a CE listed in another OAs procedures, the OA that has established the CE in its procedures must confirm that the OA administering the action is applying the CE appropriately, and that the action to which the CE is being applied was contemplated when the CE was established. Therefore, the Department would revise the CE to read, “Action categorically excluded in an OA's procedures where the action is administered by another OA. The OA with the CE must provide a written determination that the CE applies to the action proposed by the other OA and must provide expertise in reviewing the action being categorically excluded.”

Over the last decade, the Department has implemented a number of new programs and projects that go beyond the bounds of a particular OA. This updated CE would allow the Department the flexibility to administer its projects and programs more effectively and efficiently, taking advantage of multiple OAs' resources and expertise, while ensuring that CEs are appropriately applied to proposed actions. For example, the Department may ask one OA to administer a grant because it has extensive experience with that type of grantee, but the underlying project falls within the environmental expertise of another OA. The latter OA would determine whether application of its CEs to the project is appropriate because it is contemplated within that category of action and whether any extraordinary circumstances are present such that preparation of an EA or EIS may be required.

Proposed § 13.19 is a new section to address the preparation of EAs; it would update the 1985 procedures at section 4(d), “Environmental Assessment,” which provided guidance for the preparation of EAs. In accordance with 40 CFR 1501.5 and 1508.1(h), proposed paragraph (a) would explain when an EA must be prepared. Proposed paragraph (b) would provide the required elements for an EA, consistent with 40 CFR 1501.5, while proposed paragraph (c) would set forth an EA page limit of 75 pages consistent with 40 CFR 1501.5(f) unless a senior agency official approves in writing an EA to exceed 75 pages and establishes a new page limit. It also would outline the senior agency official approval required to exceed page limits beyond these lengths. This paragraph would require the EA to be concise and to correlate to the magnitude of the proposed action and its anticipated impacts. Proposed paragraph (d) would provide the requirement that an EA should be prepared within one year from the agencies' determination to prepare an EA consistent with 40 CFR 1501.10(a)(1). If, during development of the EA, the OA concludes that there will be significant impacts and therefore would not issue a FONSI, the OA would issue an NOI, and the time limits for EISs would apply consistent with 40 CFR 1501.10(a)(1).

Proposed paragraph (e) addresses the alternatives analysis for EAs, which may be limited to the proposed action and no action alternative, and may be analyzed to a degree commensurate with the nature of the proposed action and the OA's experience with the potential environmental impacts of similar projects. OAs would be instructed to indicate a preferred alternative in the EA, if one has been identified. For those alternatives that were considered and eliminated, the OAs would be directed to provide a brief justification of these decisions in the EA. Proposed paragraph (f) would note that EAs should reflect compliance or plans for compliance with other applicable environmental requirements, 40 CFR 1501.5(g)(3) and 1502.24, and proposed paragraph (g) would require an OA to evaluate the environmental issues independently and take responsibility for the accuracy, scope and contents of EAs prepared by applicants, 40 CFR 1506.5(b)(2). Proposed paragraph (h) would require OAs to involve the public, State, Tribal and local governments, relevant agencies, and any applicants to the extent practicable, 40 CFR 1501.5(e), and to make EAs available to the public, 40 CFR 1506.6(b) and 1501.6(a)(2). It would allow OAs to use their discretion to determine if a draft EA should be released for public comment, though OAs would be required to address substantive comments in the final EA or FONSI.

Proposed § 13.21 would incorporate with updates section 5 of the 1985 procedures, “Finding of No Significant Impact,” continuing to focus on the CEQ regulatory requirements for a FONSI set forth in 40 CFR 1501.6. Consistent with that provision, proposed paragraph (b) would set forth the circumstances when an OA may issue a mitigated FONSI, including identifying the mitigation measures necessary to reduce the potential impacts below a level of significance; ensuring the existence of sufficient legal authority and adequate commitment and resources to execute the mitigation measures; requiring implementation of the mitigation measures in any agreement with an outside party; and where appropriate, providing for monitoring and further action when there is a failure to implement mitigation measures or a failure in their effectiveness.

As OAs, must make FONSIs available to the public as specified in 40 CFR 1501.6, this section would not include the unnecessary instructions contained in section 5(c) of the 1985 procedures regarding internal coordination of FONSIs and circulation of Notices of Availability to State and area-wide clearinghouses. The proposed rule also does not include the instruction in section 5(c) that consultation with other Federal agencies concerning Section 4(f) (23 U.S.C. 138/49 U.S.C. 303), the National Historic Preservation Act, Clean Water Act Section 404 permits, and other Federal requirements should be accomplished prior to or during the 30-day period. This requirement to consult applies to all EAs, not just when a 30-day public comment period is required. Rather than providing in this proposed rule specific direction on compliance with substantive requirements contained in other environmental statutes, the Department instead proposes to include in Appendix C a non-exhaustive list of relevant environmental reviews, authorizations, and consultations that OAs would be expected to integrate into the NEPA process.

Proposed sections 13.23 through 13.27 would address the requirements for EISs. To improve clarity, the Department would include the requirements that apply to both draft and final EISs in proposed § 13.23, and address requirements specific to draft EISs (DEISs) in proposed § 13.25, and FEISs in proposed § 13.27. Generally, these sections would set forth the requirements from the CEQ regulations, including those in 40 CFR part 1502, and update the information previously included in the 1985 procedures at section 7, “Preparation and Processing of Draft Environmental Statements,” section 8, “Inviting Comments on the Draft EIS,” and section 11, “Final Environmental Impact Statements.” However, generally applicable instructions from these provisions in the 1985 procedures would be addressed in proposed § 13.9.

Proposed paragraph (a) of proposed § 13.23 would set forth when NEPA requires an EIS (42 U.S.C. 4332(2)(C)), and for clarity and consistency with 40 CFR 1507.3(e)(2), would note that examples of typical actions that require an EIS are listed in OA Procedures. Proposed paragraph (b) would instruct OAs to prepare a notice of intent to prepare an EIS and publish it in the Federal Register , 40 CFR 1501.9(d) and 1508.1(u). Proposed paragraph (c) would set forth scoping requirements pursuant to 40 CFR 1501.9, 1506.3, and 1508.1(cc), including the actions, alternatives, and impacts that must be considered when determining the appropriate scope of issues to be addressed in the EIS. The scoping process must consider the type of action and determine the level of NEPA review. ( See Section 13.15(c)). To determine whether the effects of the proposed action are significant, the OA must analyze the degree of the effects of the proposed action relative to the affected environment consistent with 40 CFR 1501.3. Proposed paragraph (d) would instruct OAs to provide early notice and solicit the views of any State or Federal land management entity that may be significantly affected by an action proposed by a State agency or official with statewide jurisdiction (42 U.S.C. 4332(2)(d)). Proposed paragraphs (e)(1) through (6) would, consistent with 40 CFR part 1502, address the format and content of EISs, including purpose and need, alternatives, affected environment, environmental consequences, mitigation, and the summary of submitted alternatives, information, and analyses. The detailed discussion of the contents of an EIS that is in Attachment 2 to the 1985 procedures, as well as discussions regarding documenting impacts to specific resources, is not included in the proposed rule. Specifically, proposed paragraph (e)(2) would emphasize that the draft EIS should identify the OA's preferred alternative(s), if one or more exists, unless in conflict with other laws; otherwise the OA should provide agencies and the public with the opportunity to assess the environmental consequences of the preferred alternative prior to issuing a combined FEIS/ROD, or the OA should provide the public with an opportunity to evaluate the preferred alternative during a waiting period after the publication of the notice of availability of the FEIS. Proposed paragraph (f) would require OAs to comply with document page limits in accordance with 40 CFR 1502.7. Proposed paragraph (g) would require that EISs be completed within two years from NOI to ROD. OAs must obtain approval from the Assistant Secretary to exceed this time frame, consistent with 40 CFR 1501.10(b)(2). Proposed paragraph (h) would reflect Departmental policy and CEQ regulations at 40 CFR 1502.11(g) to require OAs to include the total cost of the EIS on the cover page of an FEIS and a supplemental EIS. The amount reported would include the entire cost of the environmental review. Proposed paragraph (i) would set forth the requirement to file EISs with the Environmental Protection Agency (EPA) pursuant to 40 CFR 1506.10 and would note EPA's guidance on filing. Proposed paragraph (j) would address public notice and notice of availability requirements consistent with 40 CFR 1506.6. This proposed rule would remove from Attachment A of Order 5610.1C additional guidance not required under the CEQ regulations. Finally, proposed paragraph (k) would set forth the timing requirements for the OA's final decision, including the ability to reduce or extend time periods.

As noted in the discussion of proposed § 13.23, proposed § 13.25 would address requirements specific to the preparation of DEISs. Proposed paragraph (a) would encourage early preparation of the DEIS to ensure that the decisionmaker can meaningfully consider the analysis in the decisionmaking process. 40 CFR 1502.5. Proposed paragraph (b) would encourage OAs to indicate in the DEIS when they intend to issue a combined FEIS/ROD pursuant to 49 U.S.C. 304a(b) or 23 U.S.C. 139(n). To ensure meaningful participation in the environmental review process, proposed paragraph (c) would set forth the specific circulation and request for comment requirements for DEISs. Pursuant to the updated CEQ regulations, an OA must provide for electronic submission of public comments as well as ensure that the comment process is accessible to affected persons. See 40 CFR 1503.1(c).

As noted in proposed § 13.23, proposed § 13.27 would address requirements specific to the preparation of FEISs and the Department's unique statutory authorities. For example, section 1319(a) of MAP-21 clarified that the lead agency can issue an FEIS that consists of “errata pages”—rather than a complete, stand-alone document—if the agency received only “minor comments” on the DEIS. This flexibility existed under the CEQ regulations even before the enactment of MAP-21; however, section 1319(a) confirmed that this format is acceptable. It also required that errata pages “(1) cite the sources, authorities, or reasons that support the position of the agency” and “(2) if appropriate, indicate the circumstances that would trigger agency reappraisal or further response.”

In addition, section 1319(b) of MAP-21 provided authority to issue a combined FEIS/ROD. The FAST Act repealed this provision and codified identical provisions at 49 U.S.C. 304a and 23 U.S.C. 139. These provisions direct the Department, when it acts as the lead agency, to issue the FEIS and ROD as a single document “to the maximum extent practicable,” unless (1) the FEIS makes substantial changes to the proposed action that are relevant to environmental or safety concerns; or (2) there are significant new circumstances or information relevant to environmental concerns and the circumstances or information bears on the proposed action or the impacts of the proposed action.

Proposed paragraphs (a) and (b) address resolution of comments on the DEIS in the FEIS. Consistent with 40 CFR 1503.4, proposed paragraph (a) would provide direction on responding to comments on the DEIS in the FEIS. Proposed paragraph (b) would provide for the use of errata sheets consistent with 49 U.S.C. 304a(a), 23 U.S.C. 139(n), and 40 CFR 1503.4(c).

Proposed paragraph (c) would implement the requirements of 49 U.S.C. 304a(b) and 23 U.S.C. 139(n) to issue a combined FEIS/ROD to the maximum extent practicable, unless the FEIS makes substantial changes to the proposed action that are relevant to environmental or safety concerns; or there is a significant new circumstance or information relevant to environmental concerns that bears on the proposed action or the impacts of the proposed action. When an OA is the lead agency and there are cooperating agencies, the cooperating agencies must, to the extent practicable, issue the FEIS/ROD jointly with the OA pursuant to 40 CFR 1501.8(b)(8).

To ensure the integration of all environmental reviews into the NEPA process, proposed paragraph (d) would direct the FEIS to reflect compliance or plans for compliance with other environmental requirements; should such compliance not be possible by the time the FEIS is prepared, proposed paragraph (d) would direct OAs that the document should reflect consultation with the appropriate agencies and provide reasonable assurance that the OA can meet the requirements. This rule would not include section 12 of the 1985 procedures, “Determinations Under Section 4(f) of the DOT Act,” as discussion of determinations under Section 4(f) is outside the scope of the Department's NEPA implementing procedures. Proposed paragraph (e) would reiterate existing delegations for approval of FEISs. Proposed paragraph (f) would set forth the Department's policy to notify the Office of Policy for certain FEISs. Finally, to ensure meaningful participation in the environmental review process, proposed paragraph (g) would address circulation requirements for the FEIS.

This new section would reference requirements for an OA record of decision (ROD). Proposed paragraph (a) would implement the requirements of 49 U.S.C. 304a(b) and 23 U.S.C. 139(n) to develop a combined FEIS/ROD. This paragraph would set forth the 30-day waiting period required by 40 CFR 1506.11(b)(2) in those instances where the OA determines it is not practicable within the meaning of 49 U.S.C. 304a(b) and 23 U.S.C. 139(n) to issue a combined FEIS/ROD. In general, if a combined FEIS/ROD will not be prepared, and when the proposal requires action by multiple Federal agencies, proposed § 13.29 clarifies that the OA should issue a single ROD with the other Federal agencies. Furthermore, for expediency, proposed § 13.29 would allow the OA to integrate the ROD into another record or decision document, such as a final rule. Proposed paragraph (b) would set forth the topics to be addressed in the ROD, including alternatives, factors balanced in decisionmaking, and mitigation measures. Proposed paragraph (c) includes a requirement that the ROD provide a certification by the decisionmaker that the agency has considered all the alternatives, information, and analyses, and objections submitted for consideration by the lead and cooperating agencies in developing the EIS. FEISs certified in accordance with 40 CFR 1505.2(b) are entitled to a presumption that the agency has considered the submitted alternatives, information, and analyses including the summary in the FEIS. Proposed paragraph (d) would clarify that the ROD should not repeat the analysis in the EIS, but should document the OA's decision and briefly discuss compliance with environmental laws applicable to the action or procedures, and expected timeframe for completion of such compliance. Finally, to reflect the Department's policy of using an interdisciplinary approach, proposed paragraph (e) would allow OAs to discuss preferences among alternatives based on relevant economic, technical, or other factors, and OA mission and authority.

Proposed § 13.31 would introduce a new section that is not in the 1985 procedures. This section would address adoption of NEPA documents pursuant to the CEQ regulation, 40 CFR 1506.3, and the Department's discretionary adoption authority under 49 U.S.C. 304a(c)(2). Proposed paragraph (a) would discuss the adoption by OAs of EISs prepared by a lead agency on an action for which the OA is a cooperating agency, in accordance with 40 CFR 1506.3(b)(2)), while proposed paragraph (b) would provide information on adoption when the OA is not a cooperating agency but the action covered by the original EIS and the proposed action are substantially the same, including circulation requirements, in accordance with 40 CFR 1506.3(b)(1). Proposed paragraph (c) would cover the full or partial adoption of EISs when the OA is not a cooperating agency and the actions covered are not substantially the same, in accordance with 40 CFR 1506.3(b). Where the OA was not a cooperating agency, proposed paragraphs (b) and (c) direct the OA to issue a combined FEIS/ROD consistent with the directive in 49 U.S.C. 304a and 23 U.S.C. 139(n). Proposed paragraph (d) provides for the full or partial adoption of an EA. Proposed paragraph (e) provides for adoption of a CE determination by another Federal agency when the action in the original CE determination and the proposed action are substantially the same. When doing so, the OA must document the adoption consistent with 40 CFR 1506.3(d) and proposed section 13.25(b). Proposed paragraph (f) would require re-evaluation of an EIS or EA that is more than 5 years old prior to its full or partial adoption, in accordance with proposed § 13.33 and 40 CFR 1502.9(d)(4). Proposed paragraph (g) would require filing with the EPA when an OA adopts and publish an EIS, and finally, proposed paragraph (h) would allow an OA to adopt an EA, DEIS, or FEIS of another OA under 49 U.S.C. 304a(c)(2).

Consistent with 40 CFR 1502.9(d)(4), re-evaluation is a longstanding practice of the Department to determine whether new information triggers the requirement to supplement an EIS pursuant to 40 CFR 1502.9(d). A re-evaluation is a continuation of the project development process, and it does not necessarily re-open the NEPA decision. Proposed § 13.33 would update and clarify the existing practice for re-evaluation outlined in section 19 of the 1985 procedures, “Time in Effect of Statements.” In addition, the Department would revise the interval for re-evaluation from three to five years. Proposed paragraph (a)(1) would encourage the use of re-evaluation when there are changes to the proposed action or new circumstances or information relevant to environmental concerns. Additionally, proposed paragraph (a)(2) would require OAs to re-evaluate in writing DEISs if the OA has not issued an FEIS within five years of circulation of the DEIS, and FEISs if major steps toward implementation have not commenced within five years of FEIS approval. Proposed paragraph (b) would address the CEQ regulatory criteria for a supplemental EIS, as well as the discretion to supplement, circulation requirements for supplemental EISs, and the process for the approval of an alternative circulation procedure. 40 CFR 1502.9(d)(1).

Section 1432 of the FAST Act provided for exemptions and expedited procedures for certain environmental review processes during emergencies. Specifically, section 1432(b)(1) references alternative arrangements under 40 CFR 1506.12. Proposed § 13.35 concerns such alternative arrangements. This new section would also address the CEQ regulation on emergencies, 40 CFR 1506.12, and related CEQ guidance. Finally, this section would build on section 17(c) of the 1985 procedures, “Timing of Agency Action,”, which details the internal process for consulting with CEQ concerning emergencies.

Proposed § 13.35 would address emergency situations in proposed paragraph (a) and would provide mechanisms for NEPA compliance where the OA anticipates significant impacts in proposed paragraph (b) or non-significant impacts in proposed paragraph (c). In both instances, this section would provide the internal coordination process for such compliance.

Proposed § 13.37 would address the requirements for legislative EISs consistent with 40 CFR 1506.8(c)(2). Consistent with the general updates set forth in Section II of this rulemaking, this proposed section would also incorporate and revise for clarity the substance of section 15 of the 1985 procedures, “Proposals for Legislation,”

Proposed § 13.39 would address implementation of Executive Order 12114, Environmental Effects Abroad of Major Federal Actions addressed in section 16 of the 1985 procedures, “International Actions.”  4 This section would streamline the provision by cross-referencing to the E.O., rather than repeating its applicability criteria. It also would direct OAs to prepare any required EIS consistent with this rule and OA procedures. Finally, this section would reflect minor edits for clarity consistent with the general updates set forth in Section II of this NPRM.

Appendix A would list the existing, revised, and new departmentwide CEs. Consistent with the CEQ regulations, agencies or their subunits may determine that certain categories of actions normally do not have significant environmental impacts and therefore do not require further review under NEPA. As discussed in the analysis of proposed § 13.17 in Section III of this rulemaking, this proposed rule would clarify which categories of activities are categorically excluded and normally would not require additional NEPA analysis. The Department substantiated the proposed new and revised CEs by reviewing EA and EIS analyses to identify the environmental effects of previously implemented actions, benchmarking other Federal agencies' experience implementing similar categories of actions, and relying on the judgment and expertise of the Department's NEPA practitioners. The Department notes that other Federal agencies have established CEs for activities that are similar in nature, scope, and effect on the human environment. The Department provided for CEQ review the proposed draft changes and justification for each proposed change to the list in this appendix.

Appendix B would provide cross-references to the OA CEs. The proposal would incorporate by reference all current CEs established and maintained by the OAs for use pursuant to CE #5.

This rule would direct OAs to coordinate and integrate all relevant environmental and planning studies, reviews, and consultations into their environmental review process. This instruction is consistent with MAP-21 sec. 1305, and FAST Act sec. 1304, which requires the Department to align the environmental review process and substantive environmental legal compliance. To assist the Department's NEPA practitioners in harmonizing these reviews, Appendix C would provide a non-exhaustive list of the environmental requirements that should be integrated with the NEPA process.

The Office of Information and Regulatory Affairs determined that this rule is a significant regulatory action under E.O. 12866, as supplemented by E.O. 13563, because it is related to the agency's implementation of the CEQ regulations implementing the procedural requirements of NEPA.

E.O. 12866 and E.O. 13563 require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.”. The rule would implement several changes to Department policies, procedures, and internal coordination to streamline project delivery.

Several provisions are expected to create one-time de minimis administrative costs for the Department, including the requirement that OAs update their regulations and revise Department policies and processes to comply with the provisions in the regulation. The Department would also incur ongoing de minimis administrative costs due to staff time required by additional internal reporting and coordination.

The Department expects that the rule would yield administrative cost savings as a result of better intra- and interagency coordination and more efficient program management within the Department. The Department expects that these potential cost savings from the proposed rule would outweigh any one-time or ongoing de minimis administrative costs.

Several provisions could result in savings:

• Requiring the use, where appropriate, of coordination tools including programmatic approaches and interagency agreements would decrease required staff time and resources by shortening review times and by reducing the duplication of efforts by the Department and by State and Federal resource agencies.

• Establishing Departmentwide internal reporting and coordination requirements would allow the Department to allocate resources better to ensure that the environmental review process remains on schedule while also improving the identification of potential issues earlier in the environmental review process.

• Setting presumptive NEPA document page limit provisions and increasing the timeframe that NEPA documents remain valid from three to five years would reduce the Departmental time and resources required to develop, issue, or review NEPA documents.

• Allowing OAs to share CEs would save Department resources and staff time by reducing the number of EAs prepared for categories of projects that another OA has previously determined would not normally have a significant impact on the environment.

• Introducing Departmentwide CEs that include research activities and rulemakings would reduce the administrative costs of conducting those activities.

• Removing prescriptive EIS contents that were included in Attachment 2 of the 1985 procedures would allow documents to be tailored to use a more effective format for communication, thereby saving the Department and project sponsors time and resources in document preparation.

Project sponsors may also incur de minimis costs from the rule, such as staff time to calculate and provide the total cost of the environmental review process on the final environmental impact statement cover page. However, the Department expects that project sponsors would also achieve cost and time savings in the environmental review process which would outweigh these costs. An emphasis on programmatic approaches and interagency agreements in this regulation would save project sponsors staff time and resources by reducing environmental impact review times and by limiting duplicative submissions to multiple State and Federal agencies. Additional internal coordination and reporting requirements would increase the accountability and transparency of the environmental review process for project sponsors, and will allow for earlier identification and mitigation of risks that could otherwise slow down the overall environmental review process. The Department also expects that the provisions on page limits and an increase in the timeframe that NEPA documents remain valid would allow for savings in environmental document preparation.

The Department also expects that these changes would reduce the time required for projects to move through the environmental review process. As a result, projects may be completed earlier, and the benefits of transportation infrastructure improvements or research would accrue to the public sooner than they otherwise would have. The Department expects that codifying the required online posting of environmental documents would also improve the transparency of the environmental review process for the public. Finally, shorter environmental documents would facilitate reviews by decisionmakers and the public. The Department has issued a page limits policy memorandum, which would support this proposal, and which encourages using a clear and concise writing style to meet the page limits. Such environmental documents would be easier to read and may make it easier for the public to understand the potential environmental impacts of proposed transportation projects.

This proposed rule is expected to be an E.O. 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's economic analysis in section IV(a).

The Regulatory Flexibility Act (RFA), (Pub. L. 96-354, 5 U.S.C. 601-612) requires an agency to assess the impacts of proposed and final rules on small entities unless the agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities. DOT has evaluated the effects of this proposed rule on small entities such as small businesses, small organizations, and small governmental jurisdictions. Based on the evaluation, the Department anticipates that this action would not have a significant economic impact on small entities. The proposed rule would not directly regulate small entities, as the proposed rule applies to the Department and sets for its procedures for implementing the provisions of NEPA. Accordingly, the Department certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities.

E.O. 13132 requires agencies to ensure meaningful and timely input by State and local officials in the development of regulatory policies that may 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. DOT analyzed this action in accordance with the principles and criteria contained in E.O. 13132. This NPRM would establish internal administrative procedures for the DOT to comply with NEPA. This action will not have a substantial direct effect or federalism implications on the States and would not preempt any State law or regulation or affect the States' ability to discharge traditional State governmental functions because this proposed rule applies to the Department, not States. This action contains no Federal mandates for State and local governments and does not impose any enforceable duties on State and local governments. Because this action addresses only internal Department procedures for implementing NEPA, consultation with State or local governments is not necessary. The Department notes that some states have voluntarily assumed NEPA responsibility pursuant to 23 U.S.C. 327.

Pursuant to E.O. 13175, “Consultation and Coordination with Indian Tribal Governments,” the Department has assessed the impact of this proposed rule on Indian tribal governments and has determined that the proposed rule would not significantly or uniquely affect communities of Indian tribal governments. The proposed rule deals with administrative procedures for complying with the requirements of the NEPA and, as such, has no direct effect on Indian Tribal governments. Because the proposed rule does not mandate Tribal participation in the Department's environmental review process, it does not impose substantial direct compliance costs on Indian tribal governments. The proposed rule will recognize the obligation to and benefit of including Indian tribes in public engagement strategies to fulfill relevant environmental review responsibilities. Accordingly, the funding and consultation requirements of Executive Order 13175 do not apply.

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ) requires that DOT consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from OMB for each collection of information it conducts, sponsors, or requires through regulations. The DOT has determined that the proposed rule does not contain a collection-of-information requirement subject to review and approval by the OMB under the PRA.

The Department has determined that the proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4, 2 U.S.C. 1531-1538). The actions proposed in this NPRM do not contain any unfunded mandates as described in the UMRA, and does not significantly or uniquely affect small governments. This proposed rule does not impose any mandates on small entities. It addresses the Department's procedures for implementing the procedural requirements of NEPA.

The CEQ regulations do not direct agencies to prepare a NEPA analysis before establishing agency procedures to supplement the CEQ regulations to implement NEPA. See 1507.3; Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. III. 1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000) (holding that a decision to issue agency NEPA procedures does not require analysis and documentation under NEPA). The Department's NEPA procedures assist the Department in fulfilling its responsibilities under NEPA and the CEQ regulations, but are not themselves final determinations of the level of environmental review required for particular actions. The Department also anticipates that this rulemaking would be categorically excluded pursuant to the 1985 procedures. Accordingly, the Department does not anticipate any environmental impacts from this proposal, and there are no extraordinary circumstances present in connection with this rulemaking.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in the spring and fall of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

In consideration of the foregoing, the Office of the Secretary of Transportation proposes to amend Title 49 of the Code of Federal Regulations by adding part 13 to read as follows: